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
>>
2014
>>
[2014] ZAFSHC 241
|
|
Molibeli v S (A175/2014) [2014] ZAFSHC 241 (11 December 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal No.:
A175/2014
In the appeal of:
LEFA
CHARLES MOLIBELI
…..................................................................................
Appellant
and
THE
STATE
…............................................................................................................
Respondent
CORAM
:
VAN DER MERWE, J
et
MURRAY,
AJ
JUDGMENT
:
VAN DER MERWE, J
HEARD
:
27 OCTOBER 2014
DELIVERED
:
11 DECEMBER 2014
[1] The appellant
was convicted in the regional court of rape of a seven year old girl
and sentenced to life imprisonment. His appeal
is only against the
sentence.
[2] The
circumstances of the commission of the crime are that whilst the
complainant was playing with other children in a street,
she was
called by the appellant. The appellant was known to her. The
appellant gave her money and requested her to go to a shop
to buy
bread. When she returned with the bread, the appellant pulled the
complainant into his house and undressed her. He also
undressed and
placed the complainant on a bed. He got on top of her and inserted
his penis into her vagina to some extent but according
to the
complainant “. . . he did not insert it properly’. She
only suffered injury to the skin of the inside of her
thighs. The
appellant then dressed her, gave her 50 cents and said that she could
leave. There is no evidence of serious or lasting
mental injury to
the complainant.
[3] The appellant
was 51 years old at the time of the trial. He has no previous
convictions. He was employed by a refuge removal
contractor and
earned R2 000 per month. He has no dependants.
[4] As the appellant
raped a girl under the age of 16, a sentence of life imprisonment was
prescribed by the
Criminal Law Amendment Act 105 of 1997
and had to
be imposed unless substantial and compelling circumstances justified
departure therefrom. The trial court found no substantial
and
compelling circumstances and the question on appeal is whether we are
convinced that this finding is wrong.
[5] Substantial and
compelling circumstances must be considered against the background
that the legislature has ordained a particular
prescribed sentence.
The prescribed sentence may therefore not be departed from on flimsy
or unconvincing grounds. Substantial
and compelling circumstances are
present when in all the circumstances of the particular case, the
prescribed sentence is disproportionate
to the crime, the offender
and the interests of society and therefore unjust.
[6]
That the appellant reached the age of 51 without any previous
conviction and was gainfully employed, indicate prospects of
rehabilitation. Minimal penetration took place and the complainant
suffered slight physical injury. In S
v
SMM
2013
(2) SACR 292
(SCA) para 26 it was confirmed that a literal
interpretation of
s51(3)(aA)(ii)
of Act 105 of 1997 would render it
unconstitutional and that a court sentencing for rape is not
precluded from taking into consideration
the fact that the rape
victim has not suffered serious or permanent physical injuries.
Importantly, although the incident was obviously
traumatic for the
complainant, there is no evidence of any serious or lasting mental
injury to the complainant. In my judgment
the cumulative effect of
these factors are that the sentence of life imprisonment is
disproportionate in the circumstances and
unjust. Nevertheless the
circumstances call for a heavy sentence. Taking into account that the
appellant spent approximately a
year in custody before sentence, a
sentence of 19 years’ imprisonment appears to me to be
appropriate in the circumstances.
[7] The appeal
against sentence succeeds. The sentence of life imprisonment is set
aside and replaced with a sentence of 19 YEARS’
IMPRISONMENT
which must be deemed to have been imposed on 19 July 2012.
C H G VAN DER
MERWE, J
H MURRAY, AJ
On
behalf of the appellant:
Adv
S Kruger
Instructed by:
The
Bloemfontein Justice Centre
BLOEMFONTEIN
On
behalf of the respondent:
Adv
J H S Hiemstra SC
Instructed
The
Director of Public Prosecutions
BLOEMFONTEIN