S v Mathonsi

• Jurisdiction: South Africa
• Judge: Lamont J
• Judgment Date: 18 August 2020
• Docket Number: A2/2020
• Hearing Date: 18 August 2020
• Court: Gauteng Division, Pretoria
• Citation: 2020 JDR 1771 (GP)

Lamont J:

[1]

The appellant was convicted on a charge of contravening Section 3 of the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007 (rape),

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read with the provisions of section 51(1) of Criminal Law Amendment Act 105 of 1997 in the Regional Court sitting in Benoni on 7 August 2019.

[2]

He pleaded guilty to raping his stepdaughter who is mentally disabled in Section 1 of the Mental Health Act 18 of 1973.

[3]

The appellant was sentenced life imprisonment on 25 September 2019.

[4]

The appellant was legally represented during the trial.

[5]

This is an automatic appeal in terms of Section 309(1) of Act 51 of 1977 Criminal Procedure Act.

[6]

The appellant appeals against the sentence.

SENTENCE:

[7]

The rape of the complainant falls under Section 51 (1) of the Criminal Law Amendment Act 105 of 1997 on the basis that the complainant is defined '(b)(iii) is a person who is mentally disabled as contemplated" as in section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007 and the minimum sentence prescribed applies unless there are substantial and compelling grounds justifying deviation from it.

[8]

The appellant was aware that the provisions of Section 51(1) of the Criminal

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Law Amendment Act 105 of 1997 were applicable. The provisions are in the charge sheet and were explained to him by the magistrate. [1]

[9]

As stated in S v Malgas 2001 (2) SACR 469 (SCA) at P 481 to 482,

"the specified sentences are not to be departed from lightly and for flimsy reason, speculative hypotheses favorable to the offender undue sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy underlying the legislation, marginal differences in personal circumstances or degrees of participation between co-offenders are to be excluded."

[10]

In S v Kibido 1998 (2) SACR 214 (SCA) at P 216 G-H, it was stated that:

"it is trite law that the determination of a sentence in a criminal matter is pre-eminently a matter for the discretion of the trial court. In the exercise of this function, the trial court has a wide discretion in:

(a)

deciding which factors should be allowed to influence the court in determining the measure of punishment and

(b)

in determining the value to attach to each".

[11]

In S v Rabie 1975 (4) SA 855(A) at P 857 D-E, it was decided as follows:

"In every appeal against the sentence, whether imposed by the Magistrate or a judge, the Court hearing the appeal:-

(a)

should be guided by the principle that punishment is pre-eminently a matter for the discretion of the trial Court and

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(b)

should be careful not to erode such discretion: hence the further principle that the sentence should only be altered if the discretion has not been judicially and properly exercised. The test under (b) is whether the sentence is vitiated by irregularity or by misdirection or is disturbingly inappropriate".

[12]

In my view the trial court took all the relevant factors into consideration in imposing an appropriate sentence. It considered the crime, the appellant, society, deterrence, retribution and whether there were circumstances justifying a lesser punishment than the minimum.

[13]

The sentence imposed is commensurate with the gravity of the offence and does not in any way evoke a feeling of shock.

[14]

Rape is a serious offence. In S v Mosethla2014 JDR 1282 (GP) at P10, the court held that rape is a horrendous crime that mars our society.

[15]

Rape is prevalent in the whole country. There was a relationship of trust between the appellant and the complainant. The appellant was the...