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[2017] ZAFSHC 157
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Mbele v S (A79/2016) [2017] ZAFSHC 157 (14 September 2017)
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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,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A79/2017
In
the application between:
MOSHE
JOHN
MBELE
Appellant
and
THE
STATE
Respondent
CORAM:
MATHEBULA,
et
CHESIWE
HEARD
ON:
21 AUGUST 2017
JUDGMENT
BY:
CHESIWE, AJ
DELIVERED
ON:
14 SEPTEMBER 2017
[1]
The appellant was convicted in the Regional Court of Harrismith, of
raping a thirteen year old girl, who is mentally retarded
[1]
as defined in Section 1(1) of the Sexual Offences and Related
Matters Amendment Act 32 of 2007 (the Sexual Offences Amendment
Act).
The provisions of Section 51(1) of the criminal Law Amendment Act 105
of 1997 (the Act) are applicable.
[2]
The appellant was sentenced to life imprisonment, as a result of the
Judicial Matters Amendment Act of 2013 the appellant has
an automatic
right to appeal against his conviction and sentence that was imposed
on 22 March 2010.
[3]
The appellant now approaches this Honourable Court with an appeal
against sentence that the sentence is shockingly inappropriate.
[4]
Mr Kambi, on behalf of the appellant in his heads of argument and
oral submission submitted that the mitigating factors and
the
personal circumstances of the appellant cumulatively amounted to
compelling and substantial circumstances which justified the
court to
have to deviate from the prescribed sentence of life imprisonment.
[5]
He highlighted the following to the courts attention:
5.1 The appellant
was 21 years old at the time of the offence.
5.2 Appellant does
not have a child.
5.3 Appellant was
employed and was earning R 500.00 per month.
5.4 That the appellant
was not advised by the trial court of the provisions of section 51
(1) of the Act, that the Prescribed Minimum
Sentence would be life
imprisonment, nor did the court advice that in the event of a guilty
conviction the appellant could be
sentences to life
imprisonment.
[6]
Adv Nameka on behalf of the respondent submitted in and oral
submission the heads of argument that the sentence was shockingly
inappropriate and conceded that an interference by the appeal court
is warranted. She highlighted the aggravating circumstances
that the
complainant was 13 years of age at the time of the offence.
Though the complainant sustained no severe injuries,
but the
appellant used a knife to threaten the complainant. The appellant had
previous convictions, though not similar to the current
conviction.
[7]
Adv Nameka submitted that a sentence of 18 years would be more
appropriate punishment for the appellant.
[8]
The proven facts of this case are briefly that the complainant was
forcefully taken by the appellant to a neighbourhood in Warden.
The
complainant’s two cousins, B. and S. attempted to persuade the
appellant to leave the complainant alone, whereby the
appellant
threatened the two girls with a knife. After the incident the
complainant went home and reported that she was raped by
the
appellant.
[9]
During evidence at the trial court, an enquiry was conducted into the
complainant’s mental condition in terms of Section
1 of the
Sexual Offences Act. The state witness, Professor Frederick Calitz
confirmed that the complaint was mentally challenged
as defined in
the Act. This is noted on the state witness’s comments with
regard to the mental impairment of the complainant.
“
Sy
beskik oor die verstandelike vermoëns van ‘n kind tussen
drie en vier jaar. Dit is ook duidelik dat sy nie sinvolle
gesprekke kan voer nie.”
[10]
Mr Kambi submitted that the trial court misdirected itself by not
finding that there are no compelling and substantial circumstances
that it would deviate from the Prescribed Minimum Sentence. Further
that the appellant’s rights to a fair trial was
violated
[2]
in (that) the appellant was not forewarned on the implications of the
Prescribed Minimum Sentence. Mr Kambi submitted that
a sentence
of 15 years would be more appropriate.
[11]
In every appeal against sentence, the Judges hearing the appeal
should be guided by certain appellate principles. The first
is that
punishment of an offender is primarily for the discretion of the
trial court. The second is that such judges should be
careful not to
erode such discretion. The third is that the sentence should only be
altered, on appeal, if the discretion has not
been judicially and
properly exercised.
[3]
[12]
It is indeed so that the first principle that the sentencing courts
should not readily depart, for flimsy reasons, from the
Prescribed
Minimum Sentence ordained as an ordinarily appropriate punishment.
The Prescribed Minimum Sentence of life imprisonment
is the harshest
a court can impose on an offender. It is the ultimate punishment in
our Criminal Law system. The sentencing court
always has that choice
dictated by the peculiar circumstances of a particular case. To say
that the court has no choice boiled
down to some kind of neglect to
exercise the sentencing discretion judicially and constitute a
material misdirection.
S v Rabie
supra.
[13]
Rape is a very serious offence and the punishment to be imposed must
be proportionate to such seriousness. Rape is a violation
of a
person’s constitutionality entrenched rights. It is an invasion
of a woman’s most valuable of all rights, namely
dignity. The
courts cannot ignore the frequency at which rape offences takes place
in the country especially if it’s perpetrated
against children
and worse in the case of a mentally impaired child. The interests of
the public must be protected against people
of the appellant’s
calibre.
[14]
The court must take into consideration the appellants personal
circumstances, the nature and gravity of the offence and the
interests of the community. These factors must be balanced against
each other, in order for the court to reach an appropriate sentence
as set out in
S
v Malgas
[4]
at 481 b-c where the court states
“
The court must
strive to impose sentences that are proportionate to the crime, the
criminal and the needs of the society and achieve
justice.”
[15]
It is trite that a court of appeal should not replace the sentence
imposed by the trial court with its own, unless it is justified
to do
so.
[5]
Further that the
respondent conceded that the trial court has over emphasised the
aggravating factors at the expense of the
mitigating factors. Counsel
for the plaintiff submitted that the appeal court may interfere in
the sentence, as the appellant was
not advised on the implications
and consequences of the Prescribed Minimum Sentence. Therefore
it warrants the appeal court
to deviate, in order to restore a
balance.
[16]
I therefore see no reason not to interfere and replace the sentence
imposed.
[17]
In view of the aforesaid, I am persuaded that the trial court
misdirected itself and that the sentence is shockingly inappropriate.
[18]
In the circumstances I make the following order:
1.
The appeal
against sentence succeeds;
2.
The
sentence of life imprisonment imposed on the appellant is set aside
and is substituted with the following sentences:
2.1
The appellant is sentenced to 15 years imprisonment.
2.2
The sentence must be deemed to have been imposed on 23 March 2010.
______________
S
CHESIWE, AJ
I
concur
_________________
AM
MATHEBULA, J
On
behalf of applicant:
Attorney SS Kambi
Instructed
by:
Bloemfontein Justice Centre
Southern Life Plaza
Building
On
behalf of respondent: Adv. C Nameka
Instructed
by:
Director of Public Prosecutions
Waterfall Centre
Bloemfontein
[1]
Although the Act refers to “retarded”
I will throughout the judgment use the term “impaired”
as it is
the most appropriate term to use.
[2]
It was their submission that this lies in Section
35(3) of the Constitution, that provides that every accused person
has a right
to a fair trial which, inter alia includes the
right to be informed of the charge with sufficient detail to answer
it..
It requires in clear terms that, before a trial can
start, every person must be fully and clearly informed of the
specific charge(s)
which he or she faces. This evidently would
include all competent verdicts. This is intended to avoid
trials by ambush.
[3]
S v Rabie
1975 (4) SA 855
(A) at
Per
Holmes
JA
.
[4]
2001 (1) SACR 469 (SCA)
[5]
S v Obisi
2015 (2) SACR 35
w at 35i-j