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
>>
2011
>>
[2011] ZAFSHC 136
|
|
Thole v S (A138/2010) [2011] ZAFSHC 136; 2012 (2) SACR 306 (FB) (30 August 2011)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
Appeal No. : A138/2010
In the appeal of:-
PAKISO THOLE
…........................................................................................
Appellant
and
THE STATE
…..........................................................................................
Respondent
______________________________________________________________
CORAM:
MOLEMELA, J
et
VAN ROOYEN, AJ
______________________________________________________________
HEARD ON:
22 AUGUST 2011
______________________________________________________________
DELIVERED ON:
30 AUGUST
2011
______________________________________________________________
MOLEMELA, J
[1] This is an appeal against sentence
only. The appellant was convicted of rape and murder by the regional
court, Bloemfontein
and sentenced to life imprisonment on each count.
[2] The facts that led to the
appellant’s conviction can be gleaned from the statement made
by the appellant in terms of section
112(2) of the Criminal Procedure
Act 51 of 1977, (“plea explanation”). According to this
plea explanation, the sequence
of events was that the appellant
accosted the deceased in the street, after which he dragged her to a
certain house. There he had
sexual intercourse with her without her
consent. After having raped her, he stabbed her twice with an Okapi
knife, which resulted
in her death. The state having not adduced any
evidence in aggravation of sentence, the court called for the
evidence of the deceased’s
daughter, who testified about the
impact of the deceased’s death on her family but had no
firsthand knowledge regarding how
the offences were committed. At the
end of the day, the factual matrix upon which the court a quo decided
the matter was purely
on the basis of the contents of the appellant’s
plea explanation.
[3] It is common cause that in his
plea explanation, the appellant acknowledged that “
the
provisions of section 51(2), 52(2), 52(A) and 52(B) of Act 105 of
1997 as amended”
are applicable on both counts. The
applicable parts of Schedule 2 of that Act were however not referred
to.
[4] Counsel for the appellant, Mr.
Reyneke, argued that in respect of count 1 (rape) the court
a quo
misdirected itself by imposing a sentence of life imprisonment on the
strength of its applicability to rapes contemplated in Part
1(c) of
Schedule 2 to the Criminal Law Amendment Act 105 of 1997 (“the
Act”) which, inter alia, is applicable to a
rape “
involving
the infliction of grievous bodily harm”
. According to Mr.
Reyneke, the applicable minimum sentence to the circumstances
in
casu
is the one contemplated in Part III of Schedule 2, i.e. rape
“
in circumstances other than those referred to in Part I”
and for which the prescribed minimum sentence is 10 years’
imprisonment. It is common cause that the court
a quo
mistakenly stated that the applicable minimum sentence in respect of
a rape contemplated in Part III of Schedule 2 of the Act is
15 years
imprisonment. Nothing turns on this mistake, as in the end, the court
a quo
found that the rape committed by the appellant was one
contemplated in Part 1(c) of the Act and duly imposed a sentence of
life
imprisonment.
[5] Mr. Reyneke argued that given the
manner in which the charge-sheet was couched, the court
a quo
had correctly remarked in its judgment that “
on the face of
it count 1 of rape reads like an offence that would be listed under
Part III of Schedule 2”
. According to Mr. Reyneke, the
failure of the state to adduce evidence indicating that the appellant
had stabbed the deceased before
or during the rape precluded the
court a quo from finding that the rape was of a nature that could be
described as “
involving the infliction of grievous bodily
harm”
and thus attracting a life imprisonment sentence. Mr.
Mohlala, on behalf of the state, argued that Part I(c) of Schedule 2
of the
Act does not provide that the infliction of bodily harm has to
precede the rape. He argued that most English dictionaries define
the
word “involve” as “to have as a necessary feature
or consequence” or “to include something as
a necessary
part of an activity, event or situation”. He argued that
in
casu
the stabbing was a necessary feature of the rape and that
the court a quo had correctly classified that rape as falling under
Part
I(c) of the Act.
[6] In view of the afore-mentioned
submissions, it is apt to quote how the charge was formulated in the
charge sheet. It is couched
as follows:
“
That the
accused is guilty of the crime of Rape (read with the provisions of
section 51(1)
,
51
(2),
52
(2);
52A
and
52B
of the
Criminal Law
Amendment Act 105 of 1997
as amended) in that upon or about
08/09/2007 and at or near Bloemfontein in the district of
Bloemfontein and within the jurisdiction
of the Regional Division
Free State, the accused did unlawfully and wilfully assault an adult
female and there did unlawfully,
violently and against her will have
carnal intercourse with her.”
[7] In his plea explanation, the
appellant narrated the incident as follows:
“
4. The
plea of guilty is placed on the following facts:-
Count 1
That on or about the 8
th
day of September 2007 and at Freedom Square in the regional
division of Bloemfontein, I did unlawfully and intentionally assault
one Keromamang Mokhotsoane an adult female and then and there did
unlawfully, violently and against her will have carnal intercourse
with her without her consent.
Count 2
That on or about the 8
th
day of September 2007 and at Freedom Square in the regional
division of Bloemfontein, I did unlawfully and intentionally kill one
Keromamang Mokhotsoane by stabbing her with an Okapi knife twice.
5. On the above-mentioned date I
was from the third house from my house drinking liquor then went to
my house. On the way I met
the deceased in the same street. I spoke
to her. She was refusing to go with me to my place. I forced her to a
certain house dragged
her behind the house and started to have sexual
intercourse with her. I did not know the complainant and her name was
unknown to
me.
After having raped her
, I then
stabbed her twice with an Okapi knife that was confiscated by the
police at my place.”
(My underlining for emphasis).
[8] It has been held in a number of
cases that where an accused pleads guilty and hands in a written
statement in terms of
section 112(2)
of the
Criminal Procedure Act
No. 51 of 1977
detailing the facts on which his plea is premised and
the prosecution accepts the plea, the plea so explained and accepted
constitutes
the essential factual matrix on the strength of which
sentence should be considered and imposed. See
S v JANSEN
1999 (2) SACR 368
(C) at 370g – 371g;
S v CALENI
1990 (1) SACR 178
(C). Also see the unreported appeal judgment of
VAN
DER MERWE & OTHERS v THE STATE
, Appeal No. A366/10 at
paragraph 30, where the following was stated:
“
Such an
essential factual matrix [set out in the plea explanation] cannot be
extended or varied in a manner that adversely impacts
on the measure
of punishment as regards the offender. The plea, once accepted,
defines the
lis
between the prosecution and the defence – once the parameters
of the playing fields are so demarcated, it becomes a foul
play to
canvass issues beyond.”
[9] As stated above, no evidence was
adduced before the court
a quo
relating to how the offences
were committed by the appellant. For these details, the court relied
entirely on the appellant’s
plea explanation. That being the
case and following on the principle enunciated in the afore-mentioned
cases, the sentence imposed
on the appellant should therefore have
been premised on the factual foundation as set out in the appellant’s
plea explanation.
Significantly, when it comes to the rape charge,
the charge-sheet makes no mention of the infliction of grievous
bodily harm. It
is clear from this plea explanation that the stabbing
was only done after the act of rape had already been concluded and
not as
part of the rape. This distinction is in my view critical as
the involvement of the infliction of grievous bodily harm is one of
the factors that brings a rape that would ordinarily have fallen
within the purview of
Part III
of Schedule 2 of the Act (attracting
10 years imprisonment as a minimum sentence, within the purview of
Part 1(c) of the Act, for
which a more severe minimum sentence is
applicable.
[10] The appellant’s plea
explanation embodied the exclusive facts on which the appellant
pleaded guilty. The court
a quo
did not direct any questions
to the appellant relating to the facts as expressed in his plea
explanation. The state accepted the
appellant’s plea
explanation as such. It adduced no evidence that sought to give a
different account of events than the one
set out by the accused in
his plea explanation. It was only during the address in aggravation
of sentence that the prosecutor seemed
to highlight the sequence of
events, submitting that the stabbing occurred before the rape. The
court
a quo
correctly dealt with it as follows in its
judgment:
“
... And
you say thereafter [after the rape] you produced your knife and
stabbed her twice therewith. The state did accept this version,
as
you put forward, from the onset of the trial. But on more than one
instance the prosecutor seemed like she wanted to challenge
this
version. She wants to say how you injured the deceased first before
you could rape her. I do recall that I did give her the
opportunity
to present evidence in aggravation of sentence if she so desires,
unfortunately she could not.”
Surprisingly, notwithstanding the
above-mentioned remarks, the court a quo went on to find that the
rape the appellant was convicted
of, was the one listed under part
1(c) of the Act “
because you did inflict injuries which
resulted in the death of the deceased.”
[11] One of the dictionary meanings of
the word “involved” alluded to by Mr. Mohlala in his
heads of argument is: “
to include something as a necessary
part of an activity, event or situation”
. Given this
meaning, there is no room for finding that the stabbing that occurred
after the rape was a necessary part thereof.
In my view, from the
content of the plea explanation, it can safely be concluded that the
appellant formed the intention to rape,
went ahead with that deed and
after concluding it, formed the intention to murder the deceased.
Insofar as the court
a quo
found otherwise, it misdirected
itself materially, thus justifying interference by this court. In my
view, the applicable minimum
sentence is that mentioned in Part III
and not in Part I of Schedule 2 of the Act. And the prescribed
minimum sentence is ten years’
imprisonment.
[12] Mr. Reyneke further argued that
there are substantial and compelling circumstances warranting
deviation from the prescribed
sentence. According to him, the
following factors, cumulatively viewed, warrant this deviation:
(i) the appellant was 26 years of age
at the time of commission of the offences; (ii) that he was unmarried
and had no children;
(iii) that he attended school up to standard 6;
that he was raised by his grandmother; that he was remorseful for
what he had done;
that he had been drinking before the incident that
he was a first offender.
[13] It is clear from the record that
the aforementioned circumstances were properly taken into account by
the court
a quo
. The court
a quo
also considered the
interests of the community, as well as the seriousness of the
offences. I cannot fault the court
a quo
in its consideration
of this triad of sentence. Indeed, the aggravating factors far
outweighed the mitigating circumstances. Indeed,
it was totally
unnecessary for the appellant to kill the deceased after raping her.
The reasons for killing the deceased were not
advanced in the
appellant’s plea explanation. With regards to the appellant’s
plea of guilty, the court is mindful
of the fact that the state had a
formidable case against the appellant, for he was linked to the
deceased through his DNA. Furthermore,
he was, on his own version,
almost caught in the act, as members of the public arrived at the
crime scene soon after he had finished
committing the offences and
chased after him, leading to his arrest. A plea of guilty under such
circumstances cannot, without
more, be considered to be indicative of
his contrition. Although the appellant did allude to his remorse in
his plea explanation,
he did not take the witness stand to articulate
it so that its genuineness could be tested. In my view, genuine
contrition cannot
be assumed, it must be demonstrated. See
S v
MATYITYI
2011(1) SACR 45 AT 47C. I am therefore satisfied
that the court
a quo
was correct in finding that there are no
substantial and compelling circumstances warranting deviation from
the prescribed sentences
of 10 years imprisonment in respect of rape
and life imprisonment in respect of the murder.
[14] In deciding on the appropriate
sentence, I have taken into account that the appellant spent 21
months in custody awaiting trial.
See
S v VILAKAZI
2009
(1) SACR 552
at 575. I would therefore make the following order:
1. The convictions in respect of rape
and murder are confirmed.
2. The sentences imposed by the court
a quo are set aside and replaced with the following:
2.1 Count 1, rape: 10 years
imprisonment.
2.2 Count 2, murder: life
imprisonment.
2.3 The sentence imposed in count 1 is
to run concurrently with the sentence imposed in count 2.
2.4 With regards to count 2, the
determination of the appellant’s consideration for parole, if
he so qualifies, is to be effected
21 months earlier than would
ordinarily have been the case.
3. The sentences mentioned in
paragraph 2.1 and 2.2 above are antedated to the 12
th
June
2009.
_________________
M.B. MOLEMELA, J
I concur.
_____________________
P.C.F. VAN ROOYEN, AJ
On behalf of the appellant: Adv. J.D.
Reyneke
Instructed by:
Bloemfontein Justice Centre
Legal Aid SA
BLOEMFONTEIN
On behalf of the respondent: Adv. M.A.
Mohlala
Instructed by:
Director Public Prosecutions
BLOEMFONTEIN
/sp