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South Africa: North Gauteng High Court, Pretoria
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[2014] ZAGPPHC 461
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Manana v S (A720/2013) [2014] ZAGPPHC 461 (3 April 2014)
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REPUBLIC
OF SOUTH AFRICA
GAUTENG
DIVISION OF THE HIGH COURT, PRETORIA
CASE
NO: A720/2013
DATE:
3 APRIL 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter
between:
JABU
GIVEN
MANANA
....................................................................................................................
Appellant
and
THE
STATE
......................................................................................................................................
Respondent
JUDGMENT
KGANYAGO AJ
1]
The appellant pleaded guilty on three counts of housebreaking with
the intent to rape and rape in the Regional Court, Amersfoort,
Mpumalanga.
The appellant was
legally represented. The appellant was convicted based on his written
plea explanation in terms of section 112(2).
For the purpose of
sentence, all the three courts were taken together and life
imprisonment was imposed.
[2] After his
conviction and sentence, the appellant lodged an application for
leave to appeal on both conviction and sentence.
The trial court
granted leave to appeal without specifying whether leave was granted
against conviction or sentence or both.
[3] According to the
charge sheet, the dates on which and the places where the relevant
acts in respect of the three charges were
allegedly committed were as
follows:-
Count 1 - On the 3
rd
of October 2010 and at or near Ezamokuhle, Amersfoort, in the
district / Regional division of Mpumalanga the appellant did
unlawfully
and intentionally and with the intent to rape, break open
and enter the house of Q[...] BN M[...] where the appellant did
unlawfully
and intentionally commit an act of sexual penetration with
the complainant to wit, Q[...] B[...] N[...] M[...] a 20 year old
woman
by penetrating her vagina with his penis without her consent.
[4] Count
2 - on the 3
rd
of October 2010 at or near Amersfoort in
the district/regional division of Mpumalanga, the appellant did
unlawfully and intentionally
and with the intent to rape, break open
and enter the house of N[...] M[...] where the appellant did
unlawfully and intentionally
commit an act of sexual penetration with
the complainant to wit, N[...] M[...] a 17 year old girl by
penetrating her vagina with
his penis without her consent.
[5] Count 3 - On the
14
th
of April 2011 and at or near Ezamokuhle, Amersfoort
in the district/regional division of Mpumalanga, the appellant did
unlawfully
and intentionally and with intend to rape, break open and
enter the house of X[....] H M[...] where the appellant did
unlawfully
and intentionally commit an act of sexual penetration with
the complainant to wit, X[...] H[...] M[...] a 14 year old girl by
penetrating
her vagina without her consent.
[6] According to the
appellant’s grounds of appeal, he was not afforded an
opportunity to secure a legal representative of
his choice. At trial
he was told to plead guilty and not waste the court’s time as
he would be sentenced to life imprisonment.
According to the
appellant he did not commit the charges that were levelled against
him.
[7] Counsel for the
appellant conceded during the hearing of the appeal that the
appellant in his statement in terms of section
112 (2) has admitted
all the elements of the offences, was legally represented and was not
forced to plead guilty. Counsel for
the appellant further conceded
that the appellant has been correctly found guilty and sentenced.
[8] However, counsel
for the appellant contends that on court 1 and 2, the appellant
should have been found guilty on one count
of housebreaking as there
was only one entry. Counsel for the respondent conceded that on Count
1 and 2 there was one entry and
the appellant should have found
guilty of one housebreaking. However, the victim in count 2 was also
raped after the appellant
had broken into her home and the crime
committed in her case was also a housebreaking with the intent to
commit rape and rape.
The number of actual housebreakings is a purely
academic question and of no consequence.
[9] It is common
cause that the appellant pleaded guilty to all the three counts of
housebreaking with intend to rape and rape.
The appellant was legally
represented. There is no evidence that his legal representative was
incompetent. The DNA test results
linked the appellant to the
offences which it is alleged that he had committed. There is no
evidence that he was forced to plead
guilty
[10] Under the
circumstances, in my view the trial court has correctly found him
guilty in accordance with his guilty plea.
[11] With regard to
sentence, on count 3, the appellant has been convicted of a rape of a
girl under the age of 16 years for which
the minimum sentence is one
of life imprisonment. On counts 1 and 2 the minimum sentence of life
imprisonment is not applicable.
If the court were to interfere with
either of the sentences, it was going to be problematic as the three
counts were taken together
for purposes of sentence. It would have
been preferable to impose a separate sentence on each count.
[12] However, since
imprisonment for life was imposed on count 3, any interference with
the sentence on the other counts will have
no practical effect. There
are no substantial and compelling circumstances that warrant the
court to deviate from the minimum sentence
imposed. The court cannot
for flimsy reasons deviate from the prescribed sentence. See S v
Matyityi
[2010] ZASCA 127.
[13] Under the
circumstances, the sentence imposed is not shocking or disturbingly
inappropriate.
[14] In the result I
purpose the following order:-The appeal is dismissed.
M
F KGANYAGO
ACTING
JUDGE OF THE GAUTENG
HIGH
COURT, PRETORIA
I agree
F G PR&LLER
JUDGE OF THE HIGH
COURT, PRETORIA