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[2024] ZALMPPHC 108
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Msiza v S (AA06/2023) [2024] ZALMPPHC 108 (3 September 2024)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
Appeal Case No:
AA06/2023
High Court No:
CC65/2016
(1)
REPORTABLE: NO
(2)
OF INTEREST TO THE JUDGES: NO
(3)
REVISED: NO
DATE: 03 SEPTEMBER 2024
SIGNATURE:
In the matter between:
THABANG LAWRENCE
MSIZA
APPELLANT
And
THE STATE
RESPONDENT
JUDGEMENT
MOGALE-MAKINTA, AJ
INTRODUCTION
[1]
This is an appeal against the sentence handed down
in the High Court Limpopo Division, Polokwane, by Kgomo J on 29 June
2018. The
appellant was found guilty and sentenced as follows:
1.1.
Count 1: Sexual assault (contravention of section
3 of the Criminal law Amendment Act 32 of 2007)- 10 years
imprisonment;
1.2.
Count 2: Theft- 6 years imprisonment;
1.3.
Count 3: Rape (contravention of section 3 of the
Criminal Law Amendment Act 32 of 2007)- Life imprisonment;
1.4.
Count 5: Rape - Life imprisonment:
1.5.
Count 6: Robbery with aggravating circumstances-
15 years imprisonment;
1.6.
Count 7: Rape (contravention of section 3 of the
Criminal Law Amendment Act 32 of 2007)- Life imprisonment;
1.1.1 The sentences in
counts 1. 2. 3, 5. and 6 were ordered to run concurrently with the
sentence in court 7; the effective sentence
that the accused is to
serve is one life imprisonment.
[2]
Leave to appeal the sentence was granted by the court a quo of this
division on 13
November 2019.
GROUNDS OF APPEAL
[3]
The appellant raised the following as his grounds of appeal:
a.
The court erred and misdirected itself, having convicted the
appellant of sexual
assault on count 1 but pronounced that he was
sentenced to 10 years imprisonment for Rape. Having convicted the
appellant of theft
on count 2 but pronounced that the appellant was
sentenced to 6 years imprisonment for Robbery with aggravating
circumstances.
b.
The court a quo erred in sentencing the appellant to life
imprisonment in count
3, which is harsh, disproportionate, and unjust
under the circumstances of this case and induces a sense of shock.
c.
The court erred in sentencing the applicant to life imprisonment
despite the
fact that the complainant's age was not proven.
d.
The court erred in imposing a sentence of life imprisonment on count
5. The applicable
minimum sentence at the time of the commission of
the offence was 10 years imprisonment.
e.
The court erred in imposing a sentence of life imprisonment in count
7, which
is harsh and disproportionate and induces a sense of shock.
f.
The court erred in finding that there are no substantial and
compelling
circumstances by not considering the appellant’s
personal circumstances and the circumstances of this case
cumulatively to
constitute substantial and compelling circumstances.
g.
In imposing the sentence of life imprisonment on courts 5 and 7, the
court misdirected
itself in that it did not find or show any
jurisdictional facts that justified the imposition of a sentence of
life imprisonment.
It is not enough that the state has charged and
indicted the appellant in terms of section 51(1) of Act 105 of 1997;
the court
still needs to make a finding based on the facts which
justify the imposition of such a sentence and that on the record it’s
not clear on what basis did the court impose the sentence of life
imprisonment.
SUMMARY OF EVIDENCE
[4]
R[...] L[...] S[...], a complainant in counts 1 and 2, was walking
from church to
her home around 20:00 when an unknown man approached
her, produced a knife, and placed it on her neck, demanding silence
and compliance
from her. She was dragged to the side of the road and
thrown to the ground. The man inserted his penis inside her mouth
until he
ejaculated inside her mouth. The man took possession of her
bag, which had some of her items, including her Samsung cellphone.
She was able to recognize the appellant when his penis was inside her
mouth as his face was not covered, and the following week.
as she was
walking from school, she met the appellant. She told her friend
Sabata that "this is the man who raped me."
She recognized
her Samsung cell phone at Zihle's homestead and later informed the
police.
[5]
P[...] M[...], a complainant in count 3, boarded a taxi from school
and alighted where
she was supposed to walk towards her home. It was
around 18h30. and it was dark. As she was walking. she was grabbed
from behind
by her neck and violently thrown to the ground. She was
dragged to the side of the road and threatened with death if she
screamed.
The man undressed her and inserted his penis into her
vagina, and raped her. She recognized the appellant by his voice and
called
him by his name, "Thabang,” which the appellant
disputed. She knew the appellant very well as they attended the same
church choir and as a child who grew up and stayed together in the
same village. She reported the matter to the police, and the
appellant was arrested.
[6]
H[...] K[...] N[...] M[...]. a complainant in counts 4, 5 and 6.
alighted from the
taxi at around 19h00. Walking towards her home, she
became aware that someone was following her. She decided to run, but
this person
caught up, grabbed her, and demanded money. However, she
did not have money, so she gave this person her cellphone, who she
recognized
by a male voice as a person. The man told her that because
she didn't have money, she would have to -pay with her body. She was
threatened with a knife, undressed, and ordered to bend forward while
naked. The man raped her. She later reported the matter to
the
police. She took the police to the scene, and they found her stocking
that the man had used to wipe his private parts with
after raping
her.
[7]
M[...] K[...] was coming from her boyfriend when she came across a
man wearing sangoma
cloth on his waist and wrist and some dreadlocks
on his head. As she wanted to board a taxi, she asked the man for
money to board
a taxi. The man suggested they walk together to his
house to get the money. On the way, the man produced a knife,
undressed her,
and inserted his penis into her vagina. He raped her
but ejaculated outside on the ground. He raped her on the second
occasion
but could not ejaculate. She made the report to the police
and was examined at the hospital.
[8]
During cross-examination, the appellant's evidence was a bare denial
on counts 1 to
3. In counts 4 to 7, the appellant raised an alibi by
stating that he was training in Thembisa as a Sangoma during the
alleged
period. There was no witness called to corroborate his alibi.
The appellant was linked by the DNA in the rape counts and
Identification
parade. Complainants in counts 1 to 3 knew the
appellant well before the incidents.
MITIGATION OF SENTENCE
[9]
The appellant, at the time of sentence, was 23 years old. Count 1 to
3 was committed
when he was 17 years old count 5 to 6 was committed
in 2014 when he was 19 and count 7 in 2015 when he was 20. He placed
his personal
circumstances on record that he has a minor child who
depends on him for support, parents who are pensioners, and the
mother of
his minor child, who is also unemployed. He trained and
worked as a sangoma and was the sole provider to his family.
[10]
The State did not prove any previous convictions against the
appellant. The appellant did not
submit the pre-sentencing report in
mitigation of the sentence, and the respondent submitted victim
impact reports in aggravation
of the sentence.
COMMON CAUSE FACTS
[11]
From issues raised as grounds of appeal, the following are common
cause between the parties.
The appellant's counsel conceded that the
sentence of 10 years imprisonment was imposed on count 1 after the
appellant was convicted
of sexual assault, not rape. The sentence of
6 years imprisonment for Robbery with aggravating circumstances on
count 2 after pronouncing
the conviction on theft is a misdirection.
The child's age in count 3 was not proven by either the birth
certificate or the parent's
testimony confirming the minor child's
age. The appellant was sentenced to life imprisonment in count 5,
whereas the applicable
minimum sentence at the commission of the
offence was 15 years imprisonment. Therefore, imposing a sentence of
life imprisonment
on counts 3 and 5 is a misdirection that needs
interference.
[12]
Based on these concessions, the appeal court finds that interference
is justified in counts 2
and 3, as alluded to by counsel.
THE RECORD
[13]
Reading from the trial records, the appeal court became aware of the
miscarriage of justice relating
to the appellant's age during the
commission of counts 1 to 3. Counts 1 and 2 relate to the
complainants, R[...] L[...] S[...],
and count 3 is P[...] M[...]. The
trial record established that the appellant was 17 years old when
offences in counts 1 to 3 were
committed between 11 April 2012 and 18
April 2012
[1]
.
[14]
Based on this evidence on record, it is clear that the trial court
did not consider the age of
the appellant when dealing with counts 1
to 3 and also erred by not dealing with the appellant in terms of the
Child Justice Act
[2]
.
[15]
These issues were not the subject matter of the appeal or raised by
the appellant in their grounds
of appeal. Since the intention of the
Court of Appeal is to dispense justice, this appeal court cannot
close its eyes to a patent
injustice simply because the injustice is
not the subject of the appeal.
[3]
[16]
“Section 322(1)(a)
[4]
empowers the appeal court to allow the appeal if it thinks that the
judgment of the trial court should be set aside on the grounds
of a
wrong decision of any question or law or that on any ground, there
was a failure of justice.” Therefore, it is necessary
to deal
with the law applicable when the courts deal with young offenders.
The law applicable
when dealing with young offenders
[17]
Section 77 of the Child Justice
[5]
,
states that:
(3)
A child who is 14
years
or older at the time of being sentenced for the offence
may only be sentenced to imprisonment if the child is convicted of an
offence
referred to in (a) Schedule 3(b) Schedule 2 if substantial
and compelling reasons exist for imposing a sentence of imprisonment.
(c) Schedule 1, if the
child has a record of relevant previous convictions and substantial
and compelling reasons exist for imposing
a sentence of imprisonment
(4)
A child referred to in subsection (3) may be sentenced to a sentence
of imprisonment
–
(a) for a period not
exceeding 25 years; or
(b) envisaged in
section 276 (1) of the Criminal Procedure Act.
[18]
The Constitution prescribes that it is an established law that
child offenders should be given special treatment and sentences that
are more lenient than those imposed on adults. Section 28(2) provides
that the best interests of the child are paramount in every
matter
concerning them, and section 28(1)(g) states that children should not
be imprisoned except as a measure of last resort.
[19]
In
S
v N and Another
[6]
Binns-Ward
J
held as follows:
"When a person
commits an offence while under the age of 18, their conduct falls to
be judged in the context of these considerations.
It would make no
sense then to treat them as adults for sentencing simply because the
intervening passage of time has resulted
in them being adults when
sentencing occurs. That would mean punishing them for what they had
done as children as if it had been
done when they were adults. That
such an approach would impinge on the substance of the rights
provided in terms of s 28 of
the Constitution is axiomatic."
[20]
The Child Justice Act protects Children's Constitutional Rights when
children conflict with the
law. The challenge to the sentence of this
court is based on how the trial dealt with the child offender and by
sentencing the
appellant in terms of the Minimum Sentencing Act
instead of the Child Justice Act. The trial court's failure to apply
the applicable
legislature when dealing with the appellant as the
child offender constitutes an irregularity. Therefore, due to the
irregularity
committed, the appeal court must set aside the sentence
imposed in counts 1 to 3.
[21]
The other misdirection established from the trial record concerns
count 6. The appellant was
convicted and sentenced for robbery with
aggravating circumstances, whereas evidence in count 6 proves that an
offence of theft
was committed.
[22]
The evidence of Ms. K[...] N[...] M[...] the complainant in count 6,
is summarized as follows:
"As I was walking
behind the clinic, I noticed that there was someone following me.
Then
I started to run; he was closer. When he arrived, he grabbed me from
behind and said I should give him my phone. I gave him
the phone and
then he said I should give him money. I told him that I did not have
money, and after I told him that I did not have
money, he said that I
would pay with my body.
[7]
[23]
The record of the proceeding shows that no aggravating circumstances
were present when the complainant's
phone was taken from her
possession. Therefore, a conviction and sentence for robbery with
aggravating circumstances is a misdirection
that warrants
interference. Thus, this court is obliged to impose an appropriate
sentence relevant to the crime of theft.
AD
SENTENCE
[24]
There are well-established principles governing the hearing of
appeals against sentences. In
short, punishment is pre-eminently a
matter of the trial court's discretion, and the court of appeal
should be careful not to erode
that discretion. Interference is only
warranted if it is convincingly shown that the discretion has not
been judicially and properly
exercised. The test is whether an
irregularity or a material misdirection vitiates the sentence imposed
or is disturbingly inappropriate.
[25]
This principle was echoed in
S
v Van Wyk and Another
[8]
the
SCA held
that:
“
it
would interfere with sentences imposed by a trial court only where
the degree of disparity between the sentence imposed by the
trial
court and the sentence the appeal court would have imposed was such
that interference was competent and required. But then,
the court
cautioned, the appellate court needed to have a definite view of what
sentence it would have imposed, even if it could
only identify a
particular range within which it would have imposed the sentence.”
[26]
The imposition of a sentence is pre-eminently a matter for the trial
court's discretion. The
trial court is free to impose whatever
sentence it deems appropriate if it exercises its discretion
judicially and properly. In
S
v Pillay
,
[9]
the court said:
"As the essential
enquiry in an appeal against sentence, however, is not whether the
sentence was right or wrong but whether
the Court in imposing it
exercised its discretion properly or judicially, a mere misdirection
is not by itself sufficient to entitle
the Appeal Court to interfere
with the sentence, it must be of such a nature, degree or seriousness
that it shows, directly or
inferentially, that the court did not
exercise its discretion at all or exercised it improperly or
unreasonably. Such misdirection
is usually and conveniently termed
one that vitiates the court’s decision on the sentence.”
[27]
The appellant raised the ground of appeal that the court erred by not
giving its reasons for
imposing the sentence of life imprisonment in
count 7. It is evident from the trial court that the appellant in
count 7 was charged
and convicted for raping M[...] K[...] more than
once, which falls within the purview of
Section 51(1)
of the
Criminal
Law Amendment Act 105 of 1997
.
[28]
The general approach to impose sentences in terms of the Minimum
Sentencing Act was considered
in
S v Malgas,
and the relevant
principles were summarized:
"[25] What stands
out quite clearly is that the courts are a good deal freer to depart
from the prescribed sentences than has
been supposed in some of the
previously decided cases and that it is they who are to judge whether
or not the circumstances of
any particular case are such as to
justify a departure. However, in doing so, they are to respect and
not merely pay lip service
to the legislature’s view that the
prescribed periods of imprisonment are to be taken to be ordinarily
appropriate when crimes
of the specified kind are committed".
Section
51
[10]
has
limited but not eliminated the courts’ discretion in imposing
sentences in respect of offences referred to in Part 1 of
Schedule 2.
The courts are also required to approach the imposition of sentence
conscious that the Legislature has ordained life
imprisonment as the
sentence that should ordinarily and in the absence of weighty
justification be imposed for the listed crimes
in the specified
circumstances.
[11]
The Legislature has,
however, deliberately left it to the courts to decide whether the
circumstances of any particular case call
for a departure from the
prescribed sentence. While the emphasis has shifted to the objective
gravity of the type of crime and
the need for effective sanctions
against it, this does not mean that all other considerations are to
be ignored. The ultimate impact
of all the circumstances relevant to
sentencing must be measured against the composite yard-stick,
compelling, and substantial
circumstances. It must cumulatively
justify a departure from the standardized response that the
Legislature has ordained.”
[29]
The trial court considered his youthfulness, personal circumstances,
and the crime and weighed
against the aggravating circumstances of
this matter. The court a quo also finds that the appellant failed to
show remorse because
a remorseful person would not go out when his
case is running and commit a similar offence. Although the appellant
was still relatively
young, his modus operandi during the commission
of these offences indicates that the appellant needed help that could
only be obtained
in the correctional facility to be rehabilitated.
[30]
After considering and contrasting the circumstances against the
aggravating circumstances, the
trial court found that no substantial
and compelling circumstances warranted deviation. The appeal court
agrees with the findings
of the court a quo on the lack of
substantial and compelling circumstances justifying the imposition of
a lesser sentence other
than the one prescribed by the Act.
[31]
Consequently. the following order is made;
31.1. The
appeal against the conviction and sentence in counts 1-3 is hereby
upheld.
31.2.
The appellant’s conviction and sentence is
set aside on counts 1-3, and the appellant is found not guilty and
discharged.
31.3.
The sentence of the trial court in counts 5 and 6
is set aside and replaced with the following order:
31.4.
Count 5: Rape- The sentence of life imprisonment
is substituted by a sentence of 15 years imprisonment
31.5.
Count 6: Theft- The sentence of 15 years
imprisonment is substituted by a sentence of 3 years imprisonment.
[32]
The sentences in counts 5 and 6 run concurrently with the sentence in
count 7. Thus, the
appellant is effectively sentenced to life
imprisonment.
MOGALE-MAKINTA
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE.
TSHIDADA
JUDGE OF THE HIGH
COURT,
LIMPOPO DIVISION
POLOKWANE
MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION
POLOKWANE
Electronically
submitted.
Delivered: This
judgment was prepared and authored by the judges whose names are
reflected and handed down electronically by circulation
to the
parties/their legal representatives by email. The date for hand-down
is deemed to be 03 September 2024
DATE
OF HEARING
:
31 May 2024
DATE
OF JUDGEMENT
:
03 September 2024
APPEARANCES
FOR
THE APPLICANT
:
DJ Nonyane
INSTRUCTED
BY
:
The Legal Aid SA
FOR
THE DEFENDANT
:
R E Masutha
INSTRUCTED
BY
:
The Director of Public Prosecutions
[1]
See record volume 3 of
4, page 320, para 13-21
[2]
Act 75 of 2008
[3]
S v Toubie 2012 (4) ALL
SA 290
[4]
Criminal Procedure Act
51 of 1977
[5]
Act 75 of 2008
[6]
(WCC) (unreported case
no SHE 59/14, 9-1-2025) (Binns-Ward J)
[7]
See Record Volume 1 of
4, page 78, para 5-10
[8]
2015(1) SACR 584 (SCA)
at 31-32
[9]
1977(4) ALL SA 713(A)
717 535 F-G
[10]
Minimum Sentencing Act
51 of 1997
[11]
See Malgas supra