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[2022] ZAECELLC 37
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S v Ntombana (54/2022) [2022] ZAECELLC 37 (1 December 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION
(CIRCUIT
COURT HELD AT KOMANI)
NOT
REPORTABLE
Case
no: 54/2022
In
the matter between:
THE
STATE
and
AKHONA
NTOMBANA
Accused
JUDGMENT
ON SENTENCE
Govindjee
J
[1]
Mr Ntombana was convicted of four counts of
rape, two counts of attempted rape and assault with intent to do
grievous bodily harm.
The state argued for the imposition of three
life sentences, given the circumstances of the offences, together
with various other
periods of imprisonment.
[2]
Mr Ntombana was found to have committed a
series of sexually-related crimes between 21 November 2021 and 17
January 2022. He targeted
young females who appeared to be alone. in
particular, wearing a modified pair of pantyhose to cover his face,
and using a knife
to threaten his victims.
[3]
AS was 14 years of age when she was raped
twice by Mr Ntombana. This was after he had threatened to kill her
cousin, AY S, with
a knife, forcing AS to return to him after she had
run away. A social worker report provides insight as to the
devastation that
this has caused on the household of the victim. AS
struggles to sleep, experiences nightmares and an overwhelming fear
of being
surrounded by other people, especially males. She also
experiences feelings of fear, shame, terror and guilt. She spends
much of
her time trying to make sense of what happened, causing the
social worker to note possible long-term health and emotional
well-being
consequences and to recommend therapy.
[4]
Mr Ntombana attempted to rape AY S, a
15-year-old girl, but was physically unable to do so at the time. In
addition to being threatened
and being forced to undress, AY S was in
close proximity to AS while the latter was being raped. The incident
has affected her
family in various ways, as confirmed by a social
worker report. She now requires transportation to school and the
family experiences
guilt based on their socio-economic circumstances.
Because of the lack of toilets in the area, AY S is forced to relieve
herself
in the same place as where the incident occurred. Her
self-esteem and sense of trust, particular in respect of male
persons, have
been negatively affected, and she experienced
nightmares, also requiring therapy.
[5]
SS was 16 years of age when she was
accosted by Mr Ntombana. She was dragged into the bushes and made to
undress before being raped
without a condom. A psycho-social report
accepted into evidence explains the various ways in which the
incident has affected the
child’s life. She does not sleep
properly and becomes distressed, losing concentration while at
school. She fears a repeat
of what occurred and has required
counselling.
[6]
KM, a 13-year-old girl, was assisted by her
boyfriend when Mr Ntombana attempted to rape her after she had gone
to relieve herself.
She had been pulled towards him and he had tried
to lower her panty while she lay on her back and he was on top of
her. AN S, after
having removed Mr Ntombana from on top of KM, had
fought to prevent himself from being stabbed, but suffered injuries
to his head
when hit with a stone.
[7]
Ms ML, a 22-year-old woman, was raped by Mr
Ntombana, who also performed fellatio on her without her consent and
against her will,
while covering her face. He had carried a knife and
a stick and she had feared for her life. A social worker report links
her ordeal
to subsequent bouts of anger and the development of low
self-esteem. She experiences flashbacks and sleepless nights and has
been
referred for counselling.
[8]
NM was 12 years old when Mr Ntombana
threatened her with a knife and forced her to accompany him to a
secluded area, where he raped
her four times, causing her to bleed.
She was also slapped in the face. A psycho-social assessment report
explains how her life
has changed following the incident. She is
extremely fearful, particularly in the presence of males and at
night, does not sleep
properly and is defensive.
[9]
As
a result of the fact that Mr Ntombana was found to have raped AS, Ms
ML and NM more than once, and given the age of AS and NM,
the
prescribed sentence in each instance, unless substantial and
compelling circumstances justify a less severe sentence, is life
imprisonment.
[1]
In respect of
count three, the minimum prescribed sentence is ten years’
imprisonment, in the absence of substantial and
compelling
circumstances.
[2]
[10]
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]
[11]
The nature and seriousness of the crime of
rape requires little amplification. Rape involves a horrific invasion
of the dignity
and security of the person of the victim. Certain
features of the offences already described escalate the seriousness
of some of
the offences committed. In particular, the display of the
knife, or in one instance sticks, and the threat of stabbing was a
feature
of most of the offences. Mr Ntombana also threatened to kill
one of his victims if her companion did not return to the scene.
While
there was no gratuitous resort to violence over and above the
sexual offences, all of this was designed to induce submission to
the
sexual act.
[12]
It is clear from the psycho-social reports
accepted into evidence that Mr Ntombana’s conduct has had a
profound, adverse emotional
impact on the lives of his victims, and
their families. Fear, particularly of men, nightmares, insomnia,
anger and sadness feature
prominently in the complainants’
description of the outcome of these events.
[13]
The personal circumstances of Mr Ntombana
were placed before me by
Mr Geldenhuys
,
who appeared for him. He was born on 4 March 1999 and was therefore
22 years old at the time when the offences were committed.
He was
raised by a single mother. He is unmarried but has two young children
who stay with their mother, who testified in the proceedings
before
this court. It may be accepted, for present purposes, that he
completed grade 11 schooling. He performed casual work as
a
self-employed general labourer, earning approximately R1200 per
month. He has no previous convictions or pending cases against
him,
and has been in custody since his arrest.
[14]
Mr Ntombana pleaded not guilty, resulting
in the complainants being required to testify and relive their
experiences at his hands.
It was submitted, on his behalf, that
imposition of life sentences would be unjust and disproportionate
when considering the triad
of factors, particularly the absence of
prior convictions, his relative youthfulness and prospects of
rehabilitation, also given
the absence of gratuitous violence and
considering that the rapes did not fall in the worst category of the
crime.
[15]
Plasket
J has described the interests of society in such cases in the
following eloquent terms:
[5]
‘
In
a case such as this, the legitimate interests of society come
strongly to the fore: right-thinking members of society –
who,
I venture to suggest, make up the overwhelming majority – want
to see the attainment of the type of society envisaged
by our
Constitution where everyone can live without the fear that is
currently ever-present for so many women as a result of the
scourge
of rape. In the criminal context, that interest includes an interest
in effective sentences being imposed by the courts
to punish
wrongdoers appropriately and to deter those who may wish to follow
the same path.’
[16]
Society expects that the scourge of
gender-based violence must be addressed and must cease. In addition,
children’s rights
are constitutionally protected, and rape of a
child is by its nature one of the worst kinds of offences
imagineable.
[17]
Mr Ntombana has displayed a propensity for
preying on vulnerable victims, notably young girls in their teens. He
embarked on what
can only be described as a brazen, calculated spree
to attempt to rape people he found walking or relieving themselves
alone in
a particular part of Aliwal North. In most instances this
occurred in broad daylight. Between November 2021 and January 2022 he
raped four victims, three of whom were children, and three of whom
were raped more than once. One of the children was as young
as
twelve. He also attempted two further rapes during this period. The
modus operandi was the same and these victims were 13 and
15 years of
age respectively. Although not wielded in a manner directed to cause
physical harm, the presence and threat of the
knife to induce
submission constitutes an aggravating feature of the rape and
attempted offences.
[18]
The impact on the victims has become part
of a sad narrative for an increasing number of people in the country.
Children, who are
meant to be free to play, laugh, go to school and
enjoy everything that childhood offers are instead scared to walk
alone, even
when seeking merely to relieve themselves. The
socio-economic situation of parts of this province, in particular,
reflect the disturbing
relationship between lack of access to basic
sanitation services and criminal conduct. Some of the victims were
attacked while
in the field satisfying the most basic of urges. In
some instances, they were accompanied by a friend or relative, which
also failed
to prevent the attack. At least two of the victims’
family members have suffered angst and helplessness related to their
inability to change the reality of living in a place which has no
toilet, so that their children are forced to walk into a dangerous
space to find relief. This is a sad indictment of the state of
development of our society and communities should be encouraged
and
supported to find collective ways to address the situation.
[19]
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.
[6]
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.
[7]
[20]
I have specifically considered that Mr
Ntombana is a young adult who is a father of young children, who has
no previous convictions
and who has already spent time in custody.
Against his various personal circumstances, which I have considered
in their totality,
stands the multiple convictions for which he is
about to be sentenced, the planned and premeditated execution of the
crimes, featuring
the use of the balaclava to hide his face from his
victims, and the threat of further violence and death, to be caused
by a knife
he carried, in the event of non-submission. As an aside,
the facts show that Mr Ntombana was also arrested while wearing the
balaclava,
concealed under his beanie, and again in possession of the
knife, suggesting that he had been on the prowl once again.
[21]
As
Mr Mgenge
argued, he has not demonstrated any remorse for his conduct, and its
impact on his various victims. The nature of the various offences
involving prescribed minimum sentences and the interests of society
far outweigh Mr Ntombana’s personal circumstances so
that I am
unable to find that substantial compelling circumstances exist to
justify a less severe sentence than life imprisonment
in respect of
counts one, seven and eight. I do not consider the imposition of
these sentences to be disproportionate to these
crimes, which involve
more than one rape of a 14-year-old girl, a 22-year-old woman and a
12-year-old girl respectively, each of
whom were forced to submit to
him either due to the explicit or implicit threat of stabbing. Given
the nature of the offences,
various other consequences emanating from
legislation follow. These have been included as part of the order to
follow.
[22]
I consider sentences of ten years’
imprisonment to be appropriate for each of the attempted rape counts
(counts two and five).
Although that is also the prescribed sentence
for count three, given the age of the victim and circumstances
surrounding the incident
I consider that to be altogether
inappropriate. A sentence of 18 years’ imprisonment is to be
imposed for count three, involving
the rape of a 16-year-old girl. A
sentence of five years’ imprisonment is imposed for the assault
with intent to commit grievous
bodily harm count (count 6). All these
sentences automatically run concurrently with the sentences of life
imprisonment.
[23]
The following sentence is imposed:
a.
In respect of count 1, the accused is
sentenced to life imprisonment.
b.
In respect of count 2, the accused is
sentenced to ten years’ imprisonment.
c.
In respect of count 3, the accused is
sentenced to eighteen years’ imprisonment.
d.
In respect of count 5, the accused is
sentenced to ten years’ imprisonment.
e.
In respect of count 6, the accused is
sentenced to five years’ imprisonment.
f.
In respect of count 7, the accused is
sentenced to life imprisonment.
g.
In respect of count 8, the accused is
sentenced to 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
:21-29
November 2022
Delivered
:01
December 2022
Appearances:
For
the State:
Adv S Mgenge
Director of Public
Prosecutions
Makhanda
046 602 3000
For
the defence:
Adv D Geldenhuys
Legal Aid South Africa
Makhanda
046 636 9350
[1]
S
51(1) of the Criminal Law Amendment Act, 1997 (Act 105 of 1997)
(‘the Act’), read with Part I of Schedule 2.
[2]
S
51(2) of the Act, read with Part III of Schedule 2.
[3]
S
v Malgas
2001
(1) SACR 469
(SCA) paras 9 and 25.
[4]
S
v Malgas
id
para 22.
[5]
S
v Falo
[2019]
ZAECGHC 37 para 25.
[6]
S
v Malgas
n3
para 9.
[7]
S
v Bull
2001
(2) SACR 681
(SCA) para 21.