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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST PROVINCIAL DIVISION, MAHIKENG

 

Case No.: CA03/2020

 

In the matter between:

TEKA SAMUEL MOGOMOTSI                                                      Appellant

and

THE STATE                                                                                    Respondent

 

Delivered:     This judgment is handed down electronically by circulation to the parties through their legal representatives’ email addresses. The date for the hand-down is deemed to be 21 September 2022.

 

JUDGMENT

 

MTEMBU AJ

 

Introduction

[1]        This appeal against sentence emanates from the Regional Court sitting at  Atamelang where the appellant was charged with the following offences: Counts 1 and 2 – Rape read with the provisions of section 51(2) of Act 105 of 1997 and count 2, rape read with the provisions of section 51(1) of Act 105 of 1997; Count 3 - robbery with aggravating circumstances as intended in section 1 of the Criminal Procedure Act (CPA) 51 of 1977 read with section 51(2)(a) of the Criminal Law Amendment Act (CLAA) 105 of 1997; Count 4 - housebreaking with intent to rob; Count 5 - possession of an unlicensed firearm; and Count 6 – Attempted murder. 

[2]        Despite the appellant’s plea of not guilty, he was convicted as charged. The trial court found no substantial and compelling circumstances that warranted a deviation from the minimum sentences prescribed in terms of the CLAA. The appellant was sentenced to 10 years’ imprisonment in respect of count one, life imprisonment in respect of count two, 15 years’ imprisonment in respect of count three, and 3 years’ imprisonment in respect of counts four and five. In respect of the attempted murder conviction in count six, a sentence of 10 years imprisonment was imposed.

[3]        The appeal on sentence is in respect of counts 1, 2, and 3. The sentences on counts 4, 5, and 6 are not challenged.

[4]        The appellant also applied for condonation of the late filing of an appeal. The condonation application is unopposed, and the State concedes to the granting of condonation.  During trial proceedings, the appellant was represented by Legal Aid. Upon sentencing, he issued instructions to appeal the sentence. Legal Aid did not institute an appeal timeously when it was instructed to do so. There is no prejudice alleged to have been suffered by the State. In fact, it is the appellant who has suffered prejudice, as he was under the impression that the appeal was being prosecuted while it was not. I see no reason why condonation should not be granted.

Brief summary of the facts

[5]        The appellant was charged with two counts of rape which occurred at different places. The counts of rape were in respect of Ms. D and Mrs. B.   In count 1, it was common cause that on 03 March 2017, the appellant and Ms. D had sexual intercourse. The issue for determination before the court a quo was whether the sexual intercourse was consensual or not. Ms. D had a romantic relationship with the appellant’s brother. The appellant’s testimony was that he and Mrs. D had a wonderful romantic night. Ms. D called him to her bedroom and started making moves on him. As a result, he got aroused. On the other hand, it was D’s evidence that the appellant slapped her with open hands, demanded sex, forcefully undressed her, and inserted his penis into her vagina. She reported the matter to the police and was subsequently taken to a hospital for medical examination. The J88 completed by a professional nurse, Rosaline Magape, indicated that Ms. D had multiple minor injuries on her right elbow, on her right shoulder, and a red discoloration on the lower part of her right arm.

[6]        The facts as they relate to counts 2 – 6 are that on 02 June 2017, Mrs. B was woken up by a sound which was a breaking of the front door of her house. She immediately switched on the lights. She also called her neighbours for help. She heard voices of people in the passage, as they were busy bending the burglars.  She then took her firearm and fired six (6) shots until she ran out of bullets. Mrs. B was staying alone in her farm, Noordhulp. She had two male workers and one female worker. All of them were working a day shift.

[7]        Upon breaking the burglars, Mrs. B testified, the appellant entered her bedroom. The appellant stabbed her with a garden fork. She however managed to block it and the blade struck her hand. The fork’s scars were shown to the trial court. The appellant told her that she would be killed. Mrs. B then prayed to God that her neighbours should come quickly so that they could rescue her life.   

[8]        The appellant then started assaulting her with fists. She thereafter fell down on the mat. Whilst on the mat, she was throttled and punched with clenched fists. Her pajamas got torn during that episode. The appellant then inserted his penis into her vagina. She wrestled with the appellant and during the ordeal, his penis got out of her vagina. She lost the fight, and the appellant inserted his penis for the second time. Mrs. B was pulled with her hair. Thereafter, the appellant took her cell phone and her firearm, and also demanded money which the appellant took from her wallet as well as a watch. It was a cell phone S7 Samsung Galaxy valued at R12,000 and the amount of money was between R200 and R500. The watch was worth R30,000.             

[9]        The appellant took the firearm and placed it on her head and ordered her to open the burglar door. She complied. She was able to see the assailant because there was sufficient illumination in the bedroom.  During the incident, she realized that there was another person outside. However, she was unable to identify that person. The incident took about 10 to 15 minutes. Her nose was broken, and one eye was swollen. Her tooth was loose. The blood was flowing from her nose and mouth. After the assailants had escaped, the neighbours arrived. As a result of the injuries she sustained, she was hospitalized for a period of four days. At the time of the incident, she was a widow after 42 years of marriage.

[10]      It was common cause that the appellant had sexual intercourse with Mrs. B and did not use a condom. It was also common cause that the sexual intercourse was not consensual. The appellant’s version was that he slept with Mrs. B because his fellow friends were threatening to kill her. In an attempt to save Mrs. B, he then decided to have sexual intercourse with her. The appellant was arrested on the same day of the incident at his place of residence. The police found a bag with Mrs. B’s firearm upon search at the appellant’s place of residence. The appellant was also linked to the commission of the crime through the DNA results. He denied having broken the burglar door and stated that it was his fellow friends.

Grounds of Appeal

[11]      The appellant assails the sentence imposed by the magistrate on the basis that the court a quo erred in finding that the appellant’s cumulative personal circumstances are not substantial and compelling circumstances justifying a departure from the prescribed minimum sentence.

[12]      The second ground is that the sentences are shockingly inappropriate and severe in the circumstances and out of proportion to the totality of the accepted facts.

[13]      In support of his grounds of appeal, the appellant contends that at the time of the commission of the offences, he was twenty-two (22) years old. He was very young. He was a first-time offender. He was born and grew up in a disadvantaged home. He never attended school in his entire life. He was surviving from odd jobs fixing fences with an unstable income. He was remorseful. The firearm and amount of cash were recovered and therefore given back to the victim.

Analysis and  application of the law

[14]     There are well-established principles governing the hearing of appeals against sentence.  In short, punishment is pre-eminently a matter of the discretion of the trial court and a court of appeal should be careful not to erode that discretion.  Interference is only warranted if it is convincingly shown that the discretion has not been judicially and properly exercised. The test is whether the sentence is vitiated by an irregularity, a material misdirection or is disturbingly inappropriate.  (S v Rabie)[1] 

[15]      This was echoed in S v Van Wyk and Another[2] where the Supreme Court of Appeal (SCA) held that it would interfere with sentences imposed by a trial court only where the degree of disparity between the sentence imposed by the trial court and the sentence the appeal court would have imposed, was such that interference was competent and required. But then, the court cautioned, the appellate court needed to have a definite view as to what sentence it would have imposed, even if it is only able to identify a particular range within which it would have imposed the sentence. See S v Monyani and Others.[3]

[16]      In terms of section 51(2)(a) read with Part 2 of Schedule 2 of the CLAA, robbery with aggravating circumstances attracts a minimum sentence of 15 years for a first offender. Rape in terms of section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, read with section 51(1) and Part 1 of Schedule 2, has a minimum sentence of life imprisonment. Rape read with the provisions of section 51(2) and Part 3 of Schedule 2 of the CLAA attracts  a minimum sentence of 10 years for a first offender.

17]       It is trite law that the sentence of an accused person must be balanced between the interests of society, the offence, and the personal circumstances of the accused (S v Banda and Others)[4]. It can be gleaned from the judgment of the court a quo that the trial court took into account as mitigating factors the following personal circumstances of the appellant as well as the aggravating factors: The appellant was 22 years old. He comes from a historically disadvantaged background. He was unemployed but surviving on piece jobs. He was supporting his family. He is a first offender. The trial court correctly considered that although the courts try to keep first offenders out of prison it is normally not possible to do so when serious offences have been committed. The court a quo correctly found that although it was argued on behalf of the appellant that he is remorseful, but his conduct did not show any contrition.  The accused maintained his innocence in the face of overwhelming evidence against him which includes the recovery, for instance, of the firearm in his bag upon arrest taken from one of his victims.

[18]      The trial court meticulously considered that the fact that the appellant was 22 years old and a first-time offender cannot be considered as substantial and compelling circumstances.  I agree, as it was stated by the Supreme Court of Appeal in S v Vilakazi[5], that serious cases will usually require that retribution and deterrence should come to the fore and that the personal circumstances of the offender, by themselves, will necessarily recede into the background. In Vilakazi, the court held, “once it becomes clear that the crime is deserving of a substantial period of imprisonment the questions whether the accused is married or single, whether he has two children or three, whether or not he is in employment, are in themselves largely immaterial to what that period should be …"[6]

[19]      The trial court correctly found that the appellant’s personal circumstances do not justify a departure from the prescribed minimum sentence. The trial court correctly found that a lesser sentence would be an overemphasis of the appellant’s personal circumstances to the detriment of the seriousness of the offence and the interests of society.  

[20]      The appellant’s conduct was monstrous. The complainant in count 1 was slapped with open hands; raped without a condom; raped by a person who is a brother to her partner; raped in front of her minor children, one was six years old, and the other was two years old. The minor children were crying as they observed such horrendous acts. The complainant in count 2 was strangled; stabbed with a garden fork; punched with fits on numerous occasions; pointed at with a firearm; raped by a young person who qualifies to be her grandson.

[21]      It is clear from the testimony of the complainants that their horrific experiences at the hands of the appellant have left a lasting psychological scar on each of them. The complainant in count 2, Mrs. B, testified that she continues to have terrifying dreams. According to Mrs. B's testimony, the ordeal she went through is one she will never forget.

[22]      The trauma caused to the complainants by these acts of violence, without any doubt, was severe and enduring. The victims of such crimes deserve the protection of the law and the sentences that are imposed should reflect that the law takes the victims’ trauma into account. See S v Matyityi  2011 (1) SACR 40 (SCA). To place women’s lives at risk like this and to be so enduringly cruel to them is an evil to be severely punished. It is a prevalent conduct as the Magistrate pointed out. The trial court, quite correctly, placed much emphasis on the prevalence of offences of this nature against women throughout this country. 

[23]      It is patently clear that the court a quo considered all the principles relevant to sentencing and applied them to the facts of the case before him.  He did not overlook the appellant’s personal circumstances.  He weighed them against the aggravating factors that he found to be relevant. The conduct of the appellant was particularly abhorrent. The appellant’s horrific conduct left the complainants in torment. Mrs. B, in particular, had to attend counselling. It cannot be said that the learned Magistrate misdirected himself in identifying the aggravating factors, or in the manner in which he sought to balance the aggravating factors against factors favourable to the appellant.

[24]      The Magistrate rightly found that the appellant’s personal circumstances do not justify a departure from the prescribed minimum sentence. The Regional Magistrate was therefore statutorily obliged to impose the prescribed minimum sentence of imprisonment for life for the appellant’s conviction of rape read with the provisions of section 51(1) of Act 105 of 1997, and a minimum sentence of 10 years in respect of rape read with the provisions of section 51(2) of Act of 105 of 1997.

[25]      Mahomed CJ in S v Chapman  [1997] ZASCA 45;   1997 (2) SACR 3 (SCA) at 5A-E  [1997] ZASCA 45[1997] ZASCA 45; ;   (1997 (3) SA 341;   [1997] 3 All SA 277) stated the following:

“. . . 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 [See ss 10, 11 and 13 of the Constitution of the Republic of South Africa 200 of 1993 and ss 10, 12 and 14 of the Constitution of the Republic of South Africa Act 108 of 1996 – Eds.] and to any defensible civilisation.

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 insecurity which constantly diminishes the quality and enjoyment of their lives.  . . . 

The Courts are under a duty to send a clear message to the accused, to other potential rapists and to the community:  We are determined to protect the equality, dignity and freedom of all women, and we shall show no mercy to those who seek to invade those rights.’

[26]      I agree with the trial court that the appellant showed no respect for the complainants’ rights nor did he at any stage show the slightest contrition.  The appellant denied responsibility of the offence claiming that he was lured by the complainant in count 1. This defense is maintained despite the victim's visible injuries, as documented in the J88.

[27]      The complainant in count 2 was an old woman, staying alone in the farm. She was a vulnerable woman. The appellant took advantage of the complainant’s personal circumstances. Sexual assault is a widespread and serious problem in our society. Sexual assaults are outrageous crimes. The imposition of a lesser sentence than the mandatory minimum sentence will not in this instance lessen the heinous acts of rape.

[28]      Similarly, in count 3, which is robbery with aggravating circumstances as intended in terms of section 51(2) of Act 105 of 1997, when he robbed and raped the complainant in counts 2 - 6, he stabbed her with a garden fork. Pressed a gun on her head.  He punched her with a clenched fist on numerous occasions. He kicked her. The victim stayed four days in hospital as a result of the appellant’s heinous conduct. The imposition of a lesser sentence than the mandatory minimum sentence would be an overemphasis of the appellant’s personal circumstances to the detriment of the seriousness of the offence and the interests of society.

[29]      In the absence of a material misdirection by the trial court, an appellate court cannot approach the question of sentence as if it were the trial court and then substitute the trial court’s sentence simply because it prefers to. See S v Malgas  2001 (1) SACR 469 (SCA). The same would apply to an accused who cannot choose the sentencing regime that he prefers.[7]

[30]      The prescribed minimum sentence has been set as a standard for determining the sentence that should be imposed for specific crimes and should not be deviated from for purely cosmetic reasons. In Nkabinde and Others v S[8] , it was held as follows: 

‘. . . the prescribed minimum sentences should not be departed from lightly and for flimsy reasons. The legislature has ruled that these are the sentences that ordinarily, and in the absence of weighty justification, should be imposed for the specified crimes, unless there are truly convincing reasons for a different response.’

[31]      Therefore, the sentence is not vitiated by any irregularity or material misdirection. All the relevant factors and circumstances were considered and duly taken into account by the trial court.  Interference with the imposed sentence is not warranted.

Order

[32]      In the result the following order is made:

(a)          Condonation for the late noting and prosecuting of the appeal is granted.

(b)          The appeal against sentence is dismissed.

 

 

AARON MSAWENKOSI MTEMBU

ACTING JUDGE OF THE HIGH COURT 

NORTH WEST DIVISION, MAHIKENG

I agree

SAMKELO GURA

JUDGE  OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

 

APPEARANCES

DATE OF HEARING                                :           29 JULY 2022 [Decided on papers]

DATE HANDED DOWN                           :           21 SEPTEMBER 2022

COUNSEL FOR THE APPELLANT         :           MR T G GONYANE

INSTRUCTED BY                                    :           LEGAL AID South Africa,

Mafikeng

local office

counsel for the respondent                       :          adv N.B GOLODA

instructed by.                                             :          office of the director of

public PROSECTIONS,

MMABATHO

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