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 PROVINCIAL DIVISION, MAHIKENG
                                                                            			 CASE NO: CA 14/2014
In the matter between:

MOSES NHLAPO		                                  				APPELLANT
	
And

THE STATE		                                            				RESPONDENT

DATE OF HEARING	          	:	26 JUNE 2015
DATE OF JUDGMENT	:	27 AUGUST 2015

LANDMAN J; GUTTA J

                                                    JUDGMENT

Landman J:

Introduction

[1]	Moses Nhlapo, the appellant and his co-accused Montso Mkhabela, were convicted of raping a young woman on 3 December 2005. The charge sheet specified that the charge of rape was to be read with section 51(2) of the Criminal Law Amendment act 105 of 1997. The appellant was sentenced to life imprisonment, while his co-accused, a minor, was sentenced to 10 years in prison. 

[2]	The appellant appeals against his sentence. He relies on the automatic right to appeal a life sentence imposed by a regional magistrate’s court. 

Fair trial

[3]	Counsel for the appellant submitted that as the appellant was charged in terms of section 51(2) of the Act but sentenced to life imprisonment, on the basis that the section 51(1) was applicable.

[4]	The answer to this submission is to be found in Ndlovu v S (204/2014) [2014] ZASCA 149 (26 September 2014) where it was held at para 12 that:

‘In this matter, it was brought to the attention of the appellant at the outset of the trial that the state intended to rely on the minimum sentencing regime created by the Act, albeit that the incorrect section of the Act was referred to. As has already been mentioned, the appellant was advised that if convicted, he faced the possible imposition of a minimum sentence of 15 years’ imprisonment.  The facts of this matter are closely akin to those of Mashinini and Kolea. The principle emerging from Kolea is that the imposition of a sentence of life imprisonment in these circumstances will not in itself result in a failure of justice which vitiates the sentence.’

[5]	 It is necessary to consider whether, save for this error, there is anything which shows a failure of justice. 

[6]	The appellant was represented by an attorney throughout the proceedings.  There is nothing which shows that the appellant as represented was not aware that life imprisonment was the prescribed minimum sentence. He was therefore afforded a fair trial. This point therefore falls to be dismissed.

Substantial and compelling circumstances

[7]	Counsel for the appellant submitted that if life imprisonment was the permissible sentence, the court erred in not finding that they were compelling and substantial circumstances present which would have entitled it to impose a lesser sentence. In making this submission Counsel relies primarily upon the age of the appellant and the fact that he has no previous convictions. Counsel also submitted that the sentence of life imprisonment was inappropriate and induced a sense of shock.

[8]	In order to evaluate this. It is necessary to set out all the facts and circumstances that relate to the imposition of sentence in this case. The following are relevant:

The crime

(a)	The victim was a […]-year-old schoolgirl.
(b)	The victim had been to look for her boyfriend and was on her way home when she was accosted by the appellant and his companion.
(c)	The appellant and his companion intended to rob her. 
(d)	The assailants threatened to stab her with a small knife attached to a nail clipper and a broken bottle.
(e)	As she had nothing of substance they insisted that she provide them with sex. They each raped her on the road.
(f)	Then the assailants took her to a secluded place where they each again raped her, degraded and humiliated her.
(g)	After releasing the complainant, the appellant chased after her, assaulted her and kicked her. 
(h)	She suffered minor injuries but experienced pain in her private parts.
(i)	The complainant suffered and was continuing to suffer psychological and emotional trauma at the date of the trial. She had been unable to complete her school studies successfully. She has remained nervous, fearful and depressed.

The appellant

(j)	He was […] years of age at the time the crime was committed.
(k)	He grew up in poverty.
(l)	He left school after passing grade 10
(m)	He was unemployed and did odd jobs.
(n)	He had no previous convictions.
(o)	He had consumed liquor prior to the incident. The complainant believed that he had been smoking dagga but the appellant denied this.
(p)	The social worker, who investigated the circumstances, concluded that he did not accept responsibility for the crime and she thought this would hamper efforts to rehabilitate him.

The interests of society

(n)	 Society is concerned that women and children are not to be molested and raped and that they should be entitled to the bodily integrity and freedom and that the perpetrators of such crimes should be punished appropriately.

[9]	Counsel for the appellant submitted that even though the appellant raped the complainant twice, this followed from the same incident and is such that, for purposes of sentence, it should have been treated as a concurrent act of rape. There is no merit in this submission. The second rape was also accompanied by insulting and degrading remarks. This submission also does not take account of the fact that the complainant was raped by two men.

[10]	I am of the view that there are no grounds to interfere with the finding of the court a quo that there were no substantial and compelling circumstances present. The result is that the court a quo was obliged to impose a sentence of life imprisonment.

[11] 	In the result the appeal falls to be dismissed.

Order

[12] 	I make the following order:

The appeal against sentence is dismissed.

A A Landman
Judge of the High Court

I agree.

N Gutta
Judge of the High Court

APPEARANCES:

Counsel for the Appellant:                               Mr Mmutloane 
Instructed by:
The Mafikeng Justice Centre

Counsel for the Respondent:                            Adv Rasakanye
 Instructed by:
 The Director of Public Prosecutions