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[2014] ZASCA 41
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Nevilimadi v S (545/13) [2014] ZASCA 41 (31 March 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
NOT
REPORTABLE
Case
No: 545/13
In
the matter between:
PETER MASHUDU
NEVILIMADI
.........................................................................
APPELLANT
and
THE
STATE
............................................................................................................
RESPONDENT
Neutral
citation
:
Peter
Mashudu Nevilimadi v The State
(545/13)
[2014] ZASCA 41
(31 March 2014)
Coram:
Mhlantla, Wallis and Saldulker JJA
Heard:
5 March 2014
Delivered:
31March 2014
Summary:
Criminal law and procedure - appeal
against conviction on a charge of rape - sentence – whether
sentence of 39 years’
imprisonment appropriate. On appeal –
conviction confirmed – sentence set aside and replaced with one
of 15 years’
imprisonment.
ORDER
On
appeal from: Limpopo High Court, Thohoyandou
(Lukoto
J sitting as court of first instance):
1
The appeal against conviction is dismissed and the conviction is
confirmed.
2
The appeal against the sentence is upheld.
3
The sentence imposed by the court below is set aside and replaced
with the following:
‘
The
accused is sentenced to 15 years’ imprisonment.’
4
The sentence is antedated in terms of
section 282
of the
Criminal
Procedure Act 51 of 1977
to 24 December 2001, being the date upon
which the sentence was imposed.
JUDGMENT
Mhlantla
JA (Wallis and Saldulker JJA concurring):
[1]
Mr Mashudu Nevilimadi (the appellant) stood trial in the Sexual
Offences Court, Thohoyandou, Limpopo on a charge of rape.
[1]
He pleaded not guilty and at the end of the trial was found guilty of
rape involving a girl under the age of 16 years. The magistrate
stopped the proceedings in terms of section 52 of the Criminal Law
Amendment Act 105 of 1997 (the Act)
[2]
and referred the matter to the Limpopo High Court, Thohoyandou for
sentence. On 24 December 2001 the court below (Lukoto J) imposed
a
sentence of 39 years’ imprisonment. The appeal against
conviction and sentence is before us with leave granted by Makhafola
J on 4 December 2012.
[2]
The trial in the Sexual Offences Court commenced on 8 June 2001. The
appellant pleaded not guilty and in amplification of his
plea stated
that the complainant was his girlfriend and that they had consensual
sexual intercourse. The complainant was due to
testify when it became
evident that she was 12 years old. The magistrate immediately stopped
the proceedings and warned the appellant
about the consequences in
the event of conviction on a charge of rape involving a girl under
the age of 16. In this regard, he
warned the appellant that the
minimum sentence was 15 years’ imprisonment and that his case
would be referred to the high
court for sentencing. It is noteworthy
to state that the prescribed sentence in the circumstances of this
case was imprisonment
for life. The magistrate thereafter
adjourned the proceedings and afforded the appellant an opportunity
to engage the services
of an attorney.
[3]
The case was postponed on numerous occasions to enable the appellant
to secure the services of a legal representative. On 27
October 2001
the trial resumed. At that stage the appellant was legally
represented. The complainant and Ms Rosinah Rasimphi, to
whom the
first report was made, testified on behalf of the State. A medical
report (J88 form) prepared by Dr Sivhada of Tshilidani
Hospital was
handed in by consent between the parties. The appellant testified in
his defence. It is not in dispute that sexual
intercourse between the
appellant and the complainant took place on the day in question. The
only issue that had to be determined
by the trial court was whether
the sexual intercourse was consensual. The essential facts may be
briefly stated.
[4]
The complainant’s version was that she was alone at home when
the appellant approached her. He requested some water to
drink. She
was inside the hut when she discovered that the appellant had entered
the hut. Upon enquiry, he told her not to ask
questions. He took a
knife that was on the table and locked the door. He threatened her
with it and ordered her to lie down. She
resisted whereupon he
wielded the knife at her. She eventually complied and removed her
clothes. The appellant had sexual intercourse
with her. She felt pain
in her vaginal region and cried during this encounter. She could not
scream for help as the appellant had
covered her mouth and was still
in possession of the knife. He eventually stopped and put on his
clothes. As he left, he ordered
her not to tell anyone about the
incident otherwise he would assault her.
[5]
As her mother had not yet returned from attending a funeral, she
waited outside her home for her neighbour Ms Rasimpi to return.
She
subsequently made a report to her and Ms Rasimpi in turn related this
to her mother when she returned. Her mother thereafter
took her to
the clinic and to the police station.
[6]
The complainant denied the appellant’s version that they had an
intimate relationship which had been on-going for three
years. She
stated that this was her first sexual encounter and it was without
her consent. She and the appellant were not friends,
albeit she knew
him as at some stage they had attended the same school and been in
the same class. She denied ever arranging to
meet him or telling him
that her parents would be away attending a funeral and that he could
visit her.
[7]
She testified that the incident had emotionally affected her as she
had become afraid of men. She struggled to play with other
children
and has lost her self-esteem and confidence.
[8]
Ms Rosinah Rasimpi confirmed that she and the complainant were
neighbours. On the day of the incident at about 19h00 she was
proceeding to her house when she saw the complainant standing outside
her premises. The complainant appeared upset, withdrawn and
was
crying. Upon enquiry, the complainant just shook her head and
followed her inside her house.
[9]
Once inside, the complainant made a report about the incident; that
she was alone at home when the appellant arrived; entered
the hut
under false pretences, closed the door; threatened her with a knife
and raped her. He did this after enquiring about the
whereabouts of
her parents and siblings. Rosina took the complainant to her home and
related what she had been told by the complainant
to her mother.
After reporting the matter, the complainant was taken to the clinic
and to the police station.
[10]
The medical report was handed in by agreement between the parties.
The examination was conducted on the same day of the incident
by Dr T
H Sivhada. He recorded that the complainant was physically small and
had small breasts which were still developing. She
was healthy and
mentally healthy. He recorded that the complainant had never
menstruated. The doctor’s gynaecological examination
was
painful for the complainant. Her vagina admitted only one finger of
the doctor. The labia
[3]
were
normal whilst the hymen was rugged. Rugged means having a rocky and
uneven surface. There was no bleeding. A slight watery
discharge was
detected. The doctor concluded that the absence of injuries did not
exclude forceful penetration.
[11]
The appellant testified in his defence and stated that he was born on
16 June 1983. His defence was that he and the complainant
had been
having an intimate relationship for more than a year and that they
had sexual intercourse on more than ten occasions.
In this
regard, he denied the earlier version put by his counsel that the
relationship had been on-going for three years.
He stated that on the
day in question, the complainant had initiated everything. He denied
the complainant’s version that
he had threatened her with a
knife and was unable to explain why this was never contested when the
complainant testified. He conceded
that the complainant appeared to
be very young. He thereafter closed his case.
[12]
On 1 November 2001, the regional magistrate rejected the appellant’s
version as not being reasonably possibly true and
convicted him of
rape involving a girl under the age of 16 years. Pursuant to the
conviction, he stopped the proceedings and referred
the matter to the
Limpopo High Court, Thohoyandou, in terms of the provisions of the
section 52 of the Act for sentencing.
[13]
On 24 December 2001, the matter came before Lukoto J in the court
below. He confirmed the conviction of the appellant. At that
stage
all the parties were aware that the prescribed sentence was
imprisonment for life in terms of section 51(1) of the Act. The
defence adduced evidence in mitigation. The judge thereafter
proceeded to consider the question of an appropriate sentence. The
judge found that the youthfulness of the appellant as well as other
mitigating factors constituted substantial and compelling
circumstances to deviate from imposing the sentence of imprisonment
for life. He imposed a sentence of 39 years’ imprisonment.
The
appellant appeals against this conviction and sentence.
[14]
At the commencement of the appeal, counsel for the appellant
conceded, correctly in my view, that the conviction was in order.
He
advised us that the appellant had abandoned his appeal against
conviction and only persisted in his appeal against the sentence
imposed. In the light of this concession it remains only for me to
consider the appeal against sentence.
[15]
Suffice it to state that I agree that there is no merit in the appeal
against conviction. The appellant’s version that
he had a long
- term relationship with a 12 year old girl was patently false.
If true, that would mean that the relationship
commenced when the
complainant was nine or eleven years old. The trial court observed
that she was very young. Furthermore his
version that he had sexual
intercourse with her on more than ten occasions is inconsistent with
the medical evidence which clearly
showed that the complainant was
not sexually active.
[16]
On a conspectus of the evidence and the findings of the court below,
I am satisfied that the appellant’s version was
correctly
rejected. His conviction must stand. The appeal against conviction
therefore fails.
[17]
Regarding the appeal against sentence, the imposition of sentence is
pre-eminently within the discretion of the trial court.
A court of
appeal will be entitled to interfere with the sentence imposed by the
trial court if the sentence is disturbingly inappropriate
or out of
proportion to the seriousness of the offence or is vitiated by a
misdirection showing that the trial court exercised
its discretion
unreasonably.
[4]
[18]
Counsel for the appellant submitted that the court below,
notwithstanding its conclusion that substantial and compelling
circumstances
did exist, over-emphasised the seriousness of the
offence and interests of society and imposed a sentence that is
startlingly inappropriate
and excessive. Counsel for the respondent,
rightly conceded, that the sentence was indeed shockingly
inappropriate and that this
Court should interfere and impose
sentence afresh.
[19]
I agree. It is difficult to comprehend how the court below determined
the sentence it imposed in this matter. This Court is
at large to
interfere.
[20]
It is important for the court to maintain the delicate balance
between the triad. In
S
v
Banda
and others
[5]
,
the court said:
‘
The
elements of the triad contain an equilibrium and a tension. A court
should, when determining sentence, strive to accomplish
and arrive at
a judicious counterbalance between these elements in order to ensure
that one element is not unduly accentuated at
the expense of and to
the exclusion of the others. This is not merely a formula, nor a
judicial incantation, the mere stating whereof
satisfies the
requirements. What is necessary is that the Court shall consider, and
try and balance evenly, the nature and circumstances
of the offence,
the characteristics of the offender and his circumstances and the
impact of the crime on the community, its welfare
and concern. This
conception as expounded by the Courts is sound and is incompatible
with anything less.’
[21]
Rape is a horrific offence which deserves severe punishment. In
S
v
Chapman
,
[6]
Mahomed CJ stated:
‘
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.’
[22]
The aggravating factors in this case are: the complainant was a very
young girl of 12 years of age. She had not reached puberty
and her
breasts were still developing. She was at an early stage of her
sexual development. She endured the humiliation of
being attacked in
the sanctity of her home. The experience left her traumatised and has
emotionally affected her.
[23]
On the other hand, the appellant’s personal circumstances are
that he was 17 years old when the offence was committed
and 18 years
of age at the time of sentencing. He was raised by a single parent,
his mother and due to financial constraints left
school in Standard
3; he was employed as a general worker and has no previous
convictions.
[24]
The appellant has been convicted of a very serious offence and
deserves a sentence of direct imprisonment. However, the sentence
to
be imposed must not have the effect of over
–
emphasising the elements of retribution and
deterrence. Having regard to all the relevant factors, I am of
the considered
view that a sentence of 15 years’ imprisonment
will be appropriate under the circumstances.
[25]
In the result, the following order is made:
1 The appeal against
conviction is dismissed and the conviction is confirmed.
2 The appeal against
the sentence is upheld.
3 The sentence
imposed by the court below is set aside and replaced with the
following:
‘
The
accused is sentenced to 15 years’ imprisonment.
’
4
The sentence is antedated in terms of
section 282
of the
Criminal
Procedure Act 51 of 1977
to 24 December 2001, being the date upon
which the sentence was imposed.
N.Z
MHLANTLA
JUDGE
OF APPEAL
APPEARANCES
:
For Appellant: A L
Thomu
Instructed by:
Thohoyandou Justice
Centre,
Justice Centre,
Bloemfontein
For Respondent: A
Madzhuta
Instructed by:
Director of Public
Prosecution, Limpopo
Director of Public
Prosecution, Bloemfontein
[1]
The
charge sheet read:
“
The
accused is guilty of rape in that upon or about the 10 February 2001
and at or near Masia Sinthumele in district of Vuwani,
Northern
Province Regional Division the said accused did wrongfully,
unlawfully and intentionally have sexual intercourse with
Ms X, a
female person.”
[2]
Section
52
prior to its amendment provided:
Committal
of accused for sentence by High Court after conviction in
regional court of offence referred to in Schedule 2
–
(1) If a regional court, following on –
(a)
a plea of guilty; or
(b)
a plea of not guilty,
has
convicted an accused of an offence referred to in –
(i)
Part I
of Schedule 2
(ii)
…
The
court shall stop the proceedings and commit the accused for sentence
as contemplated in
section 51(1)
or (2), as the case may be, by a
High Court having jurisdiction.
[3]
The
inner folds of the skin forming the margins of the vaginal orifice.
[4]
S
v
Romer
2011 (2) SACR 153
(SCA) para 22.
[5]
S
v
Banda
and others
1991 (2) SA 352
(BGD) at 355A-D.
[6]
S
v
Chapman
1997 (
2
)
SACR 3 (SCA) at 5B.