Modise v S (A172/2020) [2021] ZAFSHC 146 (27 May 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: NO

Of Interest to other Judges: NO

Circulate to Magistrates: NO

Case number: A172/2020

In the matter between:

MATSHIDISO

ISAAC MODISE

Appellant

and

STATE

Respondent

CORAM: VAN ZYL, J et CHESIWE,

J

HEARD ON: 10 MAY 2021

DELIVERED ON: 27 MAY 2021

[1] The appellant was convicted in the Regional Court seating in Theunissen on two counts, namely count one, that of rape and count two robbery aggravating. The appellant was found guilty on count one and was sentenced on 25 June 2014 to 15 years imprisonment.

[2] The appellant’s leave to appeal his sentence was denied by the trial court. Appellant petitioned the Judge President of this court and leave to appeal against the sentence was granted on 23 November 2020.

[3] The appellant was legally represented at the trial court by Mr. Seitheiso from Legal Aid Board. The appellant terminated Mr. Seitheisho’s mandate and was thereafter represented by Mr. Adendorff, a Private Attorney, whose mandate was also terminated by the appellant. After conviction, the appellant proceeded to conduct his own defence throughout sentencing proceedings.

[4] The appellant’s grounds of appeal are briefly as follows:

· The court erred in imposing a 15 years sentence of imprisonment as it is shockingly harsh and inappropriate.

· The court erred in finding that no substantial and compelling circumstances exist to deviate from the prescribed sentence of life imprisonment.

[5] The background on this matter is briefly that: on the night of 6 July 2009, the Complainant, Maditlhare Nicole Dikwebe, was at a tavern with her brother and another person called Setcha. After drinking beer (Hansa) they left the tavern to go home. On their way they were met by some people who started to chase them. The Complainant was separated from her brother and Setcha. Two of the people who chased them, caught up with the Complainant. The appellant was one of the two people who chased her, and the second person was not before the trial court. The Complainant was dragged to a certain spot, where she was raped by the appellant and this other person. She was robbed of her Nokia cell phone and an amount of R8.00. The transcribed record further indicated that the DNA evidence at the trial court positively linked the appellant to the sexual intercourse of the Complainant.

[6] During oral argument, Ms. Kruger, counsel on behalf of the appellant submitted that there were substantial and compelling circumstances to deviate from the prescribed minimum sentence of 15 years imprisonment. She submitted that the appellant was 22 years at the time of the commission of the offence, under the influence of alcohol and was employed, earning R1 500,00. Ms. Kruger further submitted that the appellant spent five (5) years in custody awaiting trial. She stated the aggravating factors of the offence are the prevalence of the offence and that the complainant was raped more than once.

[7] Adv. Van Rensburg on behalf of the respondent submitted and conceded that there was confusion at the trial court as the record shows that the Presiding Officer proceeded to write judgment under section 51(2) instead of section 51(1) and proceeded to sentence the appellant to 15 years’ imprisonment, assuming that he was deviating from the life sentence. Counsel further conceded that there was a misdirection in respect of finding that there were compelling and substantial circumstance, but still proceeded to impose 15 years imprisonment sentence.

[8] It is trite that a court of appeal should not replace the sentence imposed by the trial court with its own, unless it is justified to do so.[1]

[9] The first principle is that the sentence of the trial court should not be departed from, for flimsy reasons as the punishment of the offender is primarily for the discretion of the trial court. The sentence should only be altered on appeal if the discretion has not been judicially and properly exercised.[2]

[10] In this matter, the charge sheet recorded that the appellant was charged for the crime of rape read with the provisions of section 51(2), 52(2), 52A and 52B of the Criminal Law Amendment Act 105 of 1997 of which the prescribed minimum sentence is 15 years imprisonment. At the commencement of the trial, even though the appellant was represented by Mr. Setheisho, the transcribed record does not reflect if the appellant was warned before pleading in terms of section 51(1) or 51(2), except having been asked if Mr. Setheisho was his attorney. Appellant confirmed so. The trial court further went to ask the appellant if Mr. Setheisho had informed him of his legal rights and the appellant’s reply was “no” and that there were a lot of things he had not yet discussed with Mr. Setheisho. The trial court proceeded to obtain clarity from the appellant pertaining to being informed of his legal rights by Mr. Setheisho, to which the appellant replied: “no” (see page 1 – line 15 – 25 of the transcribed record)

[11] Furthermore, the trial court asked the appellant if he understood the charge that had been put to him by the state prosecutor on count 1 and how the appellant was pleading to the charge in count 1. The appellant indicated that he understood the charge in count 1 and pleaded not guilty.

[12] It is clear that the appellant before commencement of the trial was not warned of the prescribed minimum sentence he will have to face if found guilty, further whether it was section 51(1) or section 51(2). This in itself is a misdirection.

[13] At the stage of sentencing, the Presiding Officer proceeded to warn the appellant in terms of section 51(1) that carries a life sentence imprisonment. The appellant was at that stage of the proceedings, not legally represented. On page 142 of the transcribed record, the Presiding Officer proceeded to warn the appellant in terms of section 51 (1) as follows:

“If the court is satisfied that substantial and compelling circumstances exist, justifying the imposition of a lesser sentence than that of the prescribed sentence of life, it shall enter those circumstances on record of the proceedings and they must thereupon impose a lesser sentence.”

[14] The sentencing stage was too late in the proceedings to have warned the appellant in terms of section 51(1). The Presiding Officer in sentencing judgment (page 150) acknowledged that there was an error made by the state in the annexure to the charge sheet with section 51(1) and section 51(2), as a result, the Presiding Officer afforded the advantage to the appellant and proceeded with section 51(2) which carries a 15 years’ imprisonment sentence.

[15] However, at page 151 of the transcribed record, at the end of the sentencing judgment, the Presiding Officer made a finding that there are compelling and substantial circumstances to deviate from the prescribed sentence of life and proceeded to sentence the appellant to 15 years’ imprisonment. Indeed, it appears that the Presiding Officer during the trial proceeded with the charge under section 51(1) as the appellant raped the complainant as a group. However, the Presiding Officer sentenced the appellant to 15 years’ imprisonment, justifying the deviation from life imprisonment.

[16] The confusion on which section the appellant was to be sentenced, does justify an interference with the 15 years’ imprisonment sentence imposed, as it is a misdirection on the part of the trial court.

[17] Adv. Van Rensburg during oral argument also conceded that indeed, there was confusion in terms of which section the appellant should have been charged as the charge sheet clearly states section 51(2). Therefore, there is no doubt that the court of appeal has to interfere.

[18] The appellant having been in custody for five (5) years awaiting, is regrettable. However, some of the delay can be put before the door of the appellant. During the trial the appellant terminated his legal representative’s mandate from Legal Aid and a private attorney. The appellant kept on requesting postponements to reapply for Legal Aid. The trial court had at one stage ordered that the trial must proceed as it was on the court’s roll for a very long time. The appellant is therefore partly to blame for the delay.

[19] The court has to take cognizance that rape is a very serious offence and the punishment to be imposed must be proportionate to such seriousness of the offence. It has been stated in many court cases by the SCA that rape is a violation of a person’s constitutional right, a violation of a woman’s most valuable right, her dignity. The court cannot ignore the rate at which rape against women and children is being committed in our country.

[20] The trial court already made a finding that compelling and substantial circumstances exist, to deviate from the prescribed minimum sentence, which prescribed minimum sentence is to be considered to be 15 years imprisonment.

[21] In my view of the aforesaid, I am persuaded that the trial court has misdirected itself and that the sentence imposed should be interfered with.

[22] In the circumstances, the following order is made:

1. The appeal against the sentence succeeds.

2. The sentence of 15 years’ imprisonment imposed on 26 June 2014 by the trial court is set aside and replaced with the following:

2.1 The appellant is sentenced to 12 years’ imprisonment.

3. In terms of section 282 of the Criminal Procedure Act 51 of 1977, the 12 years’ imprisonment sentence is antedated to 26 June 2014.

CHESIWE, J

I concur

VAN ZYL, J

On behalf of Appellant: Ms. S Kruger

Instructed by: Legal Aid South Africa

BLOEMFONTEIN

On behalf of the Respondent: Adv. E Van Rensburg

Instructed by: Office of the Director of Public Prosecutions

[1] S v Obisi 2005 (2) SACR 350 (W) at 352H – 353B.

[2] S v Rabie, 1975 (4) SA 855 (A) as per Holmes JA