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[2012] ZAFSHC 28
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Khumalo v S (A175/2010) [2012] ZAFSHC 28 (8 March 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. A175/2010
In the matter between:
FELIZ KHUMALO
….....................................................................
Applicant
and
THE STATE
…..........................................................................
Respondent
_______________________________________________________
CORAM:
MOCUMIE, J
et
CHESIWE, AJ
JUDGMENT:
CHESIWE, AJ
HEARD ON:
13 FEBRUARY 2012
_______________________________________________________
DELIVERED ON:
8 MARCH 2012
_______________________________________________________
[1] The appellant was
convicted in the Regional court,Welkom, of raping a fifteen year old
girl, who is mentally retarded
1
as defined in section 1
(1) of the Sexual Offences and Related Matters Amendment Act 32 of
2007 (“the Sexual Offences Amendment
Act”).
2
The provisions of section
51(1) of the Criminal Law Amendment Act 105 of 1997 (“the Act”)
are applicable. He was sentenced
to eighteen years imprisonment. He
now appeals against the sentence with leave of the court
a
quo
on
the basis that the sentence is shockingly inappropriate.
[2] Advocate Kruger, on
behalf of the appellant, in her Heads of Argument and her oral
arguments submitted that the mitigating factors
in this case and the
personal circumstances of the appellant, cumulatively amounted to
compelling and substantial circumstances,
which justified the court
to have deviated from the prescribed sentence of life imprisonment.
She highlighted the following as
such circumstances:
3.1 Appellant was
46-years of age;
3.2 Appellant although
not married has two adult children;
3.3 Appellant attended
school up to Standard 6 (Grade 8);
3.4 Appellant was in
custody since 25 May 2010 and therefore spent 10 months in custody
awaiting trial;
3.5 Appellant is HIV
positive;
3.6 This was not the
worst category of rape.
[3] Advocate Ferreira, on
behalf of the respondent, in her Heads of Argument, submitted that
the court did not commit any irregularity
or misdirection when
imposing sentence as it did not impose the prescribed sentence when
it could have. The State highlighted the
aggravating circumstances of
the cases in that:
3.1 the complainant was
15-years of age at the time of the commission of this offence;
3.2 that she was and is
still mentally ill;
3.3 that the appellant is
HIV positive and the possibility exists that he might have infected
the complainant although no such medical
evidence was led. It is
quiet a concern that the HIV status of the appellant was disclosed at
such a late stage, before sentencing,
and not during his
evidence-in-chief as the State would have had the opportunity to
interrogate and establish whether he knew of
his HIV status or not
before he raped the complainant. This situation also leaves me
wondering whether the complainant has been
through any counselling or
treatment to check on whether she was infected with HIV/ AIDS or not
and whether the complainant’s
whole family went through to any
family counselling after the rape;
3.4 that the appellant
stayed with the complainants for quite some time and knew about the
complainant’s mental impairment
.
[4] She submitted further
that the appellant abused his position of trust as he was the
complainant/victim’s step father.
She submitted that the
aggravating factors in this case far outweighed the mitigatory
factors and thus eighteen years was appropriate
in the circumstances.
She reminded this Court that a court of appeal can only interfere
with a sentence of a trial in cases where
the sentence was
disturbingly inappropriate.
[5] The proven facts of
this case are shortly that the complainant and her twin sister were
walking home after school, and the complainant
took another route, in
the direction of the appellant’s house. She went to the
appellant’s home at his request the
previous day. The appellant
raped her and then gave her R30, 00 not to report the incident to
anyone. She bought herself a pair
of socks with the money.
[6] During evidence, the
presiding officer conducted an enquiry into the complainant’s
mental condition in terms of section
1 of the Sexual Offences Act and
found that she was mentally retarded as defined in the Act. These
findings were common cause between
the State and the defence during
the trial and the appeal hearing. I also could find no misdirection
on his part in this regard.
[7] I am of the view that
the trial court came to an informed and processed decision on whether
compelling and substantial circumstances
as set out in paragraph [2]
above were indeed such that he should deviate from the prescribed.
The appellant could not point at
any misdirection in that regard.
Neither could I.
[8] As the trial court
correctly found s51 of the Act has limited but not eliminated the
court’s discretion in imposing sentence
in respect of offences
referred to in Part 1 of Schedule 2 such as in this case. The
legislature has deliberately left it to the
courts to decide whether
circumstances of any particular case call for a departure from the
prescribed sentence. In
S v MALGAS
2001 (1) SACR 469
(SCA) at 471I, clear guidelines have been set down and the Supreme
court of Appeal expressed itself as follows,
“
[I]f the
sentencing court on consideration of the circumstances of a
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.”
[9] Rape is a very
serious offence and the punishment to be imposed must be
proportionate to such seriousness. Rape is a violation
of person’s
constitutionally entrenched rights. It is an invasion of a woman’s
most valuable of all rights, namely
dignity. The courts cannot ignore
the frequency at which rape take place in the country especially
perpetrated against children
and worse in this case a mentally
impaired child. The interest of the public must be protected against
people of the appellant’s
calibre. I am of the view that taking
into consideration the principles set out in
S v MALGAS
supra
the sentence imposed for the offence committed is
reasonable and is not harsh and inappropriate nor did the trial court
misdirect
itself in any manner.
[10] The court must take
into consideration the appellants personal circumstances, the nature
and gravity of the offence and the
interests of the community. These
factors must be balanced against each other, in order for the court
to reach an appropriate sentence
as set out in
S v Malgas
at 481b-c where the Court states:
“
The
courts must strive to impose sentences that are proportional to the
crime, the criminal and the needs of the society and achieve
justice”.
[11] I am satisfied that
trial court took cognisance of these circumstances and the above
dictum. The sentence imposed is not only
appropriate but just.
[12] It is trite that a
court of appeal should not replace the sentence imposed by the trial
court with its own, unless it is justified
to do so. See
S v
Obisi
2005 (2) SACR 35
(W) at 35 i – j. As indicated
above I see no reason to interfere and replace the sentence imposed.
[13] In view of the
aforesaid I am not persuaded that the court
a quo
misdirected
itself or that, the sentence is shockingly inappropriate.
[14] In the circumstances
I make the following order.
ORDER
The appeal in respect of
sentence is dismissed.
_______________
S. CHESIWE, AJ
I concur.
________________
B. C. MOCUMIE, J
On behalf of the
applicant: Attorney S. Kruger
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of the
respondent: Adv. A. M. Ferreira
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
/eb
1
Although
the Act refers to “ retarded” I will throughout the
judgment use the term “impaired” as it is
the most
appropriate.
2
Section
1 provides: - “person who is mentally disabled means a person
affected by any mental disability, including any disorder
or
disability of the mind, to the extent that he or she, at the time of
the alleged commission of the offence in question, was
–
(a) unable to appreciate the nature and responsibly
foreseeable consequences of a sexual act;
(b) able to appreciate the nature and reasonably
foreseeable consequences of such act, but unable to act in
accordance with that
appreciation;
(c) unable to resist the commission of any such act; or
(d) unable to communicate his or her unwillingness to
participate in any such act”.