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[2011] ZAFSHC 66
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Lekaota v S (A109/09) [2011] ZAFSHC 66 (24 March 2011)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Appeal No. : A109/09
In
the appeal between:
PULE
JOHANNES LEKAOTA
…..................................................
Appellant
and
THE STATE
…...........................................................................
Respondent
CORAM:
MOCUMIE, J
et
KUBUSHI, AJ
_______________________________________________________
HEARD
ON:
14 FEBRUARY 2011
_______________________________________________________
DELIVERED ON:
24
MARCH 2011
APPEAL: JUDGMENT
_______________________________________________________
KUBUSHI, AJ
[1] The appellant
appeared in the Regional Magistrate Court in Bloemfontein on a charge
of rape of a six year old girl. He pleaded
not guilty to the charge
but was found guilty as charged. On 3 November 2008 he was sentenced
to life imprisonment. He is now,
with leave of the trial Court,
appealing against the conviction and sentence.
[2] The facts of the case
are that on the 24 September 2006 appellant called the complainant
and two of her friends to his shack
to cook for him. He then sent the
two friends to the shop and in their absence raped the complainant.
The incident was witnessed
by the complainant’s brother who was
sent to look for her. The matter was reported to the police and the
appellant was arrested.
[3] During the hearing of
the appeal both counsel were
ad idem
that there are no
reasonable prospects of success on the conviction and that it must
stand. After considering all the evidence
in the case and the reasons
for judgment of the trial Court, I also can come to no other
conclusion but that the conviction must
stand.
[4] In the Heads of
Argument appellant’s counsel who did not argue the case at the
appeal hearing stated that it cannot be
argued that a Court
a quo
misdirected itself by not finding substantial and compelling
circumstances in favour of the appellant, but committed such by
imposing
the life sentence. Ms Smith who argued the case during the
appeal hearing however argued that the trial Court erred in finding
that there are no substantial and compelling circumstances justifying
a deviation from the prescribed sentence. She based her argument
on
the fact that the trial Court failed to consider the personal
circumstances of the appellant and over emphasised the seriousness
of
the offence.
[5] Counsel for the
respondent submitted in his Heads of Argument that the trial Court
did not misdirect itself by finding that
no substantial and
compelling circumstances existed which warranted deviation from the
imposition of the sentence of life imprisonment.
During the appeal
hearing he however conceded that this was a borderline case where the
rape did not have permanent psychological
effect on the complainant
and indicated that he will have no objection if this court considered
imposing a sentence of twenty years
imprisonment as proper and just
in the circumstances.
[6] The question that
requires to be addressed by this Court is whether the trial Court
misdirected itself in finding that no substantial
and compelling
circumstances existed in this case which would have justified a
departure from the prescribed sentence.
[7] Section 51 of the
Criminal Law Amendment Act, 105 of 1997 (the Act) calls for the
imposition of a sentence of life imprisonment.
This sentence has been
ordained by the legislature and must be applied without any
hesitation. The legislature aimed at ensuring
severe, standardised
and consistent response from the courts to the commission of such
crimes. As it was stated in
S v Malgas
2001 (1) SACR
469
(SCA), it was no longer “business as usual”, a court
was not to be given a clean slate on which to inscribe whatever
sentence it thought fit. Instead it was required to approach that
question conscious of the fact that the legislature has ordained
life
imprisonment or the particular prescribed period of imprisonment as
the sentence which should
ordinarily
be imposed for the
commission of the listed crimes in the specified circumstances.
[8] It is however
incumbent upon a court in every case, before it imposes a prescribed
sentence, to assess, upon the consideration
of all the circumstances
of a particular case, whether the prescribed sentence is indeed
appropriate to the particular offence.
As it was said in
S v
Vilakazi
2009 (1) SACR 552
(SCA) the essence of the decisions
such as in
Malgas
above and
S v Dodo
[2001] ZACC 16
;
2001
(1) SACR 594
(CC) is that a court is not compelled to perpetrate
injustice by imposing a sentence that is disproportionate to the
particular
offence.
[9] In
Malgas
above at 477 a – b the court stated that courts are given the
residual discretion to decline to pass the sentence which the
commission of such an offence will ordinarily attract, in recognition
of the easily foreseeable injustices which could result from
obliging
them to pass the specified sentence come what may.
[10] The court in
S
v Malgas
above set down a “determinative test’’
– which was endorsed by the Constitutional Court in
S v
Dodo
above as ‘undoubtedly correct’ and as a
practical method to be employed by all judicial officers faced with
the application
of section 51 – in deciding whether a
prescribed sentence may be departed from. The test was expressed in
that case as follows:
“
if the
sentencing court on consideration of the circumstances of the
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.”
[11] Section 51 (3) of
the Act prescribes that such a deviation can only happen when the
court is satisfied that substantial circumstances
compelling
deviation from the prescribed sentence exist. This section vests the
sentencing court with the power, indeed the obligation,
to consider
whether the particular circumstances of the case require a different
sentence to be imposed.
[12] In determining
whether in a particular case substantial and compelling circumstances
exist a court has to follow the
Malgas
test and
consider the well known traditional triad of factors relevant to
sentence – the consideration of the crime, the
criminal and the
needs of society. Marais JA at 477 e – g went on to comment
thus:
“
I can see no
warrant for deducing that the legislature intended a court to exclude
from consideration,
ante
omnia
as it were, any or all of the many factors traditionally and rightly
taken into account by the courts when sentencing offenders.
The use
of the epiteths ‘substantial’ and ‘compelling’
cannot be interpreted as excluding even from consideration
any of
those factors. What they apt to convey, is that the ultimate
cumulative impact of those circumstances must be such as to
justify a
departure.”
[13] If a court is indeed
satisfied that a lesser sentence is called for in a particular case,
thus justifying a departure from
the prescribed sentence, then it
hardly needs saying that the court is bound to impose that lesser
sentence. It perhaps requires
to be stressed that what emerges
clearly from the decision in the
Malgas
and the
Dodo
cases above is that if substantial and compelling circumstances are
found to exist, life imprisonment is not mandatory nor is any
other
mandatory sentence applicable. See
S v Mahomotsa
2002
(2) SACR 435
(SCA).
[14] It is trite that the
appeal Court may only interfere with the sentence imposed by the
trial court if there is disparity on
the sentence imposed or where
the trial Court failed to exercise its discretion properly or
exercised it unreasonably.
[15] In
casu
the
trial Court misdirected itself in two very material respects when
meting out sentence. One, the Court interpreted the ‘determinative
test’ as set down in
S v Malgas
to include that
“
the
prescribed minimum sentence should only be deviated from if in the
mind of the court it feels that it will induce a sense of
shock if it
is imposed.”
The
Malgas
case is very clear on this issue and at page 481 d it is explicitly
pointed out that a prescribed sentence need not be “shockingly
unjust before it is departed from”.
[16] Secondly, the trial
Court failed to take the personal circumstances of the offender into
account when considering whether there
are substantial and compelling
circumstances. It concentrated more on the circumstances leading to
the commission of the offence
and the aggravating factors.
[17] Appellant is a man
of 48 years, he is not married and has three minor children. At the
time of his arrest he was working at
Pellissier doing tiling, he had
been employed there for four years, and earning R600-00 per week. The
mother of his children passed
away in 2002, he could not remember the
ages of the other children but could remember that the youngest was
born in 1990. He was
responsible for his siblings because their
parents passed on. His children are attending school but he could not
remember in which
grades they were in. He was the sole breadwinner
and caregiver to the children. In his evidence-in-chief he stated
that he had
spent a year and few months in jail before he was
released on bail. These are all factors which, cumulatively, the
trial Court
should have considered as favourable to the appellant.
[18] On each of the
grounds stated above in paras [15] and [16] the trial Court
materially misdirected itself and the sentence imposed
cannot stand.
This means that this Court is entitled to evaluate sentence afresh.
[19] Although the
complainant was only six years old at the time of the commission of
the offence, she did not suffer any physical
or serious genital
injuries. According to the Social Workers’ report the incident
had a negative impact on the complainant’s
behaviour although
not of a permanent nature. Whilst it may theoretically be possible
that a victim of rape may not suffer psychological
damage other than
that experienced while the attack is taking place and its immediate
aftermath, it is in the highest degree unlikely.
Where as here, the
complainant was a young girl, it is quite unrealistic to suppose that
there will be no psychological harm. To
quantify its likely duration
and degree of intensity, of course, it is not possible in the absence
of appropriate evidence, but
that does not mean that one should
approach the question of sentence on the footing that there was no
psychological harm.
S v Mahomotsa
2002 (2) SACR 435
(SCA) at 441 h – j.
[20] Section 51 (3) (aA)
(ii) of the Act provides that when imposing a sentence in respect of
the offence of rape an apparent lack
of physical injury to the
complainant shall not constitute substantial and compelling
circumstances justifying the imposition of
a lesser sentence. It must
however be noted that this section should be read to mean that any
one of the factors mentioned on their
own may not be regarded as a
substantial and compelling circumstance justifying departure from the
prescribed sentence, but each
of the factors may be considered
together with the other factors cumulatively to amount to substantial
and compelling circumstances.
On this interpretation the court is not
precluded from considering the fact that the complainant suffered no
serious or permanent
injuries, along with a basket of other factors,
in order to arrive at a just and proportionate sentence.
S v
Nkawu
2009 (2) SACR 402
(ECG).
[21] The appellant’s
personal circumstances as set out in para [17] above are not
indicative of an inherently lawless character
and must be regarded as
substantial and compelling. Coupled with this is the fact that the
appellant had spent several months in
prison awaiting trial, which
the trial Court completely ignored. These are substantial and
compelling circumstances which warrant
a departure from the
prescribed sentence. I therefore find that the trial Court
misdirected itself in finding that no substantial
and compelling
circumstances existed.
[22] When considering all
the mitigating and aggravating factors of this case I am of the view
that an appropriate sentence that
will fit the crime, the offender
and be in the interest of society will be that of a long term
imprisonment.
[23] I therefore consider
the sentence of twenty years imprisonment as appropriate and just in
the circumstances.
[24] I make the following
order:
1. The conviction
stands.
2. The appeal succeeds
as far as sentence is concerned.
3. The sentence
imposed by the trial Court is set aside and replaced by the
following:
“
20
(twenty) years imprisonment, antedated in terms of
section 282
of the
Criminal Procedure Act, 51 of 1977
, to 3 November 2008.”
________________
E.M. KUBUSHI, AJ
I concur.
_______________
B.C. MOCUMIE, J
On behalf of appellant:
Adv. Smith
Instructed by:
BLOEMFONTEIN
On behalf of respondent:
Adv. Chalale
Instructed by:
BLOEMFONTEIN