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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

[EASTERN CAPE LOCAL DIVISION: MTHATHA]

Case No. CC17/2017

In the matter between:

THE STATE

VS

MPHO LEHULA                                                                                           Accused No.1

OLWETHU SOKOTI                                                                                     Accused No.2

JUDGMENT ON SENTENCE

JOLWANA J

[1] The accused were found guilty of various types of violent crimes all of which were committed by the accused by breaking into the homes of the victims who were asleep.  In respect of the first incident on the 9 August 2016 at night, after breaking in the accused raped the victims, shot and killed the deceased when she intervened to protect her daughter from being raped for the second time by one of the accused.  They robbed the victims of their cellphones, money and other goods.  One day after that incident on the 11 August 2016 at night the accused broke into a flat rented by three school going students who were renting a small flat at Qoboshianeng to be closer to R Senior Secondary School where they were doing grade 12.  At that time those victims were also sleeping only to be woken up by armed men who were the two accused.  Two of the victims were raped and one of the victims was also stabbed.  The third victims had to subject herself to a humiliating inspection by the accused who wanted to see it for themselves that she was on her menstrual cycle as she claimed to be.  This is what saved her from being raped whilst her two flatmates were raped on threats of being shot and killed if they refused.  The accused also robbed the victims of their cellphones and a Sesotho traditional blanket.

[2] These are very violent crimes most of which fall within the purview of section 51 of the Criminal Law Amendment Act 105 of 1997 which calls for certain minimum sentences under certain circumstances for some of the offences for which the accused have been convicted.

[3] The legal position and guiding principles with regard to sentencing where minimum sentences are applicable were stated as follows by the Supreme Court of Appeal in S v Malgas[1]:

“A. Section 51 has limited but not eliminated the court’s discretion in imposing sentence in respect of offences referred to in Part 1 of Schedule 2 (or imprisonment for other specified periods for offences listed in other parts of Schedule 2)

B. Courts are required to approach the imposition of sentence conscious that the Legislature has ordained life imprisonment (or the particular prescribed period of imprisonment) as the sentence that should ordinarily and in the absence of weighty justification be imposed for the listed crimes in the specified circumstances.

C. Unless there are and can be seen to be truly convincing reasons for a different response, the crimes in question are therefore to elicit a severe, standardised and consistent response from the courts.

D. The specified sentences are not to be departed from lightly or for flimsy reasons.  Speculative hypothesis favourable to the offender, undue sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy underlying the legislation, and marginal differences in personal circumstances or degrees of participation between co-offenders are to be excluded.

E. The Legislature has however deliberately left it to the courts to decide whether the circumstances of any particular case call for a departure from the prescribed sentence.  While the emphasis has shifted to the gravity of the type of crime and the need for effective sanctions against it, this does not mean that all other considerations are to be ignored.

F. All factors (other than those in A above) traditionally taken into account in sentencing (whether or not they diminish moral guilt) thus continue to play a role, none is excluded at the outset from consideration in the sentencing process.

G. The ultimate impact of all the circumstances relevant to sentencing must be measured against the composite yard stick (substantial and compelling) and must be such as cumulatively justify a departure from the standardised response that the Legislature had ordained.

H. In applying the statutory provisions it is inappropriately constricting to use the concepts developed in dealing with appeals against sentence as the sole criterion.

I. If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crimes, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.

J. In doing so, account must be taken of the fact that crime of that particular kind has been singled out for severe punishment and that the sentence to be imposed in lieu of the prescribed sentence should be assessed paying due regard to the benchmark which the Legislature has provided.”

The personal circumstances of the accused

Accused no.1

[4] Accused no.1 did not testify in mitigation of sentence and did not call any witnesses.  However, submissions were made on his behalf.  Accused no.1 will be 26 years old next week on the 10 March 2020 as he was born on 10 March 1994.  He was born at Ramafole locality in Mount Fletcher.  Within one year of his birth in 1995 his mother took him to his father’s family where he was raised by his paternal grandmother.  His paternal grandmother passed away in 2009 followed by his mother who passed away a year later in 2010 who, in any event, had no relationship with him.  His father also passed away that very same year in 2010.

[5] In 2004 he had to leave Mount Fletcher and went to live with his stepmother in Qwaqwa who treated him very badly.  He had to return to Mount Fletcher when his stepmother died when he was doing grade 9.  He ended up being assisted by different relatives in growing up and even staying alone at times as most people who were close to him had passed on.  At some stage he got a job with a company that was installing electricity in Ramafole.  In 2014 that company closed down and left the area leaving him unemployed.

[6] It was further submitted that he has got a previous conviction for murder which was committed in the same year as these offences for which he has now been convicted.  He was sentenced to 18 years imprisonment for the said murder which he is now currently serving.  He had pleaded guilty to the said murder.  It was also pointed out that save for the rape charges on the Qoboshianeng incident, he had pleaded guilty to all the other offences committed there.  A point was further made that since his arrest on 21 August 2016 he has been in custody as an awaiting trial prisoner and therefore the pre-sentence incarceration period until his conviction should also be taken into account.

[7] While in prison for a previous conviction he obtained an attendance certificate in respect of one of the prison programmes which are designed to assist offenders with rehabilitation.  He passed the programme which included subjects like cross roads, behaviour modification on gangsterism, economic crime, sexual offences, substance abuse, anger management, new beginning and restorative justice.  It was submitted that he is remorseful about his crimes so much that he asked his cousin who attended court during trial to ask for forgiveness from the victims of his crimes on his behalf.

Accused no.2

[8] Accused no.2 also did not testify in mitigation of sentence but submissions were made on his behalf.  Accused no.2 was born on 03 March 1994 in Ramafole.  It was submitted that he is therefore a young man.  He has got two children who are twins.  These twin children were born on 03 December 2015 and are therefore four years old now.  He went to school up until he passed grade 10.  He was nine years old when his mother passed away in 2003.  In 2006 he was taken by his stepmother who lived with him since then.  However his stepmother who did look after him well separated with his father in 2018, two years after his arrest.  At the time of his arrest he was staying at his home with his stepmother and his father.

[9] He was arrested on 21 August 2016 for the charges in respect of which this court convicted him.  At the time of his arrest he was unemployed.  It was submitted that his youthfulness, unemployment and alcohol played a role.  The state witnesses’ evidence which has been accepted by this court was that the accused and others who were with them had been drinking before the offences were committed on the 09 August 2016.  It was further submitted that the crimes for which they were convicted were not premeditated but were rather opportunistic.  One of the state witnesses did testify that in going to the M homestead the intention was to pick up cellphones of his from that homestead.  However, this could not possibly be true as none of the witnesses in that homestead knew any of the assailants.

[10] On the basis of those personal circumstances of both accused as foreshadowed herein, it was submitted that they are candidates for rehabilitation.  For that reason, so that submission went, the court should not punish them in anger in light of the obviously serious offences for which they were convicted. The court should lean on the side of mercy and not over emphasize the communities’ aggrievement about these crimes.  The personal circumstances of both accused, it was submitted, considered cumulatively, do amount to being substantial and compelling circumstances such as to justify a departure from the prescribed minimum sentences.

[11] Contrariwise the state submitted that as the judgment on the merits of the case shows, the offences for which the accused were charged and convicted are very serious.  It was highlighted that the deceased was shot and killed while trying to save her daughter from being repetitively raped.  The evidence of Z was that she was initially raped at the same time that S was also raped.  The person who raped S also came to rape her after she had already been raped by one of the assailants.  It was at this stage that her mother picked up a small stick and hit the assailant at his back.  The said assailant then said “are you fighting back”.  He thereafter retaliated by fatally shooting the deceased after which he continued to rape Z.

[12] Z witnessed the shooting of her mother and was also raped even after her mother had been shot and was lying helplessly on the floor.  Z was also taken to the kitchen where she was again raped by one of the assailants.  Amanuel, one of the victims of the Mathafeni incident on the 09 August 2016, was not only robbed of some items and money, he was also tortured for more money by being burned with burning plastic.  The corroborating evidence of the doctor was that he saw him after five days of the attack with “scalding or burn wounds”.

[13] In the second incident which was committed on the 11 August 2016 at Qoboshianeng, one day after the rapes, killing and robbery at Mathafeni at the M homestead, school girls were raped.  Their evidence was that they rented their one roomed flat which they shared to be closer to school at R Senior Secondary School where they were all doing matric.  At the time of the attack they were about to write trial examinations for grade 12.  N and M were raped and M was also stabbed.  A was saved from being raped because she was on menstruation at the time of the attack.  They were robbed of their cellphones and a blanket that belonged to A.

[14] On these facts, the state submitted in aggravation of sentence that the offences were not only serious but they also constituted part of the rampant abuse of women in this country.   The victims were evidently attacked because they were females and were therefore defenceless.  The accused, accordingly to the evidence of Okuhle who was part of the criminal gang in the first incident had armed themselves with two firearms.  The evidence of Andile and Anam was that there were two firearms that they got from the accused.  One was in their bag and the other one fell from accused no.2 when he ran away at Polile locality.  It is important to point out that when the two accused apparently took refuge at Polile locality country side with their illbegotten goods, both incidents had already happened.  They were seen at Polile on the 17 and 18 August 2016.  The offences had been committed on the 9 and 11 August 2016. 

[15] The evidence in these incidents showed graphically the callousness of the accused and their disregard for the sanctity of life generally and the bodily integrity of women.  The victims were all awaken from their peaceful sleep at their homes when the accused struck and mercilessly attacked them.  The accused have asked the court to be merciful when it sentences them and that it should not impose the sentences prescribed by the Criminal Law Amendment Act which gives the court a discretion to look at the presence or otherwise of substantial and compelling circumstances.  The issue to which I now turn is whether the personal circumstances of the accused, even considered cumulatively, do amount to substantial and compelling circumstances so as to justify a departure from the prescribed minimum sentences.

[16] In S v Chapman[2] Mohammed CJ, as he was then was, commenting on the invasive and degrading nature of rape on its victims, expressed the following sentiments:

“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 civilization.  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 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”

[17] In this case in both crime scenes the victims were school going young women. They were at their respective places of abode where they were perfectly entitled to assume that they were safe as they were enjoying their sleep in their own sanctuaries.  All of that was brought to an end abruptly and brutally when the accused attacked.  The communities of Mathafeni and Qoboshianeng and indeed all the communities in our country would be understandably entitled to seek retribution for such merciless attacks especially against women. S was only 16 years old when she was raped.  On the other hand Z who was also 16 years old was raped by more than one person and the accused acted in execution or furtherance of a common purpose.

[18] On this very issue the Supreme Court of appeal has given guidance on the balanced approach necessary in sentencing, even in respect of violent and pervasive attack on the women in this country.  In S v SMM[3] the court said:

“It is equally important to remind ourselves that sentencing should always be considered and passed dispassionately, objectively and upon a careful consideration of all relevant factors.  Public sentiment cannot be permitted to displace the careful judgment and fine balancing that are involved in arriving at an appropriate sentence.  Courts must therefore always strive to arrive at a sentence which is just and fair to both the victim and the perpetrator, has regard to the nature of the crime and takes account of the interests of society.  Sentencing involves a very high degree of responsibility which should be carried out with equanimity.  As Corbett JA put in S v Rabie:

‘A judicial officer should not approach punishment in a spirit of anger because, being human, that will make it difficult for him to achieve that delicate balance between the crime, the criminal and the interests of society which his task and the objects of punishment demand of him.  Nor should he strive after severity, nor, on the hand surrender to misplaced pity. While not flinching from firmness, where firmness is called for, he should approach his task with a humane and compassionate understanding of human frailties and pressures of society which contribute to criminality.’”

[19] I have already said a lot about the serious nature of the crimes that were committed by the accused and that the society’s anger is justified.  It is not difficult to see that indeed accused no.1 had a very difficult upbringing.  This includes the fact that his own mother did what only very few mothers would do, dropping a one year old baby to be raised and cared for by other people.  He was not even out of his teens when all of his parents were dead.  This included his stepmother.  The facts on his upbringing were made in submissions on his behalf.  The expression of remorse was, likewise, not supported on any evidential basis.  Even his cousin whom he claimed through his legal representative, to have asked him to go and ask for forgiveness to the victims on his behalf, was never called to testify and report on that.  As a result, it remains doubtful if that remorse was communicated to the victims.  Worst of all he also did not himself testify and express the remorse in court to enable this court to have a well-founded appreciation of the remorse so claimed.

[20] My views on the remorse cannot be better expressed than in the words of Ponnan JA in S v Matyityi[4] where the learned judge of appeal said:

“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 or not he or she does indeed have a true appreciation of the consequences of those actions.”

[21] The two accused denied committing any of the offences in respect of the Mathafeni incident throughout the trial.  They persisted with their denial even when two state witnesses who were also at the M homestead on the night of the commission of the offences testified.   More significantly, one of those witnesses was Okuhle who was a co-perpetrator with the accused and is serving a term of imprisonment for his role in the attack.  The two accused persisted with their bare denials to the point of accusing the victims and other state witnesses of lying and falsely implicating them.  Accused no.2 went further and created a false story of having been in a love relationship with the deceased.  This, he did just so as to have an explanation for his hand glove found by the police at the crime scene which was linked to him through DNA evidence.

[22] It gets worse.  Both of them have previous convictions.  On 25 October 2016 accused no.1 was sentenced to 18 years imprisonment for a murder which he committed earlier in 2016.  When he was arrested for this case, accused no.1 was out on bail for that murder.  In the same year, he not only raped a number of people, he was also involved in the murder of two people including the deceased in this matter.  He basically abused his release on bail to commit more violent crime, thus undermining the very justice system which saw him being released on bail.

[23] Accused no.2 has two previous convictions.  The first one was committed on 26 May 2014 for which he was sentenced on 9 June 2014 to a fine of R4 000.00 or 5 months imprisonment for possession of presumably stolen property.  Thereafter on 25 October 2015 accused no.2 committed the crimes of housebreaking with intent to steal and theft for which he was sentenced to 12 months imprisonment on the 9 March 2016.  That is the very same year in which he committed these offences for which he has been found guilty by this court.  He undermined the parole system which would have seen him being released before he served his full sentence of 12 months imprisonment.  The difference now is that he committed a lot more serious crimes in this case.

[24] With all of this factual background in mind it was submitted that on the basis of their personal circumstances the court should not impose the prescribed sentences.     It is unfortunate that accused no.1 had such a difficult upbringing.  Every child deserves a loving warm home as he or she grows up and deserves the involvement of both parents where this is possible.  However, I do not believe that the mere mention of a difficult upbringing should, without more, necessarily result in the departure from the prescribed minimum sentences.  The accused have clearly showed that they have no respect for women.  They abused their victims raping them for sexual gratification.  This, they did one attack shortly after the other at the different crime scenes.  It is highly probable that had they not been arrested more women could have fallen prey to their despicable conduct.

[25] In S v Vilakazi[5] the court said:

“In cases of serious crime the personal circumstances of the offender, by themselves, will necessarily recede into the background. Once it becomes clear that the crime is deserving of a substantial period of imprisonment the questions whether the accused is married or single, whether he has two children or three, whether or not he is in employment, are in themselves largely immaterial to what the period should be, and those seem to me to be the kind of ‘flimsy’ grounds that Malgas said should be avoided.  But they are nonetheless relevant in another respect.  A material consideration is whether the accused can be expected to offend again.  While that can never be confidently predicted his or her circumstances might assist in making at least some assessment.  In this case the appellant had reached the age of 30 without any serious brushes with the law.  His stable employment and apparently stable family circumstances are not indicative of an inherently lawless character.”

[26] These accused have been repetitively committing violent crimes in a rather short period of time.  There is no basis on which it can be said with near certainty, that they are unlikely to re-offend and terrorise, rape and even kill women.  If anything, their record shows their propensity for violent crime.  Besides, the court in S v Malgas made it clear that the specified minimum sentences are not to be departed from that easily for what the court called “flimsy reasons”.  In this case and in light of the fact that the two accused’s personal circumstances are, in any event, neither substantial nor compelling in my view, even when considered cumulatively, they must indeed recede into the background. 

[27] Having a very difficult upbringing cannot, on its own be regarded as necessarily substantial and compelling circumstances.  Evidence would have to be led to show that the accused’s difficult upbringing had a direct bearing on his propensity for violent crime and disregard for human life and disrespect for women.  Minus that evidence, there would be no justifiable basis for the departure from of the sentences prescribed by the Legislature as the very basis for the determination of its effect on his propensity for violent crime is lacking and at best speculative.  It cannot be denied that there are many young people who grow up at orphanages and some with relatives, some without ever even knowing their biological parents.  They do not necessarily become criminals.  In fact some of them become good members of their communities and make a positive contribution in their societies and the economy in this country.

[27] In the result, the accused are sentenced as follows:

1. The accused are each sentenced to life imprisonment for count 4, the murder of Nokuthula M.

2. The accused are each sentenced to life imprisonment for count 3, the rape of Z M.

3. The accused are each sentenced to 15 years imprisonment for count 2, the rape of S K.

4. Accused no.1 is sentenced to 15 years imprisonment for count 9, the rape of N M.

5. Accused no.2 is sentenced to 15 years imprisonment for count 8, the rape of M M.

6. In respect of counts 5, 6, 10, 11 and 12 which are robberies with aggravating circumstances both accused are each sentenced to a single term of 15 years imprisonment for all those offences.

7. In respect of counts 1 and 7 which are housebreaking with intent to commit an offence, the accused are each sentenced to 5 years imprisonment for both offences.

8. In terms of section 39(2) of the Correctional Services Act 111 of 1998, the above sentences shall run concurrently.

___________________________

M.S. JOLWANA

JUDGE OF THE HIGH COURT

Appearances

Counsel for the State: L. Pomolo

Instructed by: NPA

Mthatha

Counsel for Accused No.1: M. Nokwali

Instructed by: Legal Aid South Africa

MTHATHA

Counsel for Accused No.2: J.L. Ntikinca

Instructed by: Legal Aid South Africa

MTHATHA

Sentence delivered: 06 March 2020

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