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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

            CASE NO: CC08/10

Not reportable

                                                                                   Heard on: 10/12/18

                               Delivered on: 05/02//19

In the matter between:

MABHUTI THANDEKILE NCETEZO                                             Appellant

Vs

THE STATE                                                                                  Respondent

CORAM:     Nhlangulela DJP, Plasket J et Mtshabe AJ

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FULL BENCH JUDGMENT ON SENTENCE

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NHLANGULELA DJP:

[1]        This matter concerns an appeal against sentences that were imposed by Tshiki J on 01 December 2010.  The sentences imposed were: (i) Life Imprisonment on conviction for raping a 4 year old girl; (ii) Ten (10) years imprisonment on conviction for raping a 65 year old woman; and (iii) Life Imprisonment on conviction for murdering the same woman.  The order was made that these sentences should run concurrently.

[2]        On 28 July 2016 Tshiki J (the sentencing court) dismissed the application for leave to appeal against both the convictions and sentences.  The matter now comes before us on appeal against sentence only, leave to do so having been granted on petition to the Supreme Court of Appeal.

[3]        The main ground of appeal is that the sentencing court over-emphasized the interests of the society at the expense of the appellant’s personal circumstances.  To appreciate this ground it will help to recount the facts of the case in brief.

[4]        In the afternoon of 04 July 2008 the appellant, uncle to a 4 year old girl who is the daughter of the appellant’s own sister, had been left under his care whilst the mother had gone to a nearby shop.  Upon returning from the shop the mother heard the child screaming from the bedroom of the appellant.  She rushed to the bedroom where she freed the child from continuing sexual assault.  Asked what he was doing to the child, the appellant denied the wrong doing.  As a result, the mother proceeded to the police station to report the matter. Whilst she had gone to the police station the appellant proceeded to the bedroom of his own mother, raped her and killed her in order to ensure that she did not live to report to the police that her own son had raped her.  After the appellant’s sister returned home during the evening she, unsuspectingly, found that her mother was already in bed and sleeping because she had a blanket covering her body.   However, she discovered only in the following morning that her mother had been raped and killed by the appellant.  The appellant was later on prosecuted, convicted and sentenced accordingly.

[5]        When the appellant appeared before the court during both the trial and sentencing he denied responsibility for committing the rapes and murder.  He was convicted on the bases of a plea of not guilty and denial that he had earlier on confessed to committing the offences with which he was charged.  His denial had necessitated a protracted hearing in a trial-within-a-trial which culminated in a finding that he had admitted raping and killing his mother freely and voluntarily within the meaning of the provisions of s 217 of the Criminal Procedure Act 51 of 1977. 

[6]        The sentencing was predicated on the following reasons as found by the sentencing court:  At age 4 the child was still too young and she was raped by an old man of 38 years of age, her own uncle and a would be protector.  Both the child and her mother were traumatized by the appellant’s actions.  The appellant had raped and killed his own mother for absolutely no reason.  He had the audacity to cover-up his tracks by throwing the girl’s panties into the dust bin and masquerading the dead body of her mother as that of a living person in an ordinary sleeping position under the warmth of her blanket.  The appellant had also hood-winked the child into a belief that her private parts would be bitten by mice unless she submitted to sexual assault by him.   The members of the family and community of Uitenhage, where the crimes were committed, were outraged by his criminal deeds.

[7]        The sentencing court found that the minor child and her grandmother sustained injuries due to the conduct of the appellant.  The minor child sustained tears on her posterior fourchette and redness on her urethral folds and labia minora.  The appellant caused his mother contusion of the neck structures, fractures of the thyroid cartilage and hyperinflation and collapse of the lungs.  The outer skin of the neck had visible abrasions and bruising.  These injuries were caused when the appellant was strangulating his mother with his own hands.

[8]        The heinousness of the offences committed by the appellant and the society’s view of it were described by the sentencing court with reference to the case of S v Ncheche [2005] ZAGPHC 21; 2005 (2) SACR 386 (W) where Goldstein J stated as follows at 395 H-I.

“Rape is an appalling and utterly outrageous crime, gaining nothing of any worth for the perpetrator and inflicting terrible and horrific suffering and outrage on the victim and her family.  It threatens every woman, and particularly the poor and vulnerable.  In our country, it occurs far too frequently and is currently aggravated by the grave risk of the transmission of Aids.  A woman’s body is sacrosanct and anyone who violates it does so at his peril and our Legislature, and the community at large, correctly expect our courts to punish rapists very severely.”

[9]        The sentencing court considered the following personal circumstances of the appellant:   He was 36 years of age when he committed the offences; he was never married and was illiterate.  He had worked for a firm called Farmer Brown in 1990, and thereafter he worked on a short-term contract at Johnson Control.  The appellant did not show remorse and he lacked insight into the crimes he committed and the impact his conduct had upon his victims and community members.  The report by Mr Veveza, a Senior Probation Officer, was considered towards sentence.  From that report the sentencing court found that the mother of the complainant was still receiving counselling in order to deal with the trauma she suffered as a result of the appellant’s conduct.  She has not forgiven the appellant and she would like the court to keep the appellant away from their family.  The recommendation of Mr Veveza that the appellant be sentenced to a term of imprisonment found favour with the sentencing court.  The sentencing court also found that the appellant can differentiate between what is morally and legally wrong or right notwithstanding the evidence of the appellant’s low level of intellectual functioning as described by Miss Wendy Nunn, a Clinical Psychologist, as follows:  

“Mr Ncetezo’s intellectual functioning falls within the lowest 5% of the population. An individual with an intellectual ranking of this nature would manifest significant difficulties in social and adaptive functioning when compared with his peers.  Adults with moderate mental retardation may achieve self-maintenance in unskilled or semi-skilled work under sheltered conditions and would need supervision and guidance when under mild social or economic stress.”           

[10]      Further, the sentencing court did not consider the issue of the appellant’s drinking problem to be a mitigating factor.  By taking into account the factors that are outlined above, the sentencing court complied with the legal principles of sentencing, as set out in S v Zinn 1969 (2) SA 537 (A) at 540 G – H  that the triad of factors should be taken into account towards sentence.  And those sentencing principles would later on be adopted in S v Malgas 2001 (1) SACR 469 (SCA) at 482c.

[11]      On appeal it was submitted on behalf of the appellant that a different sentence which is less severe than life imprisonment should have been imposed had the sentencing court considered properly the facts that the appellant:  was a suitable candidate for rehabilitation; he was remorseful for the offences that he committed; the evidence did not prove that his old previous convictions of housebreaking and assault predisposed him to re-offending in the future; his problem of alcohol abuse was a mitigating factor; that causing the three sentences to run concurrently would be an appropriate sentencing method which would ameliorate the harshness of sentence; and that the psychological defects in the appellant were mitigatory.

[12]      The submissions made on behalf of the respondent were that the sentencing court correctly found that the cumulative factors placed before him did not amount to substantial and compelling circumstances and more so in that the crimes were aggravated by the fact that they were committed against the members of his own family and that the appellant still displays no feeling of remorse.

[13]      This Court does not find fault with the manner in which the sentencing court exercised its sentencing discretion.  The test for interferences with the exercise of sentencing discretion on appeal is stated in S v Malgas at page 487 to be whether the sentencing court committed a material misdirection.   In this case it was conceded by Mr Solani, for the appellant, that the sentencing court did not misdirect itself in any way.  But there is a second enquiry that must be undertaken, namely whether 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 “shockingly”, “startling” or “disturbingly inappropriate”.

[14]      In S v Matyityi 2011 (1) SACR 40 (SCA) the Supreme Court of Appeal dealt with the issue of remorse as follows at para [13]:

“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.”

In this case the finding of the sentencing court that the personal circumstances of the appellant were devoid of remorse cannot be disturbed.

[15]      Neither can this Court find a reason that the sentence of life imprisonment be reduced to afford the appellant an opportunity to be rehabilitated outside of the correctional facility in which to serve his sentence.  The offences that he committed were way too serious for the sentencing court to consider rehabilitation as the appropriate aim of sentence to be imposed.  The sentencing court stated appositely when it said:

“The crime of rape evokes widespread outrage in the communities throughout the country and that the courts have to impose quite serious punishment in line with the legislation which was enacted to particularly address the hue and cry from the members of the community.”  

[16]      The legislation that the sentencing court was referring to is the Criminal Law Amendment Act 105 of 1997 in terms of which the sentencing regime for the crimes committed in this case is provided.  In this regard it was stated in S v Malgas, supra, at 481 that the sentence of life imprisonment as ordained by the Legislature is the sentence that should ordinarily and in the absence of weighty justification be imposed by the courts.

[17]      The sentencing court’s view about rehabilitation as the aim of punishment in the context of serious crimes is supported by the case of Director of Public Prosecutions, KwaZulu-Natal v Ngcobo and Others 2009 (2) SACR 361 (SCA) where the following was stated at page 367 a – b:    

“[22] Traditional objectives of sentencing include retribution, deterrence and rehabilitation. It does not necessarily follow that a shorter sentence will always have a greater rehabilitative effect. Furthermore, the rehabilitation of the offender is but one of the considerations when sentence is being imposed. Surely, the nature of the offence related to the personality of the offender, the justifiable expectations of the community and the effect of a sentence on both the offender and society are all part of the equation? Pre-and post- Malgas the essential question is whether the sentence imposed is in all the circumstances, just.”

[18]      With the crimes of rapes and murders having egregious and aggravating features as they do – see: S v Abrahams 2002 (1) SACR 116 (SCA), the sentencing aims of retribution and deterrence often take the centre-stage and that of the rehabilitation of the accused recede to the background – see: S v Nkwanyana and Others [1990] ZASCA 95; 1990 (4) SA 735 (A) at 749 c-e, S v Mhlakaza and Another 1997 (1) SACR 515 (SCA) a 519 d –e.   

[19]      It appears from the record that the sentencing court considered the previous convictions of more than ten years against the background of expert evidence that the appellant’s low level of intellectual functioning is a mitigating factor.  In this regard the finding of the sentencing court was that the appellants’ low intellectual functioning did not affect his ability to distinguish between what is morally and legally wrong or right.  Therefore, the argument that psychological defect in the behavior of the appellant is a mitigating factor in this case cannot be sustained.

[20]      As is stated in the case of S v Cele 1990 (1) SACR 251 at 255 (A) in certain cases the accused’s intoxication does serve as a mitigating factor towards sentence.   However, this is not one of those cases because the evidence of quantity of alcohol consumed by the appellant at the time when he committed the offences was not adduced.  Further, the conduct of the appellant did not show that he was inebriated at the time when he committed the offences.

[21]      Since the sentences imposed for each of the offences were caused to run concurrently the ground relating to this aspect of sentence is baseless.

[22]      On the consideration of all the grounds upon which the appeal was noted the finding of the sentencing court that substantial and compelling circumstances do not exist in this case was correctly made.  The appeal, therefore, fails.

[23]      In the result the following order shall issue:

The appeal against sentence is dismissed.

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Z.M. NHLANGULELA

DEPUTY JUDGE PRESIDENT OF THE HIGH COURT

MTHATHA

I agree:

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C. PLASKET    

JUDGE OF THE HIGH COURT

I agree:

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N.R. MTSHABE     

ACTING JUDGE OF THE HIGH COURT

Counsel for the appellant    :    Mr T. Solani

Instructed by                       :   Legal Aid South Africa

                                                 GRAHAMSTOWN.

Counsel for the respondent   :   Adv. M.M. Sandan

Instructed by                         :   The Director of Public Prosecutions

                                                 GRAHAMSTOWN.

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