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[2020] ZAWCHC 137
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S v Dyonase (CC47/2018) [2020] ZAWCHC 137 (1 September 2020)
OFFICE
OF THE CHIEF JUSTICE
REPUBLIC
OF SOUTH AFRICA
C
ASE
NO CC47/2018
In
the matter between
THE
STATE
AND
THOBILE DYONASE
JUDGMENT
ON SENTENCE-01 SEPTEMBER 2020
THULARE
AJ
[1]
The facts of this case are fully set out in a written judgment in
which the accused was convicted, dated 1 June 2020.
He was
convicted of eight (8) counts of kidnapping, eight (8) counts of
robbery with aggravating circumstances, one (1) count of
sexual
assault and six (6) counts of rape. Two (2) of the rape counts are in
contravention of section 5(1) whilst four (4) are
in contravention of
section 3 read with the applicable provisions of the Criminal Law
(Sexual offences and Related Matters) Amendment
Act 32 of 2007 and
the
Criminal Procedure Act 51 of 1977
.
[2]
A total of seven (7) adult women have on different dates between 12
August 2017 and 2 October 2017 fallen victim to the accused.
One of
the women went through the ordeal in the presence of her young son
who was also kidnapped and robbed. The accused was arrested
the same
morning of his attack on the last of his victims, following an alert
observation of a police officer. At the request of
the accused’s
legal representative, the matter was postponed for sentence.
[3] In
S v Zinn
1969 (2) SA 537
(A) at 540G it was said:
“
What has to
be considered is the triad consisting of the crime, the offender and
the interests of society.”
The
criminal
[4] Ms Mangalisa, a
probation officer, at the request of the accused legal
representative, prepared a pre-sentence report which
was handed in by
agreement between the parties and was admitted by the court into
evidence. In
A forensic case study of a paedophile illustrating
the presentation and value of the pre-sentence evaluation report,
Acta Criminologica 16(2) 2003, A Van der Hoven and M Ovens said
in their introduction at page 19:
“
The primary
purpose of the pre-sentence report is to provide the court with
comprehensive information about the offender as a person
in order to
assist in the passing of an appropriate sentence. The report provides
details with regard to the accused’s childhood
years, education
and training, personality make-up, relationships as well as an
explanation with regard to the causes and the context
within which
the crime took place. This is information which, up to this stage in
the court process, is often not known to the
magistrate and can serve
to individualise the offender.”
[5]
The accused’s family roots, both maternal and paternal, are in
Engcobo, Eastern Cape. He is the 5
th
of 7 children. His father was reported to have been killed by his own
brother (accused’s uncle) when the accused was about
4 years
old. As a result the mother had to leave the children in the care of
the maternal grandmother whilst doing odd jobs in
the community. The
accused’s eldest brother assumed the father figure role. In his
youth, there were no negative reports
about the accused. He was,
whilst growing up, a member of Ikhaya Labangcwele Zionist Church
where he was an usher. He still practiced
traditional customs and
attended initiation school. He did not smoke and did not use any
drugs. He used alcohol only on special
occasions since he was 21
years of age.
[6]
He herded cattle and dropped out of school at primary level. He had
been an average learner. He could not remember what grade
he was
doing when he dropped out of school. Education was not much valued
within his family to the extent that even when he dropped
out of
school, nobody bothered about it. He moved to Cape Town in 2008 to
look for job opportunities. His eldest brother, who was
already in
Cape Town, supported him. In 2012 he got employed as a taxi marshal
at Dunoon taxi rank. In 2014 he started working
as a taxi driver at
the same rank. In that same year his employer was shot dead. He got
employed as a taxi driver at Nyanga terminus
in 2015. He spent most
of his time at the rank and driving the Avanza taxi.
[7]
He had been in a relationship since 2015 and had two children. He was
unmarried. He earned a living as a taxi driver, from which
he
occasionally provided for his mother and children. He had been
renting a backyard room in Phillipi before his arrest. He still
occasionally visited his homestead in the Eastern Cape where his
mother resided with his children. He had a good relationship with
his
mother, siblings and children. The mother of his children, after
learning of his arrest, removed his children from his mother
and took
them away. Their whereabouts are currently unknown.
[8]
The report from the correctional officer, Ms Jikitha, who was
interviewed by the probation officer, was that the accused was
one of
the well-behaved inmates and that he related well with most of the
correctional officers. He was also described as a friendly
person who
enjoyed meaningful conversation with staff members at the
correctional facility. He had been in custody for the past
3 years.
He maintained his innocence and felt that he was wrongfully accused
and convicted. Most of the time, according to him,
the Avanza he used
to drive was driven by another, Xolisa, whose whereabouts were
unknown.
[9]
Accused’s eldest brother indicated to the probation officer
that the accused did not share with the family what he was
accused
of, and that they only heard in court and that the family was shocked
when they heard during the trial. He did not inform
his mother about
his arrest and the mother heard from his eldest brother. The accused
had several girlfriends and his family could
not associate him with
sexual assaults. His eldest brother referred to the accused as a
womanizer.
[10]
In her evaluation, the probation officer noted that the accused did
not take responsibility for his involvement in the commission
of the
crimes and remorse for his actions was questionable. Although the
accused’s childhood had been fragile financially,
he was cared
for by caregivers and had developed a sense of belonging. He shared
good interpersonal relationships with his immediate
family members,
had strong attachments to his maternal and paternal relatives and got
along with his siblings.
[11] He had two traumatic
incidents where he lost people close to him as a result of brutal
violence and never received counseling.
The reports from his family
and correctional officer spoke to his ability to control his behavior
and to make choices needed to
adjust his behavior to his structured
environment. His dropping out of school, and seemingly not bothered
thereby, spoke to a poor
sense of decision-making. The probation
officer recommended a sentence of direct imprisonment.
The
crime
[12]
Section 12(1)(c) of the Constitution of South Africa provides that
everyone has a right to be free from all forms of violence
from
either the state or private source. The complainants’ rights to
be free from violence as envisaged in the Constitution
were violated
when the accused attacked the complainants, violated their privacy,
their intergrity and them of their valuables.
Young mostly working
women who commuted on taxis between their residences and place of
work were targeted. They were preyed upon
when they would be walking
alone whilst it was still dark in the early hours of the morning.
Once they were in the taxi the accused
would lock the doors. He would
engage them in an innocent conversation and convince them that it was
necessary for him to divert
from the ordinary route which taxis
ordinarily use. His smile, calm and respectful demeanour would earn
their trust whilst he drove
to isolated spots.
[13]
“
Lady,
today you have boarded the wrong taxi”:
was
his opening chilling remark that made them realise for the first time
that they were in trouble after he stopped. Because of
his earlier
demeanour, most victims initially thought he was joking, until they
saw a knife, crow-bar or his hand behind his body
in a manner
suggesting that he held a dangerous weapon. He would then demand
money, bank cards and phones. He would then search
their handbags and
physically searched their bodies, including in their bras. Sometimes
he was not alone during this first ordeal
of kidnapping and robbery.
Ms Motshonga was robbed by the accused and another.
[14]
After the robbery, he would move to the second leg of their ordeal,
which was of a sexual nature. For Ms Motshonga, the accused
unzipped
her pants, put his hand in her pants and inserted his fingers in the
lips of her vagina. Ms Sidumo had her breasts fiddled
with. Her pants
were unzipped and the accused forced to kiss her. He forced his hands
into her tights jean pants and moved his
fingers further down between
her jeans and panties until he reached her pelvic region just before
her vagina. All this happened
with her son sitting next to her and
watching, crying and pleading with the accused to stop. She was also
pleading with him not
to rape her in front of her son.
[15] Ms Kabena had her
breasts fiddled with and was forced to suck the accused penis. The
accused then moved from the driver’s
seat to the back seat,
forced her to undress and raped her by penetrating her vagina with
his penis. Ms Dyani was forced to lie
down at the backseat of the
Avanza, the accused removed her panties and inserted his penis in her
vagina and had intercourse with
her. Ms Nyanhinda gave the accused a
platonic kiss when he demanded to be kissed, and he demanded to be
kissed properly which she
was forced to do. She was forced to touch
his private parts and to give him a blow job. Ms Rum watched as the
accused pulled down
his pants, exposed his private parts and
instructed her to suck his penis repeatedly. As she lifted her head
when she felt like
vomiting, the accused would pull her by her neck
and force her back to his penis to suck it.
The
interests of society
[16]
There are strong feelings of annoyance, displeasure and opposition to
gender-based violence. Women in particular are experiencing
worry and
unease. They are very eager and concerned to have something done for
their safety and security. They move about with
an instinctive and
intuitive feeling of anxiety and fear from the knowledge and reason
that they may suffer gender-based violence.
More than just repetition
of old slogans is necessary to push back the frontiers of patriarchy.
[17]
There are serious problems with the mind and its functions, of men
like the accused, which affected their behavior. His mental
characteristics and his attitude towards women led to abnormal,
disorderly and violent behavior. The decision to wake up in the
morning, drive out of your ordinary route with the sole purpose of
kidnapping, robbing and raping or sexually assaulting women
arise in
the mind and is related to the mental and emotional state of a
person, in my view.
[18]
The taxi industry prides itself as being the backbone of the economic
and social life of the poor black majority. It is one
of the first
enterpreneural adventures of blacks, which did not depend on
government for its sustenance, as they struggled to get
out of
poverty into business. The working class majority without their own
mode of transport depend on it to commute for any activity
which
required human transportation in the public transport space. It is
responsible for human movement from maternity ward to
home, from home
to crèche, school, university, work, old age pension pay-point
and ultimately to the graveyard.
[19] It cannot afford to
be the hide-out for those who abuse women. The industry, to maintain
moral authority and trust, cannot
afford to be a safe haven for
criminals. Zapiro, one of South Africa’s leading cartoonist,
may portray the industry as above
the Constitutional Court in the
hierarchy of the judicial system of the country. It may often create
a perception, in the mind
of the public, that it is above the
Legislature and the Executive as well. However, it ought not be
allowed to be a conducive environment
to nurture and advance
gender-based violence.
Victims
[20]
The rule in
Zinn,
supra
,
include the perpetrator, generally men, and exclude victims,
generally women, in gender-based violence, as a self-standing
constituent
factor to be considered for purposes of sentencing. I am
unable to find a cogent reason why a Judge- made law, pronounced by
an
impartial judicial officer free from the chains of patriarchy
which is notorious for its different standards for women, would seek
to exclude women’s voices as a factor in a sentence
individualized and specifically tailored to pronounce justice for
them.
In my view, the time has arrived for the triad to mature to the
quadrant in respect of gender-based violence.
[21] In her article,
The
judicial relevance and impact of victim impact statements in the
sentencing of rape offenders,
2018 SACJ 212
, Amanda Spies began
her concluding remarks as follows at 231:
“
For victims
of crime, a great shock is how little they matter in criminal justice
processes, as they expect their interests to be
of equal concern in
terms of the impact the crime had on their lives. In sentencing
offenders, the central focus remains giving
effect to traditional
sentencing goals that cater very little for real involvement from
victims.”
She continued at 232:
“
The actual
purpose of victim impact statements is to include victim’s
voices in the criminal justice system, to provide them
with a public
forum to communicate their harm and to recognize the wrong they
suffered.”
[22] The Supreme Court of
Appeal in
S v Abrahams
2002 (1) SACR 116
(SCA) at 30 said:
“
[30] The
amicus rightly pointed out that our Constitution, as well as
international treaty obligations, require the government and
the
courts to take special steps to protect the public in general and
women in particular against violent crime. The Constitutional
Court
has given these obligations emphasis in recent decisions (
S
v Baloyi (Minister of Justice and another intervening)
and
Carmichele
v Minister of Safety and Security
),
and in the sentencing process they must be accorded appropriate
weight.”
In
Rammoko v Director
of Public Prosecutions
2003 (1) SACR 200
(SCA) at para 13 it was
said:
“
[13] …
In the present matter evidence relating to the extent to which the
complainant has been affected by the rape and will
be affected in
future is relevant, and indeed important. Such evidence could have
been led from the complainant's mother, her school
teacher or a
psychologist. No attempt was made to do so.
[23] In
S v Matyityi
2011 (1) SACR 40
(SCA) it was said:
“
[16] An
enlightened and just penal policy requires consideration of a broad
range of sentencing options, from which an appropriate
option can be
selected that best fits the unique circumstances of the case before
court. To that should be added, it also needs
to be victim-centred.
Internationally the concerns of victims have been recognised and
sought to be addressed through a number
of declarations, the most
important of which is the UN Declaration of the Basic Principles of
Justice for Victims of Crime and
Abuse of Power. The declaration is
based on the philosophy that adequate recognition should be given to
victims, and that they
should be treated with respect in the criminal
justice system. In
South
Africa victim empowerment is based on restorative justice. A
Restorative justice seeks to emphasise that a crime is
more than the
breaking of the law or offending against the State - it is an injury
or wrong done to another person. The Service
Charter for Victims of
Crime in South Africa seeks to accommodate victims more effectively
in the criminal justice system. As in
any true participatory
democracy its underlying philosophy is to give meaningful content to
the rights of all citizens, particularly
victims of sexual abuse, by
reaffirming one of our founding democratic values, namely human
dignity. It enables us, as well, to
vindicate our collective sense of
humanity and humanness. The charter seeks to give to victims the
right to participate in and
proffer information during the
sentencing phase. The victim is thus afforded a more prominent role
in the sentencing process
by providing the court with a description
of the physical and psychological harm suffered, as also the social
and economic effect
that the crime had and, in future, is likely to
have. By giving the victim a voice the court will have an opportunity
to truly
recognise the wrong done to the individual victim. (See
generally Karen Muller & Annette van der Merwe
'Recognising
the Victim in the Sentencing Phase: The Use of Victim Impact
Statements in Court'
.)
[17] By accommodating the victim
during the sentencing process the court will be better informed
before sentencing about the after-effects
of the crime. The court
will thus have at its disposal information pertaining to both the
accused and victim, and in that way hopefully
a more balanced
approach to sentencing can be achieved. Absent evidence from the
victim, the court will only have half of the information
necessary to
properly exercise its sentencing discretion. It is thus important
that information pertaining not just to the objective
gravity of the
offence, but also the impact of the crime on the victim, be placed
before the court. That in turn will contribute
to the achievement of
the right sense of balance and in the ultimate analysis will enhance
proportionality, rather than harshness.
Furthermore, courts generally
do not have the necessary experience to generalise or draw
conclusions about the effects and consequences
of a rape for a rape
victim. As Muller & Van der Merwe put it:
'It
is extremely difficult for any individual, even a highly trained
person such as a magistrate or a judge, to comprehend fully
the range
of emotions and suffering a particular victim of sexual violence may
have experienced. Each individual brings with himself
or herself a
different background, a different support system and, therefore, a
different manner of coping with the trauma flowing
from the abuse.
’”
[24] In
Director of
Public Prosecutions, North Gauteng v Thabethe
2011 (2) SACR 567
(SCA) at para 21 it was said:
“
That the
victim's voice deserves to be heard admits of no doubt. After all, it
is the victim who bears the real brunt of the offence
committed
against him or her. It is only fair that he/she be heard on, amongst
other things, how the crime has affected him/her.
This does not mean,
however, that his/her views are decisive.”
In
S v Mhlongo
2016
(2) SACR 611
(SCA) at para 22 and 23 it was said:
“
[22] In
Matyityi
this court, with reference to the Convention on the Elimination of
all Forms of Discrimination Against Women (CEDAW), United Nations
Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power, and the Service Charter for Victims of Crime
in South
Africa, sent a powerful message on the importance of a VIS, which
seems to be disregarded wantonly and without fear of
any
repercussions by the state. A VIS forms an integral part of the last
phase of the trial. It is essential for the court in arriving
at a
decision that is fair to the offender, victim and the public at
large. It serves a greater purpose than contributing only
to the
quantum of punishment. It generally gives the sentencing court a
balanced view of all aspects, in order to impose an appropriate
sentence. It accommodates the victim more effectively, thus giving
her or him a voice and the only opportunity to participate in
the
last phase of the trial. Moreover, the VIS gives the victim the
opportunity to say in her or his own voice how the crime has
affected
him or her. This is particularly so where no expert evidence is led
by the state to indicate the impact of the crime on
the victim.
[23] After several
judgments of this court have pointed out the substantial importance
of the VIS and that it must form part of
the sentencing process, the
South African criminal-justice system requires the permanent infusion
of a VIS into the justice process.”
[25]
The voices of the victims, in this case were heard from their own
mouths, were incorporated by reference into the probation
officer’s
report and were also set out in the Victim-Impact Statements prepared
by the Social Worker, Ms Shafieka Moos, from
the Rape Crisis, Cape
Town Trust. What she went through had long lasting effects on Ms
Nyamhinda. She felt violated, angry, disgusted
and terrified at the
time of the incident. After that incident she was not coping.
Whenever she saw a male walking, she ran. Whenever
she was in a car
and its doors were locked, she jumped. Whenever an unknown male
looked at her and greeted her, she jumped. She
had trouble sleeping.
Her reaction included nightmares, flashbacks and difficulty
concentrating. Ms Motshonga was scared,
shaking and did not
know what to say as things turned for the worst inside the Avanza
taxi. She said to the accused: “
I
am sorry”.
She said these words to apologise or plead for mercy. She said these
words for she wanted the accused to feel sorry for her, to
have mercy
on her. She was scared and shocked. At the time that the accused
touched the lips of her vagina with his fingers she
was shaking and
upset.
[26]
Ms Sidumo broke down and cried at the time that she related how the
accused unzipped her pants and placed his hand inside her
pants above
her panty after he had forced to kiss her, with all these happening
whilst her 11 year old son was seated next to her
in the Avanza. He
ignored her pleas not to rape her in front of her son, and instructed
her to lower her zip whilst both, she and
her son, were crying. He
instructed the young child to look the other way and continued. The
child also pleaded with him to stop
but the accused continued kissing
her. She was so shocked and scared by the experience. After that day,
she did not use public
transport anymore as she was scared and
shattered. The world does not feel a safe place anymore. She felt
dirty and had low self-esteem.
The son, Wonga’s observation was
that the accused failed to open her mother’s pants because they
were tight on her
and that was the reason he stopped. He could not
help her mother because the accused had a knife, and when he cried
the accused
told him to just look away. It is a traumatic experience
he will never forget.
[27]
Ms Kabena felt very threatened and was really scared. She was a
virgin before the day the accused raped her. It was painful.
After
the incident she isolated from other people. Her attitude towards sex
changed and she had no interest. She felt humiliated
and shameful and
scared and anxious whenever she was outside her home. She had
obsessive compulsive behavior and struggled to feel
hopeful about the
future. Ms Rum was very emotional and cried when she testified. When
the accused demanded money, she could only
give the R100 which was
the only money she had. The accused asked her if she was prepared to
die or to give the money. He told
her the money was too little and
for that she had to suck him. She pleaded with him: “
Bhuti,
can you please forgive me because I don’t have money?”
The accused simply told her that he won’t. She was terrified
and sucked him. When she felt like vomiting and pulled out,
the
accused grabbed her by her neck and pulled her back to continue to
suck his penis. He was groaning as she sucked him. She was
shocked by
what happened to her. She was suffering from panic attacks. She could
not eat well and had difficulties accepting what
happened to her. She
cannot stop thinking about what happened to her and these recurring
thoughts upset her greatly. This caused
complications in her intimate
relationship.
[28]
In count 15 and 16 the accused raped the victim by forcing her to
suck his penis without her consent whilst he sat on the driver’s
seat and she was seated on the rear seat. He thereafter crossed over
to the backseat where he forced her to undress and then raped
her by
penetrating her vagina with his penis without her consent. The
discretionary minimum sentence for these serious offences
where the
victim was raped more than once by the accused, is imprisonment for
life unless the court is satisfied that substantial
and compelling
circumstances exist which justify the imposition of a lesser sentence
[Section 51(1) read with (3) and Schedule
2 Part I of the Criminal
Law Amendment Act 105 of 1997 (CLAA)]. For each count of robbery when
there are aggravating circumstances,
for a first offender, as is the
position with the accused, the discretionary minimum sentence is
imprisonment for a period not
less than 15 years [Section 51(2)(a)(i)
read with Part II of Schedule 2 of CLAA]. For rape other than as
referred to in Part 1,
the discretionary minimum sentence is 10 year
[Section 51(2)(b)(i) read with Part III of Schedule 2 of CLAA]. For
kidnapping, the
minimum sentence is 5 years.
[29]
The accused had a disrupted emotional development which arose out of
traumatic experiences which had profound implications
for his life
when he was still young and fragile. This included the violent
killing of his father by his uncle. The accused had
poor
decision-making skills. He had the ability to control his behavior
and to make choices needed to adjust his behavior to his
structured
environment. This was what I understood, from the probation officer’s
report, to be an explanation with regard
to the causes and the
context within which the crimes took place.
[30]
To achieve a sense of distorted importance and control, in order to
feel gratified, the accused asserted sexual dominance and
power over
vulnerable women. His use of sexual relations to satisfy emotional
needs is what his eldest brother observed and termed
“a
womanizer”. It is a mind-set with toxic implications for the
distribution and exercise of masculine power. It manifested
an
unusual need for power and dominance. Women, in his world, were
objects, and that explained why in my view, he saw nothing wrong
with
his gender-based violence perpetrated against them.
[31] Van der Hoven and
Ovens,
supra,
at page 28 said:
“
In this
instance the crime is of such a nature that it is important to
consider the interests of the community and ensure their
protection
at all costs. The harm done to the victims, their families and the
morale of the whole community, and the offender’s
inability to
accept responsibility make incarceration a viable mechanism to
restore the imbalance caused by the crime.”
Consideration
of the crime, the criminal, the victim and the interests of the
community is a viable mechanism to restore the imbalance.
A
short-term imprisonment will neither hold any deterrent or
rehabilitative value for the accused as an individual nor set an
example and send a clear message to potential offenders. The severity
of the crimes made retribution a factor that balanced the
scales of
justice. For justice to be served in this case, severe punishment was
called for.
[32]
Gender-based violence is serious and prevalent. Rape in particular,
has a deleterious effect on the victims personally and
extends to
their relations. According to the probation officer, it left its
victims scared, angry, guilty, anxious and sad and
its stigma caused
others to feel embarrassed and ashamed whilst others developed
post-traumatic stress disorder. This court has
an obligation, in its
pronouncement on sentence, to reflect the society’s legitimate
outrage. The sentence had to reflect
cognizance of the pain,
heartbreak and destruction of the lives of the victims. The personal
circumstances of the accused, seen
against the background of the
crime, the interests of the community and the impact on the victims,
do not satisfy me to be substantial
and compelling to justify a
departure from the discretionary minimum sentences.
[33]
For these reasons I found that there are no substantial and
compelling circumstance to deviate from the prescribed sentences
and
the accused is sentenced as follows:
(a) Count 1 accused is
sentenced to 5 years imprisonment.
(b) Count 2 accused is
sentenced to 15 years imprisonment.
(c) Count 5 accused is
sentenced to 5 years imprisonment.
(d) Count 6 Accused is
sentenced to 15 years imprisonment
(e) Count 7 accused is
sentenced to 10 years imprisonment
(f)Count 8 accused is
sentenced to 5 years imprisonment.
(g) Count 9 Accused is
sentenced to 5 years imprisonment.
(h) Count 10
accused is sentenced to 15 years imprisonment.
(i) Count 11 accused is
sentenced to 15 years imprisonment.
(j) Count 12 accused is
sentenced to 10 years imprisonment
(k) Count 13 accused is
sentenced to 5 years imprisonment
(l) Count 14 accused is
sentenced 15 years imprisonment.
(m) Count 15 and 16
accused is sentenced to life imprisonment.
(n) Count 17 accused is
sentenced to 5 years imprisonment.
(o) Count 18 accused is
sentenced to 15 years imprisonment.
(p) Count 20 accused is
sentenced to 10 years imprisonment.
(q) Count 21 accused is
sentenced to 5 years imprisonment.
(r) Count 22 accused is
sentenced to 15 years imprisonment.
(s) Count 23 accused is
sentenced to 10 years imprisonment.
(t) Count 24 accused is
sentenced to 5 years imprisonment.
(u) Count 25 accused is
sentences to 15 years imprisonment.
(v)
Count 26 accused is sentenced to 10 years imprisonment.
The
sentences in counts 1-14 and 17-26 will run concurrently with life
imprisonment.
Before I rise, the
conscience of justice weighs heavily upon me to ask the Chairperson
of the Portfolio Committee on Justice in
the Parliament of the
Republic of South Africa, the Honourable Mr Bulelani Magwanishe, MP:
“Is it not about time that persons
in the category of the
accused have their names entered on the National Register for Sex
Offenders?”
………………………………………
..
DM
THULARE
ACTING
JUDGE OF THE HIGH COURT