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[2015] ZAFSHC 165
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M v S (A66/2015) [2015] ZAFSHC 165 (3 September 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal number:
A66/2015
In the Appeal between:
T.
M.
Appellant
and
THE
STATE
Respondent
CORAM:
VAN
ZYL, J et MOKOENA, AJ
HEARD
ON:
27
JULY 2015
JUDGMENT
BY:
MOKOENA,
AJ
DELIVERED
ON:
3
SEPTEMBER 2015
[1]
The Appellant, an adult male aged 21 years, was arraigned in the
regional Court sitting in Hertzogville on 3 (three) counts
of rape
(contravention of section 3 of Act 32 of 2007 read with the
provisi
ons
of
section 51(1)
and (2) of the
Criminal Law Amendment Act, No. 105
of 1997
as amended). He pleaded not guilty on all counts but
after evidence was heard, he was found guilty on counts 1 and 2 and
not guilty on count 3. He was sentenced to 6 (six) years
imprisonment on count 1 and 15 (fifteen) years imprisonment on count
2. In respect of count 2 the court found that he raped the
victim more than once. He now appeals against his conviction
and sentence with the leave of the trial court.
[2] The appellant was
legally represented during trial. The facts leading to his
conviction are as follows:
AD count 1
On 4 December 2010 at
about 20h20 M. M. was from church when the appellant took her at
knife point to the stadium and had sex with
her without her consent.
The appellant stabbed her in the thigh and buttocks for resisting to
go with him to the stadium.
She was seeing the appellant for
the first time on the day in question.
AD count 2
On 5 February 2011 at
about 01h30 M. P. M. had just left the tavern when the Appellant took
her to the stadium at knife point where
he raped her once.
After this rape he forced her to go with him to his home where he
raped her twice. She was seeing
the appellant for the first
time on the day in question.
[3] At
the hearing of this appeal, Mr Bontes appearing for the Appellant
correctly submitted that the convictions are in order and
that the
trial court did not misdirect itself in convicting the appellant.
In his heads of argument counsel for appellant
referred this court to
what was stated in
S
v Ntuli
2003
(1) SACR 613
(W) para [4]:
“
There
are, of course, limitations to the content of counsel’s
argument. Counsel may not misrepresent the facts or the
law.
At a minimum, however, counsel is required to uphold the interest of
his or her client without fear of the consequences.
There may
be occasions when it is proper to make concessions. Seldom, if
ever, will there be a case in which no useful submission
at all can
be advanced in a client’s favour.”
[4] Regarding sentence in
respect of count 1, Mr Bontes submitted that the 6 (six) years
imprisonment is in order and that the sentencing
court did not
misdirect itself in sentencing the appellant.
[5] Regarding sentence in
respect of count 2, the main ground of appeal is that the sentencing
court misdirected itself in sentencing
the appellant in terms of
section 51
of the
Criminal Law Amendment Act 105 of 1997
by virtue of
the fact that at the time the crime was committed the appellant was
only 17 years of age and therefore
section 51
was not applicable to
him.
[6] Section 51 of the Act
to the extent relevant provides:
“
(1)
Notwithstanding any other law, but subject to subsections (3) and
(6), a regional court or a High Court shall
sentence a person it has
convicted of an offence referred to in Part I of schedule 2 to
imprisonment for life.
(2) …
(3) (a)
If any court referred to in subsection (1) or (2) is satisfied that
substantial
and compelling circumstances exist which justify the
imposition of a lesser sentence than the
sentence prescribed in
those subsections, it shall enter those circumstances on the record
of the proceedings and must thereupon
impose such lesser sentence:
Provided that if a regional court imposes a lesser sentence in
respect of an offence referred
to Part 1 of schedule 2, it shall have
jurisdiction for a period not exceeding 30 years.
(4)
…
(5)
…
(6)
This section does not apply in respect of an accused
person who was
under the age of 18 years at the time of the commission of an offence
contemplated in subsection (1) or (2).
[7] It was submitted on
behalf of the appellant that the sentence imposed by the trial court
was inappropriate and should be set
aside and replaced by a sentence
that utilises the provisions of the
Child Justice Act 75 of 2008
.
[8] It is trite that
sentencing is primarily the discretion of the sentencing court.
The sentences may be interfered with
on appeal only if the sentencing
court misdirected itself, or if the sentence is shockingly
inappropriate.
[9] The main question is
whether sentencing the appellant in terms of
section 51
of Act 105 of
1977 where appellant was only 17 years age at the time of committing
the crimes constitutes a misdirection.
[10] If indeed it is
found that a misdirection had occurred, or that a shockingly
inappropriate sentence was imposed, a further
question would arise
whether this court should set aside the sentence and replace it with
an appropriate sentence or refer the
matter back to the sentencing
court.
[11] I now turn to the
question whether there was misdirection.
[12] In this case, a
serious misdirection occurred in that at the time the crime was
committed the accused was only 17 years of
age and therefore section
51 of Act 105 of 1977 was not applicable to him.
[13] Since it is clear
that the sentencing court adopted an incorrect approach in sentencing
the appellant, the next question is
whether this court should set
aside the sentence and replace it with an appropriate sentence or
refer the matter back to the sentencing
court.
[14] In my view the
misdirection is serious and it will be in the best interest of the
appellant and justice for this court, being
the upper guardian of the
best interest of children, to set aside the sentence of the trial
court and impose a fresh sentence.
[15] This court has at
its disposal the mitigating and aggravating factors which were placed
before the trial court and which were
sufficiently dealt with in its
judgment. Accordingly, it will not be in the interest of
justice to refer the matter back
to the sentencing court to
reconsider an appropriate sentence.
[16]
In
S
v Fazzie and Others
1964
(4) SA 673
(A) at 684b-c the following was said:
“
Where,
however, the dictates of justice are such as clearly to make it
appear to this Court that the trial Court ought to have had
regard to
certain factors and that it failed to do so, or that it ought to have
assessed the value of these factors differently
from what it did,
then such action by the trial Court will be regarded as a
misdirection on its part entitling this Court to consider
the
sentence afresh..”
In
Kotze
v Kotze
2003
(3) SA 628
(I) at 630 (G) the following is said:
“…
the
High Court sits as upper guardian in matters involving the best
interests of the child (be it in custody matters or otherwise),
and
it has extremely wide powers in establishing what such best interests
are. It is not bound by procedural strictures or by the
limitations
of the evidence presented, or contentions advanced or not advanced,
by respective parties.”
[17] Having arrived at
this conclusion, this court has to consider an appropriate sentence
in the circumstances.
[18] It was argued on
behalf of the appellant that guidance be taken from the
Child Justice
Act in
sentencing the appellant.
Section 77(4)
of the
Child Justice Act creates
a maximum sentence of 25 years imprisonment
for a child who is 14 years or older at the time of being sentenced.
[19]
In my view, the correct approach to be adopted in the sentencing of
the appellant is also set out in
S
v Phulwane and Others
2003
(1) SACR 631
(T) at para 8 – 9 where Bosielo J, as he then was
said:
“
(8)
As the Director of Public Persecutions correctly pointed out, the
learned magistrate failed to acknowledge the important fact
that the
accused herein are relatively young, with clean criminal records, who
deserved a sentence based more on rehabilitation
than deterrence.
As the learned Cachalia J correctly remarked in
S
v Nkosi
2002
(1) SACR 135
(W) at 143 (b): “The fine balance that needs
to be struck between society’s needs to punish crime while not
overlooking
the interests of a juvenile offender was emphasised by
Botha JA in
S
v Jansen and Another
1975
(1) SA 425
(A) at 427 in fine – 428 (A) in the following terms:
The interest of society
cannot be served by disregarding the interests of the juvenile, for a
mistaken form of punishment might
easily result in a person with a
distorted personality being eventually returned to society.”
[20] The appellant was 17
years old at the time of committing the crime, he is a first
offender, is single, passed grade 7 at school,
is an orphan and thus
at a young age did not have parents to give him proper guidance, he
had been in custody for a period of ten
months and there were no
injuries sustained by the victim.
[21] I am not satisfied
that a 15 (fifteen) year imprisonment for a 17 year old child with a
clean record is an appropriate sentence
considering that
section 28
(1) (g) of the constitution states that every child has a right not
to be detained except as a measure of last resort and only
for the
shortest appropriate period of time.
[22]
The appellant has been convicted of a very serious crime of rape
which is prevalent within this court’s jurisdiction.
It
is aggravating that the appellant has demonstrated an affinity to
rape using the same
modus
operandi
.
[23] Having considered
the seriousness of the crime, the need to protect the society against
this heinous crime, the relative young
age of the appellant at the
time of committing the crime, his need and personal circumstances, I
am of the view that a 10 (ten)
year imprisonment will strike a proper
balance between the interests of the appellant and the legitimate
expectations of society
for an appropriate sentence.
[24] In the premises, I
propose the following order to be made:
1.
The
convictions of the appellant are confirmed.
2.
The
sentence of 6 (six) years imposed on count 1 is confirmed.
3.
The
sentence of 15 (fifteen) years imposed on count 2 is set aside and
replaced with a 10 (ten) year sentence of imprisonment.
4.
Both
the sentences of 6 (six) years imprisonment and 10 (ten) years
imprisonment will run concurrently
_______________
R. MOKOENA, AJ
I concur.
___________
VAN ZYL, J
On behalf of
applicant: Adv.
P. Nel
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On behalf of
respondent: Adv. L Bontes
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
/PC