---

REPUBLIC OF SOUTH AFRICA

THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: A118/2016

Reportable: No

Of interest to other judges: No

22 March 2017

In the matter between:

KHUMALO, MOJALEFA                                                                                            APPELLANT

and

THE STATE                                                                                                               RESPONDENT

 

JUDGMENT

 

SHANGISA AJ:  

Introduction

[1] On 14 March 2013 the appellant was convicted on two counts of kidnapping and Rape in terms of s 51 of the Criminal Law Amendment Act[1] in the regional court, Soweto, and sentenced to fifteen years’ imprisonment. Both counts were taken together for purposes of sentence.

[2] Pursuant to the provisions of s 309 of the Criminal Procedure Act[2] the appellant’s application for leave to appeal against conviction was dismissed. He was, however, granted leave to appeal only against his sentence.

[3] Throughout the trial, the appellant was represented by an attorney.

[4] The incident giving rise to the present appeal took place on 27 April 2012. On that evening, the complainant, a 51 year old mother of two, was on her way home from a tavern when the appellant and his accomplice grabbed and dragged her to a nearby school where they assaulted and raped her. Medical evidence led at the trial indicated that, as a result of the rape, the complainant sustained some injuries in the form of bruises and abrasions to her fossa navicularis.

The Sentence

[5] On sentence, the learned magistrate considered the personal circumstances of the appellant which were as follows. At the time of the offence, he was a 28 year old single father of two minor children aged 7 and 3, respectively. Although he financially looked after his children, they however lived with his biological mother. The appellant attended school up to matric. At the time of the incident, he was employed at a company called Uni Bisco Biscuit. His job entailed deliveries, and he earned a weekly salary of R1800 00. What is more, the trial court also took into account the fact that the appellant was a first offender.

[6] The learned magistrate also paid regard to some aggravating circumstances in the case. In that regard, the trial court took into account the seriousness of the charge of rape. It further accepted the complainant’s evidence that the appellant and his co-perpetrator were well known to her since their childhood. On that score, on his own version, the appellant readily conceded that he had attended both primary and high school with one of the complainant’s children. The court a quo correctly observed that the complainant was old enough to be the appellant’s mother. It accordingly dismissed the appellant’s evidence and defence that he and his co-perpetrator had had consensual sexual intercourse with the complainant. Indeed, on the evidence as a whole, it appears that the appellant’s defence was correctly dismissed as far-fetched and fanciful. Consequently, the court correctly convicted the appellant and his accomplice and found them guilty of rape.

[7] On sentence, it is worth noting that upon consideration of all relevant factors, the learned magistrate found that the appellant’s personal circumstances constituted substantial and compelling circumstances as contemplated in s 51 (3) (a) of the Criminal Law Amendment Act[3]. Having found that substantial and compelling circumstances existed, the court a quo then decided to deviate from the prescribed minimum sentence of life imprisonment, but instead opted to impose on the appellant an effective sentence of 15 years’ imprisonment for both kidnapping and rape.

[8] Before us, the sentence was assailed on behalf of the appellant on several grounds. In particular, two such grounds of attack merit some consideration. First, it was urged upon us that the learned magistrate had placed undue weight on the fact that the complainant had been “gang raped”. We cannot agree. Although the learned magistrate described the multiple rape of the complainant by what in ordinary parlance is commonly referred to as “gang rape”, evidence had clearly established that the appellant and his accomplice had taken turns in raping the complainant. There is no gainsaying that the complainant was raped by more than one person. Accordingly, the appellant and his accomplice fell foul of the provisions of s 51 (1) of Act 105 of 1997. In particular, the circumstances of the rape in this matter fall squarely within the purview of the provisions of Part I of Schedule 2 which contemplate Rape-:

‘(a) when committed-

(i) in circumstances where the victim was raped more than once whether by the accused or by any co-perpetrator or accomplice;

(ii) by more than one person, where such persons acted in the execution of furtherance or a common purpose or conspiracy.’

[6] The abovementioned provision drives the point home that the appellant was convicted of a gravely serious offence of rape. It should be borne in mind that the offence of rape for which the appellant was convicted falls into the category of serious offences that are specifically mentioned in Part I of Schedule 2 of Act 105 of 1997. Thus, in S v C 1996 (2) SACR 181 (C) at 186 D-F the court aptly described the seriousness of rape in the following terms:

‘Rape is regarded by society as one of the most heinous of crimes, and rightly so. A rapist does not murder his victim-he murders her self-respect and destroys her feeling of physical and mental integrity and security. His monstrous deed often haunts his victim and subjects her to mental torment for the rest of her life-a fate often worse than loss of life. Serial rapists and murderers are regarded by society as inherently evil beings. They are the most feared and loathed criminals in our community. Society demands protection in the form of heavy and deterrent sentences from the courts against such atrocious crimes.'

[10] In the same breadth, in S v Chapman [1997] ZASCA 45; 1997 (3) SA 341 (SCA) at 345 C-D the Supreme Court of Appeal described the seriousness of rape as follows:

‘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 from work, and to enjoy the peace and tranquility of their homes without the fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives.’

[6] The factual matrix of the present matter clearly establishes that the complainant was severely subjected to rape by the appellant and his accomplice. Their unlawful conduct brought them within the net of the provisions of Part I of Schedule 2 of Act 105 of 1997. Consequently, the appellant faced a sentence of life imprisonment unless the trial court found that there were substantial and compelling circumstances which warranted a departure from such a prescribed minimum sentence. At any rate, that is precisely what the learned magistrate did. Having satisfied herself that substantial and compelling circumstances existed in the matter, she quite properly departed from imposing the prescribed minimum sentence of life imprisonment. Instead, she imposed a lesser sentence of 15 years’ imprisonment. We find that, upon proper consideration of all relevant circumstances of the present matter, the approach adopted by the learned magistrate on sentence cannot be faulted.

[6] The second ground advanced on behalf of the appellant for assailing the sentence of 15 years’ imprisonment is that such a sentence unduly lengthy and that it therefore induces a sense of shock. Again, we disagree. Although the learned magistrate correctly departed from imposing the prescribed minimum sentence of life imprisonment, she properly took into account the fact that the crime of Rape:

‘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 bench mark which the Legislature has provided’.[4] (Our emphasise)

[15] As an appellate court, we are unable to interfere with the sentence of the trial court in the absence of evidence indicating that it was actuated by a material misdirection; or that the sentence is disturbingly inappropriate; or that it induces a sense of shock. As was stated in S v Malgas 2001 (1) SACR 469 SCA at 478 D-H:

‘A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, an appellate Court is of course entitled to consider the question of sentence afresh. In doing so, it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellate Court is at large. However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when 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 ‘shocking’, ‘startling’, or ‘disturbingly inappropriate’. It must be emphasised that in the latter situation it may not substitute the sentence which it thinks appropriate merely because it does not accord with the sentence imposed by the trial court or because it prefers it to that sentence. It may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned. No such limitation exists in the former situation.’ (Our emphasis)

[16] As already mentioned, the appellant in this matter has not proffered any evidence of material misdirection on the part of the learned magistrate’s judgment on sentence to justify our interference with the sentence she imposed. Nor has any submission persuaded us that there was in fact any such material misdirection. On the contrary, the learned magistrate appears to have been alive to the import of ‘substantial and compelling’ circumstances, as enunciated by the court in Malgas at 477 E-H:

‘But for the rest I can see no warrant for deducing that the legislature intended a court to exclude from consideration, ante omnia as it were, any or all of the many factors traditionally and rightly taken into account by courts when sentencing offenders. The use of the epithets ‘substantial’ and ‘compelling’ cannot be interpreted as excluding even from consideration any of those factors. They are neither notionally nor linguistically appropriate to achieve that. What they are apt to convey, is that the ultimate cumulative impact of those circumstances must be such as to justify a departure. It is axiomatic in the normal process of sentencing that, while each of a number of mitigating factors when viewed in isolation may have little persuasive force, their combined impact may be considerable. Parliament cannot have been ignorant of that. There is no indication in the language it has employed that it intended the enquiry into the possible existence of substantial and compelling circumstances justifying a departure, to proceed in a radically different way, namely, by eliminating at the very threshold of the enquiry one or more factors traditionally and rightly taken into consideration when assessing sentence. None of those factors have been singled out either expressly or impliedly for exclusion from consideration.’ (Our emphasis)

[17] In the same vein, the court proceeded to note that in cases where minimum sentences are prescribed:

‘All factors…….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.

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

[18] In the present matter, properly construed, the decision of the learned magistrate on sentence accords with the abovementioned principles as enunciated in Malgas. The learned magistrate properly considered the personal circumstances of the appellant and other mitigating factors, and was swayed to depart from imposing the prescribed minimum sentence of life imprisonment. She accordingly found that, balanced against the aggravating factors, a sentence of 15 years was appropriate.

[19] Although each individual case necessarily turns on its own peculiar facts, our courts have been consistent in emphasizing the importance of meting out appropriate sentences that are proportionate to the particular offences. In the present matter, it does not follow that because the trial court departed from the prescribed minimum sentence, it should have refrained from imposing an equally severe sentence which is appropriate in the circumstances. On the contrary, the fact that rape falls into the category of serious offences that ordinarily attract prescribed minimum sentences was all the more reason the learned magistrate was justified in imposing a lengthy sentence.  In that regard, the approach and attitude adopted by the learned magistrate in the present matter accords with the caution sounded in Malgas above.

[18] We do not think there is merit to the criticism that the learned magistrate should have imposed a much lesser sentence. What is more, to illustrate the importance of meting out appropriate sentences for serious offences, we can do no better than refer to an equally apt warning sounded by Ackermann J in the locus classicus of  S v Makwanyane and Another [1995] ZACC 3; 1995 (2) SACR 1 (CC) at 65 B-D:

‘Members of the public are understandably concerned, often frightened, for their life and safety in a society where the incidence of violent crime is high and the rate of apprehension and conviction of the perpetrators low. This is a pressing public concern. However important it undoubtedly is to emphasise the constitutional importance of individual rights, there is a danger that the other leg of the constitutional State compact may not enjoy the recognition it deserves. I refer to the fact that in a constitutional State individuals agree (in principle at least) to abandon their right to self-help in the protection of their rights only because the State, in the constitutional State compact, assumes the obligation to protect these rights. If the State fails to discharge this duty adequately, there is a danger that individuals might feel justified in using self-help to protect their rights. This is not a fanciful possibility in South Africa. ‘The need for a strong deterrent to violent crime’ is underscored by the President in his judgment as is the duty of the State, through the criminal justice system, to ensure that offenders will be apprehended and convicted, for these steps are conditions precedent to punishment.’

[19] The established facts in the present matter certainly cried out for a severe sentence. Accordingly, we are satisfied that the learned magistrate was correct in imposing a lengthy sentence and that, in the event, she exercised her discretion judiciously. When considered in the light of the traditional triad of the offence, the personal circumstances of the appellant and the interests of the community, we find that the sentence of 15 years’ imprisonment imposed on the appellant is appropriate.

 

The Order

[20] In the circumstances, the appeal against sentence is dismissed.

 

_______________________

Shangisa AJ

Acting Judge of the High Court,

Gauteng Local Division, Johannesburg

 

I agree.

 

______________________

Sutherland J

Judge of the High Court,

Gauteng Local Division, Johannesburg

 

Hearing:         16 March 2017

Delivered:      22 March 2017

 

For the Appellant:

Adv C Pleho,

Instructed by Legal Aid South Africa,

Johannesburg Justice Centre.

 

For The State:

Adv N P Serepo.

[1] Act105 of 1997

---