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
GAUTENG DIVISION, PRETORIA

(1)	NOT REPORTABLE
(2)	NOT OF INTEREST TO OTHER JUDGES
(3)	REVISED

CASE NUMBER: A876/16
DATE:	3 November 2017

ANDRIES KANSAS SHONGWE (SHOBA)				Appellant

V

THE STATE									Respondent

JUDGMENT

MABUSE J:

[1]	This is an appeal by the appellant, Mr. Andries Kansas Shongwe, against sentence. This appeal is noted in terms of the provisions of s. 09(1)(a) of the Criminal Procedure Act 51 of 1977 ("the CPA"). The said section provides as follows:

"Subject to section 84 of the Child Justice Act 2008 (Act No. 75 of 2008), any person convicted of any offence by any lower court (including a person discharged after conviction) may, subject to leave to appeal being granted in terms of section 3098 or 309C, appeal against such conviction and against any resultant sentence or order to the High Court having jurisdiction: Provided that if that person was sentenced to imprisonment for life by regional court under section 51(1) of the Criminal Law Amendment Act 1997 (Act No. 105 of 1997), he or she may note such an appeal without having to apply for leave in terms of section 3098: Provided further that the provisions of section 302(1)(b) shall apply in respect of a person who duly notes an appeal against a conviction, sentence or order, as contemplated in section 302(1)(a). ''

[2]	The appellant appeared before a regional court magistrate at Evander where he was charged with,
in count 1: kidnapping of a certain T.G.N committed at Lesley on 22 December 2013;
in counts 2, 3 and 4: rape of the said T.G.N; and
in count 5: assault with intent to do grievous bodily harm committed on 1 January 2014 and at Leslie upon the said T.G.N ("the complainant"). It Is alleged that the appellant stabbed the complainant thrice with a knife on her body with the intention thereby to inflict on her grievous bodily harm.
[3]	Counts 2, 3 and 4 in particular were read subject to the provisions of s. 51(1) of the Criminal Law Amendment Act 105 of 1997 ("the Minimum Sentence Act"). According to the provisions of this Act, the Court is obliged, in the event of a conviction of certain rapes and in the absence of substantial and compelling circumstances, to impose a sentence of life imprisonment on a person so convicted. Notwithstanding the fact that the charges against the appellant were read subject to the provision of the said Act and notwithstanding furthermore that the appellant was duly represented, the court a quo took a step further and explained to the appellant what the import of s. 51(1) of the said Act was. In addition, the Court explained to the appellant the competent verdicts in respect of each count.
[4]	The appellant, who enjoyed legal representation throughout the entire trial, pleaded not guilty to all the 5 counts and, through his legal representative, chose to make no plea­ explanation.
[5]	Despite his plea of not guilty to all the five charges, the court a quo convicted him accordingly and, upon conviction, sentenced him as follows:
Count 1: 5 years imprisonment;
Counts 2, 3 and 4 each: Life imprisonment; and
Count 5 5 years imprisonment.
The court a quo ordered, in terms of s. 280 of the CPA, that all the sentences imposed on the appellant should run concurrently with the result that virtually the appellant is serving a sentence of life imprisonment.
[6]	Asserting his rights in terms of s. 3098(1)(a) of the CPA, the appellant now appeals against the sentences imposed on him on the numerous grounds that he has fully set out in his application for leave to appeal. It will be otiose for this Court to try and set them out in this judgment. It is sufficient, though, to point out that, with regard to his grounds of appeal against sentence, the thrust of his appeal is that the sentences imposed on him by the court a quo are strikingly inappropriate. He also complained , inter alia, that the court a quo disregarded the period that he spent in custody whilst awaiting trial.
[7]	The charges against the appellant arose from the following set of facts. On 22 December 2013 at 19h30 whilst she was walking from her aunt's place to the RDP houses in Leslie, the complainant met with the appellant on a certain bridge. She was alone and so was he. The appellant stopped her by blocking her path. She refused to stop but moved to either side of the appellant in order to pass him. The appellant grabbed her by her hand. He forced her to walk with him to his home. From the bridge to his home is a distance of about 200 metres.
[8]	On the way she struggled to free herself from the appellant. Nobody came to her assistance. The appellant pulled her to his rented shack. When they arrived at the premises in which the appellant's shack was situated, she screamed, on seeing lights from other shacks and houses, thinking that someone might hear her screams. Nobody came to her rescue . The appellant simply ignored her screams, opened the door of his hack, shoved her in and, by using a chain and a padlock, locked the door from inside.
[9]	Once inside the locked shack, he ordered her to sit down. She refused. She remained standing by the door while the appellant was sitting on the bed. Whilst standing, she requested the appellant to open the door so that he could go home but the appellant just Ignored her and told her that something would force her to sit down.
[10]	The appellant then rolled zol and smoked it while mumbling some words. He insulted her. He called her a witch and taunted her that he was never just dumped. All the time the complainant was quiet. Around 21h00 the appellant grabbed and pulled her and ordered her to take off her clothes. At that stage she was wearing a jean, a panty, a top, and a jersey. The appellant pushed her. She fell face-up on the bed. The appellant then removed her jean and panty and came on top of her. All these times she was struggling to push the appellant away from her. The appellant managed to forcefully split her two legs apart and, having done so, to have sexual intercourse with her.
[11]	After this occasion of sexual intercourse, she did not put her clothes on but simply sat on the bed and cried. She had been hurt. Whilst she was sitting on the bed, the appellant continued smoking dagga. Having finished smoking, the appellant, this time for the second time, had sexual intercourse with her. Because on this occasion she was sitting on the bed, the appellant simply pushed her back, came on tap of her an9 thereafter had sexual intercourse with her.
[12]	After having had sexual intercourse with her for the second time, the appellant rolled another zol and smoked it. After smoking this second zol, the appellant had sexual intercourse with her for the third time. As she did not get the help that she had been crying for, she had, this time, given up. On this occasion, she was already lying in bed. The appellant simply woke her up, came on top of her, open her legs and had sexual Intercourse with her. Thereafter the appellant fell asleep while she remained awake.
[13]	At about 05h00 the following day she woke him up so that he could open the door for her. She told him that she had to go to work. The appellant obliged. He opened the door and she walked out of the shack. She walked straight to the police station where she reported the incidents to the police. After she had reported the incidents, she was taken to a medical doctor who examined her. The police were called and they took her home.
[14]	On 27 December 2013 and while she was on her way to the shop, she again met the appellant. On this occasion the appellant blocked her way and assaulted her. He slapped her with open hands. She fell as she tried to flee. Upon her arrival at home from the shops, she called the police. The police came. She complained to them that she had laid some charges against the appellant at the police station but the police had done nothing about those charges and the appellant kept on bothering her. That night the appellant was arrested but was released on the order of Court at his first court appearance.
[15]	After his release she was warned by her landlord that the appellant was out and had been looking for her. The landlord advised her to be careful. On 1 January 2014, as she walked to her aunt's place, the appellant came from behind. She knew that it was the appellant who was behind her when she heard him say: “I told you that I will get you.” It was around 15h00. She told him to leave her alone. His hand was inside his pocket at the time when they spoke. He took his hand out of his pocket. It came out with a knife. With the knife the appellant stabbed her on her breasts, left arm and on the neck. The appellant stabbed her on the neck when she tried to flee. She fell after the appellant had stabbed her for the third time. She lost consciousness and only regained it at a clinic. When she regained consciousness at the clinic she was on a drip. From the clinic she was transferred to the hospital so that there she could be sutured. She was sutured at the hospital that evening and discharged at 23h30.
[16]	The complainant had a love relationship with the appellant for a brief period. It had started in August 2013 but came to an end during November 2013. The appellant had sexual intercourse with her without her consent on each occasion.
[17]	When Palisa Monagane, a police officer, testified inter alia that on 23 December 2013 around 07h15 she was on duty at the Community Service Centre when the complainant arrived. She came to report a case of her boyfriend having raped her. While she took down her statement she noticed that the complainant was so scared that she was unable even to speak. She took down her statement though. A certain Sister Nkabinde gave the complainant a sexual kit, opened it and sealed it in her presence. At the conclusion of her evidence the State handed in Exhibit 'C'. This was a statement in terms of s 212(4)(a) and (8)(a) of the CPA. This was an affidavit by one Heinrich Frazenburg, a colonel in the South · African Police Service attached to the Biology Unit of the Forensics Science Laboratory as a Control Forensic analyst in the services of the State. Before this affidavit could be handed in the appellant's legal representative made a startling admission. He stated that:
"Yes it can be handed in but I have got instructions from that, on the result of DA is that he did have indeed has his girlfriend's sexual intercourse in the early hours of the morning on 22."

The document was handed in as an exhibit by consent.

[18]	The appellant testified in his defence. He called no witness to testify in support of his case. He testified that on the 22nd the complainant was at his house. When he went to work he left her in the house and found her still in the house when she came back from work at 14h00. Later he testified that at 12h00 when he came back she was no longer there. He denied that he raped the complainant. He admitted that he had sexual intercourse with the complainant on 22 December in the morning. He also told the court that the complainant was his girlfriend and that sexual intercourse with the complainant was consensual.
[19]	At the conclusion of the evidence the court fl quo was satisfied that the State had proved its case beyond reasonable doubt and that the appellant had committed the offences. It convicted the accused accordingly and having done so sentenced him as set out in paragraph 6 supra. As pointed out in par graph 7 supra, he has noted an appeal against the sentences imposed on him by the court a quo. All his complaints about the sentences have been fully set out in his application for leave to appeal. I do not deem it necessary to repeat them in this judgment. The application for leave to appeal is in any event part of these appeal papers.
[20]	With regard to the sentence of life imprisonment, his complaint is that such a sentences are strikingly inappropriate and that they are out of proportion to the totality of the accepted facts in mitigation. Furthermore the appellant complained that the court a quo disregarded the period he spent in custody before he was sentenced.
[21]	With regard to an appeal against sentence, the starting point is, as set out in R v Maphumulo and Others 1920 AD 56, 57, that:
“The infliction of punishment is pre-eminently a matter for the discretion of the trial Court. It can better appreciate the atmosphere of the case and can better estimate the circumstances of the locality and the need for a heavy or a light sentence than an appellate tribunal. And we should be slow to interfere with its discretion.”
Of course there are instances in which an appeal tribunal may find it necessary to interfere with the discretion of the trial court. Such circumstances have been set out in, among others, R v S 1958 (3) SA 10 , 104. In this case ,he Court stated that:
“There are well-recognised grounds on which a Court of Appeal would interfere with the sentence: where the trial Judge - or Magistrafe, as the case may be, has misdirected himself on the law or facts or has exercised his discretion capriciously or upon a wrong principle or so unreasonable as to induce a sense of shock.”
See also in this regard Ex Party Neethling and Others 1951 (4) SA 331 AD, 335; R v Zulu and Others 1951 (1) SA 489 (N), 496, 497:
" Where no such grounds exist, the Appeal Court will not interfere merely because the appeal Judges considered that they themselves will not have imposed the sentence. "
[22]	Accordingly, in order to succeed with his appeal against the sentences, it behoved the appellant to satisfy this appeal Court that, in imposing the sentences referred to in paragraph 6 supra, the magistrate in the trial court misdirected himself on the law or facts, or exercised his discretion capriciously or upon a wrong principle or the sentences imposed by him were so unreasonable as to induce a sense of shock. In the absence of such proof the appeal tribunal may not interfere with the sentences imposed by the court a quo.
[23]	The trial court correctly pointed out that in the assessment of an appropriate sentence to be imposed on the appellant, it had to take into account the trial as set out in S v Zinn 1969 (2) SA 537 A, in other words, the offence, the personal circumstances of the appellant and the interests of the society. It was aware furthermore that It had to weigh all these three factors, according each one of them equal weight and distilling from them what in its view was the appropriate sentence. Any under or over emphasis of one or two such factor or factors at the expense of the other or others would have constituted a misdirection on the part of the trial court. In S v Theron 1986 (1) SA 886 A 896, Botha JA, as he then was, had the following to say:
"Die opweging teenoor mekaar van die verskillende faktore wat ter sake is by die vasstelling van 'n gepaste vonnis ... is deel van die diskresie wat aan die verhoorregter toekom om oor 'n bepaalde vonnis te besluit. Oorbeklemtoning van een faktoor wat neerkom op 'n wesenlike mistasting (sal 'n bevinding regverdig) dat hy sy diskresie nie redelik uitgeoefen hetnie."

[24]	We are unanimous in our view that the magistrate correctly weighed all the three factors properly c1nd that the sentence that he arrived at was the result of a careful and proper consideration of the three factors.
[25]	With regard to the sentence of life imprisonment imposed on the appellant in respect of counts 2. 3 and 4 supra, the charges of which the appellant was convicted were all read subject to the provisions of s 51(1) of the Minimum Sentence Act The sentence for a conviction arising from the application of \hose provisions is prescribed. It is life imprisonment unless the court imposing the sentence is satisfied that substantial and compelling circumstances do exist that militate against the imposition of the ordained sentence.. In the absence of such circumstances, the trial court's hands in its selection of an appropriate sentence are bound. It had no scope to use its discretion once it found that no substantial and compelling circumst1;3nces existed. Notwithstanding the fact that it was armed with a presentencing r port of the appellant, the court was satisfied . though, that It could not find any substantial and compelling circumstances . It found itself in a situation where it was compelled to impose the ordained sentence. The court remarked as follows at page 150 lines 23 and 24 that:

'”The court does not find that there are any substantial and compelling circumstances.”

We are unanimous that on the basis of the. Information placed before the Court a quo in particular in the presentencing report, this finding was justified. We are satisfied that the trial court arrived at this finding only after it h d perused the presentencing report and had applied its mind to its contents. It will be recalled that the trial court was asked to consider as a substantial and compelling factor, the fact that the appellant and the complainant had an affair. Although one factor or a combination of factors can constitute substantial and compelling circumstances the trial court rejected the notion that a love relationship could amount to any such. See Malgas.

[26]	With regard to the other sentence, the court a quo, having weighed all the three factors, found that the gravity of the offences the appellant had been convicted of far outweighed his personal circumstances. For no apparent reason, the appellant attacked the complainant and slapped her several times. On 1 January 2014 the appellant stabbed the complainant not once, not twice but thrice with a knife. Account should be taken of the fact that at the time the appellant assaulted the complainant, charges of rape against him had already been laid by the complainant; that on each of such occasions there existed no apparent reason why the appellant had to assault the complainant. More importantly the Court should not lose sight of the fact that the complainant was unarmed, helpless and defenceless at the time the appellant stabbed her with a knife, The Court will be shirking its resp9osibility if it did not acknowledge the callousness of the attack on the complainant with a knife. It is not as if the appellant did not know that the complainant would lay charges against him and that if he were convicted he would be sent to prison for some time. Simply the appellant had very little respect for both the law and the complainant.
[27]	In her heads of argument Mrs. Harmzen, counsel for the respondent, pointed out the following aggravating factors that the complainant experienced severe trauma as a consequence of the incident; she was raped thrice by the appellant she was humiliated during the incident as the appellant called her by the names. It will be recalled that the complainant called her "a witch'' at some stage. To make matters worse the complainant had an affair previously with the appellant. In the circumstances it would not have been expected of the appellant to treat the complainant in the manner in which he did. In her heads of argument Mrs. Mthethwa, submitted that cumulatively considered, the personal circumstances of the appellant pin the scale in favour of departing from the imposition of prescribed sentence of life imprisonment. Then she referred to several factors she considered as substantial and compelling. According to her these factors include drug substance and alcohol abuse by the appellant, the fact that the appellant abandoned school in a lower grade, the period of detention that the appellant spent in custody before he was ultimately sentenced, and chronic illness which was not disclosed and for which he was undergoing treatment. It was never the appellant's testimony that he committed all these offences because he had been rendered truculent by the dagga that he smoked. It is however clear from the evidence tendered that the appellant could not have been influenced by the dagga he smoked because he had planned what he want to do on the complainant in advance. At the time he did so he had not smoke his zols. I already have pointed out that despite what is contained in this report the court a quo found no substantial and compelling circumstances and justifiably so ,
[28]	Mrs. Harmzen supported the sentences imposed on the appellant by the court a quo and in doing so relied on some authorities, it particular the case of S v C 1996(2) SACR 181 C, where, in dealing with the seriousness of rape, the court had the following to say:
''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 mentaI torment for the rest of her life - a fate often worse than loss of life. Serial rapists and murderers are regarded by the society as inherently evil, beings. They are the most feared and loathed criminals in our society. Society demands protection in the form of heavy and deterrent sentences from the courts against such atrocious crimes. "
See also in this regard S v Chapman 1997(2) SACR 3 (SCA). Mrs. Harmzen pointed out, quite correctly so, that the appellant showed no remorse. In the absence of remorse the prospect of rehabilitation become a pipedream. In this regard see S v Williams 1995( ) SACR 251 (CC).
[29]	Having read the trial court's reasoning we have been unable to find any misdirection committed by the magistrate. In the absence of any such misdirection this appeal tribunal is not at large to interfere with the sentences impose on the appellant by the triaI court.
[30]	Therefore, the appeal against sentence cannot, on the circumstances before us, succeed.

It is accordingly dismissed.

P.M MABUSE
JUDGE OF THE HIGH COURT
I agree,

A.P. VAN NIEKERK 
ACTING JUDGE OF THE HIGH COURT

Appearances:
Counsel for the appellant:			Adv. ON Mthethwa
Instructed by:				Legal Aid South Africa
Counsel for the respondent:		Adv. CP Harmzen
Instructed by:				The Director of Public Prosecutions
Date Heard:					30 October 2017
Date of Judgment:				3 November 2017