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 NORTH WEST HIGH COURT, MAFIKENG

CASE NO:  CA 25/2023
Reportable:  	                                YES / NO
Circulate to Judges: 	                   YES / NO
Circulate to Magistrates:	                   YES / NO
Circulate to Regional Magistrates:    YES / NO

In the matter between:

ODIRILE CORNELIUS SEDUMOENG			Appellant

and

THE STATE							Respondent 

CORAM: HENDRICKS JP et MMOLAWA AJ

DATE OF HEARING				:	28 NOVEMBER 2023
DATE OF JUDGMENT				:	08 FEBRUARY 2024

FOR THE APPELLANT 				:	ADV. SEREMANE
FOR THE RESPONDENT				:	ADV. PHETLHU

JUDGMENT
Delivered: This judgment was handed down electronically by circulation to the parties’ representatives via email. The date and time for hand-down is deemed to be 10h00am on 08 February 2024.

ORDER 

	Resultantly, the following order is made:

(i)	The appeal against sentence is dismissed.

JUDGMENT

HENDRICKS JP

Introduction 

[1]	The appellant, Mr. Odirile Cornelius Sedumoeng, was arraigned before the Regional Court, Taung on charges of housebreaking with intent to rape and rape, as well as robbery with aggravating circumstances. He was convicted on both counts and sentenced to life imprisonment on the count of rape, and fifteen (15) years imprisonment on the count of robbery with aggravating circumstances. These sentences were ordered to run concurrently. The appeal lies against sentence only. The sentence is assailed on the basis that the learned Regional Magistrate erred in finding that there are no substantial and compelling circumstances present, that warrants a deviation from imposing the mandatory minimum sentence of life imprisonment, on the count of rape.

[2]	A brief exposé of the facts of this matter is that during the evening of the 24th October 2021, the complainant Ms. L[...] M[...], a traditional healer, was asleep in her domba, (the place wherein she conducted the practice of being a traditional healer), when she was awoken by the breaking of glass and mugs. She was attacked by a male person who assaulted and throttled her. Although she initially resisted and wrestled with her assailant, she was eventually overpowered and had to succumb, because not only was she assaulted but she was also threatened with a knife and threatened to be killed. Her attacker undress her and himself and had sexual intercourse with her without her consent. This happened whilst he pinned her down on the floor inside her domba.

[3]	Thereafter, he demanded money from her. R450.00 and a cellular phone were taken. She was able to recognize the appellant as her assailant because the area inside the domba was illuminated by a nearby high-musk (Apollo) light. This happened during the early hours of the morning. After the appellant left, the complainant went to her neighbour, G[...], and made a report to her about her ordeal.

[4]	Thereafter, she went to her brother’s house. She also informed her brother X[...] and his wife, M[...], of the fate that befell her. M[...] went and informed the appellant’s parents of what the appellant did to the complainant, and they accompanied M[...] to her (and X[...]’s) house. The appellant was also present. The appellant was confronted by those present and asked whether it is indeed true what the complainant said he did, which he admitted. The appellant accompanied by his father and one Maxwell went to the appellant’s homestead where the appellant took out the knife he possessed, the cellular phone of the complainant, as well as her R450.00 (money).

[5]	About the actual events that occurred inside the domba of the complainant, she was a single witness. However, with regard to the events that unfolded thereafter, the complainant’s evidence is corroborated by G[...], Maxwell, as well as his (appellant’s) own mother Agnes Sedumoeng. Based on the evidence presented, the learned Regional Magistrate quite correctly convicted the appellant on the two charges levelled against him, and sentence him as aforementioned.

[6]	The crux of the grounds of appeal against the sentence, in particular with regard to the first count, is that the sentence, although mandated as a minimum sentence by the legislature, is disproportioned to the crime(s) committed and the personal circumstances of the appellant and mitigating factors of the case at hand. As a starting point, it must be mentioned that the offence of housebreaking with intent to rape and rape, with the emphasis on the offence of rape, falls squarely within the purview of section 51 (1) read with Part 1 of Schedule 2 of the Criminal Law Amendment Act 105 of 1997, as amended (“CLAA”), in that the rape was perpetrated against and older person in terms of Older Persons Act 13 of 2006. The complainant was at the time sixty-six (66) years of age. The prescribed sentence is therefore life imprisonment, unless there are substantial and compelling circumstances present that justify a departure from imposing this mandatory prescribed sentence.

[7]	Sentence is pre-eminently within the discretion of the trial court and an appellate court’s power to interfere with the sentencing discretion of the trial court is limited. In S v Boogards 2013 (1) SACR 1 (CC), the following is stated:

“[20]	The interpretation given by this Court to the CSA raises vital constitutional issues, as discussed above. First, the applicant’s argument that the lawfulness of detention is dependent on the validity of the warrants has serious consequences for the administration of criminal justice in our courts, particularly how and when warrants must be issued. It is apparent that in order to ensure the protection of the section 12(1) rights of detainees, the law must be clear on what requirements must be satisfied for a person’s detention to be lawful.”

[8]	 In S v Bailey 2013 (2) SACR 533 (SCA), the following is stated:

“[20]	What then is the correct approach by an appellate court on appeal against a sentence imposed in terms of the Act? Can the appellate court interfere with such a sentence imposed by the trial court after exercising its discretion properly simply because it is not the sentence which it would have imposed or that it finds it shocking? The approach to an appeal on sentence imposed in terms of the Act, should in my view, be different to an approach to other sentences imposed under the ordinary sentencing regime. This in my view is so because the minimum sentences to be imposed are ordained by the Act. They cannot be departed from lightly or for flimsy reasons. It follows therefore that a proper enquiry on appeal is whether the facts which were considered by the sentencing court are substantial and compelling or not.”

[9]	In S v Malgas 2001 (1) SACR 469 (SCA), the following is stated:

“[15]	I consider the dicta in the cases which advocate such an approach to the application of s 51 to be conducive to error. In my view, they constrict unjustifiably the power given to a trial court by s 51 (3) to conclude that a lesser sentence is justified. Any limitations upon that power must be derived from a proper interpretation of the provisions of the Act and not from the assumption a priori that only a process akin to that which a court follows when in appellate mode is intended.

[25]	What stands out quite clearly is that the courts are a good deal freer to depart from the prescribed sentences than has been supposed in some of the previously decided cases and that it is they who are to judge whether or not the circumstances of any particular case are such as to justify a departure. However, in doing so, they are to respect, and not merely pay lip service to, the legislature’s view that the prescribed periods of imprisonment are to be taken to be ordinarily appropriate when crimes of the specified kind are committed. In summary –

A	Section 51 has limited but not eliminated the courts’ discretion in imposing sentence in respect of offences referred to in Part 1 of Schedule 2 (or imprisonment for other specified periods for offences listed in other parts of Schedule 2).

B Courts are required to approach the imposition of sentence conscious that the legislature has ordained life imprisonment (or the particular prescribed period of imprisonment) as the sentence that should ordinarily and in the absence of weighty justification be imposed for the listed crimes in the specified circumstances.

C	Unless there are, and can be seen to be, truly convincing reasons for a different response, the crimes in question are therefore required to elicit a severe, standardised and consistent response from the courts.

D	The specified sentences are not to be departed from lightly and for flimsy reasons. Speculative hypotheses favourable to the offender, undue sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy underlying the legislation, and marginal differences in personal circumstances or degrees of participation between co-offenders are to be excluded.

E	The legislature has however deliberately left it to the courts to decide whether the circumstances of any particular case call for a departure from the prescribed sentence. While the emphasis has shifted to the objective gravity of the type of crime and the need for effective sanctions against it, this does not mean that all other considerations are to be ignored.

F	All factors (other than those set out in D above) traditionally taken into account in sentencing (whether or not they diminish moral guilt) thus continue to play a role; none is excluded at the outset from consideration in the sentencing process.

G	The ultimate impact of all the circumstances relevant to sentencing must be measured against the composite yardstick (“substantial and compelling”) and must be such as cumulatively justify a departure from the standardised response that the legislature has ordained.

H	In applying the statutory provisions, it is inappropriately constricting to use the concepts developed in dealing with appeals against sentence as the sole criterion.

I	If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.

J	In so doing, account must be taken of the fact that crime of that particular kind has been singled out for severe punishment and that the sentence to be imposed in lieu of the prescribed sentence should be assessed paying due regard to the bench mark which the legislature has provided.

[30]	Liebenberg J gave anxious consideration to the question of sentence and concluded that the circumstances of the case could not be regarded as substantial and compelling in their mitigatory effect and therefore such as to justify the imposition of a lesser sentence than imprisonment for life. He reached that conclusion with regret and said that if it had not been for the fact that a sentence of life imprisonment was prescribed by the relevant statute, he would not have considered sentencing appellant to imprisonment for life. He referred to the lack of unanimity in the provincial divisions of the High Court as to the correct interpretation of the legislation and regarded himself as bound by the approach indicated by Stegmann J in S v Mofokeng which approach had been approved by Jones J in an unreported decision in the Eastern Cape Division. He indicated that he was, in any event, in agreement with that approach. One of the findings made by Stegmann J in Mofokeng’s case was that “for substantial and compelling reasons to be found, the facts of the particular case must present some circumstance that is so exceptional in its nature and that so obviously exposes the injustice of the statutory prescribed sentence in the particular case, that it can rightly be described as ‘compelling’ the conclusion that the imposition of a lesser sentence than that prescribed by Parliament is justified”.

[31]	As I have indicated earlier in this judgment the requirement that the circumstances be “exceptional” does not appear from the legislation and, in so far as Liebenberg J approached the question of sentence from that perspective, he erred. In all other respects Liebenberg J approached the question of sentence in a manner consistent with the approach set forth in this judgment. He made reference to the very serious nature of the crime. He pointed to the element of premeditation present and the defenselessness of the deceased. He considered that the motive for the killing was greed. There were apparently some life insurance policies from which Carol would benefit and the appellant stood to gain from the “lekker lewe” of which Carol had spoken. He adverted to the prevalence of crimes of violence in the country and the community’s interest in having the courts deal severely with offenders.”

[10]	In S v Matyityi 2011 (1) SACR 40 (SCA), the following is stated:

“[23]	Despite certain limited successes there has been no real let-up in the crime pandemic that engulfs our country. The situation continues to be alarming. It follows that, to borrow from Malgas, it still is ‘no longer business as usual’. And yet one notices all too frequently a willingness on the part of sentencing courts to deviate from the minimum sentences prescribed by the legislature for the flimsiest of reasons – reasons, as here, that do not survive scrutiny. As Malgas makes plain courts have a duty, despite any personal doubts about the efficacy of the policy or personal aversion to it, to implement those sentences. Our courts derive their power from the Constitution and like other arms of state owe their fealty to it. Our constitutional order can hardly survive if courts fail to properly patrol the boundaries of their own power by showing due deference to the legitimate domains of power of the other arms of state. Here parliament has spoken. It has ordained minimum sentences for certain specified offences. Courts are obliged to impose those sentences unless there are truly convincing reasons for departing from them. Courts are not free to subvert the will of the legislature by resort to vague, ill-defined concepts such as ‘relative youthfulness’ or other equally vague and ill-founded hypotheses that appear to fit the particular sentencing officer’s personal notion of fairness. Predictable outcomes, not outcomes based on the whim of an individual judicial officer, is foundational to the rule of law which lies at the heart of our constitutional order.”

[11]	The following aggravating circumstances vis-a-vis the personal circumstances and mitigating features were placed on record. The complainant, an elderly lady as defined in the Older Persons Act 13 of 2006, aged sixty-six (66) years, was asleep in the safety and sanctity of her domba, when she was accosted and attacked by the appellant in the wee-wee hours of the morning. As a woman and an elderly lady, she is a vulnerable member of society. Her domba was broken into and she was assaulted, threatened to be killed with a knife and throttled. She sustained injuries as a result of these assaults. She was raped and robbed of her properties. The appellant had no regard to the property and dignity of the complainant. I echo the sentiments expressed by Ponnan JA in S v Matyityi, supra, in paragraph [22] where the following is stated:

“[22]	Despite our particularly strong commitment to the promotion of the rights of victims of sexual crimes, particularly rape, we still do not have a clear strategy for dealing inclusively with it either at a primary preventative or secondary protective level.https://www.saflii.org/za/cases/ZASCA/2010/127.html - sdfootnote35sym The result is that as alarmed as we may be by the reported incidence of rape the true extent of the scourge appears far more widespread. In De Beer it was put thus:

‘It is widely accepted that the statistics of reported rape reflect only a small percentage of actual offences. NICRO estimates that only 1 out of every 20 rapes is reported, whilst the South African Police Service puts the figure at 1 out of 35. For the first six months of 1998, 23 374 rapes were reported nationally. As an annual indicator of rape employing the lower 1 out of 20 estimate, the figure was a staggering 934 960. Research at the Sexual Offences Court in the Western Cape, for the same period, reveals that of the reported rape cases: 56.62% were referred to court; 18.67% were prosecuted; and, only 10.84% received guilty verdicts.'

Those statistics although somewhat dated offer a more accurate indicator of the extent of the incidence of rape in this country. The reason, in part, is the introduction of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. The sexual assaults covered by this new Act extend beyond phenomena previously covered by the definition of rape to include male rape and sexual penetration of a whole range of orifices. It also covers human trafficking, pornography and prostitution (including charges against clients of sex workers).

[12]	The following personal circumstances of the appellant is recorded. He was twenty-six (26) years of age at the time of committing these offences, and twenty-seven (27) years old at the time the matter was finalized in the Regional Court. He is unmarried and have no children or dependents. He was not gainfully employed but from time to time had informal employment. He was supported by his mother. He attended school until Grade 11 and then dropped out.

[13]	It is quite apparent that there are no substantial and compelling circumstances present in this case, that warrants a deviation from the impositioning of the prescribed minimum sentence of life imprisonment ordained by the legislature for this type of offence. The learned Regional Magistrate’s finding in this regard cannot be faulted. This was aptly enunciated in S v Malgas; S v Matyityi; supra. I am of the considered view that the sentence of life imprisonment on count 1 is justified. So too, the sentence on count 2, which axiomatically runs concurrent with the sentence on count 1 (life imprisonment) ex lege, as stipulated in the CLAA. There was therefore no need for the learned Regional Magistrate to make such an order. Perhaps this was done “ex abudanté cautela”. I am therefore of the view that the appeal against sentence should fail.

[14]	Finally, I would like to express my sincere gratitude to counsel for their assistance and their comprehensive heads of argument. I am in particular thankful for Advocate Seremane, who appeared pro bono on behalf of the appellant.

Order

[15]	Resultantly, the following order is made:
	
	(i)	The appeal against sentence is dismissed.

R D HENDRICKS
JUDGE PRESIDENT OF THE HIGH COURT OF SOUTH AFRICA,
NORTH WEST DIVISION, MAHIKENG

I agree

M M MMOLAWA
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA, 
NORTH WEST DIVISION, MAHIKENG