Griqua v S [2024] ZANWHC 171 (15 July 2024)

 

Reportable: YES/NO Circulate to Judges: YES/NO Circulate to Magistrates: YES/NO Circulate to Regional Magistrates: YES/NO

 

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION – MAHIKENG

 

Case No.: CA39/2023

Regional Magistrates Case No. RC2/ 34/2022

 

In the matter between:-

JOHN THIJANE GRIQUA APPELLANT

AND

THE STATE RESPONDENT

 

ORDER

The appeal against the sentence is dismissed.

 

 

JUDGMENT

REDDY J

 

Introduction

[1] This is an appeal against sentence. On 07 December 2022, the appellant was convicted by Regional Magistrate Foso at Klerksdorp of contravening section 3 read with sections 1, 56(1), 57, 58, 59, 60 and 61 of the Criminal law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (“SORMA”), read with sections 94, 256 and 261 of the Criminal Procedure Act 51 of 1977. The provisions of section 51(1) of Part 1 of schedule 2 of the Criminal Law Amendment Act 105 of 1997, (“the CLAA”) found application in that the victim was raped more than once.

 

[2] The Regional Magistrate found no substantial and compelling circumstances to deviate from the mandatory sentence of life imprisonment. Additionally, the appellant was declared unfit to possess a firearm which should have been within the tenets of section 103(1) of the Firearms Control Act 60 of 2000.

 

[3] The way the offences were committed is set out in some detail in the evidence of the victim MPR, and tersely in the judgment of the court a quo and need not be repeated in fine detail. What necessitates reiterating is the diction that was consistently used during the proceedings. Notably, is the use of the word “rounds” to denote the number of times that the appellant raped MPR during the subsistence of the proceedings. The use of this colloquial term taints the decorum of the proceedings and impacts the dignity of the victim. It is apposite to highlight what Khampepe J said in Tshabalala v S; Ntuli v S (CCT323/18; CCT69/19) [2019] ZACC 48; 2020 (3) BCLR 307 (CC); 2020 (2) SACR 38 (CC); 2020 (5) SA 1 (CC) (11 December 2019), regarding what rape in fact constitutes:

“[70] Rape is often mischaracterised as being an act of sexual intercourse, absent of consent, committed by inhumane monsters. This is a dangerous mischaracterisation of rape. Words matter. Words give a construction of a certain viewpoint of the world, and this viewpoint tends to be gendered. Although rape is defined as an unlawful and intentional act of sexual penetration of one person by another, without consent, it must be buttressed that the victim does not experience rape as being sexual at all. The requirement of sexual penetration is a legal requirement which relates to the biological element of sexual intercourse. For many victims and survivors of rape, they “do not experience rape as a sexual encounter but as a frightening, life-threatening attack” and “as a moment of immense powerlessness and degradation.”

(emphasis added)

 

[4] The decorum of court proceedings and the language employed by officers of the court is non-negotiable. The Regional Magistrate, relevant to this matter, was not simply an umpire in the proceedings. It was incumbent on him to ensure that the tenets of justice were served by inter alia being a conduit for the introduction of admissible and relevant evidence but also actively filtering questions that were posed to the victim of sexual violation. It is regrettable that the Regional Magistrate did not address this loosely used colloquial term of “rounds” when it was first uttered in open court and even more regrettably perpetuated its use in his judgment.

 

[5] On Saturday 06 November 2021, at approximately 22h00, MPR in the company of her friends were at a place called SS Butchery where meat is braaied and alcohol consumed. MPR made no secret of her indulgence in alcohol. Later, when her boyfriend Mr. Lebogang Chauke(“Chauke”) arrived, her friends departed. Chauke also consumed alcohol. In the early hours of the following morning MPR and Chauke appear to have lost track of each other. Chauke had in his possession the cell phone of MPR which ruled out the possibility of telephonic contact.

 

[6] Whilst trying to locate Chauke, MPR encountered the appellant. He volunteered information as to the whereabouts of Chauke and further disclosed that Chauke had left in the company of a female. The appellant offered to assist MPR to accompany her to where Chauke could be found, which the appellant portrayed as being within his implicit knowledge. Given her rage at the conduct of Chauke, the suggestion of the appellant appeared to be an attractive invitation. They left together notwithstanding the eventual destination being unknown to her. Arriving at a certain premises at which a house and outside rooms where constructed, the appellant suggested they hide behind the door to trap Chauke. They did so. After some time Chauke did not arrive. It was then that MPR requested the appellant to accompany her to the parental home of Chauke.

 

[7] The appellant switched on the light in the room and produced a knife from his pocket. With the aid of the knife and threat of death the silence of MPR was secured. The appellant then proceeded to rape MPR on three occasions. Against her request, the appellant accompanied her to secure transport for which he provided some cash. MPR reported her ordeal to the driver of the transport and later to her brother. Later the same day, MPR was medically examined by a Dr. Leburu, who concluded that there had been no visible vaginal injuries to MPR.

 

[8] It is a trite principle of our law that the imposition of sentence is the prerogative of the trial court. See: S v Pieters 1987 (3) SA 717 (A) at 727F-H; S v Sadler 2000 (1) SACR 331 (SCA) at para 8; S v Swart 2000 (2) SACR 566 (SCA) para 21. See also, S v L 1998 (1) SACR 463 (SCA) at 468f; S v Blank 1995 (1) SACR 62 (A) at 65h-i. An appellate court may not interfere with this discretion merely because it would have imposed a different sentence. Put differently, it is not enough to conclude that its own choice of penalty would be appropriate. See: S v Pillay 1977 (4) SA 531 (A) at 535E-F. Something more is mandatory; it must conclude that its own choice of penalty is the appropriate penalty and that the chosen penalty of the court a quo is not.

 

[9] Ultimately, the appellate court must be satisfied that the trial court committed a misdirection of such a nature, degree and seriousness that demonstrates that it did not exercise its sentencing discretion at all or exercised it improperly or unreasonably when imposing same. It follows that interference is justified only where there exists a striking or startling or disturbing disparity between the trial court’s sentence and that which the appellate court would have imposed. In these cases, the trial court’s discretion is deemed as having been unreasonably exercised. See: S v Snyders 1982 (2) SA 694 (A) at 697D; S v N 1988 (3) SA 450 (A) at465I-J; S v Shikunga 465I-466A; S v Shikunga & another 1997 (2) SACR 470 (NmS) at 486c-f. See also S v M 1976 (3) SA 644 (A) at 649F-650A; S v Pieters 1987 (3) SA 717 (A) at 733E-G; S v Petkar 1988 (3) SA 571 (A) at 574D; 1997 (2) SACR 470 (NmSC) at 486d. See also S v Abt 1975 (3) SA 214 (A); S v Birkenfield 2000 (1) SACR 325 (SCA) para 8; S v M 1976 (3) SA 644 (A) at 649F-650A; S v Pieters fn 3 at 733E-G.

 

[10] The approach to an appeal against sentence was set out in S v Malgas 2001 (2) SA 1222 (SCA) at paragraph 12 as follows:

“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.”

 

[11] The appellant contends that the sentence imposed by the trial court over emphasized the interests of the public and negated his personal circumstances. More particularly, the appellant asserts the fact that he was thirty-six (36) years of age at the date of sentencing and a first offender was not afforded sufficient weight. This maintains the appellant, resulted in the imposition of a sentence which was out of proportion to the mitigating factors adduced. To this end, the contention is that the trial court was duty bound to consider the entire conspectus of the case before the imposition of a suitable sentence. The aforesaid misdirections, asserts the appellant caused the Regional Magistrate to impose a sentence which left no room for him to be rehabilitated and reintegrated into society. Finally, the inability to impose a balanced sentence resulted in the over accentuation of the retribution aspect of punishment.

 

[12] It is against this jurisprudential sentencing backdrop that the sentence imposed must be considered, bearing in mind the guidelines that have been enunciated in Malgas. The approach to sentencing endorsed in Malgas has mustered constitutional approval in S v Dodo 2001 (3) 382 (CC). The introduction of minimum sentencing legislation into our law altered the sentencing landscape. The Court must be alive to the sentencing regime that now exists, and that the legislature has ordained a particular sentence for such an offence with truly convincing reasons to depart therefrom. These truly convincing reasons have been blanketed as substantial and compelling reasons, notwithstanding the absence of an all-embracing decision of what the pure meaning of this legal concept is. For substantial and compelling circumstances to be found does require that these circumstances must be exceptional. See: S v Vilakazi 2009(1) SACR 552 (SCA). What however is established law is that on this path to determining the presence of substantial and compelling circumstances, a sentencing court is duty bound to assess the conspectus of the evidence inclusive of mitigating and aggravating factors in ascertaining whether the litmus test of substantial and compelling circumstances find application.

 

[13] A court seized with the exercise of a sentencing discretion is enjoined to attain a balance. The balance is directed at three prominent factors, namely, the crime, the offender and the interests of the community. (See S v Zinn 1969 (2) SA 537 (A) at 540G-H). In S v RO and Another 2000 (2) SACR 248 (SCA) at paragraph [30] Heher JA stated the following in this regard:

“Sentencing is about achieving the right balance or in more high-flown terms, proportionality. The elements at play are the crime, the offender, the interests of society with different nuance, prevention, retribution, reformation and deterrence, invariably there are overlaps that render the process unscientific, even a proper exercise of a judicial function allows reasonable people to arrive at different conclusions.”

 

[14] The appellate was born on 7 August 1986 and was thirty-six (36) years old as at the date of sentence. He is unmarried but is the father of twin girls aged one year four months. He is not the primary caregiver as his daughters reside with their biological mother. The appellant was released on bail in this matter until his arrest on another matter. For administrative purposes, the bail of the appellant in this matter was cancelled in May 2022. Prior to the appellant’s incarceration he was employed on a casual basis earning approximately R2000-00 per month. The highest level of education that he completed was the former Standard seven (7). The appellant is not a first offender.

 

[15] Our case law is replete with cases of this nature, wherein our courts consistently expressed society’s abhorrence of sexual offences and the devasting impact it has on the victims and society. In certain instances our courts have aptly described rape as ‘a horrifying crime’ and ‘a cruel and selfish act in which the aggressor treats with utter contempt the dignity and feelings of [the] victim’ (See: N v T 1994 (1) SA 862 (C) at 864G) and as ‘a very serious offence’ which is ‘a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim’. See : S v Chapman [1997] ZASCA 45; 1997 (2) SACR 3 (SCA) at 5b. In S v Jansen 1999 (2) SACR 368 (C) at 378h-379a, rape was delineated as an appalling and perverse abuse of male power which strikes a blow at the very core of our claim to be a civilised society.

 

[16] It is unsurprising therefore that society demands the imposition of harsh sentences which adequately reflect censure and retribution upon those who commit these monstrous offences and to deter would-be offenders. What stands out is the ingenious way the appellant sought to ensnare MPR by creating a ruse regarding Chauke’s infidelity. He then put his premediated plan into action ultimately raping MPR once securing her submission and cooperation with the aid of a weapon.

 

[17] The interests of society must be afforded due consideration. The role of society should not however be elevated or over-emphasized in this process of proportionality. When the interests of society are considered, it is not what society demands that should determine the sentence, but what the informed reasonable member of that community believes to be a sentence that would be just. (S v Mhlakaza and Another 1997 (1) SACR 515 (SCA) at 518). A sentence would, accordingly, not necessarily represent what the majority in the community demands, but what serves the public interest and not the wrath of primitive society. (S v Makwanyane [1995] ZACC 3; 1995 (2) SACR 1 (CC) at paragraph [87]- [89]). In respect of society at large it is recognised, as was stated in R v Karg 1961 (1) SA 231 (A) at 236, that:

“It is not wrong that the natural indignation of interested persons and of the community at large should receive some recognition in the sentence that courts impose, and it is not irrelevant to bear in mind that if sentences for serious crimes are too lenient, the administration of justice may fall into disrepute and injured parties may feel inclined to take the law into their own hands.”

 

[18] When the appellant stood trial, he maintained his innocence and raised consent as a ground of justification to exclude the unlawfulness of his actions. Whilst the lack of remorse is not an aggravating feature it would have redounded to the appellant’s favour had he shown some appreciation of and contrition for the devastation he caused. The demonstration of an appreciation of one’s actions and the consequences thereof are inextricably linked to the rehabilitation and reintegration of an offender back into society.

 

[19] The appellant contends that his youth was not given due weight as part of his personal circumstances. I can do no more than align myself with the sentiments posited by Ponnan JA in S v Matyityi (695/09) [2010] ZASCA 127; 2011 (1) SACR 40 (SCA); [2010] 2 All SA 424 (SCA) (30 September 2010) where he said:

“[14] Turning to the respondent’s age: What exactly about the respondent's age tipped the scales in his favour was not elaborated upon by the learned judge. During the course of the judgment reference was made to the respondent's ‘relative youthfulness’ without any attempt at defining what exactly that meant in respect of this particular individual. It is trite that a teenager is prima facie to be regarded as immature and that the youthfulness of an offender will invariably be a mitigating factor,unless it appears that the viciousness of his or her deeds rule out immaturity. Although the exact extent of the mitigation will depend on all of the circumstances of the case, in general a court will not punish an immature young person as severely as it would an adult. It is well established that the younger the offender the clearer the evidence needs to be about his or her background, education, level of intelligence and mental capacity in order to enable a court to determine the level of maturity and therefore moral blameworthiness. The question, in the final analysis, is whether the offender’s immaturity, lack of experience, indiscretion and susceptibility to being influenced by others reduces his blameworthiness. Thus whilst someone under the age of 18 years is to be regarded as naturally immature the same does not hold true for an adult. In my view a person of 20 years or more must show by acceptable evidence that he was immature to such an extent that his immaturity can operate as a mitigating factor. At the age of 27 the respondent could hardly be described as a callow youth. At best for him his chronological age was a neutral factor. Nothing in it served, without more, to reduce his moral blameworthiness. He chose not to go into the box and we have been told nothing about his level of immaturity or any other influence that may have been brought to bear on him to have caused him to act in the manner in which he did.”

(Footnotes omitted).

 

[20] To my mind, at the age of thirty-six (36), the appellant could not have been described as a callow youth. The age of the appellant was certainly a factor which the Regional Magistrate considered within the personal circumstances of the appellant.

 

[21] In addressing rehabilitation as a factor in the sentencing process it must be borne in mind that an offender who does not accept responsibility may have difficulty in being rehabilitated. At the very least, his rehabilitation process would need to be longer to bring him to insight, as juxtaposed to an offender who already displays insight which may require less time to be rehabilitated. The appellant’s conduct fits squarely within this. It must be borne in mind that rehabilitation is a purpose of punishment only if there is the potential to achieve it. See: S v Tsotetsi 2019 (2) SACR 594 (WCC) at paragraph [29].

 

[22] At its core, rehabilitation implores of an offender to make a full disclosure of the motive that underscored the commission of the offence, coupled with the acceptance of full responsibility for the wrong committed. Offenders who show sincere remorse for the crimes they have committed, can be seen in that they will be able to acknowledge that they acted wrongfully; are able to verbalise and understand the impact of their actions on their victims; take responsibility for their actions and want to change their behaviour. These are positive indicators of remorse. Such behaviour will inevitably be treated with more empathy, as it indicates that there is the potential for these persons to reform and improve themselves. Remorse is also a motivator to change. See S v Mudyiwayana (CC17/2020) [2022] ZAWCHC 23 at (2 March 2022).

 

[23] Our courts link the presence of remorse with the prospect of the rehabilitation of the offender. (Terblanche “Sentencing” 2010 Annual Survey of South African Law 1279 1287–1288; S v Ntuli 1978 (1) SA 523 (A) 528B–C; S v PN 2010 (2) SACR 187 (ECG); S v De Klerk 2010 (2) SACR 40 (KZP) par [28]; S v Langa 2010 (2) SACR 289 (KZP) par [36]; S v Onose 2012 JDR 1074 (ECG) par [9]; S v Keyser 2012 (2) SACR 437 (SCA) par [29]) S v Seegers (1970 (2) SA 506 (A) 512G–H) and S v Matyityi 2011 (1) SACR 40 (SCA) par [13]).

 

[24] To my mind, the appellant failed to make a case for rehabilitation, to be considered a mitigating factor. This may change. The Correctional Facility where he is to serve his sentence would provide a platform for him be a rehabilitated person and to contribute positively to society as a reformed individual. This could result in a successful reintegration into society at the appropriate time.

 

[25] It would be remiss of me not to address grave concerns that is evident from the sentence proceedings before the Regional Magistrate. Afore elucidating on these it would be apposite to place the sentencing process in proper perspective as an integral compartment of the criminal trial. In Diniso v S (CA14/22) [2023] ZANWHC11 (7 February 2023) Petersen J and Reddy AJ (as he then was) posited the following which are apposite:

“[20] Sentence proceedings are part of the trial process. It is not an insulated enquiry independent of the trial. The decorum of the court must still be maintained throughout. Fair trial rights are inclusive of equality and fairness in the application of sentence principles. This fairness extends to the appellant and the State as represented by the public. The verdict of guilty on the appellant's plea of guilty, which rebuts the constitutional presumption of innocence, did not provide a licence to the Acting Regional Magistrate to impugn the dignity of the appellant. The appellant was still clothed with his human dignity notwithstanding a conviction on what clearly was a dreadful crime and this applies equally to the sentence proceedings. In S v Tyebela 1989 (2) SA 22 (AD) at 29 G-H the following was stated, in respect of the duty of a judicial officer to attain a fair trial:

“It is a fundamental principle of our law and, indeed, of any civilised society that an accused person is entitled to a fair trial... This necessarily presupposes that the judicial officer who tries him is fair and unbiased and conducts the trial in accordance with those rules and principles or the procedure which the law requires.”

[21] In President of The RSA v South African Rugby Football Union v SARFU [1999] ZACC 9; 1999 (4) SA 147 (CC) the Constitutional Court said the following in respect of bias or perceived bias on the part of a judicial officer:

“The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by Judges to administer justice without fear or favour: and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions.

They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.”

 

[26] A plethora of unacceptable remarks by the Regional Magistrate tainted the decorum of the proceedings and impugned the dignity of the appellant. The Constitution of the Republic of South Africa Act 108 of 1996, promotes a myriad of rights. Sentence proceedings would be subsumed to my mind under the ethos of a fair trial. In Diniso an exposé on the conduct that is expected of judicial officers in our country which is founded on our Constitution, international instruments and the Code of Conduct sets out the framework that is expected. The Regional Magistrate will do well to revisit this judgment.

 

[27] In addressing the court in mitigation of sentence, the following engagement is recorded between Mr. Neethling, the prosecutor and the Regional Magistrate:

“COURT: You said he was incarcerated from which month?

MR NEETHLING: May 2022, this year Your Worship, yes

COURT: Let us see.

MR NEETHLING: But I think at some stage we, the bail was withdrawn.

COURT: Oh yes.

MR NEETHLING: For easy administration.

PROSECUTOR: Yes, Your Worship.

MR NEETHLING: Yes.

COURT: Yes, it was, he was at all material times outside up until …. [intervene]

MR NEETHLING: Outside, yes.

COURT: …. he got himself arrested on another case?

MR NEETHLING: Indeed, Your worship, yes and….

COURT: And that case kept him now, now it is his fault mos, he was on bail on this one.

MR NEETHLING: On, on our case, yes, Your Worship

COURT: And he is still in custody on something else?

MR NEETHLING: Indeed.

COURT: So, it is not …[intervenes]

MR NEETHLING: Not our Court.

COURT: So, I can ignore it completely.

MR NEETHLING: Yes, I just want to, to get the point across that he was working up until May 2022, Your Worship.

COURT: Okay.

MR NEETHLING: Where he did peace jobs, gardening where he would earn roundabout R2000.00 a month. Highest education, Your Worship is …[intervene]

COURT: Odd jobs in gardens.

MR NEETHLING: In gardens, Your Worship.

COURT: Peoples house?

MR NEETHLING: At people’s house, yes. Approximately R150 .00 a day so he says…[intervene]

COURT: I, I hear you, I am just thinking about the danger that those people wherein, but not realising.

MR NEETHLING: Yes.

COURT: But anyway proceed.

……

MR NEETHLING: Your Worship my plea before this Honorable Court is that the Court find that there is substantial and compelling circumstances in case.

COURT: You do not want the court to give him life.

MR NEETHLING: The law says life, but there is substantial and compelling circumstances the can be …[indistinct]

COURT: So, you would be happy with how many years?

MR NEETHLING: Your Worship, 22, if we can start negotiating at 22, I do not want to start with 18.

COURT: No, no the law says life, if, if there is something then it is 25, the law says life.

MR NEETHLING: Yes, Your Worship, I am aware of that.

COURT: Let me hear hear you are asking that …[intervene]

MR NEETHLING : I am asking for 22 years Your Worship that is my request.

COURT: And you are saying

MR NEETHLING:

Your Worship , it is based on what is said in the case of ….[intervene]

COURT: You say the crime should not be affect the heaviest sentence permitted by law.

MR NEETHLING: It should not, Your Worship.

COURT : Okay. Let us hear the state.”

 

[28] During the address of the prosecution in aggravation of sentence the following exchange took place between the Regional Magistrate and the prosecutor:

“PROSECUTOR ADDRESSES COURT:

Your Worship, I hear Mr. Neethling but I respectively disagree with the defence, Your Worship. In do not think there is substantial and compelling circumstances except maybe the fact that regarding the rape, he is an offender.

Unfortunately for the accused, Your Worship he had an ideal opportunity a few minutes ago to show the court that he had remorse, when the Court asked him, did you do it or not and he said, I did not do it. I saw the accused …[ intervene]

COURT: Oh

PROSECUTOR: ….is now emotional, Your Worship, so….

COURT: he , he no, no ..[intervenes]

PROSECUTOR: But..but[ intervenes]

COURT: …he is bound to cry.

PROSECUTOR: He, he is guilty now, and he can hear the three legal minds are talking about his future whether he is going for or not, he is bound to start sobbing and it, it….

 

[29] In his judgment on sentence, the Regional Magistrate states the following:

“And look what the accused did, is doing, he goes to her, take advantage of her vulnerability around that time and he, he lied to her. Saying that your boyfriend went to this specific place and he is with another women. Even when they arrive there he does not feel sorry for this complainant, she walking with him to this place which I earlier on referred to the accused slaughter house…”

 

[30] The Regional Magistrate continued with his disparaging remarks when he stated:

“…..However the list of previous convictions does not speak good of the accused person shows…the [indistinct] to commit offences. I am quite aware that when it comes to the offence of rape itself the accused is a first offender. But is shows that this is a gentlemen that has always been struggling to keep his hands away from other people’s properties and look what happened now, he could not keep his penis away from the complainant.”

 

[31] The work of a court and of all who appear before it is a serious business. The words that are spoken, the words that are written, and the decisions that are made, have far-reaching consequences on all that are intimately involved. Responsibility for ensuring proper access to the court, respect for its proceedings, and the legitimacy of its findings, rests as much with legal representatives (of which I include advocates and attorneys) as on the judicial officers. Utterances that have been alluded to by the Regional Magistrate has no place in our court rooms. It is unfortunate, unacceptable and completely unnecessary. An accused’s respect and dignity should never be comprised notwithstanding the stage of the criminal process.

 

[32] The Regional Magistrate should heed the caution enunciated in Vilakazi v The State (576/07) [2008] ZASCA 87 (2 September 2008), where Nugent JA (Streicher, Mlambo, Maya JJA and Hurt AJA concurring):

“[21] The prosecution of rape presents peculiar difficulties that always call for the greatest care to be taken, and even more so where the complainant is young. From prosecutors it calls for thoughtful preparation, patient and sensitive presentation of all the available evidence, and meticulous attention to detail. From judicial officers who try such cases it calls for accurate understanding and careful analysis of all the evidence. For it is in the nature of such cases that the available evidence is often scant and many prosecutions fail for that reason alone. In those circumstances each detail can be vitally important. From those who are called upon to sentence convicted offenders such cases call for considerable reflection. Custodial sentences are not merely numbers. And familiarity with the sentence of life imprisonment must never blunt one to the fact that its consequences are profound.”

 

[33] The Regional Magistrate was correct in finding that there were no substantial compelling circumstances that warranted a deviation from the mandatory sentence of life imprisonment.

 

Order

[34] In the premises, the following order is made:

The appeal against the sentence is dismissed.

 

 

 

 

I agree.

 

 

 

 

________________________

N MOTSATSI

ACTING JUDGE OF THE HIGH COURT O SOUTH AFRICA

NORTH WEST DIVISION MAHIKENG

 

 

APPEARANCES

 

For the Appellant: Mr. O. Madiba

Attorneys for Appellant Legal Aid South Africa

No 742 Dr James Moroka Drive

Mafikeng Justice Centre

Mmabatho

 

For the Respondent: Adv T September

Attorneys for Respondent: Director of Public Prosecutions

Megacity Complex

East Gallery

3139 Sekame Road

Mmabatho

 

Judgment reserved: 18 June 2024

Judgment handed down: 15 July 2024