Mosolo v S (A174/2020) [2021] ZAFSHC 142 (17 May 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Appeal No:A174/2020

In the matter between:

TSOANE

JIM MOSOLO

Appellant

And

THE

STATE Respondent

CORAM: MATHEBULA J et

NEKOSIE AJ

JUDGMENT BY: NEKOSIE, AJ

HEARD ON: 17 MAY 2021

DELIVERED ON: The judgment was handed down electronically by circulation to the parties` legal representatives by email and release to SAFLII on 17 May 2021. The date and time for hand down is deemed to be 17 May 2021 at 12h00.

[1] This is an appeal against sentence in terms of section 309(1) of the Criminal Procedure Act 51 of 1977. The appellant was convicted of two counts of contravention of section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 committed on two minor girls aged 17 years and 14 years respectively.

[2] The appellant was sentenced as was sentenced as follows:

2.1 Count 1: In terms of section 51(2)(b) of the Criminal Law Amendment Act 105 of 1997 to 10 years imprisonment

2.2 Count 2: In terms of section 51(1) of the aforesaid Act to life imprisonment.

2.3 The applicant is unfit to possess a firearm in terms of section 103(1) of the Firearms Control Act 60 of 2000. No order to the contrary was made in terms of section 103(1).

2.4 In terms of section 50 of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 it was ordered that the Appellant`s name be entered into the National Register for Sex Offenders.

[3] The applicant filed his Notice to Appeal out of time and applied for condonation which was unopposed and we granted same. I am satisfied that the appellant has made out a case for the relief sought.

[4] The grounds of appeal upon which the applicant relies are that:

4.1 The Honourable Court erred in finding that there were no substantial and compelling circumstances in order to deviate from the prescribed minimum sentence.

4.2 The appellant's personal circumstances were taken into account however the Honourable Court placed too much emphasis on the prevalence of the offence as well as the interests of the community.

4.3 The Honourable Court erred in not having the sentences in this matter run concurrently and the effect hereof was merely to create a sense of shock and overemphasised the deterrence factor in punishment.

4.4 The appellant was detained prior to his sentence for a period of approximately 8 months and has 3 minor children who are dependent on the appellant, a life sentence with an additional 10 years direct imprisonment will adversely affect these minor children a fact that the Honourable Court did not sufficiently take into consideration.

4.5 The Appellant's name is added to the National Register of sex offenders and thus upon his eventual release from incarceration it will be almost impossible for him to acquire meaningful employment and thus aspects of retribution will continue long after his release from incarceration.

[5] The imposition of an appropriate sentence involves the exercise of a discretion by the sentencing court. An appeal court is not free to interfere with that discretion unless a material misdirection occurred or the sentence is so disproportionate to the crime, interest of the community and the personal circumstances of the offender that it induces a sense of shock.[1] In Director of Public Prosecutions, Kwazulu-Natal v P[2] the Supreme Court of Appeal confirmed the circumstances under which a Court of appeal may interfere with the sentence of a trial court and stated as follows:

‘The test for interference by an appeal Court is whether the sentence imposed by the trial Court is vitiated by irregularity or misdirection or is disturbingly inappropriate. (See S v Rabie.) Even in the absence of misdirection, it would still be competent for this Court to interfere if it were satisfied that the trial Court had not exercised its discretion reasonably and imposed a sentence which was not appropriate.’

[6] In this matter sections 51(1) and 51(2)(b) of the Criminal Law Amendment Act 105 of 1997 (the Act) prescribe minimum sentences for the offences which the appellant has been convicted of. The trial court was therefore compelled in terms of section 51(3)(a) of the Act to enquire into the existence of substantial and compelling circumstances.

[7] The absence of a finding by the trial court that there were substantial and compelling circumstances is the nub of the appeal. We were referred to S v PB[3] to highlight that the approach to an appeal on sentence imposed in terms of the Act should be different to an approach to other sentences imposed under the ordinary sentencing regime because the minimum sentences to be imposed are ordained by the Act. They cannot be departed from lightly or for flimsy reasons therefore the enquiry on appeal is whether the facts which were considered by the sentencing court are substantial and compelling circumstances, or not.

[8] The Court in S v PB supra, with reference to S v Malgas, endeavoured to define what substantial and compelling circumstances are and stated as follows:

‘The most difficult question to answer is always: What are substantial and compelling circumstances? The term is so elastic that it can accommodate even ordinary mitigating circumstances. All I am prepared to say is that it involves a value judgment on the part of the sentencing court. I have, however, found the following definition in S v Malgas (above) para 22 to be both illuminating and helpful:

“The greater the sense of unease a court feels about the imposition of a prescribed sentence, the greater its anxiety will be that it may be perpetrating an injustice. Once a court reaches the point where unease has hastened into a conviction that an injustice will be done, that can only be because it is satisfied that the circumstances of the particular case render the prescribed sentence unjust, or as some might prefer to put it, disproportionate to the crime, the criminal and the legitimate needs of society. If it is the result of a consideration of circumstances the court is entitled to characterise them as substantial and compelling and such as to justify the imposition of a lesser sentence.”'

[9] The question to be answered is whether the sentencing court erred in finding that the circumstances in this matter is not substantial and compelling. Firstly, the personal circumstances of the appellant are examined. The appellant was 29 years of age. He was married and have three minor children depending on him. He was employed as a lecture and earned approximately R4000, 00. He has furthered his studies and obtained a diploma in nursing. He was in custody awaiting trial for approximately eight months. All these factors were considered favourably by the sentencing court.

[10] The aggravating circumstances considered were the fact that the appellant is not a first offender and his previous conviction of robbery is also a violent crime such as the one he has been convicted of.

[11] On the night in question he raped two young girls aged 14 and 17 years respectively. The rapes were committed the same night, a few hours apart. The first victim was threatened with what she thought was a firearm to get her to go with him to his house. When she managed to escape the appellant`s clutches after he inserted his fingers into her vagina, he cunningly deceived the second victim’s grandmother to lure her out of the house. He betrayed the trust shown in him by the grandmother and the victim by taking her out of her parental home to go and rape her. Both the rapes were well planned by the appellant.

[12] In the present circumstances the prescribed minimum sentences is entirely proportionate to the offences. None of the factors advanced by the appellant is such that it warrants deviation from the prescribed minimum sentences.

[13] In regards the second ground of this appeal, that the court erred in not ordering the sentences to run concurrently. Such order is unnecessary because in terms of section 39(2)(a)(i) of the Correctional Services Act 111of 1998 all sentences imposed with life imprisonment run concurrently.

[14] The appeal against sentence consequently stands to be dismissed and I will therefor make the following order:

1. The appeal against the sentence is dismissed.

_____

NEKOSIE,

AJ

I concur

____

MATHEBULA J

For the appellant: S Kruger

Legal Aid South Africa

Bloemfontein

For the Respondent: Adv S M Mthethwa

Office of the Director of Public

Prosecutions: Bloemfontein

[1] S v Malgas 2001(1) SACR 469 at 478 F

[2] Director of Public Prosecutions, Kwazulu-Natal v P 2006 (3) SA 515 (SCA) at 522B

[3] S v PB 2013(2) SACR 533 SCA paragraph 20