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[2012] ZAFSHC 201
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Manyakalle v S (A349/2010) [2012] ZAFSHC 201 (1 November 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A349/2010
In the appeal between:-
RETSHEDISITSWE
CLEMENT MANYAKALLE
and
THE STATE
_________________________________________________________
CORAM:
EBRAHIM, J
et
MATLAPENG, AJ
_________________________________________________________
JUDGMENT BY
:
MATLAPENG, AJ
_________________________________________________________
HEARD ON:
8
OCTOBER 2012
_________________________________________________________
DELIVERED ON
:
1 NOVEMBER 2012
_________________________________________________________
[1] This is an appeal
against a sentence imposed by the trial court. Mr Retshidisitswe
Clement Manyakalle who I will henceforth
refer to as the appellant
was charged and tried for rape in the Regional Court, Bloemfontein.
At the end of the trial he was convicted
as charged and sentenced to
serve a period of twenty six years imprisonment. He appeals against
this sentence only.
[2] The evidence adduced
at the trial which led to the conviction of the appellant is briefly
as follows:
The appellant and the
victim who was eleven years of age at the time of the incident were
known to each other. They are related.
During the relevant period, it
was during the school holidays, both the complainant and the
appellant were visiting their uncle
and aunt who are residing
together. It was whilst at this place that the appellant committed
this offence by raping the complainant
on three different occasions.
[3] The complainant did
not initially inform anyone of the rapes as the appellant had
threatened her with death should she do so.
Although her aunt could
see from her behaviour that something was amiss the complainant
refused to tell her anything. It was only
when she reached her
parental home that she disclosed her ordeal to a tenant at her
parental home. She was taken to the police
station and later the
appellant was arrested.
[4] A court of appeal is
not without much ado entitled to interfere with the sentence imposed
by the trial court. The reason for
this is self evident namely that
sentencing discretion falls primarily to be exercised by the trial
court. It is only in certain
limited instances where a court on
appeal may interfere with this discretion for example where it is
shown that the sentence imposed
by the trial court is amongst others
unreasonable, there was a material misdirection or there appears to
be an irregularity committed
by the trial court. (See
S v RABIE
1975 (A) SA 855 (A);
S v SALZWEDEL & OTHERS
2000
(1) SA 786
(SCA).
[5] Even in the absence
of the above-mentioned factors, a court on appeal may interfere with
the sentence if there is a striking
disparity between the sentence
imposed by the trial court and the one the appeal court would have
imposed. This is aptly stated
as follows in the matter of
S v
MALGAS
2001 (1) SACR 469
(SCA) at 478f:
“
However,
even in the absence of material misdirection, an appellate court may
yet be justified in interfering with the sentence
imposed by the
trial court. It may do so when the disparity between the sentence of
the trial court and the sentence which the
appellate Court would have
imposed had it been the trial court is so marked that it can properly
be described as 'shocking', 'startling'
or 'disturbingly
inappropriate'. It must be emphasised that in the latter situation
the appellate court is not at large in the
sense in which it is at
large in the former. In the latter situation it may not substitute
the sentence which it thinks appropriate
merely because it does not
accord with the sentence imposed by the trial court or because it
prefers it to that sentence. It may
do so only where the difference
is so substantial that it attracts epithets of the kind I have
mentioned.”
[6] It was submitted on
behalf of the appellant that the sentence imposed on the appellant
induces a sense of shock. This will be
so more particularly if regard
is had to the personal circumstances of the appellant and the fact
that the trial court found that
there were compelling and substantial
circumstances which resulted in the court not imposing a prescribed
minimum sentence. The
respondent on the other hand submits that the
sentence imposed by the trial court was an appropriate one under the
circumstances.
[7] The trial court
before deciding on an appropriate sentence had the following factors
in mitigation placed before it: the appellant
was 19 years of age at
the time of the commission of the offence, he had no previous
convictions; he had passed grade 12, although
he was not working he
was previously employed and earned a salary of R900,00 per month.
[8] On the other hand in
aggravation the following factors came to the fore: the appellant
raped the complainant not once but on
three occasions; the
complainant was 11 years of age at the time of the rape, she was
known to the appellant and regarded the appellant
as an elder
brother. He was in a position of trust vis-à-vis the
complainant, although it appeared that the complainant
had sustained
no physical injuries, the rape affected her emotionally as she
started to wet the bed although she did not do so
prior to the rape.
[9] The offence committed
by the appellant is one of the offences delineated by the legislature
to attract a minimum sentence, namely
life imprisonment. The trial
court found that taken cumulatively the personal circumstances of the
appellant constituted compelling
and substantial circumstances.
Therefore it could deviate from the minimum sentence prescribed by
the legislature namely life imprisonment.
[10] In assessing what
suitable sentence to impose two important factors stood out calling
for attention, namely: the appellant’s
youthfulness and the
fact that he was a first offender. Youthful offenders unlike adult
offenders should be treated differently
as they are more amenable to
be rehabilitated and become useful members of the society. This was
recognised as follows in
S v Z en Vier Ander Sake
1999
(1) SACR 427E
at 430F:
“
Besondere
omstandighede geld by die bestrawwing van jeugdige oortreders, juis
vanweë die feit van hul jonkheid. Die jeug is
kenlik van kosbare
waarde vir die gemeenskap - soos weerspieël word in art 28 van
die Grondwet. Hulle is ons toekoms. Verbandhoudend
hiermee is die
feit dat jeugdiges se persoonlikhede in die algemeen nog nie ten
volle ontwikkel is nie. Hulle is meer buigsaam
as volwassenes en dus
uiteraard meer vatbaar vir beïnvloeding, ten goede sowel as ten
kwade. Kriminele wangedraginge deur
'n jeugdige voorspel àl te
dikwels (maar nie noodwendig nie) 'n kriminele volwassenheid.
Jeugdiges wat misdrywe pleeg is
dus potensiële volwasse
misdadigers en is as sulks 'n bedreiging nie net vir die gemeenskap
nie, maar ook vir hul eie welsyn
en toekoms. Dit is derhalwe die dure
plig van elke persoon en instansie gemoeid met jeugdiges, ook dan die
howe, om te poog om
jeugdige oortreders vir die geledere van
wetsgehoorsames te win.”
[11] The trial court was
not only faced with the appellant’s youthfulness but the
appellant was also a first offender. He
was coming into conflict with
the law for the first time in his life. Although there is no law that
states that first time offenders
should not be sent to jail, the
courts have over the years treated first offenders differently to a
recidivist. First time offenders
are not inclined to commit crime and
a sentencing court has in its hand a person with a good potential for
rehabilitation and this
has to be reflected in the sentence imposed.
Having found in the appellant’s favour that the minimum
sentence is not applicable,
the trial court was at liberty to pass
any sentence which would take into account the nature and purpose of
punishment. In so doing
it should take into account the bench mark
laid down by the legislature in the act relating to minimum
sentences. However, such
punishment although robust should in my view
be humane and not have the effect to shock as it is currently the
position in this
case.
[12] The appellant was
relatively young and had just started out in life. The punishment
that has to be imposed on him should not
have the effect of breaking
him but crucially should direct him on the path of rehabilitation. It
should also express the society’s
displeasure of his deed. In
my view a sentence of 26 years imprisonment is shockingly
disproportionate as it is akin to locking
this young appellant in
jail and throwing the key away. It fails to accord the mitigating
factors especially the youthfulness of
the appellant and the fact
that he is a first offender its proper place in the determination of
punishment. The appellant although
he has offended the community
should be given an opportunity to reflect on his actions and be given
hope that at the end of his
incarceration he would still be accepted
as a useful member of the society. This can only be done by imposing
an appropriate sentence,
which in my view would be one of eighteen
(18) years imprisonment.
[13] I am of the view
that the sentence imposed on the appellant cannot stand and has to be
set aside.
ORDER
[14] In the circumstances
I make the following order:
(a) The appeal against
sentence is upheld;
(b) The sentence imposed
by the trial court is set aside and replaced by the following:
The accused is
sentenced to 18 (eighteen) years imprisonment.
(c) The sentence is
antedated to 29 June 2010.
___________________
D. I. MATLAPENG, AJ
I concur.
__________________
S. EBRAHIM, J
On
behalf of appellant: K. Pretorius
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. E. Liebenberg
Instructed
by:
The Director:
Public Prosecutions
BLOEMFONTEIN
/eb