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[2016] ZAFSHC 84
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Motsamai v S (A126/2015) [2016] ZAFSHC 84 (5 May 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal Number : A126/2015
In
the appeal
between:-
ISHMAEL
MSELESELE
MOTSAMAI
Appellant
and
THE
STATE
Respondent
CORAM:
RAMPAI,
J et MOHALE, AJ
JUDGMENT
BY:
MOHALE,
AJ
HEARD
ON:
5
OCTOBER 2015
DELIVERED
ON:
5 MAY
2016
[1]
This appeal is made against the sentence handed down by the trial
court.
[2]
On June 14, 2011 the Appellant was convicted of the following
charges:
i)
Rape:
In contravention of section 3 read with
section 1
,
56
,
57
,
58
,
59
,
60
of the
Criminal Law Amendment Act 32 of 1997
, further read
with section 256 and 261 of the Criminal Law Act 51 of 1977.
ii)
Sexual
exploitation of a person who is mentally disabled – in
contravention of sections quoted
supra
.
The
Appellant pleaded not guilty to the charges and his plea explanation
was that of consent and he denied that the Complainant
was mentally
disabled.
[3]
On 14 June 2011, the Appellant was convicted as charged and on 24
June 2011, the Appellant was sentenced to life imprisonment,
both
counts were treated as one for the purpose of sentence.
[4]
In terms of
section 309(1)(a)
of the
Criminal Procedure Act 51 of
1977
, the Appellant became entitled to an automatic right to appeal
against the sentence and conviction.
[5]
The main issues in the appeal were the following:
i) The sentence of
life imprisonment imposed is shockingly inappropriate.
ii)
The trial court erred in finding that there were no compelling and
substantial circumstances to justify deviation from imposed
sentence
of life imprisonment.
[6]
The central factor to be considered by this court, is whether or not
there exists cause for this court to interfere with the
sentence
imposed.
[7]
It is trite law that the sentence of an accused must be balanced
between interests of the society, the offence and the personal
circumstances of the accused.
[8]
It is also trite law that a court of appeal will only interfere with
a sentence if it is shockingly inappropriate or if an irregularity
occurred during sentencing.
[9]
S
v Kruger
“
Life
sentences ordained by the legislature should be reserved for cases
devoid of substantial factors compelling the conclusion
that such a
sentence is inappropriate and therefore deviate to a lesser charge.”
[10]
S
v Malgas
2001
(1) SACR 469
(SCA):
“
The
courts ought to evaluate if life imprisonment is indeed a
proportionate sentence for the offence.”
[11]
Mitigating circumstances were tabled to the court before us. I
find them lacking in substance.
[12]
S
v Vilakazi
2012 (6) SA 353
(SCA):
“
Once
it is clear that the crime deserving of a substantial period of
imprisonment, personal circumstances of the accused may appear
flimsy.”
[13]
S
v Jimminez
2003 (1) SACR 507
(SCA):
“
To
focus on the wellbeing of the accused at the expense of aims of
sentencing such as community interest is to distort the process
of
sentencing.”
[14]
The appellant raped his own biological sister who is mentally
disabled and then claimed that it was consensual. He further
claimed that he is not aware that his sister is mentally disabled.
[15]
The appellant has two previous convictions: one of assault and the
other being contravention of section 13 of the Sexual Offence
Act 23
of 1957.
[16]
The appellant has failed to show remorse at all.
[17]
In
S
v Vilakazi
,
Cameron JA made an observation that the rape was not of the worst
cases of rape. He further said that some rapes are worse
than
the others.
[18]
I find that this particular case of rape is harrowing as it is
incestuous in its nature.
[19]
I cannot find that there is discrepancy between the offence and the
sentence.
[20]
I could not find any compelling or substantial circumstances that
would justify deviation from the prescribed minimum sentence
of life
imprisonment.
[21] Consequently, the
following order is made:
The
appeal is dismissed.
______________
I.
MOHALE,
AJ
I concur.
______________
M.
H. RAMPAI, J
On
behalf of appellant:
S. Kruger
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On behalf of
Respondent: Adv. K. G. Mashamaite
Instructed
by:
The
Director: Public Prosecutions
BLOEMFONTEIN
/eb