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[2010] ZAWCHC 603
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Somta and Another v S (A17/2010) [2010] ZAWCHC 603 (6 December 2010)
Republic of South
Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
Number: A17/2010
In the matter of:
THEMBANI
SOMTA
…...........................................................................................
First
Appellant
LOLO
SIKEYI
…................................................................................................
Second
Appellant
Versus
THE
STATE
…...........................................................................................................
Respondent
Judgment
: 6 DECEMBER 2010
MIA AJ
[1]
The
first and second appellants were charged and convicted of
housebreaking with intent to steal and theft and rape. The first
appellant was also charged and convicted of robbery with aggravating
circumstances and the second appellant was charged and convicted
of a
second count of rape on the same complainant. The regional court
magistrate imposed a minimum sentence in terms of section
51(1) of
the Criminal Law Amendment Act, Act 105 of 1997 (hereinafter "the
Act"). The Act provides a minimum prescribed
sentence of life
imprisonment when read with paragraph (a) of Part I of Schedule two
of the Act. Subject to the provisions of section
51(3)(a), it
provides for a minimum obligatory sentence of life imprisonment when
the complainant is raped more than once by an
accused or
co-perpetrator or by more than one person acting with common purpose.
The magistrate took the incidents which occurred
on the same evening
together for the purpose of sentence. On the charge of rape,
housebreaking and theft the first appellant was
sentenced to life
imprisonment and fifteen years imprisonment on the further charge of
robbery which was ordered to run separately.
The second appellant was
sentenced to life imprisonment. Both the appellants appeal against
the convictions and sentences handed
down.
[2]
The appellants were both legally represented before the Court a
quo
and
did not testify in mitigation. The first appellant pleaded guilty to
the charge of rape and indicated that he broke in but did
not steal
any items. The second appellant denies having committed the rape or
theft. A victim impact assessment report as well
as a pre-sentence
report pertaining to the appellants were compiled to assist the Court
a
quo
in
determining an appropriate sentence. The appellants were not first
offenders when they were convicted in the present matter.
The first
appellant admitted previous convictions of theft in 2000, robbery in
2001 and theft in 2001. The second appellant admitted
his previous
convictions of trespassing in 2000, theft in June 2003 and December
2003.
[3]
In his notice of appeal, the first appellant alleges that the second
appellant is not implicated in the crimes. He admitted
to the rape
and was candid in his plea but denied having stolen the items
reported as missing by the complainant. The second appellant
contended that the Court a
quo
erred
in accepting the complainant's evidence and disregarding his own and
denied having participated in the rape. He further stated
that the
Court a
quo
overemphasised
the seriousness of the crime and underemphasised his personal
circumstances and that the sentence of life imprisonment
was
shockingly inappropriate.
[4] In sentencing the
appellants, the magistrate approached the sentence on the basis that
life imprisonment is the prescribed sentence
for rape when the
complainant is raped more than once by an accused or co-perpetrator
or by more than one person acting with common
purpose unless there
are substantial and compelling circumstances which indicate that
there ought to be a departure from the prescribed
minimum sentence.
The magistrate took the incidents which occurred on the same evening
together for the purpose of sentence and
found that there were no
substantial and compelling circumstances which required a departure
from the prescribed sentence.
[5] The issues which must
be considered in this appeal are whether the conviction with regard
to the second appellant is sustained
on the evidence beyond
reasonable doubt and whether the sentences imposed on the appellants
are, in the circumstances of the present
matter, disproportionate to
the crime and thus shockingly inappropriate.
Background
[6 ] The complainant
resided with her four year old daughter in Gansbaai in the district
of Hermanus at the time of the offence.
The complainant lived an
independent life at the time. She was asleep on the night in question
and woke up when she heard a noise
in the bathroom. She saw the first
appellant climbing through the window, picked her daughter up and
tried to flee through the
front door. When she opened the door the
second appellant was waiting and pushed her back inside the house.
The first appellant
commanded her to sit against the wall whilst they
searched the room. They found her Compact Disc player and cell phone
and placed
it aside. It subsequently transpired that these items were
missing after the incident.
[7] The first appellant
then told her to go to the room and to lie on the bed. He undressed
her and penetrated her vaginally. Whilst
the appellant had
intercourse with her, she held her daughter on her chest. The first
appellant then called the second appellant
who also penetrated her
vaginally. During this time the first appellant searched the room and
emptied her handbag. She stood up
when the second appellant was no
longer on top of her. The second appellant then took out a knife
threatened her and told her to
lie down as he was not finished. He
then penetrated her vaginally for a second time. All this time the
complainant held her four
year old daughter against her chest for
fear that she may come to further harm at the hand of the appellants
if she released her.
The child cried throughout the ordeal. The
appellants then continued searching the house and switched on the
microwave causing
the electric main switch to trip. Both appellants
then fled.
[8] The first appellant
is charged with robbing a further complainant of her cell phone at
knife point the following day. This
complainant ran to a security
company and raised an alarm giving the officer a description of the
offender. When the first appellant
was approached by the officer, he
ran away dropping the dismantled parts of the cell phone along the
way. A colleague of the
officer apprehended the appellant shortly
thereafter.
[9] The only dispute
concerns the charge of theft and whether the second appellant raped
the complainant. The medical report reflects
that she had sustained
fresh flesh wounds and blood was present, which is indicative of
forceful penetration.
[10]
The evidence of the complainant in the rape matter appeared to have
been clear in every a spec
4
..
It appeared that she had sufficient opportunity to identify the
appellants as there was sufficient lighting. The complainant's
evidence was clear in this regard. In view of the first appellant's
plea and the second appellant's admission that he was on
the scene,
it is unlikely that the complainant would fabricate a version with
regard to the first appellant stealing the goods
and the second
appellant raping her.
[11] Mr Mahomed who
appeared on behalf of the appellants submitted that as the
complainant was a single witness, that first appellant
denied that
the second appellant was involved and that the State, inexplicably
had failed to produce DNA and other forensic evidence
in respect of
the second appellant. He argued therefore that there was
insufficient evidence to convict the second appellant
of rape. The
complainant, however, had no difficulty in identifying both
appellants at the ID parade. She justified her identification
of
both appellants by way of plausible evidence, in particular that she
had the opportunity to clearly identify both appellants
when they
invaded her home on 30 October 2004.
[12]
By contrast, second appellant proffered an utterly implausible
version that it was one Songezo Mazongola who was the second
participant with first appellant. The implausibility was luminously
illustrated by the evidence of Mr. Mazongola who testified
that the
appellants sought to force him to testify. The second appellant
informed the court that it was a case of Mr Mozongola
being similar
in appearance. The observations of the Court a
quo
indicate,
however, that the appearance of Mr Mozongola and the second
appellant differed in size, build and complexion. The complainant
could not have mistaken the second appellant and this witness.
Sentence
[13] In the present
matter both the appellants are repeat offenders, having committed
previous offences which have a bearing on
the sentences in the
present matter. The first appellant has previous convictions for
housebreaking and theft as well as robbery.
The second appellant has
previous convictions for theft and trespass offences. The prescribed
minimum sentence applies in terms
of section
51 (1) Act 105
of 1997.
The first appellant pleaded guilty to the charge of rape. The second
appellant made certain admissions that he was on
the property on the
day in question but denies the rape and theft charges.
[14] The Victim
Assessment Reoort indicates that the complainant's life has been
detrimentally affected. She has never returned
to the address. Her
daughter has suffered tremendously as a result. Understandably due
to the trauma of the rape of her mother
and the violation of the
safety of her home, she has not coped emotionally. This has impacted
on other areas of her life, including
her schooling. This incident
necessitated the complainant having to place her daughter in a
boarding facility to ensure that
she obtained the necessary
psychological support. This is in stark contrast with the
complainant's evidence of her life prior
to the incident when she
lived independently with her young daughter. The social worker's
assessment indicates that the complainant
has not recovered and does
not receive the required psychological support to deal with the
trauma of the incident. This impacted
on her ability to parent the
minor child effectively.
[15] The first appellant
is a repeat rape offender. The probation officer's assessment
indicates that the first appellant grew
up without a male role model
and left home at age 15 years old to live with his siblings. The
implication appears to be that
he received inadequate socialisation.
The second appellant appears not to have received the necessary
stability according the
probation officer. Having regard to the
previous offences of both appellants, the appellants show no regard
for any opportunities
they were given previously to address their
offending behaviour. The danger posed by the appellants require the
strictest measures
to ensure that people can enjoy their rights to
security of person.
[16]
Mr Mahomed on behalf of the second appellant referred this court to
the Convention on the Rights of the Child (1989) and
the case of
S
v
Blaauw
2001
(2) SACR 255
at
264 a-b where reference is made to the Convention. The relevant
section reads as follows:
"the arrest,
detention or imprisonment of a child shall be in conformity with the
law and shall be used only as a measure
of last resort and for the
shortest appropriate period of time."
[17] Mr Mahomed points
out that the second appellant was just more than 17 years old at the
time of the commission of the offence
and not yet 18 years old. He
submits that in light of the second appellant's age and having
regard to the aforementioned Convention,
and that the complainant
did not present with any visible physical injuries, the sentence is
disproportionate to the crime. In
particular he drew attention to
Section 51(3)(b) which provides that when a Court imposes a minimum
sentence upon a child who
is aged between 16 and 18 at the time of
the commission of the offence it shall enter its reasons on the
record. As the magistrate
overlooked this provision, Mr Mahomed
submitted that this court was now at large to determine the
sentence.
[18] Section 51(3) (aA)
provides:
"(aA) When
imposing a sentence in respect of the offence of rape the following
shall not constitute substantial and compelling
circumstances
justifying the imposition of a lesser sentence:
(i)
The
complainant's previous sexual history;
(ii)
an
apparent lack of physical injury to the complainant;
(iii) an accused
person's cultural and religious beliefs about rape: or
(iv) any relationship
between the accused person and the complainant prior to the offence
being committed."
[19] The Act provided
specifically that the apparent lack of physical injury to
complainant shall not constitute substantial and
compelling
circumstances justifying the imposition of a lesser sentence. The
fact that the complainant did not sustain further
injuries and was
not assaulted or did not experience further violation is not a
factor in the present matter that the second
appellant can rely on
to persuade the Court to depart from the prescribed minimum
sentence.
[20] Having regard to
the submission that the Court must have regard to the Convention on
the Rights of the Child this is not
the only international
Convention that is applicable. The Convention on the Elimination of
Discrimination against Women was also
ratified by South Africa.
South Africa as a signatory to this Convention is required to take
steps to eliminate all forms of
violence against women and children.
In terms of the Bill of Rights in the Constitution of the Republic
of South Africa, 1996,
the complainant has a right to freedom and
security of person which includes a right to be free from violence.
[21] Having regard to
the above Conventions, the Court is faced with protecting the
interests of the appellant, a 17 year old
at the time of the offence
as well as the interests of the complainant who is the victim of the
offence committed by the 17 year
old offender.
[22] The article of the
Convention on the Rights of Child which Mr Mahomed relies on does
not exclude imprisonment. It requires
that the imprisonment be meted
out in accordance with the law and for the shortest period possible.
Having regard to the prescribed
minimum sentence provided for in
section 51(1)(a) and subject to section 51(3)(a) the Court is also
required to consider whether
there are substantial and compelling
circumstances. In this instance there are none. In this case
therefore, it will appear that
the minimum sentence is applicable
[23]
The submission that the personal circumstances of the appellants
were underemphasised is incorrect because the Court a
quo
took
account of their personal circumstances and weighed it against the
nature of the offences. The Court could find no substantial
or
compelling circumstances to justify a departure from the prescribed
sentence. The record reflects that the legal representative
for the
appellants indicated that they could place no substantial and
compelling circumstances before the court. A perusal of
the
probation officer's reports regarding the appellants also did not
highlight any substantial and compelling circumstances
that would
justify a deviation from the prescribed minimum sentence. The
appellants impoverished circumstances have to be weighed
against the
brutality of the nature of the offence. Rape is a violation of a
person's integrity, sense of security and deprives
the victim of her
personal integrity. In this case the facts illustrate that the crime
was truly horrific, and was compounded
by the brutality experienced
by a five year old child. I can find no merit in the appellants'
submissions that the sentence imposed
is shockingly inappropriate.
[23] I have had regard
to four factors influencing sentence, the seriousness of the
offence, the purpose of punishment, the personal
circumstances of
the appellants and the effect of the crime on the victims, being
both mother and child, as well as the provisions
of Act. The absence
of substantial and compelling circumstances is equally important to
justify not imposing a lesser sentence.
[24]
I have had regard to the submission that the 15 years should run
concurrently with the term of life imprisonment. I note
the State's
concession that the Court a
quo
erred
in this regard.
Section 39(2)(a)(i)
of the
Correctional Services Act
111 of 1998
governs this aspect and provides that a determinate
sentence shall run concurrently with a life sentence. In view of
this, the
15 years imposed for the robbery with aggravating
circumstances should run concurrently with the life sentence which
the first
appellant must serve.
Order
[25] For the reasons
given above,
1) The appeal against
the conviction of the first appellant is dismissed.
2) The sentence of the
first appellant is amended so that the 15 years imprisonment is
ordered to run concurrently with the sentence
of life imprisonment.
3) The appeal against
the convictions and sentence in relation to the second appellant is
dismissed.
MIA, AJ
I
agree and it is so ordered.
DAVIS,
J