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[2017] ZAECPEHC 50
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S v Nogodama (CC20/2017) [2017] ZAECPEHC 50 (17 October 2017)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
Case No: CC 20/2017
Date Delivered:
17/10/2017
In
the matter between:
THE
STATE
and
KWANELE
NOGODAMA
Accused
SENTENCE
MAKAULA
J:
A.
Introduction
[1]
The complainants are both from Limpopo. They came to Port Elizabeth
in the year 2016 to study. They had been in Port Elizabeth
for
about ten months when the incident occurred. On 19 October 2016
at about 18:00 they took a taxi to town. Instead
of taking them
to town, the accused drove to a dark place in some area in town.
He robbed them of their two cellular phones
plus a Tablet, the total
value of which was about R11 000.00. He threatened them with an
iron rod. After that, the
accused drove to a secluded open
field where he raped Ms C. at gunpoint. Thereafter, he took
them to his room at Kwazakele
Township. On arrival, he caused
Ms M. to suck his penis and subsequently had sexual intercourse with
her. After a while
he in turn requested Ms C. to suck his
penis. He raped her again for the second time. At all
material times, the complainants
did not consent to the sexual
intercourse. The following morning the accused took them to a
taxi rank where he left them.
[2]
Both complainants were taken to hospital. A forensic nurse examined
and found that they had vaginal injuries. The forensic
nurse
confirmed upon examination that Ms C. was a virgin at the time of the
incident.
[3]
Both complainants left Port Elizabeth on 21 October 2016. Ms M.
testified that at the end of the academic year she came
back to Port
Elizabeth to write her examinations. However, she failed her
examinations attributing that to the incident.
She testified
that she was badly affected by the ordeal to an extent that she does
not trust people anymore. She does not
feel comfortable using
public transport. She is anti-social and wants to be alone at
all material times. Currently
she is enrolled with the
University of Johannesburg. She was hysterical during her
testimony to an extent that the court
had to adjourn on numerous
occasions to allow her compose herself.
[4]
The same effects which she alluded to were reflected by a Clinical
Psychologist, Ms Monama Mpho who consulted with her.
She
observed thus:
“
Ms Shalati
presented with fear of going back to Port Elizabeth, she stated that
she feared for her life as she no longer felt safe,
though she
understands that she has to go as she is supposed to sit for her
end-year examinations. She stated that she is
still
experiencing nightmares, mild insomnia, and hypervigilance. She
stated that she receives a lot of support from her
family”.
[5]
Ms C. testified that the effect the raped had on her and her family
is insurmountable. Her mother has developed hypertension
and a
mild stroke as a result of the trauma. She testified that at
the time of the incident she was a virgin and was about
to attend a
culturally initiation school. She could no longer attend
because she is no longer a virgin. She testified
that she felt
cheap after the incident because she did not know that she would lose
her virginity in that manner. She has
since developed hatred
for men generally. She however, appreciated that not all men
are like the accused. She stated
that innocent men are
suffering because of the actions of the accused. She testified
that she lost an academic year.
Her fees were raised through a
loan which had to be paid by her parents. She further testified
that she could not persue
a degree of her dreams which was only
offered at NMMU. Ms C. shed tears throughout her testimony.
At some stage she
became very hysterical and sobbed uncontrollably
especially when the version of the accused was put to her.
[6]
Ms C. further received counselling from a social worker in Limpopo.
The report of the social worker reflects the following:
“
Psychological
wellbeing
:
The client’s psychological functioning seems to have been
affected. .During the first session she could not
concentrate
on the questions that I asked her. . . . She appeared to
be angry and forgetful as well. In our conversation
she would
repeat one sentence for more than once, and when the social worker
tries to follow up on what she has said, she would
forget what she
has said.
Emotional wellbeing
:
She appeared to be very angry when she was explaining how the rape
occurred. She said that she has anger towards any
other male
person whom she comes across.
Social wellbeing
:
Initially she did not want to open up about the rape. The
social worker explored further and she reported that since
the rape
she does not trust any other person. She even indicated that
she preferred to be alone. According to her,
she indicated that
she does not even want to be closer to her family members. She
reported that she walks and stays alone
even at the University of
Limpopo. Her level of trust to other people has been affected a
lot.
Physical impact
:
She is angry that her virginity has been violated by the person who
raped her. She felt her privacy has been violated
as she did
not give consent to the rapist to access her private parts. She
reported that after the rape she could not sleep
perfectly like she
used to, her eating pattern was also affected since she said that she
lost appetite. She also indicated
that she had lot of pains
around her waist after the incident.
Powerlessness
:
She felt powerless and helpless and the incident makes her to be very
suspicious and scared to interact with other people.
Spiritual wellbeing
:
The client reported that she finds it difficult to trust even the
male pastors as they remind her of the person who raped
her”.
[7]
The impact the offences had on the complainants is inexplicable.
They testified that from the time of kidnapping till
the following
day they cried and prayed for their lives not knowing what would
befall them. They could not run nor escape
because the accused
had been carrying a gun throughout, so they testified. Even if
they wanted to, it was at night and did
not know the area. Both of
them testified in camera because they could not testify in open
court.
[8]
The accused was in the service of the public. He used a taxi to
convey passengers. Most South Africans rely on public
transport
for commuting. The complainants boarded the taxi for a fare
expecting to be dropped at their destination. Little
did they
know that they would be put to such a trauma for more than ten hours.
The accused showed no mercy on them. He asked
them to perform
fellatio on him. He alternated in having sexual intercourse
with them in the presence of the other.
Ms M. testified that
when the accused had sexual intercourse with Ms C. the latter’s
head was on her lap. Ms C. was
crying uncontrollably even after
she had been threatened with a firearm by the accused to keep quite.
She had to use her
hands to close her mouth because she feared the
worst. The accused was undeterred by such actions. He
continued to
rape her.
[9]
The offences are serious. The accused did not show any remorse
throughout the trial. His defence is despicable in
the
circumstances of this case. He caused the complainants to
re-leave the events of the day by claiming that they willingly
went
to his home, agreed to the perform fellatio on him and had sexual
intercourse when he knew that was a blatant lie.
[10]
Rape of people especially women remains awful. It is more on
the increase despite the sentences handed down by our courts.
There is a public outcry clummering for a stop to the scourge of
rape. But that seemingly does not work. Rape is serious
and causes the victims untold physical and emotional trauma, like in
the instant matter. The accused knew about this because
after
he had raped both complainants he cried and apologised to them and
handed their belongings back. But out of nowhere, he suddenly
changed
his mind by demanding back the cell-phones and ordered Ms C. to
perform fellatio on him. He thereafter raped her
again at
gunpoint. She testified that the accused held the gun against
her head whilst he was raping her on the second occasion.
[11]
In sentencing the accused, I have to take into account his personal
circumstances. He was born on [...] 1998 and that
makes him 29
years old. He is not married but has four children who are six,
five, and three years old. The three year
olds are twins. The
first two children are born of different mothers. They are all
schooling and stay with the accused’s
grandmother who is about
90 years old. They survive on the grandmother’s pension
and the children’s grant which
they receive. The accused
left school at standard nine due to financial constraints. He
has no previous convictions
and no pending cases. He has been
in custody since his arrest.
[12]
Mr Bodlo submitted that the personal circumstances of the accused,
the fact that it appears from the witnesses that he smoked
drugs
before he raped them and the fact that he acted out of character
should be viewed as constituting substantial and compelling
circumstances justifying a departure from the minimum sentence of
life imprisonment. I disagree with this submission, for
the
reason that if one views the offence, the interest of the community
and the effect the crime had on the complainants and their
families,
the personal circumstances of the accused viewed in totality are far
outweighed. Ms C. was raped more than once
by the accused.
I therefore see no reason why I should deviate from the minimum
sentence. I therefore hand down the
following
sentences:
Count
1: Kidnapping, to
undergo 3 years imprisonment.
Count
2: Robbery with
aggravating circumstances, 15 years imprisonment.
Count
3: Rape, life
imprisonment.
Count
4: Rape, 15 years
imprisonment.
Count
5: Pointing of
anything which is likely to lead a person to believe it is
a firearm,
5 years imprisonment.
Count
6: Rape, life
imprisonment.
Count
7: Kidnapping, 3
years imprisonment.
______________________
M
MAKAULA
Judge
of the High Court
Counsel
for the State:
Adv I Cerfontein
Instructed
by:
National Director of Public Prosecution, Port Elizabeth
For
the Accused:
Mr X Bodlo
Instructed
by:
Legal Aid, Port Elizabeth
Dates
Heard:
10-17 October 2017
Date
Delivered:
17 October 2017