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[2024] ZAFSHC 298
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Mohono v S (A44/2024) [2024] ZAFSHC 298 (18 September 2024)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
Case
no:
A44/2024
In
the matter between
ANDRIES
MPHO MOHONO
Appellant
And
THE
STATE
Respondent
Coram:
Mhlambi J,
et
Daniso J
Heard:
26
July 2024
Delivered:
18
September 2024
ORDER
1.
Condonation to file a supplemented Notice
of Appeal is granted.
2.
The appeal against the convictions and
sentences is dismissed.
JUDGMENT
Daniso
J (Mhlambi J concurring)
[1]
On 10 September 2018 the appellant was convicted
after
pleading not guilty to
six
counts involving: two counts of rape in contravention of
section 3 of the Criminal Law (Sexual Offence and Related
Matters)
Amendment Act 32 of 2007 read with section 51(1) of the Criminal Law
Amendment Act 105 of 1997 (“the CLAA”),
two counts of
pretending to be a police officer in contravention of the South
African Police Services Act,
[1]
abduction and kidnapping a minor by the Bloemfontein regional court.
He elected not to disclose the basis of his defence in terms
of
section 115 of the
Criminal
Procedure Act
[2]
(CPA).
[2]
The State alleged that on 24 December 2013
at Freedom
Square in Bloemfontein the appellant raped P[…] K[…]
(count 1) while impersonating a police officer (count
2).
Approximately two years later on 2 April 2015 at Theunissen, the
appellant raped N[...] M[...] (count 3) after abducting her
(count 5)
and kidnapping K[...] N[...] (count 6). He also committed these
offences while pretending to be a police officer (count
4).
[3]
Count 1 and 3 attracted
the prescribed minimum
sentences of
life imprisonment
in terms of the CLAA
as
the complainants were 15 and 13 years old respectively.
The
appellant was subsequently sentenced to life imprisonment in respect
of those counts the trial court having found no substantial
and
compelling circumstances warranting a deviation from the prescribed
minimum sentences and on the remaining counts, the following
sentences were imposed; count 2, two year’s imprisonment; count
4, two year’s imprisonment; count 5, three years’
imprisonment and count 6, three years’ imprisonment. In
terms
of section 280 of the CPA, the sentence in count 2 was ordered to run
concurrently with the sentence imposed in count 1 and
those imposed
in count 4, 5 and 6 to run concurrently with the sentence imposed in
count 3.
[4]
This appeal is directed against the convictions and
sentences.
[5]
Before turning to the issue to be
considered in this application, there is a
preliminary issue
raised by the appellant which
needs to be
addressed.
The appellant seeks condonation to file a
supplemented Notice of Appeal on the grounds that the Notice of
Appeal filed on 7 March
2022 was incomplete.
[6]
The application is not opposed and taking into account that the
ineptitude in filing a proper Notice of Appeal is not
attributable to the appellant and that no prejudice has been
indicated by
the State, I am of the view that the appellant should
not be prejudiced in exercising his right to bring this matter before
court.
It is also
in
the interests of the State as well that this matter is finalized.
Accordingly, condonation for the late filing of the supplementary
Notice of Appeal to form part of the record of these
proceedings is granted.
[7]
In respect of count 1 and 2, the appellant was
convicted on the evidence of P[...] K[...], her friends P[...] O[…],
M[…]
T[…] (M[…]), B[…] H[…]
(B[…]), the first report in respect of the rape charge, Ms
K[…]
R[…] (P[...] K[...]’s Aunt), the J88 medical
report and the
deoxyribonucleic
acid (DNA) evidence
.
[8]
P[...] K[...] testified that on 24 December 2013, she was with her
friends when they were accosted
by the appellant on their way from
purchasing Whiskey. He introduced himself as a police officer and
reprimanded B[...] who was
urinating in the street. The appellant was
wearing civilian clothing and had a police badge attached to his
clothing. He also told
them that he was searching the youth drinking
in the street. After searching their bag, he found the bottle of
Whiskey and phoned
someone he referred to as Sergeant. He informed
that person that he had found some youth in possession of liquor. He
asked them
for their ages and told them they will be arrested for
being in possession of liquor. He then let B[...] and M[…]
leave
as they were older. He remained with P[...] K[...] and P[...]
O[...], he promised to release them also but he only released P[...]
O[...]. After P[...] O[...] left, he told P[...] K[...] that he is
arresting her for drinking in public and asked her whether she
wanted
to go to prison. When she said no, he told her that she will have to
drink the entire bottle of the Whisky as punishment.
P[...] K[...]
did as she was told but she became inebriated as a result she sat
down on the ground and that is when the appellant
unzipped her jeans,
pulled them down and raped her by penetrating her vagina with his
penis. Her friends returned later and found
her unable to move. They
took her home, on the next day she asked her mother to call her Aunt
and relayed the rape incident to
her. She was 15 years old at that
time.
[9]
Under cross-examination, she was asked whether she had consumed the
Whiskey before she was allegedly
instructed by the appellant to drink
it. She responded in the negative and explained that she only drank a
Savanna Dry cider.
[10]
P[...] O[...] and M[...] corroborated her version that the appellant
approached them and introduced himself
as a police officer and
that he had a police badge attached to his clothing. After asking
them what they were doing in the
street because they were underage,
he called someone he referred to as Sergeant and told him that he had
found some youngsters
in possession of liquor. He then turned around
and told B[...] and M[...] to leave and that he will tell his
colleague that they
had escaped. Later he released P[...] O[...] and
remained with P[...] K[...]. He also kept their bag containing the
Whiskey and
promised to let her “escape” later.
P[...] O[...] later met with B[...] and M[...] and when they realized
that
P[...] K[...] was not coming they went and informed her mother.
M[...] and P[...] K[...]’s brother, T[…], went looking
for her and found her very drunk, lying on the rocks nearby some
hills and took her home.
[11]
P[...] K[...]’s Aunt confirmed that on arrival at P[...]
K[...]’s home she found her crying,
very emotional and even
vomiting. She then spontaneously relayed the rape incident to her.
Upon informing Ms K[...]’s mother,
they accompanied P[...]
K[...] to the police station where a rape case was opened.
Thereafter, she was taken for medical examination
at National
hospital.
[12]
The J88 medical report compiled by a forensic nurse on 25 December
2013 indicated no injuries on the genitalia
but confirmed that the
absence of injuries does not exclude forceful penetration. The
appellant’s DNA also matched the DNA
profile extracted from
P[...] K[...]’s vaginal swab. T
he
contents and the veracity of the J88 medical report and the DNA
results were not placed in dispute, they were formally admitted
by
the appellant as part of evidence in terms of section 220 of the CPA
and marked as Exhibit “B” and “E”
respectively.
[13]
With regard to count 3 to 6, the trial court relied on testimony of
Ms K[...] N[...] (K[...]), Mr. M[…]
E[…] N[…],
the first report in respect of the rape charge, Constable Madipuo
Arlinah Sigarume Mantsoe, sergeant Kotwane
and the statement deposed
to by N[...] M[...] (N[...]) including the J88 medical report and the
DNA
evidence.
[14]
K[...] was eight years old at the time of the incident. She testified
that she was walking to church with
N[...] when they were approached
by the appellant driving a motor vehicle. He stopped his vehicle next
to them, bundled them into
his motor vehicle and drove away with them
to a veld where he stopped his vehicle, removed them from the vehicle
and told her to
close her eyes and face the other direction. She then
heard him ordering N[...] to remove her underwear and when she opened
her
eyes again, she saw N[...] pulling up her panties. She was also
crying and told her that the appellant had raped her. After the
appellant let them go, they went to N[...]’s home but there was
no one. They then went to the residence of N[...]’s
uncle Mr
N[...], upon their arrival, N[...] reported the rape to Mr. N[...].
[15]
Mr. N[...] corroborated N[...]’s first report of the rape
incident. He confirmed that N[...] arrived
at his home with K[...]
crying, her hair was dishevelled and dirty. She called him aside and
informed him that she was raped by
an unknown man who accosted them
on the street and took them to a veld where he raped her. He called
N[...]’s mother and
they took both the children to the police
station.
[16]
The J88 medical report indicates extensive injuries consisting of
bruises and fresh bleeding of the clitoris,
urethral orifice,
posterior fourchette, hymen including the anal orifice. The
injuries were found to be consistent with sexual
penetration. The
appellant’s DNA matched the DNA profile extracted from N[...]’s
vaginal swab.
The
J88 medical report and the DNA results were also formally admitted by
the appellant as part of evidence in terms of section
220 of the CPA
as
Exhibit “G” and “E”
respectively.
N[...] was 13 years old at that time.
[17]
Hereafter the State applied for an order to admit N[...]’s
statement in terms of section
3
(1)
(c)
of
the
Law
of Evidence Amendment Act,[3]
(the Act), as evidence in lieu of
her oral testimony.
[18]
The State led the evidence of
Constable Mantsoe
who took down the
statement
on the day of the incident and Sergeant Kutwane,
the Investigating Officer of the case.
[19]
Constable Mantsoe confirmed that N[...] relayed the rape incident to
her accompanied by a guardian
and she (Constable Mantsoe), observed
N[...]’s dire emotional state when she was relaying the
incident. She was also shaking
and crying of pain.
[20]
Sergeant Kutwane testified that N[...]’s whereabouts were
unknown and this is despite a
diligent search of her last known
addresses, calls made to her known numbers, radio announcements and
publication in
The Express
newspaper circulating in the Free
State Province, she remained untraceable.
[21]
The statement was subsequently admitted as Exhibit “K.”
The following is the recordal
of the said statement:
“
3.
I was walking in the
street with K[...] N[...] who is 8 years old, she is my church mate
we were going to fit the uniform of the
church, we were passing
Thusanong Orphanage then came a blue car towards our direction.
4.
Then the car passed by
and after few minutes the car came back and it was a black male
coffee in colour. Then he stopped his car
and he came out and he came
to us and he didn’t say a word he just pushed both of us inside
his car and he climb also and
he locked the door. He then drove his
car and he went to Caltex garage and he told us he is a police
officer we must not be scared
and he went to the ZR Mahabane’s
road.
5.
He then took the
direction of the old dumping site at that time he was not talking to
us, he then went inside the veld he then stopped
his car and he
climbed up and he open the doors for us he unlocked the door.
6.
He then told us to
step out of his car we then climb out. That unknown black male told
K[...] to close her eyes. He then told me
to sleep on the ground, I
then looked at him he then pushed me to the ground and he told me
that I must close my eyes. He then
take out my panty and he put his
trouser on his knees and also underwear.
7.
He then came on top of
me and put his penis to my vagina and he raped me, I was crying at
that time and I was screaming and he told
me to shut up, because it
will be my last day today I will not see my parents again, I then
stopped to scream and K[...] was laying
near us on the ground. The
K[...] took a deep breath and he told me to stop K[...] because she
will make me and him to fight. I
asked him to take us back to our
places and he told me that he will take us back when he is finished
with me.
8.
At that time he was
still on top of me, I was feeling paid and he the stand up and he
told us not to open our eyes, I then saw him
wearing his underwear
and trouser and he told us to stand up and I must get dressed after I
get dressed he pushed us again inside
his car, he then drove us to
Election Park and he told us not to say anything. He then left us
there...”
[22]
On the other side, the
appellant
testified in his defence. In response to count 1 and 2 he countered
the State’s evidence by pleading consensual
sex with P[...]
K[...]. It was his testimony that P[...] K[...] and her friends
approached him at the tavern where he was sitting
alone and enjoying
his cool drink. After they introduced themselves to him they asked
him to buy some drinks. He told them that
he was a teetotaller and
gave them R150 to buy liquor for themselves. When P[...] K[...] found
out that he did not have a place
to sleep, she invited him to her
shack telling him that she lived alone and was lonely and that’s
where they had consensual
sex until 2 a.m. when she received a call
that her boyfriend was looking for her and he was very angry. Upon
receiving this call,
she asked him to leave and explained that her
boyfriend was a Maroma gang member and was coming with his friends.
Fearing for his
life he hurriedly left and watched from the distance
P[...] K[...] being assaulted by her boyfriend.
[23]
The appellant denied impersonating a police officer and said at no
stage was he wearing a police
badge. He insisted that it was P[...]
K[...] who initiated and arranged their sexual rendezvous and all was
well between him and
P[...] K[...] when they parted ways. As for the
remaining counts, the appellant elected not to testify with the
result that the
defence closed its case.
[24]
The appellant’s grounds for appeal are embodied
in a lengthy and mostly incoherent notice of appeal consisting of at
least
six pages which are essentially that: in convicting the
appellant the trial court erred in its finding that the State had
proved
its case against the appellant. In respect of count 1 and 2,
the trial court did not properly apply the cautionary rule to P[...]
K[...]’s evidence in the rape count. She was under the
influence of alcohol. She told the court that the appellant
offered
her the alcohol and she drank it without being forced. Her version
regarding the rape did not make sense considering the
proximity of
the shack dwellings to the alleged place of the incident and it was
contradictory in that, in her direct evidence,
the complainant
testified that after unzipping her trousers the appellant penetrated
her with his penis whereas under cross-examination
she said her last
recollection of the event was when the appellant unzipped her
trousers. She did not confirm the penetration.
She also contradicted
her witnesses by stating that she did not consume alcohol before her
encounter with the appellant and her
witnesses said they all drank
ciders. She was also unable to explain what the appellant used to
pretend to be a police officer
as he was not wearing police uniform.
The issue about whether a cell phone was given to the appellant by
the witnesses was never
canvassed by the State and it was clearly
made up by the witnesses to “
close gap on how P[...] K[...]
was found
” (sic). The appellant submits that the trial
court failed to attach weight to these material contradictions in the
State’s
evidence whilst it overemphasized the minor
discrepancies in the appellant’s testimony which was clear.
[25]
As regards count 3 to 6, the court erred by convicting the appellant
without evidence and by relying on N[...]’s
statement which was
not tested as N[...] wilfully evaded trial and avoided the police
when she was warned about the court date.
The court wrongly applied
section 3
of the
Law of Evidence Amendment Act 45 of 1988
and K[...]
N[...], as the eye witness, did not know which jurisdiction the rape
occurred, the date and the time of incident. She
also did not testify
about the count relating to the appellant pretending to be a police
officer.
[26]
It is the appellant’s case that the trial court should not have
accepted the manner in which both the
rapes were reported. In respect
of count 1, P[...] K[...] went to sleep at home and did not report
the incident to her mother and
N[...] (count 3) also reported the
rape to Mr M[…] N[...] instead of the females who were in his
presence, her mother and
grandmother.
[27]
There are also discrepancies in the State’s case with regard to
who accompanied N[...] to the police
station. Mr N[...] testified
that he took the complainant to police station whereas, the police
officer constable Mantsoe who took
down N[...]’ statement said
N[...] was accompanied by a female person and relying on
S
v Matshivha
[4]
and
sections 162
and
164
of the CPA, the appellant also attacks the
validity of the statement on the basis that constable Mantsoe was
also clueless about
the import of Oath and its consequences.
[28]
With regard to sentence, it is the appellant’s case that the
court erred in “
considering previous conviction of 2015
against 2013 matter and not consider the fact that the appellant is
the first offender on
that offence. Court did not take into
consideration the personal circumstances of the Appellant
.
”
[29]
The appeal is opposed by the State.
[30]
It is an established principle that a court of appeal will not
interfere with or tamper with
the trial court’s judgment or
decision regarding either conviction or sentence unless it (the court
of appeal) finds that
the trial court misdirected itself as regards
its findings of facts or the law. See
R
v Dhlumayo & Anothe
r.
[5]
The
principle was
also
restated
in
AM
& Another v MEC Health, Western Cape
[6]
as
follows:
“
It
is trite that an appeal court is reluctant to disturb findings of
that character by a trial judge, who was steeped in the atmosphere
of
a lengthy trial and had the advantage of seeing and hearing the
witnesses. Such findings are only overturned if there is a clear
misdirection or the trial court’s findings are clearly
erroneous. That has consistently been the approach of this court
….”
[31]
At the commencement of the proceedings, counsel for the appellant Mr
van der Merwe rose to frankly
concede that having regard to the facts
pertaining to both the incidences and the evidence adduced by the
State in the court
a quo
, he could not argue in favour of what
is deliberated in the appellant’s grounds of appeal in respect
of the convictions and
sentences.
[32]
I am of the view that the concession is correctly made for the reason
that, in
the
record of the proceedings
[7]
it
is clear that
the trial court was alive to the cautionary rules applicable in the
circumstances where a complainant was both a single witness
and also
a child witness implicating an accused in a rape charge.
[33]
In terms of
section 208
of the CPA, an accused can be convicted of
any offence on the evidence of any competent single witness. The
court
need only to find that the evidence was trustworthy and that the
truth has been told in that case, corroboration is not even
necessary. See
S
v Sauls and Others
[8]
and
S
v Mahlangu.
[9]
[34]
In this matter, the trial court meticulously evaluated P[...]
K[...]’s evidence. It duly
considered its merits and demerits
and having weighed it against the appellant’s defence of
consensual sexual intercourse
it determined that despite having been
rendered intoxicated by the appellant, she was able to comprehend and
observe her surroundings
and was later able to relay to the court a
succinct and detailed description of how and where the rape occurred.
Her version that
the
sexual intercourse with the appellant was not consensual was cogent,
reliable account of what had happened and it was also
corroborated by the evidence of her first report to her Aunt, the J88
medical
report which did not rule out penetration and the DNA
evidence.
[35]
I am unable to fault the trial court for disregarding the
contradictions alluded to by the appellant in the
grounds of appeal.
The issues pertaining to whether P[...] K[...] had consumed alcohol
or not before the rape, the situation regarding
the shacks nearby the
scene of the incident and K[...]’s lack of knowledge about the
jurisdiction where the rape occurred
including the date and time of
the incident are immaterial, they have no bearing on the
determination of whether the appellant
raped the complainants and
also perpetrated the other crimes or not.
[36]
It is also important to take note that K[...] was only eight years
old when the incidents occurred and three
years had passed when she
ultimately testified. nevertheless, contradictions in the evidence do
not necessarily demonstrate that
the witnesses’ evidence is
flawed. They may simply be an indication of an error and not every
error made by a witness affects
their credibility: in each case the
trier of fact has to make an evaluation, taking into account such
matters as the nature of
the contradiction, their number and
importance, and their bearing on other parts of the witnesses'
evidence.
[10]
It is also quite
rare that two or more witnesses can give identical evidence relating
to the same incident.
[11]
[37]
I must also point out that the fact that the contradictions alluded
to by the appellant are not enumerated
in the trial court’s
judgment
does
not necessarily mean that they were not considered.
[12]
[38]
There is nothing improbable about how P[...] K[...] and N[...] made
their respective rape reports because, there is no
formula regarding
reporting rape, it is not even mandatory except that if it is
reported that will show consistency and negate
a defence of consent,
it is not regarded as proof of rape or a corroboration of a
complainant’s version.
[13]
[39]
Next what must be considered is whether the trial court
was correct in admitting N[...]’s statement under Section 3 (1)
(c)
of the Act in lieu of her oral testimony.
[40]
There is no merit to the appellant’s complaint that the trial
court wrongfully relied on a statement
which was not “tested”.
Section 3 (1) (c) (i) to (vii) of the Act, confers a discretion on
the court to admit hearsay
evidence if the admission of the evidence
would be in the interests of justice having regard to the nature of
the proceedings,
the nature of the evidence, the purpose for which
the evidence is tendered, the probative value of the evidence, the
reason why
the evidence is not given by the person upon whose
credibility the probative value of such evidence depends, any
prejudice to a
party which the admission of such evidence might
entail, and any other factor which should in the opinion of the court
be taken
into account, is of the opinion that such evidence should be
admitted in the interests of justice.
[41]
In exercising its discretion to accept the statement, the trial court
took into account that
the reason for N[...] not testifying was
because she was untraceable despite the diligent search at her known
addresses, calls
made to her known numbers and media announcements
and it was also not known whether she was still alive as many years
had elapsed
since she made the statement. With regard to the value of
the statement, the court was satisfied that it was bolstered by
considerable
evidence including the
viva voce
evidence relayed
by K[...] and the first report including the J88 medical report and
the DNA evidence was therefore reliable. On
the other side the
application was simply opposed on technical grounds relating to the
invalidity of the statement on the grounds
that the statement was not
co-signed by N[...]’s guardian. Having considered all these
factors, the trial court found that
the appellant’s prejudice
resulting from his inability to cross-examine N[...] was outweighed
by the interests of justice.
[42]
I agree, for the reason that the appellant’s objection against
the admission of the statement was merely
based on a technical point
and not on the exceptions provided for in subsection (1) (c) (i) to
(vii) of the Act. That aside, the
accused’s right
to
adduce and challenge evidence through cross-examination
[14]
is
not absolute as stated in S
v
Ndhlovu:
[15]
“
The
Bill of Rights does not guarantee an entitlement to subject all
evidence to cross examination. What it contains is
the
right (subject to limitation in terms of section 36) to
‘challenge evidence’. Where that evidence is
hearsay, the right entails that the accused is entitled to resist its
admission and to scrutinise its probative value, including
its
reliability. The provisions enshrine these entitlements.
But where the interests of justice, constitutionally measured,
require that hearsay evidence be admitted, no constitutional right is
infringed. Put differently, where the interests of
justice
require that the hearsay statement be admitted, the right to
‘challenge evidence’ does not encompass the right
to
cross-examine the original declarant.”
[43]
The appellant’s reliance on
Matshivha
and the
provisions of sections 162 and 164 of the CPA to impugn the validity
of N[...]’s statement is unsound as these authorities
deal with
the formalities pertinent to the administration of oath to witnesses
testifying in criminal court proceedings.
[16]
[44]
Turning to the appellant’s version in respect of count 1 and 2,
his insinuation of false implication
is
gainsaid
by his own evidence that it was P[...] K[...] who had been flirting
with him, initiated the sexual encounter and when they
parted ways
all was well. There is
therefore no reason why she
would falsely accuse him of rape. Similarly, there is no reason why
P[...] K[...]’s friends would
tell the court in minute detail
how he accosted them, threatened them with arrest, detained them in
the street and later released
some of them till he remained with
P[...] K[...] if that did not happen. On his own version, he bought
them liquor at the tavern
and they all had a nice time. The
improbabilities in the appellant’s version affected his
credibility, the trial court was
correct in rejecting his version as
false beyond reasonable doubt.
[45]
As regards count 3 to 6, the trial court was alive to the trite
principle that t
he
accused’s election not to testify does not relieve the
prosecution of its duty to prove his guilt beyond reasonable doubt.
[46]
On the facts germane to this matter
the issue which had
to be determined by the trial court was the identity of the
perpetrator of these crimes. The trial court was
impressed by
K[...]’s ability to recollect and narrate how the appellant
abducted N[...] and kidnapped her despite her young
age. Although she
did not see the rape as she was made to look away, N[...]’s
statement regarding the rape was succinct and
was also corroborated
by the gynaecological clinical findings recorded on the medical
report (J88), Exhibit “G” indicating
that she was raped
about four hours earlier. The court also took into account the DNA
evidence, Exhibit “E from which the
court inferred that the
appellant is the perpetrator of the rape as his profile matched the
profile extracted from N[...]’s
vaginal swabs and he admitted
its probative value in terms of section 220 of the CPA. Consequently,
the trial court found that
t
he
inference is consistent with the proved facts
to
exclude any reasonable doubt about the accused’s guilt.
[47]
Based on all
the above reasons, I am satisfied that
the dispute
between the State and the defence with regard to whether the
appellant perpetrated all the crimes he was charged with
was resolved
appropriately. In the circumstances, the appellant was properly
convicted on all counts.
[48]
Regarding sentence, the trial court is
criticized for disregarding the appellant’s personal
circumstances as factors justifying the deviation from the prescribed
minimum sentence and for taking into consideration the appellant’s
previous conviction of the year 2015 instead of treating him as a
first offender and the rehabilitative element of punishment.
It is
submitted that the sentence should have been blended with mercy.
[49]
It
is tested
law that sentencing is pre-eminently a matter for discretion of the
trial court,
t
he
circumstances under which the appeal court can interfere with a
sentence are limited.
[50]
The record of the proceedings reveals that the appellant’s
personal circumstances were taken into consideration
namely that: he
was 40 years old, unmarried with three children with two different
mothers. One of the mothers is deceased. He
was previously employed
as a police reservist, presently he was self-employed in his own
security company, he went to school until
standard 10 and that he
spent about four months in custody awaiting trial.
[51]
The traditional mitigating factors such as the appellant’s
personal circumstances cumulatively, can
be taken into account as
factors to be considered as substantial and compelling circumstances
warranting a deviation from the minimum
sentences applicable in count
1 and 3. However, they must be weighed against the aggravating
factors as, on their own, they are
immaterial and do not justify a
lesser sentence.
[17]
[52]
The appellant was convicted of rape on 10 November 2015 and
thereafter sentenced to imprisonment for a period
of 15 years. The
offence was committed on 01 January 2013 approximately eleven months
before he committed the crimes in count 1
and 2. The magistrate was
thus correct into taking this conviction into account for the purpose
of sentencing as it indicates the
appellant’s propensity to
commit similar offences.
[53]
In this matter the nature of the offences the appellant was convicted
of on its own is aggravating,
it is equally aggravating that the
crimes were targeted against vulnerable children and were intentional
in that the appellant
first took his time to establish the ages of
the victims and then made sure that he picked the youngest from
P[...] K[...]’s
group. Two years later he went for the much
younger N[...].
[54]
In arriving at the sentences, the trial court also took into account
the brutality of N[...]’s rape
as evidenced by the J88 medical
report, the effect of these crimes on the appellant’s victims’
emotional and psychological
scars as demonstrated in their respective
Victim Impact Reports and concluded that the appellant was a danger
to children and the
community as a whole for that reason, a lengthy
direct imprisonment sentence in respect of count 1 and 3 and various
direct imprisonment
sentences for the remaining charges would reflect
the gravity of the offences committed by the appellant and also have
an element
that speaks to the plight of the society. I agree.
[55]
Despite the egregious crimes the appellant was convicted of, the
trial court showed him mercy
by invoking the provisions of section
280 of the CPA. There is no basis to interfere with the sentences,
they fit the offender
and reflect the gravity of the crimes.
[56]
In the result,
I would make the following order:
Order
(1)
Condonation to file a supplemented Notice
of Appeal is granted.
(2)
The appeal against both conviction and
sentence is dismissed.
NS
DANISO, J
I
concur
JJ
MHLAMBI, J
On
behalf of appellant:
Mr.
PL van der Merwe
Instructed
by:
Legal
Aid SA
BLOEMFONTEIN
On
behalf of respondent:
Adv.
M Strauss
Instructed
by:
The
Director of Public Prosecutions
BLOEMFONTEIN
[1]
Act No 68 of 1995.
[2]
Act No, 51 of 1977.
[3]
Act No, 45 of 1988.
[4]
2014
(1) SACR 29
SCA.
[5]
1948
(2) SA 677
(A).
[6]
2021(3)
SA 337 (SCA)
para
8.
[7]
Record page 278 to 280.
[8]
1981
(3) SACR 172
(A)
at
173.
[9]
2011
(2) SACR 164
(SCA)
at 171 B.
[10]
S v
Mkohle
1990
(1) SACR 95
(A).
[11]
S v
Bruiners and Another
1998
(2) SACR 432
(SE) at 435 a to b.
[12]
Director
of Public Prosecutions: Limpopo v Molope and another
2020
(2) SACR 343
(S
CA)
at para 55,
Dhlumayo
fn
at 4 supra at 706.
[13]
Milton,
in
South
African Criminal Law and Procedure
Vol
II 3 ed;
Vilakazi
v The Stat
e
[2016]
SCA
103;
2016
(2) SACR 365
SCA at
par 15.
[14]
Section
35(3)(i) of the Constitution.
[15]
[2002]
ZASCA 70
;
2002
(6) SA 305
(SCA)
at para 24.
[16]
The gist of the
findings
in
Matshiva
para
10 thereof is:
“
the
reading of section 162(1) makes it clear that, with the exception of
certain categories of witnesses either falling under
section 163 or
164, it is peremptory for all witnesses in criminal trials to be
examined under oath. … the testimony of
a witness who has not
been placed under oath properly, has not made a proper affirmation
or has not been properly admonished
to speak the truth as provided
for in the Act, lacks the status and character of evidence and is
inadmissible.”
[17]
Vilakazi
v The State
(576/07)
[2008]
ZASCA 87
(2
September 2008) at paragraph 58 quoting:
S
v Malgas
2001
(1) SACR 469
(SCA)
.