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[2024] ZAFSHC 365
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Masekoa v S (A81/2024) [2024] ZAFSHC 365 (12 November 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
Case
no: A81/2024
In
the matter between:
MOLATUDI
ABEL MASEKOA
Appellant
and
THE
STATE
Respondent
Neutral
citation:
Molatudi
Abel Masekoa v The State (A81/2024)
Coram:
Mhlambi J
et
Mpama AJ
Heard:
04
November 2024
Delivered:
12
November 2024
ORDER
The appeal against
sentence is dismissed.
JUDGMENT
Mpama AJ (Mhlambi J
concurring)
[1]
The appellant stood trial in the regional court
sitting at Bothaville on two counts of rape read with the provisions
of
s 51(1)
of the
Criminal Law Amendment Act 105 of 1997
. He pleaded
not guilty to both charges. After the evidence in chief of the first
complainant the appellant made admissions in terms
of
section 220
of
the
Criminal Procedure Act 51 of 1977
. The State led no more
evidence. He was convicted of two counts of rape on 28 February 2024
and sentenced to life imprisonment.
He now appeals his sentence.
[2]
In view of the appellant’s life imprisonment, the appeal is
before us on the basis of s
10 of the Judicial Matters Amendment Act
42 of 2013, in terms of which the appellant has an automatic right to
appeal his conviction
and sentence.
[3]
The appellant’s appeal is
premised
inter alia,
on the following
grounds:
(i)
That an effective term of life imprisonment is
strikingly
inappropriate.
(ii)
The court
a quo
erred in finding that there were no
substantial and compelling circumstances warranting deviation from
the prescribed sentence
of life imprisonment.
(iii)
Whether the court
a quo
over-emphasized the seriousness of the
offence.
[4]
The facts on which the appellant’s
convictions are based are briefly as follows: The two complainants,
Ms L[…] N[…] and N[…] K[…] were both 15
years old at the time of the commission of the offence. Ms
N[…]
is the appellant’s relative (though it is not mentioned how
they are related) and she resided with the appellant.
The second
complainant was her friend and a neighbour. On the day in question,
they were sitting with the appellant and watching
television. The
appellant stood up, locked the door and ordered them to go to his
bedroom. When they reached his bedroom, he ordered
them to undress.
He raped Ms K[…] first and, undeterred, raped the second
complainant. The two complainants were raped in
the presence of each
other. He instructed them to leave, not to report what befell them
and threatened to kill them should they
do so.
[5]
An appeal court can interfere with sentence only where the sentence
is affected by an irregularity
or misdirection and the sentence
imposed is so inappropriate that it induces a sense of shock.
[6]
In
S
v Rabie
[1]
it
was stated that punishment is pre-eminently a matter for the
discretion of the trial court. A sentence should be altered only
if
the trial court’s discretion has not been judicially and
properly exercised. The test is whether the sentence is vitiated
by
an irregularity or misdirection or is disturbingly inappropriate.
[7]
The appellant was sentenced to life imprisonment. Counsel for the
appellant submitted
that the trial court ought to have deviated from
the prescribed sentence. It is so that the court is allowed to
deviate from this
sentence if it is satisfied that there are
substantial and compelling circumstances warranting deviation. It has
been said in
S
v Malgas
[2]
(
Malgas
)
that the specified sentences are not to be departed from lightly or
for flimsy reasons. The test for deviation is whether, on
consideration of the circumstances of the particular case, the court
is satisfied that they render the prescribed sentence unjust
in that
it would be disproportionate to the crime, the criminal and the needs
of the society, so that an injustice would be done
by imposing that
sentence.
[8]
In
S
v Matyityi
[3]
the
SCA, referring to
Malgas
,
expressed as follows at para 11:
‘
I
turn now to the central issue in the appeal, namely whether, given
the facts of this case, the trial court was correct in its
conclusion
that substantial and compelling circumstances as contemplated by that
expression were indeed present.
S v
Malgas
is where one must start. It,
according to Navsa JA, is “not only a good starting point but
the principles stated therein
are enduring and uncomplicated”
(
DPP v Ngcobo
).
Malgas, which has since been followed in a long line of cases, set
out how the minimum sentencing regime should be approached
and in
particular how the enquiry into substantial and compelling
circumstances is to be conducted by a court. To paraphrase from
Malgas: The fact that that the parliament had enacted the minimum
sentencing legislation was an indication that it was no longer
“business as usual”. A court can no longer have a clean
slate to inscribe whatever sentence it thought fit for the
specified
crimes. It had to approach the question of sentencing conscious of
the fact that the minimum sentence had been ordained
as the sentence
which ordinarily should be imposed unless substantial and compelling
circumstances were found to be present.’
[9]
In the court a quo, the appellant’s personal circumstances were
presented as follows: That
he was 60 years old, married and with one
child who is 18 years old. His highest scholastic qualification
is standard 5.
He has two previous convictions, namely escaping from
lawful custody, committed in 2012, and theft, in 1992. The appellant
released
out on bail, but the record does not indicate that he spent
any time in custody before the finalisation of the matter.
[10]
Ms Kruger argued that the appellant’s advanced age warranted
deviation from the prescribed sentence.
Mr Pretorius, however, held a
different view. He referred the court to the case of
Mohale
v S
[4]
(
Mohale
)
where this court held:
‘
It
was submitted by Mr Reyneke that the imposed sentence of life
imprisonment can be equated to a death sentence, considering the
age
of the appellant. However, any substantial period of imprisonment
including the sentence between 15 to 18 years, as argued
for by Mr
Reyneke, can equally be regarded as a death sentence. The
horrendousness of the crime committed far outweighs the advanced
age
of the appellant.’
[5]
The appellant in that
matter was 61 years old. I align myself with the reasoning in
Mohale
.
The appellant was 60 years at the time of sentencing. I am of the
view that his advanced age is a neutral factor that cannot persuade
the court to deviate from the prescribed sentence.
[11]
It is also evident from the record that the
seriousness of the offence, as well as the interests of the
community
were considered by the trial court. The offence of rape is described
in
S
v Chapman
[6]
as
a ‘humiliating, degrading, and brutal invasion of the privacy,
the dignity and the person of the victim’.
[7]
[12]
In
Director
of Public Prosecution v Thabethe
[8]
the
court expressed itself as follows
‘
.
. . Rape of women and young children has become cancerous in our
society. It is a crime which threatens the very foundation of
our
nascent democracy, which is founded on protection and promotion of
the values of human dignity, equality and the advancement
of human
right and freedoms. It is such a serious crime that it evokes strong
feelings of revulsion and outrage amongst all right-thinking
and
self-respecting members of society. Our courts have an obligation to
impose sentences for such a crime, particularly where
it involves
young, innocent, defenceless and vulnerable girls, to impose the kind
of sentences which reflect the natural outrage
and revulsion felt by
the law-abiding members of society. A failure to do so would
regrettably have the effect of eroding public
confidence in the
criminal justice system.’
[9]
[13]
In
Director
of Public Prosecutions, Western Cape v Prins and Others
[10]
the
following was said at para 1:
‘
No
judicial officer sitting in South Africa today is unaware of the
extent of sexual violence in this country and the way in which
it
deprives so many women and children of their right to dignity and
bodily integrity, and in the case of children, the right to
be
children.’
[14]
It was further argued on behalf of the appellant
that lack of physical injuries does justify a deviation
from the
prescribed sentence. The court was referred to the judgment of
S
v Nkawu
[11]
where
the court held:
‘
I
am of the view that it is possible to read s 51(3)(
a
A)(ii)
in a way that would render it unconstitutional. That is to interpret
it, and the other provisions of s 51(3)(
a
A),
to mean that any one of them may not be regarded as a substantial and
compelling circumstance justifying a departure from the
prescribed
sentence but that each one of them may be considered along with other
factors cumulatively to amount to substantial
and compelling
circumstances. On this interpretation, I am not precluded from
considering the fact that the complainant suffered
injuries that were
neither serious or permanent along with a basket of other factors, in
order to arrive at a just and proportionate
sentence.’
[12]
[15]
The presence or absence of injuries cannot in isolation constitute a
substantial and compelling circumstance.
Irrespective of the
presence of physical injuries, or lack thereof, rape always causes
its victim severe harm.
[16] A
Victim Impact Statement was handed in aggravation of sentence on how
the incident affected Ms K[…].
The complainant was a school
going child, doing her Grade 9. The statement displays that she was
doing very well in her studies
and the incident affected her so badly
that she had to be progressed to Grade 10. For the first time she
failed a class and had
to repeat Grade 10. The appellant was a
neighbour and she trusted him. Ms K[…] finds it so difficult
to walk on the streets
due to the trauma she endured at the hands of
her neighbour. This reflects the long-lasting devastating effects and
the emotional
trauma the incident had on the complainant’s
wellbeing. The other complainant, who is the appellant’s
relative, was
not available and nothing much was said about her
during sentencing.
[17]
The complainants were young children. They trusted the appellant as
an elderly person and the appellant violated
that trust. Ms N[…]
is the appellant’s relative and at the time of the offence she
resided with the appellant. He
displayed a flagrant disregard for the
complainants’ emotions; rape in itself is traumatic; having to
witness the rape of
another child is without doubt more traumatic.
[18]
The court a quo did not underestimate the personal circumstances of
the appellant. I am unable to find that
the trial court erred in
finding that there were no substantial and compelling circumstances
that warrant any other punishment
than life imprisonment. The
sentence imposed by the court a quo is not shockingly inappropriate.
The sentence that was imposed
by the trial court fits the appellant,
the crime and serves the legitimate interests of the society. The
aggravating circumstances
in this matter far outweigh the appellant’s
personal circumstances.
[19]
In my view the appeal against sentence must consequently fail.
In the premises, I would make the following order:
The appeal against
sentence is dismissed.
MPAMA,
AJ
I
concur and it is so ordered:
MHLAMBI,
J
Appearances
On
behalf of Appellant:
Ms
S. Kruger
Instructed
by:
Legal
Aid South Africa
Bloemfontein
On
behalf of Respondent:
Adv.D.Pretorius
Instructed
by:
Office
of the DPP
Bloemfontein
[1]
S
v Rabie
1975 (4) SA 855
(A) at 857D-E.
[2]
S v
Malgas
2001
(1) SACR 469 (SCA).
[3]
S
v Matyityi
[2012] ZASCA 127; 2011 (1) SACR 40 (SCA).
[4]
Mohale v S unreported judgment of the Free State Division of the
High Court, Case No A52/2024.
[5]
Para 17
per
Musi JP
et
Greyling-Coetzer AJ.
[6]
S v
Chapman
1997
(3) SA 341 (SCA),
[7]
Ibid para 3.
[8]
Director
of Public Prosecution v Thabethe
[2011] ZASCA 186
;
2011 (2) SACR 567
(SCA)
[9]
Ibid para 22.
[10]
Director
of Public Prosecutions, Western Cape v Prins and Others
[2012] ZASCA 106; 2012 (2) SACR 183 (SCA).
[11]
S
v Nkawu
2009 (2) SACR 402
(ECG).
[12]
Ibid
para 17.