About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2013
>>
[2013] ZASCA 200
|
|
Magezi v S (247/13) [2013] ZASCA 200; 2014 (1) SACR 541 (SCA) (2 December 2013)
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
JUDGMENT
CASE NO: 247/13
Reportable
In
the matter between:
MASHAVA MICHAEL MAGEZI
…………………………………………………..
Appellant
and
THE STATE
………………………………………………………..........………
Respondent
Neutral
Citation:
Magezi v S
(247/13)
[2013] ZASCA 200
(02 December 2013).
Coram
:
NAVSA ADP, MAYA and SALDULKER JJA
Heard
:
26 November 2013
Delivered
:
02 December 2013
Summary:
Rape - Sentence -
Section 39(2)(a)(i)
of the
Correctional
Services
Act 111 of 1998
- Where an accused is convicted of two or more
offences and has been sentenced to punishment consisting of life
imprisonment and
other determinate sentences, such sentences or
sentence of imprisonment are subsumed under the life sentence - They
run concurrently
with the sentence of life imprisonment.
ORDER
On appeal from:
Limpopo
High Court, Thohoyandou (Makgoba AJ sitting as court of first
instance).
The
following order is made:
1.
The appeal against the
sentence succeeds to the following extent:
2.
The order of the court
below is set aside and substituted with the following order:
‘
(a)
On count one, the count of rape, the accused is sentenced to life
imprisonment.
(b)
On count two, the count of attempted murder, the accused is sentenced
to 10 years’ imprisonment.
The
sentence on count two is to run concurrently with the life sentence
on count one.’
JUDGMENT
SALDULKER
JA (NAVSA ADP et MAYA JA CONCURRING):
[1]
This
is an appeal directed against sentence only. It is before us with the
leave of the court below. On 3 September 2003 the appellant,
Mr
Michael Magezi Mashava (Mashava) and a co-accused were convicted in
the Limpopo High Court, Thohoyandou, by Makgoba AJ on one
count of
rape and one count of attempted murder. Each was sentenced to life
imprisonment for rape and a sentence of ten years’
imprisonment
was imposed in respect of the attempted murder conviction. The
sentences were ordered not to run concurrently.
[2]
In
argument, counsel for the State restricted his submissions to whether
the sentences imposed on the appellant should have been
ordered to
run concurrently. He rightly in my view did not challenge the finding
of the court below that there were no substantial
and compelling
factors on count one, the rape count that ‘justified’ a
lesser sentence. The complainant suffered a
most horrendous ordeal.
The facts in the paragraph that follows amply demonstrate this.
[3]
The
complainant, a 27-year old woman, was set upon by the appellant, his
coaccused and the father of her child (who passed
away in the
time between the incident and the trial), at 06h00 whilst on her way
to her place of employment. She was bundled into
a car, assaulted
therein and transported to a deserted place on a mountain where her
feet were tied and she was raped by the appellant
and his friends.
After she was raped, she was stabbed twice by the father of her
child, struck on her face with a rock by the appellant’s
co-accused and struck by the appellant on her head repeatedly with a
firearm. She was also kicked. She was made to lie face down
whilst
her attackers walked on her back. The complainant lost consciousness
and was abandoned by her attackers alongside a mountain.
She regained
consciousness a day later and crawled to a school where she sought
assistance. The police encountered her at the school,
wounded and
bloody. As a result of her injuries, the complainant spent four weeks
in hospital recovering from the injuries. It
is clear that she was
the victim of a savage attack that had no regard for her as a human
being.
[4]
In
convicting the appellant and his co-accused on the charge of
attempted murder, the court below reasoned that, because of the
nature and severity of the assaults they must have intended to kill
her because she knew them and could identify them. The court
below
took the view that they had left her for dead.
[5] In sentencing the appellant
and his co-accused Makgoba AJ in the court below described the rape
as ‘horrifying’.
He took into account that, for this type
of rape where
there
is more than one perpetrator, the minimum sentencing regime in terms
of
s 51(1)
of the
Criminal Law Amendment Act 105 of 1997
[1]
prescribed life imprisonment. The court below could find no
substantial and compelling circumstances to deviate from that
sentence.
Additionally, it could not see its way clear to making an
order in terms of which the sentence often years’ imprisonment
would run concurrently.
[2]
[6]
Section
39(2)
of the
Correctional Services Act 111 of 1998
stipulates that:
‘
Commencement,
computation and termination of sentences
(2
)(a)
Subject
to the provisions of paragraph
(b),
a
person who receives more than one sentence of incarceration or
receives additional sentences while serving a term of incarceration,
must serve each such sentence, the one after the expiration, setting
aside or remission of the other, in such order as the National
Commissioner may determine, unless the court specifically directs
otherwise, or unless the court directs that such sentences shall
run
concurrently but-
(i)
any determinate sentence
of incarceration to be served by any person runs concurrently with a
life sentence or with sentence of
incarceration to be served by such
person in consequence of being declared a dangerous criminal
: .
..’ (My emphasis.)
[7]
The
provision is clear. Any determinate sentence of incarceration imposed
in addition to life imprisonment is subsumed by the latter.
This is
logical and practical. A person only has one life and a sentence of
life imprisonment is the ultimate penal provision.
Section
39(2)(a)(ii)
provides for more than one life sentence imposed on a
person also to run concurrently. The effect of
s 39(2)(a)(i)
is that
the order by the court below that the sentences are not ordered to
run concurrently, is liable to be set aside.
[8]
Consequently,
the directive by the court below that the sentences imposed on the
appellant are not to run concurrently stands in
clear violation of
the aforegoing statutory provisions. There is really no need to order
such sentences to run concurrently, they
do so by operation of law,
and stating it in an order might well be superfluous. In the present
case the substituted order that
appears in the next paragraph
contains such an order for the sake of clarity.
[9]
In
the premises the following order is issued:
1.
The appeal against the
sentence succeeds to the following extent:
2.
The order of the court
below is set aside and substituted with the following order:
‘
(a) On count one, the count
of rape, the accused is sentenced to life imprisonment.
(b) On count two, the count of
attempted murder, the accused is sentenced to 10 years’
imprisonment.
The sentence on count two is to
run concurrently with the life sentence on count one.’
HK SALDULKER
JUDGE OF APPEAL
APPEARANCES:
FOR
APPELLANTS: Mr M Madima
Instructed
by:
Thohoyandou Justice Centre,
Thohoyandou
FOR
RESPONDENTS: Mr Nekhambele
Instructed
by
Deputy
Director of Public Prosecutions, Thohoyandou
[1]
Section 51(1) of the Criminal
Law Amendment Act 105 of 1997 (the Act) stipulates that:
‘Notwithstanding any other law ...
a regional court or a High
Court shall sentence a person it has convicted of an offence
referred to in Part I of Schedule 2 to
imprisonment for life. Part 1
of Schedule 2 of the Act includes rape when committed ‘in
circumstances where the victim
was raped more than once whether by
the accused or by any co-perpetrator or accomplice’ as an
offence which attracts the
minimum sentence of life imprisonment.
[2]
It is necessary to note that
although the complainant was subjected to this ordeal and the
appellant was convicted on two separate
charges they all arose from
one on-going event.