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2014
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[2014] ZAFSHC 171
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Mofokeng v S (A95/2014) [2014] ZAFSHC 171 (18 September 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal
No: A95/2014
DATE:
18 SEPTEMBER 2014
In the matter
between:-
SELLO DAWID
MOFOKENG
..................................
Appellant
And
THE
STATE
.........................................................
Respondent
CORAM: MOLOI, J
et POHL, AJ
JUDGMENT
BY: POHL, AJ
HEARD ON:15
SEPTEMBER 2014
DELIVERED ON:18
SEPTEMBER 2014
INTRODUCTION:
[1] This is an
appeal by the appellant against the sentence of ten years
imprisonment imposed on him by the regional court. The
appellant was
convicted of one count of rape in terms of the provisions of section
3 of the Criminal Law Amendment Act, Act 32
of 2007. At all relevant
times hereto, the appellant was legally represented.
FACTUAL MATRIX:
[2] The complainant
was 39 years of age at all relevant times hereto.
[3] Although the
appellant had a previous conviction of theft, he was sentenced as a
first offender. He was charged and convicted
of only one count of
rape, although the allegation in the charge sheet was that he had
intercourse with the complainant three times.
The complainant’s
evidence was to the effect that the appellant had intercourse with
her and soon thereafter penetrated
her vagina with his finger and
once again soon thereafter had intercourse with her again. From the
court a quo’s judgment,
it is clear that the court considered,
correctly so, the abovementioned three actions as one continuous act
of rape.
[4] In the premises,
the prescribed minimum sentence that is and was applicable, is one of
no less than ten years imprisonment,
unless substantial and
compelling circumstances existed, which could have justified the
imposition of a lesser sentence - section
51(2)(b) of the Criminal
Law (Sentencing) Amendment Act, Act 105 of 1997. The court a quo
found that there were no substantial
and compelling circumstances
justifying the imposition of a lesser sentence.
[5] The appellant’s
personal circumstances were duly taken into account by the court a
quo. These were as follows:
He was 27 years old
at the time of the sentencing. He had one child of 5 years old and
the child resided with the appellant’s
mother. Appellant
supported the child at the time of his arrest. He was employed and
earned a salary of R1 180.00 as a farm labourer.
Appellant attended
school up to Grade 9.
[6] The complainant
had no physical injuries as a consequence of the rape and no evidence
of permanent or serious emotional trauma
was placed on record. The
court a quo also accepted that the appellant had consumed
intoxicating liquor on the day in question.
The court a quo accepted
that it is an aggravating factor that the complainant will for ever
be reminded of the rape incident
and furthermore took into account
that there is a public outcry against crimes of this nature, hence
the prescribed minimum sentence.
THE RELEVANT
LEGAL PRINCIPLES
[7] In the decision
of S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) the following dicta appears at p
5b – c:
“Rape is a
very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the
dignity and the
person of the victim.”
The court then went
further and at p 5e the court found as follows:
“The Courts
are under a duty to send a clear message to the accused, to other
potential rapists and to the community: We are
determined to protect
the equality, dignity and freedom of all women, and we shall show no
mercy to those who seek to invade those
rights.”
The Supreme Court of
Appeal held in the decision of S v Malgas
2001 (1) SACR 469
(SCA) at
p 481j – 482a as follows:
“D. The
specified sentences are not to be departed from lightly and for
flimsy reasons. Speculative hypotheses favourable
to the offender,
undue sympathy, aversion to imprisoning first offenders, personal
doubts as to the efficacy of the policy underlying
the legislation,
and marginal differences in personal circumstances or degrees of
participation between co-offenders are to be
excluded.”
[8] Section
51(3)(aA) of the Criminal Law (Sentencing) Amendment Act, Act 105 of
1997, inter alia provides:
“(aA) When
imposing a sentence in respect of the offence of rape the following
shall not constitute substantial and compelling
circumstances
justifying the imposition of a lesser sentence:
(i) …
(ii) an apparent
lack of physical injury to the complainant;”
The Supreme Court of
Appeal however dealt with this issue and the true test as to whether
or not there should be a deviation from
the prescribed minimum
sentence, in the following way in the decision of S v SMM
2013 (2)
SACR 292
(SCA) at p 302 par [26] and [28]:
“[26] In
considering whether substantial and compelling circumstances existed
justifying departure from the prescribed sentence,
Plasket J was
called upon to consider the provisions contained in
s 51(3)(aA)(ii)
of the
Criminal Law Amendment Act 105 of 1997
, as far as the absence
of serious physical injuries to the complainant was concerned. That
subsection provides that when a court
sentences for rape 'an apparent
lack of physical injury to the complainant' shall not be regarded as
a substantial and compelling
circumstance. Plasket J expressed the
view, correctly as I see the matter that a literal interpretation of
that provision would
render it unconstitutional, since it would
require judges to ignore factors relevant to sentence in crimes of
rape, which could
lead to the imposition of unjust sentences. I agree
with the learned judge that 'to the extent that the provision
restricts the
discretion to deviate from a prescribed sentence in
order to ensure a proportional and just sentence it would infringe
the fair
trial right of accused persons against whom the provision
was applied'. 29 He correctly in my view concluded that the proper
interpretation
of the provision does not preclude a court sentencing
for rape to take into consideration the fact that a rape victim has
not suffered
serious or permanent physical injuries, along with other
relevant factors, to arrive at a just and proportionate sentence. To
this
one must add that it is settled law that such factors need to be
considered cumulatively, and not individually.
[28] Having weighed
the mitigating factors against the aggravating ones, the imposition
of the statutorily prescribed minimum sentence
by the high court was
in my view grossly disproportionate to the offence. This court is
therefore obliged to set it aside and impose
a fresh sentence. The
offence is, nonetheless, deserving of severe punishment so as to
convey the gravity of the offence and society's
justified abhorrence
thereof. I am of the view that a sentence of 15 years' imprisonment
would meet the objectives of sentencing
and would fit the crime, the
criminal and the needs of society. The appellant has been serving his
sentence since the date of sentencing,
namely 14 March 2011, and the
sentence should consequently be antedated accordingly.”
THE CRUX OF THE
APPEAL:
[9] The crux of the
appeal is the submission on behalf of the appellant that the court a
quo erred by finding that there were no
substantial and compelling
circumstances present to deviate from the prescribed minimum
sentence. It is submitted on behalf of
the appellant that these
circumstances were present and that the appropriate sentence would
have been eight years of imprisonment.
It is trite that when a court
of appeal considers the judgment of the court a quo, it should not
anxiously seek to discover reasons
adverse to the conclusions of the
court a quo. No judgment can ever be perfect and all-embracing, and
it does not follow that,
because something has not been mentioned,
therefore it has not been considered – Rex v Dhlumayo and
Another
1948 (2) SA 677
(A).
[10] It is to my
mind clear that an analysis of the magistrate’s judgment on
sentence shows that he contemplated the relevant
principles he was
required to in terms of the authorities referred to in paragraphs [7]
and [8], supra, despite the fact that he
did not refer to these
authorities by name. There is no indication that he did not exercise
his discretion correctly in respect
of the existence or not of
substantial and compelling circumstances. It cannot be found that on
the totality of the evidence and
all mitigating and aggravating
circumstances, that the magistrate’s imposition of the
statutory prescribed minimum sentence
of ten years imprisonment is
disproportionate to the offence.
ORDER:
[11] In the premises
the order that I make is the following:
1. The appeal is
dismissed.
L. le R. POHL, AJ
I concur.
K.J. MOLOI, J
On behalf of
appellant: Mr S. Kruger
Instructed by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On behalf of
respondent:Adv R. Hoffman
Instructed by:
Director of
Public Prosecutions
BLOEMFONTEIN
/spieterse