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2023
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[2023] ZAFSHC 480
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Ngavu v S - Appeal (A88/2023) [2023] ZAFSHC 480 (9 November 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no: A88/2023
In the matter between:
MZWAKHE NGAVU
and
THE STATE
APPELLANT
RESPONDENT
CORAM:
MOLITSOANE, J et ZIETSMAN, AJ
JUDGMENT
BY:
MOLITSOANE; J
HEARD
ON:
06 NOVEMBER 2023
DELIVERED
ON:
09 NOVEMBER 2023
[1]
The Appellant was arraigned in the Regional
Court .
[2]
[3]
..
[4]
on two counts of rape, two counts of
kidnapping, and two counts of assault with intent to do grievous
bodily harm. He was acquitted
on the rape and kidnapping charges but
convicted on both counts of assault with intent to do grievous bodily
harm and sentenced
to 5 years’ imprisonment on the one count
and 10 years’ imprisonment on the other count. The court a quo
ordered that
the sentences should run concurrently. Aggrieved by the
sentences he successfully petitioned the Judge President and this
appeal
is with his leave.
[5]
The facts which led to the conviction are
briefly as follows: -
1)
At the time of these incidents, the
complainant was 16 years old and in a love relationship with the
appellant who was 20 years
of age.
The
Assault of 04 February 2019 – 24 February 2019.
2)
The complainant's evidence is that she
met the appellant in the street. The appellant requested her to
accompany him to his home.
She voluntarily went with him to his home.
They had consensual sex. Later, two friends of the appellant arrived.
The appellant
and his friends then smoked dagga. She asked the
appellant to take her home but he said he would take her after the
two friends
had left. After the friends had left, he refused to take
her home. He instructed her to go to the bedroom. She refused and he
pulled
and started assaulting her by slapping her. He also assaulted
her by beating her with a belt on her back and on her body.
3)
The complainant thereafter spent about 2
weeks at the home of the appellant against her will.
5)
On 25 February 2023, the complainant went to Tshepong Hospital where
she was examined by a forensic nurse.
The medical report compiled by
the forensic nurse was accepted by agreement into evidence and it
revealed that the complaint sustained
the following injuries:
“
abrasions
0.5 cm on the face and healing bruises on both eyes. 1.1 cm healed
extension from the back and 5.5 extension bruises on
the left arm”.
The
Assault of 9 April- 2019
[
3] The complainant testified that she was at her home
when the appellant came and asked her to accompany him to his
house.
She agreed on condition that the appellant would not deny her to
return to her home. They went to his parental home.
The
appellant locked the house after they had entered. He fetched
an iron rod and assaulted her all over the body. According
to the
medical report admitted into evidence, she sustained extensive
multiple bruises and abrasions on both arms; the eyes and
thighs,
head, and face were swollen. She apparently had a plaster on the left
arm during examination. According to her, she was
rescued by members
of the community and police a few days later.
[5]
The sentence imposed is assailed on the following grounds:
(a)
That the sentence is shockingly
inappropriate;
(b)
That the court a quo over-emphasised the
seriousness of the crime and the interests of the community over the
personal circumstances
of the Appellant;
(c)
By finding that direct imprisonment was
the only suitable sentence whereas the court a quo did not consider
correctional supervision;
(d)
The court a quo did not take the
personal circumstances of the appellant into account.
[6]
It is trite law that sentencing lies in the discretion of the trial
court. In the absence of a material misdirection
by the trial court,
a court exercising appellate jurisdiction cannot approach the
question of sentencing as if it were a trial
court and substitute the
trial court’s sentence simply because it prefers its own. What
the court has to consider is the
triad consisting of the crime, the
offender, and the interests of society. Punishment should thus be
individualised and fit the
offender while blended with mercy.
[7]
The personal circumstances of the accused were placed on record. In
my view, the most important are the age of the
appellant at the time
of the commission of the offences as well as the time spent in
custody while awaiting the finalization of
this trial. Both he and
the complainant were teenagers. He was 19 years of age while the
complainant was 16 as indicated above.
Ponnan JA in S v Matyityi
[1]
stressed that a person of 20 years or over had to show by acceptable
evidence that he or she was immature to the extent that immaturity
was a mitigation factor. It seems in my view the learned Judge in
this case seems to suggest that the person below the age of 19
was
considered immature. However, one has to bear in mind the remarks the
court in this case made when it said:
“
It
is trite that a teenager is prima facie to be regarded as immature
and that the youthfulness of an offender will invariably be
a
mitigating factor
unless
it appears that the viciousness of his or her deeds rules out
immaturity.
[2]
”
( my emphasis)In my view, this factor, weighed together with other
factors would greatly assist in weighing the possibility
of
rehabilitation of the appellant.
[7]
The appellant, though not a first offender, had no relevant
conviction. In his previous conviction, he paid
an admission of guilt
fine of R100 for possession of drugs. For the purpose of this case,
he has the benefit of being sentenced
like a first offender.
[8]
The period the appellant spent in custody before his conviction is
also a factor to be taken into account
in deciding whether the
sentence imposed is disproportionate or unjust. Turning to the
interests of society, it demands that gender
based violence be
confronted with the seriousness it deserves and appropriate sentences
are to be imposed for such offences. These
types of crimes are
prevalent in our society and rise exponentially on daily basis.
Decisive action to curb them is thus necessary.
[9]
While sentencing must be individualised and must fit the crime and
the offender, the violence perpetrated
by the appellant on a young
child demand that a heavy sentence be imposed. This fact that the
complainant was a young girl aggravates
the sentence to be imposed.
[10]
What is most disconcerting is the lack of remorse on the part of the
appellant. Looking at his version, he acknowledges
the assaults on
the complainant. What he disputes is the reasons why he assaulted
her. He seems to justify the assault on one or
other grounds which
does not raise any defence. In the first assault, he says he
assaulted her because he overheard her saying
to one Neo that he (the
appellant) did not satisfy her sexually. In the second assault, the
appellant says he assaulted her because
she had apparently had sexual
intercourse with his friend in another room which he was in a
separate bedroom.
[10]
Counsel for the appellant submits that the acknowledgment of the
assaults must be seen as a sign of remorse and thus
an indicator that
the appellant is a candidate for rehabilitation. I do not agree that
the appellant is remorseful. He pleaded
not guilty as he is
constitutionally entitled to. He went through a protracted trial
without any aorta of defence. He rather chose
to give excuses for his
conduct which in his view justified him assaulting the complainant.
Even if the trial court could have
found that he assaulted the
complainant under the circumstances he explained, that could hardly
give him the justification to assault
the complainant.
[12]
The appellant was not convicted on charges which attract prescribed
minimum sentences as envisaged in the
Criminal Law Amendment Act 105
of 1997
. In the first assault, the evidence reveals that the
complaint was assault with open hands and a belt. No evidence was led
as to
the type of belt used. The medical evidence accepted into
evidence do not show that the injuries sustained were sever or of a
permanent
nature. It appears that the complainant only sustained
abrasions and bruises. In our view, the sentence of 5 years’
imprisonment
in these circumstances is disproportionate to the crime
committed and is thus unjust.
[3]
The record reveals the abuse of the complainant by the appellant. It
appears, however, that the complainant and
the appellant were a bad
combination who could not stay away from each other. The second
assault was more sever. The weapon used
was more dangerous than the
belt used in the first assault. The appellant used an iron rod to
assault the complainant. She sustained
multiple injuries and also had
a plaster on. She was so badly beaten that she was found lying on the
floor. She spent two weeks
in hospital. Much as the circumstances of
this case demanded that the appellant be sentenced to an imprisonment
term, in our view
10 years in prison is excessive and this demands
our interference. I accordingly order as follows:
ORDER
1.
The appeal against the sentence is
upheld’
2.
The sentences imposed by the court a quo
are set aside and substituted with the following:
i.
Count 2 (Assault with intent to cause
grievous bodily harm), the accused is sentenced to 6(six) months
imprisonment;
ii.
Count 5 (Assault with intent to cause
grievous bodily harm), the accused is sentenced to 5(five) years
imprisonment;
iii.
In terms of
s280(2)
of the
Criminal
Procedure Act 51 of 1977
, the sentence in count 5 shall run
concurrently with the sentence in count 2;
iv.
The sentences in count 2 and 5 are
ante-dated to 9 June 2022.
P.
E. MOLITSOANE, J
I agree
PJJ ZIETSMAN, AJ
On
behalf of the Appellant:
Ms
V.C Abrahams
Instructed
by:
Legal
Aid of South Africa
BLOEMFONTEIN
On
behalf of the Respondent:
Adv.
S Giorgi
Instructed
by:
The
Deputy Director of Public Prosecutions
BLOEMFONTEIN
[1]
2011(1) SACR 40 para14.
[2]
Matyityi(supra) at para 14- footnotes omitted.