S v Nakedi
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | RD Hendricks DJP and PL Nobanda AJ |
| Judgment Date | 07 May 2020 |
| Docket Number | CA 36/2019 |
| Hearing Date | 26 March 2020 |
| Court | North West High Court, Mafikeng |
| Citation | 2021 JDR 1440 (NWM) |
Hendricks DJP:
Introduction:
Mr. Kagiso Stoffel Nakedi (appellant) was charged with the offences of robbery with aggravating circumstances (count 1) and rape (count 2) in the Regional Court, Swartruggens. On 15 March 2016 the appellant pleaded guilty to both counts and was consequently convicted on both counts. On count 1 he was sentenced to (15) years imprisonment and on count 2 to ten (10) years imprisonment. It was ordered that the two sentences should not run concurrently but must be served consecutively, meaning that an effective term of imprisonment of twenty-five (25) years must be served by the appellant. He was also declared unfit to possess a fire-arm. On 27 November 2018, an application for leave to appeal against the sentence was made on behalf of the appellant, in the court a quo. Leave to appeal was granted to the Full Bench consisting of two
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judges of this Division; hence this appeal. The appeal was enrolled and set down for 26 March 2020.
An application for condonation for the late noting and prosecution of the appeal was made on behalf of the appellant/applicant. Having read the application for condonation and the documents filed in support thereof, the requisite condonation was granted.
Background:
The following facts appear from the plea explanation of the appellant in terms of Section 112 (2) of the Criminal Procedure Act 51 of 1977, as amended, which was accepted by the State as a true reflection of the facts of this matter. On 23 November 2014 the appellant was at Westershoek farm, Swartruggens. He went to the house of the complainant, Ms. E[…] L[…] R[…], who was by then an 82 year old woman. He demanded money from her, which she gave him. He also took a Nokia cellular phone, a cellular phone charger and cable, a laptop computer and binoculars, which he put into a schoolbag. He admitted that he used force and threatened the complainant when he took these items from her.
After robbing the complainant of her possessions, he then decided that he wanted to have sex with her. He told her to go and lie on the bed. She went and sat on the bed. He told her to undress but she did not respond. She was very scared. He then lifted her dress up and pulled down her panty. He then undressed his trouser and pushed her to lie down. He inserted his penis into her vagina and had sexual intercourse with her without her consent until he ejaculated. Thereafter, he tied her hands and feet so that she could not go and ask for help. He then took the schoolbag and left. The appellant admitted all the
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elements of both the offences of robbery with aggravating circumstances and rape and was correctly convicted on both counts.
The Sentence:
In mitigation of sentence, the appellant testified that he was 31 years of age and unmarried. He is the father of one minor child aged 9 years, who is staying with her mother at the mother's parental home. The mother of his child is unemployed. He was arrested on the same day of the commission of the offences and was incarcerated ever since. Before his arrest, he was doing paintwork earning R75.00 per day, which he used to support his minor child. He attended school up to Grade 11 but had to drop out due to financial constraints. He is a first offender. During cross-examination he admitted that the complainant is an elderly lady. Furthermore, that the State had a strong case against him in that he is positively linked through DNA and he had no choice but to plead guilty. He also stated that he is not remorseful for what he did. All the items were recovered upon his arrest.
The aggravating features are that these offences were perpetrated against an 82 year old elderly woman, who is a vulnerable member of society. She was alone in the safety and sanctity of her home, when she was accosted by the appellant. These are serious offences for which the legislature has ordained minimum sentences of 15 and 10 years respectively.
The Regional Magistrate in imposing sentence found that there are no substantial and compelling circumstances present that justify a deviation from imposing the prescribed minimum sentences. Therefore on count 1, the count of robbery with aggravating circumstances, the appellant was sentenced to undergo 15 years imprisonment in terms of Section 51 (2) of Act 105 of 1977,
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and on count 2, the count of rape, to 10 years imprisonment also as contemplated in terms of Section 51 (2) of Act 105 of 1977. It was further ordered that the sentence should not run concurrently meaning that the effective sentence is 25 years imprisonment.
The application for leave to appeal.
As alluded to earlier, an application for leave to appeal was made. In the judgment on leave to appeal, the Regional Magistrate states the following:
"The only aspect which the court did not consider is the provisions of Section 280 (2) of Act 51 of 1977, because the court simply said sentences not...
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