S v Nongingi

• Jurisdiction: South Africa
• Judge: Mthembu AJ
• Judgment Date: 16 May 2008
• Docket Number: 55/2008
• Court: Transkei Division
• Hearing Date: 16 May 2008
• Citation: 2008 JDR 0624 (Tk)

Mthembu AJ:

[1] The accused in this matter was convicted in the Regional Court, Lusikisiki, on one count of rape of B, a female 13 years old.

[2] As the accused was convicted of an offence referred to in Part 1 of Schedule 2 the matter was, consequently, referred to this Court in terms of the provisions of Section 52 (1)(b) of the Criminal Law Amendment Act, 105 of 1997 (the Act) for sentence.

[3] In terms of the provisions of the aforesaid Act, unless I am able to find that substantial and compelling circumstances exist as envisaged in Section 51 (3)(a) of the Act, I am obliged to impose the prescribed minimum sentence, which, in this case, is imprisonment for life.

2008 JDR 0624 p2

Mthembu AJ

[4] As I am bound to do in terms of the provisions of Section 52 (3) of the Act, I have considered the record of trial proceedings in the Regional Court in order to determine whether such proceedings were in accordance with justice.

I have listened to arguments submitted by both Counsel for the state and Counsel representing the accused as to whether they are able to point to any feature or other factor in this case which could source a doubt as to whether such proceedings were in accordance with justice.

Neither has been able so to do and indeed Counsel for the accused conceded right at the outset of the proceedings in this Court that there are no basis on which I could find that the proceedings were not in accordance with justice.

The view I take of the matter in its totality and in particular the opinion I have formed, in accordance with the provisions of the aforementioned Section, is that the proceedings were in accordance with justice.

PERSONAL CIRCUMSTANCES

[5] The accused testified in mitigation of sentence and submitted factors set out below as his personal circumstances.:

That he is 22 years old - the Court drew Counsel's attention at that point, to a portion of the charge sheet which reflects his age as 27 years.

His highest standard of education is standard 2, he did not know the year he passed standard 2. Both of accused parents are alive. Accused comes from a family of 11 children,

2008 JDR 0624 p3

Mthembu AJ

2 of whom are deceased,

2 younger brothers are still at school,

2 other boys are employed,

2 girls are married, and

1 girl is employed as a domestic worker at Lusikisiki;

Accused is the 5th child in the line of birth within his family.

[6] Before arrest the accused was employed at Illovo Sugar Millling Company, Tongat, as a labourer, earning a salary of R1 600.00 per month inclusive of extra hours or sometimes R1200.00 excluding extra hours. Accused dropped out of school to undertake a task to herd livestock mainly because his parents could not afford funds to pay school fees and related expenses. Accused is single and has a 2 year old daughter, who has always been in the custody of his fiancé.

Accused testified that he is remorseful and realizes that he did, "Something I am not supposed to do," and that on the afternoon day of the incident he drank a bottle of stout and brandy and got drunk.

Accused was arrested on 4th November 2004, released on bail in January 2005, convicted and remanded in custody, pending adjudication by this Court on the question of sentence, as from 12 July 2007 to date.

[7] It appears that cross examination of the accused by Counsel for the state, elicited nothing of note which either detracted from or contradicted his personal circumstances.

2008 JDR 0624 p4

Mthembu AJ

SUBSTANTIAL AND COMPELLING CIRCUMSTANCES

[8] Counsel representing the accused, Mr. Kekana, submitted that there are substantial and compelling circumstances which justify the imposition of a lesser sentence than the sentence prescribed for offences falling within the purview of Part 1 of Schedule 2 of the Act.

With regard to the question of substantial and compelling circumstances Counsel only emphasized the youthfulness of the accused, at 22 years old and that he is a first offender.

[9] In arguing that substantial and compelling circumstance exist in this matter, Mr. Kekana called in aid the following cases:

S vs Zinn 1969 (2) SA 567

S vs Rabie 1975 (4) SA 855-856

S vs Nkosi 2002 (1) SA 494

As regards his age, the accused was not entirely honest when he stated his age as 22 years old, he is not certain of his date of birth, neither did he know his ID Number from which his age could be ascertained. The charge sheet reflected his age as 27 years, neither was this recordal challenged by him or his attorney at trial in the Regional Court.

As to his age, and for reasons stated above, I will proceed on the same basis as the Regional Court namely, that his age at the commission of the offence was 27 years.

2008 JDR 0624 p5

Mthembu AJ

[10] In aggravation of sentence, Counsel for the State, Ms Van Wyk, called Mrs N, the biological mother of the complainant, who testified that she currently stays with the complainant, complainant's progress at school dropped after the incident of rape, she failed standard 2, she does not talk about the incident of rape, even when other people around her talk about it. She has not received counseling or any help from Social Workers.

Cross examination of Mrs N by Mr. Kekana elicited nothing either to contradict or cast doubt upon the credibility of her evidence.

In address, Ms Van Wyk submitted...