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
>>
2012
>>
[2012] ZAFSHC 12
|

|

Mokoena v S (A323/2010) [2012] ZAFSHC 12 (9 February 2012)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A323/2010
In the appeal between:-
TANKISO ABEL
MOKOENA
…................................................
Appellant
and
THE STATE
….......................................................................
Respondent
_____________________________________________________
CORAM:
RAMPAI, AJP
et
PHALATSI, AJ
_____________________________________________________
HEARD
ON:
6 FEBRUARY 2012
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
9 FEBRUARY 2012
_____________________________________________________
[1] This is an appeal.
The appellant Tankiso Abel Mokoena was tried as accused number one in
the Fouriesburg Regional Court. He
and his co-accused, Tankisa
Ambrose Mokoena pleaded not guilty to a charge of rape.
Notwithstanding their plea, both of them were
found guilty on 20
March 2009.
[2] On the same day they
were sentenced to life imprisonment. The appellant was aggrieved. He
now comes on appeal against the sentence.
His co-accused is not
before us. Therefore the appeal does not concern him.
[3] The appellant was
convicted of rape. The court
a quo
found that he and his
co-accused had raped Ms M G M at Mashaeng, Fouriesburg on 25 August
2007.
[4] The hearing started
on 9 June 2008. The two accused were legally represented. The version
of the prosecution was narrated by
Ms M.G. M, the victim and Ms B.A.
Masitha, the victim’s mother. In addition to their oral
testimonies, two documents were
exhibited in court as part and parcel
of the prosecution case,
viz
the medical report form j88
completed by Dr. M.B. Radebe and the sworn statement in terms of
section 212
Criminal Procedure Act 51 of 1977
made by Superintendant
H.C. Botha, the forensic analyst. The two documents were marked
exhibit “a” and exhibit “b”
respectively.
They were received as evidence with the consent of the defence. As a
result of the agreement, neither the doctor
nor the analyst
testified.
[5] After hearing the
testimony of the victim’s mother, the case was postponed for
further hearing. Meanwhile the DNA test
results became available. The
appellant was positively connected to the victim’s rape through
the DNA evidence. He then made
a formal admission. Thereupon the
state case was closed. The appellant did not testify. His version was
never told by any witness.
Obviously his earlier denials, which were
put to the witnesses through the lips of his legal representative,
fizzled into thin
air in the light of the forensic evidence and his
admission thereof.
[6] Having listened to
argument in mitigation and in aggravation of sentence, the regional
court found that no substantial and compelling
circumstances existed
to warrant deviation from the prescribed minimum sentence. Where, as
in this instance, a woman is raped by
two or more men, the prescribed
minimum sentence is life imprisonment –
section 51(1)
Criminal
Law Amendment Act 105 of 1977, as amended, read with Part I Schedule
2 thereto.
[7] The crisp question in
the case before us is whether, on the peculiar circumstances of this
case, the aforegoing finding of the
trial court was justified.
[8] On the one hand, Mr.
Reyneke submitted, on behalf of the appellant, that the trial court
erred in reaching the conclusion that
there were no substantial and
compelling circumstances. Therefore he urged us to uphold the appeal,
to nullify the sentence of
life imprisonment and to adjust the
sentence downwards.
[9] On the other hand,
Mr. Harrington submitted, on behalf of the respondent, that the trial
court was correct in coming to that
conclusion. Therefore he urged us
not to interfere.
[10] The trial court said
the following about the personal circumstances of the appellant:
“
Die
beskuldigdes se persoonlike omstandighede is aan die hof voorgehou.
Beskuldigde 1 het vorige veroordelings en dien hy ook tans

gevangenisstraf uit weens misdrywe wat nie met die onderhawige
misdryf verband hou nie. Daarom sal beskuldigde 1, soos beskuldigde

2, as ‘n eerste oortreder beskou word.”
[11] The sweeping
statement by the trial magistrate was unhelpful on appeal. It was not
enough to simply comment that in sentencing
an accused person, the
court has taken into account his personal circumstances as presented
to the court by his legal representative
or as placed on record. It
is of utmost importance that all the factors relevant to an
offender’s personal profile, be specified
by the sentencing
court itself in the sentence component of the trial proceedings. This
is particularly so in a case where the
crime committed attracts the
severest form of punishment, life imprisonment. It was not done in
this case.
[12] The trial court
fleetingly glossed over the appellant’s mitigating factors.
Where such mitigating factors are not so
specifically mentioned and
meaningfully assessed, considered and properly weighed up, a
reasonable perception or doubt is thereby
inevitably created that the
offender was not properly individualised before he was sentenced.
[13] It is of paramount
importance to have an offender adequately profiled before the
sentence is imposed. Unless this is seen to
have been done, it cannot
be said that the punishment fits an offender –
S
v RABIE
1975 (4) SA 855
(AD).
[14] It has to be
mentioned that legal argument is not supposed to form part of the
appeal record. See
S v RAMAVHALE
1996 (1) SACR 639
(A). This practice should be strictly
observed. In that way the tendency, by certain trial courts, of
casually and vaguely referring
without actually and fully detailing
the personal circumstances of the offenders will hopefully cease or
at least significantly
drop. The trial court may sometimes be in a
privileged position of giving
ex tempore
verdict and likewise imposing sentence while legal
argument is still fresh on its mind. A court of appeal, however, can
never have
such an advantage. It is precisely here where the danger
lies.
[15] It is imperative,
therefore, that the sentence segment of the proceedings should be so
independently crafted that the mitigating
factors and indeed the
aggravating factors can be readily ascertained
ex
facie
the sentence segment itself without any
reference to legal argument. As I have already pointed out such
argument is not supposed
to form part of the appeal record and
rightly so.
In casu
it
was erroneously included.
[16] In sentencing the
appellant, the following mitigating factors would traditionally have
been taken into account:
that the appellant was
born on 1 January 1983;
that he was 25 years of
age at the time he was sentenced;
that he was 24 years of
age at the time he committed the crime;
that his formal school
education ended in standard 7;
that he earned his
livelihood as a proprietor of a spaza shop;
that he was a married
man;
that he had one
dependent minor child aged 12 months of age;
that his wife was
unemployed;
that he was the sole
breadwinner for his family;
that he was incarcerated
for almost 19 months before he was sentenced; and
that he had no previous
rape conviction.
[17] In sentencing the
appellant the court
a quo
took into account the following
aggravating circumstances:
that the appellant had
committed a serious crime;
that the interests of
society required appropriate sentence for offenders of such crimes.
[18] The circumstances of
this case showed that the victim and her friend, Pontsho, went to
Lusaka Tavern at Mashaeng on Saturday
25 August 2007. They left her
parental home at or about 22h00. By 22h15 they were already seated
inside the tavern. They ordered
some alcoholic beverages. At one
stage Pontsho decided to go to the ladies bathroom. While she was
gone, a certain Lefu, apparently
her boyfriend, confronted and
threatened the victim. He blamed her for Pontsho’s
disappearance from the tavern that night.
Shortly after the incident
the victim decided to leave. It was approximately 02h00 in the early
morning hours of Sunday.
[19] Outside the tavern
the appellant and his companion approached her. Their names suggest
that they could be twin brothers. They
told her that they had heard
Lefu threatening her. They then offered to escort her home. On the
way they demanded a reward from
her in the form of sex. She refused.
Thereupon they overpowered her, took her to the stadium against her
will and there they took
turns to rape her. They were armed with a
knife. When they were done, they took her home. She knew them by
sight.
[20] From the aforegoing
unchallenged account of the incident, further aggravating factors
become apparent:
Firstly, the appellant
and his companion hatched a cunning and deceitful scheme to lure the
unsuspecting away from the tavern
to the lion’s den.
Secondly, the appellant
and his companion projected themselves to the victim as her
saviours, whereas in fact and in truth, they
were wolves in a
sheep’s skin.
Thirdly, they took the
victim to a dilapidated dressing-room at the stadium where they
sexually penetrated her via the vagina.
Fourthly, the appellant
was armed and dangerous. He was still brandishing a knife while he
was undressing her.
Finally, the appellant
stood there on the scene of the crime and watched while his
companion also sexually assaulted the victim
in the furtherance of a
common criminal enterprise. Women, just like men, have the right to
freely walk to and from taverns at
any time without fear of rapists
–
S v CHAPMAN
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA). That right
the appellant and his companion violated.
[21] I have already
alluded to the appellant’s personal profile –
vide
paragraph [16]
supra
. I wish to revert to the
incarceration as a mitigating factor. The issue was raised at the
trial as well as on appeal. The appellant
was arrested on 25 August
2007. He was sentenced on 20 March 2009, about 19 months later.
Between those two dates he was apparently
convicted of housebreaking
and sentenced to 18 months imprisonment.
[22] The housebreaking
was obviously committed before the rape. He was not remanded in
custody in connection with that offence which
was why he was able to
rape the victim. It can be seen, therefore, that he was incarcerated
because of rape and not housebreaking.
As to precisely when he was
convicted cannot be ascertained
ex facie
the record.
Similarly, the precise details of the sentence appear nowhere on the
record, not even on his criminal record –
form SAPS69C. His
last recorded conviction according to his official criminal record
was on 5 April 2005.
[23] It may well be that
the appellant was sentenced in connection with such burglary a day
before he was sentenced in connection
with this rape case. That is a
reasonable possibility which cannot be excluded in view of the very
scanty information known about
such burglary. The fact that such
conviction is not reflected on his criminal record, fortifies this
possibility. Seeing that there
is so much that is unknown and so
little that is known about the burglary, the court
a quo
should have given the appellant credit in mitigation of sentence for
the agony of the 19 months he endured in incarceration. To
the extent
that the court
a quo
did not, it erred.
[24] In
S v STEVENS
AND ANOTHER
1994 (2) SACR 163
(W) at 168 e – g Schultz
J, as he then was, observed that the agonising period an accused
spent behind bars while awaiting
his fate was the equivalent of a
sentence twice that length. I share those sentiments. So much about
incarceration.
[25] Next I wish to deal
with the issue of the victim injury. It is so that the victim did not
sustain physical injuries during
the course of the incident.
Moreover, there was no evidence led concerning her possible lasting
emotional scarring. The absence
of injury to a rape victim has been
considered in a few decided cases. See
A T WATSON v THE STATE
(2009) HCSA (A267/10) (FSB) per Kruger J
et
Jordaan J;
BOOYSEN
v S
(2009) JOL 24464
(ECG) par. [3] per Jones J;
S v GN
2010 (1) SACR 93
(T) par. [16] per Du Plessis J;
S v NKAWU
2009 (2) SACR 402
(ECG) par. [11] per Plasket J; A. Kruger:
Hiemstra’s Criminal Procedure:
Service Issue 4 2011 ed
on p. 28-24.
[26] In passing sentence,
the court
a quo
said the following concerning the absence of
injury:
“
Dit is ter
versagting voorgehou dat die klaagster geen beserings opgedoen het
nie, maar dit word reeds deur die nuwe Wet op Seksuele
Misdrywe
uitgesluit as ‘n versagtende faktor en die hof stem ‘n
honderd persent met die nuwe wetgewing in daardie verband
saam.”
[27] The Sexual Offences
and Related Matters Act 32 of 2007, on which the court
a quo
relied in disregarding the lack of physical injuries to the victim,
came into operation on 31 December 2007. So was the Criminal
Law
Amendment Act 38 of 2007 which amended
section 51(3)(a)
of the
Criminal Law Amendment Act 105 of 1997
by the insertion of subsection
3(aA)). The new subsection 51(3)(aA) Act 105/1977 provides,
inter
alia
, that when a court imposes a sentence in respect of rape,
apparent lack of physical injury to the complainant shall not
constitute
substantial and compelling circumstances justifying the
imposition of a lesser sentence.
[28] It will be readily
appreciated that the appellant was convicted in connection with the
rape he committed on 25 August 2007,
some four months before the
aforesaid legislative enactments relating to the physical injury of a
rape victim were enacted. Accordingly
the court
a quo
erred on
a question of law by retrospectively applying the amended provisions
to the appellant in this case. It follows therefore,
that the court
a
quo
was not precluded to consider the apparent lack of physical
injury to the victim as one of the relevant factors in the process of

determining whether substantial and compelling circumstances existed
or not.
[29] In
MABITSE v
THE STATE
(2010) HCSA (A84/10) 9-9-2010 (FSB) par. [17] per
Rampai J
et
Molemela J the court, while recognising that rape
was by its very nature a violent act, said the following about
physical injury
to the victim:
“
Just as the
courts should realise that emotional scarring is likely to differ in
kind and degree from one case to the next (Jones
J in
S
v BOOYSEN
,
supra
,
at par. [7]) so too must the courts realise that physical scarring is
likely to differ in kind and degree from one rape case to
the next.
The physical injury symbolises the measure of violence a perpetrator
unleashed on a victim. The greater the degree of
severity of the rape
victim’s physical injury, the greater the degree of the rapist
moral blameworthiness. I am of the firm
view that dictates of justice
demand that in meting out sentence differentiation be made based on
the degree of violent and brutal
force used.”
[30] The court went on to
say:
“
If the
presence of physical injury is properly treated as a factor which
aggravates sentence, then the absence thereof must necessarily
be
treated as a factor which mitigates sentence. If it can mitigate,
then it qualifies, not singularly but collectively, along
with other
such factors for inclusion in the melting pot and consideration in
order to make a determination in terms of section
51(3) regarding the
existence or otherwise of substantial and compelling circumstances –
Plasket J in
S
v NKAWU
,
supra
,
at par. [17].”
[31] The absence of
physical trauma in this case, cannot be fairly disregarded as an
irrelevant or a neutral factor. In my view
it was an important
mitigating factor for which the appellant should have been credited.
It indicates that the case we are here
dealing with does not resort
under the category of the most serious rape cases. Mr. Harrington
correctly conceded that, all things
been equal, the degree of
violence employed in two rape incidents may justify different
responses from a court as to how the two
rape offenders should be
sentenced. The greater the degree of violence, the greater the
natural inclination of the court will be
to impose the prescribed
minimum sentence. So will the community’s expectation be. The
converse also holds true.
[32] By far worse case
scenarios than this are conceivable. See
S v MATYITYI
2011 (1) SACR 40
(SCA). In that appeal the learned Judge, Ponnan JA,
in a very well written judgment, described the rape incident as
breathtakingly
brazen and executed with callous brutality.
Vide
par. [19]. The same cannot be said about the rape incident we are
here dealing with. In the instant case it seemed to me that the
only
reason the court
a quo
relied upon for finding that there were
no substantial and compelling circumstances to justify deviation from
the prescribed minimum
sentence of life imprisonment, was its
mechanical imposition of life imprisonment because the appellant’s
criminal conduct
fell squarely within the purview of Part I Schedule
2. Such an uncritical and perfunctory application of the penal
provision is
lamentable.
[33] Injury or no injury,
rape strikes at the very core of the victim’s femininity. This
is true in all rape cases. This case
is no exception to the rule.
There is no doubt that this rape case remains a despicable misdeed
even though the appellant used
minimal violence to achieve his
criminal objective. However, it must also be accepted that lack of
brutal force is a factor which
diminishes the moral blameworthiness
of a rape offender’s unlawful actions. There are rape cases and
there are rape cases.
Some are worse than others. See
S v
ABRAHAMS
2002 (1) SACR 116
(SCA) par [28]. There are rape
offenders and there are rape offenders. Some are more brutal than
others. These are not subtle or
cosmetic or meaningless or flimsy
distinctions. These are really important factors which must be
practically recognised and reflected
in the way rape offenders are
punished.
[34] To ignore those
important distinctions and to blindly paint rape offenders with the
same brush simply because they fall in
the same penal category –
Part I Schedule2 – would boil down to a disregard of the
sentencing discretion entrusted
to a trial court in terms of section
51(3)(a) Act No. 105 of 1997 as amended. (
S v KIBIDO
1998 (2) SACR 213
(SCA) at 216 g – j)
[35] The sentence of life
imprisonment is the ultimate sentence that can be imposed on any
offender. It is therefore incumbent upon
a trial court to do its best
to make an offender understand why such an extremely harsh sentence
is an appropriate punishment for
him or her. It was never done in
this case. The sentence about a particularly serious matter
concerning two individuals was disturbingly
brief. The brevity of the
sentence did not do justice to what was indeed at stake. The sentence
segment of the criminal proceedings
hardly covered two pages of the
record. In
S v DLAMINI
1991 (2) SACR 655
(A) at 666 b –
f Nicholas AJA, as he then was, observed that criminal trials in this
country were painstakingly conducted
with scrupulous care up to the
end of the conviction stage, but that the subsequent procedure
relative to the sentence stage was
almost perfunctory.
“
That by and
large continues to be the position.”
This is how, two decades
later, Ponnan JA in
S v MATYITYI
,
supra
, par.
[15] lamented the rather casual or careless or unenthusiastic manner
in which the sentence phase is sometimes approached
by our courts.
That is a sad state of affairs. The instant case demonstrates that
quite well.
[36] I find the following
passage quite apposite to the circumstances of this appeal:
“
An
enlightened and just penal policy requires consideration of a broad
range of sentencing options from which an appropriate option
can be
selected that best fits the unique circumstances of the case before
court.”
(per
Ponnan JA in
S v MATYITYI
,
supra
, par. [16].
[37]
In my view the personal profile of the appellant coupled with lack of
credible and reliable evidence of permanent adverse impact
on the
victim of the rape incident; lack of brutal force; the agony of
prison incarceration; the appellant’s criminal record
that was
unblemished by any rape priors; lack of physical injuries to the
victim, cumulatively considered, substantially compelled
the
conclusion that life imprisonment was not an appropriate punishment.
[38]
Accordingly the finding of the court
a quo
that there were no
substantial and compelling circumstances to justify any sentence
lesser than the prescribed minimum sentence
of life imprisonment,
constituted an appealable misdirection. In view of these and other
misdirections, I am therefore inclined
to interfere. On the facts, I
am of the firm view that an appropriate sentence option that can be
selected because it best fits
the unique circumstances of the instant
case is one of 17 years imprisonment.
[39]
Accordingly I propose the following order:
39.1
The appeal succeeds.
39.2
The conviction stands.
39.3
The sentence of life imprisonment imposed on the appellant by the
Fouriesburg Regional Court on 20 March 2009 is set aside
and
substituted with the one below:
39.4
The appellant is sentenced to 17 (seventeen) years imprisonment which
is antedated to 20 March 2009 being the date on which
he was
sentenced.
________________
M.H. RAMPAI, AJP
I concur and it is so
ordered.
_________________
N.W. PHALATSI, AJ
On behalf of appellant:
Attorney J.D. Reyneke Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of respondent:
Adv. W.J. Harrington
Instructed by:
Director Public
Prosecutions
BLOEMFONTEIN
/sp