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2016
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[2016] ZAFSHC 139
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Matabane v S (A105/2016) [2016] ZAFSHC 139 (19 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A105/2016
DATE:
19 AUGUST 2016
In
the appeal between:-
MATABANE
ISHMAEL
MOTSOENENG
............................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
CORAM:
REINDERS, J
et
HINXA,
AJ
HEARD
ON:
1 AUGUST 2016
JUDGMENT:
REINDERS, J
DELIVERED
ON:
19 AUGUST 2016
[1]
The appellant, Mathabane Ishmael Motsoeneng, was indicted on a charge
of rape in the Regional Court for the Free State Division
(held at
Phuthaditjhaba) on 5 August 2013. He pleaded guilty and was
subsequently convicted and sentenced on the same date to life
imprisonment. This appeal comes before us by virtue of the
appellant’s right of automatic appeal in terms of section
309(1)
(a) of the Criminal Procedure Act 51 of 1977 (the “CPA”).
[2]
Heads of argument on behalf of the appellant were prepared by Adv
Kambi but Ms Kruger appeared before us. Adv Kambi summarized
the
grounds for appeal as follows:
Firstly,
whether the sentence imposed by the court a quo is shockingly and
disturbingly inappropriate and/or is vitiated by irregularity,
and
secondly whether the court a quo erred by not finding compelling and
substantial circumstances justifying departure from the
minimum
sentence of life imprisonment.
[3]
The accepted facts on which the appellant was found guilty appears
from appellant’s statement in terms of sec 112(2) of
the Act:
“
On
the day in question I was visiting the complainant’s brother
who is a friend of mine. I excused myself to go to the toilet.
The
complainant followed me into the toilet and requested that we have
sexual intercourse. We had sexual intercourse in the toilet
and I had
sexual intercourse with a person under the age of 12 years who by
virtue of her age could not consent thereto.”
[4]
From the record it can be gleaned that the following personal
circumstances of the appellant were placed on record by Mr Dicks
who
appeared on behalf of the appellant : He is a 26 year old unmarried
man who is the father of a child aged 3, unemployed and
a first
offender. The learned regional magistrate expressed the view that
“these are simply flimsy reasons” in respect
of
mitigating circumstances, and Mr Dicks conceded that he had “nothing
to offer”. Ms Kruger argued that she
did not support this
concession by Mr Dicks. She submitted that, although the complainant
was very young, there is no indication
of injuries to the complainant
and that the rape was not serious.
[5]
The only aggravating factor advanced by the prosecutor was one
sentence stating that “the person who was raped here is
a
minor, 11 year old, it is quite aggravating”. The prosecution
did not submit a victim impact report and there was no attempt
by the
state to elicit any evidence on the emotional impact that the rape
had on the complainant.
[6
] In handing down the sentence the learned regional magistrate did
not make any mention whatsoever of the factors considered
by him in
arriving at the conclusion that no substantial and compelling
circumstances exist that warranted a deviation from the
prescribed
minimum sentence of life imprisonment. He merely indicated that there
is “nothing, nothing in as far as your circumstances
are
concerned to enable me to divert from the minimum sentence as
prescribed in the Act.” The entire record of the proceedings
upon which the appellant was sentenced to life imprisonment, does not
even exceed eight typed pages.
[7]
We were referred to
Ntepe v S
(A151-2015) ( 31 March 2016) ZAFSHC wherein Mocumie J, in stressing
the importance of a victim impact report, held that in the
absence of
such a report the sentence imposed is skewed as it lacks the voice of
the victim in her own process.
[8]
In the unreported case of
Manzini v S
(A45/2016) in
this Division (delivered on 28 July 2016) Lekale J articulated as
follows on the importance of a victim impact report
in rape cases:
“
The
importance of placing as much information before the sentencing court
as possible in respect of the perpetrator, the victim
and the
circumstances surrounding the commission of the offence has been
stressed by the Supreme Court of Appeal. If the defence
and the
prosecution fail to adduce such relevant evidence the trial court is
obliged to take steps to receive such evidence in
order to determine
whether there exists cause to deviate from the prescribed minimum
sentence. In my opinion such a duty on the
part of the sentencing
court is more pronounced where the accused stares life imprisonment
in the eye as a prescribed minimum sentence.”
See:
S v Olivier
2010(2) SACR 178 (SCA) at para [8]
Calvin
v The State
[2014] ZASCA 14
The
appeal succeeded and the sentence of imprisonment for life for the
rape of an eleven year old girl was set aside and substituted
with 20
years’ imprisonment.
[9]
When it comes to interfering with the sentence imposed by the Court
a
quo
, it is trite law that the powers of
the Court of Appeal are limited as was stated in
S
v Matlala
2003 (1) SACR 80
SCA at
83e-f. Interference is warranted if the sentence imposed by the trial
court is shockingly and disturbingly inappropriate
and/or vitiated by
irregularity.
The
essential question to be determined remains whether the trial court
could reasonably have imposed the sentence it did.
See:
S v Pieters
1987 (3) SA 717
(A) at 734C-H.
[9]
I am satisfied that the trial court misdirected himself materially to
the extent that he failed to ensure that all relevant
information was
before him in order to assess the sentence properly resulting in him
not exercising his discretion properly. Interference
by this court is
accordingly justified and the sentence imposed should be considered
afresh.
[10]
Our courts have expressed the view that rape is serious offence
invading the privacy, dignity of the victim.
See:
Chapman v S
[1997] ZASCA 45
;
[1997] 3 All SA 277
(A)
[11]
To my view rape of a girl child of 11 years old is morally
reprehensive and any civil society would look at the courts for
the
protection of a vulnerable child. The legislator has deemed sexual
intercourse with a child under the age of 12 years so serious
that
life imprisonment is the sentence that should be imposed in the
absence of any substantial and compelling circumstances.
[12]
Sight must however not be lost of the fact that the prosecutor
accepted the plea and indicated that the facts contained in
the
appellant’s section 112(2) statement were in accordance with
the contents of the state’s docket. This would mean
that the
complainant followed the appellant to the toilet and upon her request
they had sexual intercourse. From the facts before
us there is no
indication of any injuries to the complainant as a result of the
sexual intercourse. It was submitted by Ms Kruger
that the rape falls
short of the most serious types of rape which have been described as
breathtakingly and brazenly brutal and
for which life imprisonment is
a just sentence.
See:
S v Matyityi
2011 (1) SACR 40
(SCA)
[13]
The appellant pleaded guilty and took the trial court into his
confidence by revealing what transpired on 26 June 2010 when
he had
sexual intercourse with the complainant, indicating remorse for the
crime that he committed. He is a first offender.
The
prosecution did not introduce any evidence to indicate that the
appellant would not be a good candidate for rehabilitation.
These
factors and the nature of the rape all points towards mitigating
factors in favour of the appellant and should be considered
in
determination of a just sentence.
[14]
In light of the aforementioned I am of the view that the cumulative
effect thereof warrants the inference that substantial
and compelling
circumstances are present, justifying a departure from the prescribed
sentence of life imprisonment.
[15]
Ms Kruger conceded that a lengthy term of imprisonment will address
the seriousness of the offence yet take into account the
personal
circumstances of the appellant and the interests of society. She
suggested 18 to 20 years imprisonment. Mr Maphumulo was
of the view
that 20 years would be appropriate.
[16]
In determining the proportionality of the length of a sentence to the
offence, all relevant circumstances which could have
a bearing on the
offender should be considered. In
S v Dodo
[2001] ZACC 16
;
2001 (1)
SACR 594
(CC) Ackerman J held as follows at paragraph [38]:
“
To
attempt to justify any period of penal incarceration…without
inquiring into the proportionality between the offence and
the period
of imprisonment, is to ignore, if not deny, that which lies at the
very heart of human dignity”.
[19]
In
S v Fhetani
2007 (2) SACR 590
(SCA) Jafta JA in finding that the sentence imposed
by court a quo was excessively disproportionate held that it is a
well-established
principle of our law that the severity of the
sentence must not be grossly disproportionate to the offence itself.
The court at
p 593 par [6] referring to
S
v Dodo
2001(1) SACR 594 CC stressed
that a grossly disproportionate sentence does not only violate the
accused person’s right to
a fair trial but also his or her
right not to be punished in a cruel, inhuman or degrading manner.
[20]
To my mind a sentence of 18 years’ imprisonment is
proportionate to the crime, the criminal and the legitimate interests
of society.
[21]
In the result the following order is made:
1.
The appeal is upheld.
2.
The sentence imposed by the trial Court is set aside and replaced
with the following:
“
The
accused is sentenced to imprisonment for 18 years.”
3.
The sentence must be deemed to have been imposed on 5 August 2013.
C.
REINDERS, J
I
agree.
M.D.
HINXA, AJ
On
behalf of appellant: Miss S. Kruger
Instructed
by: Bloemfontein Justice Centre
Legal
Aid SA
BLOEMFONTEIN
On
behalf of respondent: Adv R.B. Maphumulo
Instructed
by: Director of Public Prosecutions
BLOEMFONTEIN