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IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION OF THE HIGH COURT,

MIDDELBURG LOCAL SEAT

 

Case No: A10/2023

(1)       REPORTABLE: YES

(2)       OF INTEREST TO OTHER JUDGES: YES/NO

(3)       REVISED.

DATE: 26/03/24

SIGNATURE

 

In the matter between:

 

GEORGE MGUNI                                                                         Appellant

 

And

 

THE STATE                                                                                   Respondent

JUDGMENT

 

Coram: Msibi AJ et: Roelofse AJ

MSIBI AJ

 

INTRODUCTION

 

[1]          The appellant, Mr. George Mguni was convicted in the Regional Court of Mpumalanga held in Middelburg on one count of contravention of section 3 of Act 32 of 2007(rape), two counts of contravention of section 16 of Act 18 of Act 32 of 2007(sexual grooming), one count of kidnapping and one count of attempted contravention of section 3 of Act 32 of 2007 (attempted rape).

 

[2]          The events giving rise to the conviction on count 1 and 2 are said to have occurred in April 2016 when appellant who had visited the victim’s father showed her pornographic material and thereafter raped the 13 years old victim at her own parental home.

 

[3]          In respect of the count 3, 4 ad 5, the appellant, on the 01/01/2017, kidnapped the victim by dragging her into his own house, locking her up and tried to rape her after showing her pornographic videos.

 

[4]          The appellant pleaded not guilty to all 5 counts, for which he was convicted and sentenced as follows: life imprisonment on count 1, 2 years imprisonment on each of the two counts of sexual grooming, 2 years on the count of kidnapping and 5 years on the count of attempted murder. The sentences on count 2 to 5 were ordered to run concurrently with the sentence on count 1.

 

[5]          Aggrieved by the sentence the appellant brought an application for leave to appeal on sentence on count 1.

 

GROUNDS OF APPEAL

 

[6]          The grounds of appeal that the appellant relies on are as follows:

 

That the trial court erred in finding that the cumulative effect of the appellant’s traditional mitigation factors do not amount to substantial and compelling circumstances, warranting a departure from the minimum sentence of life  imprisonment. Counsel for the appellant referred this court to the matter in S v Calvin 2014 JDR 2020(SCA) wherein a 20 years old appellant’s  sentence of life imprisonment,  was set aside and replaced with one of 20 years  imprisonment on appeal.

 

6.1         That the sentence imposed is disturbingly inappropriate.

 

THE PARTIES’ CONTENTIONS IN THE APPEAL

 

[7]       The appellant argued that the trial court misdirected itself in the following ways:

 

7.1       by failing to individualise the appellant in that the sentence was not composed to fit the offender and the particulars of the crime.

 

7.2       by not attaching sufficient weight to the appellant’s personal circumstances. Thus failing to take into account the following circumstances:

 

7.2.1   that the appellant was 29 years of age at the time of sentencing;

 

7.2.2   that the appellant was a first offender, that the appellant dropped out of school due to family hardship;

 

                       7.2.3   the appellant’s upbringing;

 

7.2.4   that the appellant’s mother is reported to be mentally disabled;

 

7.2.5   that the appellant’s father died when the appellant was 1 week old;

 

                       7.2.6   that the appellant was raised by his grandmother;

 

7.2.7   that the appellant was 16 years old when he started working due to family hardship, emanating from the fact that both  parents could not raise him up.

 

7.3       the trial court further erred in not blending the sentence with mercy.

 

7.4       the trial court erred in over emphasising the after effects of rape on the victim and seriousness of the offences at the expense of the appellant’s personal circumstances.

 

[8]        Counsel for the respondent argued that the Calvin supra matter that was referred to on behalf of the appellant differs considerably from the present matter. The court of appeal in the said matter considered the youthful age of the appellant who was 20 years of age and found that substantial and compelling circumstances exist justifying deviation from the prescribed minimum sentence. In the present matter no arguments were made to the effect that youthfulness contributed to the conduct of the appellant who was 29 years of age during sentencing. 

 

[9]      There was no relationship of trust between the appellant and the victim in the Calvin matter. On the other hand, the appellant in the matter at hand was welcomed into the family and treated as a family member. Due to the trust bestowed on him, by the family he was able to rape the victim in the sanctity of her own home, where she was supposed to feel safe. The appellant in the Calvin matter did not try to rape the victim for the second time. The appellant attempted to rape the victim a few months after the first incident. The appellant did not place tangible and persuasive facts to prove the existence of compelling and substantial circumstances for the trial court to deviate from the minimum sentence.

 

[10]     It was further argued by the respondent that the personal circumstances of the appellant are far outweighed by the aggravating factors in this case as well as the impact of the offence on the victim. In serious crimes, the personal circumstances of the offender, by themselves, will necessarily recede to the background once it becomes clear that the crime is deserving of a substantial period of imprisonment. The question of whether the accused is married or single, whether or not he has children, whether or not he is in employment, are largely immaterial, thus the trial court correctly applied the provisions of section 51(2) of the Act in arriving at the sentence.

 

[11]      Counsel for the respondent referred this court to the matter in The Director of Public Prosecutions, Grahamstown v T M[1] where  Nicholl  JA stated as follows:

 

“There can be no greater crime, in my view, than to deprive a child of her innocence, especially a vulnerable child such as the complainant here. This heinous act was not perpetrated by a stranger, but by a person who said he considered the child to be his own daughter. For a child to be violated in the sanctity of the only place she calls home is a most egregious breach of trust. Can she ever feel safe again?

 

THE APPLICABLE LAW

 

[12]      Section 51 of Act 105 of 1997 provides as follows:

 

“51(1) Notwithstanding any other law, but subject to the subsections (3) and (6), a regional court or a High Court shall sentence a person who has been convicted of an offence referred to in Part I of Schedule 2 to imprisonment for life.

 

(2) Notwithstanding any other law but subject to subsections (3) and (6), a regional court shall sentence a person who has been convicted of an offence referred to in

 

(a)  Part II of Schedule 2, to imprisonment for life.in the case of-

 

(i)            A first offender, to imprisonment for a period not less than 15 years imprisonment

 

(ii)          A second offender of any such offence, to imprisonment for a period not less than 20 years; and

 

(iii)         A third or subsequent offender of any such offence, to imprisonment for a period not less than 25 years “

 

“(3) (a) if any court referred to in subsection(1) and (2) is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in those subsections, it shall enter those circumstances on the record of the proceedings and must thereupon impose such lesser sentence: Provided that if a regional court imposes such a lesser sentence in respect of an offence referred to Part 1of Schedule2, it shall have jurisdiction to impose a term of imprisonment for a period not exceeding 30 years.

 

Part 1 of Schedule 2 prescribes the imposition of a minimum sentence of life imprisonment in circumstances where, inter alia, the rape involved the infliction of grievous bodily harm”

 

[13]     As laid down in S v Saddler[2], the imposition of sentence is primarily within the discretion of the trial court and the court of appeal’s right to interfere with sentence is limited to instances where the trial court materially misdirected itself or committed a serious misdirection. 

 

[14]     Marais JA provided guidance in S v Malgas[3] as to when can an appellate court interfere with sentence; stating as follows:

 

“A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if, it was 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. But an appellate court may interfere with the exercise by the sentencing court of its discretion, even in the absence of a material misdirection, when the disparity between the sentence imposed by 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”

 

[15]      During mitigation of sentence at page 231 of the trial court record, the defence attorney Mr Mafadza for the appellant stated:

 

“Your Worship in order to determine whether there are substantial and compelling circumstances your worship, we will refer the court to the decision in S v Pillay 2018 (2) SACR 192 (KZD) the judgment was delivered on the 7^th of May 2018 and as at paragraph 10 the Judge remarked as follows:

 

“…the court must consider all circumstances of the case including the many factors traditionally taken into account by courts when sentencing offenders.

 

For circumstances to qualify as substantial and compelling they need not be exceptional in the sense that they seldom encountered or rare, or are they are limited to those which diminish the moral guilt of the offender. Where the court is convinced that after consideration of all factors and injustice would be done if the minimum sentence is imposed, then you can characterise such factors as compelling circumstances to be made from imposing the prescribed minimum sentence’

 

[16]      It was further placed on record that the appellant is 29 years of age and not married. He was a first offender. He had one minor child who was five years of age. At the time of his arrest the appellant was working at Olifantsriver Lodge, earning R3 700 per month. As such he was able to assist in maintaining his child His highest standard of education is grade 8. The appellant had already spent a month in custody after his conviction on the matter at hand.

 

[17]      During aggravation of sentence the state addressed the court regarding the prevalence of child rape cases, stating that such have reached pandemic levels. With statistics showing that seven children are raped daily in South Africa. 85% of the child victims are raped by people known to them. What is aggravating is the fact that the accused who was a guest, raped the child in her own home. He threatened to kill them should she tell anyone about the rape. The child believed the threat and kept quiet until he attempted to rape her for the second time.

 

[18]     Throughout the trial the appellant never showed any remorse and refused to take responsibility for his actions. The child victim was exposed to the risk of contracting HIV and Aids. The child was still traumatised by the rape, she broke down and cried twice during her evidence. Her concentration at school was adversely affected to such an extent that she repeated grade 8. She developed anger outbursts which led to fights with her peers.  Her parents were also traumatised by the incident, her mother’s health was affected.

 

[19]      The appellant was received into the victim’s family since he was working with the child’s mother. On the date in question he was drinking with the child’s father while the mother was away. He breached their trust. There is no evidence on record that shows that the appellant apologised or attempted to apologise the child’s parents.

     

[20]      In its judgment on sentence the trial court referred to the seriousness of the offence, that the child was raped at her own home in the presence of her father who was asleep in his bedroom. The court further referred to several decided cases which demonstrate that youthfulness, the fact that an accused has minor dependants, remorse; the fact that an accused has been in custody while awaiting sentence; have been found not to constitute compelling and substantial circumstances warranting a deviation from the prescribed sentence.

 

           ANALYSIS

 

[21]      In examining the appropriateness of the sentence imposed by the trial court, it is prudent to assess the facts of the matter, the appellant’s personal circumstances and contrast them with the aggravating circumstances in order to determine whether or not any argument can be made for justifying a lesser sentence than the one imposed. I am also cognisant of the fact that prescribed minimum sentences are not to be deviated from for light and flimsy reasons. Therefore, the appeal will only succeed once it is demonstrated that the trial court misdirected itself in assessing that facts and circumstances placed before it.

   

[22]      The appellant was received into the victim’s family since he was working with the child’s mother. On the date in question he was drinking with the child’s father while the mother was away. He was treated as a family member. He breached their trust, right to privacy and dignity. There is no evidence on record that shows that the appellant apologised or attempted to apologise the child’s parent.

 

[23]      From the pre-sentence report, the accused had the opportunity to take responsibility for his actions during the interview with the social worker, but he still denied responsibility. He maintained this stand despite the fact that he had already been convicted of raping the victim. In most cases prospects of rehabilitation are established at this stage, during an interview with a social worker. His lack of remorse militates against any possible rehabilitation. His compelling and substantial circumstances are far outweighed by the aggravating circumstances proved by the State.

 

[24]      The trial court correctly considered the circumstances of the accused and the circumstances of the case as a whole in assessing the presence of compelling and substantial circumstances and found none.  

 

[25]      It is my considered view that the trial court has not misdirected itself pertaining to the non-existence of compelling and substantial circumstances. The abovementioned facts, even when taken cumulatively, do not constitute compelling and substantial circumstances which justify a departure from the prescribed minimum sentence of life imprisonment.

 

[26]      In the light of the fact that this court has not found that substantial and compelling circumstances exist which warrant a deviation from the prescribed minimum sentence, it goes without saying that this court will not interfere with the sentence imposed by the trial court.

 

[27]    In the result, I propose the following order:

 

1.    The appeal on sentence is dismissed

 

 S MSIBI

ACTING JUDGE OF THE HIGH COURT

MPUMALANGA DIVISION (MIDDELBURG LOCAL SEAT)

 

I agree

 

J ROELOFSE

ACTING JUDGE OF THE HIGH COURT

MPUMALANGA DIVISION (MIDDELBURG LOCAL S

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