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2023
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[2023] ZAECMKHC 8
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S v Mantshongo (Sentence) (CC 53/2022) [2023] ZAECMKHC 8 (20 January 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION – MAKHANDA)
Case
No: CC 53/2022
In
the matter between:
THE
STATE
and
XOLISANI
MANTSHONGO
Accused
SENTENCE
MALUSI
J
:
[1]
An appropriate sentence must now be imposed after the accused was
convicted on four
(4) counts of rape and one count of robbery with
aggravating circumstances.
[2]
In respect of counts 1, 2 and 3 the
provisions of s51 of the
Criminal Law Amendment Act 105 of 1997 (the Act)
are not
applicable as the accused was a minor at the time of committing those
offences. The
provisions of s51(2)(a)
which prescribes a
minimum sentence of fifteen
(15)
years imprisonment find
application in count 4
(robbery). S51(2) of the Act
provides
for a minimum sentence of ten
(10)
years’ imprisonment
for the rape in count 5.
[3]
The legal position when considering a sentence for an offence within
the ambit of
the minimum sentence legislation was correctly described
in
S v Malgas
2001(2) SA 1222 (SCA) at paragraph 8 as ‘
no
longer business as usual’.
The Court is no longer given a
clean slate to impose whatever sentence it deems appropriate. The
Court is required to identify
and tabulate substantial and compelling
circumstances before it may depart from the ordained sentence.
[4]
The facts before court indicated that the complainant in counts 4 and
5 recognised
the accused on or about January 2021 as the person who
had raped and robbed her approximately three
(3)
years
earlier. A comparative
DNA
analysis linked the accused
to the rapes in counts 1, 2 and 3. The picture that emerges
from all the facts is that the accused
prowled the Golf course area
in
Fort Beaufort
preying on women that walked alone. He
would rape them after threatening them with a knife. If a
complainant resisted,
he used violence to overcome such resistance as
he did with the complainant in count 2.
[5]
Save for the rural setting, the facts in this case are awfully
similar to those of
S
v Chapman
.
[1]
The court aptly stated the following oft-quoted dictum:
“
The
rights to dignity, to privacy, and the integrity of every person are
basic to the ethos of the Constitution and to any defensible
civilization. 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”.
[2]
[6]
It has been stated that rape is an appalling and utterly outrageous
crime, gaining nothing
of worth for the perpetrator and inflicting
terrible and horrific suffering and outrage on the victim and her
family.
[3]
On another
occasion it was described as a repulsive crime, an invasion of the
most private and intimate zone of a woman and
striking at the core of
a person’s dignity.
[4]
[7]
Robbery, more especially with aggravating circumstances, is likewise
a serious offence.
The victim is not only dispossessed of her
property but endures a psychological trauma, anxiety and distress
from being threatened
with or infliction of violence. No
civilised society, as ours claims to be, can accept or condone this
type of offence.
[8]
The outrage in society regarding the crisis of epidemic proportions
in respect of
rape must be acknowledged by the courts. The
strong views in society regarding rape must be taken into account in
a just
and fair sentence. The interests of society require that
the weak among us must be protected.
[9]
It is not hard to imagine the horror and suffering endured by all the
victims in this
case. Our courts have long recognised the devastating
and deleterious effects of rape on the victims. The complainant
in
count 2 is reported by the clinical psychologist, Karen Andrews to
have suffered serious consequences. She suffered Rape Trauma
Syndrome
manifesting as shock and traumatic fear for her life. She suffered
acute startle reactions, intense headaches, chronic
insomnia and
intrusive flashbacks of her assault and rape. She suffers from
Post-Traumatic Stress Disorder. Her recovery
is complicated by the
medication she takes for sickle cell anaemia.
[10]
The complainant in counts 4 and 5 also suffered Rape Trauma
Syndrome. She is plagued by
chronic insomnia, nightmares,
intrusive thoughts, chronic forgetfulness, depressed and morbid mood.
She suffers from Post-Traumatic
Stress Disorder. Her family
relationships are negatively affected as she struggles to visit her
maternal home due to having been
attacked on that route.
[11]
All the victims were young women ranging in age from 15 years to 34
years. They were each going
about everyday routines when they crossed
the area where the accused conducted a reign of terror.
[12]
The accused is 26 years old. He was a mere 17 years when he committed
counts 1 to 3. He is single
with no dependants. He dropped out of
school in Grade 10 due to drug use. He has no previous
convictions. He was a casual,
seasonal employee on various farms in
Fort Beaufort
. Until his arrest he stayed with his
mother and sister.
[13]
Mr Soja
da, who appeared on behalf of the accused, submitted
that viewed cumulatively the following factors amount to substantial
and compelling
circumstances in counts 4 and 5:
13.1
the accused personal circumstances especially that he is 21 years
old;
13.2
his guilty plea manifests accepting responsibility for his action
which makes him a candidate for rehabilitation.
[14]
Mr Soga
, who appeared for the state submitted, correctly in my
view, that inherent in the accused conduct is disrespect for physical
integrity
and dignity of women. He subjected his victims to
cruel treatment. He had ample opportunity to reflect in between the
various
incidents but failed to do so.
[15]
It has been held that in cases of serious and violent offences the
personal circumstances of
the accused must recede into the
background. The elements of deterrence and retribution must
come to the fore. The accused
chronological age belies the fact that
he led an independent and mature life. There is no evidence of
immaturity on his part before
court.
[16]
His guilty plea is neutral factor. In my view he faced a closed
and shut case in that the
complainant recognised him and there was
forensic DNA evidence to corroborate her.
[17]
I have considered whether the discretionary minimum sentence is
disproportionate and unjust.
In my view these sentences are
just and fair in the circumstances of this case. The accused is
a serial rapist who is prone
to inflict gratuitous violence on his
victims. Women and girls need to be protected from him.
[18]
Women in this country should be allowed to enjoy their lives without
the spectre of the horror
of rape and violent crimes hovering over
them. The rights of women and children are enshrined in the
Constitution.
It is the duty of this Court to protect those
rights and will shirk from doing so.
[19]
The fair and just sentences are the following:
Count
1
: Rape
The
accused is sentenced to undergo ten (10) years’ imprisonment.
Count
2
: Rape
The
accused is sentenced to undergo ten (10) years’ imprisonment.
Count
3
: Rape
The
accused is sentenced to undergo ten (10) years’ imprisonment.
Count
4
: Robbery
The
accused is sentenced to undergo fifteen (15) years’
imprisonment.
Count
5
: Rape
The
accused is sentenced to undergo ten (10) years’ imprisonment.
Sentences
in counts 1, 2 and 3 are ordered to run concurrently so that the
accused serves an effective term of thirty-five (35)
years’
imprisonment.
T
MALUSI
Judge
of the High Court
Appearances
:
For
the State:
Mr Soga
instructed by
Director of Public
Prosecutions
MAKHANDA
For
the Accused: Mr Sojada
instructed by
Legal Aid Board
MAKHANDA
Heard
on: 18 & 19 January 2023
Delivered
on: 20 January 2023
[1]
1997 (3) SA 341 (SCA).
[2]
Ibid
Chapman
at
para 4.
[3]
S v
Nchenche
[2005] ZAGPHC 21
;
2005 (2) SACR 386
(W) at 395 H.
[4]
S v
Vilakazi
2009 (1) SACR 552
(SCA) at para 13.