About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2014
>>
[2014] ZAGPJHC 375
|
|
Makamo v S (A403/13) [2014] ZAGPJHC 375 (14 May 2014)
Links to summary
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF THE REPUBLIC OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO. A403/13
DATE:
14 MAY 2014
NOT
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between:
JUSTICE
MAKAMO
........................................................................................................
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
MONAMA
J
[1]
On 8 August 2012 the appellant was convicted by the Regional
Magistrate’s Court, Johannesburg on three counts of rape
and
one count of robbery. He was sentenced to an effective life
imprisonment pursuant to the provisions of s 51(2) of Act 105 of
1997.
[2]
He was represented at trial. On 9 May 2013 he was granted leave to
appeal the sentence only.
[3]
The State led evidence of Dr Lufuma Lukanda Kuya, the medical
expert, the complainant, L[…] P[…] M[…],
K[…] M[...], a teacher who knew and taught the complainant at
school and M[…] R[…] R[…]. The accused
testified
in his defence during the trial which included trial within trial.
[4]
What follows is a brief exposition of the relevant evidence. The
complainant testified that in the early evening on 6 May 2010
she met
the appellant after she alighted from a taxi in Wanderers and Bree
Streets, Johannesburg. She asked the appellant for some
directions to
Queen Elizabeth Bridge in Braamfontein. The appellant offered to walk
her to her destination. On the way the appellant
and other unknown
persons raped her repeatedly in the bushes and in the parked train
coaches in the Braamfontein trains’
precinct. The appellant
also robbed her of her belongings. She sustained injuries as
identified on form J88
[1]
. Her
injuries were corroborated by Dr Kuya who conducted the
gynaecological assessment on her. The complainant testified about
the
appellant’s arrest and how her property was recovered. Her
evidence about the arrest of the appellant and recovery of
her goods
was corroborated by Mr M[…] who knows the complainant very
well. Mr M[…] testified that he was in
the area and
heard the complainant’s screams. He witnessed the
apprehension of the appellant. The trial court found
them reliable
and credible.
[5]
The imposition of an appropriate punishment is pre-eminently a matter
within the discretion of the trial court
[2]
.
The appeal court’s power to interfere with a sentence is
circumscribed to instances where the sentence is vitiated by any
irregularity, misdirection or where there is a striking disparity
between the sentence and that which the appeal court would have
imposed had it been the trial court
[3]
.
[6]
The trial court rightly rejected the appellant’s version as
improbable. He testified that he met the complainant
at a
tavern in Bree Street, Johannesburg. During their encounter the
complainant agreed to sell him sex. This is highly unlikely
and is
not supported by the evidence. In my view, the conviction was
proper and stands to be confirmed.
[7]
In determining an appropriate sentence, the court has to take into
account the nature of the crime, the personal circumstances
of the
appellant and the interest of society
[4]
.
With respect to the nature of the crime, it is notable that the
appellant was convicted of the serious offence of rape.
In S v
Chapman rape was described as follows:
“…
a
very serious offence, constituting as it does a humiliating,
degrading, brutal invasion of the privacy, the dignity of the
victim.”
[5]
In
casu
, the appellant committed three
counts of rape. The victim was injured in the process. She was seven
weeks pregnant at the time.
It can be reasonably inferred that
she was traumatised. On top of that she was also robbed of her
belongings. In these circumstances
the sentencing regime as enshrined
in the Criminal Law Amendment Act applies.
[8]
In addition to prescribing a minimum sentence of life for rape, the
Act also prescribes a minimum sentence of 15 years imprisonment
for
robbery. The sentences are prescribed and not mandatory. The court
may impose a lesser sentence if it finds that there are
substantial
and compelling circumstances justifying a lesser sentence.
[9]
In casu
,
the trial court said:
“
-
when I look at the nature of the offence and the manner in which the
crime was committed, I found no real mitigating circumstances…”
[6]
Furthermore,
the said court also stated that:
“
In
my view the fact that the accused has spent 2 and half years in
custody while awaiting sentence is an important factor, but cannot
be
regarded as so important that it would give a reason to deviate from
the minimum sentence.”
[7]
I
understand the above statement to convey that the trial court found
no substantial and compelling circumstances. As such it was
within
its rights to impose the prescribed sentence of life imprisonment for
rape and 15 years imprisonment for robbery.
[10]
In doing so, the trial court did not overlook the personal
circumstances of the appellant. In considering the appellant’s
personal circumstances, the court noted that he was in his early
twenties when he committed the offences. He originated from
Mozambique
and lost his father. However, these were outweighed by the
brutal nature of the offence committed on a fairly young lady whose
only fault was to be in the City of Johannesburg. The complainant was
repeatedly raped in the stationary train.
[11]
With respect to the interest of the society, it is my view that
society is under siege. The offences of rape and robbery are
rife in
the community. The perpetrators were brazen. They took turns in
raping an innocent young lady. They attacked her
in a public
space. The current penalty regime appears not to be succeeding in
stemming the tide of rapes and robberies. Since
1997 and with the
promulgation of the Criminal Law Amendment Act, the expectation was
the decline of these offences. On the contrary
there has been an
increase in the number of these offences that are committed.
[12]
The public expects and demands that the appellant is properly
punished. The mitigating factors are grossly outweighed by the
aggravating circumstances. The complainant was harassed by the
appellant and his family. Poonan JA recently lamented the reticence
to impose the minimum sentence. He stated that:
“
-Here
parliament has spoken. It has ordained minimum sentences for certain
specified offences. Courts are obliged to impose those
sentences
unless there are truly convincing reasons for departing from them.
Courts are not free to subvert the will of the legislature
by resort
to vague, ill-defined concepts such as “relative youthfulness
or other equally vague and ill-founded hypotheses
that appear to fit
the particular sentencing officer’s personal notion of
fairness. Predictable outcomes not outcomes based
on the whim of an
individual judicial officer, is foundational to the rule of law which
lies at the heat of our constitutional
order.”
[8]
The
youth of the appellant cannot be used to circumvent the imposition of
an appropriate sentence. The sentence is harsh but
it befits
the crimes.
[13]
In the circumstance I found no misdirection. Accordingly, I make the
following order:
13.1
The appeal is dismissed and the conviction and sentence are
confirmed.
_____________
RE
MONAMA
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree
_______________
TL
MOSIKATSANA
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearances
Counsel
for the Appellant: Ms M Botha
Instructed
by: The Justice Centre, Johannesburg
Counsel
for the Respondent: Adv. AM Williams
Instructed
by: The Director of Public Prosecutions, Johannesburg
Date
of hearing: 11 March 2014
Date
of judgment: 14 May 2014
[1]
See
page 5 of the Record.
[2]
S
v Obisi 2005(2) SACR 350 WLD.
[3]
S
v Sadler 2000(1) SACR 331 SCA and Director of Public Prosecution KZN
v P
2006 (1) SACR 243
SCA.
[4]
S
v Zinn
1969 (2) SA 537
(A) at 540G.
[5]
[1997] ZASCA 45
;
1997
(3) SA 341
SCA at 344.
[6]
Line
7 to
10 Page 179
of the Record
[7]
Line
15 to 18of Page 182 of the Record
[8]
S
v Matyityi
2011 (1) SACR 40
SCA at 53 E –F.