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[2015] ZAGPPHC 247
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Mokoena v S (A538/14) [2015] ZAGPPHC 247 (26 February 2015)
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Certain
personal/private details of parties or witnesses have been
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIEK VAN
SUID-AFRIKA
CASE NUMBER: A538/14
DATE: 26 FEBRUARY
2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
JUSTICE
TANKISO
MOKOENA
.................................................................................................
Appellant
and
THE
STATE
...................................................................................................................................
Respondent
JUDGMENT
JANSE VAN
NIEUWENHUIZEN J
[1]
The appellant was convicted on two charges in the court
a
quo,
to
wit a count of housebreaking with the intent to rob and robbery with
aggravating circumstance and a count of rape. Upon conviction
the
appellant was sentenced to 15 years imprisonment in respect of the
robbery charge and to a term of life imprisonment in respect
of the
rape charge.
[2] The appeal is
against both conviction and sentence.
BRIEF BACKGROUND
[3] The
circumstances surrounding the conviction of the appellant, may be
conveniently summarised as follows:
i) on the evening of
16 May 2010, Mr T[...] M[...], the complainant in count 1 and his
daughter, A[...] M[...] (A[...]), the complainant
in count 2, was
asleep in Mr M[...]’s house;
ii) around 2:00, Mr
M[...] was awakened by the sounds of A[...] crying. Upon enquiring
what the problem was, Mr M[...]’s bedroom
door was kicked down
and he was instructed not to move;
iii) although there
were no lights on, Mr M[...] could see the intruders in the light
created by their cell phones. Mr M[...] not
only had a look at the
faces of the two intruders, but also saw that one of the intruders
was armed;
iv) Mr M[...] was
hit with the firearm over his head and thereafter instructed to open
his tuck shop. The intruders robbed him from
several items in the
tuck shop;
v) before and during
Mr M[...]’s ordeal, Amanda was raped by the intruders;
vi) after the
intruders left, Mr M[...] called the police and A[...] was taken to a
doctor for a medical examination;
vii)
it is not in dispute that swabs were taken from A[...] and that the
DNA found in the swabs accords with the DNA of the appellant
and his
co-accused in the court a
quo
;
viii) it is,
furthermore, not in dispute that the appellant was identified by Mr
M[...] as one of the intruders during an identification
parade.
AD CONVICTION
GROUNDS OF APPEAL
[4] On behalf of the
appellant two grounds of appeal were raised:
i) firstly, the
identification of the appellant; and
ii) secondly, the
chain of evidence relating to the swabs taken from A[...].
EVIDENCE
[5] Mr Kgagara,
counsel for the appellant correctly conceded that if the chain of
evidence referred to above is established, the
question of the
appellant’s identification falls away.
[6]
Dr Lopes examined A[...] on 16 May 2010 at 6:00. During her
examination she obtained the swabs and sealed the swaps in an
evidence
collection kit with number 09D1AA9564XX. The fact that the
swaps were taken and sealed a set out
supra
is
not in dispute.
[7] Dr Lopes
testified that she handed the evidence collection kit to a nurse.
[8] Captain Mphephu,
who is attached to the Biology Unit of the Forensic Science
Laboratory, deposed to an affidavit in terms of
section 212 of the
Criminal Procedure Act, 51 of 1977, which affidavit was accepted into
evidence.
[9] In his
affidavit, he states that he received swabs with seal number
09D1AA9564XX from the Administration component of the Biology
Unit of
the Forensic Science Laboratory. He duly extracted DNA from the
swabs, which DNA, as stated aforesaid, correlates with
that of the
appellant.
[10] In view of this
evidence, it is clear that the swabs taken by Dr Lopes were indeed
the swabs examined and referred to by captain
Mphephu in his section
212 affidavit.
CONCLUSION
[11]
I am satisfied that the court
a
quo
correctly
convicted the appellant on both counts and the appellant’s
appeal against conviction falls to be set aside.
AD SENTENCE
[12]
The sentence imposed by the court a
quo
of
15 years on the robbery charge and life imprisonment on the charge of
rape, is the minimum sentence prescribed by the General
Law Amendment
Act, 105 of 1997 (the Act), for these offences.
[13] In terms of
section 5(3) of the Act, a court may deviate from the minimum
sentence if substantial and compelling circumstances
justify such a
deviation.
[14] The appellant
alleges that the imposition of the minimum sentence is
disproportionate to the particular facts of this matter.
[15]
The personal circumstances of the appellant appear from the record
and need not be repeated herein. As appear
supra,
the
circumstances under which these crimes where perpetrated are
especially hideous.
[16] The appellant
and his co-accuse entered the innermost sanctum of the victims. Once
home is suppose to be a place of safety
and security. To furthermore,
violate a woman’s privacy, her dignity, her bodily integrity,
is without doubt, one of the
most serious crimes to commit.
[17]
The court a
quo
carefully
considered all aspects pertaining to sentencing and properly and
reasonably exercised his discretion in imposing the sentences.
[18]
In the premises, I am of the view that the sentence imposed by the
court a
quo
is
proportionate to the crimes committed and no grounds exit to
interfere therewith.
ORDER
In the premises, I
propose the following order:
The appeal against
conviction and sentence is dismissed.
N JANSE VAN
NIEUWENHUIZEN
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
I agree,
M G PHATUDI
ACTING JUDGE OF
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
It is so ordered.
APPEARANCE ON
BEHALF OF THE APPELLANT:
ADVOCATE
MR M. B. KGAGARA
APPEARANCE
ON BEHALF OF THE STATE:
ADVOCATE A.J FOURIE