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[2017] ZAGPPHC 202
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Molefi v S (A173/2016) [2017] ZAGPPHC 202 (12 April 2017)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Case
Number: A173/2016
Date:
12.4.2017
Reportable:
No
Of
interest to other Judges: No
In
the matter between:
MOLEFI
DAVID
MOFOKENG
Appellant
and
THE
STATE
Respondent
JUDGMENT
[1]
The appellant was convicted in the Vereeniging Magistrates'
court on a charge of contravening section 55(a) of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act, Act 32 of 2007
and sentenced to ten years' imprisonment.
[2]
This appeal is only against sentence.
[3]
The appellant, a 45 year old male and […] of the
complainant's mother, found the complainant alone at home on the
afternoon
of 4 May 2015. The complainant was 16 years of age at the
time.
[4]
Shortly after his arrival and upon ascertaining that the
complainant's mother was not at home, the appellant professed his
love
to the complainant. The complainant did not respond favourably
to his declarations of love, whereupon the appellant forced himself
on the complainant and proceeded to undo the zip of her pants.
[5]
Whilst struggling
to
get
away from the appellant, the appellant took out his penis and penned
the complainant to the floor. The appellant's penis touched
the
complainant's vagina. Fortunately, and before any penetration
occurred, a friend of the complainant arrived at her house and
the
appellant immediately moved away from the complainant.
[6]
In view
of
the aforesaid facts and
as alluded to
supra,
the appellant was
found guilty of attempted
rape.
[7]
In sentencing the
appellant to ten years' imprisonment, the court
a
quo
relied heavily on
section 55 of the Act that provides that any person who has been
found guilty of attempted rape, may be liable
to the same punishment
as that which a person convicted of actually committing rape will be
liable.
[8]
The court
a
quo,
relied on Part
Ill of the Second Schedule to the
Criminal Law Amendment Act, 105 of
1997
read with
section 51(2)
, which prescribes a minimum sentence of
ten years' imprisonment in respect of a first
o
ffender
of rape
.
[9]
To his credit, Mr
Nethononda, counsel for the State, readily conceded that the court
a
quo
erred in this
regard. An attempt to rape carries less blameworthiness than an
actual rape. In
A
Guide to Sentencing in South
Africa,
SS
Terblanche,
3
rd
edition at page 219, the
learned author stated the following in respect of
attempted rape:
"It is submitted, however,
that the mere fact that that the offender did not actually rape the
complainant must be mitigating.
At least she did not suffer the pain,
humiliation and terror of actually being subjected to forced
intercourse, meaning
that
the
harm
caused
by
the
crime
is
less than
a completed offence.
“
[10]
Whilst agreeing with the view of the learned author, I am mindful
that there may be instances where the circumstances in which
the
crime of attempted rape was committed would justify a term of ten
years' imprisonment. This is not one of those instances.
[11]
The crime, however, remains extremely serious. More so in view of the
complainant's tender age and the fact that she was accosted
in the
sanctity
of
her own home by a friend of her mother, a person she obviously
trusted. The trauma
of
the
incident has lasting effects on the complainant and her performance
at school has deteriorated.
[12]
Mr Nethononda submitted that a period of seven years' imprisonment
will be proportional to the blameworthiness of the appellant
in the
present circumstances. I agree.
[13]
In the premises, I propose the following order:
Order
1.
The appeal against sentence is upheld.
2.
The sentence of
ten years' imprisonment is set aside and replaced by the following
sentence:
“
The
accused is sentenced to seven years'
imprisonment.”
3.
The sentence is
antedated to the 21st of October
2015.
____________________________
N
JANSE VAN NIEUWENHUIZEN J
E
OF
THE HIGH
COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
I
agree
____________________________
MNYATHI
AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DMSION,
PRETORIA
APPEARANCES
Counsel
for
the
Appellant:
Advocate
L.
Augustyn
Instructed
by:
Pretoria Justice Centre
Counsel
for
the
Respondent:
Advocate M.J. Nethononda
Instructed
by:
State Attorney's Office
(012-351
6700/0848745569)