S v Nkopane

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: TA Maumela J and CM Sardiwalla J
• Judgment Date: 11 December 2020
• Docket Number: 185/2019
• Hearing Date: 11 December 2020
• Court: North Gauteng High Court, Pretoria
• Citation: 2021 JDR 0151 (GP)

Maumela J:

INTRODUCTION.

1.

This is an appeal against sentence only. The Appellant is Thuntsi Francis Nkopane, a male who was 46 years of age at the time he was arrested. Before the Regional Division of North Gauteng held at Sebokeng, (the court a quo), Appellant who was legally represented was charged with the following two counts.

1.1

Count 1:

Attempted Rape.

Contravening section 3, read with sections 1, 55, 56, 57, 58, 59, 60, 61 and 71 (1), (2), and (6) of the Sexual Offences Act: (Act No 32 of 2007), read with sections 92 (2), 94, 256, 257, and 281 of the Criminal Procedure Act: (Act No 51 of 1977). Attempt to commit a sexual offence.

1.2

Count 2:

Rape.

Rape in contravention of section 3, read with sections 1, 56(1), 57, 58, 59, 60 and 61 of the Sexual Offences and Related Matters Amendment Act 2007: Act No 32 of 2007, read with the provisions of Section 51 and Scheduled 2 of the Criminal Law Amendment Act 1997:(Act No 105 of 1997).

THE ALLEGATIONS.

2.2.1.

In Count 1, the allegations against the Appellant were that during 2016, in Evaton in Gauteng, the accused did unlawfully and intentionally attempt to insert his penis into the vagina of SM, a 10 year-old girl.

2.1

In Count 2, the allegations against the Appellant were that upon or about the 25th of June 2016, and at or near Evaton in the District of Gauteng, the accused did unlawfully and intentionally commit an act of sexual penetration with the complainant to wit, SM, a 12-year-old female.

3.

Before the court a quo, the charges were put. The Appellant understood the charges put. He also understood the implications of section 51 (1) and Schedule 2 of the Criminal Law Amendment

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Act being read with Count 2 where it concerns sentence. The Appellant understood them. After his legal representative consulted with him, he pleaded Guilty to both counts. He submitted a statement encompassing his guilty plea in terms of section 112 (2) of the Criminal Procedure Act. Appellant was convicted on both counts. The age of the victim at the time each of the two offences was committed namely 10 and 12 years of age respectively, was common cause among all parties.

4.

Appellant was sentenced to 15 years' imprisonment on count 1 and life imprisonment on count 2. Appellant is entitled to an automatic right of appeal in terms of the Judicial Matters Amendment Act: (Act No 42 of 2013). This appeal is specifically against sentence.

SUMMARY OF FACTS.

5.

In his statement made in terms of S 112(2) of the Criminal Procedure Act, the Appellant outlined the merits of the case, albeit through his legal representative. Appellant admitted that the complainant, SM, is his stepdaughter and was 10 years old at the time the offence in Count 1 was committed in 2016. On the day of commission, he and the complainant was home alone. They were watching television. He called the complainant to the bedroom and instructed her to take off her panty. He admitted that he then attempted without success to insert his penis inside her vagina. Failing to penetrate her, stopped and both of them put their clothes on.

6.

On Count 2, Appellant admitted that on the 25th June 2018, he had sexual intercourse with the complainant who was 12 years old at the time. He stated that on that day, he was home alone with the complainant while the latter's mother had gone to Sharpeville. He stated that he carried the complainant to the bedroom where he took off her jeans pants and panty. He then took off his trouser and underwear. He admitted that he wore a condom and then

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inserted his penis inside complainant's vagina and he had sexual intercourse with her without her consent. After he had sexual with her, the complainant who was crying, put on her clothes and dashed to the neighbour's house where she reported what had happened to her. The applicable J88, as well as the complainant's birth certificate were handed in by consent as exhibits.

7.

Given the nature of the offences committed, the circumstances of the Appellant and the interests of the society, the court is to determine the appropriateness of the sentences imposed by the court a quo on the Appellant. It is trite that appellate courts do not enjoy a free hand with which to interfere with sentences imposed by lower courts. They have to take into regard the offences of which the appellants stand convicted, the interests of the accused and the interests of the community. In doing so, they have to look closely at the sentences imposed upon the appellants. They then have to contrast that with the offences committed, the personal circumstances of the appellants and...