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[2011] ZAFSHC 130
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Mokone and Another v S (A52/11) [2011] ZAFSHC 130 (25 August 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A52/11
In
the appeal between:
VICTOR MOEKETSI
MOKONE
…...................................
Appellant
No. 1
EPHRAIM
LEBOHANG MOFOKENG
….........................
Appellant
No. 2
and
THE STATE
….......................................................................
Respondent
CORAM
:
MOLOI, J
et
KUBUSHI, AJ
HEARD ON:
25 JULY 2011
_____________________________________________________
DELIVERED ON:
25 AUGUST 2011
KUBUSHI, AJ
[1] This is an appeal
from the Regional Court, Bethlehem. The Appellants were convicted on
a charge of rape in terms of section
3 of Act 32 of 2007 and
sentenced to life imprisonment. The Appellants have in terms of
section 309 (1) (a) of the Criminal Procedure
Act, Act 51 of 1977, as
amended, an automatic right of appeal. This appeal is therefore
against the conviction and sentence imposed.
[2] The facts are that on
the 5 July 2008 the complainant went to look for her niece at her
place of residence. She did not find
her and she went to a nearby
tavern where she spent some time. On her way home from the tavern she
heard people running from behind
her. She looked back but she could
not see them properly as it was dark. She could, however, discern
three male figures. When the
men came up to her, one of them grabbed
her by the neck and she fell down. When she stood up there were only
two men next to her,
the third was no longer there. The two men
assaulted her by hitting her with open hands all over her body. A
certain Poso Makhalemele
(Poso), who heard her screams tried to stop
the two men from assaulting her. He was however overpowered by the
two men who pushed
him away and one of them even hit him with an open
hand. Poso left the complainant with the appellants and telephoned
his uncle
who is a police officer for assistance.
[3] The two men dragged
the complainant to an open veld where they each raped her. She
testified that the first one even her ejaculated
inside her but the
second one did not ejaculate because the police arrived at the scene.
At the time the police arrived his penis
was still inside her but he
had not yet ejaculated. When the two men saw the police approaching
and calling them by their names,
they ran away.
[4] The complainant did
not know the two men, but Poso and the two police officers who
responded to Poso’s call, namely, Joel
Nhlapo, Poso’s
uncle, and Petrus Lebakeng, knew them and could identify them as the
appellants. According to Poso, he grew
up with the appellants and
they lived in the same location. The police officers saw the
appellants at the scene of the incident
and even called out to them
by their names. The appellants were found guilty and each was
sentenced to life imprisonment.
[5] As regards the
conviction, the appellants’ grounds of appeal were that,
firstly, the trial court erred by not applying
the cautionary rule to
the evidence of the complainant as a single witness; and secondly, by
failing to accept the evidence of
the appellants as reasonably
possibly true. At the appeal hearing the appellant’s legal
representative abandoned the appeal
against the conviction.
[6] The appellants
contended, in their heads of argument, that when passing sentence the
trial court erred in finding that there
were no substantial and
compelling circumstances justifying the imposition of a lesser
sentence than the minimum sentence of life
imprisonment. According to
them, the trial court over-emphasized the interest of the community
and deterrence as against the personal
circumstances of the
appellants. They contended that the trial court failed to take into
consideration the fact that the complainant
did not suffer any
serious physical injuries and that there was no evidence regarding
the emotional scars. I therefore had to determine
whether the trial
court erred in coming to such a conclusion.
[7] The offence with
which the appellants were convicted falls within the provisions of
the
Criminal Law Amendment Act, 105 of 1997
as amended in as far as
sentencing is concerned. In terms of
section 51
(1) thereof, read
with
part I
of schedule II, a sentence of life imprisonment must be
imposed when rape was committed by more than one person, where such
persons
acted in the execution or furtherance of a common purpose or
conspiracy unless there are substantial and compelling circumstances
which justified the imposition of a lesser sentence. The inquiry
therefore is whether there were substantial and compelling
circumstances
in this case.
[8] The court in the case
of
S v Malgas
2001 (1) SACR 469
(SCA) at 481 para [25]
g – j – 482 para [25] a – f set out the guidelines
which a court should follow when determining
whether there were
substantial and compelling circumstances present to justify the
imposition of a lesser sentence. According to
that decision a trial
court must consider all the factors that may reduce the
blameworthiness of the offender and mitigate his
culpability to come
to a conclusion whether substantial and compelling circumstances
existed or not.
[9] I agree with the
appellants. The trial court failed to take into consideration all the
material circumstances of the case when
considering whether there
were substantial and compelling circumstances present or not. The
trial court focused on the interests
of the society and the offence
and did not take the personal circumstances of the appellants into
consideration. The personal circumstances
of the appellants were as
follows: the first appellant was 28 years of age at the time of
sentencing; he was unmarried and had
three minor children whose ages
were twelve and six years and the other child was six months old; his
wife was unemployed and the
children were not receiving state grants;
he was the sole financial provider for his family, his parents and
siblings; he was employed
as a construction worker and earned a
salary of R2 000 per month.
[10] The second appellant
was thirty six years of age; was unmarried and had six minor
children; the children’s ages were
as follows: twins aged 15
years, the others were thirteen, seven and eight years old; one of
the children’s age was not on
record; the mothers of the
children were unemployed and the accused was the sole financial
provider for their maintenance; he was
employed as a construction
worker and earned a salary of R1 600 per month.
[11] One can never over
emphasise the gravity of the offence of rape. Rape is a violation
that is invasive and dehumanising and
its consequences for the rape
victim are severe and permanent. For many rape victims the process of
investigation and prosecution
is almost as traumatic as the rape
itself. Rape constitutes a humiliating, degrading and brutal invasion
of the privacy, dignity
and the person of the victim. See an
unreported Supreme Court of Appeal case of
De Beer v The State
(121/04) (delivered on 12 November 2004) para [18] and
S v
Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 5b – e.
[12] However, in this
instance, I agree with the appellants, the complainant did not suffer
any severe physical or genital injuries
as a result of the rape. The
state did not proffer any aggravating factors except to state that
the complainant suffered severe
injuries on her face as well as in
her vagina. The evidence did not show that the complainant suffered
severe physical injuries.
No medical evidence or any evidence
whatsoever as to the extent of the injuries sustained by the
complainant was led at the trial.
The J88 form, which was admitted
into the record without the medical doctor giving evidence simply
stated that the complainant
sustained multiple abrasions and small
cuts to the cheeks, slight bleeding in the inside of the lip and a
small tear on the left
leg. The vagina was inflamed, tender and
slightly bleeding. These, in my view, are not severe injuries.
[13] A psychological
report was also not submitted to determine the extent, if any, of the
impact of the rape on the complainant.
It is quite unrealistic to
suppose that the complainant might not have experienced psychological
damage as a result of this incident,
it is however not possible in
the absence of appropriate evidence to quantify its likely duration
and degree of intensity. This
I concede should not mean that one
should approach the question of sentence on the footing that there
was no psychological harm.
See
S v MAHOMOTSA
2002 (2)
SACR 435
(SCA) at 441 h – j.
[14] These factors, to my
mind, must cumulatively, be taken into account in the process of
considering whether substantial and compelling
circumstances
warranting a departure from the prescribed sentence were present or
not. I therefore find that the trial court misdirected
itself in
finding that no substantial and compelling circumstances existed. The
sentence must therefore be considered afresh.
[15] When considering all
the factors of this case I am of the view that the imposition of a
life sentence by the trial court was
disproportionate. The mitigating
factors and the lack of aggravating factors in this case,
cumulatively considered, render the
sentence of life imprisonment
disproportionate and unjust. Life imprisonment as a sentence for rape
should be imposed only where
the case is devoid of substantial
factors compelling the conclusion that such sentence is appropriate
and just. See
S v ABRAHAMS
2002 (1) SACR 116
(SCA) at
127 d.
[16] An appropriate
sentence must fit the crime, the offender and be in the interests of
society. The courts have held that even
when substantial and
compelling circumstances are found to exist, the fact that the
Legislature has set a high prescribed sentence
as “ordinarily
appropriate” is a consideration that the courts are to
“respect, and not merely pay lip service
to”. When
sentence is ultimately imposed, due regard must therefore be paid to
what the Legislature has set as a “bench
mark”. See
S
v MALGAS
supra.
[17] I therefore consider
the sentence of 20 years imprisonment as appropriate and just in the
circumstances.
[18] Accordingly I would
make the following order:
1. The appeal against the
conviction is dismissed.
2. The appeal against the
sentence succeeds.
3. The sentence imposed
by the trial court is set aside and replaced by the following:
“
20
years imprisonment antedated to the 29 June 2009”.
________________
E.M.
KUBUSHI, AJ
I
concur and it is so ordered.
____________
K.J.
MOLOI, J
On
behalf of appellants: Adv. Mr. K. Pretorius
Attorney
for appellants
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. R. Hoffman
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN