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[2017] ZAFSHC 181
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Mbele v S (A79/2017) [2017] ZAFSHC 181 (14 September 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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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, J
etCHESIWE, AJ
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
retarde
d
[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. The appellant was sentenced
to life
imprisonment.
[2]
In terms of the Judicial Matters Amendment Act of 2013 the appellant
has an automatic right to appeal against the sentence that
was
imposed on 22 March 2010. The appeal therefore lies only against the
sentence.
[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 the 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
trial
court 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 earned 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 trial court advice
that in the event of a guilty conviction the appellant
could be
sentences to life imprisonment.
[6]
Adv Namaka on behalf of the respondent submitted in the heads of
argument and oral submission that the sentence was shockingly
serve
and 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
and was mentally impaired. Though the complainant sustained
no severs
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 Namaka 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. Professor Frederick Calitz, Clinical Psychologist and
Head of Clinical Psychology at the Free State Psychiatric
Complex
(previously known as Orange Hospital) was the expert witness on
behalf of the state. He 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.
"Edelagbare,
miskien kan ek net vir die hof verduidelik wat is
verstandelikevertraging. If a person has an IQ from 20 to 34
it is
serious, dis emstige vestandelikevertraging."
[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 violate
d
[2]
in
(that)
the
appellant
was
not
forewarned
on
the
implications of
the
Prescribed
Minimum
Sentence.
[11]
With
regard to the right to a fair trial for the appellant, where the
state rely upon the
sentence
regime created by the Act, a
fair
trial will generally demand that its intention be pertinently brought
to the attention of an accused at the outset of the trial,
or in the
charge-sheet or in some form, so that an accused is placed in
position to properly appreciate in good time the charge
he faces will
have its possible consequences. What is required is that
an
accused person
is
given
sufficient notice of the State's intention in order for such a person
to
properly
conduct his defence.
[3]
[12]
The trial court in having invoked the provisions of the Act without
pertinently bringing it to the appellant's attention neither
taking
into consideration that the appellant suffered prejudice due to the
court's failure to warn the appellant of the consequences
of a guilty
verdict or the learned magistrate's findings. This in itself
constituted a substantial and compelling reason why the
prescribed
sentence ought not to have been imposed.
[13]
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.
[4]
[14]
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.
[15]
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.
[16]
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
[5]
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."
[17]
If
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.
[6]
• 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.
[18]
I therefore see no reason not to interfere and replace the sentence
imposed.
[19]
In view of the aforesaid, I am persuaded that the trial court
misdirected itself and that the sentence is shockingly inappropriate.
[20]
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
fifteen (15) years imprisonment.
2.2
The sentence must be deemed to have been imposed on 23 March 2010.
__________________
S
CHESIWE, AJ
I
concur
__________________
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 Ndlovu
2003
(1) SACR 331
j
[4]
S
v Rabie
1975
(4) SA 855
(A) at Per
Holmes
JA.
[5]
2001
(1)
SACR
469 (SCA)
[6]
S
v Obisi
2015
(2) SACR 35
w at 35i-j