About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2015
>>
[2015] ZAFSHC 221
|
|
S v Makhetha (A162/2015) [2015] ZAFSHC 221 (12 November 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Appeal number: A162/2015
DATE: 12 NOVEMBER 2015
In the matter between:
BOKANG BASIA
MAKHETHA
.............................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
CORAM: RAMPAI, J et LEKALE, J
HEARD ON: 9 OCTOBER 2015
JUDGMENT BY: RAMPAI, J
DELIVERED ON: 12 NOVEMBER 2015
[1] The matter came to court by way of
an appeal. The appellant was found guilty of rape in the regional
court. He was then sentenced
to life imprisonment. He was aggrieved
by the sentence - hence he appealed. The respondent apposed the
appeal.
[2] An incident occurred at Bronville
in Welkom on 21 December 2012. A teenage girl was attacked and
sexually molested by two men.
The incident was reported to the
police. The police investigation led to the arrest of one of the
suspects on 14 November 2013.
That arrestee was the appellant.
[3] Subsequent to his arrest, Mr Bokang
Basia Makhetha, was criminally charged with rape. The state alleged
that he unlawfully
and intentionally committed acts of sexual
penetration with the complainant, namely: Ms [M……]
[I…….]
[R……..], 17 years of age, by
penetrating her vagina more than once with his penis without her
consent. It was further
alleged that by doing so, he contravened the
provisions of sec 3 Sexual Offences and Related Matters Act 32/2007
read with other
specified statutory provisions thereof, sec 94
Criminal Procedure Act 51/1977 read with other specified statutory
provisions thereof
as well sec 51 Criminal Law Amendment Act 105/1997
read with part (iii) schedule (2) thereto.
[4] He was tried in the Welkom Regional
Court where his trial commenced on the 3 June 2014. He pleaded not
guilty. He chose to
give no explanation of his plea. Ms. B.R.
Lefenya, regional magistrate, presided. Mr. Mbale appeared for the
state and Mr. Setheisho
for the defence. He was later replaced by
Ms. Mokhele.
[5] On 20 May 2015 the regional
magistrate’s verdict was that the accused was guilty of raping
the complainant. On the same
day the prescribe minimum sentence of
life imprisonment was imposed on him.
[6] The appellant had an automatic
right in terms of sec 309 Criminal Procedure Act 51/1997 to appeal.
He elected to exercise his
right as regards sentence only. The
appellant’s notice of appeal was filed on 2 June 2015. Among
others, the grounds of
appeal were that the sentence of life
imprisonment was exceedingly severe, shockingly harsh and thus
strikingly inappropriate because,
so the appellant contended, the
court a quo failed to attach due weight to certain mitigating factors
or to take some of them into
account.
[7] The question before us was whether
the sentence imposed on the appellant was strikingly inappropriate
given the peculiar circumstances
of this particular case.
[8] Mr. Van der Merwe counsel for the
appellant, submitted that the court a quo erred in imposing the
prescribed minimum sentence
of life imprisonment since substantial
and compelling circumstances existed which justified deviation from
the prescribe minimum
sentence. Accordingly counsel urged us to
uphold the appeal.
[9] However, Mr. Strauss, counsel for
the respondent differed. He submitted that there was no material
misdirection by the trial
court. Counsel argued that the sentence
was not excessively harsh and that a severe sentence was justified in
casu in view of
the prevalence of the crime of gang raping. He
stressed that numbers of such gangs have to be deterrantly punished
to demonstrate
that the courts were determined to protect women.
[10] In sentencing the appellant the
following mitigating factors were taken into account:
10.1 He was 27 years of age;
10.2 He educationally progressed up to
grade 8;
10.3 He was employed as a scrap metal
collector and earned R2000 per month;
10.4 He was a bachelor without any
children;
10.5 He maintained his minor brother
because his parents were deceased;
10.6 He was arrested on 14 November
2013 and he remained incarcerated ever since then;
10.7 He was a first rape offender.
[11] In sentencing the appellant the
following aggravating factors were taken into account:
11.1 The nature and the gravity of the
crime he committed;
11.2 The prevalence of the crime of
gang raping in the region;
11.3 The complainant was a relatively
young, defenceless and vulnerable woman of 17 years of age;
11.4 The appellant and his
co-perpetrator were armed with knives with which they threatened to
stab her if she yelled or reported
the incident to the police;
11.5 He raped the complainant initially
inside the first shack from where she was shifted and later raped her
outside the second
shack;
11.6 He also actively helped his
co-perpetrator to do likewise on both scenes of the crime;
11.7 The appellant remained remorseless
even after the verdict;
11.8 He attacked and stabbed a young
man, [T……], because he had given his name and that of
his accomplice to the complainant.
[12] After considering the mitigating
factors and the aggravating factors, the regional court concluded
that there were no substantial
and compelling circumstances present
to justify deviation from the prescribed minimum sentence. In line
with that conclusion the
court sentenced the appellant to life
imprisonment.
[13] I share the view that rape is a
repulsive crime. It humiliates and degrades the human dignity of a
woman. It is an assault
of a particularly vicious nature on the
bodily integrity of a woman’s femininity. See S v S
1995 (1)
SACR 50
(ZS) at 61d. It is also an assault of a particularly
emotional nature on the soul of a woman.
[14] The appellant and his accomplice
were prowling the streets of Hani Park. They were looking for
defenceless girls to prey on.
They came across the unsuspecting
complainant and her companion Ms. [M……] [L……].
Acting on a predatory
impulse, they pounced upon the complainant.
They threatened to stab her with knives if she resisted. They pulled
her away from
her companion. She managed to break loose and ran into
a certain house. They chased her, audaciously entered the house and
pulled
her out.
[15] Girls and woman must be protected
from those men who act like predators and audaciously prey on them.
Helpless girls like
the complainant look up to the courts to provide
them with meaningful protection from the rapists. The courts must,
therefore,
demonstrate, through the sentences they impose, that they
are determined to protect the dignity, equality and freedom. Those
who
invade those rights must get a clear message that the courts will
not flinch to deterrantly, and if necessary retributively, punish
them – S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 5e.
[16]
In the absence of a material
misdirection, we cannot approach the question of sentence as if we
were the court of first instance.
To do so would boil down to
usurping the sentencing discretion entrusted to the trial court. S v
Malgas
2001 (1) SACR 496
(SCA) at 478 d-e. We are, therefore, called
upon to ascertain whether there was a material misdirection during
the adjudicative
sentencing process in the current matter.
[17] The complainant was taken to
Bongani Hospital where she was examined by Sr. M.T. Ceba, the
forensic nurse. She found that
clinically there were no visible
fresh injuries sustained by the complainant. Her genetical
examination revealed a white thick
slightly bloodstained mucus. The
mucus was a vaginal discharge she noted. The forensic nurse further
noted that the complainant
was emotionally calm at the time of the
examination. Although she did not manifest an emotional state of
distress, she had earlier
tearfully and hurtfully reported to Mrs.
[M……..] [L……], her companion, that the
two men had raped her.
The complainant testified about 22 months
after the incident, on 9 October 2014 to be precise. The trial
magistrate asked her
about the emotional impact of the rape on her.
Her answer was that it did not bother her anymore unless rape
featured on television.
She said that when that happens then she
gets occasional flashbacks of the incident.
[18] About those peculiar circumstances
of this particular rape case the trial magistrate assessed those
factors as follows:
“There is argument by the defence
that complainant did not sustain injuries. In my mind (sic)
complainant was only spared
injuries not because of accused’s
actions, but because she submitted and avoided further injuries.
There is no way that
a person could have endured that kind of act and
not suffer injuries, especially in the hands of people like accused.
It is just
that (sic) complainant did not suffer visible physical
injuries, that are visible to the naked eye. She was however
traumatised
we heard her testifying and the fact that she testified
that her mother is going on trying to console her, means that she was
definitely
traumatised …”
[19] In S v SMM
2013 (2) SACR 292
(SCA)
the appellant was convicted of rape of a teenage girl 4 years younger
than the complainant in the instant case. As in this
case he was
sentenced to life imprisonment. As in this case the complainant did
not suffer any serious or permanent injury. Denied
any credit for
that mitigating factor, among others, he successfully appealed.
[20] In S v Nkawu
2009 (2) SACR 402
(ECG) para [17] Plasket J was called upon to consider whether the
courts were legislatively precluded by sec 51(3)(aA)(ii) Act
No
105/1997 from including, in the same collective basket of factors
relevant to the enquiry on substantial and compelling circumstances,
the previously and traditionally relevant factor where the rape
offender had inflicted no serious and permanent physical injuries
on
the rape victim. Plasket J generously interpreted the penal section
in a way favourable to the rape offender.
[21] In S v Mabitse
2012 (2) SACR 380
(FB) this court said, per Rampai J et Molemela J:
At para [17]:
“Just as the courts should
realise that emotional scarring is likely to differ in kind and
degree from one case to the next
(Jones J in S v Booysen supra, at
para 7), so too must the courts realise that physical scarring is
likely to differ in kind and
degree from one rape case to the next.
The physical injury symbolises the measure of violence the
perpetrator unleashed on a victim.
The greater the degree of severity
of the rape victim's physical injury, the greater the degree of the
rapist's moral blameworthiness.
I am of the firm view that dictates
of justice demand that, in meting out sentence, differentiation be
made, based on the degree
of violent and brutal force used.”
At para [18]:
“If the presence of physical
injury is properly treated as a factor which aggravates sentence,
then the absence thereof must
necessarily be treated as a factor
which mitigates sentence. If it can mitigate, then it qualifies, not
singularly but collectively,
along with other such factors, for
inclusion in the melting pot of consideration in order to make a
determination in terms of s
51(3) regarding the existence or
otherwise of substantial and compelling circumstances — Plasket
J in S v Nkawu supra, at
para 17.”
[22] The decision of S v Mabitse, supra
was applied by this court in S v Mokoena (A323/2010)
[2012] ZAFSHC 12
(9 February 2012) para [29-0]. Both decisions were informed by the
reasoning of Plasket J in S v Nkawu, supra, para 17 which was
authoritatively approved and applied in S v SMM
2013 (2) SACR
292(SCA).
To the extent that the regional court
excluded the apparent lack of serious and permanent physical
injuries, it materially erred,
with respect.
[23] Quite apart from the absence of
visible injuries, it also appeared that, over and above the emotional
hurt which the complainant
inevitably and contemporaneously must have
experienced, there was no concrete evidence of the teenage girl
suffering any persistent
trauma. The apparent lack of on-going
trauma or emotional damage was also misdiagnosed. To find that the
complainant was definitely
traumatized without any evidence that she
was and without the slightest indication of the adverse impact or
consequences of her
on-going emotional state of distress, was a clear
misdirection in my respectful view.
[24] In S v GK
2013 (2) SACR 505
(WCC)
para 22 Rogers J said:
“I am sure that the court was
alive to the fact that rape is always likely to be accompanied by
some emotional or psychological
trauma, but the absence of clear
evidence of significant trauma of that kind was clearly regarded by
the court, in conjunction
with other factors, as militating against
the imposition of the most severe sentence.”
In casu, as in that case, there was no
evidence of significantly persistent trauma.
[25] The appellant was a first rape
offender. Although he did not have a clean criminal record, he was
not shown to be likely to
re-offend society. Of course this cannot
be confidently predicted by anyone. His status as a first offender
coupled with the
apparent lack of evidence that he was likely to rape
again were material considerations. They should not be lightly
treated.
He acted aggressively and violently to certain members of
the public on the day in question. However, his actions did not
suggest
that he had the propensity to commit violent crimes. Both
Ms. [L……] and Ms. [S……] testified that
the
appellant and his accomplice were very intoxicated on the day of
the incident. As a matter of fact, it was on the strength of their
state of intoxication that they were positively identified by Ms.
[S……]. To write the appellant off as an irredeemable
recidivist, was unduly harsh given the peculiar circumstances of this
particular crime.
[26] There is one further consideration
that must be brought to account. The appellant’s accomplice
pleaded guilty. Because
he did, the trial was separated. He was
convicted on his plea and sentenced to 10 years imprisonment. The
record of his trial
was not before us. We were given to understand
that those facts were correct and true by counsel for the appellant.
The information
was confirmed by counsel for the respondent.
[27] The appellant was subsequently
convicted of the same rape and sentenced to life imprisonment as we
know. What accounted for
the enormous disparity between the very
severe and ultimate sentence imposed on the appellant and the very
lenient sentence imposed
on his accomplice no-one could tell. The
disparity created the impression, in the eyes of the public at least,
that the appellant
was harshly punished because he, unlike his
accomplice, dared to plead not guilty.
[28] A perception must never be created
that in exercising a constitutional right by pleading not guilty an
accused risks having
a heavier sentence imposed on him than otherwise
would have been the case. I hasten to add that the trial court was,
in all probabilities,
unaware of the sentence imposed on the
appellant’s accomplice. Therefore, I must not be misunderstood
to mean that the enormous
disparity between the two sentences
constituted a misdirection by the trial court. What I say is that
justice was not seen to
have been done.
[29] Viewed as a whole the only
features that the evidence disclosed as having materially aggravated
what is inherently a serious
crime, were the following, the fact that
the appellant was not in it alone; the fact that he violated the
complainant twice and
the fact that his accomplice also violated her
twice. But all those were objective features of the crime on the
basis of which
their actions were categorized in the higher regime of
rape.
[30] In S v Vilakazi
2009 (1) SACR 552
(SCA) para 16 Nugent JA dismissed, as incorrect, the submission that
the prescribed minimum sentence should, as a rule, ordinarily
be
imposed. The judge was at pains to explain what the Malgas decision
really meant.
“What it said is that a court
must approach the matter ‘conscious [of the fact] that the
Legislature has ordained [the
prescribed sentence] as the sentence
that should ordinarily and in the absence of weighty justification be
imposed for the listed
crimes in the specified circumstances’
”.
The question is: Was there or was
there no weighty justification?
[31] I am satisfied, after
consideration of all the peculiar circumstances of this particular
case, that weighty justification exists
that renders the prescribed
minimum sentence of life imprisonment unjust. I have earlier alluded
to the factors which significantly
justified that conclusion. I have
weighed up the mitigating factors against the aggravating factors.
Given the peculiar circumstances
of this particular case, I am of the
firm view that the sentence of life imprisonment imposed on the
appellant by the regional
court was exceedingly disproportionate to
the offence. To make him pay for his crime with the remainder of his
life would seem
to be grossly disproportionate to the crime he
committed.
[32] The material misdirections earlier
alluded to warrant appellate interference. We are, therefore, at
liberty to set aside the
disproportionate sentence and to sentence
the appellant afresh. A substantial sentence of 18 years
imprisonment appeared to me
to be sufficient to deterrantly bring the
message home to the appellant about the gravity of the offence and to
exact sufficient
measure of retribution for his crime. I have
already factored in the period of his pre-sentencing incarceration.
[33] In the result the following order
is made:
33.1 The appeal against the sentence is
upheld;
33.2 The sentence of life imprisonment
is set aside and it is substituted with the sentence below;
33.3 The appellant is sentenced to 18
years imprisonment;
33.4 The sentence is antedated to 20
May 2015.
M.H. RAMPAI, J
I concur
L.J. LEKALE, J
On behalf of appellant:Attorney P.L.
van der Merwe
Instructed by: Bloemfontein Justice
Centre
Bloemfontein
On behalf of respondent: Adv. M.
Strauss
Instructed by: Director of Public
Prosecutions
Bloemfontein