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[2014] ZAGPPHC 182
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Mtsweni v S (A716/2012) [2014] ZAGPPHC 182 (17 March 2014)
IN THE NORTH
GAUTENG HIGH COURT. PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
CASE
NO.A716/2012
DATE:
17 MARCH 2014
In the matter
between
VUSIMUZI
MTSWENI
........................................
Appellant
AND
THE
STATE
......................................................
Respondent
JUDGMENT
KGANYAGO AJ
[1J The appellant
was convicted by the Regional Magistrate on a charge of raping a 13
year old child. Although the learned Magistrate
appreciated that
minimum sentence was applicable, the appellant was sentenced to 20
years imprisonment.
[21 Leave to appeal
was granted on petition against sentence only on the 19th of August
2013.
[31 It is trite that
the question of sentence is best left in the discretion of the trial
court and that it should only be interfered
with if there is a
material misdirection or if the sentence is shocking or disturbingly
inappropriate.
[4] The minimum
sentencing regime arises from the provisions of
ss51
of the
Criminal
Law Amendment Act 105 of 1997
which provides:-
"51 Minimum
sentence for certain serious offences.
(I) Notwithstanding
any law but subject to ss(3) and (6) a High Court shall, if it has
convicted a person of an office referred
to in
Part I
of schedule 2,
sentence the person to imprisonment for life.
3(a) If any court
referred to in ss(I) and (2) is satisfied that substantial and
compelling circumstances exist which justify the
imposition of a
lesser sentence prescribed in those subsections, it shall enter those
circumstances in the record of the proceedings
and may thereupon
impose such a lesser sentence. ”
[51 Rape of a girl
under the age of 16 years is one of the crimes identified in
Part 1
of the schedule which carries the sentence of life imprisonment.
[61 The offence
which the appellant has been convicted of, is the one tor which
minimum sentence applies. The court cannot for flimsy
reasons deviate
from that. In SV Matyityi
[2010] ZASCA 127
at paragraph 23 the court
said the following: -
"Despite
certain limited success, there has been no real letup in the crime
pandemic that engulfs our country. The situation
continues to be
alarming. It follow that, to borrow from Malgas, it is no longer
business as usual, and yet one notices all too
frequently willingness
on the part of sentencing courts to deviate from the minimum
sentences prescribed by the legislature for
the flimsiest
reasons-reasons, as here, that do not survive scrutiny. As Malgas
makes plain courts have a duty, despite any personal
doubts about
ejficacy aversion to it, to implement sentences. ”
[7] In his judgment
on sentence, the learned Magistrate dealt extensively with all the
relevant aggravating and extenuating circumstances.
He considered the
mitigating factors and evaluated them properly before he came to the
conclusion that substantial and compelling
circumstances exists which
justify the departure from imposing the minimum sentence.
[8] The appellant
was in a position of trust and should have been the one who should
here protected the complainant. The complainant
was an innocent,
vulnerable and defenseless person who was looking upon for protection
from the appellant, yet the appellant has
betrayed her. When offences
of this nature are committed against the vulnerable and defenseless,
society looks upon to the courts
for protection.
[91 Under the
circumstances in my view, the learned Magistrate did not misdirect
himself in sentencing the appellant to 20 years
imprisonment. The
sentence of 20 years
imprisonment is not shocking or disturbingly inappropriate under the
circumstances.
[ 10] In the result
1 make the following order:-
(1) The appeal is
dismissed and the sentence is hereby confirmed.
M F KGANYAGO
ACTING JUDGE OF
HIGH COURT
I agree
PRELLER
JUDGE OF THE HIGH
COURT