South Africa: Eastern Cape High Court, Grahamstown Support SAFLII

You are here:  SAFLII >> Databases >> South Africa: Eastern Cape High Court, Grahamstown >> 2013 >> [2013] ZAECGHC 100

| Noteup | LawCite

Tisani v S (C A271/2012) [2013] ZAECGHC 100 (26 September 2013)

Download original files

PDF format

RTF format


7



IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)              


                                                                                    Case no: CA271/2012

                                                                                    Date heard: 23 September 2013

                                                                                     Date delivered: 26 September 2013


In the matter between


ANDILE TISANI                                                       Appellant


vs


THE STATE                                                              First Respondent

                                                                       


JUDGMENT


PICKERING J:


Appellant appeared before Mageza AJ in the High Court, Grahamstown, charged with rape (count 1) and murder (count 2).  Notwithstanding his plea of not guilty he was convicted as charged and sentenced to life imprisonment on each count.  His application for leave to appeal against his conviction was dismissed by the court a quo but leave to appeal against the sentences imposed upon him was granted. 


It was common cause that, having regard to the circumstances in which the offences were committed by appellant, the court a quo was obliged to impose the prescribed minimum sentences of life imprisonment in terms of Act 105 of 1997, unless it was satisfied that substantial and compelling circumstances existed such as would have justified the imposition of lesser sentences. 


In the course of a comprehensive judgment on sentence Mageza AJ concluded that no such substantial and compelling circumstances were present. 


Mrs. Crouse, who appeared for appellant, submitted that the court a quo had erred in this regard. 


The evidence disclosed that on Sunday 11 July 2010 appellant approached his uncle, one Robert Gomomo.  After asking him whether he had seen a police van in the vicinity appellant told him that he had killed some-one and had left the body in the nearby bushes.  Mr. Gomomo was shocked by this and, with the appellant, went to advise his elder brother, Mr. Mboniseni Tisani, of what appellant had told him.  Mr. Tisani in his evidence stated that appellant told him that he and two of his friends had raped and killed a girl whom he said was his ex-girlfriend although appellant, according to Mr. Tisani, stated that he could not remember her name. 


Appellant further told him that they killed her so as to avoid detection.  He admitted to having himself slit her throat.


The naked body of the deceased was then pointed out by appellant in the bushes. 


According to the report of the post-mortem examination the deceased had sustained multiple deep incised wounds on the head, face and neck “consistent with wounds caused by sharp heavy objects” as well as superficial multiple injuries on her right shoulder and knees and a deep incised wound on her neck cutting through the oesophagus and trachea.  The common carotid artery and the right jugular vein were cut through completely.  The cause of death was stated to be the severe incised wound to the neck.


Deceased, who was 21 years of age, was thirteen weeks pregnant at the time of her death.


It was common cause that on night in question both appellant and deceased were at Bora Tavern in Kidds Beach.  According to Mrs. Bukelwa Potwana she saw deceased at the tavern in the company of her boyfriend.  They were being so affectionate towards each other that she had pointed them out to a friend of hers remarking how in love they appeared to be.  According to her the deceased, who was intoxicated, passed out at some stage and was lying on a table in the tavern.  The boyfriend thereafter left.   Ms. Potwana at some later stage saw appellant going to the deceased where she was lying asleep on the table but she did not notice what had happened further and she eventually left the tavern leaving the deceased still asleep.


Appellant’s version of events, as set out in a disputed confession which was admitted into evidence after a trial-within-a-trial, was that deceased was his girlfriend.  He met up with her at the tavern and she agreed to go with him to his home.  Appellant then told his friend Odwa and Odwa’s colleague that he was leaving with deceased and that they could accompany him to his home because the following morning a cow was to be slaughtered.  They then left the tavern but, after they had walked a considerable distance, deceased refused to go any further and insisted on turning back.  Appellant and deceased quarrelled about this.  Odwa and his colleague arrived.  The three of them then dragged the deceased into the forest, stripped her naked and raped her.  Odwa’s colleague suggested that she be killed in order to prevent her reporting them to the police.  Appellant was carrying a panga.  Odwa’s colleague took the panga and hit deceased several times on the head while Odwa was strangling her with her t-shirt.  Appellant then grabbed the panga and cut deceased’s throat.


In his evidence, however, appellant stated that after having arrived at the spot where deceased wanted to turn back they had consensual sexual intercourse.  Odwa and his colleague arrived and raped deceased despite appellant’s attempts to stop them.  Odwa and his colleague then killed deceased by hitting her with the panga and strangling her.  Appellant denied that the evidence of Messrs. Gomomo and Tisani was true and averred that they had misunderstood what he had told them, the import of which had been that deceased had been raped and murdered by Odwa and his colleague.


In his judgment Mageza AJ rejected appellant’s evidence as not being reasonably possibly true.  He accepted the evidence of Gomomo and Tisani stating, correctly in my respectful view, that it was not probable that appellant’s two uncles to whom he was very close would have gratuitously lied on this aspect by subverting the innocent explanation given to them by appellant.  Mageza AJ, also correctly in my view, rejected appellant’s evidence that deceased had been his girlfriend.


The learned Judge found further that “the accused, together with two of his friends, planned the rape of the deceased before leaving the tavern, at which they found the deceased.”  Mrs. Crouse submitted that Mageza AJ had misdirected himself in this regard in light of the fact that, according to appellant’s confession, deceased had willingly accompanied him up to a certain point. 


It is clear that appellant lied about deceased having been his girlfriend.  This, together with his false testimony as to how the offences came to be committed, must cast considerable doubt on his assertion that deceased willingly accompanied him part of the way.  Nevertheless, in the absence of any acceptable evidence as to the circumstances in which deceased came to leave the tavern, I am prepared to accept that the learned Judge did err in finding that the rape had been planned at the tavern. 


Mrs. Crouse submitted further that the learned Judge had erred by finding “the deceased was heavily pregnant with a fully developed foetus” and by then concluding that “it must have been clear to the accused that she was pregnant by another man’s child and that she was in an advanced stage of pregnancy.


As pointed out by Mrs. Crouse, however, the foetus was only thirteen weeks old.  Deceased was therefore not heavily pregnant nor, having regard to the photographs, was it “clearly visible” that she was pregnant.  There was therefore, in my view, no reason to disbelieve appellant when he stated that he did not know that deceased was pregnant and, in my view, the learned Judge did err in this regard. 


Mrs. Crouse enumerated a number of factors which, so she submitted, constituted substantial and compelling circumstances.  In dealing with the issue of the prescribed sentences Jones J (with whom Nepgen and Plasket JJ concurred) stated as follows in S v Mqikela 2010 (2) SACR 589 (E) at 591 h-j:


What is required is that the trial court should test the justice and proportionality of the prescribed sentence by weighing and balancing all factors relevant to the nature and seriousness of the criminal act itself (in the light of the legitimate concerns of society), as well as all relevant personal and other circumstances relating to the offender which could have a bearing on the seriousness of the offence and the culpability of the offender.  If that exercise shows that a lesser sentence than life imprisonment would be appropriate, it is not only justified, but bound, to impose the lesser sentence.


Appellant, a first offender, was 21 years and one month of age at the time of commission of the offences.  He grew up in extremely disadvantaged circumstances.  His mother left his father when he was three years old and his father, who abused alcohol, denied his mother contact with him during his formative years.  He himself started experimenting with alcohol at the age of 11 years.  He was re-united with his mother in 2002 when he was approximately 13 years old but his mother died during December 2002.  Her death severely affected his social and emotional stability. 


He left school in grade 3.  In 2005, despite being only a child, he obtained work as a general labourer with a construction firm where he worked until the contract expired during 2008.  Since then he has been unemployed. 


Mrs. Crouse submitted further that liquor had clearly played a role in the commission of the offence, it having been put to the State witnesses that appellant and his co-perpetrators had consumed an entire bottle of brandy at the tavern.  In this regard Mageza AJ stated that it was not clear as to how much of the liquor, if any, appellant may have had and over what period of time.  He stated further that “the accused having elected not to testify in mitigation has left the court unable to assess the possible impact, if any, played by the bottle of brandy.”  He concluded that what was clear was that appellant was able to recount in detail how the rape and murder had been carried out and that he obviously had a clear recollection of the events, unaffected by the taking of liquor or drugs.  In my view the reasoning of the learned Judge in this regard can also not be faulted.


Mrs. Crouse submitted further that the appellant had shown a degree of remorse by initially reporting the incident to his uncles and by making a confession.  Whilst this may indeed be indicative of initial remorse the fact remains that appellant very quickly attempted to escape any responsibility for his actions by falsely denying that he had admitted his complicity in the commission of the offences to his uncles and by alleging that the confession had been made under duress.

Against the appellant’s personal factors must also be weighed the horrific circumstances of the offences committed by him.  As stated by Mageza AJ “it is difficult to imagine any rape and murder necessarily worse than that committed by accused” who carried out the “most vicious predatory act.”


Dealing firstly with the sentence imposed on the rape (count 1) it is clear that there are a number of aggravating features.  The deceased, a young, defenceless woman who was heavily under the influence of alcohol, was stripped naked and gang-raped by the appellant and his two co-perpetrators.  This was a gross violation of her right to personal integrity, dignity and womanhood.


Even accepting that the rape was not planned by appellant and his co-perpetrators prior to leaving the tavern and that appellant did not know she was pregnant, I am entirely unpersuaded that any substantial and compelling circumstances exist justifying a lesser sentence than that of life imprisonment.


The murder (count 2) committed by appellant was shockingly brutal, callous and premeditated.  Appellant himself cut the throat of deceased as if he were slaughtering an animal.  It is clear that deceased was killed in order to prevent her from identifying the perpetrators of the rape to the police.

In my view, in respect of this count as well, Mageza AJ correctly found an entire lack of any substantial and compelling circumstances justifying a lesser sentence than that of life imprisonment.


In the light of the aforegoing the appeals against sentence on both counts are dismissed.





________________

J.D. PICKERING

JUDGE OF THE HIGH COURT




I agree, and it is so ordered,






______________________

I.SCHOEMAN

JUDGE OF THE HIGH COURT




I agree,






_________________

N. CONJWA

ACTING JUDGE OF THE HIGH COURT




Appearing on behalf of Appellant: Adv. L. Crouse

Instructed by: Legal Aid, South Africa


Appearing on behalf of Respondent: Adv. Mgenge

Instructed by: Director of Public Prosecutions