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[2025] ZANCHC 49
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Kenosi v S (Appeal on sentence) (CA&R 12/2024) [2025] ZANCHC 49 (25 April 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case No:
CA&R 12/2024
Reportable:
YES / NO
Circulate to
Judges:
YES / NO
Circulate to
Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
In
the matter between:
JEFFREY
KENOSI
Appellant
and
THE
STATE
Respondent
Heard on:
10/03/2025
Delivered on:
25/04/2025
Summary:
Appeal against sentence of life imprisonment on each rape count.
Two
issues for consideration. Whether the trial court erred in its
finding that substantial and compelling circumstances do not
exist
and whether the trial court failed to take into account that the
appellant was a primary caregiver when considering the appropriate
sentence.
Quorum:
Mamosebo ADJP et Tyuthuza AJ
ORDER
In
the result the following order is made:
1.
The appeal against the sentences imposed is dismissed.
2.
The office of the registrar is directed to make a copy of this
judgment available
to the Department of Social Development who are
enjoined to visit the family of the appellant to investigate their
needs, if any.
JUDGMENT ON APPEAL:
SENTENCE
MAMOSEBO
ADJP
[1]
This appeal is directed only against the sentences of life
imprisonment on five counts
of rape read with the provisions of s
51(1) of the Criminal Law Amendment Act, 105 of 1997 (CLAA).
[2]
The appellant pleaded guilty to five counts of rape and was convicted
on 18 October
2023 in the regional court, Kuruman. On 28 November
2023, having found no substantial and compelling circumstances as
envisaged
in s 51(3)(a) of the CLAA, the trial court sentenced him to
life imprisonment on each count. He enjoys an automatic right of
appeal
in terms of s 309(1)(a) of the Criminal Procedure Act, 51 of
1977
[1]
(CPA). The State opposed
the application.
[3]
The grounds upon which the appellant relied for this appeal were that
the trial court
erred in its finding that substantial and compelling
circumstances, justifying a deviation from imposition of the
prescribed minimum
sentences of life imprisonment, did not exist.
Further, that the trial court failed to take into account that the
appellant was
a primary caregiver as well as to properly consider the
interests of his minor children in imposing the life sentences.
[4]
The material facts surrounding the commission of the offences,
extrapolated from his
section 112(2) statement are to this effect.
The rape in count 1 against the 21-year-old Ms AD, happened on 01 May
2021. He penetrated
her more than once without her consent. The
further rapes in counts 2, 3, 4 and 5 occurred on 28 January 2022 in
respect of which
he raped each victim, aged 16, 14, 14, and 15 years
respectively, more than once. These rapes on the minors were
perpetrated in
the sanctity of their home. He found the victims
asleep, woke them up by whipping them with a sjambok and instructed
them to be
still and to undress. He raped each one three times.
[5]
Since the victims in counts 3, 4 and 5 were below the age of 16 the
appellant bore
the onus of showing that substantial and compelling
circumstances existed which justified the imposition of a lesser
sentence as
contemplated in s 51(3)(a) of the CLAA.
[6]
In
S
v Vilakazi
[2]
Nugent
JA described rape as a repulsive crime, …an invasion of the
most private and intimate zone of a woman and strikes
at the core of
her personhood and dignity. Almost 30 years ago, Mahomed CJ cautioned
in
S
v Chapman
[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.
The rights to dignity, to privacy, and the integrity of every person
are basic to the ethos of the
Constitution and to any defensible
civilization. Women in this country are entitled to the protection of
these rights. They have
a legitimate claim to walk peacefully on the
streets, to enjoy their shopping and their entertainment, to go and
come from work,
and
to enjoy the peace and tranquillity of their
homes
without the fear, the apprehension and the insecurity which
constantly diminishes the quality and enjoyment of their lives.’
(emphasis added)
[7]
Mr Fourie, for the appellant, submitted that the cumulative effect of
the personal
and mitigating circumstances constitutes substantial and
compelling circumstances. The following were placed before the court:
that the appellant had pleaded guilty to the offences and thereby
showed remorse for his conduct and that he is a suitable candidate
for rehabilitation. These are the appellant’s personal
circumstances upon being sentenced: He was 33 years of age, unmarried
with 3 minor children aged 10, 9 and 8 years. They all resided at his
parents’ home. The State abandoned proving the accused’s
previous conviction of assault with intent to do grievous bodily harm
which appears on the SAP69 because he denied it. He spent
22 months
in custody awaiting trial. Of significance, in considering the
personal circumstances of an accused, is that in cases
of serious
crime they recede into the background.
[4]
[8]
Ponnan JA made these abiding remarks pertaining to remorse and a plea
of guilty in
S
v Matyityi
[5]
:
‘
Remorse
was said to be manifested in him pleading guilty…. It has been
held, quite correctly, that a plea of guilty in the
face of an open
and shut case against an accused person is a neutral factor.
[6]
The evidence linking the respondent to the crimes was overwhelming.
There is, moreover, a chasm between regret and remorse. Many
accused
persons might well regret their conduct, but that does not without
more translate to genuine remorse. Remorse is a gnawing
pain of
conscience for the plight of another. Thus genuine contrition can
only come from an appreciation and acknowledgement of
the extent of
one's error. Whether the offender is sincerely remorseful, and not
simply feeling sorry for himself or herself at
having been caught, is
a factual question. It is to the surrounding actions of the accused,
rather than what he says in court,
that one should rather look. In
order for the remorse to be a valid consideration, the penitence must
be sincere and the accused
must take the court fully into his or her
confidence. Until and unless that happens, the genuineness of the
contrition alleged
to exist cannot be determined. After all, before a
court can find that an accused person is genuinely remorseful, it
needs to have
a proper appreciation of, inter alia: what motivated
the accused to commit the deed; what has since provoked his or her
change
of heart; and whether he or she does indeed have a true
appreciation of the consequences of those actions. There is no
indication
that any of this, all of which was peculiarly within the
respondent's knowledge, was explored in this case.’
[9]
In as far as the aspect of being a good candidate for rehabilitation
is concerned,
the following is material. Mr Bryson Kelokilwe, of the
Department of Correctional Services, compiled a Suitability Report:
Consideration
of Correctional Supervision/Placement in terms
of
s 276A(1)(a)
of the CPA. The probation officer recorded that the
appellant admitted only one rape, that of the 21-year-old. He failed
to disclose
the other rape cases against him during the interview.
The appellant does not appreciate the depth of the dehumanization
caused
to the minor children. The fact that he targeted minor girls
demonstrates that he is a sexual predator. The submission that the
appellant was remorseful is misplaced.
[10]
Navsa JA memorably said the following regarding rehabilitation in
Director
of Public Prosecutions, KwaZulu-Natal v Ngcobo and Others:
[7]
‘
Traditional
objectives of sentencing include retribution, deterrence and
rehabilitation. It does not necessarily follow that a shorter
sentence will always have a greater rehabilitative effect.
Furthermore, the rehabilitation of the offender is but one of the
considerations
when sentence is being imposed. Surely, the nature of
the offence related to the personality of the offender, the
justifiable expectations
of the community and the effect of a
sentence on both the offender and society are all part of the
equation? Pre- and post-
Malgas
the essential question is whether the sentence imposed is in all the
circumstances, just.’
[11]
These victims were vulnerable and unsuspecting. The appellant preyed
on them like a vulture.
The Victim Impact Statements revealed their
trauma and the fact that they have dropped out of school since the
incident and their
discomfort and mistrust of men in general. They
now face a bleak and doomed future emanating from a fleeting
gratification with
lasting emotional trauma.
[8]
The society expects children to be raised and protected in an
environment that allows them to optimise their potential without
fear.
Primary caregiver
[12]
Section 28(2) of the Constitution
[9]
emphasises the paramountcy of the best interests of a child
[10]
.
A child in this section means a person under the age of 18 years.
Sight must not be lost of the fact that s 28 also applies to
the rape
victims in counts 2, 3, 4 and 5 as they were all below the age of 18
when they were raped. The appellant’s contention
was that the
trial court has failed to consider that he is the primary caregiver
when imposing life imprisonment. He urged us to
remit the matter to
the trial court to conduct an enquiry to ascertain the best interests
of his minor children.
[13]
Sachs J in
S
v M (Centre for Child Law as amicus Curiae)
[11]
considered
the proper approach of a sentencing court where the convicted person
is the primary caregiver of minor children and said:
‘
There
is no formula that can guarantee right results. However, the
guidelines that follow would, I believe, promote uniformity of
principle, consistency of treatment and individualisation of outcome.
(a) A
sentencing court should find out whether a convicted person is a
primary caregiver whenever there are indications
that this might be
so.
(b) A
probation officer's report is not needed to determine this in each
case. The convicted person can be asked
for the information and if
the presiding officer has reason to doubt the answer, he or she can
ask the convicted person to lead
evidence to establish the fact. The
prosecution should also contribute what information it can; its
normal adversarial posture
should be relaxed when the interests of
children are involved. The court should also ascertain the effect on
the children of a
custodial sentence if such a sentence is being
considered.
(c) If
on the
Zinn
-triad approach the appropriate sentence is clearly
custodial and the convicted person is a primary caregiver, the court
must apply
its mind to whether it is necessary to take steps to
ensure that the children will be adequately cared for while the
caregiver
is incarcerated.
(d) If
the appropriate sentence is clearly non-custodial, the court must
determine the appropriate sentence, bearing
in mind the interests of
the children.
(e)
Finally, if there is a range of appropriate sentences on the
Zinn
approach, then the court must use the paramountcy principle
concerning the interests of the child as an important guide in
deciding
which sentence to impose.’
[14]
The trial court had postponed the case for the presentence report. Mr
Kelokilwe records that
the three children and the appellant lived at
his parental home with his parents. His parents make a living through
livestock farming,
collecting and selling wood to the community as
well as steel welding work. In considering the appropriateness of the
custodial
sentence the following is relevant: There will be no
material impact on the minor children save for the appellant’s
prolonged
absence. The children will be in the same familiar
environment and cared for by their grandparents. When the accused was
interviewed
by the correctional officer, he did not specifically
state that he was the primary caregiver. He only stated that he and
his children
reside with his parents. This aspect is crucial because
it distinguishes a primary caregiver from a breadwinner or a present
but
absent parent.
[15]
The grandparents ensured that the minor children were fed, prepared
for school and carried on
with their daily activities. The appellant
was maintained from the same source that provides for the
grandparents, namely, the
family business. There is no doubt that the
best interests of the minor children will be taken care of. Their
mother is still alive
and there is nothing that will stop the
grandparents from co-parenting with her should that need arise.
[16]
Marais JA endorsed the salutary approach to sentencing in
S
v Malgas
[12]
when he said:
‘
The
mental process in which courts engage when considering questions of
sentence depends upon the task at hand. Subject of course
to any
limitations imposed by legislation or binding judicial precedent, a
trial court will consider the particular circumstances
of the case in
the light of the well-known triad of factors relevant to sentence and
impose what it considers to be a just and
appropriate sentence. A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court,
approach the question of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because
it prefers it. To do so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial
court vitiates its exercise of
that discretion, an appellate Court is of course entitled to consider
the question of sentence afresh.
In doing so, it assesses sentence as
if it were a court of first instance and the sentence imposed by the
trial court has no relevance.
As it is said, an appellate Court is at
large. However, even in the absence of material misdirection, an
appellate court may yet
be justified in interfering with the sentence
imposed by the trial court. It may do so when the disparity between
the sentence
of the trial court and the sentence which the appellate
Court would have imposed had it been the trial court is so marked
that
it can properly be described as 'shocking',
'startling' or 'disturbingly inappropriate'. It must be emphasised
that
in the latter situation the appellate court is not at large in
the sense in which it is at large in the former. In the latter
situation
it may not substitute the sentence which it thinks
appropriate merely because it does not accord with the sentence
imposed by the
trial court or because it prefers it to that sentence.
It may do so only where the difference is so substantial that it
attracts
epithets of the kind I have mentioned. No such limitation
exists in the former situation.’
[17]
The appellant is, in my view, a serial rapist who must be removed
from society for life in terms
of the dictates of the CLAA. I can
conceive of no substantial and compelling circumstances existing to
justify the departure from
the ordained life imprisonment sentences.
[18]
I am not persuaded that the appellant’s circumstances meet the
threshold of a primary caregiver
as it does not appear anywhere, even
when he testified in mitigation of sentence, that he is. What has
been clearly stated in the
presentence report is that the source of
their living is the family business wherefrom he and his children are
cared for. The social
workers in that community would be directed to
visit the family to establish the further needs, if any, of the minor
children and
to guide the family regarding their best interests.
[19]
In the result, following order is made:
1.
The appeal against the sentences imposed is
dismissed.
2.
The office of the registrar is directed to
make a copy of this judgment available to the Department of Social
Development who are
enjoined to visit the family of the appellant to
investigate their needs, if any.
MC MAMOSEBO
ACTING DEPUTY JUDGE
PRESIDENT
NORTHERN CAPE DIVISION
I concur
T TYUTHUZA
ACTING JUDGE OF THE
HIGH COURT
NORTHERN CAPE DIVISION
For the Appellant
Mr PJ Fourie
Instructed by:
Legal Aid South Africa
For the Respondent:
Adv T Engelbrecht
Instructed by:
The Director Public
Prosecutions
[1]
309
Appeal
from lower court by person convicted
(1)(a)
Subject to section 84 of the Child Justice Act, 2008 (Act 75 of
2008), any person convicted of any offence by any lower
court
(including a person discharged after conviction) may, subject to
leave to appeal being granted in terms of section 309B
or 309C,
appeal against such conviction and against any resultant sentence or
order to the High Court having jurisdiction:
Provided
that if that person was sentenced to imprisonment for life by a
regional court under section 51 (1) of the Criminal Law
Amendment
Act, 1997 (Act 105 of 1997), he or she may note such an appeal
without having to apply for leave in terms of section
309B:
Provided further that the provisions of section 302 (1) (b) shall
apply in respect of a person who duly notes an appeal against
a
conviction, sentence or order as contemplated in section 302 (1)
(a).
[2]
2009
(1) SACR 552
(SCA) para 1
[3]
[1997] ZASCA 45
;
1997
(3) SA 341
(SCA) paras 3 – 4
[4]
S
v Vilakazi
2009 (1) SACR 552
(SCA) para 58
[5]
S
v Matyityi 2011 (1) SACR 40 (SCA)
[6]
S
v Barnard
2004 (1) SACR 191
(SCA) at 197G
[7]
2009
(2) SACR 361
(SCA) para 22
[8]
Director
of Public Prosecutions Eastern Cape v Coko 2024 (2) SACR 113 (SCA)
[9]
The
Constitution of the Republic of South Africa, 108 of 1996
[10]
[11]
[2007] ZACC 18
;
2007
(2) SACR 539
(CC) para 36
[12]
2001
(1) SACR 469
(SCA) para 12