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[2012] ZAECPEHC 21
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S v Mzayifani and Others (CC 13/09) [2012] ZAECPEHC 21 (11 April 2012)
IN THE EASTERN CAPE HIGH COURT
PORT ELIZABETH
CASE NO. CC 13/09
In the matter between:
THE STATE
versus
THEMBELANI
MZAYIFANI
1
st
ACCUSED
LUNGA
MAGONGO
2
nd
ACCUSED
MAKHWNAANDILE
NINDZI
3
rdhe
ACCUSED
SENTENCE
KEMP AJ:
The three accused were convicted on
the 30
th
January 2012 of raping a 19 year old female and
of robbery with aggravating circumstances in that they stole a
silver necklace
valued at R50 from her, after the rape. None of them
had any previous convictions.
The complainant was locking the
tavern at which she was working when she was confronted by the three
accused. The 1
st
accused threatened her with a knife and
the three of them forced her to walk at knife point to a nearby yard
where they took
turns to rape her. One of them then took her
necklace, which was found in the possession of the 3
rd
accused the next morning. After raping her and taking her necklace,
the accused left her after which she ran to a friend’s
house
where the rape was reported. All three accused were arrested the
next morning and spent approximately two years in custody,
before
they were eventually granted bail. I will take the time spent in
custody into consideration when imposing sentence.
After conviction comprehensive
reports were prepared by probation officers. The probation officers
interviewed the accused, their
family members, the complainant, her
family members and friends of both parties. Both accused 1 and 2
were brought up in the
absence of their parents, although what all
three accused had in common, was that they were brought up in
difficult circumstances
by loving and caring family members, in the
case of accused no 3, by both of his parents.
Accused no. 1 had just turned 21
years old at the time of the commission of the offences. His mother
left him in the care of his
paternal grandparents at a very young
age and his father died when he was two. After his grandparents
passed away in 2010 and
2011 he was placed in the care of his
paternal uncle and aunt. According to them he started missing school
and socializing with
friends who influenced him negatively.
According to the probation officer the accused was in his late
adolescent stage of development
when the offences were committed,
and
“This is a stage where deviant behaviour can be the result of
general inexperience and immaturity which means that one does
not
always think as far as the moral consequences of actions and portrays
an inability to think beyond the moment. A sense of bravado
to
increase the adolescent’s status in the peer group is often
found in this development stage. However the accused was also
the
eldest of the two other accused who were 17 and 19 years
respectively.”
The accused admitted to smoking
cigarettes and dagga, but did not drink alcohol, and according to
his friends and family associated
with friends who were known
trouble makers in the community. The accused denied any involvement
in the crime and thus in the
view of the probation officer, appeared
to be unremorseful. I don’t believe that one can conclude as a
hard and fast rule
that an accused who still denies guilt after
conviction is necessarily unremorseful. One has to consider the age
of the accused,
their formal education and relative sophistication,
and consider what must be an extremely daunting and intimidating
experience.
The accused are basically still children and experience
teaches us that many children will steadfastly deny involvement in
an
infringement, because that is simply a defence mechanism some
children use. One must be careful not to put a wise head on young
shoulders, although I think my observations apply equally to a lot
of convicted persons of more mature years as well.
The 2
nd
accused was 19
years old at the time of the commission of the offences. Both of his
parents are deceased and he was raised by
his maternal grandparents.
Although the family struggled to make ends meet they were always
able to provide the basic necessities.
The accused respected his
elders and attended church until the age of 12 after which he lost
interest in church activities. He
failed grade 10 and was then
incarcerated for two years, pending and during this trial. His aunt
and uncle both reported that
there were community complaints about
the accused partaking in anti-social conduct in the community. As
with many families living
on or below the poverty line, the accused
shared an overcrowded house with his grandparents, sharing a room
with his female cousin
whilst his uncle slept on the floor in the
dining room. The family depends solely on State grants which are
reported to be inadequate
for the family needs.
As in the case of the 1
st
accused, the probation officer felt that the accused may have
committed the crimes to gain a sense of belonging with his peers
and
to gain social status, without thinking of the consequences
thereafter.
The 3
rd
accused was only
17 years old at the time of the commission of the offences and
therefore the minimum sentencing legislation
is not applicable to
him. His father was retrenched twice early in his career and
thereafter was never employed for very long
and became dependent on
alcohol. He abused his mother verbally and once threatened to stab
her. The accused however maintained
good relations with both his
parents. His one brother was incarcerated at an early age and died
shortly after his release two
years ago, and his one sister was born
paralyzed. The family have endured a lot of hardship. Most of the
accuseds’ negative
memories of his childhood related to the
financial circumstances of the family and his embarrassment about
their financial circumstances.
He frequently went to bed hungry. His
mother only visits him in prison every second month, due to
financial constraints, and
his father is very disappointed that he
could not go for his initiation during December 2011 due to the fact
that he was in custody.
He has a child who is only one year old, and
the mother has visited him once whilst he was in custody, as she too
struggles financially.
She described him as a caring and loving
person, although he had once assaulted her. The probation officer
concluded that the
accused would have been an ideal candidate for
correctional supervision, but for the offence committed and the fact
that he did
not take responsibility for the offence.
The accused all pleaded not guilty
to the charges. Accused no.2 was the only one who admitted to having
sex with the complainant,
although he pleaded that it had been
consensual. Accused no.’s 1 and 3 both relied on alibi
defences, but accused no.1’s
semen was found on samples taken
from the complainant, as were traces of semen from accused no.3. The
necklace was found in the
possession of accused no. 3 when he was
arrested. He alleged that he had found the necklace on the pavement
on his way back from
school, a week or two prior to the rape.
Rape is a serious crime, and as
argued by Mr Nyendwana, for the state, is prevalent in this area. I
agree with counsel for the
accused that the relative youth of the
accused is a mitigating circumstance, as is the fact that alcohol
probably played a major
role. The offences appear to have been
committed on the spur of the moment and although the threat of force
was used, no violence
was committed or injuries caused, other than
the psychological injuries which are inevitably incurred by the
victims of these
attacks. Whilst it is the duty of courts to punish
criminals, that punishment must also be meted out with a sense of
mercy and
the fact that the accused are all first offenders, taken
into consideration with their relative youth, are also factors which
must be considered.
However, rape under these
circumstances attract a mandatory minimum sentence of life
imprisonment, unless substantial and compelling
circumstances
indicate that it is inappropriate.
In
S
v Jansen
1
,
Davis J commented as follows on the rape of a child and these
comments are as appropriate to the current circumstances, where
the
complainant was only 17 years old.:
“Rape of a child is an appalling and perverse abuse of male
power. Its strikes a blow at the very core of our claim to be
a
civilised society. The community is entitled to demand that those who
perform such perverse acts of terror be adequately punished
and that
the punishment reflect the societal censure.
It is utterly terrifying that we live in a society where children
cannot play in the streets in any safety; where children are
unable
to grow up in the kind of climate which they should be able to demand
in any decent society, namely in freedom and without
fear. In short,
our children must be able to develop their lives in an atmosphere
which behoves any society which aspires to be
an open and democratic
one based on freedom, dignity and equality, the very touchstones of
our Constitution. The community is entitled
to demand of the police
that they bring those who subvert these minimum aspirations before
the courts and that the courts, in punishing
such persons, should
ensure that the sentences adequately reflect the censure which
society should and does demand, as well as
the retribution which it
is entitled to extract.”
In
S
v Chapman
2
,
Mahomed CJ, said the following about rape:
“
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 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 the 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.”
3
There is no doubt that all law
abiding citizens will agree with the views of our late Chief
Justice. However, one must also temper
retribution and the natural
outrage one feels with a measure of justice and a weighing up of the
circumstances pertaining to
the actual crime and the individuals
concerned.
As pointed out
by Pickering J in
S
v Ntozini,
4
it is useful to compare similar cases when considering sentence and
also to bear the admonitions of the Supreme Court of Appeal
in mind,
in judgments such as
S
v Malgas:
5
“
Speculative
hypotheses favourable to the offender, maudlin sympathy, aversion to
imprisoning first offenders, personal doubts as
to the efficacy of
the policy implicit in the amending legislation, and like
considerations were equally obviously not intended
to qualify as
substantial and compelling circumstances.”
6
It is indeed
unfortunate that it is not difficult for me to compare sentences
which I have handed down in similar matters. The crime
of rape
fitting this profile seems to show no sign of abating.
Notwithstanding the harsh sentences being handed down our prisons
are
reportedly grossly overcrowded. With the population of prisoners
serving life sentences far greater than prior to the promulgation
of
the minimum sentencing legislation, and growing exponentially, it is
an unfortunate consequence of the legislation that unless
additional
prison space is created at an equal rate, that either the policy will
have to be reviewed by the legislature or the
courts will have to
take into account the deteriorating conditions in prison when
considering sentencing options, or else we will
be in danger of only
paying lip service to the principles contained in our Constitution,
when considering the rights of convicted
parties.
Mr Nyendwana,
for the State, argued that the 1
st
and 2
nd
accused should be sentenced to the maximum term of imprisonment.
Pickering J criticised the fact, in
Ntozini,
that the prosecution often persists in arguing in favour of life
imprisonment where it is abundantly clear that substantial and
compelling circumstances are present and that a sentence of life
imprisonment would never be imposed.
7
He pointed out that the imposition of sentence is one of the most
difficult and onerous duties imposed upon a judicial officer
and the
execution of those duties is not rendered any easier when obviously
unsustainable submissions are made by counsel, and
referred to
South
African Criminal Law and Procedure
8
in emphasizing the duty a prosecutor has to present the matter to
the court fully and fairly, to conduct the case with judicial
discretion and a sense of responsibility, as an officer of the court
charged with the serious duty of assisting the court to
arrive at
the truth.
The learned
judge went on to quote with approval from an unreported judgment of
Kroon J,
9
with whom Jones and Jansen JJ concurred. I have for the sake of
convenience numbered the points referred to by Kroon J:
“
The concept of
substantial and compelling circumstances has engaged the attention of
the courts on numerous occasions specifically
the Supreme Court of
Appeal in the matters of
S
v Malgas
2001
(1) SACR 469
(SCA)
;
S v
Fatyi
2001
(1) SACR 485
(SCA)
,
and the Constitutional Court in
S
v Dodo
[2001] ZACC 16
;
2001
(1) SACR 594
(CC)
.
Amongst the
principles
to be extracted from these decisions are the following:
In determining whether
substantial and compelling circumstances as envisaged in the section
are present the court must have regard
to all the factors
traditionally taken into account in the determination of a
discretionary sentence and
it is not limited to
circumstances which are exceptional or rarely encountered.
Nor are there (sic –
should be “these”) circumstances restricted to factors
that reduce the moral blameworthiness
of the convicted person.
In general, however,
it was the intention of the legislature to provide for a severe
standardised and consistent response from
the courts unless truly
convincing reasons exist and are so discernable for a different
response.
Stated differently the
prescribed sentences must in general be regarded as appropriate for
the specified offences and should not
be deviated from without
weighty justification.
Where on a conspectus
of all the relevant circumstances the court considers that the
imposition of the prescribed sentence would
work an injustice it is
entitled to categorise the circumstances as substantial and
compelling sufficient to justify the imposition
of a lesser
sentence.
The fifth principle illustrates the
forth and although it does not contain the words “it was the
intention of the legislature”,
it seems, because it
illustrates the forth principle, to follow that they should be
implied.
The
Constitutional Court, in
Dodo,
found
that the minimum sentencing legislation was not unconstitutional for
a number of reasons; firstly because a number of open
and democratic
societies around the world permit their legislatures to define
certain activities as criminal and to prescribe
specific punishments
for defined activities,
10
but most importantly, because of the reason that if the
determinative test in
Malgas
is
followed, that the implementation of the legislation would not lead
to unconstitutional results.
11
The fact that
the prescribed sentences should not be regarded as the norm was
emphasised by Nugent JA in
S
v Vilakazi
.
12
.
Malgas
and
Dodo
both
pointed out that it was the legislature that was of the view that
the prescribed sentences should ordinarily be imposed.
There is an
important distinction between the view of the legislature and the
view a judicial officer must take when considering
sentence, and it
is this distinction that must be kept in mind. The view of the
legislature must be accorded appropriate weight
but this is only
achieved if the law is interpreted in line with the judgements of
Malgas
and
Dodo.
Nugent JA made the distinction between the two positions quite clear
in
Vilakazi
when
he stated:
“
It
was submitted before us that in
Malgas
this court ‘repeatedly emphasised’ that the prescribed
sentences must be imposed as the norm and are to be departed
from
only as an exception. That is not what was said in
Malgas.
The submission was founded upon words selected from the judgment and
advanced out of their context. The court did not say, for
example, as
it was submitted that it did, that the prescribed sentences ‘should
ordinarily be imposed’. What it said
is that a court must
approach the matter ‘
conscious
of the fact that the Legislature has ordained
[the prescribed sentence] as the sentence which should
ordinarily
and in
the absence of weighty justification
be imposed for the listed crimes in the specified circumstances’
13
(the emphasis in bold is mine). In the context of the judgment as a
whole, and in particular the ‘determinative test’
that I
referred to earlier, it is clear that the effect of those
qualifications is that any circumstances that would render the
prescribed sentence disproportionate to the offence would constitute
the requisite ‘weighty justification’ for the
imposition
of a lesser sentence.”
14
Nugent JA went on to say the
following:
“
To
say that a court must regard the sentence as being proportionate
a
priori
and apply it other than in an exceptional case runs altogether
counter to both
Malgas
and
Dodo
.”
15
“
It is plain from
the determinative test laid down by
Malgas
,
consistent with what was said throughout the judgment, and consistent
with what was said by the Constitutional Court in
Dodo
,
that
a
prescribed
sentence cannot be assumed
a
priori
to be proportionate in a particular case
.
It cannot even be assumed
a
priori
that the sentence is constitutionally permitted. Whether the
prescribed sentence is indeed proportionate, and thus capable of
being imposed, is a matter to be determined upon a consideration of
the circumstances of the particular
case.
It ought to be apparent that when the matter is approached in that
way it might turn out that the prescribed sentence is seldom
imposed
in cases that fall within the specified category.
If
that occurs it will be because the prescribed sentence is seldom
proportionate to the offence. For the essence of
Malgas
and
of
Dodo
is
that disproportionate sentences are not to be imposed and that courts
are not vehicles for injustice
.”
16
(my emphasis)
“
I have pointed
out that the essence of the decisions in
Malgas
and
in
Dodo
is
that
a
court is not compelled to perpetrate injustice by imposing a sentence
that is disproportionate to the particular offence
.
Whether a sentence is proportionate cannot be determined in the
abstract, but only upon a consideration of all material circumstances
of the particular case, though bearing in mind what the legislature
has ordained and the other strictures referred to in
Malgas
. It
was also pointed out in
Malgas
that
a
prescribed sentence need not be 'shockingly unjust' before it is
departed from for '(o)ne does not calibrate injustices in a court
of
law. It is enough for the sentence to be departed from that it would
be unjust to impose it.
”
17
(my emphasis)
Nugent JA further clarified the
approach to be followed when interpreting
Malgas:
“
If the sentencing court on consideration of
the circumstances of the particular case is satisfied that they
render the prescribed
sentence unjust in that it would be
disproportionate to the crime, the criminal and the needs of society,
so that an injustice
would be done by imposing that sentence, it is
entitled to impose a lesser sentence.”
18
In
S
v Skoti,
19
a judgment of the Eastern Cape High Court by Jones J, with Pakade
and Dambuza JJ concurring, a life sentence for rape against
an 8
year old girl was substituted with a sentence of 20 years
imprisonment. The learned judge referred to
Vilakazi
as
support for the view that what was necessary, was a balanced
evaluation of all the relevant considerations taken as a whole,
both
aggravating and mitigatory, to see whether a sentence other than
life imprisonment would be just and appropriate, and that
it was
only where any lesser sentence would be inadequate that it could be
said that a sentence of life imprisonment would be
a just sentence.
In that case the aggravating features were the age of the
complainant, the physical gynaecological damage and
the serious and
permanent psychological trauma described in the report of the
clinical psychologist. The child had however shown
substantial
improvement since the rape. The learned judge agreed with Nugent
JA’s remark in
Vilakazi
that
to make the appellant pay for the crime for the remainder of his
life would be grossly disproportionate.
In S v Nkomo,
20
a judgment referred to me by Mr O’Brian, a life sentence was
set aside on appeal and a term of imprisonment of 16 years
substituted. The appellant in that case engaged in a series of
horrific rapes during the course of one night on the complainant,
forcing her to engage in oral sex, kidnapping her, keeping her
naked, after which she jumped out of the second floor of the house
where she was imprisoned, sustaining injuries, after which he again
raped her. The appellant was 29 years old and a first offender,
leading Cameron JA to conclude that his relative youthfulness and
lack of previous convictions warranted the conclusion that
substantial and compelling circumstances were present. Theron AJA,
in a dissenting judgment disagreed emphatically. I am however
bound
by the majority judgment and if a term of 16 years imprisonment was
appropriate in that case, then it is self-evident that
in this case
where the assault was far less abhorrent and where there can be no
argument that the accused were little more than
children, that a
lesser sentence would be appropriate.
The complainant was 19 years old at
the time of the attack and had a one year old child. She was solely
responsible for locking
the tavern at which she worked and one of
the probation officers intimated that the conditions under which she
worked were unjust
and that her employers should have at least
provided some assistance to her when closing. It is clear that she
provided an easy
target for criminals and that such criticism is
justified. She felt humiliated by having to recount the experience
in court where
she felt that the court did not believe her and that
the accused were laughing at her and delighting in her discomfort.
She has
not received counselling yet although it appears that she
will in the near future. The experience has impacted negatively on
her relationship with her boyfriend as she no longer enjoys normal
sexual relations and finds anyone with similar physical
characteristics
to those of the accused offensive. Mrs van der
Mescht, the Senior Probation Officer who interviewed her, felt that
with counselling,
the complainant would lead a normal life, although
she cautioned that sexual victims were similar to alcoholics, in
that constant
care is required. The complainant will require
counselling virtually for the rest of her life, and provided it is
provided, will
eventually be able to live a satisfactory and
fulfilling life.
I am bound to
interpret the minimum sentencing legislation in the light of the
judgments of
Malgas,
Dodo
and
Vilikazi,
and in doing so conclude that a sentence of life imprisonment in
this case would be sufficiently disproportionate to be unjust.
I am
of the view that the accused are candidates for rehabilitation and
whilst bearing in mind the abhorrent nature of the offence,
the kind
of sentence this crime would have attracted prior to the minimum
sentencing legislation, the views of the Legislature,
and the
principles of sentencing enshrined in
S
v Zinn,
21
and judgments such as
Nkomo,
I
am of the view that the sentences I am about to impose will be just
and will give effect to the competing interests we have
to try and
balance.
The first accused was the eldest of
the accused and should have played a responsible role. He clearly
would have had the authority
by virtue of his age to dissuade the
other younger accused from their actions if it had been them that
first initiated the attack.
It seems to me that by virtue of his age
he probably was the ring leader and that if it was not for his
actions that the crimes
would probably not have been committed. This
conclusion is supported by the evidence of the complainant who
identified him as
the one who first approached her, opened the knife
and held it to her whilst forcing her to the yard where she was
raped. He
was also the one who first raped her and also identified
by her as the one who took her necklace, even though it was found in
the possession of the third accused.
The second and third accused, by
virtue of their ages were probably impressionable and more likely to
go along with deviant behaviour
initiated by their elder co-accused.
This is especially so with regards to the third accused, who was
barely out of puberty.
Although it appears that it was the
first accused who actually took the necklace, the accused were all
found guilty of robbery
with aggravating circumstances on the basis
of the common purpose they formed with the first accused. Although a
weapon was wielded
and continued to play a role when the offence was
committed, the primary intention of the attack was clearly to rape.
The theft
of the necklace appeared to be an afterthought and to
order the sentences to run cumulatively would appear to a large
extent
to be punishing the accused twice for the same element of
what was a chain of events which appeared to be inextricably linked.
Those considerations on their own comprise substantial and
compelling circumstances which accordingly permit me to deviate from
the prescribed sentence. In addition thereto, all of the
considerations referred to above in respect of the rape, apply
equally
to the charge of robbery with aggravating circumstances.
In respect of the conviction of
rape the first accused is sentenced to fifteen years imprisonment
and the second and third accused
are each sentenced to thirteen
years imprisonment;
In respect of the convictions of
robbery with aggravating circumstances the first accused is
sentenced to five years imprisonment
and the second and third
accused are each sentenced to three years imprisonment;
The sentences in respect of the
rape and the robbery with aggravating circumstances are ordered to
run concurrently in respect
of all of the accused;
Five years in respect of the
sentences in respect of the rape convictions are suspended on
condition that the accused are not
convicted of the offence of rape
committed during the term of suspension;
No determination is made in respect
of
section 103
(1) (g) of the
Firearms Control Act No. 60 of 2000
in
respect of any of the accused.
____________________________________
L D KEMP
ACTING JUDGE OF THE HIGH COURT
Matter heard on : 10 April 2012
Sentence delivered on : 10 & 11
April 2012
Counsel for the State : Mr Nyendwana
Counsel for the Accused : Messrs
O’Brian, Joubert, Skepe
1
1999 (2) SACR 268
(C)
2
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA)
3
at 344 J – 345 D
4
2009 (1) SACR 42 (E)
5
2001 (1) SACR 469
(SCA)
6
at 477d-e
7
At p 49 (e – g)
8
vol
5 at 512.
9
S v Masikolo Sobanga,
CA&R
210/07
10
at paras 27 – 33;
11
at para 40
12
2009 (1) SACR 552
(SCA)
13
Para 25 at part B of the summary of its conclusions.
14
Para 16
15
Para 17
16
Para 18
17
Para 20
18
Para 25
19
Unreported judgment of the
Eastern Cape High
Court under case no CA 77/09, handed down on 23 October 2009.
20
2007 (2) SACR 198
(SCA)
21
1969 (2) SA 537
(A)
C:\_clients\e_l\ldk judgements\sentence\rape\PE\MZAYIFAZI AND TWO OTHERS.doc