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[2014] ZAGPJHC 376
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Lore and Others v S (A180/2014) [2014] ZAGPJHC 376 (12 December 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A180/2014
DATE:
12 DECEMBER 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
OLEBOGENG
MESHACK
LORE
..................................................................................
First
Appellant
TSHEPO
MATTHEWS
................................................................................................
Second
Appellant
SIFISO
ALFRED
DLAMINI
..........................................................................................
Third
Appellant
and
THE
STATE
.............................................................................................................................
Respondent
J
U D G M E N T
MASHILE,
J
:
[1]
The three Appellants herein appeared before the Regional Court for
the Division of South Gauteng held at Randfontein on 15 February
2011
subsequent to each of them having been charged with one count of rape
and two counts of kidnapping of two M[…] sisters,
L[…]
and K[…] (hereinafter “L[…]” and “K[…]”).
[2]
The charges were with aggravating circumstances as envisaged in
Section 51(2) Part 2 of Schedule 3 of the Criminal Law amendment
Act
No. 105 of 1997 (hereinafter “the Act”).
[3]
For that reason, the Appellants were properly warned of the possible
invocation of Section 51(2) in the event that the court
found them
guilty as charged and did not find compelling and substantial
circumstances justifying deviation from the imposable
minimum
sentence.
[4]
All three Appellants were legally represented throughout the
proceedings. They pleaded not guilty to all the charges and
made exculpatory statements in terms of
Section 115
of the
Criminal
Procedure Act No. 51 of 1977
.
[5]
Appellants 1 and 2 admitted having had consensual sexual intercourse
with L[…] while Appellant 3 also alleged that the
sexual
intercourse with K[…] was with her blessing. These
admissions were formally recorded in terms of
Section 220
of the
Criminal Procedure Act No. 51 of 1977
.
[6]
On 19 September 2010 the court a quo found Appellants 1 and 2 guilty
for the rape of L[…] and Appellant 3 for the rape
of K[…].
The court further convicted each Appellant of two counts of
kidnapping of each sister.
[7]
On 29 September 2010, the court sentenced each Appellant to life
imprisonment on each rape count. It further sentenced
each
Appellant to 4 years imprisonment on each count of kidnapping.
The court decreed the sentence on kidnapping to run concurrently
with
the life sentence such that each Appellant is to serve one life
sentence.
[8]
On 13 August 2012, the Appellants brought an application for leave to
appeal against both conviction and sentence. The
court a quo
considered the application and dismissed it. The Appellants
petitioned and with the leave of this court leave
to appeal against
sentence was granted. This appeal is therefore against sentence
only.
[9]
I do not intend to set out the facts that led to the conviction of
the Appellants as their petition in that regard was not successful.
However, invariably and as the judgement unfolds, the court will make
reference to portions of the facts that led the court
a quo
to
impose the sentences that it did.
[10]
Right at the onset, I need to point out that the court
a quo
warned the Appellants that it would impose life imprisonment
sentences in the event that it found each of them guilty of the rape
of L[…] and K[…]
who were sixteen
and seventeen years old respectively at the time of their rape.
It appears that the motivation of the court
a
quo
for suggesting life sentences was
the ages of the victims.
[11]
Part 1
of Schedule 2 of the Act prescribes the imposition of a life
sentence where the victim is ‘under the age of sixteen’.
The victims here were aged sixteen and seventeen, which means that
the court
a quo’s
warning about the possible imposition
of a life sentence was misguided.
[12]
The warning should have been that the court would be obliged to
impose ten years in the case of a first offender provided that
there
were no compelling and substantial circumstances justifying a
departure from the prescribed minimum sentence. Both
legal
representatives and the court for some odd reason accepted that life
sentence would be the appropriate sentence in the event
of a guilty
finding by the court. That was simply wrong as it is not
supported by the provisions of the relevant legislation.
[13]
It is generally accepted that whereas trial courts continue to enjoy
a substantial amount of discretion on sentence, it is
incontestable
that the introduction of the minimum legislation curtailed it
especially where the court is unable to find compelling
and
substantial circumstances excusing the imposition of the minimum
sentence.
[14]
That said, the approach that in an appeal against sentence, a court
of appeal is guided by the principle that punishment is
pre-eminently
a matter for discretion of the court
a quo
and should only be
interfered with if the court failed to exercise its discretion on
sentence judiciously and properly continues
to hold good. See
S
v Rabie
1975 (4) SA 855
(A). A sentence imposed by a lower
court should only be altered if:
14.1
An irregularity took place during the trial or sentencing stage;
14.2
The court
a quo
misdirected itself in respect of the
imposition of sentence; and
14.3
The sentence imposed by the court
a
quo
could be described as disturbingly or shockingly inappropriate. See
S
v Salzwedel and others
1999
(2) SACR 586
(SCA) at 591 [10] and
S
v Malgas
2001 (1) SACR 469
(SCA) at 857 D-E.
[15]
The enquiry for an appeal court post the minimum legislation is to
establish whether or not the trial court considered facts
which could
constitute compelling and substantial circumstances legitimizing a
deviation from the norm. See
S v PB
2013 (2) SACR 533
(SCA) at 539. Against that backdrop, it is important to
consider both the facts that were furnished by both sides as
compelling
and substantial circumstances and those that aggravated
the sentence and weigh them up to determine whether or not the
sentence
should be reduced or left undisturbed.
[16]
The court
a quo
, as it was obliged to do, took into account
the personal circumstances of the Appellants, on the one hand, and
the nature, prevalence
of the crime and the interest of the society
on the other. The following were the personal circumstances
which Counsel for
the Appellants presented as compelling and
substantial.
[17]
Counsel for the Appellants presented the following in respect of
Appellant 1:
17.1
He was 29 years old and unmarried;
17.2
Although he is unmarried, he is the father of two children;
17.3
The mother of the children is unemployed;
17.4
The children are maintained by their grandmother;
17.5
When he was apprehended, he had as recently as a week ago obtained
new employment;
17.6
He has a Standard 5 level education and his health is excellent;
17.7
He has been in custody for almost two years; and
17.8
He is a first offender.
[18]
The personal circumstances of Appellant two were tabled as follows;
18.1
He is 28 years old;
18.2
He is unmarried with no children;
18.3
He is unemployed but does work intermittently depending on the
availability of piece jobs;
18.4
He has never attended any school whatsoever;
18.5
He has a previous conviction for which he was sentence to 12 months
direct imprisonment 3 of which were conditionally suspended;
and
18.6
Like Appellant 1, he too has been in custody awaiting trial for
almost 2 years.
[19]
Appellant 3’s personal circumstances:
19.1
He is a 39 year old unmarried man;
19.2
He has 3 children aged, 3, 6 and 9;
19.3
Their mother is unemployed;
19.4
Prior to his arrest, he was employed at a building construction and
earned an income of R3 400.00 per fortnight;
19.5
He was once shot on his hand and his health has deteriorated since
his arrest;
19.6
As is his co-perpetrators, he has been in custody for approximately 2
years; and
19.7
He has a previous conviction of house breaking with intent to steal
and theft for which he was sentenced to 2 years direct
imprisonment
in 1996.
[20]
Having noted those personal circumstances the court
a
quo
turned to the other factors and remarked that kidnapping and rape are
very serious offences, ab
ysmal
and totally despicable. It further noted that rape terrorizes
every woman particularly, the poor and defenseless.
[21]
Rape occurs too frequently and it is currently aggravated by the
grave risk of transmission of HIV AIDS and referred to
State
v Mthenje
2005 (2) SACR AD 386 WLD where this court stated that a woman’s
body is sacred and anyone who violates it does it at his
peril and
our legislature and the community at large correctly expect our
Courts to punish rapists very severely.
[22]
In aggravation of their sentence, the court also observed that the
Appellants were considerably old, the youngest of them being
28
years, and still brazenly kidnapped the two helpless girls
threatening them with a screwdriver. L[…], the 16 year
old Complainant, was raped by Appellant 1 and 2 albeit that the one
appellant did not know that the other had raped her as well.
K[…] was raped by Appellant 3.
[23]
All three Appellants did not seem to appreciate the enormity of the
offences with which they were charged. If one were
to believe
their testimony that the sexual intercourse was consensual, why did
they not hand back the mobile phones of the two
Complainants.
The Complainants continue to live with the stigma of rape while they
are carrying on with their lives as though
nothing has happened.
It is apparent that they are not rueful at all and must accordingly
be visited with harsh sentences.
[24]
The court
a
quo
was alive to the applicability of the
Criminal Law Amendment Act No.
105 of 1997
. Having made reference to the seriousness,
prevalence of the crime and the interest of the society and weighed
them against
the personal circumstances of the Appellants, it
concluded that it could not find any of their personal circumstances
to be compelling
and substantial.
[25]
In that context, it imposed 1 life sentence direct imprisonment on
each Appellant and 4 years on each count of kidnapping.
These
sentences were ordered to run concurrently. I have already
remarked that the court, the prosecutor and the legal representative
of the Appellants seem to have been oblivious of the provisions of
Part 2
of Schedule 2 of the Act.
[26]
The inappropriateness of the sentence notwithstanding, the court
a
quo
was correct in characterising the offences as outrageous and
despicable. For that reason, the Appellants deserved the
maximum
sentence that any court can impose. That maximum
sentence in this situation is 10 years. Counsel for the
Appellants
made issue about the court
a
quo
not considering the 2 years that the Appellants spent while awaiting
trial.
[27]
In making his submission as aforesaid, he relied exclusively on
S
v Brophy and Another
2007
(1) SACR 57
(W).
The
method of reducing sentences as per
Brophy
supra
has been criticized, That said, time spent while awaiting trial is
one of the many factors that a court seized with a sentencing
matter
should consider. All in all, one cannot assume that it is of
general application. Each case must be assessed
on its own
peculiar set of circumstances. See
State
v Radebe
2013 (2) SACR 165
(SCA)
[28]
The violation of the Complainants’ dignity and security weighs
heavily in favour of the imposition of the minimum sentence.
This is a case where the personal circumstances of the appellants
should recede and the seriousness, nature of the offence and
the
interest of the society should come to the fore.
[29]
This court has applied its mind to the judgment of the court
a
quo
and save to correct that the minimum sentence on the rape of a victim
aged 16 years old and above by a first offender is 10 years,
I
confirm the judgment in other respects.
[30]
In the result, the sentences of life imprisonment are shockingly
inappropriate. Accordingly, I uphold the appeal
and make
the following order:
1. The judgment and order of the
court
a
quo
is set aside and is replaced with the following:
“
Appellant
1:
10
years direct imprisonment on the one count of rape of L[…];
and
4
years on each count of the kidnapping of L[…] and K[…].
Appellant
2:
10
years direct imprisonment on the one count of rape of L[…];
and
4
years on each count of the kidnapping of L[…] and K[…].
Appellant
3:
10
years direct imprisonment on the one count of rape of K[…];
and
4
years on each count of the kidnapping of L[…] and K[…].
The
sentence on each count of kidnapping on each Appellant are to run
concurrently with the 10 years imprisonment imposed on each
of them.
The
sentences are antedated to 29 September 2012.”
__________________________________________
B
A MASHILE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree:
_________________________________________________
S
STEIN
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
DATE
OF HEARING: 2 DECEMBER 2014
DATE
OF JUDGMENT: 12 DECEMBER 2014
COUNSEL
FOR THE APPELLANT: J PENTON
INSTRUCTED
BY: JOHANNESBURG JUSTICE CENTRE
COUNSEL
FOR THE RESPONDENT: V H MONGWANE
INSTRUCTED
BY: Director of Public Prosecutions