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 “IN THE HIGH COURT OF SOUTH AFRICA”

NORTH WEST DIVISION, MAHIKENG

CASE NO. CA25/2016

In the matter between:

                                                                                                                        APPELLANT

TIMOTHY MARCH

and

THE STATE                                                                                                 RESPONDENT

KGOELE J and Gutta J 

CRIMINAL APPEAL

GUTTA J.

A.        INTRODUCTION

[1]        The appellant was arraigned in the Regional Court, Mmabatho on a charge of Housebreaking with Intent to rape and Rape. He pleaded not guilty and was convicted as charged on the 8 February 2010. On the 10 February 2010 he was sentenced to 20 years imprisonment.

[2]        The Court a quo granted the appellant leave to appeal on 12 May 2016 after granting condonation for the late filing of the appeal. The appeal is on conviction and sentence.

B.        FACTS

[3]        The facts briefly summarized is that the appellant and a former co-accused, Mr Kgotso Tlhapi, on the 9^th January 2005, broke and entered the house of Cecilia Molale. She was 62 years old at the time. The appellant and the former co-accused then took turns to rape her. When the trial of the appellant commenced before the Court a quo, Mr Tlhapi was already convicted and sentenced on the same charges. He therefore testified as the second witness on behalf of the state.

C.        CONVICTION

[4]        The grounds for appeal are dealt with seriatim herein below:

            First Ground for Appeal

[5]        The legal representative of the appellant, Mr Monnapula, at the time of trial lacked the necessary locus standi in the Regional Court as required by section 8(4) of the Attorney’s Act.

[6]        In a letter from the Law Society of Bophuthatswana dated 29 June 2007, Mr Monnapula’s had a right to appear “in lien of and on behalf of his principal in or before Court, other than the Supreme Court or Court of the Regional Division….”.

[7]        Section 8(1) of the Attorney’s Act 53 of 1979 reads:

            “8         Appearance of candidate attorney in Court and before other institutions

(1)     Any candidate attorney who has satisfied all the requirements for the degree referred to in paragraph (a) of section 2(1), or for the degrees referred to in paragraph (aA) of that which a certification in accordance with that paragraph has been done, shall be entitled to appear in any Court, other than the High Court, the Supreme Court of Appeal or the Constitutional Court an before any board, tribunal or similar institution in or before which his or her principal is entitled to appear, instead of and on behalf of such principal, who shall be entitled  to charge the fees for such appearance as if he or she himself had appeared: Provided that such a candidate attorney shall not be entitled to appear in a Court of a regional division established under section 2 of the Magistrate’s Courts Act, 1944 (Act 32 of 1944), unless he or she:

(i)            has previously practiced as an advocate for at least half a year; or

(ii)          has served for at least one year under his or her articles or contract of service; or

(iii)         has at least one year’s experience as a state advocate, state prosecutor or magistrate”.

[8]        It is common cause that:

8.1       Mr Monnapula’s articles of clerkship was entered on 22 May 2007.

8.2       Mr Monnapula appeared on behalf of the appellant while still a candidate attorney, on the 13 October 2009.

8.3       His appearance in the Regional Court was two years after his articles of clerkship was entered into.

8.4       Mr Monnapula was still a candidate attorney for Mr Nkomo when the trial was finalized.

8.5       Mr. Monnapula did not finish his contract of articles and abandoned it around 2011.

[9]        From the aforegoing, it is clear that when Mr Monnapula appeared in the Regional Court in this matter he had served more than one year of his articles and accordingly had the right to appear in the Regional Court. Hence there is no merit in this ground for appeal. Counsel for the appellant conceded this point at the hearing.

Second Ground for Appeal

[10]      The defence was not prior to the trial furnished with the contents of the police docket.

[11]      Counsel for the appellant, submitted inter alia that:

11.1    The state is obliged to furnish the defence with copies of documents which are in its possession in order to enable the defence to prepare its case^[1].

112.    The defence was not furnished with same in order to allow the defence to properly prepare their defence to the prejudice of the appellants.

11.3    The defence was not furnished with copies of Mr Tlhapi’s warning statement and his section 112 statement. Mr Tlhapi, the appellant’s co-accused, pleaded guilty and subsequently became a state witness in the appellant’s case.

11.4    The appellant testified during cross-examination that he was not aware that Mr Tlhapi would implicate him as an accomplice in the commission of the crime.

11.5    The Court a quo erred in not finding that the failure of the prosecution to furnish the appellant’s legal representative prior to the hearing of the matter with copies of of Mr Tlhapi’s statement constituted an infringement of the appellant’s right to a fair trial, which includes the right to be informed of the charge with sufficient detail to answer it, to have adequate time to prepare and adduce a defence and to challenge evidence as entrenched in the Constitution of the Republic of South Africa^[2].

11.6    The Court a quo erred by failing to acquit the appellant on the basis that the aforesaid failure of justice vitiated the proceedings.

[12]      The respondent submitted inter alia that:

12.1    The record of proceedings during the trial only indicates that the defence did not receive a copy of Mr Tlhapi’s guilty plea in terms of section 112. There is no indication that other statements and documents were not handed to the defence in order to prepare for the trial.

12.2    The Court a quo further adjourned to offer the prosecutor the opportunity to furnish the defence with the requested statement. Upon reconvening the defence did not raise any objection or made any application for a remand in order to prepare for cross-examination.

12. 3   The argument that the appellant did not know that Mr Tlhapi will incriminate him during the trial has no substance. It cannot be said that the appellant did not receive a fair trial.

[13]      On perusal of the record, it is apparent that before Mr Tlhapi testified, the defence applied to the Court that the state furnish them with the charge sheet with the list of witnesses and the witnesses’ statements. The Court a quo enquired why the state had not made a full disclosure and enquired whether they “have it available for the defence because it will not be fair that they should get it afterwards”. The Court a quo adjourned and when it resumed as there was no objection raised by the defence that the documents were not made available.

[14]      This Court requested the appellant’s legal representative, Mr Mokala to direct our attention in the record where it appears that documents were not provided. He conceded that it does not appear on record that the appellant was not in possession of the content of the docket and in fact conceded that the defence was in possession of Mr Tlhapi’s statement. This concession was correctly made. Accordingly there is no merit in this ground for appeal.

Third Ground for Appeal

[15]      The Court a quo erred by not allowing, Mr Monnapula an opportunity to motivate the application for a postponement of the matter after dismissing the application for discharge in terms of section 174 of the Criminal Procedure Act 51 of 1977.

[16]      Counsel for the appellant submitted that, the Court a quo erred by summarily directing Mr Monnapula to put the appellant in the witness box to testify in his defence and by so doing thereby deprived the appellant of the opportunity to prepare his defence and to adduce and challenge the evidence, in particular the evidence of Mr Tlhapi.

[17]      Counsel for the respondent submitted that the appellant and his legal representative must have properly consulted in order to cross-examine witnesses by putting a version to them and bringing an application for discharge in terms of section 174. The appellant did not suffer any prejudice as a result of the refusal of a remand at that stage of the proceedings.

[18]      On perusal of the record, the following facts appear:

18.1    After the Court a quo refused the application for the discharge in terms of section 174, Mr Monnapula applied for a postponement. The Court a quo enquired what the reason for seeking a postponement was and Mr Monnapula replied that he needs to consult with the appellant as the appellant had indicated that he will testify.

18.2    The Court a quo refused the postponement as well as a request to adjourn for five minutes and said that if Mr Monnapula was putting the appellant in the witness box they should proceed as there was enough time (one and a half day) and this was a very old case even if it means they should work late.

[19]      Counsel for the appellant, was unable to express what the purpose for the postponement was save to consult with the appellant. He furthermore submitted that Mr Monnapula lacked experience. He however conceded that the legal representative would have consulted with the appellant prior to the trial commencing and would have taken instructions from him for purposes of cross examination of state witnesses. Hence any inconsistence and contradictions would have been traversed before and after the state witnesses testified.

[20]      Preparation for trial is generally done prior to commencement of a trial. An accused’s legal representative also consults with their clients after state witnesses testify and before cross examination. Counsel for the appellant was not able to express any prejudice that the appellant suffered as a result of the refusal by the Court a quo to postpone or adjourn the matter. Counsel for the appellant ultimately did not persist with this ground for appeal. The fact that a legal representative lacks experience or fails to perform at a standard experience of a reasonable practitioner does not render a trial unfair.

            Fourth Ground for Appeal

[21]      The Court a quo erred by failing to appreciate that Mr Tlhapi incriminated the appellant as an accomplice in the commission the crime without due regard to the provisions of section 217 of Act 51 of 1977 being adhered to, and contrary to the case of Mhlongo v State^[3], where it was held that, extra-curial admissions of an accused are inadmissible against a co-accused in terms of section 3 of the Law of Evidence Amendment Act, as same violates the provisions of section 9(1) of the said Constitution.

[22]      This ground was correctly abandoned by the appellant’s legal representative for the following reasons:

22.1    Mr Tlhapi was not an accused during the trial in which the appellant was tried.

22.2    Mr Tlhapi’s evidence was not presented during the trial in the form of a confession.

22.3    Mr Tlhapi testified viva voce in open Court and was subjected to cross examination by the defence.

22.4    The evidence of Mr Tlhapi is admissible against the appellant.

Fifth Ground for Appeal

[23]      The Court a quo erred by failing to appreciate that the cautionary rule regarding accomplices is applicable to the evidence of Mr Tlhapi and that his evidence had to be treated with caution. The Court a quo erred by failing to treat Mr Tlhapi’s evidence with caution.

[24]      Counsel for the appellant submitted further that:

24.1    The Court a quo erred by failing to appreciate that Mr Tlhapi could have made use of his own knowledge, having participated in the offence, to shield some other person or watered down his own role in the commission of the crime.

24.2    The Court a quo erred by failing to find in favour of the appellant that his version that Mr Tlhapi had a motive to incriminate him in the commission of the crime, is reasonably possibly true.

24.3    The Court a quo erred by failing to appreciate that Mr Tlhapi testified during cross-examination on  behalf of the appellant that he had no other choice but to plead guilty to the charge against him as a result of the DNA analysis that positively linked him to the offence.

24.4    The Court a quo erred by failing to appreciate that it is common cause that information furnished by the appellant’s parents at the instance and request of the appellant led to the re-arrest of Mr Tlhapi who had absconded from Court.

24.5    The Court a quo erred by finding that Mr Tlhapi is a satisfactory witness because of the fact that he gave a detailed account of the crime which corresponded with that of the complainant.

[25]      In S v Masuku and Another^[4]  the Court succinctly dealt with accomplice evidence and held:

“(1) Caution in dealing with the evidence of an accomplice is imperative. . . . (2) An accomplice is a witness with a possible motive to tell lies about an innocent accused; for example, to shield some other person, or to obtain immunity for himself.  (3) Corroboration, not implicating the accused but merely in regard to the details of the crime, not implicating the accused, is not conclusive of the truthfulness of the accomplice. The very fact of his being an accomplice enables him to furnish the Court with details of the crime which is apt to give the Court the impression that he is in all respects a satisfactory witness, or, as has been described 'to convince the unwary that his lies are the truth'. (4) Accordingly, to satisfy the cautionary rule, if corroboration is sought it must be corroboration directly implicating the accused in the commission of the offence. (5) Such corroboration may, however, be found in the evidence of another accomplice provided that the latter is a reliable witness. (6) Where there is no such corroboration, there must be some other assurance that the evidence of the accomplice is reliable. (7) That assurance may be found where the accused is a lying witness, or where he does not give evidence. (8) The risk of false incrimination will also, I think, be reduced in a proper case where the accomplice is a friend of the accused. (9) In the absence of any of the aforementioned features, it is competent for a Court to convict on the evidence of an accomplice only where the Court understands the peculiar danger inherent in accomplice evidence and appreciates that acceptance of the accomplice and rejection of the accused is only permissible where the merits of the accomplice as a witness, and the demerits of the accused as a witnesses, are beyond question. (10) Where the corroboration of an accomplice is offered by the evidence of another accomplice, the latter remains an accomplice and the Court is not relieved of its duty to examine his evidence also with caution. He, like the other accomplice, still has a possible motive to tell lies. He, like the other accomplice, because he is an accomplice, is in a position to furnish the Court with details of the crime which is apt to give the Court, if unwary, the impression that he is a satisfactory witness in all respects.”

[26]      It is trite law that if there is no corroboration directly incriminating the appellant in the commission of the offence, there must be some other assurance that the evidence of the accomplice is reliable^[5]. In S v Maselani and another^[6], the SCA held that “corroboration is not the only safeguard to reduce the risk for a wrong conviction. The absence of gainsaying evidence, his mendacity as a witness, may, depending on the facts, be regarded as sufficient safeguard. What is required is proof beyond reasonable doubt, and this depends upon an appraisal of all of the evidence and the degree of the safeguard aforementioned. If it can be said that the accomplice is beyond all question a satisfactory and convincing witness and the accused is the opposite, then corroboration is not required”. Corroboration is not the only manner in which the cautionary rule can be satisfied^[7].

[27]      Counsel for the respondent relied on the decision of S v Engelbrecht^[8] where the Supreme Court of Appeal (SCA), held that it was not required of an accomplice to be a perfect witness. It is often stressed that the exercise of caution should not be allowed to displace the exercise of common sense^[9].  Not all contradictions adversely impacts on the credibility of a witness^[10].

[28]      The magistrate in her judgment in the Court a quo evaluated all the evidence that was presented by both the state and the defence and made a credibility finding. In her judgment, she said the following:

  “What this Court found is that Mr Tlhapi corroborated and all the gaps that was in the complainant’s evidence he clarified for this Court by telling this Court how they entered that house, how they both penetrated the complainant, how they demanded the cell phones, the DVD’s and the money, that indeed when they entered the house the complainant emerged from the bedroom and she was in the passage and that there was also this 5 year old child in the house. It is clear in S v Gentle 2005, Supreme Court of Appeal, that there need to be corroboration of the evidence of a complainant.

       The second state witness confirmed to this Court that he was the reason for this delay in this case, that he fled for more than one and half years, that when he was re-arrested the second time, that he decided to plead guilty voluntarily, that he was sentenced, he was never promised a lesser sentence. From the beginning he was saying to this Court that he was approached by the accused before this Court, Timothy March, they then went to this house, where the garage door was already opened by Timothy March. He further testified that when they entered the house, first Timothy March raped the complainant and after that he himself raped her.

  Taking into account the evidence of the second state witness and that of the defence, it is clear that Mr Kgotso Tlhapi, he filled all the gaps that were in the complainant’s evidence. As the Court has clearly said before, that the evidence of Ms Molale is accepted as credible, if she wanted to exaggerated she could have told this Court that indeed she saw the faces of both the persons that entered her house that night. She was honest enough to admit that she did not see the face of the accused before this Court, up and until he was identified by his friend. In weighing the evidence of the accused against the evidence of the second state witness, Mr Tlhapi, what is not in dispute and what is common cause that is indeed, that they were drinking together, the accused admit that they were drining together at this tavern with the friends.

  Mr Tlhapi was confronted with the fact that he had motive and grudges against the accused because of the partners in crime, the fact that they were partners in crime. It was clear that the accused himself also corroborated the fact that indeed they were friends even after that incident that he was referring to as his motive. He wanted this Court to believe that he only found out about the fact that he was incriminated by his co-accused the day the person came to testify, the second state witness came to testify. The defence wanted this Court to believe that because of the accused’s behavior before this Court, that he regularly came to Court, he attended the Court, all this sessions up and until his colleague fled, that he was not involved in this offence. But this Court, the fact that the accused came to Court regularly does not mean that he was not involved in this offence. But this Court, the fact that the accused came to Court regularly does not mean that he was not involved in this offence”.

[29]      The magistrate considered the following salient facts, that:

29.1    Mr Tlhapi and the appellant were friends prior to and after the incident;

29.2    on the night in question, the appellant and Mr Tlhapi were together drinking at the tavern;

29.3    Mr Tlhapi corroborated the first state witness, Ms Molale’s evidence and ‘filled the gaps Ms Molape was found to be a credible witness;

29.4    Mr Tlhapi did not have a motive or grudge to falsely incriminate the appellant;

29.5    Mr Tlhapi was already sentenced by the time he testified in the Court a quo;

29.6    Mr Tlhapi acknowledged that he initially absconded and when he was caught he pleaded guilty voluntarily.

29.7    Mr Tlhapi gave a detailed account of the events that transpired; and

29.8    Mr Tlhapi directly implicated the appellant in the commission of the offence.

[30]     I am of the view that the magistrate adopted the correct approach in evaluating the evidence and determining the guilt of the appellant^[11]. The magistrate exercised the necessary caution when she evaluated Mr Tlhapi’s evidence. She understood the dangers inherent in accomplice evidence and accepted that the merits of the accomplice as witness and demerits of the appellant as a witness were beyond question. The appellant’s version that after drinking with Mr Tlhapi and others he left for his girlfriend’s home was correctly rejected as not being reasonably possibly true. There is accordingly no merit in this ground of appeal.

D.        SENTENCE

[31]      As stated supra, the appellant was sentenced to 20(Twenty) years imprisonment. The appellant submitted inter alia that:

31.1    the Court a quo erred by overemphasizing the seriousness of the offence and the prevalent nature thereof at the expense of the personal circumstances of the appellant;

31.2    the Court a quo erred in not paying particular and sufficient attention to the fact that the appellant was at the time of conviction and sentence a first offender at 25 years of age;

31.3    the Court a quo erred by not taking the interests of the four (4) minor children of the appellant into account in her consideration of an appropriate sentence for the appellant;

31.4    the Court a quo erred in failing to take the sentence that had been imposed on Mr Tlhapi into account when considering an appropriate sentence for the appellant, as there is a striking disparity between the sentence of eight (8) years imprisonment on Mr Tlhapi in the matter wherein he was convicted and the sentence of twenty (20) years imposed on the appellant;

31.5    the sentence imposed on the appellant is shockingly inappropriate and induces a sense of shock;

31.6    an appropriate sentence would be 10 years imprisonment.

[32]      Counsel for the respondent submitted inter alia that:

32.1    The learned regional magistrate carefully considered all the elements placed before her pertaining to mitigation and aggravation of sentence;

32.2    Rape is a very serious offence and it is prevalent countrywide^[12];

32.3    the evidence of Mr Tlhapi clearly indicates that the appellant was the mastermind behind the crime;

32.4    the sentence imposed on the appellant is in the circumstances of this case not shockingly inappropriate and the magistrate did not misdirect herself or fail to exercise her discretion on sentence judiciously;

32.5    a Court of Appeal will not alter a sentence unless it is held that no reasonable man ought to have imposed such a sentence, or that the sentence is totally out of proportion to the gravity of or magnitude of the offence, or that the sentence is grossly excessive or insufficient, or that the trial judge had not exercised his discretion properly, or that it was in the interest of justice to alter it^[13];

32.6    the interference with the term of imprisonment will only be competent if the Appeal Court is satisfied that the trial Court had not exercised its sentencing discretion reasonably^[14]; and

32.7    the sentence imposed on Mr Tlhapi after his plea of guilty was too lenient and cannot be seen to be the correct sentence which should be followed by this Court.

[33]      The appellant was not charged in terms of the Minimum Sentence Act and the Court a quo did not apply the Minimum Sentence Act even though the Court a quo remarked that the offence was premeditated and the appellant could have been sentenced to life imprisonment if the Minimum Sentence Act was applicable.

[34]      The personal and mitigation factors of the appellant are the following:

            34.1    He is a first offender;

            34.2    He was 26 year of age;

            34.3    He is unmarried;

34.4    He has 4 minor children; two were 5 years old and the other two were 3 years old from different mothers;

34.5    The two 5 year olds resided with him and were in Grade 0. He was responsible for them as their mothers were unemployed. He was also contributing towards the maintenance of the 3 year olds in the amount of R800.00; and

34.6    He was employed at the AC Bottle Store earning approximately R4500.00.

[35]      The aggravating circumstances are the following:

35.1    The appellant and the former co-accused planned to commit the offence;

35.2    The complainant was an elderly woman; and

35.3    The complainant was raped by more than one person.

[36]      The imposition of a suitable sentence is a matter which falls pre-eminently within the discretion of the trial Court.  A Court of Appeal will not lightly interfere with the exercise of the discretion by the trial Court in imposing sentence.  A Court of Appeal will only interfere when the sentence imposed by the trial Court is vitiated by an irregularity or misdirection or when the sentence is shockingly severe, disturbingly inappropriate and totally out of proportion to the offence committed^[15].

[37]      It is trite that a Court in sentencing an accused person must consider the triad, which consists of the crime, the offender and the interests of society. In casu the Court a quo in its judgment considered the triad.

[38]     In the case of DPP, North Gauteng v Thabethe^[16], the Court held that:

“[22]    . . .  Rape of women and young children has become cancerous in our society.  It is a crime which threatens the very foundation of our nascent democracy which is founded on protection and promotion of the values of human dignity, equality and the advancement of human rights and freedoms.  It is such a serious crime that it evokes strong feelings of revulsion and outrage amongst all right-thinking and self-respecting members of society.  Our Courts have an obligation in imposing sentences for such a crime, particularly where it involves young, innocent, defenceless and vulnerable girls, to impose the kind of sentences which reflect the natural outrage and revulsion felt by law-abiding members of society.  A failure to do so would regrettably have the effect of eroding the public confidence in the criminal justice system.”

[39]      In S v SMM^[17] it was held that “It is necessary to reiterate a few self-evident realities. First, rape is undeniably a degrading, humiliating and brutal invasion of a person’s most intimate and private space. The very act itself, even absent any accompanying violent assault inflicted by the perpetrator, is a violent and traumatic infringement of a person’s fundamental right to be free from all forms of violence and not be treated in a cruel or inhumane or degrading way”.

[40]      Our Courts have repeatedly expressed their outrage at the high incidence of rape in South Africa.  As Bosielo JA in S v Makatu^[18] held that:

“For some time now this country has witnessed an ever increasing wave in crimes of violence, notably murder and sexual offences.  Undoubtedly, these crimes seriously threaten the social and moral fabric of our society.  As a result our society is seriously fractured.  The majority of our people, particularly the vulnerable and the defenceless, which include women, children, the elderly and infirm, live in constant fear.  It is no exaggeration to say that every woman or girl in this country is a potential victim of either murder or rape.  This is sad because these heinous crimes occur against the backdrop of our new and fledgling constitutional democracy, which promises a better life for all.  These crimes have spread across the length and breadth of our beautiful country like a malignant cancer.  They are a serious threat to our nascent democracy.  They have to be exterminated at their roots.

[31] There is a huge and countrywide outcry by citizens, civic organisations, NGOs, politicians, religious leaders and people across racial, class and cultural divides over these crimes which have become a scourge.  There is hardly a day that passes without a report of any of these crimes in the media, be it print or electronic.  The legislature responded to the public outcry with, amongst others, the Criminal Law Amendment Act 105 of 1997, which singled out these crimes, that are a threat to our wellbeing, for very severe sentences, the main objective being to punish offenders effectively and, in appropriate cases, to remove those who are a danger to society from its midst, circumstances permitting, either for life or long term imprisonment.  In addition the national government declared the period from 25 November to 10 December, popularly known as '16 days of activism', to be a nationwide campaign promoting a culture and ethos of zero violence against women and children.  I regret to state that everyday media reports and statistics from the South African Police Service (SAPS) and the National Prosecuting Authority (NPA) seem to suggest that, despite all these valiant efforts by government, we are not winning the war against these crimes.

[32] Faced with this scourge, what role can our Courts play to ensure that the rights of all citizens are protected?  Our Courts which are an important partner in the fight against crime cannot be seen to be supine and unmoved by such crimes.  Our Courts must accept their enormous responsibility of protecting society by imposing appropriate sentences for such crimes.  It is through imposing appropriate sentences that the Courts can, without pandering to the whims of the public, send a clear and unequivocal message that there is no room for criminals in our society.  This in turn will have the salutary effect of engendering and enhancing the confidence of the public in the judicial system.  Inevitably this will serve to bolster respect for the rule of law in the country.  See R v Kara^[19]; S v Mafu^[20]; and S v Mlhakaza and Another^[21].”

[41]      There is an increase of rape of children and elderly women in South Africa. They are often the weakest physically and most vulnerable and are open to abuse. The complainant, was asleep in the sanctity of her home when she was assaulted and gang raped. She had her 5 year old grandchild with her in the house. Women in South Africa need to feel safe and secure in their environment. Rape is a violent crime and the statistics for rape in this country are shockingly high. Men who rape and violate innocent woman and girls deserve long term imprisonment and it is in the interest of society that the appellant is punished with a sentence that fits the offence.

[42]      The personal, mitigating and aggravating circumstances in Mr Tlhapi’s case is distinguishable from the appellant’s case. Furthermore Mr Tlhapi pleaded guilty and was not the mastermind behind the commission of the offence.

[43]     The purpose of sentencing is deterrence, prevention, rehabilitation, retribution and punishment. I am of the view that when taking into consideration the fact that the appellant is a first offender, his age, that he was convicted in 2010 and has since been in custody, that he is a suitable candidate for rehabilitation and blending this with an element of mercy, the sentence of 20 years is shockingly severe and disturbingly out of proportion to the offence committed. In my view a sentence of 16 years imprisonment is appropriate in the circumstances.

E.        ORDER

[44]      In the result,

a)             The appeal on conviction is dismissed;

b)             The appeal on sentence is upheld; and

c)               The sentence imposed by the Court a quo is set aside and is substituted with the following

“Sixteen (16) years imprisonment”

d)            The sentence is ante-dated to 10 February 2010.

_________________

N. GUTTA

JUDGE OF THE HIGH COURT

I agree

_________________

A.M KGOELE

JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING                             :  08 SEPTEMBER 2017

DATE OF JUDGMENT                          :  15 SEPTEMBER 2017

COUNSEL FOR APPELLANT               :  MR  MADIBA

COUNSEL FOR RESPONDENT           :  ADV  NONTENJWA

ATTORNEYS FOR APPELLANT           :  G A MOOKA ATTORNEYS

ATTORNEYS FOR RESPONDENT      :  THE DIRECTOR OF PUBLIC PROSECUTIONS

This is against the decision in Shabalala and Others v Attorney-General of Transvaal and another, which made it trite law that the state is obligated to furnish the defence with such in order to prepare their defence. It should further be noted that the above mentioned case speaks to section 35(5) of the Constitution

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