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 173
|
|
Motsepe v S (A176/2011) [2011] ZAFSHC 173 (10 November 2011)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: A176/2011
In the case between:
DANIEL
MOTSEPE
…...............................................................
Appellant
and
THE STATE
….......................................................................
Respondent
CORAM:
H M
MUSI, JP
et
MOLOI, J
_____________________________________________________
JUDGMENT:
MOLOI, J
_____________________________________________________
HEARD ON:
31 OCTOBER 2011
_____________________________________________________
DELIVERED ON:
10 NOVEMBER 2011
_____________________________________________________
[1] The appellant had
been convicted in the Regional Court, Sasolburg, on a charge of rape
in contravention of section 3 of Act
32 of 2007 and a sentence of 18
years imprisonment was imposed on 18 November 2009. The appellant was
given leave to appeal after
a petition to this court was successful.
The appeal is against both the conviction and the sentence imposed.
[2] The evidence against
the appellant was that on 25 December 2008 he had sexual intercourse
in his house with the complainant
who was then seven (7) years old
and thus raped her. The incident took place after he had undressed
her and promised to give her
R1,00. The incident was seen by his then
13-year-old daughter. The complainant was examined by her mother and
grandmother who concluded
that she may have been raped and the matter
was reported to the police. The complainant was subsequently examined
by a doctor whose
report confirmed penetration of her vagina by a
male sexual organ but found no scars to her vagina.
[3] According to the
appellant, he had been so drunk on Christmas night in question that
he could not remember seeing the complainant
or having sexual
intercourse with her. All that he could remember was that he had been
asleep in his bed the whole night.
[4] At the hearing of the
appeal, Mr Tshabalala, who represented the appellant, conceded,
correctly, to my mind, that he could not
convincingly argue against
the conviction. He, however, argued against the sentence imposed as
being too harsh in the circumstances
of the case. He relied on the
judgment of
S v NKOMO
2007 (2) SACR 198
(SCA). In this
case, the complainant had been held overnight against her will,
severely assaulted and demeaned, and thereafter
raped five times
overnight. The trial court imposed life imprisonment in terms of the
provision of section 51 read with part 1
of schedule II to the
Criminal Law Amendment Act 105 of 1997
as amended. On appeal, it was
found that there had been substantial and compelling circumstances
justifying the imposition of a
lesser sentence and a sentence of 18
years imprisonment was substituted. Mr Tshabalala argued that the
rape in the instant matter
is far more less serious than the rape in
NKOMO
and submitted that the sentence imposed by the
regional court is shockingly inappropriate.
[5] A court of appeal is
entitled to interfere with the sentence imposed by the trial court if
the court
a quo
had failed to exercise its sentencing
discretion properly:
S v ANDERSON
1964 (3) SA 494
(A)
or if the sentence “induces a sense of shock”. A court of
appeal will also be entitled to interfere with the sentence
where
there is a striking disparity between the sentence imposed by the
trial court and the sentence that the appeal court would
have
imposed. See
S v DE JAGER & ANOTHER
1965 (2) SA 616
(A).
[6] In this matter the
trial court found that substantial and compelling circumstances were
present entitling it to deviate from
the prescribed minimum sentence
of life imprisonment:
S v MALGAS
2001 (1) SACR 496
(SCA) paras [8] – [10];
S v MATYITYI
2011 (1)
SACR 40
(SCA). This finding of the trial court is correct. I,
however, agree with counsel for the appellant that 18 years
imprisonment
in the circumstances of this case is shockingly
inappropriate. It should be noted that there was in fact no full
sexual intercourse
but only a slight penetration of the complainant,
which would explain why she was not seriously injured. Nor was she
assaulted.
Besides, the influence of liquor is a factor to be taken
into account. The appellant appeared to have been so drunk that he
did
not even notice the presence of the young witnesses and simply
put on his pants in front of them. In addition, the appellant was
a
first offender, was gainfully employed and had spent a year in
custody whilst awaiting trial. Regarding the latter factor, see
S
v VILAKAZI
2009 (1) SACR 552
(SCA) para 60.
[7] I am of the view that
sufficient reasons exist to interfere with the sentence imposed and I
think a sentence of 10 years imprisonment
would be appropriate.
[8] In the premises, the
appeal succeeds in part and the following order is made:
The conviction is
confirmed.
The sentence of 18
years imprisonment is set aside and replaced with a sentence of 10
years imprisonment to be antedated to
18 November 2009.
_______________ K. J.
MOLOI, J
I concur and it is so
ordered.
__________________
H. M. MUSI, JP
On behalf of the
appellant: Adv. L. M. Tshabalala
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of the
respondent: Adv. A. M. Ferreira
Instructed by:
The Director of Public
Prosecutions
BLOEMFONTEIN
/EB