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[2011] ZASCA 176
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Director of Public Prosecutions, North Gauteng, Pretoria v Thusi and Others (769/2010) [2011] ZASCA 176; 2012 (1) SACR 423 (SCA) (29 September 2011)

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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 769/2010
In the matter between
DIRECTOR OF PUBLIC PROSECUTIONS,
NORTH GAUTENG, PRETORIA
…..................................................................
Appellant
and
THULANI SIBUSISO THUSI
…............................................................
First
Respondent
PROMISE LUCKY MATHEBULA
…..............................................
Second
Respondent
SIPHIWE NGWENYA
….....................................................................
Third
Respondent
Neutral
citation:
DPP v Thusi
(769/10)
[2011] ZASCA 176
(29
September 2011)
Coram:
MTHIYANE, VAN HEERDEN and SHONGWE JJA
Heard:
6 September 2011
Delivered: 29 September 2011
Summary:
Sentencing – appeal by DPP in
terms of
Section 316B
of the
Criminal Procedure Act 51 of 1977
–
rape and murder – substantial and compelling circumstances in
terms of
s 51(3)
of the
Criminal Law Amendment Act 105 of 1997
not
present – sentences imposed by trial court set aside and
replaced with minimum sentences of life imprisonment
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
South Gauteng High Court
(Johannesburg) held in Delmas (Khampepe J sitting as court of first
instance):
The appeal is upheld. The sentence imposed by the court
below is set aside and replaced with the following:
‘
1. The second accused is sentenced to life
imprisonment on the rape charge (count 2).
2. All three accused are sentenced to life imprisonment
on the murder charge (count 4).
3. All the other sentences imposed on the accused shall
run concurrently with the life imprisonment.’
___________________________________________________________________
JUDGMENT
SHONGWE JA (MTHIYANE, VAN HEERDEN JJA concurring)
[1] This appeal is brought by the Director of Public
Prosecutions (DPP), in terms of
s 316B
of the
Criminal Procedure Act
51 of 1977
, against the sentences imposed on the respondents by
Khampepe J, sitting in the circuit court of the South Gauteng High
Court (Johannesburg)
held in Delmas. The appeal is with the leave of
this court.
[2] The three respondents were convicted and sentenced
on various counts. For the purposes of the present appeal, the only
relevant
convictions are on count 4 (murder), in respect of all three
respondents, and on count 2 (rape – involving the infliction
of
grievous bodily harm), in respect of the second respondent. On the
murder count, all three respondents were sentenced to 15
years’
imprisonment, while on the rape count, the second respondent was
sentenced to 18 years’ imprisonment. The appeal
by the DPP
relates only to these sentences.
[3] As will be seen below, the minimum sentence for each
of these offences is life imprisonment. The only question for
adjudication
before us is whether the trial court misdirected itself
in its finding that substantial and compelling circumstances existed
in
respect of the murder charge (as regards all three respondents)
and the rape charge (in respect of the second respondent only),

justifying the imposition of a lesser sentence than the minimum
sentence.
[4] It is necessary to set out a brief backdrop of the
facts leading to these sentences. The first incident was on 30 March
2005
when the three respondents unlawfully broke into and entered the
house of Mrs Margaret McKnight, then 84 years old, in her absence.

When she returned to her home, in the company of her elderly helper,
Ms Masango, the three respondents were still on the premises.
They
attacked the two women and assaulted them. The second respondent
raped Mrs McKnight in one of the bedrooms. As a result
she
sustained severe physical injuries and profound psychological trauma.
The respondents ransacked the house, demanded money and
eventually
removed certain items such as a television set and jewellery.
[5] Seven days later, on 7 April 2005, the same trio
unlawfully broke into and entered the house of Mr Dos Santos Andrade
(the deceased),
then 64 years old, in his absence. When he returned,
they attacked and assaulted him, tied his hands behind his back,
pushed a
sock into his mouth and strangled him with an electric cord.
He died as a result of suffocation by strangulation. They removed
certain items, including a .32 Rossi revolver, a watch and his motor
vehicle.
[6] The first respondent did not testify, nor did he
tender any evidence on his behalf. The second respondent testified
and admitted
his participation in the incident at Mrs McKnight’s
house but totally denied his presence at Mr Andrade’s house. He

pleaded an alibi. The third respondent also testified, stating that
he had broken into Mrs McKnight’s house by himself and
had
stolen goods from that house. For the rest, he exculpated himself
save for admitting his presence at Mr Andrade’s house.
[7] During the proceedings on sentence, the State
tendered the evidence of Dr Spyne, a gynaecologist. She
testified as
to the seriousness of the injuries sustained by Mrs
McKnight after the rape. Mrs McKnight had severe vaginal bleeding and
it was
critical for her to undergo an operation to stop the bleeding.
She sustained severe tears next to the urethra opening and an equally

severe vaginal tear of about 4cm, all of which required suturing. Dr
Spyne noticed severe bruising all the way around Mrs McKnight’s

neck and bruising right around her left upper arm. The court a quo
found that this type of rape resides under
Part 1
of Schedule 2 to
the Criminal Law Amendment Act 105 of 1997 (the Act), viz rape
involving the infliction of grievous bodily harm.
In terms of s 51(1)
of the Act, the minimum sentence for this offence is life
imprisonment.
[8] The murder of Mr Andrade was found to have been
committed during the course of a robbery with aggravating
circumstances. This
being so, it falls within the ambit of Part 1 of
Schedule 2 and, in terms of s 51(1) of the Act, the minimum sentence
for this
offence is life imprisonment.
[9] The trial court found that there were, in the case
of all three respondents, substantial and compelling circumstances
justifying
the imposition of a lesser sentence than life
imprisonment. These substantial and compelling circumstances were the
relative ages
of the respondents and their good prospects of
rehabilitation. As regards the first respondent, the fact that he had
assisted the
police with the investigation of the offence also
weighed with the trial court. As regards the murder count, Khampepe
J, with reference
to
S v Ndlovu
2002 (2) SACR 325
(SCA),
regarded the fact that the state proved only oblique intent to kill
(
dolus eventualis)
as a mitigating factor of substance.
[10] During argument the state contended that the
evidence showed that the respondents planned in advance to break into
the relevant
houses and, if any resistance was encountered, to kill
the victims, if necessary. According to the State, the failure by the
court
a quo to make this finding was a misdirection which justifies
this court in interfering with the sentences. The State also pointed

out that the victims in both the murder and rape counts were
defenceless old people who could not offer any resistance to attack.

They were so-called ‘soft targets’. For example, in
respect of the rape charge, the complainant was 84 years old at
the
time of the rape. She was attacked and raped in the safety of her
home which she had made attempts to secure with burglar bars.
In
respect of the the murder charge, the deceased was an old man of 64
years, who was unarmed, attacked by three young, strong
and
able-bodied men. He was also attacked in the safety of his own home
which he had secured with an electric fence. He was strangled
and
tied with an electric cord and left for dead. The State submitted
that the court below misdirected itself by placing undue
emphasis on
the youthfulness of the respondents and over-emphasised the
respondents’ prospects of rehabilitation at the expense
of the
seriousness of the crimes and the interests of society.
[11] This court has to decide whether, given the facts
of this case, the trial court was correct in its conclusion that
substantial
and compelling circumstances as contemplated by that
expression, were indeed present. As was pointed out by Ponnan JA in
S
v Matyityi
2011 (1) SACR 40
(SCA) para 11:
‘
S v Malgas
is
where one must start. . .
Malgas,
which has since been
followed in a long line of cases, set out how the minimum sentencing
regime should be approached, and in particular
how the enquiry into
substantial and compelling circumstances is to be conducted by a
court. To paraphrase from
Malgas
:
the fact that Parliament had enacted the minimum sentencing
legislation was an indication that it was no longer “business

as usual”. A court no longer had a clean slate to inscribe
whatever sentence it thought fit for the specified crimes. It
had to
approach the question of sentencing, conscious of the fact that the
minimum sentence had been ordained as the sentence which
ordinarily
should be imposed, unless substantial and compelling circumstances
were found to be present.’ (Footnotes omitted.)
[12] Regarding the rape charge, the court below, in
sentencing the respondents, found that the complainant suffered
grievous bodily
harm, and that the rape ‘has the hallmark of
seriousness, which is savagery’. Mrs McKnight was clearly in
great anxiety
and distress while testifying. Before the rape, the
second respondent had pressed a knife to her throat and had
threatened to kill
her. He throttled her with his hands while he was
raping her. She could not breathe. The second respondent also
threatened to ‘cut’
her. According to her neighbour, she
did not want to be touched after the rape. Her trousers had been
completely ripped open. She
could not return to her home, where she
had lived for more than 30 years, after the incident. Her daughter
testified that the house
had had to be sold at a loss and everything
packed up within an 8-hour period. At the time of testifying, more
than two years after
the incident, she felt ‘terrible’.
Her helper, who was 63 years old, was also assaulted. She had been
with Mrs McKnight
for 40 years, but it would seem that she lost her
job in the aftermath of the incident. Mrs McKnight’s extensive
physical
injuries have been referred to above.
[13] The social worker who compiled a victim impact
report in respect of Mrs McKnight testified that she was
reported to have
been experiencing constant headaches which she did
not have before the incident. She was terrified and hysterical two
years after
the rape. She seemed very embarrassed and ashamed of what
had happened. When she had to face or recall the events which led to
her trauma, she blocked them out psychologically. She was physically
and emotionally traum atised. She was suffering from nightmares
and
was always scared. She was experiencing panic attacks, nervous
tension and lack of emotional control. She still needed counselling

two years after the rape. In short, the psychological trauma suffered
by Mrs McKnight was profound and ongoing.
[14] The court below found that the second respondent
behaved ‘like a sex savage’. The following extract from
his testimony
is revealing:
‘
Now why was it necessary
for you to rape such an old vulnerable lady? – Yes, I also
asked myself such questions, and myself
could not understand why I
did so.’
[15] Mr Andrade was cruelly and callously murdered in
cold blood. His wife clearly suffered enormous trauma when she found
him lying
on the ground, tired up with ‘wires’ and with
‘a stocking’ in his mouth. She tried to help him but,
when
she saw the mess in the house, she realised that he had been
murdered during the course of a robbery. She broke down sobbing in

the witness box as she testified that she could never go back to that
house again. The incident had effectively ruined her life.
Not only
did she lose her husband of 39 years and her home, but she also lost
her job because she could not concentrate. She was
suffering from
depression and nightmares and could not sleep. She could not live on
her own and had been living in various different
houses since the
incident.
[16] At this stage, I record the ages of the respondents
at the time of the commission of the offences and their personal
circumstances.
As the argument in mitigation does not form part of
the record, these can be gleaned only from the judgment on sentence
of the
trial court. The first respondent was 25 years old at the
time. He had a previous conviction for receiving stolen property. He
is single with no dependants. He had passed grade seven at school and
was self-employed as a basket maker at the time of his arrest.

According to the trial court, the second respondent was 20 years old
at the relevant time. According to the charge sheet, however,
he was
23 years old. He had a previous conviction for housebreaking and
theft. He too is unmarried with no dependants. The third
respondent
was 20 years old at the time of commission of the offences. Like the
other respondents, he is unmarried with no dependants.
He is a first
offender.
[17] As indicated above, the court took into account, in
favour of all three respondents, their ‘relative youthfulness’.

However, none of the respondents demonstrated immaturity, nor was it
evident that any one of them was subjected to peer or undue
pressure
by one or both of the others. On the contrary, their conduct showed a
brutality that is quite inconsistent with immaturity.
Both on the
rape count and on the murder count, it was argued for the respondents
that no evidence existed that the housebreakings
were planned to an
extent which included the understanding that anyone offering
resistance would be killed. It was contended that
their
modus
operandi
was to target houses where nobody was present. This
argument must be weighed against the fact that they were armed with
knives
and made no attempt to flee when the owners returned. The
evidence shows that their intention was to confront resistance, which

was foreseeable, with force. If they only had the intention to steal,
then it was certainly not necessary for the respondents to
have raped
Mrs McKnight, assaulted Ms Masango or killed Mr Andrade, all elderly
people who offered no resistance. The method of
operation in the two
incidents was similar in all respects. The motive behind these
offences was purely financial and personal
gratification.
[18] The trial court considered that the personal
circumstances and the relative ages of the respondents showed that
they presented
good prospects of rehabilitation. However, as was
pointed out by Nugent JA in
S v Swart
2004
(2) SACR 370
(SCA) para 12:
‘
[I]n our law retribution
and deterrence are proper purposes of punishment and they must be
accorded due weight in any sentence that
is imposed. Each of the
elements of punishment is not required to be accorded equal weight,
but instead proper weight must be accorded
to each according to the
circumstances. Serious crimes will usually require that retribution
and deterrence should come to the
fore and that the rehabilitation of
the offender will consequently play a relatively smaller role.’
[19] So too, in
Director of
Public Prosecutions, KwaZulu-Natal v Ngcobo & others
2009
(2) SACR 361
(SCA) para 22, Navsa JA stated that:
‘
Traditional
objectives of sentencing include retribution, deterrence and
rehabilitation. It does not necessarily follow that a shorter

sentence will always have a greater rehabilitative effect.
Furthermore, the rehabilitation of the offender is but one of the
considerations
when sentence is being imposed. Surely, the nature of
the offence related to the personality of the offender, the
justifiable expectations
of the community and the effect of a
sentence on both the offender and society are all part of the
equation? Pre- and post-
Malgas
the
essential question is whether the sentence imposed is in all the
circumstances, just.’
In my view, when weighed against the objective gravity
of these offences, their prevalence in South Africa and the
legitimate expectations
of society that such crimes must be severely
punished, neither the youthfulness of the respondent, nor their
prospects of rehabilitation,
tip the balance in their favour.
[20] The trial court took into consideration on the
murder count the fact that the first respondent greatly assisted the
police
in the investigation of the offences. Counsel for the first
respondent argued that this fact, together with the fact that the
first
respondent pleaded guilty to the charge of murder (although the
State did not accept his plea) was indicative of remorse on this

part. Similarly, the second respondent pleaded guilty to the charge
of rape, although the State did not accept his plea, and he
also
co-operated in the police investigation. His counsel also contended
that this showed remorse. Although this is not clear from
the
judgment on sentence, the trial judge seems to have regarded the
assistance rendered by the first respondent to the police
as an
indication of remorse on his part.
[21] The problem is that the first
respondent did not testify and that the second respondent, during his
testimony, showed no sign
of remorse for the rape of Mrs McKnight. In
the words of Ponnan JA in
S
v Matyityi
(supra)
para 13:
‘
In
order for the remorse to be a valid consideration, the penitence must
be sincere and the accused must take the court fully into
his or her
confidence.
Until
and unless that happens, the genuineness of the contrition alleged to
exist cannot be determined. After all, before a court
can find that
an accused person is genuinely remorseful, it needs to have a proper
appreciation of, inter alia: what motivated
the accused to commit the
deed; what has since provoked his or her change of heart; and whether
he or she does indeed have a true
appreciation of the consequences of
those actions.’
[22] The last factor taken into
consideration by the trial court as a ‘mitigating factor of
substance’ in relation to
the murder count was the fact that
the State proved only oblique intent (
dolus
eventualis
). While
this may be a relevant factor, I am of the view that it does not, in
this case, constitute a substantial and compelling
circumstance for
departing from the prescribed sentence. The brutality and callousness
of the murder was such that the deceased,
a defenceless old man, was
trussed up and simply left to die. The harsh consequences of his
death for his family have been explored
above.
[23] As appears from what has been said above, in
imposing sentence on both the murder and the rape charges, the trial
court over-emphasised
the personal interests of the respondents over
the seriousness and prevalence of the offences, the interests of
society and the
harm suffered by Mrs McKnight and by the family of
the deceased. In my view there were no substantial and compelling
circumstances
present in the case of either offence that warranted a
departure from the prescribed statutory norm. To my mind, even having
regard
to the time spent in custody by the respondents pending
finalisation of the trial, the prescribed minimum sentences are, in
the
totality of the circumstances encountered here, the only fair and
just sentences.
[24] In the result, the appeal is upheld. The sentence
imposed by the court below is set aside and replaced with the
following:
‘
The second accused is sentenced to life
imprisonment on the rape charge (count 2)
All three accused are sentenced to life imprisonment on
the murder charge (count 4).
All the other sentences imposed on the accused shall
run concurrently with the life imprisonment.’
___________________
J B Z SHONGWE
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: L Pienaar
Instructed by: Director of Public Prosecutions,
Pretoria.
FOR FIRST RESPONDENT: C Joubert
Instructed by: Legal Aid Board, Pretoria.
FOR SECOND AND THIRD
RESPONDENTS H L Alberts
Instructed by: Legal Aid Board, Pretoria