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[2018] ZAECMHC 44
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Rozana v S (CA&R127/2017) [2018] ZAECMHC 44 (21 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION: MTHATHA)
CASE
NO.: CA & R 127/2017
In
the matter between:
SICELO
ROZANA
Appellant
and
THE
STATE
Respondent
APPEAL
JUDGMENT
HUISAMEN
AJ
[1]
The Appellant in this matter, an adult male
who was 33 years old at the time of the commission of the offences,
has been convicted
of the kidnapping and rape of a 14 year old girl
in the Sterkspruit area. The offences occurred on 17 December
2010.
[2]
On 8 December 2012 the Appellant was
convicted on both counts in the Regional Court in Sterkspruit.
[3]
On the count of kidnapping the Appellant
was sentenced to 12 months imprisonment and on the count of rape the
Appellant was sentenced
to imprisonment for life. The Appellant
was also declared unfit to possess a firearm. The sentences
were handed down
on 8 December 2012.
[4]
This appeal is against sentence only.
[5]
Because of the complainant’s tender
age, the offence of rape attracted a minimum sentence in terms of
Section 51(1)
of the
Criminal Law Amendment Act No 105 of 1997
, as
amended.
[6]
The circumstances within which the offences
were committed are shocking. On 17 December 2010 the
complainant and other friends
were on their way home from a clinic
where they had a braai. Whilst walking past the home of the
Appellant, he pounced upon
her and pulled her towards his home.
He was armed with a knife and a stone. He assaulted the
complainant with the stone.
One of the complainant’s
friends tried to intervene, but was chased away by the Appellant.
The Appellant forced the
complainant into his home, where he then had
sexual intercourse with her without her consent. During the
course of the assault
the Appellant hit the complainant with a stone
and also tore her pair of trousers with his knife. The
complainant’s
father later arrived at the home and removed his
daughter.
[7]
The Appellant’s version was initially
that he was in a relationship with the complainant. He denied,
however, that he
had intercourse with her during the night in
question.
[8]
In arriving at the sentences which were
imposed, the learned Magistrate took into account the Appellant’s
personal circumstances,
the seriousness of the crime as well as the
interest of the community.
[9]
The Appellant was a middle aged man of 33
years old at the time of the sentencing, unmarried with no children.
He had passed
grade 12 at school and was unemployed. He had a
list of previous convictions of housebreaking with intent to steal
and theft
for which he had received prison sentences over a number of
years.
[10]
The Magistrate took into account that, to a
lesser extent, the Appellant acted under the influence of liquor.
[11]
However, the Appellant still had the
strength and courage to confront the complainant and overpower her.
[12]
The Magistrate emphasized the fact that
rape was a very serious offence which had reached alarming
proportions in the district of
Sterkspruit, where the offences were
committed. The Magistrate therefore emphasized that it was in
the interests of the community
that the sentence would have a
deterrent effect on those who may contemplate committing such crimes.
[13]
The Magistrate, in the circumstances of the
matter, was unable to find compelling and substantial circumstances
which would justify
a lesser sentence than the prescribed minimum
sentence.
[14]
I can do no better in this matter but refer
to the matter of
Mqikela v S (CA
119/07) [2009] ZAECGHC 74;
2010 (2) SACR 589
(ECG)
where Jones J held as follows in paragraph [3]:
“
[3]
A court of appeal has no general power to set aside the sentence of
the trial court. The imposition of sentence is within
the
discretion of the trial court, and the court of appeal may interfere
only if that discretion has not been exercised in a proper
judicial
manner (S v Giannoulis
1975
(4) SA 867
(A) per Holmes JA 868 and S v Kgosimore
1999
(2) SACR 238
(SCA) 241 para 10). Further, the findings of fact upon which
the trial court has based its sentence are, in the absence of
a
misdirection of law or fact, presumed to be correct. The court
of appeal will not depart from them unless it is satisfied
from the
record of the evidence that they are clearly wrong (Rex v Dhlumayo
1948
(2) SA 677
(A) 705 and S v Francis
1991
(1) SACR 198
(A) 204c-f)). To bring this argument within these principles
counsel for the appellant submitted that in coming to the conclusion
that there were no substantial and compelling circumstances the
learned trial judge overemphasized the gravity of the offence and
the
interest of society at the expense of the interests of the appellant
as disclosed by his personal circumstances, and that this
vitiated
her imposition of the prescribed sentence of life imprisonment (S v
Malgas
2001
(1) SACR 469
(SCA); S v Dodo
[2001]
ZACC 16
;
[2001] ZACC 16
;
2001
(3) SA 382
(CC); and Vilakazi v S
[2008]
ZASCA 87
;
[2008]
4 All SA 396
(SCA)). Vilakazi’s case (para 14) rephrases the essence
of the Malgas principle, which lays down a determinative test
of
proportionality. The judgment continues (para 15):
“
It
is clear from the terms in which the test was framed in Malgas and
endorsed in Dodo that it is incumbent upon a court in every
case,
before it imposes a prescribed sentence, to assess, upon a
consideration of all the circumstances of the particular case,
whether the prescribed sentence is indeed proportionate to the
particular offence. The Constitutional Court made it clear
that
what is meant by the “offence” in that context (and that
is the sense in which I will use the term throughout
this judgment
unless the context indicates otherwise)
‘
consists
of all factors relevant to the nature and seriousness of the criminal
act itself, as well as all relevant personal and
other circumstances
relating to the offender which could have a bearing on the
seriousness of the offence and the culpability of
the offender’.
If
a Court is indeed satisfied that the lesser sentence is called for in
a particular case, thus justifying a departure from the
prescribed
sentence, then it hardly needs saying that the court is bound to
impose that lesser sentence.”
What
is required is that the trial court should test the justice and
proportionality of the prescribed sentence by weighing and
balancing
all factors relevant to the nature and seriousness of the criminal
act itself (in the light of the legitimate concerns
of society), as
well as all relevant personal and other circumstances relating to the
offender which could have a bearing on the
seriousness of the offence
and the culpability of the offender. If that exercise shows
that a lesser sentence than life imprisonment
would be appropriate,
it is not only justified but bound to impose the lesser sentence.
”
[15]
In my view the learned Magistrate did not
misdirect himself by ignoring the Appellant’s personal
circumstances. The
Magistrate furthermore correctly held that
the intake of liquor did not reduce the Appellant’s capacity
appreciably.
[16]
The Magistrate furthermore evaluated the
Appellant’s personal circumstances in conjunction with the
objects of criminal punishment
and the interests of society.
[17]
In my judgment, there is no basis on which
to find that the Magistrate was incorrect in his evaluation of the
relevant principles
applicable to sentencing. He exercised his
discretion properly.
[18]
I do,
in particular, not believe that the Magistrate overemphasized the
gravity of this rape, which is a terrible crime.
[1]
The seriousness of the crime of rape is emphasized by the fact that
the legislature has singled it out as one of the crimes
for which
compulsory sentences must be imposed in terms of the
Criminal Law
Amendment Act of 1997
.
[19]
A serious aggravating factor is the fact
that the complainant was a mere 14 years old at the time.
[20]
In these circumstances a lesser sentence
would be insufficient to convey to the Appellant the gravity of what
he had done and to
impose sufficient retribution for his crime.
This applies to both counts.
In
the circumstances the appeal is dismissed.
________________________________
J D HUISAMEN
ACTING JUDGE OF THE HIGH COURT
GRIFFITHS, J.: I Agree
________________________________
R E GRIFFITHS
JUDGE OF THE HIGH COURT
COUNSEL FOR APPELLANT: Mr Kekana
INSTRUCTED
BY: Legal Aid Board
COUNSEL FOR RESPONDENT: Mr Joubert
INSTRUCTED
BY: Director of Public Prosecutions
HEARD ON: 10 AUGUST 2018
DELIVERED ON: 21
AUGUST 2018
[1]
See
S v Chapman
[1997]
ZASCA 45
[1997] ZASCA 45
; ;
1997
(2) SACR 3
SCA
;
S v Ncheche
[2005]
ZAGPHC 21
;
2005
(2)
SACR
386
(W) at paragraph 25