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[2019] ZAGPJHC 11
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Ngwenya v S (A169/2018) [2019] ZAGPJHC 11 (20 February 2019)
SAFLII
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Certain
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HIGH
COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
Case
No: A169/2018
In
the matter between:
BANELE NGWENYA
Appellant
and
THE
STATE
Respondent
Case summary
:
Criminal Law – Appeal - against convictions on charges of
assault with the intent to do grievous bodily harm, kidnapping
and
rape as contemplated in s 3 of the Criminal law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007 (the Act) –
and
against sentence of 20 years’ imprisonment, the court
a
quo
having
taken the three counts as one for the purposes of sentence.
Convictions
confirmed. Sentence set-aside and replaced with a sentence of
six years’ imprisonment on count 1 (assault
with the intent to
do grievous bodily harm), six years’ imprisonment on count 2
(kidnapping) and imprisonment for life on
count 3 (rape).
Section 51(1) read
with s 51(3)(a) and Part 1 of Schedule 2 of the
Criminal Law
Amendment Act 105 of 1997
– Imprisonment for life is the
mandatory minimum sentence where the conviction of rape is one
contemplated in s 3 of the
Act in circumstances where the victim was
raped more than once whether by an accused or by any co-perpetrator
and accomplice –
the offence of rape still consists of sexual
penetration of a non-consensual person, but ‘sexual
penetration’ is defined
as ‘any act which causes
penetration’ – appellant’s co-accused also raped
the victim, although he did not
commit the act of penetration, and
was convicted of rape as an accomplice.
Substantial and
compelling circumstances, which justify the imposition of a lesser
sentence than the mandatory minimum one of imprisonment
for life, not
showed to exist.
JUDGMENT
MEYER
J (MDALANA-MAYISELA AJ concurring)
[1]
Arising from an incident that occurred in the early hours of the
morning on 4 April 2009 in Mofolo, Soweto, the appellant, Mr
Banele
Ngwenya, was convicted by the Regional Court, Protea (Regional
Magistrate Mr D Mhango) on 1 November 2011, on charges of
assaulting
Ms S N with the intent to do her grievous bodily harm (count 1), of
kidnapping her (count 2) and of raping her as contemplated
in s 3 of
the Criminal Law (Sexual Offences and Related Matters) Amendment Act
32 of 2007 (the SO Act) (count 3). The learned
regional
magistrate took all three counts as one for purposes of sentence and
sentenced the appellant to imprisonment for a period
of twenty
years. He was one of four accused persons in the court
a
quo
. It was found that the appellant’s co-accused, Mr
Ayanda Radebe (accused no. 4), participated in the offences committed
against Ms N and he was convicted of kidnapping, assault with the
intent to do grievous bodily harm and rape, as an accomplice,
and
sentenced to ten years’ imprisonment. The appeal
with leave of the regional magistrate is against the appellant’s
convictions and sentence.
[2]
There are well-established principles governing the hearing of
appeals against findings of fact. As was said by Marais
JA in
S
v Hadebe
1997 (2) SACR 641
(SCA) at 645, ‘in the absence of
demonstrable and material misdirection by the trial Court, its
findings of fact are presumed
to be correct and will only be
disregarded if the recorded evidence shows them to be clearly
wrong’. (Also see
R v Dhlumayo and Another
1948 (2) SA 677
(A) at 705-706;
S v Francis
1991 (1) SACR 198
(A) at 204D-E.)
[3]
Here, one looks in vain for any such misdirection nor does the
recorded evidence show the factual findings to be clearly wrong.
The
learned regional magistrate demonstrably subjected the evidence to
careful scrutiny and, although not spelled out in
the judgment, he
approached the evidence of Ms N, who implicated the appellant in the
commission of the offences in question, with
the necessary caution
that should be applied to evidence of identification (
S v Mthetwa
1972 (3) SA 766
(A) 768A-C) and to that of a single witness (
S v
Sauls and Others
1981 (3) SA 172
(A) at 179G–180G).
[4]
Ms N and her friend, Ms W, who also testified, had left a party in
Mofolo, Soweto in the early hours of the morning on 4 April
2009.
They went looking for Ms N’s boyfriend, Mr T. They found
him drinking at a tavern, called ‘Number
5’, and he then
accompanied them home, because he wanted to fetch clothes that he had
left at Ms N’s home.
While walking, they came
across a group of young men, amongst whom was the appellant.
He, according to Ms N, grabbed her
and, accompanied by some of the
other men in the group, physically forced her into the nearby park.
Ms W was also grabbed
by some of the other young men and dragged to
the nearby school. Mr T left them and proceeded to Ms N’s
home where
he fetched his clothes.
[5]
The appellant, according to Ms N, assaulted her by grabbing her,
hitting her with open hands many times on her body and by hitting
her
on the head with a beer bottle. He tripped her at a tree in the
park, which caused her to fall, and he told the others
to look for
her cell phone because he would not rape her before it is found.
The appellant’s co-accused, Mr Radebe,
was amongst the men
looking for the phone. In the meantime, the appellant continued
to assault Ms N and he lowered his trousers
and forced her to suck
his penis, without her consent. She was lying on her back while
he was sitting on her chest.
Someone arrived, saying ‘what
are you boys doing’! That is when Ms N grabbed the
opportunity and bit the tip
of the appellant’s penis. He
got up, ‘screaming and crying’; his penis was bleeding
and the blood came
through on his trousers. He ran away.
[6]
Returning from Ms N’s home, Mr T testified that he had come
across some of the men who were part of the group that Ms
N, Ms W and
he encountered earlier on. He heard Ms N screaming and saw the
appellant approaching the group, unable to walk
properly and ‘saying
he had been injured by this female person’. As the
appellant was about to leave, two male
persons got hold of him and a
Metro Police car stopped.
[7]
Ms Phumzile Mkwanaze, a Metro Police Officer employed by the
Johannesburg Metro Police Department, testified that she had been
on
patrol duty in Moroka that night. At about 2.30 am she and a
colleague were on their way to attend to an accident when
they came
across a group of people next to the road. Amongst them was a
lady (Ms N) bruised in the face and with a little
bit of blood on the
mouth, who was crying and screaming. Ms N told them that she
had been held up by a group of men, that
the appellant had ‘put
his penis inside her mouth and that she bit his penis’.
Ms Mkwanaze approached the appellant,
who said to her that they ‘must
not speak to him, he is feeling pain . . . in his penis.’
Ms Mkwanaze noticed
a lot of blood coming through on his trousers at
his penis, and he kept on complaining of pain. They arrested
him and had
to take him home to change his clothing because of the
bleeding before they took him to the Moroka police station.
Once they
had arrived at the Moroka police station other police
officers took him to a hospital because he still kept on complaining
of pain
and could not be placed in the cells in that condition.
[8]
The investigating officer, Insp Arena Karibe, also testified that the
Metro Police had brought the appellant and Ms N to the
Moroka police
station. The appellant kept on complaining about his penis
being in pain. He also showed the investigating
officer his
penis, which was bandaged, and he requested to be taken to a
hospital. Ms N later told Insp Karibe that the appellant
had
raped her by putting his penis into her mouth and that she had bitten
it. She was given a J88 form and requested to go
for a medical
examination on the Monday. Ms N went to a medical clinic on
Monday, 6 April 2009, where she was examined by
a medical doctor, who
recorded his findings on the J88 form,
inter alia
that she was
five months pregnant at the time and that she had sustained injuries
below the left eye, swelling of the left cheek,
soft tissue injuries
of the neck and left shoulder and swelling on the back of the head,
as a result of ‘blunt force’.
[9]
The appellant testified that he and a friend, Siphiso Mbatha (who was
accused no 2), had been to a tavern, Skomplus Tavern,
on the night in
question. They left the tavern at around 0.30 am and the two of
them finally parted ways at Kwezi at around
2:00 am to go home.
(The evidence of Mr Mbatha corroborates the account of the appellant
to this point.) Walking
alone, the appellant came across
a red Volkswagen Golf car with three occupants when he got to a
school. They alighted from
the car, pointed firearms at him and
assaulted him, which caused an injury just above his left eye.
Asking them why they
were assaulting him, they said that he knew what
he had done and one of the men suggested that they stop with the
assault and rather
take him to ‘the place’.
Arriving there, the appellant saw a woman who was ‘crying and
making a noise’,
saying that he had attempted to or had raped
her. Traffic officers arrived and they were told that he had
raped the woman.
He denied that it was the Metro Police
Officer, Ms Phumzile Mkwanaze, who arrived at the scene or that she
had seen blood from
his penis coming through onto his trousers.
According to him, he had seen her for the first time in court.
He also
testified that the Metro Police Officer had found him
bleeding from the wound which he had sustained above his left eye. He
denied
that his penis had been bitten by Ms N. He testified
that he could not remember showing his penis to Insp Karibe and he
denied
that he had been taken for medical treatment of his penis.
[10]
The evidence of Ms N is not only satisfactory in all material
respects, but there is also corroboration. The evidence
of Ms W
corroborates her evidence about the three of them walking home,
encountering a group of young men, Ms N being grabbed and
dragged
away by some of them, herself being grabbed and dragged away by
others and the two of them telling each other of one another’s
ordeal when they were at the Moroka police station. Mr T’s
evidence also corroborates that of Ms N about the three
of them
walking home, encountering a group of young men at the park, the
appellant being part of the group, Ms N being grabbed
and dragged
away, and Ms W also being grabbed and dragged away.
Furthermore, his evidence that he had seen the appellant
again after
he had returned from Ms N’s home, unable to walk properly and
complaining that he had been injured by ‘a
female person’,
corroborates Ms N’s evidence that she had bitten the
appellant’s penis. This evidence of
Ms N is also
corroborated by the observations of the Metro Police Officer, Ms
Phumzile Mkwanaze, and of the investigating officer,
Insp Arena
Karibe: She noticed a lot of blood coming through on his
trousers at his penis and he saw the appellant’s
penis wrapped
in bandage. The medical evidence is also consistent with Ms N’s
evidence of the nature of the assault
perpetrated on her.
[11]
The learned regional magistrate can also not be faulted in
considering Ms N’s identification of the appellant as the
man
who deprived her of her freedom of movement, assaulted and raped her,
to be reliable. Although it was dark and the apollo
light in
that area did not work, it is clear that there was adequate
visibility and opportunity for Ms N to identify her assailant,
both
as to time and situation. Ms N had no prior knowledge of the
appellant, but they were in close proximity while he was
assaulting
her and when he inserted his penis into her mouth. She
testified that she had been looking at him. She also
identified
him by the blood coming through on his trousers at his penis.
Her identification of the appellant is also corroborated
by the
evidence Mr T, who knew the appellant prior to the incident and who
identified him as having been part of the group of men
he, Ms N and
Ms W had encountered at the park and who he later on had seen again,
unable to walk properly and complaining that
he had been injured by
‘a female person’.
[12]
The state case against the appellant is credible, reliable and
overwhelming, and the regional magistrate correctly held that
the
appellant’s exculpatory version, on the totality of the
evidence, was not reasonably possibly true. In fact, it
is
palpably false. In grabbing and dragging Ms N into the park
against her will, the appellant unlawfully and intentionally
deprived
her of her freedom of movement. By grabbing her, hitting her
with open hands many times on her body, by hitting
her with a beer
bottle on the head and by tripping her, the appellant unlawfully and
intentionally applied direct force to the
person of Ms N.
Furthermore, the ineluctable inference to be drawn is that the
appellant had the required intent to do Ms
N grievous bodily harm
whether or not grievous bodily harm was in fact inflicted upon her,
because it is simply the intention to
do such harm that is required
for a conviction of the crime of assault with intent to do grievous
bodily harm. Hitting a
person with a beer bottle on the head
reveals such an intent. (See
LAWSA
Vol 6 First Reissue
paras 288, 254 and 264.) The appellant unlawfully and
intentionally committed an act of sexual penetration
with Ms N,
without her consent as contemplated in s 3 of the SO Act read with
the definition of ‘sexual penetration’
in s 1, when he
forced his penis into her mouth. He was, therefore, correctly
convicted of kidnapping, assault with the intent
to do grievous
bodily harm and of rape.
[13]
There are also well-established principles governing the hearing of
appeals against sentence. In short, punishment is
pre-eminently
a matter for the discretion of the trial court and a court of appeal
should be careful not to erode that discretion.
Interference is
only warranted if it is convincingly shown that the discretion has
not been judicially and properly exercised:
The test is whether
the sentence is vitiated by irregularity, material misdirection or
disturbingly inappropriate.
(
S v Rabie
1975 4 SA 855
(A)
at 857D-E;
S v Malgas
2001 (2) SA 1222
(A) paras 12-13.)
[14]
Although not stated in the judgment, the learned regional magistrate,
for the purpose of sentence, seems to have considered
that the
kidnapping, assault and rape were closely connected or arose from the
same incident; he took all three counts as one for
the purpose of
sentence and sentenced the appellant to imprisonment for a period of
20 years. However, unless the regional
magistrate was satisfied
that substantial and compelling circumstances existed, which
justified the imposition of a lesser sentence,
he was statutorily
obliged to impose the prescribed minimum sentence of imprisonment for
life for the appellant’s conviction
of rape, which is one
contemplated in s 3 of the SO Act and committed in circumstances
where the victim was raped more than once
whether by an accused or by
any co-perpetrator or accomplice. (Section 51(1) read with s
51(3)(a) and Part 1 of Schedule
2 of the Criminal Law Amendment Act
105 of 1997 (the CLA Act.)
[15]
Ms N was raped more than once; she was raped by the appellant, who
committed the act of penetration, and, amongst others, by
Mr Radebe,
who, although he did not commit the act of penetration, was also
convicted of raping Ms N as an accomplice. Section
3 of the SO
Act reads as follows:
‘
Any person (‘A’)
who unlawfully and intentionally commits an act of sexual penetration
with a complainant (‘B’),
without the consent of B, is
guilty of the offence of rape.’
And
‘sexual penetration’ is defined as including-
‘
. . . any act which causes
penetration to any extent whatsoever by-
(a)
The genital organs of one
person into or beyond the genital organs, anus or mouth of another
person; . . . ‘
As
stated by SS Terblanche in
Guide to Sentencing in South Africa
Durban: Lexis Nexis (2007) para 3.4.6.3, the SO Act redefined
rape and ‘[a]lthough the offence still consists of sexual
penetration
of a non-consensual person, “sexual penetration”
is defined as “any act which causes penetration”’.
The offence of rape can thus be committed by a person without that
person committing the act of penetration. (See
S v Msomi
2010 (2) SACR 173
(KZP);
S v HB
2015 (1) SACR 77
(GP).
[16]
The regional magistrate considered the particular circumstances of
the case in the light of the well-known triad of factors
relevant to
sentencing; the crime, the offender and the interests of society.
He took into account that the appellant was
a first offender; 26
years of age; unmarried and without any dependants; his educational
attainment (grade 11 at secondary school);
that he was unemployed;
the time that he had spent in custody awaiting the finalisation of
the trial (approximately two years and
four months); the serious and
horrendous nature of the offences of which he had been convicted;
the degradation, and violation
of the person of Ms N and of her
rights; the prevalence of such crimes of violence against women in
the court
a quo’s
area of jurisdiction and in the
country; and the community’s interest in having the courts deal
severely with offenders such
as the appellant.
[17]
In sentencing appellant and two of his co-accused, the regional
magistrate said:
‘
. . . You see you are charged
subject to minimum prescribed sentences. Where you commit gang
rape the minimum prescribed sentence
is life imprisonment. I am
compelled to impose a sentence of life imprisonment unless I find
substantial and compelling circumstances
whereof (sic) I can deviate
from imposing the minimum prescribed sentence. The principle
underlying this prescribed minimum
sentence is that a court should
not deviate from imposing the prescribed minimum sentence of life
imprisonment for flimsy reasons.
I have invited both your legal
representatives to address the court with regard to compelling and
substantial circumstances.
I am at pains, if I may indicate, to
understand what has been placed before me as substantial and
compelling. The prosecutor
argued that there are no compelling
and substantial circumstances, more especially if one takes int
account the manner in which
you treated both victims. I
therefore come to the conclusion that the only realistic form of
punishment in this instance
is a term of imprisonment. All
factors taken into account you are sentences as follows.
Accused 1 [the Appellant],
starting with you, you are sentenced to 20
years imprisonment. . . . I have taken all counts
as one for purposes
of sentence. …”
[18]
I am at a loss to understand how the regional magistrate could have
imposed 20 years’ imprisonment instead of the mandatory
minimum
sentence of a period of imprisonment for life for the appellant’s
conviction of rape, without finding that he was
satisfied that
substantial and compelling circumstances existed that justified the
imposition of a lesser sentence, which he did
not find, and, on all
the factors relevant to sentencing cumulatively, could not find.
In his own words, the raping of Ms
N amounted to ‘a gang rape’
and especially ‘if the manner in which’ Ms N was
‘treated’ by her
assailants are taken into account, the
only appropriate sentence that he could have imposed was the
mandatory sentence of imprisonment
for life. The appellant
showed no respect for Ms N’s rights nor did he at any stage
show the slightest remorse.
The imposition of a lesser sentence
than the mandatory minimum sentence will in this instance diminish
the horror of rape.
[19]
As was said by Marais JA in
Malgas
at 235F-H, ‘[c]ourts
are required to approach the imposition of sentence conscious that
the Legislature has ordained life
imprisonment (or the particular
prescribed period of imprisonment) as the sentence that should
ordinarily
and in the absence of weighty justification be
imposed for the listed crimes in the specified circumstances’
and ‘[u]nless
there are, and can be seen to be, truly
convincing reasons for a different response, the crimes in question
are therefore required
to elicit a severe, standardised and
consistent response from the courts’. Furthermore, ‘the
emphasis has shifted
to the objective gravity of the type of crime
and the need for effective sanctions against it’. (At
1235J-1236A).
[20]
The serious and horrendous nature of rape and violence against women
cannot be over-emphasised. As was said by Mahomed
CJ in
S v
Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 5A-E
[1997] ZASCA 45
;
(1997 (3) SA 341
;
[1997] 3
All SA 277):
‘
. . . Rape is a very serious
offence, constituting as it does a humiliating, degrading and brutal
invasion of the privacy, the dignity
and the person of the victim.
The rights to dignity, to privacy and
the integrity of every person are basic to the ethos of the
Constitution [See ss 10, 11 and
13 of the Constitution of the
Republic of South Africa 200 of 1993 and ss 10, 12 and 14 of the
Constitution of the Republic of
South Africa Act 108 of 1996 –
Eds.]
and to any defensible civilisation
.
Women in this country are entitled to
the protection of these rights. They have a legitimate claim to
walk peacefully on the
streets, to enjoy their shopping and their
entertainment, to go and come from work, and to enjoy the peace and
tranquillity of
their homes without the fear, the apprehension and
insecurity which constantly diminishes the quality and enjoyment of
their lives.
. . .
The Courts are under a duty to send a
clear message to the accused, to other potential rapists and to the
community: We are
determined to protect the equality, dignity
and freedom of all women, and we shall show no mercy to those who
seek to invade those
rights.’
[21]
Although the assault with the intent to do grievous bodily harm, the
kidnapping and the rape were closely connected, the learned
magistrate should have imposed separate sentences for the three
convictions. The sentences pursuant to the convictions of
kidnapping and assault with the intent to do grievous bodily harm, as
a matter of law, run concurrently with the sentence of imprisonment
for life pursuant to the appellant’s conviction of rape.
An appropriate sentence, in all the circumstances, for the
appellant’s conviction of kidnapping, in my view, is one of
imprisonment for six years, and for his conviction of assault
with
the intent to do grievous bodily harm, also imprisonment for six
years.
[22]
In the result the following order is made:
(a) The appeal against
the appellant’s convictions and sentence is dismissed.
(b) The appellant’s
convictions of assault with the intent to do grievous bodily harm
(count 1), of kidnapping (count 2) and
of rape as contemplated in s 3
of the Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007 (count 3), are
confirmed.
(c) The sentence of
imprisonment for twenty years imposed upon the appellant pursuant to
his convictions of assault with the intent
to do grievous bodily harm
(count 1), of kidnapping (count 2) and of rape as contemplated in s 3
of the Criminal Law (Sexual Offences
and Related Matters) Amendment
Act 32 of 2007 (count 3), is set aside and replaced with the
following sentences:
(i)
Accused no 1, Mr Banele Ngwenya, is sentenced to imprisonment for six
years pursuant to his conviction of assault with the intent
to do
grievous bodily harm (count 1);
(ii)
Accused no 1 is sentenced to imprisonment for six years pursuant to
his conviction of kidnapping (count 2);
(iii)
Accused no 1 is sentenced to imprisonment for life pursuant to his
conviction of rape as contemplated in s 3 of the Criminal
Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007 (count 3).
(iv)
The sentence of six years’ imprisonment imposed pursuant to
accused no 1’s conviction on count 1 and the sentence
of six
years’ imprisonment imposed pursuant to his conviction on count
2 are to run concurrently with his sentence of imprisonment
for life
imposed pursuant to his conviction on count 3 and he, therefore, is
to serve an effective term of imprisonment for life.
(d)
The
sentences imposed upon the appellant by this court of appeal are
antedated to 1 November 2011, which is the date on which the
sentence
of imprisonment for 20 years was imposed upon him by the court
a
quo
.
______________________________
P.A.
MEYER
JUDGE OF THE HIGH COURT
______________________________
M.D.
MDALANA-MAYISELA
ACTING JUDGE OF THE HIGH COURT
Dates
of hearing: 11 and 20 February 2019
Date
of Judgment: 20 February 2019
Counsel
for Appellant: Adv SP Lekgothoane
Instructed
by: Legal Aid Board, Johannesburg Justice Centre
Counsel
for Respondent: Adv L Ngodwana
Instructed
by: Director of Public Prosecutions, Johannesburg