---

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1)    REPORTABLE:  NO

(2)    OF INTEREST TO OTHER JUDGES:  NO

(3)    REVISED: YES

[22 OCTOBER 2020]

CASE NO: A386/2018

DPP REF NO: VB 36/2015

 

In the matter between:

 

NTIMBA, MICHAEL ELVIS                                                                              APPELLANT

And

 

THE STATE                                                                                                          RESPONDENT

 

J U D G M E N T

 

MUDAU, J:

 

[1]          This is an appeal against sentence. The appellant, Mr Michael Elvis Ntimba was convicted of the crimes of rape and murder by the Circuit Local Division of the Eastern Circuit District, Ermelo (per Mothle J), and sentenced to terms of 18 years’ imprisonment and life imprisonment, respectively. The trial court made an order that the 18 years’ sentence was to run concurrently with the life imprisonment sentence[1].  The nature of the offences had brought him within the purview of s 51 of the Criminal Law Amendment Act 105 of 1997, which prescribes minimum life sentences for both the murder and the rape convictions, unless substantial and compelling circumstances were found to exist.

[2]          The appellant was subsequently granted leave to appeal to this court by the trial court, against the sentences only. After an agreement with counsel, this appeal was disposed of on papers without further oral submissions in open court, pursuant to section 19 (a) of the Superior Courts Act[2].

[3]          The salient facts forming the basis for the conviction of the appellant were, inter alia, that on the evening of 1 January 2008, the deceased’s daughter returned home only to find her mother on the ground inside the yard. She saw the appellant leaving the scene. She called for the neighbours to help and they assisted to carry the deceased to her bed. Upon realizing that her mother was dead, she contacted the police. She and the deceased knew the appellant before the incidents of crime.

[4]          The appellant alleged during the trial that he had consensual sexual intercourse with the deceased earlier that day. However, the post-mortem examination report and the evidence of Dr Kraft excluded consensual intercourse because of the seriousness of the injuries to the deceased’s vagina and bleeding caused by violent penetration. Her panties were torn. There was blood in and around the vagina. Had penetration been consensual according to Dr Kraft, the nature of the injuries inside her vagina would have been unlikely given the fact that the deceased, at 50 years of age, already had children. There were bruises on her neck and right arm. Dr Kraft also found ground or soil in the deceased’s mouth. He detected signs of asphyxia and concluded that she had been strangled. The cause of death was accordingly strangulation. The appellant was also linked to the rape by DNA evidence, which was not challenged. The trial court dismissed the appellant’s version of not having committed the crimes and convicted him.

[5]          I turn to the issue of the sentences imposed, which is the only issue that this court has to determine. A court of appeal is not free to interfere with the sentencing discretion of a trial court, even if the sentence imposed is not the sentence it would have imposed. The murder conviction falls within the ambit of section 51 (1) read with Part 1 of Schedule 2 of the Criminal Law   Amendment Act 105 of 1997 (‘CLAA’) as the deceased was murdered during the course of rape. The prescribed minimum sentence is accordingly life imprisonment as indicated above; unless substantial and compelling circumstances are present justifying a deviation from the prescribed minimum sentence.

[6]          It is trite that this court can only interfere with the sentence imposed by the trial court where it is vitiated by a material misdirection or where the disparity between the sentence of the trial court and the sentence that the appellate court would have imposed, had it been the trial court, is so marked that it can be described as 'shocking', 'startling', or 'disturbingly inappropriate'. Marais JA succinctly captured the extent of a court of appeal's jurisdiction to interfere with a sentence imposed by a trial court thus:

“A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, an appellate Court is of course entitled to consider the question of sentence afresh. In doing so, it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellate Court is at large. However, even in the absence of material misdirection, an appellate Court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate Court would have imposed had it been the trial court is so marked that it can properly be described as 'shocking', 'startling' or 'disturbingly inappropriate'. It must be emphasised that in the latter situation the appellate Court is not at large in the sense in which it is at   large in the former. In the latter situation it may not substitute the sentence which it thinks appropriate merely because it does not accord with the sentence imposed by the trial court or because it prefers it to that sentence. It may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned. No such limitation exists in the former situation”.[3]

[7]          The appellant was at the time, a 35 years old first offender. He was unmarried but a father to a five-year-old child. The child was in the care and custody of the unemployed mother. The appellant maintained the child. He also assisted in the maintenance of his unemployed father and sisters with whom he lived. He completed matric in 1995. At the time of the incident, he was employed as a security guard and supervised 60 subordinates. He earned R4300-00 per month. He remained on bail until he was sentenced by the trial court. In mitigation of sentence, the appellant stated that on the day of the incident he was tempted to have sexual intercourse with the deceased and that he and his companion John were under the influence of liquor.

[8]          The state called the daughter of the deceased who testified in aggravation of sentence. She testified that the deceased was handicapped and as a result received a social grant. However, this aspect was not explored any further. The nature and extent of her disability was not canvassed during the trial. The appellant’s conviction on a charge of rape would ordinarily have attracted life imprisonment for the relevant Schedule requires “a physically disabled person who, due to his or her physical disability, is rendered particularly vulnerable”[4] or is a person who is mentally disabled as contemplated in section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.  However, nothing turns on this aspect as the trial court deviated in this regard and instead imposed 18 years of imprisonment.

[9]          The trial court correctly stated that the appellant’s suggestion of remorse has to be considered in the context that he failed to take the court fully into his confidence. The appellant had asked for forgiveness from the trial court and the bereaved family. However, when he was pressed to explain himself during cross-examination; he balked and to an extent retracted his concession. He admitted that he left the deceased laying there not knowing whether she was dead or alive.

[10]       The appellant launched a two-pronged attack against his sentence. He contends that the sentence of life imprisonment is harsh. He introduced new evidence by way of an affidavit that he is HIV positive and has hypertension. In addition that, he has participated in social and rehabilitation skills during imprisonment. His newly discovered HIV status with hypertension was not attacked by the state.

[11]       This country continues to witness an ever-increasing wave in crimes of violence, notably murder and sexual offences against the most vulnerable members of our society, particularly women and children. These crimes, in particular gender-based violence, no doubt, seriously threaten the social and moral fabric of our society. In S v Makatu[5] Bosielo JA observed, correctly, that: ‘There is a huge and countrywide outcry by citizens, civic organisations, NGOs, politicians, religious leaders and people across racial, class and cultural divides over these crimes which have become a scourge. There is hardly a day that passes without a report of any of these crimes in the media, be it print or electronic’.[6] The situation continues to be of great concern. The learned JA added this, with which I am in agreement: “Our courts must accept their enormous responsibility of protecting society by imposing appropriate sentences for such crimes. It is through imposing appropriate sentences that the courts can, without pandering to the whims of the public, send a clear and unequivocal message that there is no room for criminals in our society. This in turn will have the salutary effect of engendering and enhancing the confidence of the public in the judicial system.[7]

[12]       In S v Matyityi[8] Ponnan JA reminds us that: “There is, moreover, a chasm between regret and   remorse. Many accused persons might well regret their conduct, but that does not without more translate to genuine remorse.  Remorse is a gnawing pain of conscience for the plight of another. Thus genuine contrition can only come from an appreciation and acknowledgement of the extent of one's error. Whether the offender is sincerely remorseful, and not simply feeling sorry for himself or herself at having been caught, is a factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens, the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia: what motivated the accused to commit the deed; what has since provoked his or her change of heart; and whether he or she does indeed have a true appreciation of the consequences of those actions” (footnotes omitted).[9] I agree.

[13]       Counsel for the appellant, to his credit conceded in written submissions that the appellant’s so-called apology does not measure up to what was set out in Matyityi. Importantly, in S v Chapman[10], the SCA has previously sought to make clear, women in this country 'have a legitimate claim to walk peacefully on the streets, to enjoy their shopping and their entertainment, to go and come from work, and to enjoy the peace and tranquillity of their homes without the fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives.’[11]

[14]       The appellant’s personal factors (whether individually or cumulatively), including the fact that is HIV positive with hypertension cannot be viewed in isolation. The HIV status of a person in itself cannot serve as a circumstance to justify a lesser sentence than the prescribed one. HIV status, although life threatening, in itself is not fatal. It has been shown that if properly treated with medication, affected people can live normally for years after having been diagnosed with this medical condition[12] . In S v Mgibelo[13], I held that the accused‘s personal factors who was also HIV positive and on treatment were common place and were overshadowed by the gravity of the crimes including premeditated murder in imposing an effective life sentence. 

[15]        Accordingly, to consider the appellant’s personal factors independent of the other factors relevant in sentencing would be to ignore the objective gravity of the offences of rape and murder inclusive of their prevalence in this country. There is an added consideration, that is the legislature’s quest for severe and standardised responses by the courts by emphasizing an accused’s personal interests without a balanced approach to the traditional triad of the crime, the criminal, and the interests of society as alluded to in Malgas.

[16]       It is appalling that a handicapped woman was brutally attacked in the sanctity of her own home. Not only was she sexually violated, but paid the ultimate price with her life. She was silenced forever. With due regard to all of the circumstances regarding this matter, the effective sentence of life imprisonment is not only justified but manifestly fair consideration being had to the well-known triad approach. The appeal against an effective life sentence is unmeritorious.

[17]       Accordingly, I make the following order:

[17.1] the appeal against sentence is dismissed.          

 

 

 MUDAU J

[Judge of the High Court]

 

I agree

 

TLHAPI J

[Judge of the High Court]

 

 

I agree

 

 

DAVIS J

[Judge of the High Court]

 

 

 

Date of Hearing:                              12 October 2020                 

Date of Judgment:                           22 October 2020

APPEARANCES

For the Appellant:                            Mr H L Alberts

Instructed by:                                  Pretoria Justice Centre

                                                                                   

For the Respondent:                       Adv. M J Van Vuuren

Instructed by:                                  DPP – Pretoria

                                                                       

                                                 

 

---