S v Mahomotsa

• Jurisdiction: South Africa
• Judge: Marais JA, Cameron JA and Mpati JA
• Judgment Date: 31 May 2002
• Citation: 2002 (2) SACR 435 (SCA)
• Docket Number: 85/2001
• Hearing Date: 04 March 2002
• Counsel: C A van der Merwe for the appellant. G J M Wright for the respondent.
• Court: Supreme Court of Appeal

Mpati JA:

[1] The respondent was arraigned before the regional court sitting at Puthaditjhaba on two counts of rape. He was undefended. Despite his pleas of not guilty he was convicted as charged. I shall, I for convenience, refer to the respondent as 'the accused'. The offences were committed on 7 June 1998 and 11 August 1998 respectively, after the Criminal Law Amendment Act 105 of 1997 (the Act), which provides for minimum sentences for certain specified offences, came into effect on 1 May 1998. J

Mpati JA

In convicting the accused the regional magistrate found as a fact that he (the accused) A had had non-consensual sex with each of the two complainants more than once. In terms of s 51(1) of the Act the mandatory sentence in such circumstances is imprisonment for life, unless 'substantial and compelling circumstances' exist that justify the imposition of a lesser sentence (s 51(3)(a)). B

[2] After the accused and the State prosecutor had addressed the regional magistrate on sentence (the accused's address was very brief, as would be expected from an undefended and unsophisticated accused) the magistrate came to the conclusion 'dat hier nie omstandighede is wat die Hof noop om 'n ander vonnis op te lê as wat voorgeskryf word in art 52(1) nie'. The accused was accordingly committed for sentence C in the High Court (Orange Free State Provincial Division). Having heard the evidence of a probation officer and argument on behalf of the accused, who was now legally represented, and the State, Kotze J concluded that 'substantial and compelling circumstances' were present. He therefore sentenced the appellant to six years' imprisonment on the first and ten years' imprisonment on the second D count and ordered that the sentence imposed on count one run concurrently with the sentence on count two.

[3] Approximately two months after sentencing and on 2 September 1999 (the sentences were imposed on 30 June 1999) the State filed a notice of application for leave to appeal to this Court against the sentences imposed by the Court a quo. E Condonation of the late filing of that notice was also sought. The applications were argued before Kotze J on 26 November 1999. Regrettably the learned Judge died before he could make his ruling, but leave was subsequently granted by Malherbe JP.

[4] The regional magistrate's factual findings were not challenged. The facts upon which the accused was convicted were the F following. At approximately five in the afternoon of 7 June 1998 the complainant in the first count was walking home from church when she met the accused, who was heading in the opposite direction. He grabbed her and pulled her to his parental home, which was nearby. The complainant resisted, cried and shouted for help but no one came to her G rescue. The accused threatened her with what appeared to her to be a firearm. She was shocked and feared that she might be injured. The accused succeeded in forcing her to his room where he ordered her to lie down on a bed and to take off her clothes. When she refused to do so he removed her skirt and panties. He thereafter forcefully had full H sexual intercourse with her without her consent. Later, the accused left his room and when he returned he again had sexual intercourse with her without her consent. At one stage he slapped her and kicked her. He again left her in the room. On these occasions he locked the door from outside with a padlock. When he returned at night he washed himself, I forced her to sleep in his room and had sexual intercourse with her without her consent for the third time. The next morning, a Monday, he once again had sexual intercourse with her against her will.

[5] During the early evening on the Monday she saw one Magweng Jack J

Mpati JA

Mohlape (Magweng) through a window. She called out to him for help. She asked him to send one Sylvia to tell her parents that she was A being held captive by the accused. When Magweng went to knock on the door of the accused's room he told him in no uncertain terms that 'jy steek nie jou neus in my sake nie'. Magweng then proceeded to the complainant's home where he made a report to her parents. According to the complainant when Magweng left the accused's room the accused B assaulted and insulted her. After Magweng had made the report to the complainant's parents, he accompanied them so as to show them where the accused lived. Upon their arrival at the accused's room the accused was still insulting the complainant, who was crying. When they knocked on his door the accused, in an aggressive mood, appeared with a firearm (or what appeared to be one) in his hand. A scuffle broke out C between him and the complainant's father. The complainant seized the opportunity and ran out of the room.

[6] On 11 August 1998 and during the school break at approximately eleven o'clock in the morning the complainant in the second count was on her way home, accompanied by another girl, when the D accused, who was unknown to her, grabbed her. He requested her to accompany him. When she refused to do so he drew a knife and threatened her with it. He accused her of spreading rumours about him. He pulled her to his parental home, where he ordered her to sit on a bed in his room, whereafter he removed her panties, pinned her down onto the bed E and had sexual intercourse with her without her consent. Having satisfied his lust he stood up and swept the floor of the room, whereafter he again had non-consensual sex with her, making rude remarks about her private parts. She managed to run out of the room when the accused's friends arrived some time later. F

[7] In the charge sheets both complainants were alleged to be 15 years old at the time of their ordeals. At the trial both testified that they were 15 years old. The regional magistrate accepted their ages as alleged by them. Kotze J found that the magistrate had erred in this regard since the ages of the complainants 'was glad nie behoorlik bewys nie'. He held that both the prosecutor and magistrate had never G given attention to the issue.

[8] This finding by the Court a quo was not challenged before us. It is, however, of no significance in this case for purposes of ascertaining whether the crimes or any one of them falls...