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[2013] ZAGPPHC 53
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Majola v S (A318/2011) [2013] ZAGPPHC 53 (14 February 2013)
NOT
REPORTABLE
NORTH
GAUTENG HIGH COURT PRETORIA
CASE
NO: A318/2011
DATE:12/02/2013
In
the matter between:
THEMBA
SIMON
MAJOLA
….....................................................
Appellant
and
THE
STATE
...................................................................................
Respondent
JUDGMENT
TEFFO,
J:
[1]
The appellant was charged and convicted of one count of kidnapping,
one count of assault and one count of rape by the Regional
Magistrate, N K Mkwentla, sitting in the Regional Court, Sebokeng on
28 September 2009.
[2]
On the same date, 28 September 2009, the appellant was sentenced to 4
years imprisonment in respect of the kidnapping charge.
He was
cautioned and discharged in respect of the assault and sentenced to
20 years imprisonment in respect of the rape count.
The appellant was
also declared unfit to possess a firearm.
[3]
The court a quo did not order the sentences to run concurrently.
[4]
Leave to appeal against conviction and sentence was refused by the
trial court but granted on petition by this Court. The appellant
now
approaches this Court with an appeal against the conviction and
sentence.
[5]
According to the evidence the charges against the appellant arise
from an incident which occurred on 8 March 2009 where it is
alleged
that the appellant kidnapped, assaulted and raped Kedibone Anna
Mahlatsi (the complainant) more than once at his house
after he
forced her to his house by pulling, grabbing, slapping and kicking
her from the street where he met her and held her at
his house
against her will until the next morning.
[6]
It is also alleged that as the complainant was being pulled, grabbed
and assaulted by the appellant, she managed to get loose
from him and
ran to the house of Salamina Motaung (“Motaung”), the
appellant’s neighbour, to seek help. Despite
this the appellant
followed her and as a result Motaung locked the security gate.
[7]
Motaung testified that the complainant was crying and she told her
that she was seeing the appellant for the first time when
she asked
her if they had a love relationship. She corroborated the
complainant’s evidence in all material respects in relation
to
how she came to her house on the day in question, all what transpired
at her house while the complainant was there and how she
had to beg
the appellant to let the complainant go home until the appellant left
her yard and waited for the complainant outside.
Her further evidence
was that as she was taking the complainant out of her yard, she saw
the appellant grabbing and pulling the
complainant from her yard to
his while he was also assaulting her until he opened his house and
pulled her inside.
[8]
Motaung also testified about the appellant’s attitude on the
day in question, the way he was angry, making noise at her
house
while he was pulling the security gate at her door. Further that she
could see that the complainant was in trouble and that
she did not
want to go with the appellant. She further explained that she could
not do anything to help her as she did not have
a cellphone and did
not want the appellant to beat her at her house. Her further evidence
was that nobody could assist the complainant
at her street because
most of the houses are owned and occupied by elderly people.
[9]
Dr Baluti Pandamali (“Pandamair) also gave evidence about what
he observed when he examined the complainant the next
day after the
incident. According to him she had bruises, her right forearm and
left cheek were swollen, and she also had an abrasion
on her mouth.
He also examined her private parts and found that her vagina was like
a clock. There was redness around the vagina
and a tear at 7 o’clock
around the hymen. He concluded that there had been forceful
penetration of the complainant’s
vagina. Accordingly the
complainant’s version was compatible with his findings. His
view was that in normal sexual intercourse
one would not find redness
around the vaginal area as that is caused by the friction between the
penis and the vagina.
[10]
The appellant’s version was that the complainant came to his
homestead and they had consensual sexual intercourse. He
admitted
that on the day in question he met the complainant at Extension 3 and
from there the two proceeded to Extension 7, in
Everton. On the way
they met three gentlemen and the complainant went to their house
which is next to his. When he went to fetch
her, she refused and he
left her there and went to his house. Later on the complainant
arrived at his house and told him that one
of those gentlemen was
forcing love from her and she told him that she does not love him
anymore. The complainant then agreed to
spend the night with him at
his house. They had supper and then went to the bedroom where they
had consensual sexual intercourse
three times that day and once in
the morning. He also led evidence to the effect that he had a love
relationship with the complainant
from the previous year of the
incident but she never spent a night at his house. Further that he
did not know that the complainant
was under the age of 16 years.
[11]
The appellant denied that the complainant was running away from him
when she ended up at Motaung’s house and maintained
that she
was running away from the gentlemen they met on their way. Later on
he changed and said the complainant was never chased.
He also denied
ever assaulting and kidnapping her.
[12]
When the matter was argued in court counsel for the appellant
conceded that the appellant was correctly convicted if one takes
into
account the evidence of Motaung who did not know her prior to the
incident and only saw her on the day of the incident when
she ran to
her house for help. He made a submission that Motaung’s
evidence corroborated the complainant’s evidence
in all
material respects. Motaung who is said to be the appellant’s
neighbour did not have any reason to implicate him in
this matter.
The court a quo correctly found that she was a good and honest
witness. The appellant’s version was full of
contradictions as
alluded to in the trial court’s judgment. The court a quo
correctly rejected his version as not being reasonably
possibly true
and it correctly found that the State proved its case beyond a
reasonable doubt against the appellant. I therefore
agree with the
appellant’s counsel that indeed the court a quo correctly
convicted the appellant on all three counts he was
facing and that
the court a quo did not misdirect itself in this regard.
[13]
I now turn to the appeal against sentence. It is trite law that in
every appeal against sentence, whether imposed by a magistrate
or a
Judge, the court hearing the appeal -
u(a)
should be guided by the principle that punishment is pre-eminently a
matter for the discretion of the trial court, and
(b)
should be careful not to erode such discretion : hence the further
principle that the sentence should only be altered if the
discretion
has not been judicially and properly exercised(S v Rabie
1975 (4) SA
855
(A) at 857D-F.)
[14]
Counsel for the appellant further submitted that the charge-sheet in
respect of the rape count, refers to s 51(2) of Act 105
of 1997 but
when the charge was read to the appellant for him to plead, the State
mentioned that the charge was read with the provisions
of s 51(1) of
Act 105 of 1997.
[15]
He argued that he cannot as such submit that the court a quo
misdirected itself with regard to the sentence on the rape charge
as
the court correctly found that there were substantial and compelling
circumstances that justified it to impose a lesser sentence
than life
imprisonment.
[16]
He further argued that the fact that there is no misdirection on the
part of the trial court does not mean that a higher court
would not
interfere and referred to the case of S v Malgas
2001 (1) SACR 469.
In the same breadth he submitted that the court a quo should have
ordered that the sentence on the kidnapping charge should run
concurrently with the sentence on the rape charge.
[17]
On the other hand counsel for the State submitted that although there
are differences in the two sections referred by the appellant’s
counsel, viz, s 51(2) and s 51(1) of Act 105 of 1997, the appellant
was not prejudiced when he pleaded as the State brought that
aspect
to the court’s attention. Further that there was no
misdirection on the court a quo and the sentence imposed is proper.
[18]
It is my view that the evidence led tallied with a rape charge that
is read with the provisions of s 51(1) of Act 105 of 1977
and this
was the charge to which the appellant pleaded. The appellant did not
plead to a charge of rape that is read with the provisions
of s 51(2)
of Act 105 of 1997. The court a quo correctly found that in terms of
the provisions of s 51(1) of Act 105 of 1997 which
prescribes a
minimum sentence of life imprisonment there were substantial and
compelling circumstances that justified it to impose
a lesser
sentence than life imprisonment and imposed a sentence of 20 years
imprisonment.
[19]
The State concedes that the trial court should have ordered that the
sentence on the kidnapping charge should run concurrently
with the
sentence on the rape charge.
[20]
Section 280 of Act 51 of 1977 as amended provides as follows:
“
(1)
When a person is at any trial convicted of two or more offences or
when a person under a sentence or undergoing sentence is
convicted of
another offence, the court may sentence him to such several
punishments for such offences, or, as the case may be,
to the
punishment for such other offence, as the court is competent to
impose.
(2)
Such punishments, when consisting of imprisonment, shall commence the
one after the expiration, setting aside or remission of
the other, in
such order as the court may direct, unless the court directs that
such sentences of imprisonment shall run concurrently.”
[21]
In S v Mate
2000 (1) SACR 552
(T) the court decided that where there
is a close link between offences the concurrence of sentences is
appropriate. When the elements
of one offence are closely bound up
with the elements of the other offence the concurrence of the
sentences should more particularly
be considered.
[22]
In the present matter the evidence reveals that the appellant
kidnapped the complainant in order to go and rape her. The kidnapping
and the rape of the complainant are closely linked and they flow from
the same incident. I am persuaded that the trial court should
have
ordered that the sentence in the kidnapping charge should run
concurrently with the sentence in the rape charge. This means
that
the appellant will effectively serve a sentence of 20 years
imprisonment. In my view the court a quo by not ordering the two
sentences to run concurrently as they flow from the same incident has
not judicially and properly exercised its discretion. I am
thus of
the view that this Court will be justified in intervening on the
sentence that has been imposed by the trial court.
[23]
In the premises I would make the following order:
1.The
convictions on all counts as imposed by the court a quo are
confirmed.
2.
The sentences of 4 years on the kidnapping charge and 20 years on the
rape charge are confirmed.
3. The sentence of 4 years on the
kidnapping charge is to run
concurrently with the sentence of 20
years on the rape charge.
4. The sentence in respect of the
kidnapping and the rape charge is antedated to 28 September 2009.
M
TEFFO
JUDGE
OF THE NORTH GAUTENG HIGH COURT, PRETORIA
I agree:
W
HUGHES
JUDGE OF THE NORTH GAUTENG HIGH COURT,
PRETORIA
HEARD
ON:28 JANUARY 2013
DELIVERED
ON:14 FEBRUARY 2013
COUNSEL
FOR APPELLANT:K P TLOUANE
TEL:
012 401 9200
INSTRUCTED
BY: PRETORIA JUSTICE CENTRE
REF:
TEL:
012 401 9200
COUNSEL
FOR RESPONDENT:C CHAUKE
TEL:
078 804 8012
INSTRUCTED
BY:THE DIRECTOR OF PUBLIC PROSECUTIONS
PRETORIA
REF: SA 46/2011
TEL:
012 351 6700