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[2023] ZAECELLC 24
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S v Madinga - Sentence (30/2022) [2023] ZAECELLC 24 (15 September 2023)
FLYNOTES:
CRIMINAL – Rape –
Sentence
–
Multiple
rapes over extensive period of time – Housebreaking with
intention to commit rape – Young complainants
– Modus
operandi included use of a knife, assault and threats – All
had suffered pain and injuries typical of
forceful, sometimes
repeated, sexual penetration – No substantial and compelling
circumstances that justify less severe
sentence – Life
imprisonment for each count of rape warranted.
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, EAST LONDON CIRCUIT COURT)
NOT
REPORTABLE
Case
no: 30/2022
In the matter between:
THE STATE
and
NKOSIKHONA
MADINGA
Accused
JUDGMENT ON SENTENCE
Govindjee J
[1]
Mr
Madinga was convicted of six counts of rape and one count of
housebreaking with the intent to commit rape. The state argued for
the imposition of life sentences in respect of each of the rape
convictions.
[1]
[2]
The incidents occurred over an extensive
period of time. NN, who was 15 years old at the time, was raped
during March 2011 after
being assaulted and threatened with a knife
(count 1). She had been frightened and upset and suffered injuries
consistent with
forceful sexual penetration. NB (count 2), aged 18,
had ended a relationship with Mr Madinga, only to be assaulted with a
sjambok
in a way that caused her to bruise, threatened with a knife
and painfully raped four times on 13 July 2012. SF (count 7) was
threatened,
dragged from the safety of her home and raped more than
once in the early hours of 29 January 2017, first in an open field
and
then in her home. She was subdued by being grabbed by her throat
and shown a fixed-blade knife in the field, causing her to encourage
Mr Madinga to take her back to the relative safety of the home where
she was raped again, suffering concomitant injuries. Some
six months
later, Mr Madinga and another man, acting in cahoots, raped MF (count
10) and LT (count 11) after the other man produced
a knife in the
taxi in which they had travelled. Finally, some ten days later, Mr
Madinga raped MM (count 17) on the side of a
road, again inflicting
injuries typical of forceful sexual penetration on his victim.
[3]
Considering
the circumstances, a discretionary minimum sentence of life
imprisonment is prescribed by legislation for the rape convictions
in
counts 1, 2, 7, 10 and 11 unless substantial and compelling
circumstances justify a less severe sentence.
[2]
[4]
In
determining whether substantial and compelling circumstances exist to
justify the imposition of a less severe sentence than that
prescribed, all the factors traditionally considered by courts in
imposing sentence must be taken into account.
[3]
Broadly speaking, these involve a consideration and balancing of the
nature and seriousness of the crimes, the personal circumstances
of
the accused and the interests of society.
[4]
[5]
The
nature and seriousness of the crime of rape, and society’s
disgust at its prevalence, requires little amplification. Rape,
as
has repeatedly been emphasised by our courts, involves a horrific
invasion of the dignity and security of the person of the
victim.
There are also various other dimensions to be considered. For
example, as Mathopo AJ held in
S
v Tshabalala
:
[5]
‘
The
facts of this case demonstrate that for far too long rape has been
used as a tool to relegate the women of this country to second-class
citizens, over whom men can exercise their power and control, and, in
so doing, strip them of their rights to equality, human dignity
and
bodily integrity. The high incidence of sexual violence suggests that
male control over women and notions of sexual entitlement
feature
strongly in the social construction of masculinity in South Africa.
Some men view sexual violence as a method of reasserting
masculinity
and controlling women.’
[6]
Certain features of the offences already
described escalate the seriousness of some of the offences committed.
In particular, the
wielding of a sjambok or display of a knife, and
the associated threat was a feature of some of the offences. All of
this was designed
to induce submission to the sexual act(s) that
followed.
[7]
The effect of the crimes on those victims
who testified emerged during the trial. All had suffered pain and
injuries typical of
forceful, sometimes repeated, sexual penetration.
Sadly, considering the prevalence of the offence in the country,
little needs
to be said about the well-documented psychological
impact of being subjected to this grotesque form of violation and
infringement
of dignity, bodily integrity and security of the person.
In the case of the complainant in count 1, this included violation of
her rights as a child. Despite her attempts to resist Mr Madinga, she
was assaulted with the branch of a tree, threatened with a
knife and
raped without a condom while she cried. The complainant in count 2
was effectively held hostage on the evening in question,
during which
time she was raped four times. This after having been assaulted with
a sjambok and threatened with a knife. The complainant
in count 7 was
threatened, thrown out of a window, held by her throat and dragged to
a veld where she was raped, with a knife placed
on the ground close
by. In counts 10 and 11, a knife had been wielded by a person acting
in concert with Mr Madinga, and he took
his turn to rape each of the
complainants after the other man had finished.
[8]
The personal circumstances of Mr Madinga
were placed before me by
Mr Erasmus
,
who appeared for him. He was born on 10 December 1989 and had
completed grade 8. Unmarried, he had fathered two children aged
3 and
12, and ran his own business selling meat at the time of his arrest.
Mr Madinga’s mother passed away when he was only
14 years of
age. He has managed to maintain a close relationship with his father
and bore the responsibility of taking him to the
doctor when
necessary. Being in custody for some two years, since his arrest, has
adversely impacted this arrangement. Sadly, that
is an unavoidable
consequence of his own conduct.
[9]
Strange
as it may appear, it is accepted that Mr Madinga was a first offender
and had no prior convictions at the time he committed
each of the
offences for which he was convicted. He has been treated as such for
purposes of sentence in respect of all counts,
although there is
authority that immediately negates this consideration based on the
extent of the criminal spree under consideration.
[6]
This, together with his relative youthfulness (by my calculation he
was 21 years of age when he raped NN and 22 years of age when
he
raped NB, but over 27 years of age when he committed the remaining
rapes), and testimony that he was unaware of the age of his
first
victim, are the only factors cited as substantial and compelling.
Indeed, little more could be said in Mr Madinga’s
favour.
[10]
As
Mr Mgenge
noted, the argument in respect of possible consensual intercourse,
the second time around, in count 7, has already been rejected
in the
judgment on conviction. Counsel did try to suggest that the state was
at least partly to blame for what followed, by not
acting with due
alacrity in prosecuting the first charge. In the absence of any
authority in support, that argument clutches at
straws and ignores
the realities of criminal prosecution in this country. While I agree
that there is no place for heavy-handed
sentences to be used to
punish one criminal excessively in order to deter others, the state’s
failure in apprehending and
prosecuting Mr Madinga sooner cannot
count in his favour in the present proceedings.
[11]
I am mindful that Mr Madinga has been in
custody for a two-year period. He pleaded not guilty, resulting in
all but one of his complainants
being required to testify and relive
their experiences at his hands, and displayed no remorse for his
conduct or its impact. I
have also again given consideration to the
question of the modicum of mercy, and its place, if any, in the
present circumstances.
[12]
The
sentences prescribed by the Act are to be regarded as the sentences
that are ordinarily appropriate, unless there are and can
be seen to
be ‘truly convincing reasons for a different response’.
While courts are enjoined to temper punishment with
a measure of
mercy, departures from prescribed sentences are not to be made
lightly and for flimsy reasons.
[7]
I am also cognisant that a finding of an absence of substantial and
compelling circumstances will result in the gravest of sentences
being passed and that the consequences of this are profound,
effectively removing an individual from society.
[8]
[13]
The
nature of the offences, including rape of a child (count 1),
instances where the victim was ‘raped more than once’
(counts 2 and 7), the propensity to use force or the threat of force
to subdue the victims (counts 1, 2 and 7), and the circumstances
of
the rapes by more than one person acting in the execution or
furtherance of a common purpose (counts 10, 11) has been detailed
in
the judgment on conviction and summarised, above. These are offences
for which the prescribed minimum sentences is life imprisonment.
[9]
The circumstances of their commission coupled with the interests of
society far outweigh Mr Madinga’s personal circumstances,
which
are, if anything, ordinary mitigating circumstances in terms of our
law, rather than ‘substantial and compelling’
circumstances.
[10]
I am
consequently unable to find that substantial compelling circumstances
exist to justify a less severe sentence than life imprisonment
in
respect of each of counts 1, 2, 7, 10 and 11. I do not consider the
imposition of these sentences to be disproportionate to
these crimes
when considering the relevant factors.
[14]
In
respect of the conviction of housebreaking with intention to commit
rape (count 6), Mr Madinga is sentenced to three years’
direct
imprisonment, to run concurrently with the sentence in respect of
count 7.
[11]
[15]
In
respect of count 17, a discretionary minimum sentence of 10 years is
applicable.
[12]
Again there
are no substantial and compelling circumstances to warrant a lower
sentence. Any sentence over and above the prescribed
minimum is not
to be imposed lightly or without serious reflection. That Mr Madinga
had no prior convictions at the time he committed
this offence is,
following
S
v Coetzee
,
negated by the overall conspectus of his conduct.
[13]
It must also be noted that the victim did not testify in this
instance. Considering all the circumstances, including the nature
of
the crime, the interests of society and the time already spent in
custody, I consider a sentence of 20 years’ imprisonment
to be
appropriate in respect of this count. This sentence automatically
runs concurrently with the sentences of life imprisonment.
Given the
nature of the offences, various other consequences emanating from
legislation follow. These have been included as part
of the order to
follow.
[16]
The following sentence is imposed:
a.
In respect of count 1 (rape of ‘NN’),
the accused is sentenced to life imprisonment.
b.
In respect of count 2 (rape of ‘NB’),
the accused is sentenced to life imprisonment.
c.
In respect of count 6 (housebreaking with
intent to commit rape), the accused is sentenced to three years’
imprisonment, to
run concurrently with the sentence in respect of
count 7.
d.
In respect of count 7 (rape of ‘SF’),
the accused is sentenced to life imprisonment.
e.
In respect of count 10 (rape of ‘MF’),
the accused is sentenced to life imprisonment.
f.
In respect of count 11 (rape of ‘LT’),
the accused is sentenced to life imprisonment.
g.
In respect of count 17 (rape of ‘MM’),
the accused is sentenced to 20 years’ imprisonment, to run
concurrently
with the sentences of life imprisonment.
h.
In terms of
s 50(2)
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007
, the
particulars of the accused, as a convicted sexual offender, must be
included in the National Register for Sex Offenders.
i.
In terms of
s 120(4)
of the Children’s
Act 38 of 2005 and
s 41
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
, the accused is declared to
be unsuitable to work with children, and it is directed that his
particulars be entered in Part B of
the National Child Protection
Register.
j.
In terms of
s 103(1)
of the
Firearms
Control Act 60 of 2000
, the accused is declared unfit to possess a
firearm.
_________________________
A GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard:
30 August 2023
Delivered:
15 September 2023
Appearances:
Counsel
for the State:
Adv S. Mgenge
Director of Public
Prosecutions
Makhanda
046 602 3000
Counsel
for Accused:
Adv A. Erasmus
Legal Aid of South
Africa
King William’s Town
043 604 6600
[1]
The
court is alive to changes to the Criminal Law Amendment Act, 1997
(Act 105 of 1997) (‘the Act’) (including amendment
to
Part I of Schedule 2 of that Act in respect of the applicability of
a prescribed minimum life sentence for rape in certain
circumstances) brought about by the Criminal and Related Matters
Amendment Act, 2021 (Act 12 of 2021). The latter Act came into
operation on 5 August 2022, before this trial started. In
approaching the matter on the basis of the legislation in its
previous
iteration, which is the manner in which arguments on
sentencing proceeded in court, the court relies on the majority
judgment
in
Veldman
v Director of Public Prosecutions, Witwatersrand Local Division
2007 (3) SA 210
(CC) para 18, and s 35(3)
(n)
of the Constitution. Although strictly speaking ‘the
prescribed punishment’ for the offence has not been changed
by
the amendment, the applicability of the prescribed punishment has
been extended (for example to include cases of rape of children
older than 16). Adopting an approach in favour of the accused
person, and cognizant of the constitutional rights to a fair trial,
the applicability of the prescribed minimum sentence of life
imprisonment for rape is considered on the basis of the legislative
provisions as they stood at the time of the commission of the
respective offences. That being the case, at all material times,
the
relevant portions of Schedule 2, Part I may be taken to refer to:
‘Rape …
(a)
when committed (i) in circumstances where the victim was raped more
than once whether by the accused or by any co-perpetrator
or
accomplice; (ii) by more than one person, where such persons acted
in the execution or furtherance of a common purpose or
conspiracy; …
or
(b)
where the victim (i) is a person under the age of 16 years …’
[2]
S
51(1) of the Act, read with Part I of Schedule 2 as at the time of
the commission of the offences. In count 1, the victim was
a person
under the age of 16 years; in counts 2 and 7, the victims were raped
more than once by Mr Madinga; in counts 10 and
11, the evidence
showed that both victims were raped by more than one person, such
persons acting in the execution or furtherance
of a common purpose.
That the state would seek sentencing according to the Act for these
crimes was apparent from the charge
sheet and was common cause
during argument. In
S
v Tshabalala
2020 (2) SACR 38
(CC) (‘
Tshabalala
’),
the Constitutional Court confirmed the applicability of the doctrine
of common purpose to incidents of rape: paras 57-59,
63. The active
association of the perpetrators is detailed in the judgment on
conviction. In
M
v S
[2016]
ZAECGHC 32, in analogous circumstances to counts 10 and 11, the
court (per Majiki J and Roberson J) was satisfied that
the evidence
proved rape in furtherance of a common purpose despite the court a
quo not expressly making a finding in that respect.
As such, the
rapes were held to fit in with what was envisaged in Part I of
Schedule 2 of the Act. The same approach was adopted
in
Luzipho
v S
[2016] ZAECGHC 153. In that matter, Roberson J (Makaula J
concurring) considered the position where a magistrate had not
expressly
made a finding in the judgment on conviction as to rape by
more than one person acting in execution or furtherance of a common
purpose. The court was nonetheless satisfied that the state had
proved that the complainant was raped by more than one person
acting
in furtherance of a common purpose, so that the minimum sentence
legislation was applicable. Absent authority to the contrary,
this
court is bound by that approach. The relevant counts were also
argued by both counsel on the basis that the Act was applicable.
[3]
S
v Malgas
2001
(1) SACR 469
(SCA) (‘
Malgas
’)
paras 9 and 25.
[4]
Ibid
para 22.
[5]
Tshabalala
above n 2 para 1. At para 61, the learned judge concludes: ‘The
statistics sadly reveal that the minimum sentences have
not had
[the] desired effect. Violent crimes like rape and abuse of women in
our society have not abated. Courts across the country
are dealing
with instances of rape and abuse of women and children on a daily
basis. The media is in general replete with gruesome
stories of rape
and child abuse on a daily basis. Hardly a day passes without any
incident of gender-based violence being reported.
This scourge has
reached alarming proportions. It is sad and a bad reflection of our
society that 25 years into our constitutional
democracy, underpinned
by a Bill of Rights, which places a premium on the right to equality
and the right to human dignity, we
are still grappling with what is
a scourge in our nation.’
[6]
See
S
v Coetzee
2016 (1) SACR 120
(NCK) para 20.13. As the judgment of Kgomo JP
notes, this ‘is almost immediately rendered nugatory by the
accused’s
four-year harmful trade’. In the present
matter, the crime spree which forms the basis of the various charges
lasted in
excess of six years.
[7]
Malgas
above
n 3 para 9.
[8]
S
v Bull
2001
(2) SACR 681
(SCA) para 21.
[9]
In
respect of counts 2 and 7, see
S
v Maxabaniso
2015 (2) SACR 553
(ECP) paras 24-25.
[10]
See,
for example,
The
Director of Public Prosecutions, Grahamstown v TM
2020 JDR 0652 (SCA) para 11.
[11]
S
280(2) of the Criminal Procedure Act, 1977 (Act 51 of 1977).
[12]
In
terms of s 51(2)
(b)
of the Act, read with Part III of Schedule 2.
[13]
S
v Coetzee
above
n 6.