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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

REPUBLIC OF SOUTH AFRICA

Case Number: A805/2015

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

ALBERT MANDLA FUTSHANE                                                                             Appellant

And

THE STATE                                                                                                        Respondent

JUDGMENT

JANSE VAN NIEUWENHUIZEN J

[1]The appellant pleaded guilty to a charge of rape of a five year old girl and was sentenced in terms of section 51(1) of the Criminal Law Amendment Act, 105 of 1997 to life imprisonment.

[2]The sentence of life imprisonment afforded the appellant an automatic right of appeal in terms of section 10 of the Judicial Matters Amendment Act, 42 of 2013.

Grounds of Appeal

[3] The appellant submits that the court a quo misdirected itself in finding that there are no substantial and compelling circumstances justifying a lesser sentence than life imprisonment.

[4] Ms Moloi, counsel for the appellant, listed the following factors in support of the appellant's contention that substantial and compelling circumstances do exist:

• He was 50 years old·,

• He was born in the Eastern Cape;

• He is the first born child in a family of three,·

•His parents were married in terms of customary law,·

•His parents were alcoholics and never took care of him and his siblings,·

•His father was employed at Spoornet and his mother was never employed,·

•His father passed away in 1982 while his mother passed away in 2006,·

•His uncle then took care of him;

•The appellant attended school until grade 6;

•His uncle told him to leave school in order to seek employment,·

•He was unmarried,·

•He has three daughters, aged 28 years, 26 years and 23 years;

•His children reside with their mother and two of them are employed,·

•The appellant had several employments, in 1982 he was employed at Lesley Mine as a general worker;

•In 1983, he did odd Jobs in gardening for five years;

•He also worked at a firm in Geduld and at East Rand Scale;

•At the time of the trial proceedings he was unemployed, being assisted by his family;

•He pleaded guilty.

[5]The aforementioned factors appear from a pre-sentencing report that was compiled by a social worker.

SENTENCE

[6]In aggravation of sentence the State obtained a victim impact report and led the evidence of the medical practitioner who conducted the medical examination of the five year old victim. The doctor testified that the injuries observed during the examination of the victim indicate that the rape was

brutal.

[7]The victim impact report does not only deal with the devastating effect the rape had on the little girl, but also deals with the trauma her younger brother experiences. The victim's younger brother observed the rape of his sister.

[8]The court a quo, in a well-reasoned judgment, carefully weighed all the evidence in aggravation and in mitigation of sentence. In the final analysis the court found that no substantial and compelling circumstances existed to justify the imposition of a lesser sentence. The court held that the prescribed sentence of life imprisonment is proportionate to the particular circumstances of the offence.

[9]After a careful consideration of the evidence that were presented in the court a quo, I could not find any misdirection justifying an interference with the sentence imposed on the appellant.

ORDER

[10]In the result, the following order is proposed:

The appeal against sentence is dismissed.

N JANSE VAN NIEUWENHUIZEN

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

I agree and it is so ordered.

VILAKAZI AJ

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION PRETORIA

APPEARENCES

Counsel for the Appellant: Advocate Ms M.B. Moloi

(012 401 9200/072 443 0328)

Instructed by: Legal Aid South Africa

Counsel for the Respondent: Advocate M.J. Makgwatha

Instructed by: Director of Public Prosecutions

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