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
>>
2018
>>
[2018] ZAGPJHC 457
|
|
Simelane v S (A268/2017) [2018] ZAGPJHC 457 (22 February 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A268/2017
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
In
the matter between:
SIMELANE,
PHELANE
ERNEST
Appellant
and
THE
STATE
Respondent
JUDGMENT
Headnote
– appeal against sentence – conviction against sentence
of … for robbery rape – trial court
convicted the
accused and sentenced them to life imprisonment for rape and 15 years
for robbery – they sentences were not
ordered to run
concurrently – appeal dismissed and sentences confirmed with
rider that they run concurrently.
SUTHERLAND
J:
Introduction
[1]
This appeal is against sentence only. A petition for leave to appeal
on the conviction was refused and allowed only on the sentence.
The
appellant was convicted in the Regional court on four counts of rape
and one count of aggravated robbery. On the rape counts,
taken
together, he was sentenced to life imprisonment. On the robbery
count, he was sentenced to 15 years imprisonment.
[2]
The appellant, with three other men, were charged that on 14 August
2009 in the vicinity of Birchacres they each raped a woman,
M. S.,
and robbed her of her wallet, a plastic bag containing goods, and her
clothing. The provisions of
section 51
of the
Criminal Law Amendment
Act 105 of 1997
about minimum sentences were applicable as was
section 3
of Act 32 of 2007 about the crime of rape.
[3]
The appellant was legally represented throughout the trial.
The
relevant facts about the crime
[4]
Ms S. was, at the time, 29 years old. She was waiting for a taxi. She
was dressed in jeans, a vest and t-shirt and shoes. She
had a cell, a
wallet with some money in it, and a plastic bag containing cups,
mugs, her identity document and clothes.
[5]
Five men in a red corolla offered her a lift. They squeezed into the
front passenger seat along with a man who would later be
designated
Accused no 1. The appellant, designated as Accused No 3, by
inference was in the back of the car.
[6]
Instead of dropping her at the indicated spot they drove on,
ultimately up a dead-end street to access open veld. Whilst in
the
car, she was threatened by one of them behind her with a firearm.
Which of the Accused did so is unknown. Her cell was demanded.
She
gave it. When she denied she had money she was hit on the head with
the firearm. She struggled against her assailants in vain.
[7]
In the veld she was ordered to undress. When she refused, her
clothing was forcibly removed.
[8]
All five of them raped her. One of them, after intercourse used her
t-shirt to wipe himself and then flung the garment at her.
[9]
The fifth assailant who was not on trial because he had pleaded
guilty earlier and gave evidence as an accomplice, said that
he was
about to rape her again when they became aware that someone was
coming to investigate. Dogs had been barking at a house
about 40 m
away and they saw a torch shining into the darkness.
[10]
They thereupon abandoned her, naked, in the veld and hurried away in
the car. It was this fortuitous interruption that spared
her being
raped yet again.
[11]
Ms S. took the t-shirt, the only item of her belongings that they
left behind and drew it up over her bottom to serve as a
modicum of
cover. She made her way towards the houses and was taken in by one,
Mrs Engelbrecht, the householder whose dogs had
been barking, and
given a blanket. Mrs Engelbrecht’s evidence was that she was
distraught and traumatised.
[12]
The Accused were apprehended shortly thereafter because the
Engelbrechts’ had seen the Corolla depart and had taken the
registration number. The police traced the accused persons from that
information.
[13]
The appellant’s evidence was a denial of presence. The 5
th
assailant’s evidence alluded to the appellant taking the cell
from Ms S.. Other than that piece of information and the fact
of the
rape, no specific conduct by the appellant can be discerned from the
evidence accepted by the Regional Court.
The
Sentence
[14]
All the accused were in their late twenties when the crimes were
committed. The appellant was 28. There is no indication that
one
dominant personality influenced the others.
[15]
The appellant’s denial of involvement persisted and as such
there is no room for any remorse to have been shown. Ms S.
had been
subjected to further aggravating indignities in addition to the
multiple rapes. The tossing of the soiled t-shirt at her
was an act
of contempt of her humanity. Moreover, leaving her naked added to her
trauma. Her pitiful efforts at preserving her
modesty by wearing the
soiled t-shirt to cover her private parts was yet another
excruciating indignity.
[16]
The appellant has no previous convictions.
[17]
At trial the appellant gave no direct evidence bearing on an
appropriate sentence. However, a pre-sentencing report had been
prepared in which his personal circumstances are traversed.
[18]
Apparently, he is the last of nine siblings who grew up in a stable
family environment. He matriculated in 2002. He got a Driver’s
licence in 2005. He was working as a plumber’s assistant,
earning R750 pm at the time of his arrest. The family think the
conduct attributed to him is out of character and his former employer
heaps praises on his work ethic.
[19]
At the time of the conviction, some four years after the incident,
during which he was on bail, he was cohabiting with a woman
who is
the mother of his three-year child. He also has two other children,
aged 7 and 4 years of age. Each of them has a different
mother. To
what extent he can materially have offered financial support to all
or any of these mothers and children must be answered
by a logical
inference which is negative.
[20]
A victim impact report was adduced. Ms S. was still struggling to
come to terms with her ordeal in 2013. she remains chronically
apprehensive. Mercifully, her husband and her family are supportive.
she has two young children to support and protect. She continues
to
receive counselling for her experience.
[21]
The provisions of section 51, read with part I of Schedule 2, require
a person who was convicted of rape, where the victim
was raped more
than once, whether by that person or by any co-perpetrator or
accomplice, to be sentenced to imprisonment for life.
Section 51 (2)
(a) read with part II of schedule 2 requires a first offender who
commits a robbery with aggravating circumstances
to be sentenced to
fifteen years imprisonment. The use of a firearm, as found by
the court
a
quo
,
satisfies that criterion.
[22]
What circumstances in the case of the appellant could constitute a
substantial or compelling reason to impose lesser sentences
other
than those prescribed? The information about the crime and about the
personal circumstances summarised above offer, on balance,
no
foundation for such a decision. Indeed, if anything, the appellant
appears to have a sound grasp of responsibility when that
is to his
advantage in the work environment. By contrast, in regard to the
women in his life, he appears to evidence quite the
contrary
disposition. His participation, with four other mature men, in the
abduction, robbery and rape of a defenceless woman
speaks to an
attitude towards women that is wholly at odds with any civilised
instinct. He and his co-perpetrators dealt with the
victim as a mere
commodity to be harvested for their gratification and discarded when
done with. Those factors such the appellant
being a first offender,
being in custody for 16 months and being able to hold down a job
which, in general, inure to the advantage
of an accused person are
outweighed by the conspectus that is presented on a holistic
evaluation. The trial court was criticised
for being inarticulate on
this aspect, but regardless of the incoherence of the remarks made,
it was correct to conclude that it
was appropriate to impose the
prescribed sentences in the case.
[23]
In my view, the sentences were wholly appropriate. However, it is not
clear from the text of the order that the two sentences
are to run
concurrently. If that was not the intention of the court
a
quo,
that effect would have been inappropriate. the two offences were
committed as part and parcel of the same ongoing incident. An
effective sentence of life imprisonment, subject to the statutory
parole regime, is appropriate.
The
order
1.
The appeal
is dismissed.
2.
The
sentences imposed are confirmed, which shall run concurrently.
____________________
Sutherland
J
Judge
of the High Court,
Gauteng
Local Division, Johannesburg
I
agree.
____________________
Wentzel
AJ
Acting
Judge of the High Court,
Gauteng
Local Division, Johannesburg
Hearing:
20 February 2018
Delivered:
22 February 2018
For
the appellant:
Adv
A H Lerm,
instructed
by Legal Aid South Africa.
For
The State:
Adv
L R Surendra,
of
the National Prosecuting Authority