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2024
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[2024] ZAFSHC 198
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Leseli v S (A192/2023) [2024] ZAFSHC 198 (25 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
no.
A192/2023
In
the appeal of:
LEBOHANG LESELI
and
THE
STATE
Appellant
Respondent
CORAM:
MUSI, JP et MANYE, AJ
HEARD
ON:
29 APRIL 2024
DELIVERED
ON:
25 JUNE 2024
JUDGMENT
BY:
MANYE, AJ
Criminal law procedure –
rape – minimum sentencing legislation –
Criminal Law
Amendment Act 105 of 1997
– role of presiding officer in
relation to finding of substantial and compelling circumstances.
[1]
This appeal come before this Court against a sentence imposed by the
Regional Court: Bloemfontein,
for contravening s 3 of the Sexual
Offences Act 32 of 2007 read with the provisions of s 51 of the
Criminal Law Amendment Act 105
of 1997 (the Act) and a subsequent
sentence of life imprisonment. It is so that the appellant enjoys an
automatic right of appeal
in terms of s 309(1)
(a)
of Criminal
Procedure Act 51 of 1977 (CPA).
[2]
The appellant was legally represented and tendered a plea of not
guilty. His defence was that
the complainant consented to the sexual
intercourse as they were involved in a love relationship. It
therefore became common cause
that the accused, on the date in
question, had sexual intercourse with the complainant in the manner
stated in the charge sheet,
to wit by penetrating her vagina with his
penis.
[3]
According to the complainant the alleged rape occurred on or about 18
October 2023 at Ferreira,
near a railway line in Bloemfontein. The
complainant testified that, upon leaving a tavern where she had just
enjoyed her Namaqua
beverage, she made her way home following a
railway line. Upon arriving at the railway line, three people came
running towards
her, grabbed her, threw her on the grass, held her
down and they had sexual intercourse with her without her consent,
one after
the other. The complainant managed to escape her attackers
and fled to a house, inhabited by one Ace Rontang and his wife.
During
her ordeal she managed to recognize the appellant by his voice
when he answered a cell phone call while she was at Ace’s
house. She testified that she knew him from the time that the
Appellant had a love-relationship with her little sister. The state
called both Mr Ace Rontang and his wife as witnesses.
[4]
The appellant’s case was simply that at the time of the alleged
incident he had had a love-relationship
with the complainant. He
further testified that at one previous time, his wife caught him and
the complainant having sexual intercourse
at the appellant’s
house. He vehemently denied raping the complainant and stated that
the only sexual intercourse that transpired
was consensual. He
testified that the only motivation he could think of as to why the
Complainant would have laid this charge against
him would have been
that she wanted him to leave his wife.
[5]
The magistrate, in his judgment, summarised and alluded to the
evidence tendered by both the state
and the defence. However, the
appellant’s grounds of appeal rests on his contention that the
Court
a quo
erred when it did not find that his personal
circumstances were substantial and compelling to the extent necessary
for deviation
from the prescribed minimum sentence of life
imprisonment.
[6]
It is so that rape, in the nature in which it is carried out, is
outright distasteful and abhorrent.
It violates its victim bodily
integrity and strikes the core of the victim. It inflicts long
lasting untold psychological and emotional
damage.
[1]
The Constitutional Court previously put it as follows:
‘
Today rape is
recognised as being less about sex and more about the expression of
power through degradation and concurrent violation
of the victim’s
dignity, bodily integrity and privacy.’
[2]
[7]
The question before this Court is whether this Court should interfere
with the sentences imposed,
by making an order in terms of s 280 of
the CPA. Having regard to the minimum sentencing provisions of the
Act that came into effect
on 1 May 1998, a sentence of life
imprisonment had to be imposed on the appellant unless substantial
and compelling circumstances
exist which justify the imposition of a
lesser sentence.
[3]
In
considering the question of the existence, or otherwise, of
substantial and compelling circumstances, the facts of the particular
case must present some circumstances that are quite exceptional in
nature. Their exceptionality must obviously and conspicuously
expose
the injustice of the statutorily prescribed sentence in the
particular case that it can rightly be described as ‘
compelling
’
.
[4]
In
S v
Malgas
[5]
(
Malgas
),
the Court held that ‘[t]he imposition of the prescribed
sentence need not amount to a shocking injustice . . . before a
departure from it is justified. That it would be an injustice is
enough.’
[6]
[8]
Section 51(1) of the Act reads as follows:
‘
Notwithstanding
any other law but subject to subsection (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.
The same Act continues by
providing is s 51(3)
(a)
:
‘
If any Court
referred to in subsection (1) or (2) is satisfied that substantial
and compelling circumstances exist which justify
the imposition of a
lesser sentence than the sentence prescribed in those subsections, it
shall enter those circumstances on the
record of the proceedings and
may thereupon impose such lesser sentence: . . .’
[9]
Part 1 of Schedule 2 of the Act insofar as it is relevant to the
crime of rape reads as follows:
‘
Rape, as
contemplated in section 3 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007–
‘
(a)
when
committed-
(i)
in the circumstances where the accused is convicted of the offence of
rape and evidence adduced at the trial of the accused
proves that the
victim was also raped by-
(aa)
any co-perpetrator or accomplice; or
(bb)
a person, who was compelled by any co-perpetrator or accomplice, to
rape the victim, as contemplated in
section 4
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act
, 2007,
irrespective of whether or not the co-perpetrator or accomplice has
been convicted of , or has been charged with, or is
standing trial in
respect of , the offence in question;
(ii)
in the circumstances where the accused is convicted of the offence of
rape on the basis that the accused acted in the execution
or
furtherance of a common purpose or conspiracy and evidence adduced at
the trial of the accused proves that the victim was raped
by more
than one person who acted in the execution or furtherance of a common
purpose or conspiracy to rape the victim, irrespective
of whether or
not any other person who so acted in the execution or furtherance of
a common purpose or conspiracy has been convicted
of , or has been
charged with, or is standing trial in respect of , the offence in
question;
(iii) . . .
(iv)
by a person, knowing that he has the acquired immune deficiency
syndrome or the human immunodeficiency virus;’
The aforementioned
legislation indicates, unambiguously, the clear intention of the
legislator
that the perpetrators of these serious offences against vulnerable
and defenceless women should be sentenced to long
terms of
imprisonment.
[7]
Such sentences
shall only be departed from if a Court is satisfied that there are
substantial and compelling circumstances which
warrant such a
deviation.
[10]
In
casu
, the real issue was whether the effect of a sentence
of life imprisonment imposed by the Court a quo on one count of rape,
was
shockingly or disturbingly inappropriate and whether this Court
should interfere with the sentence imposed by making an order in
terms of
s 280
of the CPA. Mrs Kruger, for the appellant, submitted
in mitigation that there were indeed compelling and substantial
circumstances
and the Court ought to consider the following in this
regard:
That:
(a)
the Appellant was 35 years old at the time of sentencing;
(b)
the Appellant is married and with three minor children aged
17, 11
and three years old who depend on him for financial maintenance and
support;
(c)
He was a first time offender; and
(d)
He had shown remorse and asked for forgiveness from the complainant.
[11]
She further stated that since the complainant suffered no injuries,
the decision in
Mudau
v S
[8]
was to be applied where the court held that:
‘
He correctly in my
view concluded that the proper interpretation of the provision does
not preclude a court sentencing for rape
to take into consideration
the fact that a rape victim has not suffered serious or permanent
physical injuries, along with other
relevant factors, to arrive at a
just and proportionate sentence.’
[9]
[12]
Mrs N Mazwi, for the State, submitted that there was nothing
compelling and substantial about the personal
circumstances of the
Appellant. She pointed out that the provisions of
s 51(3)
(aA)
(ii)
[10]
and other relevant authorities find application, namely that the lack
of physical injuries, permanent psychological trauma and
rape not
being the worst of its kind, alone, cannot and should not be
considered compelling and substantial in order to deviate
from the
prescribed minimum sentence.
[13]
The Supreme Court of Appeal, in
Director
of Public Prosecutions Eastern Cape, Makhanda v Coko (Women’s
Legal Centre Trust, Initiative for Strategic Litigation
in Africa and
Commission for Gender Equality Intervening as Amici Curiea),
[11]
stated as follows:
‘
For most women and
children, in particular, the rights guaranteed everyone in the Bill
of Rights, such as the right to be free from
all forms of violence
from either public or private sources; bodily and psychological
integrity, including the right to make decisions
concerning
reproduction and security in and control of their bodies, ring
hollow. Thus, it brooks no argument to the contrary that
rape
gratuitously violates the fundamental value of human dignity and
related rights.’
[12]
[14]
As indicated above, the question before this Court is whether this
Court is at liberty to interfere with
the sentences imposed, by
making an order in terms of
s 280
of the CPA. It is trite that in an
appeal against a sentence, a court of appeal should be guided by the
principle that punishment
is pre-eminently a matter for the
discretion of a trial court and the court of appeal should be careful
not to erode that discretion.
The sentence imposed by a lower court
could be varied, only if:
(a)
an irregularity took place during the trial or sentencing stage;
(b)
the Court
a quo
misdirected itself in respect of the
imposition of the sentence; or
(c)
the sentence
imposed by the Court
a
quo
is
disturbingly and shockingly inappropriate.
[13]
[15]
The appellate court in
Rex
v Dhlumayo and Another
[14]
stated that:
‘
Where
the judicial officer in the trial court has taken every point into
consideration and has not misdirected himself or been guilty
of any
error of law, an appeal court, in a case in which the ground of
appeal is that the trial court ought to have had a doubt,
will not be
entitled to interfere with the verdict unless it is satisfied that
the trial court ought to have had a doubt; but I
am prepared to
assume that in this appeal, because of the criticism to which I have
referred, we should re-try the case in the
sense of inquiring whether
on the record of the evidence, taken in conjunction with the
impression made on the trial court by the
witnesses, we ourselves are
satisfied beyond reasonable doubt of the guilt of the
appellants.’
[15]
[16]
In
casu
, the aggravating factors are numerous. The appellant
and individuals only known to him perpetrated the rape and abuse of
the complainant.
The appellant consciously and voluntarily chose not
to reveal his accomplices to the rape, even after he was identified
and charged
with this offence which carries consequences upon
conviction. A further horrifying aspect of his actions was the fact
that he knew
his victim well as he previously had a relationship with
her. As such, the aggravating factors far outweigh the mitigating
factors
;
the gravity of the offence and the scourge of such
offences in the society on helpless and vulnerable women cannot be
downplayed
and the effect of these crimes cannot be understated.
[17]
This Court accepts that the sentence of life imprisonment imposed is
indeed severe, but the facts of this
case are such that a sentence of
life imprisonment is not shockingly disproportionate to the crime.
The appellant, without shame
and with total disregard of his victim’s
older age as well as her inability to defend herself, chose to
exploit those vulnerabilities.
The worst part is that he tried to
deceive the court a quo into believing that the unlawful and
intentional sexual intercourse
with the complainant occurred in the
context of a so-called ‘love relationship’.
[18]
It is evident from a reading of the record that the magistrate was
well aware of the guidelines enunciated
Malgas
and alluded
them in respect of the imposition of or deviation from the prescribed
minimum sentence for the offence of which appellant
was convicted,
namely a sentence of life imprisonment. The trial court had proper
regard to the personal circumstances of the appellant,
including his
age of 24 years, being married and the father of three children. The
seriousness of the offence of rape, with reference
to trite case law,
was considered by the magistrate. The court a quo further dealt with
the interest of the community in having
the crime of rape rooted out
by our courts.
[19]
Having assessed the aforementioned factors and having weighed the
mitigating and aggravating factors, the
magistrate concluded that he
had not been convinced that compelling and substantial circumstances
existed that would cause him
to deviate from the prescribed minimum
sentence. In the premises of the reasoning above, this court accepts
the factual findings,
the conviction of the court
a quo
and
concurs that there are no justifiable grounds to interfere with the
sentence imposed.
ORDER:
[20]
In the result, the following order is made:
The appeal is dismissed.
MANYE,
AJ
I
concur
MUSI,
JP
APPEARANCES:
On
behalf of the Appellant
Ms.
S Kruger
Instructed
by:
Legal
Aid South Africa
BLOEMFONTEIN
On
behalf of the State
Adv.
Mazwi
Instructed
by:
Director
Public Prosecutions Free State
BLOEMFONTEIN
[1]
S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) para 3: ‘Rape
is a very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of
the privacy, the dignity and the
person of the victim.’
[2]
Masiya
v Director of Public Prosecutions Pretoria and Another (Centre for
Applied Legal Studies and Another as Amici Curiae)
[2007]
ZACC 9
;
2007 (5) SA 30
(CC) para 78.
[3]
Section 51(3) of
the
Criminal Procedure Act 105 of 1997, Section 51(3)
[4]
S
v Shongwe
1999
(2) SACR 220
(O) at 223.
[5]
S v
Malgas
2001
(1) SACR 469
SCA
[6]
Ibid para 23.
[7]
Footnote 3 at 4.
[8]
Mudau
v S
2013
(2) SACR 292
SCA at 26
[9]
Ibid para 26.
[10]
Act
105 of 1997
[11]
Director
of Public Prosecutions Eastern Cape, Makhanda v Coko (Women’s
Legal Centre Trust, Initiative for Strategic Litigation
in Africa
and Commission for Gender Equality Intervening as Amici Curiae)
[2024]
ZASCA 59.
[12]
Ibid para 7.
[13]
State
v De Jager and Another
1965
(2) SA 616
(A) 629 A-B.
[14]
R v
Dhlumayo and Another
1948
(2) SA 677 (A).
[15]
Ibid at 687.