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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

CASE NO: A675/16

20/6/2018

 

In the matter between -

 

STEVEN MALATJIE (MOLEKOA)                                                                             Appellant

 

and

 

THE STATE                                                                                                                     Respondent

JUDGMENT 

MAKOLA AJ

Introduction

[1]       On 11 May 2013, the Soshanguve Regional Court, Pretoria, convicted the appellant of housebreaking with intent to rape, rape, and robbery with aggravating circumstances and, subsequently, $sentenced him to imprisonment for life for the rape and, 15 years imprisonment for the robbery with aggravating circumstances.

[2]        The appellant appeal against the imposition of life imprisonment and does not challenge the sentence of 15 year imprisonment.

[3]      The question that arises in this appeal is whether there are substantial and compelling circumstances which justify the imposition of a lesser sentence than imprisonment for life for the rape.

 

The facts

[4]       On 8 June 2011, t approximately 01h00 an intruder broke into the complainant's house, raped her, and robbed her of two cell phones and a wrist watch. The complainant identified the appellant as the person who raped and robbed her of the items referred to above. Although it was at night, she could see the appellant because of the light from the Apollo streetlamp that shone into her home and, when raping her, the appellant used the torch from his cell phone.

[5]        The complainant also recognised the appellant because she had seen him before, at a local car wash and had also recognised him by a scar on the left side of his face.

[6]        On the same day, 8 June 2011, the appellant of the of the cell phones stolen from the complainant to a Mr GT . The police subsequently retrieved the other cell from the appellants’ house.

[7]        The appellant contends that the trial court misdirected itself by finding that there were no substantial and compelling circumstances justifying the imposition of a lesser sentence; that the sentence imposed was shockingly inappropriate and induced a sense of shock; it was harsh and the trial court did not investigate the existence or otherwise of substantial and compelling circumstances warranting a departure from the prescribed sentence; the sentence imposed is not in the interests of the community and the trial court did not exercise its discretion properly.

 

Discussion

[8]        The appellant's principal contention is that the trial court did not investigate whether there were substantial and compelling circumstances which justified the imposition of a lesser sentence than imprisonment for life. This challenge, however, is not borne out by the record. Manifestly, the trial court considered the Question whether there were substantial and compelling circumstances that justified the imposition of a lesser sentence. Indeed, it expressly noted that it was required under section 51(3) of the Criminal Law Amendment Act 105 of 1997 to undertake an enquiry. To this end, the following were considered. The appellant was 25 years old at the time of the offence in 2011 and he was unmarried and had one child. He claims to have passed matric !though this was disputed by his mother, but nothing turns on this. His biological father passed away when he was young and his mother and stepfather raised him until they divorced. He had a good relationship with his mother, sister and his stepfather.

[9]        But the court else considered other factors, as it was required under the section. The offence with which the appellant was convicted was serious. He broke into the complainant's house where she was supposed to feel safe. He raped a 15-year-old girl under threat of a knife and he also threatened to kill her parents. The appellant penetrate the complainant vaginally and rectally. Rape is a humiliating, degrading and brutal invasion of privacy, the dignity and person of the victim (S v Chapman [1997] ZASCA 45; 1997 (3) SA 341 (SCA) at 344 I-J).

[10]     The ordeal left the complainant with emotional and psychological distress. She failed her second term at school shortly thereafter and became introverted, when she was an extrovert before the incident. She attended therapy for up to six months and this placed a financial burden on the family. Two years after the fact, the complainant still felt violated, hurt and angry. The incident has had an adverse impee.t on the complainant and her parents and it has given rise to anger and a sense of guilt on the mother who blames herself for failing to protect her child.

[11]      Society abhors sexual offences and the devastating effect they have on victims and society rape is "a horrifying crime": "a cruel and selfish act in which the aggressor treats with utter contempt the dignity and feeling of [their] victim''; “a very serious offence” which is a "humiliating degrading and brutal invasion of the privacy, dignity and the person of the victim". It is an "appalling and perverse abuse of male power' which ''strikes a blow at the very core of our claim to 3be civilised society".[1]

[12]      Society demands the imposition of harsh sentences that adequately reflect censure and retribution upon those who commit these monstrous offences and to deter would-be offenders. (S v Hewitt [9]). The direness of the situation was described by this court in Joseph Ghinga Siyale v the State NGH Case No: CC215/01 as follows:

“[19] Children are the most vulnerable , yet the repository of posterity and we dare not allow that they be deflowered with Impunity at the risk of polluting posterity. Children cry out for protection. Whether there has been violence used or not, the scars of rape on the child victim, are the same, with the pain suffered in silence, for fear of being ridiculed by her peers, or chastised by parents."

[13]      The trial court also considered the submission made on behalf of the appellant that he was young when he committed the offence.

[14]      The appellant argued that the rape was net the 'worst rape mentionable". The seriousness of a rape, undoubtedly, will vary from case to case.

[15]      In S v Abrahams 2002 (1) SACR 116 (SCA) [29] Cameron .JA (as he then was) said the following-

"This in no way excuses the accused's conduct'. But it does weigh further towards the conclusion that a sentence of life imprisonment would be unjust. In addition, I agree with Foxcroft J that this is not one of the worst cases of rape. This is not to say that rape can ever be condoned. But some rapes are worse than others, and the life sentence ordained by the Legislature should be reserved for cases devoid of substantial factors compelling the conclusion that such sentence is inappropriate and unjust."

[16]     In S v Malgas 2001 (1) SACR 469 (SCA) [45], the SCA warned that specified sentences are not to be departed from lightly and for flimsy reasons. Speculative hypothesis favourable to the offender, undue sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy underlying the legislation, marginal differences in personal circumstances or the degrees of participation between co­ offenders are to be excluded.

[17]      The circumstances attending the rape and the impact it has had on the complainant and her parents then and, since have been described in detail above. These factors needed to be taken into account in the process of considering whether substantial and compelling circumstances were present justifying a departure from the prescribed sentence.

[18]      The fact that the appellant admitted to the social worker only after he had been convicted that that he had indeed raped the complainant, was not a factor compelling a departure from imposing the prescribed because there had in any event been DNA evidence linking the appellant to the rape of the complainant.

[19]     The trial court was also correct in considering the fact the appellant had committed his first rape when he was 18 years old and was subsequently convicted and sentenced to seven years imprisonment. In this case, he was 25 years old this rape was in fact committed whilst the appellant was in trial for the first one. His youthfulness constitute an exceptional factor, more had to be shown to justify a departure from the prescribed sentence.

[20]      Despite the trial court not find the existence of substantial and compelling circumstances; the appellant argues that the trial court should, nonetheless, have imposed lesser sentence because the sentence imposed is disproportionate to the crime.

[21]     The record manifestly shows that the trial did indeed considered the question of whether the file imprisonment would be disproportionate and concluded that, in the circumstances it would not.

Conclusion

[22]     We conclude the trial court did not commit a material misdirection when it concluded that there were no compelling and substantial circumstances justifying the imposition of a lesser sentence. Nor would we have imposed a sentence less r that the one imposed by the trial court.

 

Order

[23]      In the result the following order is made;

[23.1]   The appeal is dismissed and the sentences imposed are confirmed.

 

 

B.L MAKOLA

Acting Judge of the High Court

 

 

I agree, it is so ordered.

 

 

N.M MAVUNDLA

Judge of the High Court

 

 

Date of hearing                  : 16 April 2018

Date of judgment                : 20 June 2018

FOR THE APPELANT      : Ad.v MMP Masete

INSTRUCTED BY             : Legal Aid South Africa

FOR THE RESPONDENT : Adv K Van Rensburg

INSTRUCTED BY             : The National Prosecuting Authority

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