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[2016] ZAFSHC 138
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Mpowane v S (A103/2016) [2016] ZAFSHC 138 (19 August 2016)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
Nr: A103/2016
DATE:
19 AUGUST 2016
In
the appeal between:
MPOWANE
PETRUS
SONOPO
.............................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
CORAM:
C. REINDERS, J
et
MD HINXA, AJ
JUDGMENT
BY:
HINXA, AJ
HEARD
ON:
1 AUGUST 2016
DELIVERED
ON:
19 AUGUST 2016
[1]
The appellant, Mpowane Petrus Sonop
o,
was convicted on 13 April 2016 pursuant to his guilty plea in the
Welkom Regional Court of rape in contravention of Section 3
read with
other sections of the Criminal law (Sexual Offences and Related
Matters) Amendment Act, act 32 of 2007. Since the accused
were three
in the commission of this offence, the provisions of Section 51(1) of
the Criminal Law Amendment Act, Act 105 of 1997
(“the Act”)
(which ordains life imprisonment for such offences) were invoked.
[2]
In the amplification of his plea the appellant adduced a statement in
terms of Section 112(2) of the Criminal Procedure Act,
Act 51 of
1977, which read:
“
i)
I am the accused in this matter
ii)
I do understand the charge against me as explained by my legal
representative and wish to plead guilty to the crime…
iii)
This plea is made freely, voluntarily, and without undue influence.
iv)
At about 21H00 on 27 September 2014, I was with two of my friends,
namely Zindale amd Papi Mpojane, my co-accused, in Nkoane
Road in
Thabong, District of Welkom within the Regional Division of the Free
State.
v)
Zindale was armed with a pair of scissors and Papi Mpojane with a
panga.
vi)
We saw complainant, namely, L S J, 24 years old, walking alone and
being an easy target, we decided to rape her.
vii)
We took complainant by force behind Mpatlatsane shop
viii)
We undressed complainant and threw her on the ground.
ix)
Papi Mpojane was the first to commit an act of sexual penetration
with complainant by inserting his penis into her vagina and
having
sexual intercourse with the complainant without her consent and thus
raped her.
x)
Zindane followed Papi Mpojane and also raped complainant.
xi)
We took complainant to a RDP house in
Thabong where I also committed an act of sexual penetration with
complainant by inserting
my penis into her vagina without wearing a
condom and having sexual intercourse with complainant without her
consent and thus raped
her.
xii)
Both my accomplice left the RDP house and I
accompanied complainant to the place where she said she stayed.
xiii)
During the day of 17 October 2014, I was
arrested by member of the South African Police Services
xiv)
I confirm that I had no right or permission
to rape the complainant.
xv)
At the time that I committed this offence,
I knew that my actions were unlawful and therefore punishable by
law.”
[3]
On the basis aforestated, the court correctly found that the
appellant was admitting all the elements of rape and accordingly
convicted him. The State proved previous conviction of rape committed
on 16 December 2009 in respect of which the accused was sentenced
to
20 years imprisonment on 27 November 2015.
[4]
In sentencing the appellant to life imprisonment on the same day the
Regional Magistrate reasoned,
inter
alia,
as follows:
“
Now
in this case the complainant was raped by more than one person,
locally known as gang rape. This was indeed a monstrous and
a heinous
crime. One can only imagine the physical pain and suffering the
complainant endured. As well as the humiliation of having
more than
one person invade her body. It appears that you, as well as your
co-accused preyed on the complainant, one after the
other, for your
own sexual gratification. You showed no respect for the complainant.
You, in fact watch (sic) the other two persons
rape the complainant
and then you also raped her, obviously this was, must have been
humiliating for the complainant and treating
her with such
disrespect…”.
[5]
Aggrieved by what he considered to be an excessive sentence, the
appellant lodged the current appeal. In pursuance of
this
appeal, the appellant contended that it was nowhere admitted in the
statement that he raped the complainant more than once.
The court a
quo erred in sentencing him to life imprisonment. It is correct from
Section 112(2) statement, the argument continued,
that the
complainant was raped by three people and it seems each one of them
raped her only once. The appellant could not therefore
be charged and
convicted of raping the complainant more than once. He could only be
sentenced under Part II of Schedule 2 or in
terms of sec 51(2) of the
Act, the submission concluded.
[6]
For his contentions, the appellant placed reliance in a substantial
measure on the case of
Mahlase v The State
(255/2013)
[2011] ZASCA 191
(29 May 2013) (unreported). In this matter the court
held:
“
The
second misdirection pertained to the sentence imposed for the rape
conviction. The court correctly bemoaned the fact that Ms.
DM was
apparently raped more than once and in front of her colleagues. The
learned judge however overlooked the fact that because
accused 2 and
6… were not before the trial court and had not yet been
convicted of rape, it cannot be held that the rape
fell within the
provisions of Part 1 Schedule 2 of the Criminal Law Amendment Act
(where the victim is raped more than once) as
the High Court found
that it did. It follows that the minimum sentence for the sentence of
life imprisonment must be set aside.”
[7]
The state also decried the sentence of life imprisonment imposed by
the trial court. It submitted that this matter falls under
Section 51
(2) of the Act which calls for a minimum sentence of 15 years
imprisonment because of the appellant’s previous
rape
conviction. The State further conceded that the judgment of
Mahlase
(
supra
)
was binding. Thus, the acts of repeated sexual intercourse by the
appellant’s co-accused who was at large could not be taken
into
account since they were not present during the trial even though they
co-perpetrated rape with the appellant, the argument
progressed. It
(the state) concluded by arguing for a sentence of 20 years
imprisonment.
[8]
The central issues in this appeal, as I see them, are two-fold:
(i)
The impact of
Mahlase
case (
supra)
(ii)
Whether the conviction of the appellant for the offence he committed
on 16 December 2009 can be taken a previous conviction
in this
matter.
[9]
Regarding the first issue there can be no doubt that
Mahlase
case being a decision of the Supreme Court of Appeal is binding on
this court. Even the court, whilst bemoaning the
ratio
decidendi
of
Mahlase
case, in
Brian Cock v The State
and
Elton Manual v The State
CA 108/2013 and CA 121/2014, nevertheless held at paragraph 30 that
we are bound by
Mahlase
case. The state thus correctly conceded that the life imprisonment
imposed cannot be sustained and falls to be set aside.
[10]
I deal next with the second issue. In brief, the appellant committed
the previous rape on 16 December 2009 but was only sentenced
to 20
years on 27 November 2015. He then committed the one under
consideration on 27 September 2014 and was sentenced on 13 April
2016. Put differently, he committed the current offence after
committing the previous one but before he could be sentenced for
the
latter one
[11]
This issue was raised by Adv. Maphumulo on behalf of the respondent
in the Heads of Argument as follows:
“
The
important question that arises is whether there are sufficient
safeguards of the court to accept the previous conviction of
the
Appellant despite the fact that he was sentenced after this matter
was committed”.
[12]
Whilst on this point, it is timely to refer to
S
v S
1988 (1) SA 121
at 123 E-F
where the court blazed a trial as follows:
“
Dit
is aangevoer dat daar gefouteer is deur die feit dat appellant
of borg was toe die tweede verkragting plaasgevind het,
as
verswarende faktor in aanmerking te neem; aangesien hy toe nog nie
veroordeel en gevonnis was ten opsigte van die eerste aanklag
nie,
sou hy nog nie die vergeldingseffek van straf gevoel het nie; elke
aanklag van verkragting moes op sy eie meriete en apart
beoordeel
gewees het. Ek verskil. Die feit dat hy slegs ses weke tevore iemand
anders verkrag het, is aanduidend van appellant
se karakter en
gesindheid en dit is altyd van belang tydens vonnisoplegging…
In S v Radebe
1962 (2) SA 380
(A) op 383 C-G het hierdie Hof
die inagneming deur die Verhoorhof van ‘n tersaaklike vorige
veroordeling ten opsigte van
‘n misdaad wat gepleeg is op
dieselfde dag as dié waarvoor hy gevonnis is, goedgekeur...
Trouens, veroordelings aan
misdrywe gepleeg na die betrokke misdryf
kan strafverswarend op vonnis inwerk... Die Verhoorregter het
derhalwe geen mistasting
in die opsig onder bespreking, of enige
ander, began nie.”
[13]
These sentiments are directly on point in the circumstances obtaining
in
casu
.
In the context aforesaid, it follows that there were sufficient
grounds for the court a quo in accepting the previous convictions
of
the appellant although he was sentenced after the commission of the
offence which forms the subject of this appeal.
[14]
In turning my attention to the determination of
what I consider to be appropriate sentence herein, I deem it proper
to first advert
to the sentencing regime ordained by
Section 51
(2)
of the
Criminal Law Amendment Act 105 of 1997
. It prescribes the
following minimum sentences for ordinary rape,
“
a)
10 years imprisonment (1
st
offender)
b)
15 years imprisonment (2
nd
offender)
c)
20 years imprisonment (3
rd
and more)
[15]
The appellant in
casu
is a second offender. This therefore renders nugatory Adv.
Maphumulo’s submission that 20 years will suit the interests of
justice herein.
[16]
The appeal against sentence is accordingly upheld. The following
order is made:
“
The
appellant is sentenced to undergo fifteen (15) years imprisonment
antedated to 13 April 2016.”
M.
D. HINXA, AJ
I
concur.
C.
REINDERS, J
On
behalf of the appellant: Miss S. Kruger
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. R. B. Maphumulo
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN