S v Mnguni
| Jurisdiction | South Africa |
| Judge | C Reinders J and R Matthews AJ |
| Judgment Date | 31 October 2019 |
| Docket Number | A100/2019 |
| Hearing Date | 28 October 2019 |
| Court | Free State Division, Bloemfontein |
Matthews AJ:
This is an appeal against a sentence of life imprisonment imposed by the Regional Court in Kroonstad in terms of section 51(1) of the Criminal Law Amendment Act 105 of 1997 ("Act 105
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of 1997"). The grounds of appeal relied upon by the Appellant can be summarised as follows: the sentence of life imprisonment is shockingly inappropriate in relation to the facts in mitigation (especially the lack of evidence indicating serious and lasting injuries to the complainant), and the lack of sentencing jurisdiction of the trial court to have imposed life imprisonment due to the omission of subsection one (1) in the charge sheet which refers merely to section 51 of the Criminal Law Amendment Act 105 of 1997.
Background:
The salient facts of the case are that two young girls were walking with their elder cousin. Appellant offered the complainant (who was 13 years old at that time) some alcohol, which she refused. Hereafter he led the girls to some trees and told the complainant that he wants to teach her something. He told the other young girl to hide herself and she subsequently ran away. He proceeded to forcefully rape the complainant until he was interrupted by her uncle who arrived at the scene. The medical report (J88) indicates that the complainant had never had sex before and that her hymen was torn. The social worker's report states that the complainant's school work has not been affected but she did suffer from nightmares soon after the incident and had complained of stomach pains. Her eating habits were also adversely affected and she is still scared of men, except her father. The Appellant conceded having had sexual intercourse with the complainant and based his defence on consent.
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The trial court found the Appellant guilty of having contravened section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 ("Act 32 of 2007") read with the provisions of section 51 of Act 105 of 1997, and sentenced the Appellant to life imprisonment in terms of section 276 (1)(b) of the Criminal Procedure Act 51 of 1977.
In sentencing the Appellant, the trial court took into consideration that he was a first offender at the age of 25 years; married and the father of a 4 year old son, who is cared for by the parents of the accused as his wife is still attending school; and at the time of his arrest he was employed at a construction company, earning a salary of R2500 per month.
In aggravation the court held that the offence was a serious one, committed upon a child, and a crime which occurred frequently in the court's jurisdiction.
The court found that there were no substantial and compelling circumstances to deviate from the minimum sentence and imposed the prescribed period of life imprisonment in terms of section 276(1)(b) of act 51 of 1977. In terms of section 103 Act 60 of 2000 the Appellant was declared unfit to obtain a licence for a fire arm, his name was entered into the register for Sexual Offenders and he was declared a person considered to be unfit to
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work with children in terms of section 120(4) of the Children's Act 38 of 2005
It is trite law that a court on appeal may only interfere with a sentence on appeal, if the sentencing court materially misdirected itself or the disparity between its sentence and the one which this court would have imposed had it been the trial court, is 'shocking', 'startling' or 'disturbingly inappropriate [1] . A good example would be where the court placed too much weight on the seriousness of the offence and too little on the personal circumstances of the accused [2].
The omission in the charge sheet:
Ms Kruger, appearing on behalf of the Appellant, argued that the failure to include the specific subsection of section 51 of Act 105 of 1997 was a fatal flaw in the charge sheet, which rendered it sufficiently vague and unfair to the accused. It was submitted that the charge sheet could have been interpreted in more than one way with reference to section 51 of Act 105 of 1997. It was averred that the state erred in not distinguishing between its reliance on either section 51(1) or section 51(2) of the Act and that if the charge sheet is not...
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