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2015
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[2015] ZAGPPHC 373
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Mkhatshwa v S (A865/14) [2015] ZAGPPHC 373 (29 May 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case Number: A865/14
DATE: 29 MAY 2015
In the matter between:
JOHANNES MADLA
MKHATSHWA
............................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Coram: HUGHES J ET DE VRIES AJ
JUDGMENT
Delivered on: 29 May 2015
Heard on: 26 May 2015
HUGHESJ
1. The appellant , Johannes Madia
Mkhatshwa, was charged with three counts as follows:
Count 1- Rape read with the provisions
of section 3 read with section 1, 56(1), 57, 58 59, 60 and 61 of the
Criminal Law Amendment
Act (Sexual Offences and related
matters) Act 32 of 2007. Statutory rape
read with the provisions of section 51, 52 and schedule 2 of the
Criminal Law Amenc'men*
Act 105 of 1977;
Count 2- Attempted Rape, contravention
of the provisions of section 55(A) read with chapters 2, 3, 4,
section 1 55, 56, 57, 58 59,
60, 61 and 71(1), (2) and (6) of the
Criminal Law Amendment Act (Sexual Offences and related matters) ACT
32 of 2007; and
Count 3- Theft read with the provisions
of section 51(2) of the Criminal Law Amendment Act 105 of 1977.
2. Throughout the trial, the appellant
was legally represented. On 5 May 2014, he pleaded guilty to all the
charges preferred against
him in the Regional court Ermelo. On the
very same day, he was sentenced to life imprisonment in respect of
count 1, 10 years imprisonment
in respect of count 2 and 1 year
imprisonment in respect of count 3. The sentences were to run
concurrently.
3. Count 1 of rape is in fact that of
statutory rape, in that on 13 June 2012 the appellant raped the
complainant, D………
V………, a
14-year-old girl. Count 2 of the attempted rape took place on 21
October 2013 in that the appellant
attempted to rape L…….
J…… M…….. a 22-year-old female and Count
3, on the same day, the
appellant stole L………’s
Nokia cellphone.
4. Automatic leave to appeal against
the sentence in respect of count 1 was granted.
5. I am of the view that it is
pertinent to set out what the appellant states in his section 112(2)
of Act 51 of 1977 statement.
He admits that the minimum sentence of
life imprisonment in respect of count 1 was explained to him.
Regarding count 1 he admits
that the complainant was 14 years of age
and she was walking on the footpath on her own and as she drew closer
he grabbed her.
She bit him on his finger. The appellant tripped the
complainant and she fell on her back. This is when he climbed on top
of her,
pulled down her panties from under her dress and inserted his
penis and into her vagina penetrating her. He was linked to the rape
via his DNA.
6. As regards count 2 and 3, this
occurred the year thereafter and in the same complainant’s
home, L…….., eariier.
He returned knowing that she was
alone. On him entering the home of the complainant, he found her
taking a bath. He grabbed her
but she managed to get loose and ran
out of the house. He took her cellphone from the house and pursued
her outside. He attempted
to grab her again with the intent intention
to rape her. He forced her to the ground and tried to remove her
panties. She screamed
and said her father was on his way and this is
when he left her and ran away.
7. Mr Alberts, for the appellant,
argued that if one looked at the J88 of the complainant in count 1,
which was admitted, it is
evident that she was fully developed. As
such, the court failed to consider this when sentencing the
appellant.
8. From the record of the proceedings
this factor was not argued before the trial court and on my perusal
of the appellant’s
notice to appeal, he acknowledges that he
“regrets what I did to the innocent girl". Therefor in my
view, he was aware
that the complainant was an innocent child. He was
not confused, as Mr Alberts would like this court to believe that she
was a
girl over the age of 16 years.
9. Mr Alberts argued further that the
trial court placed much emphasis on the appellant’s previous
convictions and the fact
that he was on parole for rape when he
committed these offences. The trial court failed to consider these
factors in light of all
the other mitigating factors and weigh them
up proportionally. Mr Pienaar, for the State, in reply to this
argument, stated that
the trial court had done just that and that the
trial court did a complete and balanced assessment of all the
relevant factors
before sentencing.
10. The mitigating factors advanced and
that the trial court took into account are categorised as general
mitigation. The appellant
pleaded guilty and did not waste the courts
time. He was 27 and 28 years respectively when he committed the
offences, he had a
standard 4 level of education and had been working
as a farm labourer earning R1 500.00 per month. He was released on
paroie on
3 August 2011 having severed half of his ten-year sentence
for rape.
11. The trial court took into account
the appellant’s previous convictions of assault in 2006, which
he had been granted
parole. Of importance the trial court, correctly
in my view, considered the period in which, whilst on parole, the
appellant committed
the offences in count 1 to 3. On 3 August 2011,
the appellant was released on parole. The offence in respect of count
1 was committed
on 13 June 2012. On 8 October 2013, the matter was
struck off the roll, reason being the State did not have sufficient
evidence
against him, that being the DNA evidence. He is again
released into society. On 21 October 2013, he commits the attempted
rape
and theft. His parole would have ended on 3 July 2016.
12. From the above careful analysis of
the factors above, the trial court concluded that “...die
beskuldigde begin nou om
tekens te toon van ‘n lewenwyse maak
om vrouens te verkrag.” (Page 22 lines 20 to 23 of the record.
I concur with the
conclusion of the trial court. It would seem that
every opportunity that the appellant was allowed to be in the midst
of society
he found use this opportunity to rape or attempt to rape a
women. This indication that he was clearly making a career out of
raping
females and could not go long without attempting to do so.
Whilst on parole I might add for rape having only served half of his
sentence.
13. Mr Pienaar argued that the cases
quoted by Mr Alberts were distinguishable from this case. Those cases
dealt with first offenders,
in some cases the complainant was an
adult who was raped and in another, the offender was a youth, school
attending and it did
not involve a non-consensual scenario, like in
this case.
14. The guidelines as regards the use
of decided cases was dealt with in S v D
1995 (1) SACR 259
(A) at
263g-h:
“Decided cases dealing with
sentence may be of value as providing guidelines for the trial
court's exercise of discretion
(see S v S
1977 (3) SA 830
(A)) and
they sometimes provide useful guidance where they show a succession
of punishments imposed for a particular type of crime.
(See R v Karg
1961 (1) SA 231
(A) at 236G.) But it is an idle exercise to try to
match the colours of the case at hand and the colours of other cases
with the
object of arriving at an appropriate sentence. 'Each case
should be dealt with on its own facts, connected with the crime and
the
criminal. . . .' (Karg's case ubi cit.) See S v Fraser
1987 (2)
SA 859
(A) at 863C-D.
Further, the commentary in Commentary
on Criminal Procedure Act by Du Toit is useful in this case:
"‘Ultimately’, said
Petse JA in S v Kwanape
2014 (1) SACR 405
(SCA) at [16], 'each case
must be decided in the light of its peculiar facts'. However, at [16]
the following statements by Marais
JA in S v
Malgas 2001 ;1) SACR ^59 (SCA) at [21]
were also citea:
'It would be foolish of course, to
refuse to acknowledge that there is an abiding reality which cannot
be wished away, namely, an
understandable tendency for a court to
use, even if only as a starting point, past sentencing patterns as a
provisional standard
for comparison when deciding whether a
prescribed sentence should be regarded as unjust. To attempt to deny
a court the right to
have any regard whatsoever to past sentencing
patterns when deciding whether a prescribed sentence is in the
circumstances of a
particular case manifestly unjust is tantamount to
expecting someone who has not been allowed to see the colour blue to
appreciate
and gauge the extent to which the colour dark blue differs
from it. As long as it is appreciated that the mere existence of some
discrepancy between them cannot be the sole criterion and that
something more than that is needed to justify departure, no great
harm will be done.' ”
15. I align myself with the principle
set out in the preceding paragraphs. In my view, the consideration of
each case on its own
merits is paramount. Past cases are but only a
guideline to ensure uniformity and consistency.
16. In this case, we have a repeat
offender on parole that continues to disregard the law and persists
in engaging in the same transgression.
Clearly, he is an offender who
flagrantly disregards the law and does not appreciate the lifelines
provided when he is released
early on parole and when the case in
respect of count 1 is struck off the roll.
17. In the circumstances, I can only
but conclude that there was no misdirection on the part of the trial
court when it imposed
the sentence that it did for count 1, in these
circumstances.
18. In conclusion I make the following
order:
18.1 The appeal in respect of sentence
on count 1 is dismissed.
WV Hughes
Judge of the High Court
I agree and it is so ordered
De Vries
Acting Judge of the High Court