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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

PRETORIA

CASE NO: CC144/05

DATE: 3 JULY 2008

In the matter between:

THE STATE APPLICANT

versus

MATHEKGA TITUS FIFANA 1^st RESPONDENT

NTSHABELLE JACOB 2^nd RESPONDENT

KOSHANE MPHO TEMPLETON 3^rd RESPONDENT

________________________________________________________________________

JUDGMENT

_______________________________________________________________________

MAKHAFOLA, AJ:

Introduction:

[1] Three accused were charged and tried in the regional court of Northern Transvaal, sitting in Soshanguve, on one count of housebreaking with intent to steal and theft and one count of rape committed on or about 6 April 2001 at house number [number], block [letter], Soshanguve.

[2] All the accused pleaded not guilty and did not tender any plea explanation. They were each represented by counsel.

[3] The accused were arrested on 6 April 2001 and their first appearance, according to the charge sheet, is 9 April 2001. Since the first appearance, the accused were in and out of court on various occasions for bail applications and subsequent court remands. At one time their bail had to be cancelled and reinstated. This is one of the cases where postponements became a norm for whatever reasons advanced and this is disturbingly serious because the court was hearing only two uncomplicated counts from 9 April 2001 to 11 September 2004, with no less than 20 postponements. When this matter is heard today it has been postponed not less than 20 times in the high court.

[4] The main issue in the trial court was the identity of the accused. The trial court analysed the evidence relating to the identity of each accused at length, it dealt with the identifying marks of all the accused by which the complainant was able to identify them.

[5] The court is mindful that the complainant was raped during the night into the early hours of the morning when the electric light was off. She was also able to witness the theft which was committed whilst she was looking.

[6] When certain suspects were arrested for being in possession of certain clothes belonging to her employer, she was able to identify the accused in a private vehicle as the thieves and assailants who had broken into the house where she was raped twice by each of them. It surprises me why the prosecution did not charge the accused with two counts each of rape.

[7] I am satisfied that the evaluation of the evidence in relation to identity was properly done by the trial court. I find no irregularities apparent from the proceedings. Both the state and the defence are ad idem that the procedures in this trial are in accordance with the rules and that procedures were followed.

[8] I find that the proceedings were in accordance with justice, and that the state has, indeed, proved the guilt of the accused beyond a reasonable doubt. In the circumstances, I confirm the convictions of the accused.

SENTENCE

[9] The sentencing court where Act 105 of 1977 applies needs to establish the presence or absence of compelling and substantial circumstances before an appropriate sentence can be passed. The consideration of both mitigating and aggravating circumstances and all other evidence placed before court during sentencing needs to be considered globally to decide whether there exists those circumstances that persuade the court to deviate from the minimum sentence in terms of Act 105 of 1977.

[10] The personal circumstances of all the accused were placed before court and no aggravating evidence was led by the State.

AD ACCUSED 1:

(a) He was 22 years old at the time of the commission of the crime and he was born on 25 June 1980;

(b) He was attending school at Bethesda at the time of his arrest where he was studying Standard 9;

(c) He passed matriculation whilst in prison which was financed by his family;

(d) Both his parents are still alive who brought him up;

(e) During school holidays he sold some articles;

(f) Since being in prison he had received some certificates;

(g) When he is discharged from prison he will not have any brush with the law;

(h) He is remorseful for having been found in possession of the alleged stolen goods;

(i) He is presently serving a 15 year imprisonment sentence for armed robbery committed on 15 December 2003.

(j) This armed robbery was committed after he had been arrested for the present case;

(k) There are 4 children exclusive of himself in his family. He is the 5^th born.

(l) He attends the Zion Apostolic Church in Mamelodi East, whose Pastor is Lebese.

(m) Before he was arrested he attended church every Sunday. He is a first-offender.

(n) He is unmarried with a girlfriend who has a child, the child is not his. He had contributed to the maintenance of this child. The child is now school-going and is about 9 years old. This child is a boy.

[11] His father Julius Mathekga confirmed that Accused I is his son. He is 67 years of age and unemployed. He is married to the mother of Accused I and the mother is also unemployed. He testified that Accused I went to a night-school because it was cheaper than the day school which he could not afford. Accused 1 used to assist the family by buying fruits and vegetables at Marabastad and helped the family in a big way.

[12] He was heartbroken when he heard about the offences for which his son was arrested. He spoke to his son about the offences and told his son that that is not good conduct. He asks the court to sentence him in a way that would make it possible to come back to assist the family. He cannot cope to maintain his family with his pension money.

AD ACCUSED 2:

(a) He was 21 years old during the commission of the offences, and he was born on 2 February 1979;

(b) He is unmarried but has two children;

(c) The children are 2 years and 6 months old respectively;

(d) At the time of the commission of the crime he was doing Standard 9 at a school called Sisters of Mercy;

(e) He was now a hawker at TNG where he was selling fruits, cigarettes and sweets;

(f) Both his parents are pastors and they brought him up properly. He was brought up in a church and they are taking care of him because of his illness. He is HIV positive and the documents to prove that are at his home;

(g) He is the last born of 3 children at his home;

(h) He and his companions did not enter the house because they picked up the items they were found in possession of. He is not satisfied about his conviction in this case.

[13] Isaac Ntshabelle is 72 years old and Accused 2 is his son, together with 2 other children, who are no longer residing in his home.

[14] When Accused 2 was arrested he was residing with his parents. Accused 2’s mother is at home and is a pensioner. Accused 2 had 2 children at the time of his arrest and his girlfriend at the time was pregnant with a 3^rd child. In all Accused 2 has 3 children who stay with him as the father of Accused 2. The mother of these children is in Soshanguve and she is unemployed.

[15] It is hard for him to maintain Accused 2’s children because they are still bottle-fed and they use throw-away napkins. Before Accused 2 was arrested he did not experience any maintenance problems of these children because Accused 2 used to do piece jobs at schools.

[16] He is aware of the offences for which his son has been convicted. In his opinion as a parent the commission of the said offences is not a good idea. He did speak to his son about the offences.

[17] Since the last born of his son’s children is about 4 months old he requests the court not to mete out severe sentences in order to enable his son to come back after he had served them.

AD ACCUSED 3:

(a) At the time of his arrest he was 21 years old, born on 20 July 1980;

(b) He has no previous convictions;

(c) He is unmarried but has a girlfriend. Since his arrest the relationship does no longer exist;

(d) He has one child with his girlfriend and the child is 7 years old;

(e) At the time of his arrest he was employed as a taxi-driver, earning R500.00 per week;

(f) Their child was maintained by his and his girlfriend’s parents, his girlfriend and himself;

(g) He is the 3^rd born child amongst other two children;

(h) At the time of his arrest his father was still employed. His mother is still employed;

(i) He has passed Standard 8 at school. He could not continue with schooling because his parents could not afford money to pay for his education;

(j) He still denies that he has broken into the house;

(k) His girlfriend is Murandziwa Ndhlovu who is now living in Giyani;

(l) Since he was arrested he has seen his child, who was brought to prison to visit him;

(m) He has had a close bond with this child who he had seen everyday before his arrest;

(n) When this child was brought to prison to visit him the child still remembered him and this child calls him daddy;

[18] Simon Koshane is 56 years old and is married to Accused 3’s mother. He is unemployed whereas his wife is employed. Accused 3 is his son and his last born child;

[19] Accused 3 has one boy child who is 7 years old and resides with him. At the time of arrest of Accused 3 the mother of the child was still pregnant. The mother of the child is in Giyani;

[20] After Accused 3 was arrested, the parents of Accused 3’s girlfriend approached him to say Accused 3 was responsible for her pregnancy. The child was brought to him to maintain. He put him through a crèche and last year he started attending school. This child is now maintained at school by Accused 3’s sister.

[21] I am alive to the purposes of punishment namely: to deter, prevent, reform and retribute the offender. The aims of punishments were succinctly expressed in RV SWANEPOEL 1945 AD 444 at 454 paragraph 4 as follows: “The aim of punishment therefore is no other, than to prevent the criminal from doing further injury to society, and to prevent others from committing the like offence. Such punishment, therefore, and such a mode of inflicting them, ought to be chosen, as will make the strongest and most lasting impressions on the minds of others, with the least torment to the body of the criminal.”

[22] On the other hand the traditional triad enunciated in RV RABIE 1975 (4) SA 855 (A) at 865G – 866C is of paramount importance.

[23] In RV MAPUMULO AND OTHERS 1920 AD 56 at 57 the court stated the following: “The inflicting of punishment is pre-eminently a matter for the discretion of the trial court.”

[24] In the present case the sentences fall to be considered in terms of Act 105 of 1977 and the guidelines in SV Malgas 2001 (1) SACR 469 (SCA), SV NKOMO 2007 (2) SACR 198 (SCA), SV MAHOMOTSA 2002 (2) SACR 435 (SCA), RAMMOKO V DIRECTOR OF PUBLIC PROSECUTIONS 2003 (1) SACR 2000 (SCA) amongst many other decided cases on sentencing are very instructive.

Rape is a serious crime that invades the dignity, self-esteem, integrity and self-assertion right of the victim and needs to be condemned by the courts by meting out stern but appropriate sentences.

[25] The complainant was gang-raped at knife point with the accused repeating themselves sexually on a helpless four months pregnant woman in the safety of a locked house they had broken into. At the first round of the rape Accused 1 had used a condom but did not wear it at the 2^nd round.

[26] This case becomes more serious because of the danger of contracting HIV/Aids virus for unprotected forced sex on the complainant and the 4 months foetus, she had carried at the time.

[27] Now that it is on record that Accused 2 is HIV positive demonstrates further the seriousness with which this court must treat this particular case.

[28] It is the evidence of the complainant that she was treated by a medical doctor after the rape and was found to have not sustained any injuries. This does not minimise the seriousness of the offence except to say it is not one of the worst kind committed with brutality.

[29] Yet, the ages and first-offenderships of the Accused remain to be considered in the light of the presence of substantial and compelling circumstances. The HIV status of Accused 2 cannot be ignored. The fact that the Accused have children who may have their rights affected if their fathers are permanently removed from society are also factors to be considered. Are the Accused the main and only bread-winners in their family and that without them there would be starvation? The answer is no.

[30] Are the Accused capable of rehabilitation or not? The answer is yes, despite them not having directly expressed remorse. But, from what their fathers have testified in court and having spoken to them, there is no evidence that they had argued with their fathers that what they had done was good. Their conduct should be condemned in the possible strongest words.

[31] Both Counsel agree that there are compelling and substantial circumstances which should influence this court to deviate from imposing life sentences. After taking into account the violence of rape itself, the personal circumstances of the Accused, the seriousness of offences, the inconvenience and circumstances of the complainants and striking the balance thereof, I come to the conclusion that there are substantial and compelling circumstances.

[32] As far as Accused 1 is concerned he is serving a 15 year imprisonment term already. It is proper to consider whether the sentences to be imposed should run cumulatively or concurrently. Section 280 of the Act immediately comes into play.

[33] It appears that a cumulative effect of the sentences on Accused 1 who is already serving a sentence of 15 years could induce a sense of shock.

Vide: SV KOUTANDOS & ANOTHER 2002 (1) SACR 219 (SCA)

SV KWENAMORE 2004 (1) SACR 385 (SCA)

In the result, the Accuseds are sentenced as follows:

AD COUNT 1: Housebreaking with intent to steal and theft: 2 years imprisonment.

AD COUNT 2: Rape: 15 years imprisonment.

As far as Accused 1 is concerned the sentences in counts 1 and 2 are to run concurrently with

the 15 years imprisonment he is already serving.

As far as Accused 2 and 3 are concerned the sentences in count 1 are to run

concurrently with the sentences in count 2.

All the Accused are to serve an effective imprisonment of 15 years each.

_________________

K. MAKHAFOLA

ACTING JUDGE OF THE HIGH COURT

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