ZIETSMAN J.A
The appellant was found guilty in the Magistrates Court of rape and was sentenced to 12 years imprisonment. His appeal to the High
Court failed but he was given leave to appeal to this Court against his sentence. The rape is alleged to have taken place on 5 May
2001.
The appellant is a first offender whose aged is given as 35 years. The complainant alleged in evidence that she was 21 years old.
According to her she was sleeping with her boyfriend at her home on the night that the offence was committed. The appellant entered
the hut where they were sleeping and told her to wake up. The complainant’s boyfriend asked the appellant what he wanted and
was threatened by the appellant. The complainant told the appellant that she could not wake up whereupon the appellant produced a
knife from his pocket. The complainant’s boyfriend ran out of the hut and was followed by the appellant. The complainant then
ran to her grandparent’s yard and told her grandfather that she had been attacked at her home. The complainant’s grandfather
accompanied the complainant back to her home where they found the appellant who was then reprimanded by the appellant’s grandfather.
The following morning the complainant and her grandfather reported the incident to Mma Olatotswe who also reprimanded the appellant.
Later that day the appellant went to the complainant’s home and asked her to accompany him. She refused. He then pulled her
by the hand, produced his knife and threatened to stab her if she refused to go with him. The complainant called out to the witness
Kedibonye Mphesi Ntsela who remonstrated with the appellant. The appellant told her that he did not need any advice from her and
he forced the complainant to accompany him. Kedibonye sought help from other sources and she, the complainant’s boyfriend and
the witness Leboko Modise followed the appellant and the complainant. They caught up with them and told the appellant that the complainant
was wanted back at her home. The appellant tried to stab Leboko with his knife and Leboko and the others left. After they had gone
the appellant pulled the complainant into the bush and had sexual intercourse with her three times without her consent.
It is clear from the evidence that the appellant persisted in his abuse of the complainant despite warnings from several people not
to do so. The question, taking all relevant circumstances into account, is whether the sentence of 12 years imprisonment is unduly
severe.
Ms Mokaloba, for the State, has submitted that the sentence is unduly severe and should be reduced to the mandatory minimum sentence
of 10 years imprisonment. We have difficulty with some of the submissions contained in her heads of argument. She states, inter alia, the following;
“It is clear that sentence beyond the minimum mandatory sentence may be ordered only where the court finds that the act of rape is
attended by violence resulting in injury to the victim”.
This quite clearly is not a correct statement. While the minimum mandatory sentence of 10 years imprisonment is undoubtedly a severe
sentence there may be several reasons why an appropriate sentence will be a sentence in excess of 10 years imprisonment even if the
complainant is not seriously injured. An example could be the accused’s record of previous convictions for similar offences.
A further submission made by Ms Mokaloba is that sentences must be seen as a chance for rehabilitation and should not be seen as punishment.
While the possibility of the convicted person being rehabilitated may be a relevant consideration this is not the only factor to
be considered. Frequent reference is made in the courts to the triad of factors requiring consideration, namely the crime, the offender
and the interests of society. See e.g S v MAXAKU 1973 (4) S.A 248 (C) AT 254 C-D.
In the case of S v ZINN 1969 (2) S.A 537 (A), for example, the interests of society was held to be an important consideration when the appropriate sentence was determined. The
following is stated at page 542 C-E.
“The interests of society, in my opinion, demand than a man like the appellant must be put away for a long time, not only to protect
society against a man who has no conscience in respect of people who lend him money or to whom he owes money, but also as punishment
for crimes committed over an extended period and as a warning to businessman who might feel inclined to abuse the confidence that
must necessarily exist in a civilized state in the field of business and industry”.
In the well-known case of S v V 1972 (3) S.A 611 (A), the following is stated by Holmes J.A at page 614 D;
“Punishment should fit the criminal as well as the crime, be fair to the accused and to society and be blended with a measure of mercy.”
The determination of an appropriate sentence requires a consideration of all of the factors referred to above.
In her heads of argument Ms Mokaloba states that the Magistrate misdirected himself in taking into account the prevalence of the offence
of rape in the Kweneng District. This also is a submission which cannot be supported. While undue emphasis should not be placed thereon,
the prevalence of an offence in the area in question is undoubtedly a relevant factor in determining an appropriate sentence.
I come now to the sentence passed by the Magistrate in the present case. There are certain aggravating factors. Despite being warned
off by various people the appellant persisted in his harassment of the complainant and he had sexual intercourse with her three times
without her consent. He also threatened her with a knife. She was fortunately not seriously injured by him.
The minimum mandatory sentence of 10 years imprisonment for rape is itself a severe sentence and it is not often that a sentence in
excess of the minimum mandatory sentence is passed for this offence.
After considering all of the relevant factors, and in particular the age of the appellant (35 years) and the fact that he has no previous
convictions for any offence, we have decided, with much hesitation, to reduce his sentence to one of 10 years imprisonment.
In the result the conviction is confirmed but the sentence is reduced to a sentence of 10 years imprisonment backdated to 23rd September 2002.
DELIVERED AT AN OPEN COURT AT LOBATSE THIS ……. DAY OF APRIL 2008
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NW ZIETSMAN
JUDGE OF APPEAL
I AGREE
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PH TEBBUTT
JUDGE PRESIDENT
I AGREE
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DR S J TWUM
JUDGE OF APPEAL
.RTF of original document