About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2013
>>
[2013] ZAGPPHC 48
|
|
Khoza v S (A144/2011) [2013] ZAGPPHC 48 (13 February 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NUMBER:A144/2011
DATE:13/02/2013
DANIEL
MOSES KHOZA
…............................................
Appellant
and
THE
STATE
…..................................................................
Respondent
JUDGMENT
MAGARDIE
AJ
1.
The Appellant, a 42 year old male person, was arraigned before the
Benoni Regional Court on three counts of rape. One of the
counts was
with aggravating circumstances in that the prosecution alleged that
the victim was gang raped, whereas the other two
counts were ordinary
rape charges.
2.
The Appellant pleaded guilty to all three counts. It transpired
during the reading of the plea that the Appellant admitted to
repeated rape of the victims in respect of counts 1 and 3. In count 2
the Appellant assisted his friend to rape the victim whereafter
the
Appellant also raped the victim.
3.
After the reading of the plea, the court a quo was satisfied with the
plea explanation of the Appellant and accordingly convicted
the
Appellant on the three counts of rape.
4.
The prosecution informed the court a quo that the Appellant had a
previous conviction. However, there were no SAP69 proving such
previous conviction that were handed in during the proceedings. It
appears from the record that, at the time of the proceedings,
the
Appellant was already sentenced to a term of life imprisonment for
rape during July 2010.
5.
The charges of which the Appellant was convicted are visited with
life imprisonment in terms of the provisions of the
Criminal Law
Amendment Act 105 of 1997
unless the trial court were to find that
there were substantial and compelling circumstances warranting the
departure from the
prescribed minimum sentences. In this case, the
court a quo was not presented with any substantial and compelling
circumstances
to justify the departure from the prescribed sentences.
Accordingly, the court a quo imposed a term of life imprisonment on
each
count.
6.
It appears that the court a quo informed the Appellant that he did
not need to make an application for leave to appeal against
the
sentence, the Appellant only needed to file a notice of appeal. In
terms of the provisions of section 309B of the Criminal
Procedures
Act 51 of 1977 as amended, “any accused person who wishes to
note an appeal against any conviction or resultant
sentence ... must
apply to that court for leave against that conviction, sentence or
order”. The record reflects that the
Appellant made an
application for leave to appeal on 22 November 2010. However, there
is no record of what became of the application
or whether the
application was ever decided at all. What followed was an application
for condonation to the court a quo for the
late filing of the Notice
of Appeal. Again, there is no indication of what became of the
subsequent application as well. Be that
as it may, the Appellant
petitioned this court for leave to appeal and same was granted by
Justices Molopa-Sethosa and Mothle.
7.
I indicated herein before that, from the record of the proceedings in
the court a quo, there were no substantial and compelling
circumstances that were presented before the court a quo to persuade
it to depart from the imposition of the prescribed minimum
sentence
of life imprisonment.
8.
Section 51(2) of Act 105 of 1997 makes provision for imposition of
discretionary minimum sentences for a person convicted of
an offence
listed under Part II, Part III and Part IV of Schedule 2. Rape
committed in circumstances where the victim was raped
more than once,
whether by an accused or a co-perpetrator or an accomplice is not one
of the offences listed under Parts II, III
and IV of Schedule 2.
9.
It is clear that Act 105 of 1997 brought about extra ordinary
sentencing regime in that it provides for the imposition of minimum
sentences for certain offences which the lawmaker considered to be
serious to warrant extraordinary sentences than the ones that
the
courts would ordinarily be inclined to impose for such offences.
10.
It is trite that a court of appeal will not easily interfere with any
sentence properly imposed unless the sentence evokes a
feeling of
shock or .outrage, or the sentence is grossly excessive or
insufficient, or if the sentence is totally out of proportion
with
the gravity of the offence, or the trial court did not exercise its
discretion properly.
11.
In the event that the appeal court finds that the trial court did not
exercise its discretion reasonably, it will interfere
with the
sentence. Such will happen if the misdirection of the trial court was
of such a nature, gravity or degree that the only
conclusion that can
be reached is that the trial court did not exercise its discretion
properly. In this regard, the appeal court
would ordinarily assess
the sentence with a view to determine whether there is a stark
difference between the sentence of the trial
court and that which the
appeal court would have imposed. Even in incidents where there is no
misdirection on the part of the trial
court, the appeal court can
still interfere with the sentence of the trial court.
12.
In this case, the Appellant has a previous conviction, having been
convicted of a similar offence during July 2010 and sentenced
to life
imprisonment. It is not clear from the record as to when the offence
for which the Appellant was previously convicted was
committed. The
three counts of which the Appellant was convicted were committed
between 06 April 2008 and 26 August 2008. If anything,
that alone is
an aggravating factor.
13.lt
is indeed so that the Appellant pleaded guilty to the three counts of
rape herein. However, his guilty plea does not amount
to substantial
and compelling circumstances contemplated in the provisions of
section 51(3)(a) of Act 105 of 1997.
14.
During the hearing of this appeal the Appellant's counsel conceded
that no substantial and compelling circumstances were advanced
before
the court a quo. I must also add that, in fact, the Appellant's heads
of argument do not advance any reason why a lesser
sentence should
have been meted out to the Appellant. On the contrary, the
Appellant’s counsel argues that “it is respectfully
submitted that the legal representative in the trial court did not
forward any convincing factors to the trial court which would
render
the prescribed sentences of life imprisonment disproportionate... In
the light of the reported case law, no further convincing
argument
can be forwarded to the Honourable Court.”
15.lt
is apposite to mention that the Appellant’s counsel argued that
the Appellant’s personal circumstances do not
qualify as being
substantial and compelling circumstances to justify the imposition of
a sentence lesser than life imprisonment.
In fact, the court a quo
considered the question of the existence or otherwise of substantial
and compelling circumstances in this
case and found that such did not
exist.
16.
I agree with the Appellant’s foregoing submissions and the
court a quo’s findings about the absence of substantial
and
compelling circumstances which would have justified departure from
the life sentences imposed herein.
17.
lt is so that the Appellant pleaded guilty to all the charges against
him. The Appellant was 42 years of age at the time of
his sentence.
The prevalence of this kind of offences cannot be over emphasised. Of
course, rape is a serious act of violation
of a woman’s
dignity. I cannot overemphasise that this kind of an offence is very
prevalent within our society and women
look up to the courts for
protection. There can be no dignified or undignified rape, rape
remains a crime and an act of women violation
that must be punished
with appropriate penalty.
18.
In S v Malgas
1
it was decided that, in dealing with the imposition of the prescribed
minimum sentences, the court was still required to apply
its mind to
the question whether the sentence was proportional to the offence.
This approach was also echoed in the matter of S
v Vilakazi.
2
19.1
have not been presented with any argument or reason why this court
should interfere with the sentence imposed by the court
a quo. In the
result, the appeal is dismissed.
MAGARDIE
AJ
I
agree and it is so ordered.
PRELLERJ
1
2001
(1) SACR 469
SCA
2
2009
(1) SACR 552
SCA