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IN THE HIGH COURT OF SOUTH AFRICA

(ORANGE FREE STATE PROVINCIAL DIVISION)

Case No. : A352/07

In the case between:-

MARUPING ELIAS MATHE Appellant

versus

THE STATE Respondent

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CORAM: VAN ZYL et MOCUMIE, JJ

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HEARD ON: 24 NOVEMBER 2008

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DELIVERED ON: 4 DECEMBER 2008

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APPEAL

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MOCUMIE, J

[1] The appellant appeared in the Regional Court of Bloemfontein on a count of rape. He pleaded guilty and was convicted as charged on 28 March 2007 and was sentenced to 15 (fifteen) years imprisonment in terms of the Criminal Law Amendment Act, 105 of 1997, (“the Minimum Sentences Act”). He is now appealing against the sentence only.

[2] The circumstances surrounding the commission of the offence are set out in the accused’s statement in terms of section 112 of the Criminal Procedure Act, 51 of 1977, (“CPA”).

[3] The appellant’s personal circumstances are the following:

3.1 He was 24 years of age when he committed this offence;

3.2 He was single and had no dependants;

3.3 He was not employed nor attending school;

3.4 He was not a first offender.

[4] The aggravating circumstances in this case are the following:

4.1 The complainant is much older than the appellant. She was 33 years old then - a difference of 9 years between them.

4.2 The complainant and the accused are well-known to each other;

4.3 The appellant broke into the home of the complainant whilst she was sleeping, assaulted her and raped her;

4.4 The appellant has been previously convicted of rape during 1999 nearly 9 years ago when he was just 17 years. This on its own is an indication that the court then had no option but to use the last resort of punishment provided for in the CPA on a youthful offender. Evidently 5 (five) years did not teach him anything.

[5] Mr. Nkhahle, for the appellant, argued that a sentence of 15 (fifteen) years imprisonment is grossly disproportioned to the personal circumstances of appellant. The presiding officer over-emphasised the seriousness of the offence despite the accused’s guilty plea which showed remorse on his part. With respect I disagree. If anything, the presiding officer erred on the side of leniency under these circumstances. Undoubtedly the appellant acted in a most daring manner. From the evidence and his previous convictions, it is clear that he has no respect for the law and for women. He squandered the chance of rehabilitation that he was given previously at the age of 17 years. This indicates the propensity of the accused to continue to rape as long as he is not behind bars. No other court can interfere with the sentence imposed. It is a proportionate and balanced sentence taking into account the seriousness of the offence, its prevalence and the personal circumstances of the accused.

[6] In the circumstances the following order is made:

Order:

1. The appeal is dismissed.

2. The sentence of 15 (fifteen) years imprisonment imposed by the presiding officer on 28 March 2007 is confirmed.

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B.C. MOCUMIE, J

I concur.

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C. VAN ZYL, J

On behalf of appellant: Adv. Nkhahle

Instructed by:

Justice Centre

BLOEMFONTEIN

On behalf of respondent: Adv. A. Bester

Instructed by:

Director of Public Prosecutions

BLOEMFONTEIN

/sp

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