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2008
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[2008] ZAFSHC 132
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Mathe v S [2008] ZAFSHC 132 (4 December 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No. :
A352/07
In
the
case
between:-
MARUPING
ELIAS MATHE
Appellant
versus
THE
STATE
Respondent
_____________________________________________________
CORAM:
VAN
ZYL
et
MOCUMIE, JJ
_____________________________________________________
HEARD
ON:
24
NOVEMBER 2008
_____________________________________________________
DELIVERED
ON:
4
DECEMBER 2008
_____________________________________________________
APPEAL
_____________________________________________________
MOCUMIE,
J
[1] The
appellant appeared in the Regional Court of Bloemfontein on a count
of rape. He pleaded guilty and was convicted as charged
on 28 March
2007 and was sentenced to 15 (fifteen) years imprisonment in terms of
the Criminal Law Amendment Act, 105 of 1997,
(“the Minimum
Sentences Act”). He is now appealing against the sentence
only.
[2] The
circumstances surrounding the commission of the offence are set out
in the accused
’s
statement in terms of section 112 of the Criminal Procedure Act, 51
of 1977, (“CPA”).
[3] The appellant’s
personal circumstances are the following:
3.1 He was 24 years of
age when he committed this offence;
3.2 He
was single and had no dependants;
3.3 He was not employed
nor attending school;
3.4 He was not a first
offender.
[4] The aggravating
circumstances in this case are the following:
4.1 The complainant is
much older than the appellant. She was 33 years old then - a
difference of 9 years between them.
4.2 The complainant and
the accused are well-known to each other;
4.3 The appellant broke
into the home of the complainant whilst she was sleeping, assaulted
her and raped her;
4.4 The
appellant has been previously convicted of rape during 1999 nearly 9
years ago when he was just 17 years. This on its own
is an
indication that the court then had no option but to use the last
resort of punishment provided for in the CPA on a youthful
offender.
Evidently 5 (five) years did not teach him anything.
[5] Mr.
Nkhahle,
for the appellant, argued that a sentence of 15 (fifteen) years
imprisonment is grossly disproportioned to the personal
circumstances
of appellant. The presiding officer over-emphasised the seriousness
of the offence despite the accused’s guilty
plea which showed
remorse on his part. With respect I disagree. If anything, the
presiding officer erred on the side of leniency
under these
circumstances. Undoubtedly the appellant acted in a most daring
manner. From the evidence and his previous convictions,
it is clear
that he has no respect for the law and for women. He squandered the
chance of rehabilitation that he was given previously
at the age of
17 years. This indicates the propensity of the accused to continue
to rape as long as he is not behind bars. No
other court can
interfere with the sentence imposed. It is a proportionate and
balanced sentence taking into account the seriousness
of the offence,
its prevalence and the personal circumstances of the accused.
[
6]
In
the circumstances the following order is made:
Order:
The appeal is
dismissed.
The sentence of 15
(fifteen) years imprisonment imposed by the presiding officer on 28
March 2007 is confirmed.
_
______________
B.C. MOCUMIE, J
I
concur
.
____________
C. VAN ZYL, J
On behalf of
appellant: Adv. Nkhahle
Instructed by:
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. A. Bester
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
/sp