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[2016] ZAGPPHC 1168
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Mphuthi v S (A501/2015) [2016] ZAGPPHC 1168 (28 October 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A501/2015
DATE
DELIVERED: 28/10/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
IN
THE MATTER BETWEEN
ESAU
NICHOLAS MPHUTHI
Appellant
and
THE
STATE Respondent
JUDGMENT
VAN
NIEKERK, AJ
[1]
Appellant was charged in the Regional Court, Bethal in Mpumalanga on
one count of rape and one count of assault. The Appellant
pleaded
guilty to the charge of assault, and pleaded not guilty to the charge
of rape. On the 1st of August 2014 the Appellant
was found not guilty
on the charge of rape, and was found guilty on the charge of assault
and in terms of Section 51(2) of Act
105 of 1997 the Appellant was
sentenced to 10 years imprisonment. The charges supra related to an
incident that took place on the
19th of April 2009 near Bethal in
eNzinoni when the complainant was 15 years old at the time. During
the proceedings in the Court
a quo on the 29th of July 2014, the
defence prepared a statement in terms of Section 112 of the Criminal
Procedure Act which was
read into the Record in the Court a quo and
reads as follows:
In the Regional
Division of Mpumalanga held at Bethal. Case number 15/13. In the
matter between the state versus Esau Nicolas Mphuthi,
the accused
person. This is a statement in terms of
Section 112(2)
of the
Criminal Procedure Act, 51 of 1977
, as amended. I the undersigned, do
hereby make oath and state. I am the accused in this matter and I
understand fully the nature
of the charge against me.
I plead guilty to the
charge of assault with intent to do grievous bodily harm. I have been
advised of my rights by my legal representative,
however I waive such
right and elect to plead guilty freely and voluntarily without any
undue influence.
I would like to make
the following submissions. On 19 April 2009, I was at N. Tavern when
I met with S. M., a black female person
to whom I proposed love. We
were drinking alcohol and she accepted my proposal.
Later on that evening,
she left the tavern without informing me and my friends were laughing
at me. I got angry and embarrassed.
I then went after her. When I
found her, I assaulted her with fists and I hit her with a brick.
I admit that my
conduct on the day in question, was unlawful and cannot be justified.
I admit that I was in the district of Bethal
when committing this
offence. I admit that I had no right to assault the complainant as
such. I have no defence in law."
[2]
On appeal it was submitted on behalf of the Appellant that the Court
a quo erred in overemphasising the seriousness of the defence
which
the Appellant has committed whilst the personal circumstances of the
Appellant were underemphasised. It was submitted that
in imposing
such a lengthy period of imprisonment the Court a quo erred as the
sentence is shockingly harsh and induces a sense
of shock.
[3]
I do not agree. The Appellant's motive for assaulting the complainant
by inter alia hitting her were a brick on the head and
causing
serious injuries was, according to his evidence, as revenge for his
embarrassment in front of his friends who drank with
him in a tavern
due to the fact that the complainant, to whom he so-called "offered
love" during the evening departed
from the tavern without him.
Considering the fact that the complainant was a 15 year old girl,
whereas the accused was 35 years
old at the time of the incident, it
is rather the conduct of the Appellant that induces a sense of shock
than the sentence which
was imposed and which is in terms of
applicable legislation the minimum sentence to be imposed in the
circumstances. It is patently
clear from the Record that the Court a
quo considered the Appellant's personal circumstances, and on no
basis can it be found that
the Court a quo misdirected itself in
applying the minimum prescribed sentence in terms of the applicable
legislation.
[4]
I propose the following order: the appeal is dismissed.
P A VAN NIEKERK
ACTING JUDGE OF THE
GAUTENG DIVISION, PRETORIA
______________________
P.A. Van Niekerk
Acting Judge of the High
Court,
Gauteng Division,
Pretoria.
Hearing:
24 October 2016
Judgment:
8 October 2016
______________________
N
JANSEN VAN NIEUWEHUIZEN
Judge
of the High Court,
Gauteng
Division, Pretoria.
Hearing:
24 October 2016
Judgment:
28 October 2016
APPERANCE
ON BEHALF OF THE APPELLANT:
Advocate
M.B. Kgarare
APPERANCE
ON BEHALF OF THE STATE:
Advocate
M.B. Moloi