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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG DIVISION, PRETORIA

 

(1)    REPORTABLE: NO

(2)    OF INTEREST TO OTHER JUDGES: NO

(3)    REVISED

24/11/2020

 

Appeal Case No: A377/2019

 

In the matter between:

 

ABRAM JABU MAHLANGU                                                                                First Appellant

ANDRIES BAFANA GAMA                                                                                   Second Appellant

 

And

 

THE STATE                                                                                                             Respondent

JUDGMENT

PHAHLAMOHLAKA, AJ:

[1].       The appellants were each convicted by the Brakpan Regional Court on one count of rape read with the provisions of section 51(1) of Act 105 of 1997. They were each sentenced to 20 years imprisonment and the learned magistrate made no order in terms of the provisions of section 103 of the Firearms Control Act 60 of 2000, effectively declaring both appellants' unfit to possess a firearm.

[2].       Aggrieved by the decision of the learned Magistrate both appellants applied for leave to appeal against both their convictions and sentences. The appellants were refused leave to appeal by the learned magistrate. They then petitioned the Judge President and they were granted leave to appeal only in respect of their sentences.

[3].       The appeal court can only interfere with the sentencing discretion of the Court a quo if it find that the sentence is shockingly inappropriate or where there has been a misdirection by that court.[1]

[4].       In Ngcobo v S[2], Pillay AJA stated it unequivocally as follows:

"For this court to interfere with the sentence it must first find a misdirection by the courts below."

 

[5].       In S v Pillay[3] the following was said:

"As the essential enquiry in an appeal against sentence, however, is not whether the sentence was right or wrong, but whether the court in imposing it exercised its discretion properly and judicially. A mere misdirection is not by itself sufficient to entitle the Appeal Court to interfere with the sentence. It must be of such a nature degree or seriousness that it shows directly or inferentially, the court did not exercise its discretion at all or exercised it improperly or unreasonably. Such a misdirection is usually and conveniently termed one that initiates the court's direction on sentence.

 

[6].       In S v Monareng[4] per Maya JA

"In deciding whether the sentence warrants our interference it should be considered that this court's powers to alter sentence is limited as the infliction of punishment lies in the discretion of the sentencing court. A court of appeal may not simply substitute a sentence because it prefers it and will be entitled to interfere only if the sentencing court materially misdirected itself or the disparity between its sentence and the one which this court would have imposed, had it been a trial court, is 'shocking', 'startling' or 'disturbingly inappropriate"'

 

[7].       Both appellants were convicted of rape. The gravity of the offence of rape should therefore not be underplayed. In S v Chapman[5] Mahomed CJ said the following:

" Rape is a very serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and person of the victim.

The rights to dignity, privacy, and the integrity of every person are basic to the ethos of the Constitution and to any defensible civilization. Women in this country are entitled to the protection of these rights. They have a legitimate claim to walk peacefully on the streets, to enjoy their shopping and their entertainment, to go and come from work, and to enjoy the peace and tranquillity of their homes without fear, the apprehension and insecurity which constantly diminishes the quality and enjoyment of their lives."

 

[8].       The first appellant's personal circumstances are such that he was 33 years of age, he is the oldest child of his siblings, his father is deceased, he does not have a close relationship with his mother, his highest level of schooling is grade 10, at the time of his arrest he was residing with his girlfriend and their child, he enjoyed a good health, he does not suffer from any illness. He and his girlfriend have four children aged 13, 11, 8 and 2. He supports his girlfriend and the children, as she is unemployed. He consumes alcohol occasionally. He has one previous conviction. He was convicted in October 2005 of theft and he was sentenced to 4 months imprisonment, which was wholly suspended. The accused was employed at Crown Jet at the time of his arrest.

[9].       The personal circumstances of the second appellant are such that , he is 37 years of age, he is the fourth born in a family of six. Both parents are deceased. He completed grade 10 in 1997 and dropped out of school due to financial constraints. He does not have a good health; he has been taking medication for a certain condition since 2006. He shares a good relationship with his family. He was residing with his girlfriend at the time of his arrest. He has 3 children, two of which are minors aged 10 and 6. He is the sole breadwinner; he has a social demeanour; he is a first offender.

[10].    The appellants were convicted of raping two young girls of 13 years of age. I am mindful of the fact that the second appellant only used a finger to penetrate his victim. However, this does not detract from the fact that he committed an offense of rape. The two appellants were therefore correctly convicted of the offence of rape read with section 51(1) of Act 105 of 1997.

[11].    Indeed the offence of rape is very serious in nature for the victim will live with that psychological scar for a long time. In S v Vilakazi[6] per Nugent JA said the following:

"Rape is a repulsive crime. It was rightly described by counsel as 'an invasion of the most private and intimate zone of a woman and strikes at the core of her personhood and dignity."

 

[12].    Deviating from the prescribed minimum sentence, the learned magistrate remarked as follows:

"Taking all of the relevant factors into account, this court is of the view that the minimum prescribed sentence of life imprisonment in this case is disproportionate to the sentence which would be appropriate to the extent that an injustice would be done by imposing life imprisonment."

 

[13].    The Court in S v Malgas[7] said the following:

[12]      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]     Some of the courts which have wrestled with the problems which sections s 51 raises have sought to draw parallels between the latter process and the approach to be followed when applying its provisions. With respect, I consider the attempt to be misguided. The tests for interference with sentences on appeal were evolved in order to avoid subverting basic principles that are fundamental in our law of criminal procedure, namely, that the imposition of sentence is the prerogative of the trial court for good reason and that it is not for appellate courts to interfere with that exercise of discretion unless it is convincingly shown that it has not been properly exercised. The epithets ("shocking", "startling", "disturbingly inappropriate" and the like) that have been employed to drive that point home should not simply be appropriated indiscriminately for use in a situation which is very different'

 

[14].    I cannot find any misdirection by the learned magistrate nor can I find that the sentence is shockingly inappropriate.

[15].    In the result I propose the following order:

15.1  The appeal is dismissed.

 

 

 

K PHAHLAMOHLAKA

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

 

 

I agree and it is so ordered.

 

 

 

N DAVIS

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

 

CASE NO.:                                             A377/2019

HEARD ON:                                          14 October 2020

FOR THE APPELLANTS:                    Mr. F van As

INSTRUCTED BY:                                  Legal Aid South Africa

FOR THE RESPONDENT:                      Adv JJ Kotze

INSTRUCTED BY:                                  Director of Public Prosecutions

DATE OF JUDGMENT:                           24 November 2020

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