S v Phophi

• Jurisdiction: South Africa
• Judge: Noorbhai AJ
• Judgment Date: 26 February 1997
• Citation: 1997 JDR 0376 (V)
• Docket Number: A129/96
• Court: Venda High Court

Noorbhai AJ:

In this matter the Appellant was charged with and convicted of two counts of rape of two young girls aged 13 and 16 respectively. The Appellant was sentenced to four years imprisonment on each count. The magistrate did not order the sentences to run concurrently.

Initially the Appellant noted an appeal against both the conviction and the sentence, however, in his heads of argument the Appellant, rightly abandoned his appeal against the conviction.

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Noorbhai AJ

Mr Mushasha who appeared for the Appellant, in his very brief heads, relied on two grounds of attack on the sentence, viz:

1. That the sentence is too harsh, and

2. That the sentences should run concurrently.

The aggravating features of the offences, as I find them, can perhaps be listed as follows:

1. that the rapes were premeditated; (Counsel for Appellant conceded this.)

2. that the victims were young children, aged 13 and 16 innocent and trusting;

3. the Appellant lured the victims on false pretences to his kraal where he raped them;

4. prior to raping them, he treated them as mere chattel; he ordered them to cook for him and to do other chores.

It seems that when one of the complainants cooked for the Appellant, the girls did not know what was brewing in his foul mind, but the Appellant knew what he was going to do. (The arrogance displayed by the Appellant in this matter is to put it mildly, breathtaking.)

5. he raped the girls in each other's presence;

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Noorbhai AJ

6. he did not allow one of the complainants to urinate in the toilet;

7. there is no remorse on the part of the Appellant' even after he was convicted, he protested his innocence;

8. he enjoyed humiliating the complainants; and

9. the Appellant has two previous convictions for offences involving the use of violence.

In regard to the law, in the case of R v Motlagomang and Others 1958 (1) SA TPD 626 at 628G-H and at 629A, the Learned Judge said as follows:

"In the case of R. v. Mapumulo and Others, 1920 A.D. 56 at p. 57, INNES, C.J., stated that the infliction of punishment was pre-eminently a matter for the discretion of the trial court. It can better appreciate the atmosphere of the case and can better estimate the circumstances of the locality and the need for a heavy or light sentence than an appellate tribunal. In the case of T. v. Ford, 1939 A.D. 559 at p. 560, DE WET, C.J., observed that the learned CHIEF JUSTICE, by mentioning the relevance of the atmosphere of the case and the circumstances of the locality where the offence was committed, recognised

1997 JDR 0376 p4

Noorbhai AJ

impliedly that the question whether offences of a similar nature are prevalent or not in his district, could be taken into consideration by a magistrate in passing sentence. Indeed, as one of the objects of punishment is to deter others (R. v. Swanepoel, 1945 A.D. 444, at pp. 543-455) a court must in deciding upon the appropriate sentence, take into account as one of the relevant factors the fact that the crime of which an accused was convicted is prevalent in its area; R. v. Boesigo, 1956 (1) S.A. 234 (A.D.) at pp. 237-238. The court is entitled to take into account the degree of deliberation shown by the offender. According to ASHURST, J., in the case of R. Stratton, (1780) 21 State Tr. 1045 at p. 1291, the fundamental rule of criminal judicature is that the measure of punishment should be in proportion to the malignity appearing in the intention of the offender.''

In the case of S v Qunta 1984 (3) SA 334 CPD at 342B, it was said:

"Sentencing remains a matter within the magistrate s discretion ... ."

Courts of appeal will only interfere with...