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[2017] ZAWCHC 170
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S v Mpevu (SS17/ 2017) [2017] ZAWCHC 170 (21 September 2017)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DMSION, CAPE TOWN)
REPORTABLE
CASE NUMBER: SS17/ 2017
In
the matter between:
THE
STATE
versus
MASIXOLO
MAX
MPEVU
ACCUSED
JUDGMENT
ON SENTENCE DELIVERED ON 21 SEPTEMBER 2017
Henney,
J:
Introduction
[1]
In this particular case the accused had been convicted on 10 charges,
which emanated from 3 incidents in which he was involved.
The first
incident happened on 1 November 2015 in respect of the first
complainant when the accused accosted and kidnapped her
at
knifepoint, where after he dragged her to a nearby toilet. He firstly
attempted to rob her of some money she had on her, but
did not
succeed. He then proceeded to rape her more than once, by pushing his
penis into her mouth and then also proceeded to rape
her vaginally.
[2]
The second incident happened on 10 February 2016, where the accused
also kidnapped a different complainant, by dragging her,
also at
knifepoint, to a secluded place where he firstly robbed her of her
possessions, namely, a watch and a Samsung cell phone,
where after he
also proceeded to rape her by forcefully inserting his penis into her
vagina.
[3]
The third incident happened on 26 March 2016 when he once again
attacked a different complainant, by kidnapping her at knifepoint.
She was dragged into a toilet and robbed of a cellular phone. He then
also proceeded to rape her more than once by forcing his
penis into
her mouth and there after forcing it into her vagina.
[4]
The accused was eventually arrested and after the matter was
transferred to the High Court, he pleaded guilty in terms of the
provisions of section 105A. The court was of the opinion initially
that the sentence to which the accused agreed may not have been
a
just sentence in terms of the provisions of
section 105A(9)
(a) of
the
Criminal Procedure Act, 51 of 1977
("the CPA"). The
state and the defence nonetheless, wanted this court to proceed and
accepted that the court should convict
the accused on the admissions
he made on the charges to which he has pleaded and exercise its
discretion to impose sentence as
contemplated in
section
105A(9)(b)(i)
of the CPA.
[5]
Apart from the 3 rape charges the accused was also convicted on two
charges of robbery with aggravating circumstances, one of
attempted
robbery, one of assault with intent to do grievous bodily injury and
three charges of kidnapping, as set out in the indictment.
[6]
In respect of the 3 rape charges the provisions of the
Criminal Law
Amendment Act, 105 of 1997
is applicable. In respect of count 3 and
count 10, a sentence of life imprisonment is prescribed in terms of
section 51
(1),
part 1
of schedule 2 of the Act because the victims
were raped more than once. In respect of the rape committed with the
complainant on
count 7, a sentence of 10 years imprisonment is
prescribed. And in respect of the two charges of robbery with
aggravating circumstances,
a sentence of 15 years imprisonment on
each of these charges is prescribed.
[7]
The court has to impose these sentences unless there are substantial
and compelling circumstances to deviate from these prescribed
sentences. I will deal with this aspect at a later stage. In respect
of all the other charges, the court has to exercise its ordinary
sentencing jurisdiction.
[8]
In imposing an appropriate sentence the court has to take into
consideration all factors and circumstances of the particular
case.
The court has to consider the aims of punishment, such as deterrence,
retribution, rehabilitation and prevention. The court
also has to
consider the accused personal circumstances, the offence or offences
which he has committed and the interests of society.
The
accused personal circumstances are the following
[9]
He is 27 years old, unemployed and not married. He· has
previous convictions for theft, which was committed respectively
in
May 2012 and August 2012. In respect of both these offences a
suspended sentence was imposed. He has a further previous conviction
for possession of drugs and a fine was imposed as sentence for this
conviction.
[10]
Mr Carstens argued that the accused has shown remorse, by pleading
guilty to all the charges and did not subject the complainants
to the
further trauma of having to testify in this case. The court will
later come back to this question of remorse.
The
offence
[11]
The crimes that the accused has been convicted of, especially the
rape and robbery with aggravating circumstances charges are
viewed as
particularly serious. What the court views as particularly serious is
the fact that the accused preyed on defenceless
women and attacked
them with a knife. He dragged them to a specific place, robbed them
of their possessions and then proceeded
to rape them.
[12]
He did not only do this once but on more than one occasion. From the
facts of this matter as a whole, his conduct points to
a particular
modus operandi. Although none of the complainants has sustained any
serious injuries the accused nonetheless proceeded
to apprehend the
complainants in a violent manner, by using a knife and dragging the
complainants into a secluded place or toilet,
where he proceeded to
rape them.
[13]
In two of the cases, the women were raped by the accused by not only
forcing his penis into their vaginas but also into their
mouths. The
rapes of the complainants must have been a very humiliating
experience for them. From the victim impact reports it
is clear in
respect of all three complainants, that this rape had an everlasting
impact on them. Two of the three complainants
had been sexually
violated by other people before they were raped by the accused. It
seems that they had difficulty to recover
from that ordeal.
[14]
The first complainant, to whom I shall refer to as "N", was
only 17 years old at the time of the incident. The impact
of the rape
on N, who was raped during the first incident, was the following:
social exclusion and loneliness, emotional outbreaks,
feelings of
mistrust, disturbed sleeping patterns, disturbed dreams and
nightmares (she had dreams that the accused killed her)
and feelings
of fear.
[15]
The second complainant, to whom I shall refer to as "\IQ",
was sexually violated for the first time at the age of
16 years when
an uncle of hers tried to rape her and for the second time at the age
of 17 was raped by a family friend in the Eastern
Cape. The first
incident was not reported because it was a family member of hers. The
second incident was reported to the police
but they were unable to
find the alleged perpetrator.
[16]
This complainant also contracted the HIV virus prior to this incident
and she was not aware of when and how she contracted
this virus.
According to the victim impact report, the psychological impact this
incident had on her, manifested itself in expressing
feelings of
shame, guilt, anger and powerlessness. She is unable to overcome what
happened to her and having to accept her status.
She has no self
esteem and regards herself as unworthy of being loved again. Her only
coping mechanism at present is alcohol
because she has never received
any counselling and is unable to control her thoughts and emotions.
She isolates and withdraws herself
from family and friends, and is
often depressed.
[17]
According to the social worker who compiled the victim impact report
the complainant expressed on more than one occasion that
she would
prefer ending her life, instead of living with the guilt, shame and
frustration. According to the social worker, the
complainant has
never received any therapeutic counselling and she is in need of such
assistance because she has expressed suicidal
thoughts and she has
expressed the willingness to receive such assistance to overcome her
traumatic experience.
[18]
The third complainant to whom I shall refer to as 'T' was also
allegedly raped by her maternal grandmother's boyfriend when
she was
12 years old, but this was also not taken further because she was not
believed by members of the family. This particular
incident with the
accused happened when the complainant returned from her work at
Woolworths after completing the late shift (12:00
PM to 21:00 PM).
[19]
She was walking alone when she was accosted by the accused and
threatened with a knife. The impact this incident had on her,
resulted in her having nightmares, lack of sleep, a desire to bath
continually as she feels dirty and a lack of physical energy.
She was
referred for counselling at work and attended the sessions but did
not complete it because of her work hours and church
activities which
clashed with the counselling sessions.
[20]
According to the social worker who compiled the victim impact
statement, the complainant also expressed a desire to commit suicide.
The complainant enquired if it would be possible to admit herself to
Valkenberg Psychiatric Hospital, on a voluntary basis to assist
her
from committing suicide. The social worker as a result of this
contacted Valkenberg and Stikland Hospital but these institutions
required the complainant to fund her own medical treatment in terms
of the hospitals policies, which I find astounding, unacceptable
and
totally unsympathetic towards the plight of this woman who is clearly
in need of such assistance.
[21]
As a result of this incident, she developed outburst of anger
to such an extent that she would take it out on her colleagues at
work, which resulted in her reliving a first written warning in May
2016 and a final written warning in June 2017.
[22]
At some stage when the detective approached her at work
regarding this matter, she had to disclose to her manager what
happened
to her which a colleague overheard. This colleague spread
rumours about her and she became the laughing stock at her place of
employment.
This resulted in her receiving approaches from male
colleagues which she would decline and they would also make remark
about the
incident. She was unable to cope with this and as a result
of that, she decided to resign from work on 3 August 2017.
[23]
This case illustrates a horrible effect of the psychological
scars and damage which the crime of rape has on many women in this
country. This court cannot even begin to imagine or place itself in
the position of such women. It is not clear whether they will
ever be
able to recover from the horrendous effects of the rapes perpetrated
on them.
[24]
More than 22 years ago this court in
S v C 1996 (2) SACR at
186 D-E
said the following about the crime of rape:
"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."
[25]
This is clearly what happened in all three of these cases
where the victims' self-respect and their feelings of physical and
mental
integrity and security were destroyed. The monstrous deeds of
the accused still haunts the victims and subjects them to torment
to
the extent that 2 of them wanted to commit suicide, which the court
described in the above-mentioned case as a fate often worse
than loss
of life. They were not murdered, but their self-respect, dignity,
privacy and their security of person were murdered
and egregiously
violated and undermined.
[26]
There are some similarities between this case and the
above-mentioned case in the sense that in this case, as well as that
case,
three women were raped on different occasions by the accused.
In that case, however, the three different rapes occurred over a
period of 4 days. What was further very disturbing of this case was
the fact that these complainants, were from an underprivileged
background, and did not receive the necessary and proper assistance
as required from the government. They have not received any
counselling and they were only able after almost 2 years had passed
to speak to a social worker.
[27]
When this information was presented to me, I was outraged and
·furious. Although I was dealing with the sentencing of
the
accused in a criminal trial, I would have failed in my duty as a High
Court Judge not to have adequately given attention to
the plight of
these women and to enquire why their rights as victims were not
adequately protected. Especially in light of the
fact that two of
these women were previously sexually violated, before the accused had
raped them and when I was informed that
at least two of them were
seriously contemplating committing suicide. According to the
evidence, the victims either did not receive
any counselling (in the
case of N and NQ) or were referred to a victim support room at the
police station in Milnerton (in the
case of T), where they would be
seen by lay counsellors who would assist them on an ad hoc basis.
[28]
This was the evidence that was given by the social workers from the
Department of Social Development and the investigating
officer, who
testified that there are no other services available. I was placed
under the impression that no sustainable program
of assistance to
rape victims were put in place by the Department of Social
Development of the Western Cape, whereby rape victims
aft.er they
have reported the case to the police and after they had been seen by
a doctor, could be assisted. I then instructed
the prosecutor to call
a senior officer- in the Department of Social Development in the
Western Cape who would be able to better
inform this court whether
such services were available.
[29]
This official, Soraya Abrahams, who is the regional director in the
Department of the Metro North Region, is responsible for
the
delivering of all social work services in an area which stretches
from Delft to Milnerton and under whose supervision the two
social
workers that compiled the victim impact reports falls. She presented
this court with an agreeme1 t in terms of which, as
she put it, they
have "purchased the services of Rape Crisis to be a service
provider'' to provide counselling services to
rape victims after they
have been raped. The agreement handed to court it seems was concluded
for the period 1 April 2017 to 31
March 2018, which do not cover the
periods in which these incidents relevant to this case had occurred.
I will accept that there
was such an agreement in place and that was
also her evidence that there was such an agreement to deliver such
services in the
periods relevant to this case.
[30]
According to her not all victims would accept the invitation to make
use of that services provided by Rape Crisis, especially
at that
moment after the incident has been reported. According to a document
that was handed up by her from Rape Crisis, all 3
victims in this
case were seen by a Rape Crisis counsellor. In respect of all 3
victims, the following services were rendered on
the respective days
they were there:
a) containment
counselling;
b) a forensic
examination;
c) the administration of
relevant medication(PEP).
It
is not clear what the exact content, substance and nature of the
services entail.
[31]
It also seems that these victims were transported from Milnerton to
Victoria Hospital in Wynberg to be seen by the councillors
of Rape
Crisis. Whilst I am not a professional in this field, I cannot
imagine that this could have been sufficient or nearly sufficient
counselling that could have been given to these three complainants.
It was clearly of such a nature that they did not even remember
or
consider it to be counselling that were given to them. There was
clearly no further follow-up consultation or further contact
with any
of these 3 women. They were left to cope on their own.
[32]
Mrs Abrahams wanted to create the impression that these women were to
blame because they did not either go back or make any
effort to go
for follow-up services to Rape Crisis. I find this explanation
pathetic, unhelpful and unsympathetic to the plight
of these three
women. I cannot imagine that they would not have wanted assistance,
given the situation they were later found to
be in by the social
workers attached to the office of Mrs Abrahams. She also later
conceded that Rape Crisis should have been more
proactive and should
have provided some follow up service to these complainants. It is not
clear whether the provision of such
services falls within the mandate
of Rape Crisis. I therefore do not wish to comment whether they had
neglected or failed to deliver
such service. If it is indeed the
case, then they have figuratively speaking, dropped the ball as far
as these women are concerned.
[33]
In my view, ultimately it remains the constitutional responsibility
of the Department of Social Development to have either
delivered the
service or to ensure that Rape Crisis delivers this service. In this
regard, the Department has failed in their constitutional
duty
towards these 3 women. It is also clear from the evidence given by
the Department of Social Development, whilst they have
contracted the
services out to Rape Crisis, that there is clearly not a sustainable
system in place to assist women who had been
raped or sexually
violated, with a programme of long term and continuous
counselling and assistance after they had been raped
or sexually
violated.
[34]
What is currently in place is clearly not enough; it is merely ad hoc
assistance in the form of lay counselling, which is immediately
given
to a rape victim after the incident. There is no proper follow-up or
monitoring or after-care assistance given to a rape
victim after they
have been seen by a counsellor of Rape Crisis. In my view this
conduct clearly amounts to a violation of the
rights of these 3
women, which rights they have as victims in terms of the
Constitution. Whatever services was given in any event
was not
sufficient to assist any of these victims as is evident from what was
reported about their psychological condition, in
the various victim
impact statements as compiled by the social workers.
[35]
The highest court in the land in
Wickham v Magistrate,
Stellenbosch and Others
2017 (1) SACR 209
(CC) at paras 23-26
recognised that in terms of section 234 of the Constitution that
Parliament in order to deepen the culture of democracy adopt charters
of rights consistent with the Constitution. The Service Charter for
Victims of Crime in South Africa ("
Victims Charter
'') is
a charter of such rights. In terms of the Victims Charter certain
rights of victims are set out therein, which includes the
following:
"1. The right to
be treated with fairness and with respect for dignity and privacy:
· You have the
right to be attended to promptly and courteously, treated with
respect for your dignity and privacy by all
members of any
department, institution, agency or organisation dealing with or
providing a service to you (hereafter referred to
as a service
provider).
· The police
(during the investigations,) the prosecutors and court officials
(during preparation for and during the trial
proceedings), and all
other service providers will take measures to minimise any
inconvenience to you by, among others, conducting
interviews with you
in your language of choice and in private, if necessary.
· These measures
will prevent that you are being subjected to secondary victimisation.
5. The right to
assistance:
· You have the
right to request assistance and, where relevant, have access to
available
social, health and counselling services, as well as
legal assistance.
· The police will
assist you by explaining police procedures, informing you of your
rights and making the appropriate referral
to other relevant service
providers.
· The office
manager or head of office at the court will provide for the services
of an interpreter.
· The prosecutor
will ensure that special measures are taken in the case of sexual
offences, domestic violence and child
support or maintenance matters
and that, where available, such cases are heard in specialised
courts.
· If you have
special needs, all service providers will, within the scope of their
functions, take all reasonable steps to
accommodate you and ensure
that you are treated in a sensitive manner."
[36]
The Minimum Standards on Services for Victims of Crime states under
Part II: The Processes and Responsibilities of the Relevant
Service
Provider that:
"If you are in
need of assistance:
28.
A number of government departments will provide assistance to
you. The police will assist in on-site crisis intervention, in
referrals
for medical or psychological assistance, in explaining
police procedures, in providing information about your rights, in
referral
to non-governmental and community-based organisations (NGOs
and CBOs) or community-based victim support services, in ensuring
your
safety at the scene of the crime, in the preservation of
evidence and in advising you on crime prevention.
29.
If there is any further threat after sentence, you, the
investigating officer or the prosecutor must immediately contact the
office
of the Witness Protection Unit.
30.
The Department of Social Services and other social service
providers will. if available, offer emotional and practical support
services,
which may include court preparation programmes.
31.
Healthcare workers will ensure that your rights, as contained
in the Patients' Rights Charter, are upheld.
32.
The Department of Education will ensure that intervention
programmes such as counselling, referral and support procedures, are
in
place for victims in the educational system."
[37]
The right of victims to be granted psychological assistance and
counselling was universally recognised by the United Nations
by
adoption of the Declaration cf Basic Principles for Justice for
Victims of Crime and Abuse of Power on 29 November 1985. It
states:
"Assistance
14. Victims should
receive the necessary material, medical, psychological and social
assistance through governmental, voluntary,
community-based and
indigenous means.
15. Victims should be
informed of the availability of health and social services and other
relevant assistance and be readily afforded
access to them.
16. Police, justice,
health, social service and other personnel concerned should receive
training to sensitize them to the needs
of victims, and guidelines to
ensure proper and prompt aid.
17. In providing services
and assistance to victims, attention should he given to those who
have special needs because of the nature
of the harm inflicted or
because of factors such as those mentioned in paragraph 3 above."
It
is therefore clear what was provided or not provided to these three
women falls short from what is required by law and the Department
of
Social Services has been found wanting in this regard.
The
interests of society
[38]
Society demands that people like the accused that makes themselves
guilty of multiple rapes on defenceless woman be severely
punished.
In the matter of S v C, such a person is described as a serial
rapist. Women need to be protected against people like
the accused.
This court should make sure that the accused should never again have
an opportunity to be placed in the position to
once again rape a
woman.
[39]
It has been argued by Mr Carstens on behalf of the accused that li e
has remorse for his actions, due to the fact that he has
admitted
guilt on all of these charges. And this fact, together with all the
other circumstances of this case would be sufficient
substantial and
compelling circumstances to deviate from the prescribed sentences.
The mere fact that a person has pleaded guilty,
in my view, cannot be
regarded as a factor that can be advanced to justify a deviation from
the prescribed sentence. Especially
in light of the fact that the
accused had little or no choice but to admit guilt on these charges
levelled against him, due to
the fact that the evidence against him
was damning. According to prosecutor the complainants identified the
accused and he was
connected by means of DNA evidence to all of these
rapes.
[40]
Even if he did plead guilty without having been forced by damning
evidence to do so, this fact in my view, together with his
personal
circumstances would not have constituted substantial and compelling
circumstances to deviate from the prescribed sentences.
The facts of
this case based on the severity of the charges against him, which
includes the manner in which he had attacked and
raped the
complainants on 3 separate occasions with a dangerous weapon, do not
justify such a conclusion. This is a case where
life imprisonment
would not be inappropriate, especially when the court has to protect
women against a serial rapist like the accused.
I cannot imagine a
more appropriate or suitable sentence for a person who has made
himself guilty of rape on multiple occasions,
than life imprisonment.
[41]
In the result, I impose the following sentence in respect of the
offences committed in respect of "N" on 1 November
2015:
Count
1 - Attempted robbery with aggravating circumstances - 5 years
imprisonment; Count 2 - Kidnapping - 3 years imprisonment;
Count
3 - Rape - life imprisonment;
Count
4 - Assault with intent to do grievous bodily injury - 6 months
imprisonment.
[42]
In respect of the offences committed on 10 February 2016, which was
committed in respect of the complainant "NQ":
Count
5 - Kidnapping - 3 years imprisonment;
Count
6 - Robbery with aggravating circumstances- 15 years imprisonment;
Count
7- Rape - 10 years imprisonment.
[43]
In respect of the offences committed on 26 March 2016 in respect of
"T": Count 8 - Kidnapping - 3 years imprisonment;
Count
9 - Robbery with aggravating circumstances - 15 years imprisonment;
Count
10 - Rape - life imprisonment.
[44]
It is ordered that all the sentences imposed should run concurrently.
In terms of the provisions of section 103 of Act 60 of
20d0 the Fire
Arms and Ammunitions Act, the accused is declared unfit to possess a
firearm.
[45]
I also make the following order: That Mrs Soraya Abrahams of
the Department of Social Development is directed to provide this
court
as well as the MEC for Social Development of the Western Cape
with a report regarding the necessary ·psychological and
psychiatric
services they have provided to the 3 complainants in this
matter, after a period of 3 months of this court order.
__________________
JUDGE
OF THE HIGH COURT
RCA
HENNEY
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NUMBER: CC 17/2017
In
the matter between:
THE
STATE
and
MASIXOLE
MPEVU
ACCUSED
PLEA
AND SENTENCE AGREEMENT IN TERMS OF
SECTION
105A OF ACT 51 OF 1977(AS AMENDED)
A.
PREAMBLE
WHEREAS
1. The accused is charged
as follows:
a)
KIDNAPPING
(THREE COUNTS).
b)
RAPE
(THREE COUNTS) - AS CONTEMPLATED IN SECTION 3 OF THE CRIMI \L LAW
(SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT ACT, ACT
32 OF 2007
('SORMA'), READ WITH THE PROVISIONS OF SECTIONS 1, 56(1), 57, 58, 59,
60 AND 61 OF ACT 32 OF 2007; ALSO READ WITH SECTIONS
256 AND 261 OF
THE
CRIMINAL PROCEDURE ACT, ACT
51 OF 1977 ('CPA') AND FURTHER READ
WITH THE PROVISION OF SECTION 51(1) AND PART 1 SCHEDULE 2 OF THE
CRIMINAL LAW AMENDMENT ACT
105 OF 1997 ('CLAA').
c)
ATTEMPTED
ROBBERY (1 COUNT) - WITH AGGRAVATING CIRCUMSTANCES AS DEFINED IN
SECTION 1 OF THE CPA.
d)
ASSAULT
WITH INTENT TO DO GRIEVOUS BODILY HARM.
e)
ROBBERY
(TWO COUNTS)
-
WITH AGGRAVATING CIRCUMSTANCES AS DEFINED IN
SECTION 1 OF THE CPA READ WITH THE PROVISIONS OF S 51(2) AND PART
II
OF SCHEDULE 2 OF THE CLAA.
2. Advocate David
Damerell, a Deputy Director of Public Prosecutions, has been duly
authorized in writing by the National Director
of Public
Prosecutions, as required by section 105 A of the CPA, to negotiate
and enter into a Plea and Sentence agreement with
the accused. A copy
of the authorization is attached as Annexure "A".
3. Advocate Pulane A
Thaiteng is duly authorised to conduct proceedings in court on behalf
of the State in connection with this
agreement, after it has been
duly entered into.
4. The Deputy Director of
Public Prosecutions and accused, who is represented herein by
Advocate Henk Carstens, have negotiated
and entered into the
agreement in respect of a plea of guilty by accused to the offence of
which he may be convicted as well as
a just sentence to be imposed by
the Honourable Court.
5. The accused has been
informed of his rights referred to in section 105A(2)(a) of the CPA:
a. To be presumed
innocent until proven guilty beyond reasonable doubt;
b. To remain silent and
not to testify during the proceedings;
c. Not to be compelled to
give self-incriminating evidence; and
d. That he is not obliged
to enter into this agreement, but that if he does enter into this
agreement, the contents thereof will
be made known to the Court which
may convict and sentence him in terms of the agreement or may refuse
to accept the agreement,
in which case the agreement will be null and
void and the State will not be able to use or present such agreement
against him as
evidence in a criminal trial before another Court.
6. Advocate Pulane A
Thaiten'g has duly complied with the requirements of section
105A(1)(b) of the CPA regarding the following
aspects:-
7. The investigating
officer, Dectective Sergeant Mziwethu Sidinana, has bel;n consulted
with. He is satisfied with the terms of
the agreement, including the
sentence;
8. Proper regard has been
had to the circumstances prescribed in section 105A(b)(ii) of the
CPA;
The complainants, namely;
i.
N M
ii.
N P
iii.
T R
have been afforded an
opportunity to make representations to the prosecutor regarding the
content of the agreement and are satisfied
with the terms of the
agreement including the sentence;
9. The accused,
represented and assisted by the above-mentioned legal representative,
admits guilt in respect of all the charges,
as mentioned above, and
pleads guilty thereto on the basis set out below.
10. The Deputy Director
of Public Prosecutions is prepared to accept such a plea of guilty.
NOW THEREFORE
the
Deputy Director of Public Prosecutions, Advocate D Damerell, and the
accused, who is represented herein by Advocate H Carstens,
have
negotiated and reached the following agreement with the following
terms in respect of a plea of guilty by the accused 1s well
as a just
and fair sentence to be imposed by this Honourable Court.
B. PLEA OF GUILTY AND
ADMISSIONS
11. The accused pleads
guilty to the charges, as set out in paragraph 1 above, and makes the
following admissions:
a.
That he understands the charges against him as set out in the
in the charge sheet.
b.
That he was in no way unduly influenced or threatened to plead
guilty nor were any promises made to him should he plead guilty,
other than the terms of this agreement.
c.
That he is in his sound and sober senses while entering into
this agreement.
COUNT 1
ATTEMPTED ROBBERY WITH
AGGRAVATING CIRCUMSTANCES AS DEFINED IN SECTION 1 OF THE CPA
12.
IN THAT
on or
about the 1 November 2015 and at or near Democratic Way, Joe Slovo,
in the District of MILNERTON, the accused unlawfully and
with the
intent to force her into submission, assaulted
NOKUBONGA M,
a
female person and/or threatened to do her harm and/or caused her to
believe that harm would be done to her by threatening her
with a
knife and did then attempt to take money, her property or property in
her lawful possession.
AND THAT
aggravating
circumstances as defined in section 1 of the CPA are applicable as
the accused, while committing this offence, be it
before, during or
after the commission thereof, handled a dangerous weapon, to wit a
knife.
COUNT 2
KIDNAPPING
13.
IN THAT
on or
about the same date and place mentioned in coun1 1, the accused did
unlawfully and intentionally deprive
NOKUBONGA M,
a female
person, of her freedom of movement by dragging her at knife point
into a toilet.
COUNT3
RAPE
14.
IN THAT
on or
about the same date and place mentioned in count 1, the accused did
unlawfully and intentionally commit an act of sexual pern3tration
with the complainant to
wit, N M,
by putting or pushing his
penis into or beyond the mouth and vagina and of the said
N M,
without the consent of the said complainant.
AND FURTHER THAT
the
provisions of the CLAA are applicable in that this crime is mentioned
in section 51(1) and Part I of Schedule 2 of the said
Act as it was
committed in circumstances where the victim was raped more than once
whether by the accused or by any co-perpetrator
or accomplice; and
that the minimum sentences of life imprisonment is applicable.
COUNT4
ASSAULT WITH INTENT TO
DO GRIEVIOUS BODILY HARM
15.
IN THAT
on or
about the same date and place mentioned in count 1, the accused did
unlawfully and intentionally assault
N M,
a female person by
threatening her with a knife.
COUNT 5
KIDNAPPING
16.
IN THAT
on or
about the 10 February 2016 at or near Umthuma Crescent, Joe Slovo in
the district of MILNERTON, the accused did unlawfully
and
intentionally deprive
N P,
a female person, of her freedom of
movement by dragging her to a place in the street at knife point.
COUNTS
ROBBERY WITH
AGGRAVATING CIRCUMSTANCES AS DEFINED IN SECTION 1 OF THE CPA
17.
IN THAT
upon
or about the same date and place mentioned in count 5, the accused
unlawfully and with the intent to force her into submission,
assaulted
N P,
and/or threatened to do her harm and/or caused
her to believe that harm would be done to her, by threatening her
with a knife and
did then and with force take the following items
from her, to wit; a wrist watch and Samsung cellular phone, her
property or property
in her lawful possession.
AND THAT
aggravating
circumstances as defined in section 1 of the CPA are applicable as
the accused, while committing this offence, be it
before, during or
after the commission thereof, handled a dangerous weapon to wit, a
knife.
AND FURTHER THAT
the provisions of section 51(2) of the
CLAA are applicable in that this crime is mentioned in Part II of
Schedule 2 of the said
Act.
COUNT 7
RAPE
18.
IN THAT
on or
about the same date and place mentioned in cour1t 5, the accused did
unlawfully and intentionally commit an act of sexual
penetration with
the complainant to wit,
N P,
by putting or pushing his penis
into or beyond the vagina of the said
N P,
without the consent
of the said complainant.
AND FURTHER THAT
the
provisions of section 51(2) of CLAA are applicable in that this crime
is mentioned in Part 11 of Schedule 2 of the said Act.
COUNT10
RAPE
21.
IN THAT
on or
about the same date and place mentioned in count 8, the accused did
unlawfully and intentionally commit an act of sexual penetration
with
the complainant to wit,
T R,
by putting or pushing his penis
into or beyond the mouth and vagina of the said
T R,
without
the consent of the said complainant.
AND FURTHER THAT
the
provisions of CLAA are applicable in that this crime is mentioned in
Section 51(1) and Part I of Schedule 2 of the said Act·
as it
was committed in circumstances where the victim was raped more than
once whether by the accused or by any co-perpetrator
or accomplice;
and that the minimum sentences of life imprisonment is applicable.
C. AMPLIFICATION TO PLEA
OF GUILTY
22. In amplification of
his plea of guilty to the charges the accused admits the following
facts:
I.
Between August 2015 and March 2016, the accused robbed and raped
young women in Joe Slovo, Milnerton. The accused's
modus operandi
was to accost women walking alone at night. He would threaten
them with a knife, rob them of their belongings and then drag them
to
a secluded place where he would sexually assault them repeatedly.
II.
During early hours of 1 November 2015, N M, the complainant in counts
1 to 4 was in Joe Slovo location, walking home from a
friends place
when she was accosted by the accused. The accused produced a knife
and placed it against M's stomach and instructed
her to give him all
her money. M told accused she had no money and offered him her shoes
which she started taking off. The accused
told complainant to put her
shoes back on and dragged her to toilet and told M, he was going to
have sex with her. At the toilet,
the accused raped the complainant,
vaginally, orally and anally. After the rapes, the accused opened the
toilet door and left.
M then attempted to leave the toilet when the
accused came back and threatened her with a knife. The accused is
known to M as his
brother's friend.
Ill. During early hours
of 10 February 2016, in Joe Slovo, N P, the complainant in counts 5
to 7 was walking to her home. She was
grabbed by the accused from
behind. P tried to scream but accused muffled her screams by holding
her mouth. P identified the accused
as someone she knew and
considered a friend. P asked the accused what he was doing and
accused swore at her. The accused robbed
P of her watch and cellular
phone and then he raped her vaginally.
IV.
On 26 March 2016 at night, T R, the _complainant in counts 8
to 10 was in Joe Slovo, walking home. Whilst walking R was accosted
by the accused who grabbed her by her jacket and demanded her money
and cellular phone at knife point. After taking these items
from the
complainant the accused forcefully dragged R to a toilet where he
raped her, vaginally and orally.
V.
The accused accepts that his actions were wrongful and
unlawful.
23.
NOW THEREFORE
the
accused admits that he is guilty of the aforesaid charges as set out
in the charge sheet.
D.
AGREEMENT IN
RESPECT OF A JUST SENTENCE
It is agreed that the
following is a just sentence in the circumstances of the charges
mentioned above:
1.
ATTEMPTED ROBBERY
WITH AGGRAVATING CIRCUMSTANCES (COUNT 1)
- the accused is
sentenced to 4 years imprisonment.
2.
KIDNAPPING (COUNT
2, 5 and 8),
the accused is sentenced to 6 years imprisonment on
each count.
3.
ASSAULT WITH INTENT
TO DO GRIEVOUS BODILY HARM (COUNT 4)
,the accused is sentenced to
6 months imprisonment.
4.
RAPE (COUNT 3, 7
AND 10)
, the accused is sentenced to
LIFE IMPRISONMENT
on
each count.
5.
ROBBERY WITH
AGGRAVATING CIRCUMSTANCES (COUNT 6 AND 9),
the accused is
sentenced to 15 years imprisonment on each count.
The
accused is further declared unfit to possess a firearm in terms of
section 103
of the
Firearms Control Act, No. 60 of 2000
.
E.
SUBSTANTIAL AND
OTHER RELEVANT FACTS
24. The gravity of the
offence, the interests of the. community and the personal
circumstances of the accused have been taken into
account and duly
considered by all parties.
25. The aggravating
factors are as follows:
a.
The offences are serious and prevalent in our society.
b.
The accused has two previous conviction of THEFT and one conviction
of POSSESSION OF ILLEGAL SUBSTANCES IN CONTRAVENTION OF OF
THE
PROVISIONS OF SECTION 4(a)/4(b) READ WITH SECTIONS 1, 13, 17 TO
25
AI\D 64
OF THE
DRUGS AND DRUG TRAFFICKING ACT 140 OF 1992
, see
annexure
'B'.
c.
The accused was known by the three complainants and they considered
him a friend and/or acquaintance.
d.
The complainants wrote Victim Impact Statements, in which they
expressed the aftermath of the attacks against them. The reports
are
attached as annexure 'C' to
'E'.
26. The mitigating
circumstances are as follows:
a.
The accused has shown remorse by pleading guilty.
b.
The accused is 27 years old.
c.
The accused is currently unemployed.
d.
His plea of guilty has brought to a conclusion the
investigation and prosecution which spared the Court and the State
the expense
and difficulty of a prolonged trial;
SIGNED
at CAPE TOWN on this
23
rd
day of JUNE
2017.
ADV.
DAVID DAMERELL
DEPUTY
DIRECTOR OF PUBLIC PROSECUTIONS
__________________
ACCUSED:
MASIXOLO MPEVU
__________________________
ADVOCATE
HENK CARSTES
LEGAL
REPR S NTATIVE FOR THE ACCUSED
S
v MASIXOLE MPEVU
The
agreed sentence is as follows:
1.
ATTEMPTED
ROBBERY (COUNT 1)
-the accused is sentenced to 5 years
imprisonment on each count.
2.
KIDNAPPING
(COUNT 2, 5 and 8),
the accused is sentenced to 6 years
imprisonment on each count.
3.
ASSAULT
WITH INTENT TO DO GRIVEOUS BODILY HARM (COUNT 4)
the accused is
sentenced to 6 months imprisonment.
4.
RAPE
(COUNT 3, 7 AND 10)
, the accused is sentenced to
LIFE
IMPRISONMENT
on each count.
5.
ROBBERY
WITH AGGRAVATION CIRCUMSTANCES AS DEFINDED IN SECTION OF THE CPA
51ll7(COUNT 6 AND 9),
the accused is sentenced to 15 years
imprisonment on each count. All the sentences are to run
concurrently.
_____________________
DATE:
JUNE 2017
________________________
THE
HONOURABLE
JUDGE
PRESIDENT
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
CASE
NO:
SS17/2017
DATE:
2 JUNE 2017
In
the matter between:
THE
STATE
And
MASIXOLE MPEVU
JUDGMENT
HENNEY,
J:
The
Court is then satisfied on the admissions made and as contained in
the plea agreement and sentence agreement that the accused
admits his
guilt unequivocally on all these charges, the Court then
FINDS
HIM GUILTY ON ALL TEN CHARGES AS SET OUT IN THE INDICTMENT.
_______________
HENNEY,
J