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[2022] ZAECMKHC 23
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S v Teleke (Sentence) (15/2022) [2022] ZAECMKHC 23 (14 April 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Not
Reportable
Case
no: 15/2022
In
the matter between:
THE
STATE
and
PHUMLANI
TELEKE
Accused
SENTENCE
Govindjee
J
[1]
Mr Teleke was found guilty of housebreaking
with intent to commit rape and rape. He broke into the home of the
complainant, an elderly
woman, on 7 November 2021 before pushing her
into her bedroom and raping her twice, once
per
vaginam
and once
per
anum
. He also struck her with his fists
while demanding money from her during the time of the intercourse.
[2]
In
respect of the rape conviction, the Director of Public Prosecutions
relied on the provisions of s 51(1), read with Part I of
Schedule 2,
of the Criminal Law Amendment Act, 1997,
[1]
(‘the Minimum Sentences Act’) in seeking life
imprisonment. The basis for this relates to the age of the
complainant,
who is defined as an older person in
s 1
of the
Older
Persons Act, 2006
,
[2]
that she
was raped more than once, and that the rape involved the infliction
of grievous bodily harm. A court that is satisfied
that substantial
and compelling circumstances exist to justify the imposition of a
lesser sentence than that prescribed by the
Minimum Sentences Act
must impose a lesser sentence, entering the relevant circumstances on
the record of proceedings.
[3]
[3]
Section
276
of the
Criminal Procedure Act, 1977
[4]
provides for the sentences which courts can impose. The imposition of
sentence is pre-eminently a matter for the discretion of
the trial
court, which is free to impose whatever sentence it deems appropriate
provided it exercises its discretion judicially
and properly. The
general purpose of imposing a sentence is fourfold: retributive,
preventative, rehabilitative (reformative) and
to act as a general
deterrent.
[5]
While the
retributive aspect tends to dominate, courts are enjoined to temper
the punishment with a measure of mercy.
[6]
[4]
In
this regard, the sentencing court must attempt to achieve a balance
in its sentence, and not approach its task in a spirit of
anger, but
in one of equity. Hastiness, the striving after severity and
misplaced pity are out of place, as are so-called exemplary
sentences
designed to use the crime to set an example for others in society.
[7]
Still, more serious cases clearly require severity, with a certain
moderation of generosity, for the appropriate balance to be
struck.
The object of sentencing is not to satisfy public opinion, but to
serve the public interest.
[8]
[5]
In
terms of
s 280(1)
of the CPA, sentencing courts have the jurisdiction
to impose a separate sentence for each conviction, as it would have
done if
all the offences had been tried separately, before
considering the cumulative effect of multiple sentences and the
appropriateness
thereof.
[9]
In
practice, a court should:
[10]
a.
determine
the appropriate sentence for each individual offence;
[11]
b.
determine what an appropriate total
punishment would be for the totality of the criminal behaviour; and
c.
take such measure or measures as are
required for the sentence determined in (b) above to become the
effective sentence.
[6]
The complainant suffered bruising around
her left eye and both lips. A gynaecological examination revealed
tears around her vagina
and anus. She had also suffered shock as a
result of her ordeal.
[7]
Rape
when committed in circumstances where the victim was raped more than
once by the accused is listed in
Part I
of Schedule 2 of the Minimum
Sentences Act, as is rape where the victim is an older person as
defined in the
Older Persons Act, 2006
. In these circumstances, the
rapes perpetrated on the complainant, who was 79 years of age at the
time, result in a prescribed
sentence of life imprisonment in terms
of s 51(1) of the Minimum Sentences Act. For adult offenders, any
exception is based on
the court being satisfied ‘that
substantial and compelling circumstances exist which justify the
imposition of a lesser sentence
than the sentence  prescribed
…’
[12]
[8]
The
triad of factors to be considered consists of the crime, the offender
and the interests of society,
[13]
and these factors must be applied, in accordance with
S
v Malgas
,
[14]
to consider whether substantial and compelling circumstances exist to
deviate from any prescribed minimum sentence.
[15]
In
S
v Matyityi
,
[16]
Ponnan JA held that Parliament:
‘…
has
ordained minimum sentences for certain specified offences. Courts are
obliged to impose those sentences unless there are truly
convincing
reasons for departing from them. Courts are not free to subvert the
will of the legislature by resort to vague, ill-defined
concepts…and
ill-founded hypotheses that appear to fit the particular sentencing
officer’s personal notion of fairness.
Predictable outcomes,
not outcomes based on the whim of an individual judicial officer,
[are] foundational to the rule of law which
lies at the heart of our
constitutional order’.
[9]
A
court must exercise a reasoned discretion in determining an
appropriate sentence. The approach to be applied in imposing a
sentence
when the Minimum Sentences Act applies has been set out by
Nugent JA in
S
v Vilakazi
:
[17]
‘
It
is clear from the terms in which the test was framed in
Malgas
and endorsed in
Dodo
that it is incumbent upon a court in every case, before it imposes a
prescribed sentence, to assess, upon a consideration of all
the
circumstances of the particular case, whether the prescribed sentence
is indeed proportionate to the particular offence. The
Constitutional
Court made it clear that what is meant by the “offence”
in the context … “consists of all
factors relevant to
the nature and seriousness of the criminal act itself, as well as all
relevant personal and other circumstances
relating to the offender
which could have a bearing on the seriousness of the offence and the
culpability of the offender”.
If a court is indeed satisfied
that a lesser sentence is called for in the particular case, thus
justifying a departure from the
prescribed sentence, then it hardly
needs saying that the court is bound to impose that lesser sentence.’
[10]
Personal
aversion to life imprisonment or doubts as to the efficacy of the
policy implicit in the Minimum Sentences Act cannot be
elevated to
‘substantial and compelling’ factors. The prescribed
minimum sentences must be imposed unless there are
‘truly
convincing reasons’ for departure.
[18]
These are sentences to be imposed ‘ordinarily and in the
absence of weighty justification’.
[19]
If the sentencing court, on consideration of the circumstances of the
particular case, is satisfied that they render the prescribed

sentence unjust in that it would be disproportionate to the crime,
the criminal and the needs of society, so that an injustice
would be
done by imposing that sentence, it is entitled to impose a lesser
sentence.
[20]
[11]
Mr Teleke is a first offender, aged 35. He
has been in custody since November 2021. He is unmarried with one
child, aged six. He
has passed grade seven and was employed as a
general worker at a funeral parlour prior to his arrest, earning R800
per week. R500
per month is paid for his child’s support. Mr
Solani argued that the alcohol and drugs consumed by Mr Teleke may
have played
a major role in giving him courage to proceed with his
crimes. It was submitted that, cumulatively, this amounted to
substantial
and compelling circumstances justifying deviation from
the prescribed minimum sentence.
[12]
By contrast, the state highlighted the
serious nature of the offence of rape. The complainant had also been
assaulted and threatened.
While no victim impact statement was
submitted, the evidence during the trial was that the complainant
remained fearful. There
can be little doubt that this experience will
remain with her. It was submitted that the manner in which the
defenceless complainant
had been attacked demonstrated that Mr Teleke
was a danger to society and that there was a flimsy basis for
deviating from the
prescribed minimum sentence for rape.
[13]
Rape is a scourge in South Africa. It
violates a range of constitutionally-entrenched human rights and
causes irreparable harm to
its victims and society as a whole. In
this case, the victim was a woman who was 79 years of age at the
time. She was raped twice
and beaten by a person known to her. In
determining whether the prescribed minimum sentence is proportionate,
all of the traditional
mitigating factors are to be considered and
the court is required to assess whether there are substantial and
compelling circumstances
to depart from the sentence prescribed.
[14]
In
S
v Weideman
(‘
Weideman
’),
Goosen J reflected on the appropriateness of life imprisonment in the
case of a first offender who was under the influence
of alcohol, as
follows:
[21]
‘
Life
imprisonment is the most severe sentence that can be imposed by a
court. For this reason it is, generally speaking, reserved
for the
most serious and egregious criminal acts. It is also reserved for
those instances where the criminal poses a clear and
present danger
to the society and where there is little or no prospect of
rehabilitation of the criminal and reintegration of that
individual
into society. This does not however mean that a court should keep
something in reserve on the basis that some more serious

manifestation of the crime can be imagined (see
S
v Mahamotsa
2002 (2) SACR 435
(SCA) par
19). It means only that the sentence of life imprisonment must be
proportionate to the nature of crime for which it is
imposed.’
[15]
As in
Weideman
,
it is appropriate to note that there is no doubt that life
imprisonment is an appropriate sentence to impose upon a criminal who

rapes an elderly lady. More so when she is raped more than once. The
question, however, remains whether it is the appropriate sentence
in
this instance.
[16]
One
relevant factor is that the rape did not ‘involve’ the
infliction of grievous bodily harm, as argued. The court
in
S
v Thole
[22]
noted that one of the dictionary meanings of the word ‘involved’
is: ‘to include something as a necessary part
of an activity,
event or situation’. In
Rabako
v S
,
Musi J equated ‘grievous’ with ‘actually serious’,
as follows:
[23]
‘
In
essence then, if the injury inflicted by the accused on the body of
the rape survivor is serious, then it involves the infliction
of
grievous bodily harm. A serious injury at one extreme may mean an
injury so serious as to endanger life, necessitate hospitalization
or
result in permanent loss of bodily or mental faculty; at the other,
it may include a wound that heals rapidly. It should not
be a trivial
or insignificant injury…Whether an injury is serious will
depend on the facts and circumstances of every case’.
[17]
While
the provisions of the Minimum Sentences Act have been triggered for
other reasons, the facts do not support a finding of rape
involving
the infliction of grievous bodily harm. This is confirmed by the
judgment of Plasket J in
S
v Nkawu
.
[24]
In that matter, the accused was convicted of housebreaking with
intent to rape and rape. A ten-year old had been abducted from
her
home, taken to a secluded spot and raped
per
anum.
The court held that the psychological trauma suffered was as would be
expected and that the injuries, which caused some discomfort
and
pain, followed relatively minor use of force and were impermanent.
The court considered this to be significant in finding the
existence
of substantial and compelling circumstances.
[25]
[18]
Courts are reluctant to appear to reward
those who seek to utilise intoxication as a defence or excuse for
their criminal conduct.
In this case there was testimony about the
excessive consumption of alcohol, combined with the use of drugs. The
effects were manifest,
resulting in very serious crimes. Mr Teleke
fell asleep immediately after raping the complainant, with his pants
still down. He
was found in that state sometime later and was
disorientated. While it has been found that Mr Teleke did not lack
criminal capacity,
and that his various actions were voluntarily and
intentionally performed, his state of mind at the time cannot be
ignored for
purposes of sentencing, having contributed to spontaneous
criminal behaviour. Considering the available facts in their
totality,
in particular that Mr Teleke is a first offender and that
the court has accepted that alcohol and drugs played a major role in
his conduct, I am of the view that substantial and compelling
circumstances exist. In this instance these considerations are, in
my
view, not light or flimsy. The retributive dimensions of punishment
may be satisfied through imposition of a lengthy period
of
imprisonment.
[19]
It
is so that sentencing courts cannot keep on imposing more and more
severe sentences simply because the particular crime is prevalent
or
on the increase.
[26]
In
Madolwana
v The State
,
[27]
an elderly woman aged 70 was severely assaulted and raped, slipping
in and out of consciousness during her attack. Substantial
and
compelling circumstances existed in the form of a lack of
premeditation and the effect of alcohol on the appellant’s

actions. The appellant was not a first offender, having been
sentenced to four years’ imprisonment for indecent assault.
The
trial court’s conclusion and the 25-year period of imprisonment
that was the outcome were confirmed by the court on appeal.
The facts
in that matter are a useful starting point in considering an
appropriate sentence in this instance.
[20]
The
nature of the crime and society’s interest in protecting
vulnerable persons from horrendous experiences, and in tackling
rape
as an affront to an acceptable way of life, warrants a severe
sentence. In addition to the complainant’s age, I am
particularly cognisant of the fact that the complainant was raped
more than once, on the second occasion being forced to turn over,
and
also being hit with fists.
[28]
These factors far outweigh Mr Teleke’s personal situation and
the circumstances that resulted in his criminal behaviour.
Bearing in
mind the time already spent in custody, I consider a sentence of 22
years’ imprisonment to be appropriate for
the rape conviction.
As to the crime of housebreaking with intent to commit rape, a
sentence of five years’ imprisonment
is appropriate. These
sentences are to run concurrently.
Order
[21]
The accused is sentenced as follows:
1.
Count 1: Housebreaking with intent to
commit rape: 5 years’ imprisonment;
2.
Count 2: Rape: 22 years’
imprisonment.
It is directed that the
sentence imposed in respect of count 1 shall be served concurrently
with the sentence imposed in respect
of count 2, giving an effective
sentence of 22 years.
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
Heard:12
April 2022
Delivered:15
June 2022
Appearances:
Counsel
for the State:
Adv H. Pienaar
Director of Public
Prosecutions
Makhanda
046 602 3000
Attorney
for Accused:
Mr T. Solani
Legal Aid of South Africa
Makhanda
046 622 9350
[1]
Act
105 of 1997.
[2]
Act
13 of 2006.
[3]
S
51(3)(
a
)
of the Minimum Sentences Act.
[4]
Act
51 of 1977 (‘the CPA’).
[5]
S
v Rabie
1975 (4) SA 855
(A) (‘
Rabie
’).
[6]
Rabie
ibid at 862G-H.
S
v Khulu
1975
(2) SA 518
(N) (‘
Khulu
’)
at 521-522.
[7]
See
Khulu
ibid.
[8]
S
v Mhlakhaza and Another
[1997] 2 All SA 185
(A) at 189. Also see
S
v M
(Centre
for Child Law as
amicus
curiae
)
2007 (2) SACR 539 (CC).
[9]
S
280(1) provides, in part, that ‘When a person is at any trial
convicted of two or more offences…the court may sentence
him
to such several punishments for such offences…’
[10]
SS
Terblanche
A
guide to sentencing in South Africa
(3
rd
Ed) (LexisNexis) (2016) 199.
[11]
In
doing so, the established principles in respect of multiple crimes
sharing aggravating features, and the avoidance of a double

consideration of aggravation, must be considered: Terblanche ibid at
204-205.
[12]
S
51(3)
(a)
of
the Minimum Sentences Act.
[13]
S
v Zinn
[1969] 3 All SA 57
(A) at 540G-H.
[14]
S
v Malgas
2001
(1) SACR 469
(SCA) (‘
Malgas
’).
[15]
See
Radebe
v The State
[2019] ZAGPPHC 406 at para 12.
[16]
S
v Matyityi
2011
(1) SACR 40
(SCA) at para 23. Also see
Malgas
supra
fn
14, in respect of the prescribed period of imprisonment in the
Minimum Sentences Act ordinarily being imposed for the commission
of
the listed crimes in the specified circumstances, in the absence of
weighty justification, as quoted in
Otto
v S
[2017]
ZASCA 114
at para 21.
[17]
S
v Vilakazi
2009
(1) SACR 552
(SCA) (‘
Vilakazi
’)
para 15.
[18]
Malgas
supra
fn 14 para 23.
[19]
Vilakazi
supra fn 17 para 16.
[20]
Ibid
para 14.
[21]
S v
Weideman
[2014]
ZAECPEHC 62 para 14. It must be noted that the sentencing outcome in
Weideman
turned on the accused’s realisation of the full impact of his
criminal conduct, suggesting that rehabilitation and reintegration

into society was possible.
[22]
S
v Thole
2012
(2) SACR 306 (FB).
[23]
Rabako
v S
[2008]
JOL 21549
(O) para 7.
[24]
S v
Nkawu
[2009]
ZAECGHC 21.
[25]
The
accused was sentenced, in that matter, to twenty years imprisonment
for rape and three years’ imprisonment for housebreaking
with
intent to commit rape, to run concurrently.
[26]
S
v Qamata
1997
(1) SACR 479
(E) at 482
c-d
.
Cf
S
v Ndou
2019 (2) SACR 243
(SCA) para 23.
[27]
Madolwana
v S
[2013]
ZAECGHC 67.
[28]
The
consequence of conviction of an offence involving sexual abuse of an
older person, in addition to constituting an aggravating

circumstance in terms of s 30(4) of the Older Persons Act, 2006 (Act
13 of 2006), is that the convicted person’s name must
appear
in the National Register contemplated in s 31 of that Act.