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[2016] ZASCA 179
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Kaywood v S (394/16) [2016] ZASCA 179 (28 November 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 394/16
In
the matter between:
ZAMUXOLO
KAYWOOD
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
Citation:
Kaywood
v S
(394/2016)
[2016] ZASCA 179
(28 November 2016).
Coram:
Bosielo,
Tshiqi and Dambuza JJA and Schoeman and Nicholls
AJJA
Heard:
3
November 2016
Delivered:
28 November 2016
Summary:
Criminal law:
appeal against sentences of life imprisonment for rape and 16 years’
imprisonment for attempted murder following
a gruesome attack on the
complainant: Minimum Sentences Act (105 of 1997) applicable: no
substantial and compelling circumstances:
sentences not
disproportionate to the crimes committed: appeal dismissed.
ORDER
On
appeal from:
Northern
Cape Division of the High Court, Kimberley (Kgomo JP sitting as court
of first instance):
The
appeal is dismissed.
JUDGMENT
Dambuza
JA (Bosielo and Tshiqi JJA and Schoeman and Nicholls AJJA
concurring):
[1]
This is an appeal against sentence. The 34 year old appellant,
Zamuxolo Kaywood, was convicted by the Northern Cape Division
of the
High Court, Kimberley (Kgomo JP), of attempted rape and assault with
intent to do grievous bodily harm which took place
on 8 August 2010,
and rape and attempted murder which took place on 1 October 2010. He
was sentenced to eight years’ and
two years’ imprisonment
respectively for the convictions for attempted rape and the assault
with intent to do grievous bodily
harm. For the rape and the
attempted murder convictions he was sentenced to life imprisonment
and 16 years’ imprisonment
respectively. This appeal is against
the two last-mentioned sentences, leave having been granted by the
trial court.
[2]
The convictions in respect of the attempted rape and assault relate
to an incident which occurred at about midnight, on 8 August
2010, or
during the early hours of the following morning. The complainant and
the appellant knew each other. The complainant had,
at some stage
prior to the incident, been a girlfriend of the appellant’s
brother. On the night of 8 August 2010, the complainant
and the
appellant were at the Greenpoint Tavern in Kimberly. In the early
hours of the following morning the complainant asked
the appellant to
escort her home.
[3]
As they walked together the appellant abruptly started assaulting the
complainant by slapping her in the face. The complainant
fell down
and the appellant kicked her repeatedly all over the body as she lay
on the ground. She later discovered that she had
sustained a fracture
of the right ankle as a result of the assault. She was admitted to
hospital for a period of two weeks. The
appellant had dragged the
complainant to the nearby Greenpoint Graveyard where he started
undressing her. The complainant screamed
for help and two brothers,
Daniel (also known as Tokkie) and Boetie, came to her rescue. The
appellant and Daniel engaged in a
tussle. During the fight, the
appellant picked up a stone with which he hit Daniel twice on the
head resulting in two open wounds
on his face. He also sustained
superficial injuries on the face. The appellant then managed to break
free and run away. The conviction
of assault with intent to do
grievous bodily harm related to this assault on Daniel.
[4]
About two months after that incident, on 1 October 2010, the
complainant in the rape and attempted murder convictions was also
attacked by the appellant. She had spent the earlier part of the
night at Lovers Tavern, in Kimberly, together with some of her
friends. At some stage she left the tavern on her way home. As she
walked through the Greenpoint Graveyard she was attacked from
behind.
She recognised her attacker as the appellant whom she had seen at the
tavern. The appellant stabbed her repeatedly until
she fell to the
ground. Her attempts at fighting back failed.
[5]
The appellant then dragged the complainant to one side of the
graveyard and placed her under a tree. He undressed and raped
her, at
the same time warning her not to scream. He raped her twice. On the
second occasion he fell off her whilst raping her.
The complainant
used the opportunity to scream loudly. People came to her rescue. The
appellant fled. The complainant lost consciousness
and only woke up
in hospital.
[6]
She sustained 12 stab wounds, five of which were on her face and the
rest on her legs. She also sustained human bites and superficial
abrasions on her back and legs. Later, her grandmother found her
identity book, her clothes, including underwear, at the scene
where
she was raped. The bloodied clasp-knife with which the appellant had
stabbed her, was also found there.
[7]
Regarding the sentences under consideration the State led the
evidence of a social worker on the impact of the attack on the
complainant. The complainant also gave impassioned evidence on the
effect the incident had on her. She described her feelings as
follows:
‘
Daar
was tye wat ek gevoel het dat ek wil nie meer lewe nie. Daar was vrae
ek my gevra het wat ek nooit antwoorde gekry het nie.
Vrae soos
hoekom het dit met my gebeur. Vrae soos wat ek gesondig het dat dit
met my gebeur, hoekom ek. En in die begin in, was
dit baie swaar vir
my. Want oral waar ek loop of waar ek gaan, ek dink net dat mense
negatiewe dink van die. Tot even as ek moet
onderhoude toe gaan van
werk ook. Ek dink net die negatiewe goeters dat mense miskien gaan
dink die scar in my gesig dat ek ‘n
rowwe persoon is, en tot in
die gemeenskappe waar ek bly. Somtyds daar is mense wat my woorde
gee. Enige simpel of enige klein
stry wat ek net het met iemand dan
gaan ek woorde kry, jy is nie gerape jy is gemis. En tot nou toe
mense wat my miskien nie ken
nie, baie gaan sê, baie vra my
meisie jy is so mooi waar kry jy hierdie hou, is dan jy rof of jy lyk
rof. En die seerste
van alles vir my is dat ek was ‘n persoon
van ek het selfvertroue gehad in my. Vandag het ek nie meer daardie
selfvertroue
in my nie, want ek dink altyd net negatiewe dinge wat
mense dink van my. Somtyds as ek moet gaan vir onderhoude en mense
respond
my nie terug nie of bel my nie terug nie, ek dink net dat
hulle [dink] ek is ‘n persoon, ek is ‘n rowwe persoon. En
elke keer, elke keer as die saak nader is dat ek moet hof toe kom, en
dan het ek slapelose nagte. Want ek kry jou in drome ook.
En dit voel
of die een kant van my liggaam voel ek soos Zelda Kramp, aan die een
kant ek voel of iets weggeneem is uit my lewe
uit.
.
. . Tot vandag toe waar jy gespoil het met my gesig, ek kan nie
vannag daar is baie goed wat ek kan doen my regterkant van my
gesig
wat ek nie kan doen met my linkerkant nie. [onduidelik] van jy is nie
goed vir die gemeenskap nie. Jy kan dit weer aan iemand
anders gaan
doen ook. En soos ek vandag hier sit, ek hoop ek wens my laaste ek
wil jou nooit weer sien nie.’
The
reference to her face related to a stab wound she had sustained on
the right side of her face which the treating doctor described
as:
‘
A
3 cm vertical cut being from top to bottom . . . about 2 and a half
cm’s in front of the left ear. The front part of the
wound
actually showed a secondary cut which is referred to in technical
lingo as a fish tail it looks like a fish tail indicating
that it was
most likely due to a single edge bladed weapon that was turned as the
cut was caused.’
The
doctor’s evidence was that this inquiry resulted in damage to
complainant’s peri-oracular artery as well as the
branch of a
facial nerve located in the same area, resulting in partial paralysis
of the side of the face.
[8]
In the court a quo the complainant’s grandmother described her
experience and feelings on what had happened to her grandchild
as
follows:
‘
Daardie
klere het so gelyk van die bloed dit het my hart diep seergemaak dit
het gelyk my kind is soos ‘n bees.’
The
evidence of the social worker was a repeat of the sentiments
expressed by the complainant above, particularly as to the effect
of
the scar and the partial paralysis on her face. The social worker’s
opinion was that the complainant was still traumatised.
The
complainant had terminated counselling because she believed that ‘it
[would] open the wounds again’.
[9]
Before the court a quo, both the State and the defence were agreed
that because of the gravity of the rape, the sentence in
respect
thereof fell to be determined in terms of the provisions of s 51(1)
read with Part 1 of Schedule 2 of the
Criminal Law Amendment Act 105
of 1997
, as amended (the Minimum Sentences Act). This Act finds
application in this case on two grounds: firstly, because the
appellant
inflicted grievous bodily harm to subdue the complainant in
order to rape her, and, secondly, because he raped her twice. In
terms
of the Minimum Sentences Act, the applicable sentence was life
imprisonment for the rape conviction. The court could, however,
deviate from the prescribed sentence if it found that there were
substantial and compelling circumstances,
[1]
or that the sentence of life imprisonment was exceedingly harsh in
the circumstances.
[2]
[10]
The State and the defence were also in agreement that no substantial
and compelling circumstances existed in this case. The
court a quo
found none and sentenced the appellant accordingly. Curiously,
despite the submissions made before the court a quo
during
sentencing, the appellant launched an application for leave to
appeal.
[11]
At the hearing of that application, the court a quo was of the view
that it had erroneously taken into account the appellant’s
superannuated two previous convictions. On 21 April 1999 the
appellant had been convicted of assault with intent to do grievous
bodily harm and had been sentenced to a fine of R600 or three months’
imprisonment. The sentence was suspended for a period
of five years
on certain conditions. About three and a half years thereafter, on 11
September 2002 (within the period of suspension)
the appellant was
convicted of attempted murder and was sentenced to a fine of R1 000
or 100 days’ imprisonment. In
considering the two previous
convictions when sentencing the appellant, the court a quo took the
view that they had not been superannuated.
It appears from the record
that on reconsideration, the court took the view that it should have
sentenced the appellant as a first
offender.
[12]
Before us, both the State and the appellant’s counsel, again,
made the principal submission that there are no substantial
and
compelling circumstances in this case. Both supported the sentence
imposed by the court a quo. Significantly, it was submitted
on behalf
of the appellant that the misdirection of the trial court did not
vitiate the sentence imposed. But counsel for the appellant
also
submitted that the appellant’s personal circumstances as
tendered before the court a quo could constitute substantial
and
compelling circumstances when considered together with the fact that
he was a first offender when he was sentenced. I do not
agree.
[13]
It is true that under s 271A of the Criminal Procedure Act 51 of
1977 (the CPA) the appellant’s previous convictions
fell away
after a period of 10 years from the date of conviction. The court a
quo sentenced the accused on 26 June 2013. Section
271A of the CPA
provides:
‘
Where
a court has convicted a person of-
(a)
any
offence in respect of which a sentence of imprisonment for a period
exceeding six months without the option
of a fine, may be imposed
but-
(i) has
postponed the passing of sentence in terms of section 297(1)
(a)
and has discharged that person in terms of section 297(2) without
passing sentence or has not called upon him or her to appear
before
the court in terms of section 297(3); or
(ii) has
discharged that person with a caution or reprimand in terms of
section 297(1)
(c)
;
or
(b)
any
offence in respect of which a sentence of imprisonment for a period
not exceeding six months without the option
of a fine, may be
imposed,
that
conviction shall fall away as a previous conviction if a period of 10
years has elapsed after the date of conviction of the
said offence,
unless during that period the person has been convicted of an offence
in respect of which a sentence of imprisonment
for a period exceeding
six months without the option of a fine, may be imposed.’
As
apparent from paragraph 11 above, the sentences imposed in respect of
the appellant’s ‘previous convictions’
were lighter
than those stipulated in s 271A. The appellant was indeed
entitled to be sentenced as a first offender.
[14]
However, the error committed by the court a quo did not vitiate the
sentence imposed. Neither do the appellant’s personal
circumstances. The appellant was 31 years old when he was sentenced
by the court a quo. He would have been 29 years old when he
committed
the offences under consideration. He was single. The trial court
accepted that he had a one year old child despite the
fact that he
had been in prison, awaiting trial, for the thirty months preceding
the trial. He had gone up to Grade 7 at school
and held casual
employment.
[15]
The appellant’s personal circumstances pale against the
abhorrent nature and level of cruelty with which he committed
the
crimes under consideration.
[3]
Any lesser sentence would not be justified. I have already set out
the injuries sustained by the appellant and the impact thereof
on
her. The offences committed by the appellant were particularly
abhorrent. First, he inflicted untold pain on the complainant,
and
then when she must have been writhing in pain, soiled with dirt and
blood, he performed one of the most degrading acts on her.
As a
result of his exceedingly cruel conduct, the complainant was left
permanently, physically and emotionally scarred. All this,
to satisfy
his lust.
[16]
Consequently, it is my view that in this case a departure from the
minimum prescribed sentence would be nothing short of maudlin
sympathy.
The
appeal is dismissed.
___________________
N
DAMBUZA
JUDGE
OF APPEAL
APPEARANCES:
For
the Appellant:
A van Tonder
Instructed by:
Kimberley Justice Centre, Kimberley
For
the Respondent: K M
Kgatwe
Instructed by:
Director
of Public Prosecutions, Kimberley
[1]
S v Malgas
2001 (1) SACR 469
(SCA) para 25; S 51(3) of the Minimum Sentences Act.
[2]
S v Fhetani
[2007]
SASCA 113;
2007 (2) SACR 590
(SCA) para 5.
[3]
S v Solomon &
Another
2008
(2) SACR 149
(E).