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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

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

 

CASE NUMBER: CA05/2019

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

 

In the matter between: -

 

M[...] J M[...]                                                   Appellant

 

and

 

THE STATE                                                   Respondent

 

Coram: Mfenyana J et Joubert AJ

 

This judgment was handed down electronically by circulation to the parties’ representatives via email. The date for hand-down is deemed to be 10 July 2024.

 

ORDER

 

1)   The late filing and prosecution of the appeal is condoned.

 

2)   The appeal is dismissed.

 

JUDGMENT

 

MFENYANA J

 

[1]             This is an appeal against the sentence of life imprisonment imposed on the appellant by the Regional Court, Schweizer-Reneke on 8 February 2016.  The sentence followed upon the appellant’s conviction on a charge of rape of a minor child in terms of section 51(1) of the Criminal Law Amendment Act (CLAA)[1].

 

[2]             The appeal was filed out of time. The appellant filed an application for condonation for the late filing and prosecution of the appeal. Both applications serve before this court.

 

[3]             The sole issue for determination in this appeal is whether the court a quo misdirected itself in not finding that there were substantial and compelling circumstances justifying a departure from the prescribed minimum sentence of life imprisonment imposed on the appellant.

 

[4]             In the notice of appeal, the appellant avers that the court a quo over- emphasized the seriousness of the offence at the expense of the personal circumstances of the appellant, which, when considered cumulatively, constitute substantial and compelling circumstances. Consequently, the appellant avers that rather a sentence of 25 years imprisonment would be appropriate in the circumstances.

 

[5]             The appeal is opposed by the respondent who avers that the personal circumstances of the appellant do not constitute substantial and compelling circumstances taking into account the relevant facts and circumstances of the case.

 

[6]             We consider it necessary to point out at this stage, that while not opposing the application for condonation, the respondent argued that it should be dismissed on the basis that the appeal enjoys no prospect of success.

 

[7]             Having considered the merits of the application for condonation, and the reasons for the delay advanced by the appellant in his application for condonation, it is clear that the delay in timeously filing and prosecuting the appeal was occasioned by administrative and procedural requirements for an appeal. Given the status and location of the appellant as a sentenced prisoner, these could not be attended to expediently. In those circumstances we are of the view that it would be in the interests of justice that the late filing and prosecution of the appeal be condoned and proceeded to consider the merits of the appeal.

 

[8]             In its firm opposition, the respondent highlights the fact that at the age of 45, the appellant was not a young and immature person at the time he committed the offence. As such, the respondent avers that the appellant’s age cannot count in his favour as a mitigating factor. The respondent also bemoans the fact that the appellant, being a father himself, and in a romantic relationship with the complainant’s mother, was like a father to the complainant. By violating the complainant in the manner that he did, he abused the position of trust he was placed in.

 

[9]             In respect of the emotional and other effects of the rape on the complainant, the respondent further contends that what ought to be considered is that the complainant was only 7 years at the time of the offence and therefore defenceless. In his written submissions, Mr Tlasana, pointed out, inter alia, that the complainant suffers from post-traumatic stress disorder and anger, as a result of the rape. He further argued that the undisputed injuries sustained by the complainant, as depicted in the J88 show that there was vaginal and anal penetration on multiple occasions.

 

[10]         To our minds, the argument advanced on behalf of the respondent dispels the appellant’s contention that the court a quo over - emphasized the seriousness of the offence above his personal circumstances. As correctly submitted by the respondent, the seriousness of the offence, together with the interests of society and the personal circumstances of the appellant should be viewed holistically.

 

[11]         In this case, the respondent avers that to deviate from the prescribed minimum sentence of life imprisonment, as contended on behalf of the appellant, would amount to overemphasizing the personal circumstances of the appellant over the interests of society and the seriousness of the offence.  This is indeed so, in our considered view.

 

[12]         The established principle when it comes to sentencing is that sentencing is pre-eminently within the discretion of the sentencing court. As such a court of appeal will not interfere lightly with the trial court’s exercise of its discretion.[2] In E du Toit et al Commentary on the Criminal Procedure Act[3], the learned authors note that:

 

“A court of appeal will not, 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…”[4]

 

[13]         As the Constitutional Court affirmed in S v Bogaards[5], a court of appeal can only interfere with the sentence imposed by a trial court:

 

“…where there has been an irregularity that results in the failure of justice; the court below misdirected itself to such an extent that its decision on sentence is vitiated; or the sentence is so disproportionate or shocking that no reasonable court could have imposed it.”[6]

 

[14]         None of these circumstances as contemplated in the above authorities, and generally set out in our case law, can be said to exist in the circumstances of this case. Thus, the observation by the SCA in S v Malgas[7] is instructive, that ‘in cases of serious crimes, the personal circumstances of the offender by themselves, will necessarily recede to the background’. The personal circumstances of the appellant, taken as a whole, are far outweighed by the seriousness of the offence committed in the prevailing circumstances, as well as the interests of society. Thus, in our considered view, the court a quo committed no misdirection in its imposition of the prescribed minimum of life imprisonment. No evidence was presented in the court a quo, to justify a departure from the prescribed minimum sentence of life imprisonment. The grounds of appeal are without merit and substance in this instance.

 

ORDER

 

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

 

i)                 The late filing and prosecution of the appeal is condoned.   

 

ii)               The appeal against sentence is dismissed.

 

 

S MFENYANA

  JUDGE OF THE HIGH COURT

NORTHWEST DIVISION, MAHIKENG

 

 

I agree.

 

 

 

DJ JOUBERT

ACTING JUDGE OF THE HIGH COURT

NORTHWEST DIVISION, MAHIKENG

 

 

APPEARANCES

For the appellant:	O Madiba
Instructed by:	Legal Aid South Africa
	Mmabatho
	OrapelengM@legal-aid.co.za
For the respondent:	FT Tlatsana
Instructed by:	Director of Public Prosecutions, Mmabatho
	FTlatsana@npa.gov.za
Date reserved:	01 December 2023
Date of judgment:	10 July 2024

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