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[2012] ZAGPJHC 294
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S v Luruli and Another (SS 63/11) [2012] ZAGPJHC 294; 2014 (1) SACR 511 (GJ) (20 July 2012)
NOT REPORTABLE
REPUBLIC OF SOUTH
AFRICA
IN THE SOUTH GAUTENG
HIGH COURT
(JOHANNESBURG)
CASE
NO
: SS63/11
DATE: 20/07/2012
In the matter between:
STATE
versus
RICHARD TSHIFHIWA
LURULI.
.....................................................
Accused
1
MICHAEL
KHOROMBI
.....................................................................
Accused
2
SENTENCE
WEINER J
:
1. In this case, the
accused have been found guilty of:
1. eight
counts of rape;
2. one
count of robbery with aggravating circumstances as defined in Section
1(1) of Act 51 of 1977 read with Section 51(2) of Act
105 of 1997;
3. four
counts of compelled sexual assault and;
4. one count
of being in possession of an unlicensed firearm.
2. As Plaskett J in
S
v Mako
1
held, various elements are considered in imposing
sentence namely; the interests of the community
2
;
the personal circumstances of the accused
3
and; the nature of the offence
4
.
These considerations have become trite when courts are imposing
sentence.
3. The accused have been
found guilty of serious and prevalent offences. I have taken into
account the remarks of Plaskett J in
Mako (supra)
at [12]
where it is said that one cannot in an “
endeavour to deal
with violent crime”
forget that a
“
proper
balance has to be struck between the objective gravity of the
offence, the interests of society and the interests of the
offender,
even where a particular crime is prevalent and an element of general
deterrence may be warranted.”
4. The personal
circumstances of the accused are the following: In respect of accused
1: he is 30 years old; he passed grade 10
in Venda. Since 2002, he
has been in Johannesburg and has worked. He earned between R900.00
and R3 200.00 per month. He is married
by Venda custom and has one
child, a boy, aged 11 years old.
5. In respect of accused
2:- he is 28 years old; born in Venda and reached grade 9. He has
been in Johannesburg since 2003 where
he worked until 2009 and earned
between R900.00 and R1 800.00 per month. He was married according to
Venda custom and is now divorced
and the child, aged 7 years old, is
staying with relatives. He has a second child, a girl, who is with
his family in Venda and
who is aged 12.
6. Counsel for the
accused argued that there are exceptional and substantial
circumstances to deviate from the minimum sentences
applicable in
this case. According to him, an exceptional and substantial
circumstance is that the complainants suffered no physical
injuries.
He has also argued that all of the sentences should run concurrently
with the main sentence.
7. The state has argued
that these are serious and violent crimes and that the community’s
interests need to be served.
8. In my view, there are
no compelling and substantial circumstances which would allow the
court to deviate from the minimum sentences
prescribed in respect of
those offences governed by the minimum sentences legislation.
9. The victims may not
have suffered physical injuries, but this court can only imagine the
psychological trauma suffered. According
to family members of Ms T,
which statements were not disputed or objected to by the accused’s
counsel, they do not know whether
she will ever be able to come to
terms with what has happened to her. She has become detached and has
had a personality change.
Her marriage has broken down. According to
the words used by the prosecutor, both of these complainants were
vandalised by the
two accused.
10. The second
complainant, Ms R, is still suffering the trauma and is continuing to
see counsellors to save her marriage and in
order to assist her in
coming to terms with what has happened to her.
11. The state argued that
due to the prevalence and seriousness of rape in our society it is
time to send a clear message that South-Africa
is fighting to
eradicate this and put the perpetrators of these crimes away as women
are not safe on our streets.
12. This case also
involved the compelled sexual assault which was imposed on Mr P.
These offences crossed the boundary of humanity.
The psychological
trauma and the loss of dignity which the complainants and Mr P
suffered have left deep wounds and are seen as
aggravating
circumstances in this case.
13. Other aggravating
circumstances are the following: Firstly, a firearm was used and
placed against the heads of the two female
victims who, together with
Mr P, were beaten and assaulted throughout their ordeal. Secondly,
they had no regard for the innocent
child who had been burnt and was
seeking help from the paramedics whom they violently abducted from
their ambulance.
14. Thirdly, the comments
and utterances and humiliation which the three victims had to endure
will not easily be erased from their
minds, if at all.
15. Fourthly, the
community has been adversely affected by this crime. Not only the
direct community in Durban Deep, but the entire
country has been
affected. Now paramedics are not safe to go into communities on their
own to treat people who need their help.
They are obliged to call for
a police escort, which affects not only the time within which the
paramedics can get to those injured
but affects the ability of the
police to do their own work.
16. These accused have
shown no remorse. They have denied their involvement and despite the
wealth of evidence against them, they
chose not to ask for
forgiveness or show any remorse or take any responsibility for what
they had done.
17. In regard to the
commission of these offences, many fall under the Sexual Offences and
Related Matters Amendment Act 32 of 2007
(“The 2007 Act”).
In this regard, reference should be made to the judgement of the
Supreme Court of Appeal in the matter
of
Director
of Public Prosecutions, Western Cape vs Prins and Others
5
.
Wallis JA (Mpati P and Navsa, Brand and Malan JJA concurring), said
the following:
No judicial officer
sitting in South-Africa today is unaware of the extent of sexual
violence in this country and the way in which
it deprives so many
women of their right to dignity and bodily integrity…
…
The
rights to dignity and bodily integrity are fundamental to our
humanity and should be respected for that reason alone. It is
a sad
reflection on our world, and societies such as our own, that women
and children have been abused and that such abuse continues
so that
their rights require legal protection by way of international
conventions and domestic laws, as South-Africa has done in
various
provisions of our Constitution and in our Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007 (The
Act). It
was rightly stressed in argument, in the light of evidence tendered
and admitted in this appeal, that the Act is a vitally
important tool
in the ongoing fight against this scourge in our society...
…
[2]
There are many judgments in which our courts have emphasised the need
for the rights of vulnerable people, in particular women
and
children, to be respected and protected. One of the ways in which
that needs to be done is by the effective prosecution of
those who
infringe those rights”
18. Wallis JA also made
mention of specific offences that are referred to in Schedule 2 of
the Criminal Law Amendment Act 105 of
1997 (“the CLA”),
the Minimum Sentences Legislation. This has affected both the High
Courts and the Magistrates Courts
in the sentences which they impose.
19. Until the coming into
force of the 2007 Act, these crimes were prosecuted as common law
crimes. They are now dealt with under
the Act. They include the
crimes of indecent assault, compelled sexual assault and sexual
violation, of which the accused in this
case have been found guilty.
There was no statutory prescribed sentence for these particular
offences. Wallis JA dealt with this
in the
Prins matter
:
“
In
the case of common law crimes the position is different, because it
has never been the practice for parliament, as the only legislative
body having power to deal with this question, to prescribe the
sentences that courts may impose for such crimes. In such cases
courts imposed sentence in the exercise of a judicial discretion
within the limits of their jurisdiction.”
6
20. The CLA, in express
terms, created criminal offences in Sections 2 to Section 26 thereof
and the offence of sexual assault is
one of those that was created by
the Act. It has been referred to as either sexual violation or sexual
assault and in the indictment
is referred to as compelled sexual
assault. This related to counts 8 and 14 in respect of which the
accused have been found guilty.
21. The other counts,
which are also regarded as criminal offences under the CLA are those
in respect of which the accused were
found guilty of aiding and
abetting and inciting each other to commit sexual offences. These
were dealt with under counts 9 and
15.
22. Wallis JA held that
“
The
long title to the Act also makes its purpose clear. It is first a
consolidating measure directed at bringing together in one
piece of
legislation all criminal offences of a sexual nature. Second, it
replaces and in some respects broadens the scope of existing
common
law crimes of a sexual nature”
23. It also creates a
number of new offences
7
,
one of which is the new statutory offence of sexual assault and the
new statutory offence relating to certain compelled acts of
violation. These new statutory offences are criminalised in the Act.
Similarly, the incitement to commit a sexual offence is dealt
with as
one of the new statutory offences. The act expressly renders
criminal, the conduct described in the various sections and
contemplates the imposition of sentences on offenders. Its aim is the
prosecution and sentencing of persons who commit these offences.
24. The charges were
correctly and fully set out in the indictment. It is not necessary
for those charges to include the sentence
that may be imposed. It is
only necessary to specify the penal consequences of conviction where
the prosecution proposes to rely
on specific provisions such as those
in the Minimum Sentencing Legislation and that has been done in this
case.
25. Reference was also
made, in the
Prins
case, to Section 276(1) of the Criminal
Procedure Act which provides that, “
subject to the
provisions of this Act and any other law and of the common law, the
following sentences may be passed upon a person
convicted of an
offence…”
Subsection (2) provides
that the power to sentence a person convicted of an offence is to be
construed
“
(a)
as authorising any court to
impose any sentence other than or any sentence in excess of the
sentence which that court may impose
in respect of any offence; or
(b) as derogating from
any authority specially conferred upon any court by any law to impose
any other punishment or to impose any
forfeiture in addition to any
other punishment.”
26. Section 276 is read
in conjunction with the Minimum Sentencing Legislation and the
permissible penalties for other offences
are found within Section
276. There is nothing obscure or unclear about the language of
Section 276, as Wallis JA held, and that
section empowers the courts
to impose sentences upon persons convicted of crimes and limits the
punishments that courts may impose
in certain other sections.
8
27. In the
Prins
case, it was argued that Section 276(1) was affected by
the fact that there was an omission in the Sexual Offences Act to
specify
penalties for the offences in chapters 2, 3 and 4.
9
The Supreme Court of Appeal held that it cannot affect
the construction of Section 276(1) and, in addition, Wallis JA
referred to
the fact that parliament has since the judgment in the
court
a quo
met and
passed an amending bill that expressly provides that the powers of
the courts in regard to sentence for the offences in
chapters 2, 3
and 4 of the Act are those specified in Section 276 of the Criminal
Procedure Act.
28. For those reasons,
inter alia
, the argument was that Section 276(1) is construed
as being a provision empowering courts to impose sentences in
relation to the
offences contained in the Sexual Offences Act.
29. Accordingly, the
accused are sentenced as follows;
30. In
respect of count 1, robbery with aggravating circumstances, the
accused are sentenced to 15 years’ imprisonment.
31. In
respect of count 2, unlawful possession of a firearm, the accused are
sentenced to 15 years’ imprisonment.
32. In
respect of count 4, rape, the accused are sentenced to life.
imprisonment.
33. In
respect of count 5, rape, the accused are sentenced to life
imprisonment.
34. In
respect of count 6, rape, the accused are sentenced to life
imprisonment.
35. In
respect of count 7, rape, the accused are sentenced to life
imprisonment.
36. In
respect of count 10, rape, the accused are sentenced to life
imprisonment.
37. In
respect of count 11, rape, the accused are sentenced to life
imprisonment.
38. In
respect of count 12, rape, the accused are sentenced to life
imprisonment.
39. In
respect of count 13, rape, the accused are sentenced to life
imprisonment.
40. In
respect of count 8, compelled sexual assault, the accused are
sentenced to 10 years’ imprisonment.
41. In
respect of count 14, compelled sexual assault, the accused are
sentenced to 10 years’ imprisonment.
42. In
respect of count 9, aiding, abetting and inducing others to commit
sexual offences, the accused are sentenced to 10 years’
imprisonment.
43. In
respect of count 15, aiding, abetting and inducing others to commit
sexual offences the accused are sentenced to 10 years’
imprisonment.
44.
The sentences in respect of counts 1 and 2 of 15 years each will run
concurrently. The eight life sentences will run concurrently.
The
sentences on counts 8 and 14 of 10 years each will run concurrently.
The sentences on counts 9 and 15 will run concurrently.
The effect of
this is that the sentences, other than on the rape charges, amount to
35 years which will not run concurrently with
the life imprisonment.
Accordingly the accused are sentenced to 8 life sentences plus 35
years.
Weiner
J
Date of
hearing
:.............................................................
20 July 2012
Date of
judgment
:..........................................................
20 July 2012
Counsel for the State
:
…............................................
Adv
Futshane
Attorneys for the State
:
…...............
National Prosecuting Authority
Counsel for Accused
:
…....................................................
Adv
Lebea
Attorneys for Accused
:
…...............................
Legal Aid South Africa
1
2005
(2) SACR 223
(E).
2
Ibid
at 232A.
3
Ibid.
4
Ibid.
5
2012
(2) SACR 183
(SCA)
6
Prins,
fn
5 at [10].
7
Ibid.
8
Prins
fn
5 at [38]
9
Prins
fn
5 at [24].