REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
REPORTABLE: YES/NO (1 )
(2)
(3)
OF INTEREST TO THE JUDGES: YES/NO
REVISED.
DATE/i ~ SIGNATURE . ...
In the matter between:
MILTON RAMA TSAMA MOGAJANE
and
THE STATE
JUDGMENT
MULLER J:
CASE NO: A37/2024
APPELLANT
RESPONDENT
[1] The appellant was sentenced to life imprisonment on 30 March 2016 in the regional
court sitting at Nebo for raping a young, twenty year o ld, woman a nd ten years
2
imprisonment for kidnapping her. It was ordered that the sentences run concurrently.1 The
appellant was legally represented throughout the trial. He exercised his right to appeal
against the sentences imposed only on 14 October 2024. An application for condonation for
the late filing of the notice of appeal is unopposed. There are prospects of success.
Condonation is therefore granted. Hence the appeal before us.
[2] It is necessary to refer to the charge-sheet in respect of the rape which was put to the
appellant and the explanation given to the appellant in respect of the applicability of section
51 (1) at the commencement of the trial since the learned regional magistrate applied
section 51 ( 1) of Act 105 of 1997 to imposed life imprisonment. The rape charge put by the
prosecutor reads as follows:
"Count 2 is rape. That is contravening of section 3, read with section 1, section 56(1 ), 57, 58, 59,
60 and 61 of the Criminal Law Amendment Act 32 of 2007, read with section 92(2), 94, 256, 257
and 261 of the Criminal Procedure Act 51 of 1977 and further read with section 51 (1) of the
Criminal Law Amendment Act 105 of 1997 in that upon or about the date of 28 October 2012 at
or near Phokwane in the regional Division of Limpopo the accused did unlawfully and
intentionally commit an acf- of sexual penetration with the complainant, to wit, MDM,3 20 years
old by penetration of his genital organs into or beyond the genital organs of the complainant
without consent. "4
[3] The appellant was also informed that despite the allegation in the charge sheet that the
complainant was 20 years of age at the time, that the minimum sentence of life
imprisonment may be imposed if the evidence shows, and it is found, that she was under
the age of 16 years. It was explained that should it be found that the rape falls under
the age of 16 years. It was explained that should it be found that the rape falls under
1 Such an order is strictly speaking unnecessary because section 39(2)((a){i)) of Act 111 of 1998 provides that any determined sentence of imprisonment imposed shall run concurrently with a life sentence. See S v Mashava 2014 (1) SACR 541 (SCA) par 7. 2 My emphasis.
3 The particulars of the complainant are omitted for purpose of the judgment. 4 The allegations as put to the appellant accord with the averments contained in the charge sheet.
3
section 51 (2)(b) of Act 105 of 1997 and if he is a first offender he might be sentenced to 10
years imprisonment. It was also explained that the court may deviate from the prescribed
sentence if there are substantial and compelling circumstances present. The appellant
indicated that he understood the explanation.
[4] It is noteworthy that the charge-sheet confains no averment why section 51 (1) is
applicable to the rape charge. The learned magistrate did not request the prosecutor to
inform the court as to the reason for making section 51 (1) applicable to the charge.
[5) The appellant was required to plead after the explanation given to him. He pleaded
guilty to both offences. A statement in terms of section 112(2) if the Criminal Procedure Act ,
Act 51 of 19775 was handed in. The appellant admitted in his plea that he had a
conversation with the complainant. He produced a screwdriver and threatened her with it.
He instructed her to follow him and threatened her with assault. He assaulted her with open
hands when he tried to convince her not to terminate their relationship. He instructed her to
undress and had intercourse with her after he instilled fear in her. After the intercourse she
requested permission to go home. He refused. She ran towards two woman who were
collecting firewood. She was unsuccessful to escape. He then had intercourse with her
again. He admitted that he assaulted the complainant before having intercourse with her
and that his actions were unlawful.
The magistrate in his judgment noted:
"So he is found guilty on count 1 of kidnapping, and also guilty on count of rape."
[6] The prosecution for purpose of imposing an appropriate sentence presented evidence of
a pre-se ntenc e report a s w e ll as a victim impa c t report and fin a lly, w ith c onsent, h a nde d in
an affidavit terms section 212(4) of the CPA of Dr ML Mogaru who examined the
5 Hereinafter called "the CPA".
4
complainant on 29 October 2012 and who recorded his findings in a J88 medical report.
The following conclusion appears in the report:
"23 year old was assaulted by an ex-boyfriend. Sustained multiple bruises at the back and left
forearm and right forearm. Sustained a scratch occipital area. Was assaulted with a sharp
object."
[7] No injuries to the genitals of the complainant were recorded. The injuries observed and
noted in the medical report J 88 are not described as grievous bodily injuries. It bears
notice that the appellant in his section 112(2) statement did not admit that he inflicted
grievous bodily injuries. Moreover, the magistrate also failed to draw the attention of the
appellant to the fact that the infliction of grievous bodily injury may attract a life sentence,
prior to the charge being put to the appellant.
[8] The magistrate when determining an appropriate sentence held that:
"In circumstances the offence is listed in Part 1 of Schedule 2 of the Act which prescribed a life
imprisonment because you raped the complainant more than once and according to the J88
attached hereto as EXHIBIT E she even sustained injuries, has inflicted grievous bodily harm on
her.
She sustained abrasions on both arms in front and on her back and also a scratch on top of her
head where a screwdriver was used. A screwdriver is also a dangerous weapon as defined in
Section 1 of the dangerous Weapons Act 15/2013."
[9] It was observed in S v Mponda:6
"It is contrary to the basic concept of a fair trial that an accused person charged with one count of
a particular offence is confronted with evidence in respect of a number of incidents and is
thereafter sentenced as if he or she had been convicted on multiple counts. Having regard to the
lack of legal s ophi s t icatio n o f m ost accused p e r s ons: a nd t o the . regre tt:ably all too fre 9uontly
discernable lack of experience and limited skills of many of the persons appointed by the Legal
6 2007 (2) SACR 245 (C) par 12.
5
Aid Board to represent accused persons in the criminal courts, particularly in the magistrates'
courts ... "
(1 OJ The appellant was charged with and pleaded guilty to a single act of rape. If it was
intended by the prosecution to charge the appellant for rape committed on diverse
occasions in a single count that much must be alleged in the charge-sheet as required by
section 94 of the CPA. The mere reference to section 94 in the heading of the charge sheet
without making any of the required allegations with regard to rape on more than one
occasion, is meaningless.
(11] The prosecution is bound to the charge, as formulated. An accused person cannot be
convicted of having committed more than one offence of rape when he is charged of having
committed a single offence. The learned magistrate misdirected himself. It needs no
emphasis that a conviction under the sentencing provisions applicable in terms of Act 105
of 1997, that if an offender convicted of raping his victim more than once or if the offender
is convicted of inflicting grievous bodily harm when the victim is raped, is liable to be
sentenced to life imprisonment. The appellant was not convicted of either.
(12] The learned magistrate misdirected himself, not only in respect of imposing life
imprisonment for raping the complainant twice, but he also misdirected himself in respect of
his finding that grievous bodily harm had been inflicted by the appellant. In Director of
Public Prosecutions Gauteng Division Pretoria v Moabl7 the court referred with approval to
the concurring judgment of Hoexter JA in R v Jacobs8 with regard to the infliction of
grievous bodily harm:
"The question whether grievous bodily harm has been inflicted depends entirely upon the nature.
position and extent of the actual wounds or injuries and the intention of the accused is irrelevant
in answering that question ."
7 2017 (2) SACR 384 (SCA) par 13. 8 1961 (1) SA 475 (A) 478A.
6
In the majority judgement Van Winsen AJA, in deciding whether or not grievous bodily harm was
inflicted, said:
"In deciding whether the Crown has proved the infliction of grievous bodily harm by the
accused, the jury would, in my opinion, be entitled to have regard to the whole complex of
objective factors involved in the accused's assault upon the deceased. It could take into
consideration the shock which would inevitably result to the deceased by reason of the fact
that the accused directed two blows at his face with a knife. It could have regard to the
wounds resulting from the stabs in the face, their number, nature and seriousness, as well as
to the two blows directed to the accused's stomach, their severity and the results which
flowed from their infliction."
[13] In the present matter, the medical evidence indicates that the complainant sustained
abrasions on both arms in front and on her back and also a scratch mark on top of her
head. Having regard to nature, position and extent of the injuries none of the injuries as
described by the medical practitioner can be regarded as infliction of grievous bodily harm
in respect of a charge of rape for purposes of Part 1 of Schedule 2 read with section 51 (1)
of Act 105 of 1997. Section 51 (1) of Act 105 Of 1997 provides:
"Notwithstanding any other law, but subject to subsections (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."9
Part I of Schedule 2 states:
"Rape as contemplated in section 3 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007 -
(a) when committed -
9 My emphasis.
(i) In circumstances where the victim was raped more than once whether by the accused
or by any co-perpetrator or accomplice;
7
(b) ...
(c) involving the infliction of grievous bodily harm."
[14] It needs no emphasis that an offender convicted under the sentencing provisions
applicable in terms of Act 105 of 1997, of raping his victim more than once, or if convicted
of inflicting grievous bodily harm whilst raping his v ictim, is liable to be sentenced to life
imprisonment.
[15] Section 51 (1) did not find application to the charge of rape since the appellant was
neither convicted of raping his victim twice, (although he admitted having raped her twice)
nor was he convicted of having inflicted grievous bodily harm. It was held in Moeagi v S:10
" ... that s 51 (2) is not a fall back provision for s 51 (1) for the following reasons. First, each of the
sections deals with specific offences with specific prescribed sentences. Section 51 (1) provides
for offences that fall under Part 1 of Schedule 2 and carries a mandatory minimum sentence
upon conviction to life imprisonment. The offences include murder executed in the furtherance of
a common purpose. On the other hand, s 51 (2) provides for different offences referred to in Parts
II, Ill and IV of Schedule 2 that carry a different set of mandatory minimum sentences. These
offences include 'murder in circumstances other than those referred to in Part I."
[16] The same reasoning applies to the offence of rape. It follows, therefore, that section
51 (2) cannot be applied as an alternative, if section 51 (1) finds no application. The regional
court could, as a result, not have exercised increased jurisdiction in terms of Act 105 of
1997.
[17] The prosecution presented evidence of a pre-sentence report. The appellant's family is
from Phokane village in Sekhukune. Both his have parents passed away. He is the fifth
born child in h is fam ily. The app ell a n t. who is 37 yea rs o ld , dropped ou t of schoo l in gra d e
12 due to lack of academic interest. He is the father of two children who are 1 0 and 6 years
10 1 All SA 301 (SCA) par 15.
8
old, respectively. The appellant does not maintain his children and does not have any
meaningful relationship with them. the appellant enjoys good health and is a first offender.
[18] He was gainfully employed at an exploration company in Witbank but his contract
expired. The probation officer suggested that a sentence of incarceration be imposed due
to the seriousness of the offences.
[19] According to the victim impact report the complainant is the youngest of 9 children. The
complainant was raised in a religious family where respect for other people was part of her
upbringing. The complainant has since the incident lost weight. The complainant has
undergone behavioural changes. The complainant is employed and has a child. She has
difficulty to come to terms with what happened to her. She had a relationship which ended
in failure. The complainant takes sleeping tablets to sleep at night.
[20] The court was addressed on whether there are substantial and compelling
circumstances present to warrant a lesser sentence. The seriousness of the offences and
deterrent effect of the sentence as well as the interest of the complainant were considered
by the magistrate. It is hardly necessary for this court to point out that rape is a very serious
offence. It is prevalent despite the imposition of minimum sentences. The appellant pleaded
guilty and has apologized to the complainant and her family. The complainant sustained
injuries to her forearms and back and on top of her head.
(20] The offences were premeditated. The appellant called her to the street from where she
was taken against her will to the mountain where he raped her twice and assaulted her. On
count 1, a sentence of ten years imprisonment was imposed, for kidnapping. The
c ircumstan ces were not of such a grievous nature that a maximum sentence was called for
in respect of the kidnapping charge.
9
A court of appeal will not lightly alter a determination of a sentence in the exercise of a
discretion by the lower court. The court of appeal may interfere if the discrepancy between
the sentence imposed and what the sentence ought to be, is so great that it can be inferred
that the magistrate has acted improperly and misdirected himself.11 An appropriate
sentence is considered to be two years imprisonment on count 1 and ten years
imprisonment on count 2 ante-dated to 30 June 2016.
ORDER
1. The appeal against the sentences imposed is upheld.
2. The sentences in respect of count 1 and 2 are set aside and replaced with the
following sentences.
2.1 Count 1. 2 years imprisonment.
2.2 Count 2. 1 0 years imprisonment.
2.3 The accused is declared unfit to possess a firearm.
2.4 The sentences are ante-dated to 30 June 2016 in terms of section 282 of
Act 51 of 1977.
11 S v Anderson 1964 (3) SA 494 (A) 495G-H.
I, concur
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G.C
JUDGE OF THE HIGH COURT
LIMPOPO , POLOKWANE
M BRESLER
ACTING JUDGE OF THE HIGH COURT
LIMPOPO, POLOKWANE
APPEARANCES:
FOR THE APPELLANT
INSTRUCTED BY
FOR THE RESPONDENT
INSTRUCTED
DATE HEARD
DATE DELIVERED
11
MR M.P LEGODI
LEGAL AID SA,
ADV S. MAWASHA
NDPP, POLOKWANE
06 M ARCH 2026
16 MARCH 2026
POLOKWANE