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[2016] ZAFSHC 141
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Mofokeng v S (A98/2016) [2016] ZAFSHC 141 (19 August 2016)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A98/2016
In
the appeal between:-
GERT
ZULU
MOFOKENG
....................................................................................................
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 was convicted on 15 June 2011 in the Regional Court for
the Free State Division (held at Sasolburg) on two counts
of robbery
with aggravating circumstances and one count of rape. Subsequently,
appellant was sentenced on 15 June 2011 to respectively
seven years
imprisonment and life imprisonment. Appellant feels aggrieved by the
sentence imposed upon him and exercises his automatic
right of appeal
in terms of section 309 (1)(a) of the Criminal Procedure Act 51 of
1977 (the “CPA”).
[2]
The heads of argument on behalf of the appellant were prepared by Mr
Van der Merwe, but Ms Kruger appeared before us. From the
heads it
can be gleaned that the attack on the sentences imposed can be
summarized as follows:
2.1
The court a quo erred in finding that the aggravating circumstances
outweighed the mitigating circumstances and by failing to
sufficiently take into account the personal circumstances of the
appellant;
2.2
The court
a quo
erred in not finding compelling and substantial circumstances to
warrant deviation from the minimum prescribed sentences.
[3]
The facts upon which the appellant was found guilty on all the
charges appear from the record as follows:
In
the early hours of 30 October 2010 M M S T left a tavern with her
friend M T J M. Appellant snuck up on M T, holding a knife
to her
neck and robbed her of her cell phone. After having threatened M M
with a knife, he robbed her of her cell phone and instructed
her to
run away and not look back. M M was then robbed of her earrings and
cash and the appellant ordered her to accompany him.
When she
refused, he stabbed her with the knife in her lower back next to her
spinal cord and probing the stuck knife he forced
her to proceed with
him to the spot where he raped her with the knife stuck in her back.
[4]
It is clear from the record that the trial court considered the
following mitigating factors in passing sentence: The appellant
was
21 years of age, unmarried with no children. He did casual jobs prior
to his arrest and maintained himself. He was a first
offender for
rape and had lost his parents at a young age.
[4]
The sentences imposed were supported by Adv Maphumulo on behalf of
the state who submitted that the court
a
quo
did not err in any way. He pointed
out the aggravating circumstances taken into account by the court
a
quo
,
viz
that the rape was coupled with violence
and the appellant did not show any mercy towards the complainant. Me
Kruger as a responsible
officer of this court conceded that the
complainant sustained a serious injury during the rape and that the
said injuries were
inflicted in a sadistic manner.
[5]
From the record it appears that M M, on behalf of appellant, pressed
hard upon the learned regional magistrate to deviate from
the
prescribed minimum sentences in that the appellant was 21 years of
age when he committed the offence and also a first time
offender,
pointing towards good prospects of rehabilitation. The learned
regional magistrate in handing down sentence considered
the personal
circumstances of the appellant and balanced them against the
seriousness of the rape, especially the violence that
was involved in
the execution of the crime. She did not find any substantial and
compelling circumstances in respect of the rape
charge and invoked
the prescribed minimum sentence of life imprisonment as envisaged in
Section 51 (1) of the Criminal Law Amendment
Act 105 of 1997 (the
“Act”) read with Part 11 of Schedule 2. It appears from
the record that the trial court in handing
down sentence did however
find substantial and compelling circumstances in respect of the
robbery with aggravating circumstances
in that there were no serious
bodily injuries inflicted on the two complainants at the time when
the appellant was robbing them.
She deemed the appropriate sentence
in respect of both counts of robbery to be seven years direct
imprisonment, to be taken as
one for purposes of sentencing.
[6]
When it comes to interfering with the sentence imposed by the Court
a
quo
, it is trite law that the
jurisdiction of the Court of Appeal is not discretionary and in fact
very limited, as it was stated in
S v
Pieters
1987 (3) SA 717
(A) on
727F. The court of appeal will only interfere with a sentence if an
irregularity occurred or if the sentence is shockingly
inappropriate.
[7]
The facts of this matter sketch a picture of repulsive behaviour by
the appellant. After robbing the two complainants of their
possessions, he proceeded on his rampage of criminal behaviour. He
stabbed M T in her back near her spinal cord and whilst having
inflicting this serious wound to a delicate part of her body, he
raped her in a barbaric and sadistic manner. The Supreme Court
of
Appeal has articulated by mouth of Nugent JA in
S
v Vilikazi
2009 (1) SACR 552
(SCA)
at 555 h that rape is a repulsive crime. That rape is a serious
offence has been stressed in
Chapman
v S
[1997] ZASCA 45
;
[1997] 3 All SA 277
(A), where
it has been described as a humiliating, degrading and brutal invasion
of the privacy, dignity and the person of the
victim. Not only was
the person of M T invaded, it was accompanied by an inhumane
infliction of pain causing her to suffer at the
hands of the
appellant.
[8]
In
S v Ncheche
[2005] ZAGPHC 21
;
2005 (2) SACR 386
(WLD) at 395 par [35]
Goldstein J described rape as an appalling and utterly outrageous
crime. The learned Judge went on to say:
“
A
women’s body is sacrosanct and anyone who violates it does so
at his peril and our Legislature, and the community at large,
correctly expects of our courts to punish rapists severely.”
The
appellant indeed brutally raped M T at his peril.
[9]
The discretion in imposing a sentence lies with the trial court. In
the
locus classicus
S v Holder
1979 (2) SA 70
(A), it was held that an appropriate sentence will
always be a sentence which is based on a balanced consideration of
the personal
circumstances of the accused; the seriousness of the
crime and the interests of society. This was done by the Court
a
quo
in respect of all three counts.
[10]
I am satisfied that the court
a quo
committed no misdirection in sentencing the appellant. In my view the
learned regional magistrate correctly found that no compelling
and
substantial circumstances exist to deviate from the minimum
prescribed sentence of life imprisonment in regards to the rape.
In
regards to the imposition of seven years imprisonment in respect of
the two charges of robbery with aggravating circumstances
I am unable
to find that she did not exercise her discretion properly or
reasonably.
[12]
In consequence the following orders are made:
1.
The appeal is dismissed.
2.
The sentences are confirmed.
C.
REINDERS, J
I
agree.
M.
D. HINXA, AJ
On
behalf of appellant: Ms 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