About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2018
>>
[2018] ZAFSHC 55
|
|
Mofokeng v S (A22/2018) [2018] ZAFSHC 55 (3 May 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: A
22/2018
In
the appeal between:
LEPONESA
MMOTA
MOFOKENG
Appellant
and
THE
STATE
Respondent
CORAM:
MATHEBULA, J et VAN
RHYN, AJ
JUDGMENT
BY:
MATHEBULA,
J
HEARD
ON:
23 APRIL 2018
DELIVERED
ON:
3
MAY 2018
[1]
The appeal, which came before us as of right, is against the
conviction and sentence imposed by the regional magistrate sitting
in
Bethlehem. The appellant was charged with rape for contravening
the provisions of section 3 read with section 1 of Act
32 of 2007,
read with section 256 and 261 of the Criminal Procedure Act 51 of
1997, and also read with the provisions of
section 51 (1) and
Schedule 2 of the Criminal Law Amendment Act 105 of 1977. He
pleaded not guilty and on 24 April 2016 he
was found guilty and
sentenced to life imprisonment.
[2]
The facts of the case are briefly as follows. The complainant,
who was 10 years old at the time, was sent to the shop
at Atbara farm
near Paul Roux. On her way back she met the appellant who was
well known to her and on the way to the shop.
The accused
requested her to wait for him which she did. They then walked
together to their respective homes.
[3]
As they passed a tree situated next to the long grass, the accused
pushed her and she fell down. He throttled and instructed
her
to undress. He also pulled out a knife and threatened to stab
her. After she was naked from the waist down, he
also undressed
and proceeded to sexually penetrate her.
[4]
While he was lying on top of her, she saw B. M. M. passing by.
She screamed for help. The accused jumped off and
made a dash
for it. She too stood up, left her clothes there and ran home
half naked to report the incident. The matter
was later
reported to the police who took her to the hospital.
[5]
B. M. M. corroborated the version of the complainant that when the
complainant saw her she screamed for help. Further
she emerged
from the long grass naked with no pants on. The accused denied
raping the complainant and told her that he will
defend himself in
court. The complainant’s father confirmed the condition
that she was in when she arrived at home
and that she reported that
the accused had raped her.
[6]
The appellant testified that on the day in question he met the
complainant and walked with her from the shop. The complainant
was walking in front and he was following her. On the way they
come across B. M. M.. The complainant spoke with her.
It
is at this unfortunate moment that she alleged to Betty that he had
raped her. The latter repudiated her that she was
wanted at
home. They all parted with each other on that note.
[7]
On behalf of the appellant, Me Kruger correctly conceded that the
conviction was in order. She submitted that the sentence
imposed by the regional magistrate was shockingly inappropriate.
She pertinently referred us to the factors tabulated in
paragraph 3
of her heads of argument and that the regional magistrate failed to
take them into account. In essence
she argued that had
the regional magistrate take them into account, he could have found
the existence of substantial and compelling
circumstance justifying
deviation from the prescribed minimum sentence.
[8]
The State, represented by Advocate Giorgi, agreed with the concession
on conviction and made no further submissions on that
aspect.
On the question of sentence, she submitted that the sentence was not
shockingly inappropriate and that we should
not interfere with it.
She also referred us to her heads of argument clearly stating her
support for the sentence.
We are indebted to both counsel for
the detailed heads of argument filed in this matter.
[9]
The regional magistrate rejected the version of the appellant and
accepted that of the state witnesses. I am of the view
that the
regional magistrate did not err in finding that the appellant was
guilty. The state had succeeded in proving its
case beyond
reasonable doubt.
[10]
In mitigation of sentence, the personal circumstances of the
appellant were submitted and rewarded as follows.
That he
is fifty one (51) years old, his highest scholastic achievement is
grade 8, married in terms of the customary law with
one child of
seventeen (17) years, he is the only person gainfully employed in his
family as a farm labourer earning R2 600.00
per month.
Further that he had been incarcerated as an awaiting trialist for a
period of nine (9) months and his last conviction
came about more
than twenty years ago. Therefore he must be viewed as a first
offender. Lastly that there was no Victim
Impact Report
demonstrating lasting psychological and emotional damages.
[11]
In aggravation the State referred to the seriousness of the offence
particularly because a ten (10) year old child is the victim.
The appellant who was in a position of trust as a friend of the
family pounced on the vulnerable and defenceless child.
Accordingly the Victim Impact Report stated that the complainant was
adversely affected by the incident. Apart from attending
counselling, she was still attending treatment at the hospital.
In total, her life changed and is no longer the same.
The
incident had also resulted in a toxic relationship between the family
of both the appellant and complainant.
[12]
It is trite that sentencing is the prerogative of the trial
court.
[1]
The court must
exercise the discretion judicially and on reasonable grounds.
The Court of Appeal will not lightly interfere
with the sentence
imposed by the lower court unless it is vitiated by some
irregularity.
[13]
Rape is a heinous crime and an invasion of privacy of the
individual. Its prevalence is one of the reasons why the
Legislature
deemed it appropriate to ordain minimum sentences to curb
the runaway scourge. It targets in a ruthless manner the
vulnerable
in the society namely the aged, women and children.
[14]
In this matter, I take cognisance of the degree of violence exerted
on the complainant by the appellant. He started by
throttling
her. Thereafter, he pulled out a knife subduing her so that he can
continue with his pitiless deeds. Such a small
child was
grossly humiliated in that she had to run home semi-naked after the
appellant had violated her. Thereafter in an
act of cynical
bravado, he went to her home and nonchalantly proceeded to consume
alcoholic beverages. It is patently clear
that he had no regard
whatsoever for the complainant and/or her family. The appellant
did not show any remorse. Neither
did he do so himself or
instruct his defence attorney on his behalf during mitigation.
This demonstrate his overall attitude
of refusing to take
responsibility for his actions.
[15]
The regional magistrate was correct that he should not deviate from
imposing the minimum sentence for flimsy or unconvincing
reasons as
stated in
Malgas
case.
[2]
The seriousness of the offence and the interests of society far
outweighed the personal circumstances of the appellant.
The
community is alarmed at the prevalence of this pestilence and the
Legislature has responded positively by enacting the provisions
imposing minimum sentences. It is for the courts to interpret
and apply the law in a manner that the provisions achieve its
objectives and meet the aspirations of the community at large. The
appeal ought to be dismissed.
[16]
Accordingly I make the following order:-
16.1. The appeal against
both conviction and sentence is dismissed.
16.2. The conviction and
sentence of life imprisonment imposed on 24 June 2016 is confirmed.
___________________
M. A. MATHEBULA, J
I
concur
______________
I.
VAN RHYN, AJ
On
behalf of the appellant:
Ms. S Kruger
Instructed
by:
Bloemfontein Justice Centre
On
behalf of the respondent:
Adv. S. Giorgi
Instructed
by:
Director: Public Prosecutions
BLOEMFONTEIN
/roosthuizen
[1]
S v Khumalo
1973 (3) SA 697
(A) at 698 B-C.
[2]
2001 (2) SA 1222
(SCA)