Director of Public Prosecutions, Free State v Mokati

Johannes Mokati, a 22-year-old, was convicted in the Free State High Court of rape (count 1) and robbery with aggravating circumstances (count 2), but acquitted of murder (count 3). On 9 February 2017, Mokati entered the workplace of AM (21 years old, now deceased) armed with a knife. He threatened and raped her repeatedly in different positions at different places in the office, including anal penetration. After the rape, he took her electronic devices (cellphone, laptop, tablet). He threatened to kill her if she reported the incident. The deceased reported the rape to police that evening. She was prescribed ARVs and antibiotics as post-exposure prophylaxis. The deceased experienced severe adverse reactions to the medication - nausea, vomiting, diarrhea, and dehydration. Her condition deteriorated rapidly and she died on 24 February 2017 from cerebral venous sinus thrombosis (blood clot in the brain). Expert evidence indicated the cause was likely dehydration and medication side effects. Mokati was sentenced to 10 years for rape and 15 years for robbery, with 5 years running concurrently (effective 20 years). The State appealed the rape sentence as too lenient and reserved questions of law regarding the murder acquittal, arguing culpable homicide should have been found. Mokati cross-appealed his convictions and sentences.

• Whether the State properly reserved questions of law under s 319 of the Criminal Procedure Act regarding causation and culpable homicide
• Whether legal causation was established between the rape and the deceased's death
• Whether the mens rea for culpable homicide was present
• Whether the trial court erred in not convicting Mokati of culpable homicide
• Whether the prescribed minimum sentence of 10 years for rape was disturbingly inappropriate given aggravating circumstances
• Whether a court may impose a sentence above the prescribed minimum in the Criminal Law Amendment Act and on what basis
• Whether the trial court's factual findings on conviction could be revisited on a sentence appeal
• The proper approach to sentencing where minimum sentences are prescribed

1. The appeal by the State to reserve questions of law is dismissed. 2. The respondent's cross-appeal against conviction and sentence is dismissed. 3. The sentence on count 2 (robbery) of 15 years stands. 4. The State's appeal against sentence on count 1 (rape) is upheld. 5. The sentence of 10 years' imprisonment on count 1 is set aside and replaced with 18 years' imprisonment. 6. 13 years of the 15 years on count 2 shall run concurrently with the sentence on count 1. 7. The effective sentence is 20 years' imprisonment. 8. The substituted sentence is antedated to 27 September 2018 in terms of s 282 of the Criminal Procedure Act 51 of 1977.

1. For purposes of s 319 of the CPA, a question of law must be distinguished from questions of fact. Whether legal causation exists between an act and a consequence, whether expert evidence was properly evaluated, and what weight should be attached to evidence are primarily factual enquiries, not questions of law. The State cannot use s 319 to appeal factual aspects of an acquittal. 2. For a question of law to be properly reserved under s 319 CPA: (a) only questions of law may be reserved; (b) the question must arise "on the trial"; (c) the question must be accurately framed by the trial judge; (d) there must be certainty about the facts on which the legal question is to be decided; and (e) the relevant facts must be fully set out in the record. 3. Under the minimum sentencing regime in s 51 of the Criminal Law Amendment Act 105 of 1997, courts retain discretion to impose sentences above prescribed minimums based on the cumulative effect of all circumstances, without needing to find "substantial and compelling circumstances" (which only applies to downward departures). The prescribed minimum is not a presumptive sentence. 4. On a sentence appeal by the State, it is not competent to seek reversal of factual findings bearing on conviction (such as whether there were multiple acts of rape) without having obtained leave to appeal the conviction itself or having properly reserved questions of law regarding the conviction. 5. An appellate court may interfere with sentence where: (a) there has been a material misdirection by the trial court; or (b) the sentence is so disproportionate to what the appellate court would have imposed that it is "shocking," "startling" or "disturbingly inappropriate." 6. Where a trial court imposes a prescribed minimum sentence for rape under s 51(2)(b) of the CLAA, an appellate court may still determine the sentence to be disturbingly inappropriate and impose a higher sentence where aggravating circumstances warrant it and the minimum is grossly disproportionate to the gravity of the offence (majority view). 7. [Minority view - Makgoka JA]: Aggravating factors inherent in most rapes (use of weapons, violence, repeated acts, psychological trauma) are already factored into prescribed minimum sentences and cannot without more justify sentences above the prescribed minimum. Upward departure requires demonstration of out-of-the-ordinary circumstances that take the case beyond what is contemplated by the prescribed minimum.

1. The Court noted with concern that rape cases require "accurate understanding and careful analysis of all the evidence" and that sentencing in such cases calls for "considerable reflection." Trial courts must be thorough in their factual findings. 2. The majority expressed regret that certain errors in the trial court's factual findings (particularly regarding anal penetration) could not be remedied on appeal due to procedural limitations, but emphasized the importance of those findings being made correctly at trial. 3. The Court observed that non-consensual anal penetration of women constitutes a form of violence equal in intensity and impact to non-consensual vaginal penetration, citing Masiya v DPP. 4. The majority noted that rape "invades the dignity, sexual autonomy and privacy of its victims" and that society "looks up to our courts to impose sentences commensurate to the crime." 5. Regarding consistency in sentencing, the Court noted this "does not equal uniformity" and cautioned against the "danger of incremental gradations of judicial outrage" - where rape inflicts grave harm, the sentence must reflect that gravity regardless of whether other cases might be characterized as even worse. 6. The minority judgment (Makgoka JA) warned against courts unwittingly punishing an accused for consequences (like death) for which he was acquitted, emphasizing that "the respondent's causal liability ends where the effect of the ARVs begins." 7. The minority also cautioned that the sentence of 18 years for rape simpliciter creates incongruity with the prescribed minimum of 15 years for murder by a first offender, and approaches the 20-year minimum for murder by a second offender. 8. Both judgments acknowledged the importance of decided cases as guidelines but emphasized that "each case must be decided in the light of its peculiar facts" and courts should not engage in "slavish following" of previous sentences.

This case is significant for several reasons: 1. RESERVATION OF QUESTIONS OF LAW (s 319 CPA): The judgment reinforces strict requirements for the State to reserve questions of law. It clarifies that factual disputes about causation, evaluation of evidence, and weight of expert testimony cannot be dressed up as questions of law to circumvent the prohibition on State appeals against acquittals on factual grounds. Questions of law must be clearly identified, properly formulated by the trial judge, and based on clearly stated facts in the record. 2. SENTENCING ABOVE PRESCRIBED MINIMUMS: The case provides important guidance on when courts may impose sentences above prescribed minimums under the Criminal Law Amendment Act. The majority affirms that courts retain full sentencing discretion to impose sentences above minimums without needing to find "substantial and compelling circumstances" (which only applies to downward departures). This follows S v Mthembu and rejects aspects of S v Mbatha. However, appellate interference remains subject to the usual stringent test - the sentence must be "disturbingly inappropriate." 3. RAPE SENTENCING: The case demonstrates judicial willingness to impose substantial sentences for rape even in the absence of the aggravating factors in s 51(1) that would attract life imprisonment. It emphasizes that repeated acts of rape, use of weapons, planning, psychological trauma, and previous convictions warrant serious consideration even where they don't technically trigger higher minimum sentence categories. 4. SCOPE OF SENTENCE APPEALS: The judgment clarifies that on a sentence appeal, the State cannot seek to overturn factual findings related to conviction (such as whether there were multiple acts of rape) without having obtained leave to appeal the conviction itself. This prevents backdoor challenges to acquittals or conviction findings. 5. SPLIT DECISION: The 3-2 split on sentence (with a strong minority judgment) highlights ongoing judicial debate about the proper approach to sentencing above prescribed minimums and whether aggravating factors are already "baked into" minimum sentences or justify enhancement. This tension may require future clarification.