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[2014] ZASCA 28
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Nthabalala v S (829/13) [2014] ZASCA 28 (28 March 2014)
THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 829/13
Not
reportable
In the matter between:
TAKALANI
ERIC
NTHABALALA
................................................................
APPELLANT
and
THE
STATE
...................................................................................................
RESPONDENT
Neutral citation:
Nthabalala v The State
(829/13)
[2014] ZASCA 28
(28 March 2014)
Coram:
Ponnan
and Petse JJA and Legodi AJA
Heard:
14 March 2014
Delivered: 28 March 2014
Summary:
Appeal
against sentence – appellant convicted of culpable homicide and
rape – sentenced to 16 and 45 years' imprisonment
respectively
– trial court committing misdirection in determining
appropriate sentence – appeal court at large to interfere.
ORDER
On
appeal from Limpopo High Court, Thohoyandou (Hetisani J sitting as
court of first instance):
1 The appeal against sentence is upheld.
2 The sentences imposed by the court a quo in
consequence of the appellant’s conviction of one charge each of
rape and culpable
homicide are set aside and substituted as follows:
‘
2.1
On the rape, the accused is sentenced to 20 years' imprisonment.
2.2 On the culpable homicide, the accused is sentenced
to ten years' imprisonment.
2.3 Five of the ten years’ imprisonment imposed on
the accused in respect of the culpable homicide is ordered to run
concurrently
with the 20 years on the rape charge. The effective
sentence imposed on the appellant is 25 years’ imprisonment.
2.4 The sentences are hereby ante-dated to 30 August
2000 being the date on which the appellant was sentenced.’
JUDGMENT
LEGODI AJA (PONNAN and PETSE JJA CONCURRING)
[1]
This is an appeal against the imposition of terms of imprisonment of
16 and 45 years imposed upon the appellant, Mr Takalani
Eric
Nthabalala pursuant to his plea of guilty on charges of culpable
homicide and rape, respectively. The sentences were imposed
on 30
August 2010 by the then Venda High Court (now Limpopo High Court,
Thohoyandou (Hetisani J)). The appeal is with leave of
this Court.
[2]
The facts of this case are set out in the appellant's statement in
terms of
s 112
of the
Criminal Procedure Act 51 of 1977
filed in
support of his plea of guilty and his evidence adduced in mitigation
of sentence. The appellant was originally charged
with murder and
rape, but his plea of guilty to the competent verdict of culpable
homicide in respect of murder was accepted by
the State.
[3]
The appellant’s s 112 statement reads:
'AD
COUNT I
Accused tenders a plea of guilty to culpable homicide
and admits the following facts:-
(a) That he caused the death of the deceased by holding
her by the throat in a struggle when he was forcing her to have
sexual intercourse
with him.
(b) His intention of holding her by the throat was to
subdue her to have sexual intercourse with him and not to kill her.
(c) He admits that he should have realised that he could
cause the deceased's death by holding her in the manner he did on the
throat.
(d) That the deceased died as a result of being held by
the throat in the manner he did on the date of the incident.
(e) That the incident took place on the date and at the
place as alleged in the indictment.
AD COUNT II
(a) The accused admits that he was in the company of the
deceased and other persons as alleged in the summary of substantial
facts.
(b) That he was left behind walking with the deceased
when the group left the shebeen.
(c) Along the way when he was with the deceased, he
asked the deceased to have sexual intercourse with him but the
deceased refused.
(d) The accused was highly aroused as he had been
drinking and dancing with the deceased at the shebeen and he as a
result thereof,
pulled the deceased aside into a mealiefield and
tripped her.
(e) The deceased fell on her face when he tripped her
and he struggled to pull off her panty whilst she was resisting.
(f) When the accused turned the deceased around to make
her to lie on her back so that he could have sexual intercourse with
her,
the deceased started scratching him on his face with nails and
hitting him with clenched fists.
(g) The accused had by then already pulled down his
pants and was ready for sexual intercourse.
(h) The accused then went for the deceased's throat in
order to subdue her as she was too powerful and was hitting very
hard.
(i) The intention of holding her by the throat was to
subdue her to have sexual intercourse with her and she accordingly
weakened
as he was holding her throat.
(j) The Accused continued having sexual intercourse with
her whilst holding the throat.
(k) After he had ejaculated he released the throat and
realised that the deceased was then breathing slowly and with
difficulty.
(l) The accused ran after other members of the group who
were walking infront but could not find them and he again went back
to
the deceased and tried to make her stand up invain.
(m) The accused became scared and left the deceased
lying in the field and went home.
(n) The accused knew that it was unlawful to have sexual
intercourse with a woman without her consent but was just overcome by
emotion.'
[4]
I am satisfied that the court below misdirected itself in the
exercise of its sentencing discretion in the following respects:
First,
during his evidence in mitigation of sentence the appellant’s
evidence unfolded as follows:
'How
do you feel having caused the death of the deceased? --- I feel hurt
about this because I did this unintentionally and because
of drinks I
had.'
That
taken together with the appellant's guilty plea appeared to reflect
genuine remorse on the part of the appellant. However,
the trial
court dismissed that expression of remorse in these terms:
'I
am afraid that the fact that you are remorseful of what you did is
too late. That person has died and will never come back again.'
Second,
the trial court stated:
'Now,
this court will not let the country or that community down, where
this thing happened, because
that
community was shocked to learn, on the following day, the 29
th
,
that someone staying there had been raped and murdered.'
(My emphasis.)
There
was no evidence placed on record about the reaction of the community.
It is thus not clear what the factual foundation for
that conclusion
is. The court engaged in similar speculation when it stated:
'Who
knows, perhaps you throttled her after you had raped her, trying to
prevent her from reporting you.'
Third,
the previous convictions proved against the appellant were for theft.
At the time of sentencing they were more than ten years
old. The
trial court with reference to those convictions stated:
'You
are a person who has had collision with the law several times,
without taking heed thereof.'
The
inference is inescapable that the trial court considered the previous
convictions as aggravating despite the fact that they
were irrelevant
and had occurred a long time ago.
[5]
The personal circumstances of the appellant are as follows: He was
born in 1963. He was about 37 years old at the time of the
commission
of the offences on 10 February 2000. He is married with two children.
Both children were attending school. At the time
of sentencing they
were in the process of completing Standards 5 and 2 respectively. He
was self-employed in a building construction
business, constructing
foundations. His wife was taking care of the business in his absence.
She was, however, experiencing problems
with the employees.
Ordinarily, the appellant's business made a net profit of about
R5 800 per month.
[6]
In mitigation of sentence the appellant tried to explain himself as
follows:
'Why
did you have to rape the deceased, do you have any explanation for
that? --- It is because we had been dancing together with
the
deceased and I took it that through that action, she would allow me
to do anything with her and the one thing is that I failed
to get
control of my emotions.'
The
simple act of dancing with the appellant could never have been
considered by the appellant as the complainant consenting to
have
sexual intercourse with him. Clearly the appellant was not prepared
to accept ‘no’ from the deceased.
[7]
The offences in question are very serious. As it was said in
S
v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) 345B-D
and repeated in
S v Vilakazi
2012 (6) SA 353
(SCA) para 1, 'rape is a . . .
humiliating, degrading and brutal invasion of the privacy, the
dignity and the person of the victim.
Women in this country . . .
have a legitimate claim to walk peacefully on 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 fear, the
apprehension and the insecurity
which constantly diminishes the
quality and enjoyment of their lives'.
[8]
As Nugent JA put it, '[r]ape is a repulsive crime . . . [It is] an
invasion of the most private and intimate zone of a woman
and strikes
at the core of her personhood and dignity . . .' (see
Vilakazi
supra
para 1). What is worse, in the
circumstances of the present case the deceased was killed whilst
trying to resist the appellant.
To overcome her resistance the
appellant throttled the complainant so that he could engage in sexual
intercourse with her in circumstances
where it was quite clear to him
that she was not consenting.
[9]
Society expects that serious offences must be punished. But society
also expects that mitigating circumstances should be taken
into
consideration and that the accused's specific position be afforded
consideration in the determination of sentence (see
S
v Holder
1979 (2) SA 70
(A) at 81A-B).
[10]
In
S v Du Toit
1979
(3) SA 846
(A) this Court observed that where the nature of the
offence and the interests of society are considered, the accused to a
certain
extent is still in the background. But, when he as a culpable
human being is considered, the spotlight must be focussed fully on
his person in its entirety, with all its facets. He is not regarded
with a primitive desire of revenge, but with humane compassion
which
demands that extenuating circumstances be investigated in each case,
however serious.
[11]
Taking into account all of the relevant factors to which I have
referred, I consider the following terms of imprisonment to
be
appropriate: for the rape, 20 years' imprisonment; and, for culpable
homicide, ten years' imprisonment. Due to the fact that
the offences
were part of the same transaction, a portion of the ten years’
imprisonment should be ordered to run concurrently
with the 20 years’
imprisonment. The appellant has been serving his sentence since 30
August 2000. The sentences should therefore
be ante-dated to the 30
August 2000.
Order
:
1
The appeal against sentence is upheld.
2
The sentences imposed by the court a quo in consequence of the
appellant’s conviction of one charge each of rape and culpable
homicide are set aside and substituted as follows:
‘
2.1
On the rape, the accused is sentenced to 20 years' imprisonment.
2.2
On the culpable homicide, the accused is sentenced to ten years'
imprisonment.
2.3
Five of the ten years’ imprisonment imposed on the accused in
respect of the culpable homicide is ordered to run concurrently
with
the 20 years on the rape charge. The effective sentence imposed on
the appellant is 25 years’ imprisonment.
2.4
The sentences are hereby ante-dated to 30 August 2000 being the date
on which the appellant was sentenced.’
M F LEGODI
ACTING JUDGE OF APPEAL
APPEARANCES:
For appellants: M J Manwadu
Instructed
by:
Thohoyandou
Justice Centre, Thohoyandou
Bloemfontein
Justice Centre, Bloemfontein
For respondents: A I S Poodhun
Instructed
by:
The Director
of Public Prosecutions, Thohoyandou
Director of
Public Prosecutions, Bloemfontein