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[2016] ZAGPPHC 519
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Makoena v S (A467/15) [2016] ZAGPPHC 519 (24 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: A467/15
Date:
24 MARCH 2016
In
the matter between:
TEBOGO SYDNEY
MAKOENA
.....................................................................................
APPELLANT
Versus
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
TOLMAY. J:
[1]
The appellant was convicted of two
counts of rape and one of abduction of a minor in the Regional Court
held in Klerksdorp on 28
May 2009. He was sentenced to 30 years
imprisonment in respect of each count of rape and 15 years
imprisonment in respect of abduction.
Leave to appeal was granted on
petition against sentence only.
[2]
The complainant was 15 years old at the
time of the incidents. She was confronted by the appellant when she
was walking with a friend.
Her friend entered her parents' house and
left the complainant with the appellant. Appellant told her he wanted
her to be his girlfriend.
When she refused he threatened her with a
panga. He proceeded to take her to a deserted building where he raped
her. After this
he took her to a house where he raped her a second
time. The complainant pretended that she had to use the toilet
outside and managed
to run away. She said that the appellant appeared
to be slightly under the influence of alcohol. She sustained no
serious injuries
as a result of the rapes.
[3]
The appellant who initially was
represented, but who terminated the services of his representative
didn’t testify. The magistrate
at the beginning of the trial
warned the accused that he was facing a sentence of life imprisonment
and that if convicted the matter
would be referred to the High Court
for sentencing.
[4]
The
accused wasn’t represented at the time of the sentencing. A
presiding officer is obliged to assist an undefended accused
[1]
in the presentation of his case. Although the magistrate did not
assist the accused in putting mitigating circumstances before
the
Court. His personal circumstances were however obtained and
considered. These were that the appellant was 26 years old, had
2
children with two girlfriends. He did not have permanent employment
but earned ± R1 200-00 per month from informal work
opportunities. He maintained himself and his three children from this
income. Despite the failure by the magistrate to properly
assist him
his personal circumstances were recorded and I am of the view that
the appellant suffered no prejudice as a result of
the magistrate’s
failure
[2]
.
[5]
The fact that the magistrate was at the
start of the trial obliged to refer the matter to the High Court for
sentencing needs some
consideration. At the start of the trial during
April 2006 the Regional Court did not have jurisdiction to impose a
sentence of
life imprisonment. However the Criminal Law (Sentencing)
Amendment Act 38 of 2007 (the Act) came into operation on 31 December
2007 and in terms of section 1 of the Act the Regional Court was
conferred with the jurisdiction to impose a sentence of life
imprisonment.
The result of that is that on the day of sentencing,
which occurred during May 2009, the Magistrate did have the required
jurisdiction
to proceed with sentencing, and the transitional
provision contained in sec 53 A of the Act made provision for the
Regional Court
to dispose of the matter.
[6]
The appellant had 2 previous convictions
of assault with intent to do grievous bodily harm and in 1998 and
2005 he was found guilty
of 2 counts of rape on both occasions.
[7]
It
is trite that sentencing falls ultimately within the discretion of
the court a quo and a Court of appeal should only interfere
if there
was an irregularity, misdirection or if the sentence is disturbingly
inappropriate
[3]
.
[8]
The
rape of a minor carries the sentence of life imprisonment unless
compelling and substantial circumstances exist which would
allow for
a deviation from this sentence. Although the learned magistrate found
that no such circumstances existed he did not impose
a sentence of
life imprisonment but proceeded to impose 30 years on each of the
counts of rape and 15 years for the abduction,
an effective terms of
75 years. None of the sentences were ordered to run concurrently. If
he imposed a life sentence on each of
the rape charges they would
automatically have run concurrently
[4]
.
The effect of this is that the sentence imposed by the learned
magistrate is actually worse than life imprisonment. The magistrate
also did not consider at all that the abduction formed part of the
same incident and that the two rapes, although distinct and
separate
formed part of the same cause of action.
[9]
There
is no doubt that rape is a horrendous crime and that women in our
society are particularly vulnerable
[5]
.
The rape of a minor is even more reprehensible
[6]
.
There exists no doubt in my mind that a person who commits rape
should be punished effectively not only to show the distaste of
society for such horrible acts but also to act as deterrence. It is
trite that a presiding officer should balance all the interests,
being that of society, the victim and the accused to get to a just
result. Due to the fact that the magistrate imposed an effective
term
of 75 years and did not let any of the sentences run concurrently I
am of the view that he misdirected himself which would
allow for this
Court to interfere. I take into consideration that the complainant
did not sustain any serious injuries but due
to the fact that the
accused had 4 previous convictions of which 2 are for rape I am of
the view that he poses a real threat to
society and there exist no
reasonable prospect for rehabilitation. Consequently there exists no
compelling and substantial circumstances
which would allow for a
deviation from the prescribed sentence of life imprisonment.
[10]In
the light of the aforesaid I am of the view that intervention by this
Court is justified and the appeal should consequently
be upheld. I am
of the view that the accused should be sentenced to life imprisonment
on the two rape counts and 5 years on the
abduction, but all these
sentences should run concurrently.
[11]
I propose the following order:
11.1
The appeal against sentence is
upheld;
11.2
The sentence is set aside and
replaced by the following: “The accused is sentenced to life
imprisonment on each of the two
counts of rape and 5 years on the
abduction charge. All the sentences to run concurrently; and
11.3
The sentence is
ante
dated to 28 May 2009.
R
G TOLMAY JUDGE OF THE HIGH COURT
I
AGREE:
M
S SIKHWARI ACTING JUDGE OF THE HIGH COURT
[1]
S v Siebert 1998(1) SACR 554
[2]
S
v
Mokela 212(1) SACR 431 (SCA)
[3]
S v Rabie
1975 (4) SA 855
(A) p 857 D-E; S v Pillay 1997(4) SA 531 A
p 535 E-G; S v
Kibido
1998(2) SACR (SCA) at p 216 G-H
[4]
[5]
S v Mosetha 2014 JDR 1282 (GP) at p 10; S v Chapman 1997(2) SACR 3
[6]
DPP, North Gauteng v Thabethe 2011(2) SACR 567 (SCA) 577 G-J