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IN THE HIGH COURT OF SOUTH AFRICA,

MPUMALANGA DIVISION, MIDDELBURG

 

CASE NO: A43/23

(1) REPORTABLE: NO

(2) OF INTEREST TO THE JUDGES: NO

(3) REVISED: NO

DATE: 22/11/2024

SIGNATURE:

 

In the matter between:

 

JOTHAM SIGALISO VILAKAZI                                                              APPELLANT

 

and

 

THE STATE                                                                                              RESPONDENT

 

JUDGMENT

 

Coram: MSIBI AJ et, MASHILE J

 

Introduction

 

[1]          The appellant was convicted in the Regional Court, Piet Retief, on 2 charges: count 1, contravening section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (“Sexual Offences Act”) read with the provisions of section 51(1) of the Criminal Law Amendment Act 105 of 1997 (“Criminal Law Amendment Act”) – rape of a minor in that during 2018 at Phola Park, Mkhondo District in the Regional Division of Mpumalanga, the appellant did unlawfully and intentionally commit an act of sexual penetration with a female victim who was 9 years of age. Count 2, contravening section 3 of the Sexual Offences Act read with the provisions of section 51 (1) of the Criminal Law Amendment Act – rape of a minor in that during 2019 at Phola Park, Mkhondo District in the Regional Division of Mpumalanga, the appellant did unlawfully and intentionally commit an act of sexual penetration with a female victim who was 10 years of age.

 

[2]          The appellant was sentenced to life imprisonment in respect of each count. Both sentences were ordered to run concurrently. The appellant who was legally represented throughout the trial now appeals against the sentence only.

 

The grounds of appeal

 

[3]          The grounds of appeal against sentence are that the trial court erred in not taking into consideration the objectives of sentence, namely: deterrence, prevention, rehabilitation and retribution, by imposing a life sentence on both counts and not ordering a shorter sentence.

 

[4]          The trial court erred in not considering the triad of factors, namely the personal circumstances of the appellant, the nature of the offence and the interests of society. This was evidenced by the fact that the said circumstances were not analysed by the court during sentence proceedings.

 

Background facts

 

[5]        The appellant and the complainant’s mother had been neighbours for 20 years. In 2018, the complainant was 9 years of age when the appellant borrowed money from her mother. He later whispered into her ear to come and fetch her mother’s money from his home and the complainant went to his house as requested. On arrival he told her to fetch it in his bedroom under a mattress. He followed her to the bedroom and he grabbed, lifted and put her on his bed. He then undressed and raped her. When she screamed, he covered her mouth with his hand. After raping her, he gave her R12.00 to give to her mother, and told her never to tell anyone, otherwise he would do the same thing to her younger sister and kill her.

 

[6]        Out of fear, the complainant never reported the incident to anyone. In 2019, the appellant came across her in the street and summoned her to his home, where he raped her again. Following the second rape in 2019, the complainant’s mother noticed changes in her child’s behaviour. She slept a lot, was forgetful and sickly. Her mother confided in a female traditional healer who inspected her. She found that she had been sexually penetrated. While in tears, she confirmed to the traditional healer that the appellant raped her twice. Medical evidence proved healed vaginal injuries (clefts) that were consistent with forceful sexual penetration.  

 

[7]        The appellant denied all allegations against him. Notwithstanding his denial, the State successfully proved that the appellant had raped the complainant in 2018 and in 2019. At the time of her testimony the complainant was 14 years old, while the appellant was 55 years old.

 

Submissions

 

[8]        Turning to the sentence, Counsel for the appellant, Mr Buthelezi, in his heads of argument submitted that the trial court erred in finding that there were no substantial and compelling circumstances that would justify a deviation from the prescribed minimum sentence of life imprisonment. He contended that the record does not reflect an analysis of the triad of factors which are, the personal circumstances of the accused, the nature of the offence and the interests of society. Secondly, the court did not give reasons as to how all of these abovementioned factors led to the conclusion that the prescribed minimum sentence was the only suitable sentence.

 

[9]        Counsel for the State, Adv Maoke, submitted that there must be a nexus between the sentence and the severity of the offence. Full consideration must be given to all mitigating and aggravating circumstances surrounding the offender, thus the sentence should reflect the blameworthiness of the offender. While he conceded that the judgment of the court a quo was short, he countered that the court had, in any event, covered all that was necessary to justify the outcome on sentence. Counsel further conceded that there is no onus on the appellant to prove the presence of substantial and compelling circumstances, nevertheless an accused who wishes to persuade the court to impose a lesser sentence should pertinently raise such circumstances for consideration.

 

[10]      Counsel further added that in terms of section 51(1) of the Criminal Law Amendment Act, the trial court was obliged to impose the prescribed minimum sentence unless there were substantial and compelling circumstances justifying the imposition of a lesser sentence.

 

Appeal against sentence

 

[11]      It is settled law that sentencing is pre-eminently a matter for the discretion of the trial court and that the court of appeal may only interfere with the sentence imposed provided the trial court materially misdirected itself or where the sentence is shockingly inappropriate.

 

[12]      The approach to an appeal against sentence was set out in S v Malgas,[1] to which I was referred by Counsel, as follows:

 

“The mental process in which courts engage when considering questions of sentence depends upon the task at hand. Subject of course to any limitations imposed by legislation or binding judicial precedent, a trial court will consider the particular circumstances of the case in the light of the well-known triad of factors relevant to sentence and impose what it considers to be a just and appropriate sentence. A court exercising appellate jurisdiction cannot, 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. Where material misdirection by the trial court vitiates its exercise of that discretion, an appellate court is of course entitled to consider the question of sentence afresh. In doing so, it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellate court is at large. However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”. It must be emphasised that in the latter situation the appellate court is not at large in the sense in which it is at large in the former. In the latter situation it may not substitute the sentence which it thinks appropriate merely because it does not accord with the sentence imposed by the trial court or because it prefers it to that sentence. It may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned. No such limitation exists in the former situation.”

 

[13]      Section 51(1) of the Criminal Law Amendment Act provides as follows:

 

“Notwithstanding any other law, but subject to subsection (3) and (6), a regional court or a High Court shall sentence a person it has convicted of an offence referred to in Part I of Schedule 2 to imprisonment for life.”

 

In terms of section 51(3) the court has a discretion to deviate from the prescribed minimum sentence if the court is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence. Rape of a child under the age of 16 years falls under Part 1 of Schedule 2.

 

[14]      In S v Roslee,[2] the Supreme Court of Appeal enunciated on this aspect as follows:

 

“Although there is no onus on an accused to prove the presence of substantial and compelling circumstances, it must be so that an accused who intends to persuade a court to impose a sentence less than the prescribed should pertinently raise such circumstances for consideration.”

 

Evaluation

 

[15]      It is common cause that the appellant did not advance circumstances before the court a quo, that would be considered in his favour as compelling and substantial circumstances justifying a departure from the prescribed minimum sentence, as set down in S v Roslee. The duty lay with him and his attorney to pertinently raise such circumstances for the court’s consideration.

 

[16]      The prosecutor did justice in this matter by making sure that all the relevant aggravating factors are placed on record. Firstly, by leading the evidence of the complainant’s mother, pertaining to the merits of the matter and the impact of the offence on the victim, her physical and psychological wellbeing, as well as her studies.

 

[17]      The prosecutor also obtained and presented a professional victim assessment report which stated that the child had experienced nightmares ever since she was raped. She became forgetful and absent minded due to the incident, which affected the quality of her schoolwork. She suffered from a yellowish stinking vaginal discharge for which she received medical treatment and fully recovered. The child and her family were still receiving counselling as a result of the incident.  

 

[18]      The record indicates that the appellant was 55 years old at the time of trial. During mitigation of sentence his attorney stated that he was 57 years old. He was not married. He is a father to 5 children who are all majors. It was further stated that his highest standard of education was grade 9. He was unemployed at the time of his arrest. He receives a disability grant of R1 800 per month. He is a first offender. The aforementioned are the factors that were submitted as compelling and substantial circumstances by Counsel for the appellant.

 

[19]      The fact that the appellant is a first offender is an important factor with regard to mitigation of sentence, but it must yield to considerations of retribution and deterrence when the horror of the crime, the callousness of the criminal, the frequency of its recurrence generally, and the interests of the community demand nothing less than the extreme penalty. The fact that the child was raped twice in 2 years by the same perpetrator speaks of the general recurrence and prevalence of rape amongst vulnerable children. Given another opportunity the accused would most likely commit the same offence again.

 

[20]      The offences on counts 1 and 2 were committed on two separate occasions. The complainant was raped in 2018 and in 2019 by the same appellant, who was an adult neighbour. The appellant was in a position of trust in that the complainant’s mother even borrowed him money. He misused the trust that the complainant’s family had in him. When he told the child to fetch the money from his bedroom, she believed him. When he told her after raping her, that if she told anyone he will do the same thing to her younger sister and kill her, she believed him. When he realized that his 2018 threats were working, he raped her again in 2019. The appellant, being a father of five major children himself, did not see anything wrong in raping a tender 9-year-old child. The appellant took advantage of a vulnerable minor child. Both offences were well planned and executed by the appellant.

 

[21]      The appellant poses a clear danger to young girls especially those under the age of ten. The appellant never demonstrated remorse for his deeds. He actually tried to portray the victim and her mother as liars who were fabricating evidence because they had disagreements over a dog.

 

[22]      With regard to the personal circumstances of an offender, the Supreme Court of Appeal in S v Vilakazi[3] stated as follows:

 

“In cases of serious crime the personal circumstances of the offender, by themselves, will necessarily recede into the background. Once it becomes clear that the crime is deserving of a substantial period of imprisonment the question 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, and those seems to me to be the kind of ‘flimsy’ grounds that Malgas said should be avoided. But they are nonetheless relevant in another aspect. A material consideration is whether the accused can be expected to offend again.”

 

[23]      The evidence on record, the appellant’s personal circumstances, and mitigating factors presented by his attorney, taken cumulatively, do not constitute compelling and substantial circumstances that would justify a deviation from the prescribed minimum sentence. I agree with the State that the aggravating circumstances far outweigh the appellant’s personal circumstances.

 

[24]      In the light of the above and the national outcry against rape of minor children, this court cannot find that the trial court misdirected itself with regard to sentence. The fact that the appellant did not show any remorse during trial proceedings, the horror of the crime, and its prevalence countrywide demand nothing less than the extreme penalty.

 

[25]      Having found that the Regional Magistrate has not misdirected himself in imposing life imprisonment, the appeal against sentence therefore stands to be dismissed.

 

Order

 

[26]      I therefore propose the following order:

 

The appeal against sentence is dismissed.

 

 

MSIBI AJ

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MIDDELBURG

 

I agree

 

MASHILE J

 JUDGE OF THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MIDDEBURG

 

 

Appearances

 

For the Appellant:               Mr N B Buthelezi

                                           Legal Aid South Africa

                                           Middelburg Local Office

 

For the Respondent:          Adv E B Maoke

Instructed by:                     The Director of Public Prosecutions, Middelburg

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