About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 22
|
|
Makhalima v S (A231/2015) [2016] ZAGPPHC 22 (22 January 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
REPUBLIC OF SOUTH
AFRICA
Case Number: A231/2015
DATE: 22 JANUARY 2016
In the matter between:
JOHANNES TEBOGO
MAKHALIMA
..........................................................................
APPELLANT
AND
THE
STATE
....................................................................................................................
RESPONDENT
JUDGEMENT
SEMENYA AJ
1. The appellant was convicted and
sentenced by a regional magistrate on two counts of rape in
contravention of
section 3
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
, one of housebreaking with
intent to steal and theft and two of robbery with aggravating
circumstances (robbery) as intended in
section 1 of the Criminal
Procedure Act 51 of 1977 (CPA). He was sentenced to imprisonment for
life in respect of the two rape
charges, fifteen (15) years in
respect of one of the robbery charges, twenty (20) years imprisonment
in respect of the other charge
of robbery and eight (8) years for
housebreaking with intent to steal. This appeal came before us by way
of automatic appeal in
view of the imprisonment for life sentence
imposed on the appellant in respect of the rape charges.
2. Having convicted the appellant
pursuant to his plea of guilty, the regional magistrate proceeded to
consider what it deemed to
be appropriate sentences in the
circumstances of the case. It appears from the record of the
proceedings that the regional magistrate
was assisted, in this
regard, by the pre - sentence reports which were admitted as
evidence.
3. As far as the appellant is
concerned, the regional magistrate took into account the fact that he
was a 33 year old person who
was raised by his mother as his parents
divorced when he was seven years old. He went to school up to grade
5. He is a father of
a ten year old child whose mother is deceased.
He was, as at the time of his arrest, unemployed. He failed to inform
his family
about the reasons for his arrest.
4. The state proved ten previous
convictions against him, two of which are for robbery whilst one was
for rape. The first offence
was committed in 1996 and the last in
2010. It appears from the pre-sentence report compiled in respect of
the appellant and his
own evidence, that as at the date of sentence,
he was serving a prison term of 24 years for housebreaking with
intent to rape and
rape.
5. The first and second charges in the
instant matter were committed against [J…….] [S……..],
a 36 year
old female person whilst third, fourth and fifth counts
were committed against one [A…….] [Z………],
aged 24 years. The two victims were residing within the same area as
the appellant.
6. The regional magistrate took the
following factors into account in respect of the victim in count one
and two. She was of petit
build in comparison with the appellant. She
was accosted by the appellant and another male person (who is
deceased) upon her arrival
at her house. The appellant and his
companion throttled her and took turns in raping her. They thereafter
took her into the house
and robbed her of her property. She and her
son are still traumatised by this event. They are however undergoing
counselling. She
sustained injuries on her throat due to the
throttling.
7. The evidence presented in respect of
[Z………] was that she was sleeping at home when
she woke up to find a
man on top of her. The man hit and throttled
her and demanded money. He proceeded to rape her. He thereafter
instructed her to
run a bath and get into it. He left with her
property. The doctor who examined her after the incident noted that
she sustained
severe injuries on her genitals. She, like the other
victim, is still traumatised by the event. She was also petit in
built.
8. The above factors, as well as the
serious nature of the offences appellant has been convicted of and
the interest of the community
were the factors taken into
consideration by the regional magistrate during sentencing stage.
9. The approach to be adopted by the
appeal court faced with an appeal against sentence has been
enunciated as follows in S v Pillay
1977 (4) SA 531
(A) at 533 E- G:
“ The essential inquiry in an appeal against sentence, however,
is not whether the sentence was right or
wrong, but whether the court
imposing it exercised its discretion properly and judicially, a mere
misdirection is not by itself
sufficient to entitle the appeal court
to interfere with the sentence, it must be of such a nature, degree,
or seriousness that
it shows, directly or inferentially, that the
court did not exercise its discretion at all, or exercised it
improperly or unreasonably.
”
10. Counsel for the state did not,
correctly and honourably so in my view, present any argument to try
and persuade the appeal court
to find that the regional magistrate
exercised his/her discretion improperly. In any event, she would have
had to come up with
argument from out of this world to succeed.
11. In as far as count 1, the evidence
proved that the victim was raped by more than one person who acted in
the execution or furtherance
of a common purpose or conspiracy. The
regional magistrate was correct in imposing a sentence of life
imprisonment.-section 51
(1) read with Part I (a) (ii )-Rape of
Schedule II of Criminal Law Amendment Act 105 of 1997 (the Act).
12. On count 2, the evidence proved
that the appellant was armed when he robbed the victim. The sentence
of fifteen (15) years imprisonment
was appropriate in the
circumstances- section 51 (2) read with Part II (a) of the Act.
13. As far as count three is concerned,
the evidence proved that the victim sustained grievous bodily
injuries during the rape.
Imprisonment for life was a competent
sentence in the circumstances.-Section 51 (2) read with Part I (c) -
Rape.
14. The appellant was already convicted
of robbery but not yet sentenced when the regional magistrate
sentenced him in respect of
count 5. A sentence of twenty (20) years
imprisonment was, in accordance with section 51 (2) read with Part
(ii) of the Act, appropriately
imposed.
15. The regional magistrate stated that
he/she is unable to find circumstances which are substantial and
compelling to justify imposition
of a sentence in deviation from the
provisions of the Act as envisaged in section 51 (3) (a). I cannot
find any fault in this reasoning.
There is no misdirection on the
part of the regional magistrate at all.
I propose the following order:
The appeal against sentence is
dismissed.
M.V SEMENYA
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA (ACTING)
GAUTENG DIVISION, PRETORIA
I agree,
N JANSE VAN NIEUWENHUIZEN J JUDGE OF
THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
It is so ordered.
APPEARANCE ON BEHALF OF THE
APPELLANT: Advocate Majola
APPEARANCE ON BEHALF OF THE
RESPONDENT: Advocate Roos
Date of hearing: 23 November 2015