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2018
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[2018] ZAFSHC 176
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Makae v S (A262/17) [2018] ZAFSHC 176 (29 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A262/17
In
the Appeal between:
HANS
JONAS
MAKAE
Appellant
and
THE
STATE
Respondent
CORAM:
DAFFUE J,
et
CHESIWE J,
et
DANISO AJ
HEARD
ON:
19 NOVEMBER 2018
JUDGMENT
BY:
DANISO, AJ
DELIVERED
ON:
29 NOVEMBER 2018
[1] The appellant was
convicted of rape and murder in this court by Lombard J. He was
subsequently sentenced to life imprisonment
in respect of the charge
of rape and 15 years imprisonment for the murder. The sentences were
imposed under the provisions of
s 51 (1) of the Criminal Law
Amendment Act 105 of 1997
(“
The Act
”).
[2] The appellant is
aggrieved by the sentence of life imprisonment. He appeals to this
court with leave from the Supreme Court
of Appeal (per Swain JA and
Schippers AJA).
[3] The conviction of the
appellant arises from the incident of the night of the 07
th
April 2002 which began as a lover’s outing but ended
tragically. The deceased, Nthabiseng Jeannette Sefafe and her partner
were walking home from the tavern when they were accosted by four men
brandishing knives. Her partner managed to flee. The deceased
was not
so lucky. She was raped and murdered. Her naked body was discovered
on the soccer field the next day.
[4] The appellant was one
of the perpetrators. He challenges the sentence on the ground that it
is shockingly inappropriate for
the reason that it was imposed under
the Act whereas no mention was made in the indictment to inform him
of the applicability of
the Act and the court a quo also did not warn
him accordingly.
[5]
The trial record is inadequate. Inexplicably, it was agreed between
counsel that it was not necessary to file the entire record
and this
is despite the fact that the appeal turns on the failure of the court
and/or the respondent to appraise the appellant
of the applicability
of the Act at the trial. The respondent’s counsel who had also
appeared for the state at the trial confirmed
that the applicability
of the Act was indeed alluded to at the sentencing stage.
[6]
The examination of the indictment reveals that there was no reference
made to
s 51(1)
;
i
t merely states thus:-
“…
VERKRAGTING
(AANKLAG 1)
DEURDAT
die beskuldigde op of omtrent 7 April 2002 en te of naby te
Seeisoville in die distrik van Kroonstad wederregtelik en opsetlik
vir Nthabiseng Jeannette Sefafe aangerand en teen haar wil met haar
vleeslike gemeenskap gehad en haar aldus verkrag het.”
[7] There was indeed an
omission in informing the appellant of the applicability of the Act.
The general test for this apparent
constitutional inadequacy is that
the omission on its own does not automatically render the trial
unfair. Each case must be judged
on its own facts as the diligent
examination of the circumstances of the case may reveal that in spite
of the omission the appellant’s
right to a fair hearing was in
fact not infringed. See
MT v S; ASB v S; September v S
2018
(11) BCLR 1397
(CC)
para 40.
[8]
The onus is on the appellant to show that this omission has
prejudiced him
in the conduct of his case
.
On the facts of this matter it is difficult to understand how
the appellant was prejudiced.
[9] Except to argue that
as the result of the life sentence he may not be released on parole
until he has served 25 years of his
sentence, the appellant has not
even attempted to explain what is it that he could have done
differently if he had been made aware
that he was facing a life
sentence. On the facts germane to this matter there is virtually no
reasonable possibility that he would
have pleaded differently. He
maintained his innocence throughout the trial.
[10] The reference to the
applicability of the provisions of the Act in the indictment is
intended to afford an accused an opportunity
to formulate and place
before court facts on which the court can rely to deviate from the
prescribed sentence. In this matter the
appellant’s counsel not
only confirmed to the court a
quo
that the Act was applicable,
but went further and presented arguments in that regard during
mitigation. Evidence from a probation
officer was also tendered.
[11]
I can therefore discern no prejudice to the appellant as a result of
this omission.
[12] The appellant also
contends that the court should have found that there were substantial
and compelling circumstances warranting
a deviation from the minimum
sentence and should have accordingly imposed a lighter sentence.
[13] Sentencing is within
the discretion of the trial court and an appeal court can only
interfere with sentence where there has
been an irregularity that
results in a failure of justice; or where the trial court misdirected
itself to such an extent that its
decision on sentence is vitiated,
or if the sentence is shockingly inappropriate. See
Director of
Public Prosecutions, KwaZulu-Natal v P
2006
(1)
SACR 243
(SCA)
and
S v Bogaards
[2012] ZACC 23
;
2013
(1) SACR 1
(CC)
.
[14]
In the instant case it was conceded at the trial that except for the
appellant’s generic personal circumstances (
his age, that he
was a first offender, spent about 6 months in custody awaiting
trial
..) there were no other factors which qualified as
substantial and compelling circumstances justifying a sentence less
severe than
the prescribed sentence.
[15]
It is trite that the traditional mitigating factors such as an
accused’s personal circumstances cumulatively can be taken
into
account as factors to be considered as
substantial
and compelling circumstances; however, they must be weighed together
with the aggravating factors. The personal circumstances
alone
cannot
be elevated to the status of
substantial
and compelling circumstances.
[16]
There
was a number of aggravating factors in this matter. The
appellant was unremorseful. The attack on the deceased was brutal,
according
to the post-mortem report (Exhibit “A”) she had
bruises all over her body, face, neck, abdomen, ribs and knees but
the brutality did not end there. The appellant and his accomplices
were not satisfied by violating her body and dignity they also
took
her life. She was strangled and left sprawled naked at the stadium.
[17]
The violence perpetrated on the deceased and the total disregard of
her human rights is extremely aggravating. The features
of this rape
as well as its consequences for the victim herein places the rape in
the category of what Mpati JA referred to in
S v Mahomotsa
2002
(2) SACR 435
(SCA)
, at paragraph 17, as ‘
the
worst category of rape
’ – and thus the type of rape
for which life imprisonment would ordinarily be the appropriate
sentence.
[18]
The personal circumstances of the appellant pale into insignificance
when measured against the brutality of this rape.
[19]
Rape is a very serious and prevalent offence in this country. The
scourge of rape and its effect on the interests of the society
was
enunciated in
S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA)
345B-D and repeated in
S v Vilakazi
2012 (6)
SA 353
(SCA)
para 1 where the court held that:-
'rape is a . . .
humiliating, degrading and brutal invasion of the privacy, the
dignity and the person of the victim. Women in this
country . . .
have a legitimate claim to walk peacefully on streets, to enjoy their
shopping and their entertainment, to go and
come from work, and to
enjoy the peace and tranquillity of their homes without fear, the
apprehension and the insecurity which
constantly diminishes the
quality and enjoyment of their lives'
.
[20]
The society looks to the courts for protection from people who roam
around the streets at night to terrorize and prey on defenceless
women. It is for this reason that the sentences that the courts
impose must have an element that speaks to the plight of society,
the
society expects no less.
[21]
In the absence of factors which seriously mitigated against the
imposition of the maximum sentence possible, the court a
quo
cannot be faulted for not imposing a sentence less than imprisonment
for life.
[22] For the above
reasons
, the trial judge correctly
concluded that there were no substantial and compelling circumstances
that warranted a deviation from
the prescribed minimum sentence.
[23]
There are no reasons to interfere with the imposed sentence,
wherefore the appeal must therefore fail in this regard.
[24]
Wherefore the following order is
made;-
1.
The appeal is dismissed and the sentence of life imprisonment
is confirmed.
____________
NS
DANISO, AJ
I
concur
_____________
J
DAFFUE, J
I
concur
_____________
S
CHESIWE, J
On
behalf of appellant: Mr P. Peyper
Instructed
by: Peyper Buitendag Inc. Attorneys
BLOEMFONTEIN
On
behalf of respondent: Advocate M Strauss
Instructed
by: The Director of Public Prosecutions
BLOEMFONTEIN