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 NORTH WEST HIGH COURT, MAHIKENG
                                                                         
                                                                 CASE NO: CAF 08/2017

In the matter between:

THABO THAGE							Appellant

and

THE STATE			 					Respondent

HENDRICKS J, GURA J & KGOELE J

DATE OF HEARING					:	24 NOVEMBER 2017

DATE OF JUDGMENT					:        22 MARCH 2018
	
COUNSEL FOR APPELLANT				:	MR. SETUMU

COUNSEL FOR THE RESPONDENT			:	ADV. MUNERI

 JUDGMENT

HENDRICKS J

Introduction

[1]	On the 24th November 2017 an appeal was heard by this Court, sitting as a Full Bench court of Appeal, with regard to the appellant and his former co-accused. No special power of attorney was filed. The special power of attorney was subsequently filed on the 09th March 2018. Hence the delay in finalization of this judgment.

Background

[2]	The Appellant, who was accused 3 during the trial in the Regional Court, Temba, was convicted on two counts of rape. The trial court found that he, together with his co-accused Johannes Malete (accused 1) and Jack Molambo (accused 2), raped the complainants in what is commonly known as gang rape. The matter was transferred to the High Court for sentence in terms of the then applicable legislation. In the High Court their convictions were confirmed and they were sentenced. The appellant was sentenced to life imprisonment on each of the two counts of rape. Leave to appeal against sentence was subsequently granted to the Full Bench of this division; hence the present appeal.

[3]	The facts of this case can be succinctly summarized as follows. The complainant in count 1, who was by then a girl of fifteen (15) years of age, testified that she attended a wedding ceremony on the night in question. Later on accused 1 arrived and took her by force to his house. He told her to undress but she was reluctant to do so. He threatened that if he undress before her, he would assault her. He indeed managed to undress before she could undress herself. He took a plank and struck her several times with it on her legs and she sustained abrasions as a result of the assaults. He had sexual intercourse with her without her consent. After the sexual encounter, accused 1 instructed her to get dressed and they proceeded to a stokvel. There accused 1 met some of his friends amongst whom were Paul Madiki and his girlfriend. The complainant made a report to Paul’s girlfriend that she was raped by accused 1. They all then proceeded to accused 1’s house.

[4]	At the house, they entered a bedroom and shared one bed. A little while later the co-accused of accused 1, who were accused 2 and accused 3 (the appellant) during the trial, arrived at accused 1’s house. Accused 1 left the bedroom. Accused 2 entered the bedroom after accused 1 left and he forced the complainant onto the floor. He undressed himself and had sexual intercourse with her without her consent. When he was done, he left. The complainant, still naked, went to the other bedroom in search of her clothes. She found accused 2, the appellant and another boy inside this bedroom. A struggle ensued between her and these boys. At some stage accused 1 appeared and slapped the complainant. She was overpowered and accused 2 managed to have sexual intercourse with her for a second time. The appellant then also had sexual intercourse with her without her consent and so too did the unknown fourth person. She was ultimately assisted by CS, the complainant in count 2, and Paul and they then left.

[5]	CS, the complainant in count 2, testified. She corroborated the evidence of Paul and the complainant in count 1. She said that when they arrived at the house of accused 1, he undressed her and himself and had sexual intercourse with her without her consent. The appellant then followed and he also had sexual intercourse with her without her consent. After the appellant, accused 1 again had sexual intercourse with her without her consent. She, together with the complainant in count 1 and Paul then left. They laid criminal charges against the appellant and his co-accused.

[6]	It is quite apparent that the appellant and his co-accused acted in concert with one another and took turns in having sexual intercourse with the two complainants without their consent. This is what is commonly called gang rape. From these facts it is clear that these offences attract life imprisonment as the sentence prescribed in terms of the Criminal Law Amendment Act 105 of 1997, unless there are substantial and compelling circumstances present which warrant a deviation. The court a quo (High Court) found that there are no substantial and compelling circumstances present in this case and imposed life imprisonment as a sentence for each count on the appellant.

[7]	The following mitigation features and personal circumstances of the appellant were placed on record:

•	he was 23 years of age.

•	unmarried.

•	he has no minor children.
•	he assisted accused 1 who is a shoemaker.

•	he attended school up until standard 4.

•	he was staying with his mother. His father has passed away.

•	his mother is employed in Johannesburg and he took care of the house during her temporary absence.

•	he was incarcerated, awaiting the finalization of his trial for almost two (2) years.

•	he was under the influence of intoxicating liquor at the time of the offences.

•	he is a first offender.

[8]	The aggravating circumstances and features of these offences are:

•	the complainant in count 1 was gang raped by four men including the appellant .

•	she was assaulted by accused 1.

•	the complainant in count 2 was also gang raped, by amongst others the appellant.

[9]	In S v Malgas 2001 (1) SACR 469 (SCA) the following is stated in paragraph [18]:

“[18]	…The absence of any pertinent guidance from the legislature by way of definition or otherwise as to what circumstances should rank as substantial and compelling or what should not, does not make the task any easier. That it has refrained from giving such guidance as was done in Minnesota from whence the concept of 'substantial and compelling circumstances' was derived is significant. It signals that it has deliberately and advisedly left it to the courts to decide in the final analysis whether the circumstances of any particular case call for a departure from the prescribed sentence. In doing so, they are required to regard the prescribed sentences as being generally appropriate for crimes of the kind specified and enjoined not to depart from them unless they are satisfied that there is weighty justification for doing so. A departure must be justified by reference to circumstances which can be seen to be substantial and compelling as contrasted with circumstances of little significance or of debatable validity or which reflect a purely personal preference unlikely to be shared by many.”

	See: S v Mahomotsa 2002 (2) SACR 435 (SCA).
		S v Nkomo 2007 (2) SACR 198 (SCA)

[10]	As already mentioned, the court a quo (High Court) found that there are no substantial and compelling circumstances present in this case. I am holding a different view. In my view, the fact that the appellant is a first offender; his relative youthfulness; that he was under the influence of intoxicating liquor and the absence of any proof of lasting psychological trauma on the complainants, as well as his personal circumstances as a whole constitute substantial and compelling circumstances.

[11]	The court a quo misdirected itself in not finding that there are indeed substantial and compelling circumstances present in this case that warrants a deviation from the impositioning of life imprisonment as a sentence. It therefore puts this Court at liberty to impose an appropriate sentence. Having regard to all the mitigating and personal circumstances as well as the aggravating features of this case, I am of the view that an appropriate sentence will be a sentence of twenty (20) years imprisonment on each count. The sentence should also be antedated.

Order
[12]	Consequently, the following order is made:

(i)	The appeal against sentence is upheld.

(ii)	The sentence of life imprisonment on both counts imposed by the court a quo (High Court) is set aside and substituted with the following sentence:-

“Twenty (20) years imprisonment on each count.”
“The sentences are ordered to run concurrently.”

(iii)	This sentence is antedated to 18 November 2003.

___________________
R D HENDRICKS
JUDGE OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG.

I agree

___________________
SAMKELO GURA
JUDGE OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG.

I agree

___________________
KGOELE J
JUDGE OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG.