Director of Public Prosecutions, Free State v Mokati

• Jurisdiction: South Africa
• Citation: 2022 (2) SACR 1 (SCA)

Director of Public Prosecutions, Free State v Mokati
2022 (2) SACR 1 (SCA)

2022 (2) SACR p1

Citation	2022 (2) SACR 1 (SCA)
Case No	440/2019
Court	Supreme Court of Appeal
Judge	Makgoka JA, Mabindla-Boqwana JA, Kgoele AJA, Phatshoane AJA and Unterhalter AJA
Heard	September 29, 2021
Judgment	March 25, 2022
Counsel	JM de Nysschen for the appellant.; PL van der Merwe for the respondent, instructed by Legal Aid South Africa, Bloemfontein.; SJ Reinders (with Adv Nkhahle) for the amicus curiae.

Flynote : Sleutelwoorde

Appeal — By Director of Public Prosecutions — Against too lenient sentence by High Court — State not permitted to seek reversal of findings having bearing on conviction without having sought leave to appeal against conviction through reservation of point of law — Even if leave to appeal granted against sentence generally, that not extending to issues falling within ambit of conviction.

Sentence — Prescribed minimum sentence — Imposition of in terms of Criminal Law Amendment Act 105 of 1997 — Imposition of sentence higher than prescribed minimum — Court entitled on appeal to increase severity of sentence in appropriate circumstances — In casu, accused convicted of rape and previous conviction suggesting propensity to violence — Crime meticulously planned and committed three days after being released on parole — Sentence of 10 years' imprisonment shockingly inappropriate, and replaced with sentence of 18 years' imprisonment.

Headnote : Kopnota

The respondent was convicted in the High Court of rape and robbery with aggravating circumstances, for which he was sentenced to 10 and 15 years' imprisonment, respectively. He was acquitted on a count of murder. It was ordered that five years of the rape sentence would be served concurrently with the sentence for robbery. The Director of Public Prosecutions appealed against the sentence imposed on the respondent for rape. It also reserved certain questions of law in terms of s 319 of the Criminal Procedure Act 51 of 1977 (the CPA), in respect of the acquittal of the respondent on the count of murder, contending that the competent verdict of culpable homicide ought to have been returned.

The respondent cross-appealed against his conviction and sentence in respect of the rape and robbery counts. The trial court found that he had entered an

2022 (2) SACR p2

attorney's office after working hours, found the deceased complainant at her workplace, raped her in various positions, including anally, and had then taken her belongings, namely a cellphone, a laptop computer, a tablet computer and accessories. It further found that the rape was a single continuous act which fell within the purview of s 51(2)(b) of the Criminal Law Amendment Act 105 of 1997 (the CLAA). No substantial and compelling circumstances were found warranting deviation from the prescribed minimum sentences. The court also found that the deceased had been on a contraceptive pill for a year prior to the incident, and after the rape she was prescribed other drugs to which she did not respond well and experienced severe nausea which resulted in dehydration. The doctors who initially treated her added further medication which worsened her condition, and she later visited a district hospital where a doctor prescribed a different ARV regimen. Her condition worsened until she died 15 days after the rape. The state contended that the respondent should be held responsible for her death because, had he not raped her, she would not have had to take the ARV.

In respect of the questions of law reserved by the state, the court, per Phatshoane AJ (Mabindla-Boqwana JA and Unterhalter AJA concurring), held that the questions were not questions of law and there was a deficient factual basis underpinning the supposed points of law. The stated questions were, in truth, questions of fact, and the trial court had erroneously granted leave in this regard. The state's appeal on this ground therefore had to fail. (See [21].)

In respect of the respondent's cross-appeal against the conviction on the rape and robbery counts, the court held that the trial court had been correct in convicting the respondent on those two counts (See [9].)

In respect of the appeal and cross-appeal against sentence, the chief ground of appeal raised by the state was that the trial court had erred in finding that the deceased was only raped once and had not been raped anally. Based on the trial court's conclusion that the rape was 'one continuous act in different positions' it found the respondent guilty on only one count. The state's ground of appeal that there had been multiple acts of rape was, however, not competently placed before the court for re-evaluation. Its contentions on this score had a bearing on the respondent's conviction and no appeal by the state lay against that part of the judgment. It was impermissible for the state, on an appeal against the sentence, to seek a reversal of the trial court's finding on issues having a bearing on the conviction without having sought leave to appeal against the conviction through a reservation of a point of law on them. Even though the trial court granted the state leave to appeal against the sentence generally, that did not extend such leave to issues which fell within the ambit of the respondent's conviction. Therefore, it was not open to the court to re-evaluate whether there had been multiple acts of rape in the present case, and to hold otherwise would lead to manifest prejudice to the respondent. (See [26] – [28].)

The complete disregard of anal penetration by the trial court did not accurately reflect the recorded evidence, which was lamentable, given that this would be an aggravating issue. Non-consensual anal penetration of women and young girls constitutes a form of violence against them, equal in intensity and impact to non-consensual vaginal penetration, but the court was bound by the findings made by the trial court on this point. (See [32].)

Held, further, that rape was undoubtedly a serious offence which invaded the dignity, sexual autonomy and privacy of its victims. The respondent had graduated into being a menace to society and committed the offences three days following his release on parole. He had a previous conviction for

2022 (2) SACR p3

assault with intent to do grievous bodily harm, which suggested that he had a propensity to violence. The High Court found that the respondent had meticulously planned his offence and the overwhelming expert evidence adduced provided an adequate measure of the deleterious effects that the offence had upon the deceased, and had evoked ongoing severe psychological and physical distress on the once industrious and perfectly healthy 21-year-old woman until her death. This signified the gravity of the offence, which ought to have been accorded sufficient weight by the trial court (See [34] – [37].)

Held, further, that the fact that the law prescribes minimum sentences did not prevent the court, in appropriate circumstances, from imposing a more severe sentence. The legislature had deliberately left it to the courts to decide whether the circumstances of any particular case called for a departure from the prescribed sentence in view of the obvious injustice implicit in an obligation to impose only the prescribed sentence in any given circumstances. If the trial court had imposed the minimum sentence in terms of the CLAA, an appellate court might still determine whether the minimum prescribed sentence was disturbingly inappropriate, and accordingly determine the appropriate sentence where the minimum sentence imposed was grossly disproportionate. In the present case, the minimum sentence imposed was disturbingly inappropriate and markedly out of kilter with the sentence the court would have imposed. A sentence of 18 years' imprisonment would best serve all the objectives of punishment. (See [44], [46] – [47] and [53].)

In a minority judgment, per Makgoka JA (Kgoele AJA concurring), the court disagreed with the substituted sentence, and after considering a sample of cases held that a sentence of 18 years' imprisonment was totally disproportionate and therefore not constitutionally compliant. Comparatively, it was also far heavier than the sentences imposed in more aggravating circumstances. Furthermore, there was no juridical basis to interfere with the sentence imposed by the trial court. (See [92] – [93].)

Cases cited

Director of Public Prosecutions, Transvaal v Venter 2009 (1) SACR 165 (SCA) ([2008] 4 All SA 132; [2008] ZASCA 76): dictum in para [19] applied

Director of Public Prosecutions, Natal v Magidela and Another 2000 (1) SACR 458 (SCA) ([2000] 2 All SA 337; [2000] ZASCA 4): dictum in para [9] applied

Director of Public Prosecutions, Western Cape v Schoeman and Another 2020 (1) SACR 449 (SCA) ([2019] ZASCA 158): dictum in para [39] applied

Maake v Director of Public Prosecutions 2011 (1) SACR 263 (SCA) ([2011] 1 All SA 460; [2010] ZASCA 51): referred to

Masiya v Director of Public Prosecution, Pretoria and Another (Centre for Applied Legal Studies and Another, Amici Curiae) 2007 (2) SACR 435 (CC) (2007 (5) SA 30; 2007 (8) BCLR 827; [2007] ZACC 9): dictum in para [37] applied

S v Coetzee 1977 (4) SA 539 (A): applied

S v Coetzee 2010 (1) SACR 176 (SCA) ([2010] 2 All SA 1; [2009] ZASCA 134): referred to

S v Cwele and Another 2013 (1) SACR 478 (SCA) ([2012] 4 All SA 497; [2012] ZASCA 155): referred to

S v De Beer (SCA case No 121/2004, 12 November 2004): referred to

S v Delport and Others 2015 (1) SACR 620 (SCA) ([2015] 1 All SA 286; [2014] ZASCA 197): dictum in para [41] applied

2022 (2) SACR p4

S v Dodo 2001 (1) SACR 594 (CC) (2001 (3) SA 382; 2001 (5) BCLR 423; [2001] ZACC 16): referred to

S v Fifana and Others [2008] ZAGPHC 326: compared

S v Fraser 1987 (2) SA 859 (A): referred to

S v Hadebe and Others...