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S v Makhobuki (287/07) [2008] ZAGPHC 260 (13 August 2008)

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CASE NO: 287/07
DPP REF NO: JPV 2007/195

In the matter between:



THE STATE



and



MOSES MAKHOBUKI                             Accused                 

JAJBHAY, J:

[1]      The accused has been found guilty on two counts of rape, read with section 51(2)(b) of Act 105 of 1997; one count of rape; one count of attempted rape; two counts of attempted murder; three counts of robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977, read with section 51(2)(a) of Act 105 of 1997; one count of robbery; one count of indecent assault; and one count of escaping from lawful custody.
[2]      It is now my difficult duty to impose the relevant sentence in respect of the above convictions. The sentiments expressed S v Zinn 1969 (2) SA 537 (A) at 540G where it was said:

“What must be considered is the triad consisting of the crime, the offender and the interests of society”

remain apposite. It is trite that sentence is pre-eminently a matter for the discretion of the trial court and this discretion must be judicially and properly exercised: S v Jiannoulis 1975 (4) SA 867 (A).

[3]      The court, in imposing sentence, must have due regard to the facts of the case, and in addition thereto, must apply certain well-established legal principles relating to the extent and magnitude of punishment. An awesome responsibility is thereby vested in the court. In determining a proper sentence the legendary words of Holmes JA in S v Rabie 1975 (4) SA 855 (A) at 861A-862F contain a comprehensive and useful guideline of the principles to be applied in imposing sentence and are applied by the courts in our country. Holmes JA summed up at 862G in general, as follows:

“Punishment should fit the criminal as well as the crime, be fair to society, and be blended with a measure of mercy according to the circumstances.”

[4]      During the period May 2007 and July 2007 the residents of Weltevreden Park were terrorised, lived in abject fear, and were held to ransom. Innocent law-abiding women were being sexually violated and robbed. The accused was able to gain access to at least four homes. Having gained access to the premises, he would proceed to violate, terrorise, rob and strangle his victims.

[5]      The State led the evidence of Capt E A Myburgh attached to the Investigative Psychology Unit, Detective Services, Head Office. Capt Myburgh introduced a linkage analysis which was used to identify serial crimes that have been committed by one offender. In the opinion of Capt Myburgh, “the uniqueness of the behaviour accompanying the crimes (victimology, time of day crimes were committed, control over victims through threats and physical violence, verbal behaviour, his sexual behaviour, theft of victims’ valuables, geographical location of crime scenes) is indicative of one offender, and unlikely to be imitated by another offender in such a fashion”. According to her, the accused was a serial rapist.

[6]      The evidence established the accused terrorised his innocent victims (women) and dragged them in their homes from one room to the next. He took the victims to the brink of death. In several instances as a result of the choking, they lost consciousness. When they regained consciousness, he once more applied pressure to their throats. In two instances he raped the women when they were unconscious. In one instance, he raped a victim who was seven months pregnant. In all instances, he grabbed his victims and overpowered them with his physical strength. He then took them through their respective homes from room to room where he would look for valuables to steal. The accused was expressive in his violence. He threatened to kill the victims if they did not co-operate with him. He would normally wait for the victims to be alone in their homes and then attack them.

[8]      The personal circumstances of the accused may be summarised as follows. He has no previous convictions. At the time that the offences were committed he was 23 years old. He passed Grade 11. He had to leave school because his family could not afford to maintain his scholastic activities. At some time between 2001 and 2006 he was gainfully employed. He earned R2 000,00 per month. He is not married and has no children. He has been incarcerated since 9 July 2007. Both his parents are alive and they live in Limpopo Province. He has five siblings. He is the eldest.

[9]      The accused whilst testifying confessed in his evidence that he had committed all of the acts that he was convicted for. He begged for forgiveness from all of his victims. He informed me that he did not know what overcame him during this period. He simply was at a loss to explain why he committed these atrocious acts. It appears that he is now a reborn Christian and has found peace with his Creator. He required the victims to forgive him so that he may obtain forgiveness from his Creator.

[10]     The accused’s mother testified and stated that whilst the accused was being brought up by her, he was a good young man. He was never in trouble.



[11]     In imposing the appropriate sentence, a judicial officer should not only strive after severity, nor on the other hand should the judicial officer surrender to misplaced pity. While not flinching from firmness, where this is called for, the judicial officer should approach the task on hand with a humane and compassionate understanding of human frailties and the pressures of society which contribute to the criminal conduct. Rape in circumstances such as the present is an appalling and perverse abuse of male power. It strikes a blow at the very core of our claim to be a civilised society. The community is entitled to demand that those who perform such perverse acts of terror be adequately punished and that the punishment reflect the societal censure. In S v Chapman [1997] ZASCA 45; 1997 (3) SA 341, 345D-E (SCA) Mahomed CJ held that:

“The courts are under a duty to send a clear message to the accused in rape cases, to other potential rapists and to the community that the courts are determined to protect the equality, dignity and freedom of all women, and they will show no mercy to those who seek to invade those rights.”

[12] A rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim; a rapist degrades the very sole of the helpless female. The physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. It is violation with violence of the private person of a woman. An outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order.

[13]     Our law regulates social interests, arbitrates conflicting claims and demands. The security of persons and their property is an essential function of the State. This must be achieved through the instrumentality of criminal law. In a society ravaged by criminal conduct and violence such as ours, the living law must find answers to the new challenges and it is here that the courts are required to mould the sentencing system to meet these challenges. The contagion of lawlessness undermines social order and then may lay it in ruins. The protection of society and the stamping out of criminal proclivity must be the object of law which must be achieved by imposing the appropriate sentences. Therefore, our law as a corner-stone of the edifice of “order” should meet the challenges confronting our society.

[14]     In operating the sentencing system, our law should adopt the corrective machinery or the deterrence based on the factual matrix. By dint of deft modulation sentencing processes should be stern where this is necessary, and be tempered with mercy where it warrants this to be necessary. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for the commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the arena of consideration.

[15]     In circumstances such as the present, where the accused indicated scant regard for the dignity of his victims, it will be a mockery of justice to permit him to escape the extreme penalty of law when faced with the evidence of such cruelty. To give anything than a lesser punishment as contemplated by our law, for the accused in the present circumstances would be to render the justicing system of our country suspect. Ordinary people in our country will lose faith in our courts. In matters such as the present, ordinary people understand and appreciate the language of deterrence more than the reformative jargon.

[16]     In matters such as these, undue sympathy to impose inadequate sentences would do more harm to the justice system and to undermine the public confidence in the efficacy of law and society could no longer endure under such serious threats.

[17]     The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Some times it is the correctional needs of the perpetrator that are offered to justify a sentence. Some times the desirability of keeping the perpetrator out of circulation, and some times even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread.

[18]     After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the court. Such act of balancing is indeed a difficult task.

[19]     The imposition of a sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, for example where it relates to offences against women, children, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interests, cannot be lost sight of and therefore require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic a view, in respect of such offences will be counterproductive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.

[20]     The offences committed in this matter are of an extremely violent nature. They include rape of innocent victims. The attempted murder of the victims. And the robbery of their property. The offences are of a very serious type. To my mind the fact that the accused admitted the commission of these offences does not really indicate that he is now remorseful of his actions. Had it not been for the industrious machinery of the South African Police Services, I have no doubt that these nefarious actions would have multiplied with disastrous effects on the Weltevreden Park community. This is confirmed by Capt Myburgh. Here, no mercy was shown to the victims during their ordeal. In one instance, the fact that the victim had defecated throughout the passageway and in her room whilst being at the throws of death did not bother the accused. He raped her whilst she was in a state of unconsciousness. In another instance, the accused dragged the victim down the stairway causing serious physical injury to her. Then finally, in an act which is totally inhuman, he raped a victim who was seven months in her pregnancy. During the ordeal, he threatened to kill them. On one occasion, there was a 14 year old female child in the home. He threatened the mother of the child that he would rape the child if the mother did not cooperate with him. Here, I do not believe that there is genuine remorse on the part of accused. His conversion to a religion may stand him in good stead for the remainder of his life in prison.

[21]     It is true that reformation as a theory of punishment is in fashion but under the guise of applying such theory, courts cannot forget their duty to society and to the victims. The court has to consider the plight of the victim in a case involving obnoxious crimes committed in the present matter and the social stigma that may follow the victim to the grave and which in most cases, practically ruins all prospects of a normal life for the victim.

[22] The accused admitted his nefarious deeds during the course of the trial. He said that he intended to plead guilty at the commencement of the trial but he was dissuaded from doing so by “advisors” at prison. I observed the accused throughout this difficult trial. I am not convinced that he displayed genuine remorse. The case against him was overwhelming and incontestable at the end of the testimony tendered by the state. All the evidence pointed in his direction. I did not observe deep regret or guilt on the part of the accused.

[23] I have seriously considered the fact that the accused was a first offender at the commencement of this trial. I have also taken into account the testimony of his mother. At the time of the commission of these violations he was 23 years of age. He was gainfully employed. On the other side of the scale, I find that the conduct of the accused during and preceding the commission of the offences was so grave and repulsive, that the community must be protected against the onslaughts of such an obnoxious and unscrupulous aggressor by his removal from society for the rest of his life.

[24] The charge sheet reflects that the accused was arraigned in terms of section 51(2) (a) and 51 (2) (b) of Act 51 of 1997 in some of the charges. Here, the accused has been found to be a serial rapist with a violent disposition. Within the context of the present matter, the circumstances set out above do not constitute substantial and compelling circumstances.

[22]     In all of the above circumstances I believe the following sentence to be appropriate in the circumstances of the present case:

         Count 1:         Attempted murder – 10 years’ imprisonment.

Count 2:         Rape read with section 51(2) (b) of Act 105 of 1997 – life imprisonment.
Count 3:         Robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977 and read with section 51(2)(a) of Act 105 of 1997 – 15 years’ imprisonment.
Count 4:         Robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977 read with section 51(2)(a) of Act 105 of 1997 – 15 years’ imprisonment.

         Count 5:         Attempted rape – 10 years’ imprisonment.

Count 6:         Robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977 read with section 51(2)(a) of Act 105 of 1997 – 15 years’ imprisonment.

         Count 7:         Attempted murder – 10 years’ imprisonment.

Count 8:         Rape read with section 51(2) (b) of Act 105 of 1997 – life imprisonment.

        Count 9:         Indecent assault – 5 years’ imprisonment.

Count 10:        Rape read with section 51(2) (b) of Act 105 of 1997 – life imprisonment.

         Count 11:        Robbery – 5 years’ imprisonment.

Count 12:        Contravening section 117(a) read with section 1 of the Correctional Services Act 111 of 1998 – escaping from lawful custody – 3 years’ imprisonment.

I further make the following addtional determinations:

The sentences imposed in count 1 and count 3 will run concurrently with the sentence imposed in count 2.
The sentence imposed in count 5 will run concurrently with the sentence imposed in count 4.
The sentences imposed in counts 6, 7 and 9 will run concurrently with the sentence imposed in count 8.
The sentence imposed in counts 11 and 12 will run concurrently with the sentence imposed in count 10.

[23]     In effect, the sentence imposed on the accused means the following:

The accused will serve 3 life terms of imprisonment sentences and an additional 15 years.

                                                      __________________________

                                                               M JAJBHAY
                                                      JUDGE OF THE HIGH COURT

DATES OF HEARING                  6 AUGUST 2008 – 13 AUGUST 2008

DATE OF SENTENCE                           13 AUGUST 2008

ON BEHALF OF THE STATE            ADV CARSTENS

ON BEHALF OF THE ACCUSED                  ADV M P MDALANA