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[2011] ZAFSHC 211
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Lekhora v S (A311/2008) [2011] ZAFSHC 211 (8 December 2011)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Appeal No. : A311/2008
In
the appeal between:-
THABANG
LEKHORA
…..........................................................
Appellant
and
THE
STATE
….......................................................................
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
et
MTHEMBU,
AJ
_____________________________________________________
HEARD ON:
7
NOVEMBER 2011
_____________________________________________________
DELIVERED ON:
8 DECEMBER 2011
_____________________________________________________
MTHEMBU AJ
[1] The appellant was
convicted on rape of a 13-year old girl on 27 February 2008. He was
sentenced to life imprisonment. The court
a quo
found that
there were no substantial and compelling circumstances present.
[2] He was aggrieved by
the sentence. He comes to us with the leave to appeal granted by this
court. The sentence imposed on him
is not supported by the
respondent.
[3] The respondent
accused the appellant of raping a 13-year old girl, M J M, on 19
December 2007. He was arrested on 20 December
2007.
[4] The appellant
appeared before Mr M I Menong, in the Ficksburg Regional Court for
trial. Mr T C Namola appeared for the state
and Mr H Claasen for the
accused. He then pleaded guilty. The statement he made in terms of
section 112(2) of the Criminal Procedure
Act, number 51 of 1977 was
read out and handed in by his attorney as exhibit “A”. He
was convicted on the strength
of his plea.
[5] The grounds on which
the appellant rely upon why his appeal against sentence should
succeed, are that inappropriate. The court
a quo
erred in not
taking proper notice of the following:
5.1 that the pleaded
guilty;
5.2 he had no previous
convictions
5.3 the court
a quo
erred in not finding substantial and compelling circumstances to
deviate from the prescribed minimum sentence.
[6] The mitigating
factors and personal circumstances of the appellant are:
6.1 he was 26-years old
at the time of sentencing.
6.2 he is married and has
one child, 12 months of age at the time of sentencing.
6.3 his wife and both his
parents were unemployed and at the time of sentencing he was
maintaining them.
6.4 he is a traditional
healer and earned an income of approximately R4 000,00 per month.
6.5 He attended school up
to Standard 7.
6.6 He is a first
offender.
6.7 He pleaded guilty.
6.8 He has shown remorse
for what he has done.
6.9 He was in custody
awaiting trail for a period of 2 months.
[7] In sentencing the
appellant, the court
a quo
took into account the following
aggravating factors:
7.1 the age of the
complainant;
7.2 the position of trust
that existed, due to the fact that the appellant raped the
complainant while under his care as a traditional
doctor.
[8] Ms Kruger, attorney
for the appellant, submitted that the court
a quo
erred in not
finding that there were no substantial and compelling circumstances.
He submitted that the following factors constitute
substantial and
compelling circumstances.
8.1 The appellant pleaded
guilty, therefore did not waste the court’s time;
8.2 He is a first
offender;
8.3 The complainant had,
apart from a small tear in the term of life imprisonment is
shockingly inappropriate since the factors
referred to in paragraph 8
above, individually and cumulatively, constitute substantial and
compelling circumstances for the court
to deviate from the prescribed
term of life imprisonment. He submitted that a term of 17 to 20 years
imprisonment will be more
appropriate.
8.4 The personal
circumstances of the appellant as indicated in paragraph 6 above.
[9] Ms Kruger, submitted
that the appeal against sentence should succeed as the term of life
imprisonment is shockingly inappropriate
since the factors referred
to in paragraph 8 above, individually and cumulatively, constitute
substantial and compelling circumstances
for the court to deviate
from the prescribed term of life imprisonment. He submitted that a
term of 17 to 20 years imprisonment
will be more appropriate.
[10] In
S v MKOMO
2007 (2) SACR 198
(SCA) at 200 a – b, the court held as
follows:
“
It was also
to be borne in mid that life imprisonment as a sentence for rape
should be imposed only where the case was devoid of
substantial
factors compelling the conclusion that such a sentence was
inappropriate and unjust.”
[11] I submit that the
following factors constitute substantial and compelling
circumstances:
11.1 The appellant
pleaded guilty.
See
S v SEBATA
1994 (2) SACR 319
(C) at 326F:
“…
those
who are prepared to co-operate with authorities should receive
credit; they make a very real contribution towards combating
the
crime…”
The appellant is a
first offender in
S v WOODS
1973 (4) SA 95
(RA) at
96H – 97B the court held that:
“…
The
question of the appropriate sentence in the case of the first
offender almost always presents a judicial officer with problems
of
particular difficulty. … The publicity of the trial, his
exposure as a criminal, the far-reaching and often devastating
effect
of imprisonment on his social, family and economic life are, in the
case of a first offender, aspects of punishment which
should never be
over-looked or under-estimated.”
The complainant did not
sustain serious injuries. The appellant did not use violence during
the rape.
See
RAMMOKO v
DIRECTOR OF PUBLIC PROSECUTIONS
2003 (1) SACR 200
A at 205c –
d, where the court refers to
S v ABRAHAMS
2002 (1) SACR
116
SCA:
“
Some rapes
are worse than others and the life sentence ordained by the
legislature should be reversed for cases devoid of substantial
factors compelling the conclusion that such a sentence is
inappropriate and unjust.”
11.4 The personal
circumstances of the appellant.
[12] I am of the view
that the court
a quo
closed its mind to these important
mitigating factors. These strongly mitigating factors were played
down and the court
a quo
emphasised the aggravating factors.
[13] The appellant,
pleaded with genuine remorse guilty to the charge. Those who
genuinely do so should receive credit. See the
SABATA
case above.
[14] Hose crucial
mitigating factors should have been allowed to influence the trial
court in its difficult task of determining
an appropriate measure of
punishment. They did not. None of them was considered. The
appellant’s personal circumstances,
though mentioned, were not
meaning fully considered. Instead, the value(s) which should have
been properly attached to such significant
factors were virtually
watered down. They were not fully explored assessed and properly
taken into account.
[15] The seriousness of
the appellant’s actions should not be allowed to ______ by
overshadow his peculiar circumstances as
am individual. Here, I am
convinced that an error has been committed:
“
A failure to
take certain factors into account or an improper determination of the
value of such factors amounts to a misdirection,
but only when the
dictates of justice carry clear conviction that an error has been
committed in this regard.”
S v KIBIDO
1998 (2) SACR 213
(SCA) at 216h – I per Olivier JA.
[16] In the
circumstances, I am convinced that the regional court magistrate
materially misdirected himself. The misdirection was
of such a
nature, degree and seriousness that it can be said that the court
a
quo
did not properly or reasonably exercise its sentencing
discretion –
S v PILLAY
1977 (4) SA 531
(A) at
535A – B per Trollip JA.
[17] Ms Bester, on behalf
of the respondent, agreed that a sentence of 20 (twenty) years
imprisonment would have been an appropriate
sentence here. She
submitted that in determining whether there were substantial and
compelling circumstances, the cumulative effect
of the mitigating
factors must be looked at.
[18] Accordingly, I make
the following order:
18.1 The appeal against
the sentence and succeeds.
18.2 The convictions
stands.
18.3 The sentence of life
imprisonment on the appellant on 27 February 2008 is set aside and
substituted with the one below:
18.3.1 The appellant is
sentenced to 20 (twenty) years imprisonment.
18.3.2 The sentence shall
be deemed to have been imposed on 27 February 2008.
_________________
J. B. MTHEMBU, AJ
I concur.
_______________
M. H. RAMPAI, J
On
behalf of appellant: Attorney S. Kruger
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. A. Bester
Instructed
by:
Deputy
Director:
Public
Prosecutions
BLOEMFONTEIN
/eb