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
>>
2024
>>
[2024] ZAFSHC 133
|
|
Mkhaulezi v S (A113/2023) [2024] ZAFSHC 133 (9 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number: A113/2023
In
the matter between:
MSOKOLI
MKHAULEZI
and
Appellant
THE
STATE
Respondent
CORAM:
VANZYL,
J et LOUBSER, J
HEARD
ON:
12
FEBRUARY 2024
JUDGEMENT
BY:
LOUBSER,
J
DELIVERED
ON:
9
MAY 2024
[1]
The
Appellant in this appeal was convicted in the Botshabelo Regional
Court on three counts of rape and sentenced to life imprisonment.
His
appeal is only directed at the sentence, and not the convictions,
which were taken together for the
purposes
of
sentence
.
In
terms of the provisions of Section 10 of the Judicial Matters
Amendment Act,
[1]
the Appellant
has an automatic right of appeal against his sentence of life
imprisonment.
[2]
Since the
Appellant is not challenging the findings of the Court a
quo
in respect
of the merits of the case against him, those findings may safely be
accepted as a true reflection of what happened on
the night in
question. The Court found on the evidence before it, that on the
night of 22 November 2014, the Appellant first attacked
the female
complainant by hitting her with a sealed beer bottle on the eye. He
then forced her into a structure that was used as
a church, were he
raped her. He thereafter took her to an empty reservoir where he
forced her inside and raped her for the second
time. He then forced
her to perform oral sex on him
.
The Appellant
was not done yet, however, because he then took the complainant to
the shack where he resided
.
There he raped
her for the third time inside the shack, where he held her captive
afterwards for a while, until she managed to escape
and to report the
events to the police.
[3]
The Court a
quo
also
referred to the medical evidence pertaining to the injuries sustained
by the complainant at the hands of the Appellant during
the incidents
of rape
.
Her
right eye was bruised and there was a wound below it, caused by the
beer bottle. She had bruises and scratches on her forearm,
and her
upper left arm was also bruised
.
In addition
,
she also
sustained injuries to her private parts
.
A victim
impact statement handed in by the State
,
showed that
the complainant is suffering from severe psychological problems in
that she cannot sleep at night and does not have
a social life any
more. She is frightened of men because she does not know what they
would do to her.
[4]
In
his
Notice
of
Appeal,
the
Appellant relies
on
the
following grounds
for
the
appeal: Firstly, he
submits that the Court a
quo
erred in
that the sentence of life imprisonment is shockingly harsh and
inappropriate. Secondly, the Court failed to pay proper
attention to
the mitigating circumstances, including the fact that the Appellant
was a first-time offender and showed remorse for
his conduct.
Thirdly, the Court did not give enough weight to the personal
circumstances of the Appellant, especially that the
Appellant was
only 24 years old at the time when the crimes were committed.
Fourthly, the Court did not take into account that
the crimes were
not premeditated, and fifthly, the Court erred by placing too much
emphasis on the interest of society as well
as that of the victim,
and failed to balance the scales of justice equitably.
[5]
I pause here
to mention that the Appellant was not a first-time offender, as
alleged in the Notice of Appeal. Although he was a
first offender as
far as crimes of a sexual nature are concerned, he did have a number
of previous convictions which caused him
to spend some time in
prison. As for the remorse allegedly shown by the Appellant, the
Court
a quo
specifically
found that he did not show any remorse at all during the trial
proceedings. This finding of the Court
a
quo
cannot
be faulted because the Appellant persisted in his innocence
throughout the proceedings
.
[6]
Now
the point of departure in this appeal against sentence is provided by
Section
51(1) of the Criminal Law Amendment Act.
[2]
Section 51(1) provides that
"notwithstanding
any other law, but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person
it has convicted of an
offence referred to in Part I of Schedule 2 to imprisonment for
life."
Part
I of Schedule 2 refers,
inter
alia,
t
o
the
offence of rape when committed in circumstance
s
where
the victim was raped more than once, whether by the accused or by any
co perpretator or accomplice. In the present matter
the
Appellant was convicted of raping the complainant three times during
the night
in
question,
and therefore he had to be sentenced to life imprisonment in terms of
Section 51(1).
[7]
However, in
terms of Section 51(3), the Court must impose a lesser sentence if it
is satisfied that substantial and compelling circumstances
exist
which justify the imposition of a lesser sentence than the sentence
of life imprisonment. In the present matter the Court
a
quo
found
that no such substantial and compelling circumstances existed. The
essential question on appeal is therefore whether the Court
a
quo
was
correct in finding as such.
[8]
Furthermore,
this Court can generally only interfere with the sentence imposed by
the
t
rial
court if it is clear that an irregularity took place during the
sentencing stage, tha
t
the
court misdirected itself in respect of the imposition of sentence, or
that the sen
t
ence
imposed was disturbingly or shockingly inappropriate.
[3]
A
court of appeal is
n
ot
free
to
interfere
with
the
sentence
if
it
might
have
imposed
a
different
sentence
had it been the court of first instance. It may also do so if it is
convinced that the trial court could not have reasonably
passed the
sentence that it did.
[4]
[9]
Where
minimum sentences in terms of Act 105 of 1997 are concerned, the
Supreme Court of Appeal has reiterated that courts should
not depart
from the prescribed minimum sentences lightly and for flimsy
reasons
.
[5]
The
correct approach by a court of appeal against a sentence
imposed
in
terms
of the Act, was also authoritatively stated by the Supreme Court of
Appeal as follows: "The approach to an appeal on
sentence
imposed in terms of the Act should
...
be
different to an approach to other sentences imposed under the
ordinary sentencing regime. This, in my view, is so because the
minimum sentences to be imposed are ordained by the Act.
..
It
follows therefore that a proper enquiry on appeal is whether the
facts which were considered by the sentencing court are substantial
and compelling, or not"
.
[6]
[10]
A reading of
the judgement on sentence in the present matter
,
leaves no
doubt that the trial Magistrate had duly considered each and every
circumstance before arriving at her conclusion that
there were no
substantial and compelling factors which would call for a lesser
sentence
.
After
referring to the seriousness of the crimes committed by the
Appellant, and the need to protect the interest of society, she
dealt
with the personal circumstances of the Appellant which counted in his
favour. He was relatively young (24 years old) when
he committed the
crimes, and he had been in custody awaiting trial for almost 3 years.
He
is
not
married, but he has a four-year-old child who resides with the
mother. His highest level of education is grade 10. At the same
time,
she
referred
to the
injuries sustained by the complainant. The trial Magistrate then came
to the conclusion that the seriousness of the crimes
by far outweighs
the personal circumstances of the Appellant.
[11]
It
is
clear that the trial Magistrate had balanced all the relevant factors
and that she did not over-emphasize any of them. In addition,
the
facts considered by the
Magistrate
are certainly not substantial and compelling in favour of the
Appellant. For instance, his relative youthfulness at the
commission
of the crimes can be no more than a neutral factor. It is evident
from S v Matyityi
[7]
that the
courts generally require an accused older than 20 years to show that
his immaturity was such that it can serve as a mitigating
factor. In
the present case there is no evidence to such effect.
[12]
As
for the fact that the Appellant spent nearly 3 years in prison
awaiting trial, this can also not assist him. The Supreme Court
of
Appeal has determined that, by itself, a pre-conviction period spent
in custody does not constitute substantial and compelling
circumstances which would justify a deviation from the prescribed
minimum sentence.
[8]
[13]
In the
premises, there is no basis upon which this Court can interfere with
the sentence imposed by the Court a
quo.
The
following orders are therefore made:
1.
The appeal is
dismissed.
2.
The sentence
of life imprisonment is confirmed.
P.
J. LOUBSER, J
I
concur:
C.
VAN ZYL, J
On
behalf of the Appellant:
Mr.
P. L. van der Merwe
Instructed
by:
Legal
Aid South Africa
On
behalf of the Respondent:
Adv.
L. Mkhabela
Instructed
by:
Office
of the OPP
,
Bloemfontein
/roosthuizen
[1]
Act
42 of 2013
[2]
Act
105 of
1
997
[3]
S
v Petkar
1988 (3) SA 571
(A) at 574 C
[4]
S
v
Ncheche
200S
(2)
SACR
386
(W)
at
388c
[5]
S
v Matyityi
2011
(1)
SACR
40
{SCA)
at
par
23
[6]
S
v PB
2013 (2) SACR 533
(SCA)
at par 20
[7]
See
footnote 5 above, at page 48 b
[8]
S
v Radebe and Another
2013(2)
SACR 165 (SCA) par. 14 page 170