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[2015] ZAGPPHC 487
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Mthiyane v S (A767/2014) [2015] ZAGPPHC 487 (19 June 2015)

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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
(PRETORIA)
CASE NO: A767/2014
DATE: 19 JUNE 2015
In the matter between
ALLEN MNIKELO
MTHIYANE
...........................................................................................
Appellant
And
THE
STATE
...........................................................................................................................
Respondent
JUDGMENT
NKOSI AJ
INTRODUCTION
[1] On the 23rd of June 2011 the
Appellant pleaded not guilty to the following charges in the regional
court, Ermelo:
- Count 1: Exposure or display of or
causing exposure or display of genital organs, anus or female breasts
to a child (“flashing”)-
contravention of section 22 of
Act 32 of 2007; in that on or about the 27-09-2009 at or near breyton
in the Regional Division of
Mpumalanga the said accused did
unlawfully and intentionally commit an act to wit expose his private
part whether for the sexual
gratification of the accused person to
expose or display or cause the exposure or display of the genital
organs of the accused
to a child complainant to wit N…….
M……. a 08 year old female child or without the consent
of the said
child complainant by undressing himself naked and
exposing his penis to the child.
- Count 2: Exposure or display of
causing of genital organs, anus or female breasts to a child
(“flashing”)- contravention
of section 22 of Act 32 of
2007;in that or about the 27 -09-2009 and or near Regional Division
of Mpumalanga the said accused did
unlawfully and intentionally
commit an act to wit expose his private part whether for the sexual
gratification of the accused person
to wit expose or display or cause
the exposure or display of the genital organs, of the accused to a
child complainant to wit N……..
K………..
a 07 years old female without the consent of the child complainant by
undressing himself naked and
exposing his penis to the child.
- Count 3: Exposure or display of or
causing exposure or display of genital organs, anus or female breasts
to a child (“Flashing”)-
contravention of section
22 Act
32
of 2007; in that on or about the 27-09-2009 and at or near Breyton
in the Regional Division of Mpumalanga the said accused did
unlawfully and intentionally commit an act to wit expose his private
parts sexual gratification of the accused person to wit, expose
or
display or cause the exposure or display of the genital organs, of
the accused or the said person to a child complainant to
wit M……..
K……… a 08 year old female without the consent of
the child complainant by undressing
himself naked and exposing his
penis to the child.
- Count 4: Crimen iniuria; In that on
or about 27 September 2009 and at or near Breyton in the
District/Regional Division of Mpumalanga,
the accused did unlawfully
and intentionally injure and insult and impair the dignity of N……..
M……,
N…………. K………
and M……….. K………. Minor
children
by inviting them to his room where upon arrival he locked
them in the room and undressed his pants and underwear exposing his
private
part to the children.
- Count 5: Rape - contravention of
section 3 Act of 32 of 2007; in that upon or about December
2009-January 2010 Breyton in the
District of Ermelo and in the
Regional division of Mpumalanga the said accused did unlawfully and
intentionally commit an act of
sexual penetration with the
complainant to wit N……….. M………
(10) Years old by: penetrating
the vagina of the complainant with
penis without the consent of the said complainant.
[2] On the 27th of September 2011 the
Appellant was convicted on charges 1 and 5 by the presiding
magistrate, Mr S Hallet. He was
acquitted on counts 2, 3 and 4.
[3] Sentence was imposed on the 2nd of
February 2012 as follows:
Count 1: 1 year of imprisonment;
Count 2: Life Imprisonment.
[4] The trial court ordered that the
sentences should be served concurrently.
[5] The Appellant applied for leave to
appeal in respect of sentence on the 15th of March 2012. Leave to
Appeal was refused by the
trial magistrate. Leave to appeal was
unnecessary because the Appellant had at the time an automatic right
of appeal in terms of
section 309 of the Criminal Procedure Act, Act
51 of 1977 read with sections 10 and 43 (2) of the Judicial Matters
Amendment Act,
Act 42 of 2013.
Section 309 (1) (a) of the Criminal
Procedure Act, Act 51 of 1977 reads as follow:
“Subject to section 84 of the
Child Justice Act, 2008 (Act 75 of 2008), any person convicted of any
offence by any lower court
(including a person discharged after
conviction) may, subject to leave to appeal being granted in terms of
section 309B or 309C,
appeal against such conviction and against any
resultant sentence or order to the high court having jurisdiction:
provided that
if that person was sentenced to imprisonment for life
by a regional court under section 51 (1) of the Criminal Law
Amendment Act,
1997 (Act 105 of 1997), he or she may note such appeal
without having to apply for leave in terms of section 309B: Provided
further
that the provisions of section 302 (1)(b) shall apply in
respect of a person who duly notes an appeal against a conviction,
sentence
or order as contemplated in section 302 (1) (a).”
Section 43 (2) of the Judicial Matters
Amendment Act, Act 42 of 2013 provides as follows:
“Sections 10 and 11 are deemed to
have come into operation on 1 April 2010 and section 42 is deemed to
have come into operation
on 20 September 2010.”
[6.] The Appellant was legally
represented throughout the trial by Mr Van der Bank. While the
respondent was represented by Mrs
Thomu.
[7.] The appellant made an application
for condonation for the late filing of his heads of arguments which
in the absence of any
opposition was granted.
Summary of Evidence
[8.] The state called 6 witnesses to
prove their case. The birth certificate of N………
M……….
was handed in by consent as Exhibit ‘A’,
as was the J88, which was compiled by Doctor PC Ngwenya of Nompulo
Mazibuko,
as Exhibit
‘B\
[9.] N………
M……..testified that in March 2010 she was in the
company of M………
and N……….
at B……. Town. They asked the Appellant for 50c. He took
them to his bedroom and told
them to close their eyes, as he was
making a film.
Miss M…….. testified that
she peeped and saw that the Appellant was undressing himself. She
testified that they saw
the private parts of the Appellant. They ran
away. The following day N………. informed her
mother of the incident.
[10.] N……….. K…………
did not testify as the presiding magistrate had difficulty in

admonishing the witness.
[11.] N………..
K…………. testified that N……….
had made a report
to her that a certain man wanted to rape them.
N…………. informed Mrs K………..that
she had been in the company of M………. and N………….
The matter was reported to the
police, whereafter the children had
identified the Appellant to the police.
[12.] A………. M…………
testified that she observed that N…….. was walking

funny. When she inquired from N………. what the
problem was, she replied that she had been raped. The matter
was
reported to the police, and N………. was taken to
hospital.
N……… reported that
she was in the company of other children. They were sent to fetch
herbal medicine from a
certain man. The man sent the other children
to the shop, while he played a writing game with N…………….
[13.] N………. M……….
testified that she was raped by the Appellant on a day that she had
accompanied other children to the Appellant. The other children were
sent to the shop, while she remained with the Appellant, and
was
subsequently raped by him.
[14.] M……… K……….
testified that on a certain day she was in the company of N………

and N……….. She testified that they met a man
from whom N…….. asked for 50c. The man invited
them to
his house. They played a game, where after the man told them to close
their eyes. They saw how the man undressed himself
as they did not
close their eyes. She testified that she saw the man’s
underwear. They thereafter ran away.
[15.] The Appellant testified in his
own case. No witnesses were called to testify on behalf of the
Appellant. A……
M……. M……..
testified that on the 27h of September 2009 two girls and one boy
followed him to his house.
He testified that N………..
asked him for 50c. The Appellant did not have his wallet with him as
he was coming
from the soccer field.
[16.] The children followed him home
where he gave them juice and biscuits. N……….
then asked the Appellant
for R20. He chased the children away. N……….
threatened to lay an attempted rape charge against the Appellant.
The
Appellant denied having exposed himself to the children.
[17.] The Appellant testified that the
complainant in respect of count 5 was not raped by him. He testified
that she was in the
company of two other children who wanted money
from him. He gave them cabbage and potatoes, and the following day
gave them R100.
AD SENTENCE
[18.] The Appellant only appealed
against the sentence imposed.
The State proved no previous
convictions against the Appellant.
[19.] The following personal
circumstances of the Appellant were placed on record by his legal
representative:
The Appellant was 43 years old;
He is married;
He has two children aged 3 and 1 and a
half years;
The Appellant was a Sangoma at the time
of his arrest and earned an income of R3500 per month;
He was the sole breadwinner at home;
The Appellant was held in custody from
his arrest on the 13th of January 2010 until 2 February 2012.
He was a first offender.
[20.] The legal representative of the
Appellant did not address the trial court in respect of any
substantial and compelling circumstances
which would justify the
imposition of a sentence less than the prescribed minimum sentence.
This means that the court of appeal
will have to look into all
circumstances which could have assisted the court coming to an
appropriate sentence. The Lacuna left
out by the Appellant’s
legal representative gives this court the power to reconsider this.
The personal circumstances of
the Appellant have to be looked at in
the totality of evidence cumulatively.
[21.] In terms of
section 51
(1) of the
Criminal Law Amendment Act, Act
105 of 1997 a minimum sentence of
life imprisonment is prescribed for a first offender of the rape of a
child.
[22.] In terms of
section 51
(3) of Act
105 of 1997 a lesser sentence must be imposed should a court be
satisfied that substantial and compelling circumstances
exist to
justify such a lesser sentence.
The trial court did not find any such
circumstances.
The only ground of appeal is that the
trial magistrate failed to properly take into account the period
which the Appellant had spent
in custody while awaiting the
finalisation of the trial.
[23.] In S V Mqabhi
2015 (1) SACR 508
(GJ) the court formulated the following guidelines in determining
whether the period spent in custody ought to be considered a

substantial and compelling circumstance justifying the imposition of
a sentence less than the minimum prescribed sentence:
“After considering argument the
court formulated the following guidelines: (a) pre-sentence detention
was a factor to be taken
into account when considering the presence
or absence of substantial and compelling circumstances for the
purposes of CLAA. (B)
Such period of detention was not to be isolated
as a substantial and compelling circumstance but had to be weighed as
a mitigating
factor; together with all the other mitigating and
aggravating factors, in determining whether the effective minimum
period of
imprisonment to be imposed was justified in the sense of it
being proportionate to the crime committed. If it were not then the

want of proportionality constituted the substantial and compelling
circumstances required under section 51 (3) (c) The reason for
the
prolonged period of pre¬sentence detention was a factor. If the
offender were responsible for unnecessary delays then this
might
redound to his detriment, (d) There was no mechanical formula or rule
of thumb to determine the period by which a sentence
was to be
reduced. The specific circumstances of the offender, which might
include the conditions of his detention, were to be
assessed in each
case when determining the extent to which the proposed sentence
should be reduced, (e) Where only one serious
offence was committed,
and assuming that the offender had not been responsible for unduly
delaying the trial, then a court might
more readily reduce the
sentence by the actual period in detention prior to sentencing. ”
[24.] Counsel for the Appellant
submitted that the trial court misdirected itself in not finding that
the following factors, cumulatively
considered, amounted to
substantial and compelling circumstances justifying the imposition of
a sentence less than life imprisonment:
1. That the Appellant had been in
custody since 13 January 2010 until 2nd of
February 2012, effectively meaning that
the Appellant was in custody for a period of 2 years before sentence
was imposed. This is
one of the aspects the trial court should have
taken into account.
2. The Appellant was a first offender;
3. That only count 5 is of a very
serious nature;
4. The record does not reflect that any
of the postponements were due to any fault on the Appellant. The
submission has merit.
[25.] The trial court, in my view,
misdirected itself in not finding substantial and compelling
circumstances which in my view,
exist in this case. This entitles the
appeal court to interfere with the sentence and impose an appropriate
one having considered
all facts presented.
[26.] This court, in my view, is at
large to reconsider the question of sentence afresh. The personal
circumstances of the Appellant
too, in my view, demonstrate the
existence of substantial and compelling circumstances.
[27.] For the reasons given above the
appeal against sentence should succeed.
[28] In the result I make the following
order:
(a) The sentence on count 1 is upheld.
(b) Life imprisonment imposed by the
trial court is set aside and replaced with a sentence of 22 years
imprisonment antedated to
2nd of February 2012 which is the date of
sentence.
(c) Both sentences will run
concurrently.
VRSN NKOSI
ACTING JUDGE OF THE HIGH COURT
I agree and it is so ordered.
W MSIMEKI
JUDGE OF THE HIGH COURT