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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO.: CC 25/05

In the matter between:

THE STATE

AND

TEBOGO LEBURU

MMABATHO

CRIMINAL JUDGMENT

MONAMA AJ

JUDGMENT

MONAMA AJ:

[1] The accused, Mr Leburu is twenty six years old. He was convicted in the Regional Court in Mmabatho on a charge of rape. The complainant is T R a child of ten years old.

[2] After the conviction the matter was referred to this Court for sentence. In this Court, Adv Mokone appeared for the State and Ms Mophulane of the Justice Centre appeared for the defence. The State and the defence, on my invitation, both submitted that the proceedings were in accordance with justice. I have read the record and I am convinced that their submissions were well founded. I accordingly find the proceedings to be in accordance with justice and find the accused guilty. The State proved a previous conviction of rape for which the accused was convicted during June 1995. The accused acknowledged the previous conviction.

[3] The conviction and the previous conviction of the same offence qualify for the maximum heaviest sentence prescribed by the Criminal Law Amendment Act 105 of 1997. Life sentence is the heaviest sentence applicable. Accordingly, before the imposition of the life sentence it must be preceded by an inquiry into the existence or otherwise of substantial and compelling circumstances.

[4] It is the responsibility of the defence, the State and the presiding officer to establish the existence or otherwise of substantial and compelling circumstances. See Rammoko v Director of Public Prosecution 2003 (1) SACR 200 (SCA) at 205 G-J. In that case the Court held that the trial Court should have ordered that:

“the complainant be interviewed by a psychologist . . . . to establish the effects of rape on her, present and future”.

However, and on the other hand, the Courts have cautioned that the prescribed sentences were not to be departed from lightly. In S v Malgas 2001 (1) SACR 469 (SCA) the Court held that:

“Speculative hypothesis favourable to the offender, maudlin symphathy . . . and like consideration were equally not intended to qualify as substantial and compelling circumstance”.

[5] In my opinion both these views demonstrate that the presiding officer has a discretion, the power to consider the particular circumstances of each case and to impose the sentence it consider appropriate and fit the crime. See also S v Malan en ʼn ander (2004 (1) SACR 264 (I) at 271 and S v Ferreira and Others 2004 (2) SACR at 454 (SCA). The law reports are awash with decisions dealing with what constitute substantial and compelling circumstances. From the plethora of judgment it is clear that the punishment must fit the crime and be appropriate to the offender and always be blended with mercy.

[6] The Court established that the accused is 26 years old with very limited education. He is from a deprived background and unemployed. However, he is healthy and demonstrated no ailment. He had failed to demonstrate remorse for his conduct. Absence of remorse is a consideration in imposing sentence. See, S v Seegler 1970 (3) SA 605 (O). The accused has a previous conviction of rape. Obviously he has not learnt from his past mistake.

[7] The complainant is a child. Yes, there are no expert reports on her condition. I hold the view that rape is the most serious violation of her constitutional rights. The State submitted that the rape in casu was not the worst. I do not agree that for the maximum sentence to be imposed the rape must be the worst. The accused was considered to be a friend of the family. He threatened the complainant with violence in case she reported the crime and the way he operated his finger before the actual rape itself.

[8] After the consideration of all the factors, I have not been able to find what may remotely be construed as constituting substantial and compelling circumstances enabling me to deviate from imposing life sentence. The accused is incapable of rehabilitation. I am of the view that life sentence is an appropriate sentence. I impose the sentence of life.

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R E MONAMA

ACTING JUDGE OF THE HIGH COURT

COUNSEL FOR THE STATE : ADV MOKONE

COUNSEL FOR THE DEFENCE : MS MOPHULANE

DATE OF HEARING : 30 MARCH 2005

DATE OF JUDGMENT : 30 MARCH 2005

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