---

FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ no : 51

PARTIES: THE STATE

VS

MFUNDO NGAPHI

REFERENCE NUMBERS -

• Registrar: CC1/2006 (PE)

• Magistrate:

• Supreme Court of Appeal/Constitutional Court:

DATE DELIVERED: 28/03/2006

JUDGE(S): C. PLASKET

LEGAL REPRESENTATIVES -

Appearances

:

• for the State/Applicant(s)/Appellant(s): ADV. J. THYSSE

• for the accused/respondent(s): ADV. H. AYERST

Instructing attorneys:

• Applicant(s)/Appellant(s): D.P.P. OFFICE PORT ELIZABETH

• Respondent(s): LEGAL AID BOARD PORT ELIZABETH

CASE INFORMATION -

• Nature of proceedings : JUDGEMENT ON SENTENCE

RAPE AND ROBBERY

• Topic:

• Keywords:

IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

CASE NO: CC1/06

In the matter between:

THE STATE

and

MFUNDO NGAPHI

JUDGMENT ON SENTENCE

PLASKET J

[1] The accused was convicted of two counts of rape (counts 1 and 2) and of robbery with aggravating circumstances (count 3). He was one of three men who accosted the two complainants and, wielding knives, dispossessed them of two cell phones, R20.00 and some items of jewellery. The men then took the complainants to a nearby church where each of the men raped each of the complainants.

[2] The rape convictions attract a minimum sentence of life imprisonment in the absence of substantial and compelling circumstances because the complainants were ‘raped more then once whether by the accused or by any co-perpetrator or accomplice’ and ‘by more then one person, where such persons acted in the execution or furtherance of a common purpose or conspiracy. See s 51 of the Criminal Law Amendment Act 105 of 1997, read with Part I of Schedule 2. The conviction of robbery with aggravating circumstances attracts a minimum sentence, in the absence of substantial and compelling circumstances, of 15 years imprisonment. See s 51 of the Criminal Law Amendment Act read with Part II of Schedule 2.

[3] The evidence of the complainants was that they had been out looking for the husband of the complainant in count 2 in order to get money from him to buy milk for her child. They had been to some of his favourite haunts in the area and were returning home when they were confronted by their assailants and subjected to what was obviously a terrifying assault upon their rights to bodily integrity, to privacy and to dignity.

[4] The crimes committed by the accused must be viewed within the following context, eloquently sketched by Mahomed CJ, Van Heerden JA and Olivier JA in S v Chapman [1997] ZASCA 45; 1997 (2) SACR 3 (SCA), 5b-e:

‘Rape is a very serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim.

The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the Constitution and to any defensible civilisation.

Women in this country are entitled to the protection of these rights. They have a legitimate claim to walk peacefully on the streets, to enjoy their shopping and their entertainment, to go and come form 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.’

[5] In this case, the predatory conduct of the accused was aimed at two targets, namely, the satisfaction of his material greed by robbing his victims of their possessions, modest as those possessions were, and the promiscuous and perverted assertion of, and abuse of, male power over two defenceless women.

[6] The interests of the community call out for conduct of this nature to be appropriately punished in order to reflect the revulsion that every decent member of society feels for such conduct. In order for an appropriate sentence to be determined, however, it is necessary also to consider the nature and objective gravity of the accused’s crimes, as well as his personal circumstances.

[7] The robbery was effected by means of the accused and his co-perpetrators taking the complainants’ possessions at knife point. One of the robbers ordered the complainant in count 2 to take a ring off her finger. When she had difficulty in removing it, she was threatened with her finger being cut off. She applied saliva to her finger and managed to remove the ring, but the trauma and anxiety she suffered while struggling to remove the ring can easily be imagined. These aspects apart, however, it can be said in favour of the accused that no gratuitous violence was actually employed by them, as sometimes occurs in cases of this nature. In this sense, the robbery, even though it was a robbery with aggravating circumstances because knives were wielded, cannot be categorised as one on the upper end of the scale of seriousness.

[8] Even if the encounter between the assailants and the complainants was fortuitous and the robbery may be said to have been spontaneous and opportunistic, the decision to rape the complainants involved a measure of reflection and planning: the assailants had to force their victims over or through a fence into the yard of the church and then into the church building itself. While one of the assailants stood guard, the other two raped the complainants, until each of the three had raped each of the complainants.

[9] The J88 forms completed by the doctor who examined the complainants do not record any injuries in respect of the complainant in count 1 but, in respect of the complainant in count 2, record bleeding and increased friability in the posterior fourchette and bruising of the perineal area. Both complainants testified that they experienced pain during and after the rapes. The complainant in count 1 appears to have dealt with the psychological trauma of the experience remarkably well and with a maturity beyond her years. She stated that she did not hold what had happened to her against men in general, but against the three culprits. The complainant in count 2 does not appear to have survived her ordeal as well. Her marriage has broken down and she has felt herself unable to have consensual sex since she was raped.

[10] The accused is 22 years old. He was 20 years old at the time of the offence. He is no stranger to the criminal courts. He has three relevant previous convictions. They are convictions of assault with intent to commit grievous bodily harm, housebreaking with intent to steal and theft, and theft.

[11] A pre-sentence report has been compiled by Ms Vathiswa Hini, a social worker employed by the Department of Social Development. Before proceeding to consider the contents of Ms Hini’s report, I wish to record my appreciation of the special effort made by her to research and draft the report on very short notice.

[12] From the report, it appears that the accused was one of five siblings. He was raised by his mother because his father died when he was two years old. He still resides with his mother and siblings in Kirkwood. His involvement in the offences that are the subject of this trial was the result of him having gone to Uitenhage to visit a family friend. He was raised by his mother in accordance with what Ms Hini described as ‘strong family values and principles’.

[13] The accused’s mother is the recipient of a social grant of R780.00 per month and a child support grant of R180.00 per month. To supplement this meagre income, the accused did casual work from time to time, giving his wages to his mother for the support of the family, and some of his siblings also perform seasonal manual labour in the agricultural sector.

[14] The accused left school in 1996 while he was in standard two. He had, prior to leaving school, shown scant interest in education. It would appear that he made friends with, and fell under the influence of friends who were involved in criminal activity. His mother did not approve of these associations.

[15] Ms Hini reports that the accused has shown no remorse for what he has done. While no mention is made in the report of the robbery, he denied that he was guilty of rape, alleging that he had consensual sex with the complainants.

[16] Ms Hini interviewed the complainants and she has reported on the effect of the rapes on them. I have dealt with this above, on the basis of the evidence they gave during the trial. It bears mention, however, that both of the complainants have received counselling to assist them in dealing with the trauma that they were forced to endure.

[17] On the basis of the evidence I have set out, I am now required to impose a sentence on the accused that takes into proper account the interests of society, the crimes and the personal circumstances of the accused. With regard to the first of these, I am acutely aware of the fact that offences like this – in which innocent women are accosted in the street, robbed and raped -- are disturbingly common-place, and are self-evidently extremely serious.

[18] In this case, however, despite the threats made by the robbers, the robbery was not one that could properly be categorised as being among the most serious deserving of the minimum sentence, and care must be taken not to confuse the act of robbery with the rapes that followed, thereby allowing a ‘spill-over effect’ to distort one’s view of the true objective gravity of the robbery. See by way of comparison, S v Cunningham 2004 (2) SACR 16 (E), 21d-22b.

[19] The rapes of the complainants, base as they were, did not result in serious physical injuries, and the psychological trauma suffered by the complainants was not out of the ordinary: indeed, as I observed earlier, the complainant in count 1 endured her ordeal remarkably well and with a maturity beyond her years, while the complainant in count 2 did not cope as well. It is noted that both have received counselling form Rape Crisis. As to the objective gravity of the offence as a relevant factor in sentencing in rape cases, see S v Abrahams 2002 (1) SACR 116 (SCA), para 29; S v Mahomotsa 2002 (2) SACR 435 (SCA), paras 16-17; Rammoko v Director of Public Prosecutions 2003 (1) SACR 200 (SCA), para 12. In addition, I take into account, specifically, the youthfulness of the accused. These factors together constitute substantial and compelling circumstances that render the prescribed minimum sentences of 15 years imprisonment for the robbery and life imprisonment for the rapes inappropriate and disproportional.

[20] Sight cannot be lost of the fact that the accused – despite his youth – has previous convictions for crimes involving both attacks on the physical integrity of others and on their property rights. Sight also cannot be lost of the fact that the accused was not prepared to articulate any remorse for his actions. These factors will be taken into account as aggravating factors.

[21] In my view, part of the sentence for the robbery should run concurrently with the sentence for the rapes, to mitigate the harshness of the cumulative effect of the sentences I consider appropriate for each offence. I also take the view that both counts of rape, being so ‘closely connected in time, place and circumstance’ should be taken together for purposes of sentence. See, in this respect, Du Toit, De Jager, Paizes, Skeen and Van Der Merwe Commentary on the Criminal Procedure Act, 28-19; S v Mofokeng 1977 (2) SA 447 (O), 448H-449A.

[22] I consider a sentence of eight years imprisonment to be appropriate for the robbery and 16 years imprisonment to be appropriate for the rapes. Four years of the sentence for the robbery will run concurrently with the sentence of 16 years imprisonment for the rapes. The cumulative effect of the sentence is thus a 20 year sentence of imprisonment.

[23] The following order is made:

(a) The accused is sentenced to 16 years imprisonment in respect of counts 1 and 2, both counts being taken together for purposes of sentence.

(b) The accused is sentenced to eight years imprisonment in respect of count 3.

(c) Four years of the sentence imposed in respect of count 3 shall run concurrently with the sentence imposed in respect of counts 1 and 2.

____________________________

C. PLASKET

JUDGE OF THE HIGH COURT

---