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[2015] ZAGPPHC 51
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Mahlangu v S (A874/13) [2015] ZAGPPHC 51 (30 January 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NUMBER A874/13
DATE: 30 JANUARY
2015
REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
MAHLANGU,
WHITEY
...............................................................
Appellant
And
THE
STATE
..............................................................................
Respondent
JUDGMENT
MUDAU AJ
[1] The appellant
appeared before a regional magistrate in Pretoria, Gauteng, on a
charge of rape in violation of s3 read with other
relevant provisions
of the
Criminal Law(Sexual Offences and Related Matters) Amendment
Act 32 of 2007
as well as
s 51
(1) of the
Criminal Law Amendment Act
105 of 1997
. In addition, as well as
s 51
(1) of the
Criminal Law
Amendment Act 105 of 1997
. In addition, the appellant was also
charged with a second count of kidnapping. Notwithstanding his not
guilty pleas he was sentenced
to life imprisonment for the rape
charge and to 5 years imprisonment on the second count. It is against
the sentences imposed that
he now appeals to this court with leave of
the court below. The only issue in dispute before us is whether the
trial court should
have found that substantial and compelling
circumstances existed, justifying a departure from the mandatory
minimum sentence of
life imprisonment.
[2]
S51
(2) read
with
Part I
of Schedule 2 of the Act provides for a prescribed
minimum sentence of life imprisonment for the rape of a child below
the age
of 16 years and also under circumstances where the offender
has raped his victim more than once unless the court finds
substantial
and compelling circumstances to justify a lesser
sentence. In this case appellant qualified for life imprisonment in
that the girl
was 15 years of age at the time the rape; secondly that
he raped her more than once (vaginally and anal orifice).
[3]
The attack against sentence is primarily that the trial court should
have deviated from imposing the life terms given the cumulative
factors such as that no previous records of convictions were proved
against him. In addition it is contended that
“
the
sentence of life imprisonment imposed induces a sense of shock’’.
[4]The salient facts
of the case are as follows: the complainant, KM (referred to as such
with a view to protect her identity),
and her parents were next-door
neighbours to the appellant. On the day of the incident she went to
fetch her cell phone from a
friend at another section of the informal
settlement. There she found the Appellant as well as a third person.
The appellant offered
to buy her a cool drink which she accepted. Her
friend left to by the cool drink. Upon her return they all shared the
cool drink.
As they were drinking the appellant asked to her to step
outside of the shack for a word with her. She asked him why he could
not
speak to her in the presence of the other two. Thereafter she
excused herself. The appellant however followed her outside whereupon
he grabbed her by her hand and dragged her away to another shack. At
the gate of the second shack she held on the gate and refused
to
enter the premises.
[5] The appellant
produced a knife with which he threatened to stab her. As a result
thereof she let go of the gate after which
the appellant dragged her
inside the shack. Thereafter the appellant threw her on top of the
bed after which he ordered her to
undress. She refused to undress
herself. After undressing himself he proceeded to rape her by
inserting his penis inside her vagina.
She described her ordeal as
painful which took about 2 minutes. She was crying during the rape.
Unbeknown to her, the doctor was
later to find that she was violated
during her periods.
[6] Dr Cele
conducted the gynaecological examination on the child, found bruises
on her clitoris, urethral orifice (which was also
swollen), fraenulum
of clitoris, and fresh tear of the posterior fourchette. In addition,
there were multiple tears around the
anal orifice. The injuries
sustained were consistent with forced vaginal and anal penetration of
the child.
[7] The trial court
took into consideration that the appellant was 36 years of age and a
father to 2 minor children at the time
of sentencing. He spent 3
years in custody whilst awaiting trial. It is unclear what work he
did if any it is also unclear what
level of education he accomplished
at that stage. His marital status also, was not disclosed. The
appellant was 35 years of age
at the time of the incident.
[8]
The late Mohammed CJ described rape in S
v
Chapman
[1997] ZASCA 45
;
1997
(2) SACR 3
(SCA)
at
5b as follows:
"Rape is a
very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity
and the
person of the victim.
The rights to
dignity, to privacy and the integrity of every person are basic to
the ethos of the Constitution and to any defensible
civilisation."
[9]In
Director of Public Prosecutions v Thabethe
2011
(2) SACR 567
(SCA)
(30
September 2011)
para
16 echoing the above approach by Mohammed CJ Bosielo JA put it thus:”
It is regrettable
that notwithstanding this observation the rate of rape in the country
has reached pandemic proportions. It is
no exaggeration to say that
rape has become a scourge or a cancer that threatens to destroy both
the moral and social fabric of
our society. ”
[10]
With regard to the application of mandatory minimum sentences, Ponnan
JA, in
S
v
Matyityi
2011 (1)
SACR 40
(SCA).
in
para [23] with reference to
S
v Malgas
2001
(1) SACR 469
(SCA)
stated:
“
As
Malgas makes plain courts have a duty, despite any personal doubts
about the efficacy of the policy or personal aversion to it,
to
implement those sentences. Our courts derive their power from the
Constitution and like other arms of state owe their fealty
to it. Our
constitutional order can hardly survive if courts fail to properly
patrol the boundaries of their own power by showing
due deference to
the legitimate domains of power of the other arms of state. Here
parliament has spoken. It has ordained minimum
sentences for certain
specified offences. Courts are obliged to impose those sentences
unless there are truly convincing reasons
for departing from them.
Courts are not free to subvert the will of the legislature by resort
to vague, ill-defined concepts such
as 'relative youthfulness' or
other equally vague and ill-founded hypotheses that appear to fit the
particular sentencing officer's
personal notion of fairness.
Predictable outcomes, not outcomes based on the whim of an individual
judicial officer, is foundational
to the rule of law which lies at
the heart of our constitutional order.”
As indicated above
in this case, the trial court found no substantial and compelling
circumstances which justified deviating from
the minimum sentence of
life imprisonment with regard to the rape charge.
[11]
It is a principle of our law that the trial court exercises
discretion with regard to the question of sentence after conviction.
The circumstances in which an appeal court will interfere with a
sentence imposed by a court of first instance are trite. They
were
restated in
S
v
Sadler
2000 (1)
SACR 331
(SCA).
[12]
However, as it has been held in
S
v
Vilakazi
2009
(1) SACR 552
(SCA)
life
imprisonment should be reserved for more serious cases of rape. In
Vilakazi
Nugent
JA also pointed to the vast disparity between the ordinary minimum
sentence for rape (10 years imprisonment) and the one
statutorily
prescribed for rape of a girl under the age of 16 years (life
imprisonment) and the startling incongruities which may
result ( at
para 13).
[13]
In
S
v
Nkawu (S v Nkawu
2009
(2) SACR 407
(ECG)).
Plasket
J was called upon to consider the provisions contained in
s
51
(3)
(aA)(
ii)
of the
Criminal
Law
Amendment
Act, 105 of 1997
.
as
far as the absence of serious physical injuries to the complainant
was concerned. That subsection provides that when a court
sentences
for rape ‘an apparent lack of physical injury to the
complainant’ shall not be regarded as a substantial
and
compelling circumstance. Plasket J expressed the view that a literal
interpretation of that provision would render it unconstitutional,
since it would require judges to ignore factors relevant to sentence
in crimes of rape which could lead to the imposition of unjust
sentences. (See also
S
v Mudau
2013 (2)
SACR 292
(SCA)
.
[14]
No victim impact evidence was led; however, I have no doubt that the
complainant would have endured post-traumatic stress considering
that
she considered the appellant as a father figure, in
Kwanape
a
sentence of a lifetime imprisonment was confirmed in respect of the
rape of a 12-year-old kept away overnight by a 24-year-old
offender
(S v Kwanape
2014(1) SACR 405
(SCA)
which
make the facts of this matter distinguishable. Although the rape in
this matter had not been perpetrated in a family setting
as well, the
interaction was of a shorter duration as opposed to
Kwanape.
[15] However, the
appellant’s conduct remains undoubtedly reprehensible calling
for a sentence both reflecting this Court’s
strong disapproval
and hopefully acting as a deterrent to others like-minded to satisfy
their carnal desires with children. In
my view the circumstances in
this case are such that a sentence of life imprisonment is
disproportionate to the crime. I therefore
find that there are
substantial and compelling circumstances justifying a lesser sentence
than the one prescribed.
[16] In the result,
having considered all the relevant factors and the purpose of
punishment I consider 25 years’ imprisonment
to be an
appropriate sentence for the rape charge.
[17] In the result I
suggest the following order:
1. The appeal
against the sentence of life imprisonment in respect of the rape is
upheld.
2. The sentence of
the court below in respect of the rape charge is set aside and
replaced with the following:
The accused is
sentenced to 25 years’ imprisonment. The sentence imposed for
the kidnapping charge to run concurrently with
the 25 years sentence.
This sentence is antedated to 30 November 2012.
30 January 2015
MUDAU T P
ACTING JUDGE OF
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
l agree and it is
so ordered
JANSE VAN
NIEWENHUIZEN
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
APPEARANCES
For the appellant: R
S Matlapeng
Pretoria Justice
Centre
For the respondent:
Adv MNC Menigo
NPA, Pretoria