Seitshili (Seitshiro) v S (A21/2009) [2011] ZAFSHC 143 (1 September 2011)
- Citation
- [2011] ZAFSHC 143
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- Van Zyl, Mathebula
- Case number
- A21/2009
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- Van Zyl, Mathebula
- Case number
- A21/2009
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The appeal court found that the trial court failed to properly consider the lengthy period the appellant spent in custody awaiting trial and did not adequately balance the gravity of the offence, the interests of society, and the appellant's personal circumstances. The omission of these factors constituted a misdirection, rendering the sentence of life imprisonment shockingly inappropriate. The appeal court held that substantial and compelling circumstances existed, justifying a lesser sentence. Accordingly, the sentence of life imprisonment was set aside and replaced with twenty years' imprisonment, backdated to the original sentencing date.
Court disposition
Appeal against sentence upheld; conviction confirmed; sentence of life imprisonment set aside and replaced with twenty years' imprisonment.
Orders
- The conviction is confirmed.
- The sentence is set aside.
- The sentence of life imprisonment is substituted with twenty (20) years imprisonment.
- The substituted sentence shall be deemed to have been imposed on 4 June 2008.
02
Material facts
Parties
Meshack M Seitshili (Seitshiro)
Appellant Counsel: J.D. ReynekeThe State
Respondent Counsel: StraussAmounts and remedies
- Period Spent in Custody Awaiting Trial (years): 3.33
- Substituted Sentence (years Imprisonment): 20
03
Procedural history
Posture
Criminal Appeal / Appeal Against Conviction and Sentence
04
Questions and positions
Legal issues
- 01
Whether the sentence of life imprisonment imposed by the trial court was shockingly inappropriate and justified interference by the appeal court.
- 02
Whether the trial court failed to consider substantial and compelling circumstances, including the lengthy period of pre-trial incarceration.
- 03
Whether the interests of society, gravity of the offence, and personal circumstances of the appellant were properly balanced.
Party arguments
- Applicant
- Counsel for the appellant conceded the conviction was proper but argued the sentence was shockingly inappropriate. He submitted that the appellant had diminished criminal capacity at the time of the offence and had spent three years and four months in prison awaiting trial. He questioned the impact of the incident on the complainant, noting she had also suffered abuse from her stepfather and was now in a place of safety. He argued the trial court failed to balance societal interests, the offence, and the appellant's personal circumstances.
- Respondent
- State counsel conceded the trial court erred by not finding substantial and compelling circumstances and agreed the sentence was inappropriate. He specifically argued that the lengthy period of pre-trial incarceration was not properly considered by the trial court.
05
Court’s reasoning
Legal principles
- 01
S v Pieters 1987 (3) SA 717 (A) at 727 F-H; S v Whitehead 1970 (4) SA 424 (A) at 435 D
An appeal court will interfere with sentence if there is a striking disparity between the sentence imposed and that which it would have imposed as a court of first instance, particularly if the sentence is shockingly inappropriate.
- 02
S v Stephen and Another 1994 (2) SACR 163 (W) at 168E-G
Imprisonment whilst awaiting trial is the equivalent of a sentence of twice that length.
- 03
Rammoko v Director of Public Prosecutions 2003 (1) SACR 200 (SCA) at 205C-D; S v Abrahams 2002 (1) SACR 716 (SCA)
Life imprisonment for rape should be reserved for cases devoid of substantial and compelling factors making such a sentence inappropriate and unjust.
06
Ratio, limits and disposition
Ratio decidendi
The appeal court found that the trial court failed to properly consider the lengthy period the appellant spent in custody awaiting trial and did not adequately balance the gravity of the offence, the interests of society, and the appellant's personal circumstances. The omission of these factors constituted a misdirection, rendering the sentence of life imprisonment shockingly inappropriate. The appeal court held that substantial and compelling circumstances existed, justifying a lesser sentence. Accordingly, the sentence of life imprisonment was set aside and replaced with twenty years' imprisonment, backdated to the original sentencing date.
Obiter and limits
- Vulnerable members of society must be protected against offenders such as the appellant, but this must be done within the dictates of the law.
- The seriousness of the crime warrants a lengthy period of imprisonment, but the interests of justice require proper consideration of all relevant factors.
Court disposition
Appeal against sentence upheld; conviction confirmed; sentence of life imprisonment set aside and replaced with twenty years' imprisonment.
- The conviction is confirmed.
- The sentence is set aside.
- The sentence of life imprisonment is substituted with twenty (20) years imprisonment.
- The substituted sentence shall be deemed to have been imposed on 4 June 2008.
Source and reliance status
Free State High Court, Bloemfontein
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Judgment
FREE STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A21/2009
In the appeal between:-
MESHACK M SEITSHILI (SEITSHIRO) …................................Appellant
and
THE
STATE ….......................................................................Respondent
_____________
CORAM: VAN ZYL, J et MATHEBULA, AJ
HEARD ON: 15 AUGUST 2011
DELIVERED ON: 1 SEPTEMBER 2011
JUDGEMENT BY: MATHEBULA, AJ
[1] The appellant was tried in the Bloemfontein Regional Court in connection with a rape of a minor child. He was convicted and sentenced to life imprisonment. He is now approaching the court on appeal against both conviction and sentence.
[2] On his behalf, Mr Reyneke conceded that the conviction was in order and made no submission in that regard. I agree with his concession. His submission was that the sentence is shockingly inappropriate and that the court must interfere with it. He referred to the diminished criminal capacity of the appellant at the time of the commission of the offence. He also referred to the time that the appellant spend in prison as an awaiting trialist. The period was three (3) years and four (4) months.
[3] He also referred to the doubt regarding the impact or effect that the incident had on the complainant. It appears that the complainant was also sexually abused by her stepfather and was now accommodated at a place of safety. His submission was that the court a quo did not strike a balance between the interests of society, the offence and personal circumstances of the appellant.
[4] The state counsel, Mr Strauss conceded that the court a quo erred in not finding substantial and compelling circumstances. It was his submission that the sentence was shocking and inappropriate. In particular the court erred in not taking into account the lengthy period that the appellant had been incarcerated while awaiting trial.
[5] It is within the discretion of the trial court to impose sentence. The court of appeal will not lightly interfere with the sentence imposed. However it will undoubtedly interfere if there is a striking disparity between the sentence imposed and that it will have imposed seating as a court of first instance. In essence it will interfere if the sentence is shockingly inappropriate. See S v PIETERS 1987 (3) SA 717 (A) at 727 F-H and S v WHITEHEAD 1970 (4) SA 424 (A) at 435 D.
[6] The appellant did spend a lengthy period in custody. In S v STEPHEN and ANOTHER 1994(2) SACR (W) on 168E - G, Schultz J and the following:-
“Imprisonment whilst awaiting trial is the equivalent of a sentence of twice that length….”
The court in RAMMOKO v DIRECTOR OF PUBLIC PROSECUTIONS 2003 (1) SACR 200 SCA at 205C - D per Mpati JA (as he then was) said the following:-
“This court observed in S v ABRAHAMS 2002(1) SACR 716 SCA some rapes are more than others and the life sentence ordained by the legislature should be reserved for cases devoid of substantial
factors compelling the conclusion that such a sentence is inappropriate and unjust”
[7] In this matter the court a quo did not give sufficient consideration to these aspects. The issue of his lengthy incarceration is not mentioned at all. At the same level the objective gravity of the crime is not given appropriate attention. The court a quo considered the heinous nature of the offence and it was on that basis that she imposed the life imprisonment. The failure to strike a proper balance of all the factors renders the sentence inappropriate and shocking. I am at liberty to interfere. The appellant deserves to be sentenced to a lengthy period of imprisonment. The society expects nothing less because of the seriousness of the crime he committed. It has been repeatedly been affirmed by our courts that vulnerable members of our society must be protected against the appellant and his ilk. In the final analysis that must be done within the dictates of the law.
[8] I make the following order:-
The conviction is confirmed.
The sentence is set aside
The sentence of life imprisonment is substituted with twenty (20) years imprisonment.
The aforegoing sentence shall be deemed to have been imposed on the 4th June 2008
_______
M.A. MATHEBULA, AJ
I agree.
____
C. VAN ZYL, J
On behalf of appellant: Mr. J.D. Reyneke
Attorney for appellant
Instructed by:
Bloemfontein Justice Centre
Legal Aid SA
BLOEMFONTEIN
On behalf of respondent: Adv. Strauss
Instructed by:
Director of Public Prosecutions
MAM/sp
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