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[2021] ZAGPPHC 94
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Maswanganyi v S (A119/2020) [2021] ZAGPPHC 94 (15 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO
OTHERS JUDGES:
YES
/NO
(3)
REVISED
15
FEBRUARY 2021
CASE
NO: A119/2020
In the matter between:
ISAAC
MASWANGANYI
Appellant
and
THE
STATE
Respondent
JUDGMENT
BAM J:
1.
The appellant was convicted in the Regional
Court, Pretoria, on a charge of Robbery with Aggravating
Circumstances, and two charges
of Rape, and sentenced to 15 years
imprisonment on the robbery charge and life imprisonment on each of
the two rape charges. The
appellant appeals only against sentence. In
view of the nature of the sentence, life imprisonment, the appellant
enjoys an automatic
right of appeal.
2.
The complainant was raped by both the
appellant and his co-accused, who, in the meantime, has passed away.
3.
In view thereof that the complainant was
repeatedly raped and robbery in aggravating circumstances, Section
51(1) of the Act on
Minimum Sentences Act 105 of 1997, is applicable.
It provides for a minimum sentence of 15 years imprisonment for the
robbery charge,
and in respect of the repeated rape charges, life
imprisonment, unless there exists substantial and compelling
circumstances justifying
a lesser sentence.
4.
The appellant was convicted of serious
crimes. The complainant was a passenger in the appellant’s
taxi. The appellant was
accompanied by the former accused 2.
En
route
the
complainant was held at gunpoint, accosted and robbed by the
appellant’s passenger, and raped. Thereafter the appellant
drove around with the complainant for several hours. During this time
the complainant was repeatedly raped by the appellant and
the former
accused 2. The complainant was defenceless and overpowered by the two
perpetrators. She was actually abducted and also
subjected to sexual
abuse for several hours. The two perpetrators were merciless and
showed a total disrespect to the complainant.
The emotional effect
the incident had on the complainant was devastating. Even after two
years, during the trial, according to
the Victim Impact Report, the
detrimental effect of the crimes committed by the appellant and his
fellow perpetrator on the complainant
was still noticeable.
5.
The trial magistrate correctly referred to
the fact that robbery and rape are rife in our country. The crimes in
respect of the
abuse of women have escalated and have resulted in
country-wide campaigns and parliamentary discussions concerning more
dedicated
actions against such perpetrators. Although the Act on
Minimum Sentences provides for life imprisonment when the victim was
raped
repeatedly, and that such sentences are imposed on a daily
rate, it seems, in the experience of our courts that similar crimes
are indeed escalating.
6.
The appellant relied on his personal
circumstances in respect of the question of whether substantial and
compelling circumstances
justifying lesser sentences than the
prescribed minimum sentences existed. They are the following:
6.1
The
appellant was 28 years old at the time of the commission of the
offences;
6.2
he
is a first offender;
6.3
he
was not married but has two minor children to maintain;
6.4
he
was a taxi driver and did piecemeal jobs.
7.
The trial court found that the
circumstances referred to above did not amount to such circumstances.
We are in agreement with the
trial court. The aggravating
circumstances were in any event overwhelming.
8.
There is no reason to interfere with the
sentences imposed by the trial court. However, the order made by the
trial court that the
sentences should run concurrently is superfluous
and not substantiated. It is provided in
Section 39(2)(a)(i)
of the
Correctional Services Act 111 of 1998
Act that any determinate
sentence to be served concurrently with a life sentence.
ORDER:
1. The appeal against sentence is dismissed.
2. The sentences imposed by the trial court are confirmed.
3. The order that the sentences should be served concurrently is
deleted.
AJ BAM
JUDGE OF THE
HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION
B MABUNDA
(AJ)
ACTING JUDGE
OF THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION
DATE OF HEARING
: 01 FEBRUARY 2021
DATE OF JUDGMENT
: 15 FEBRUARY 2021
APPEARANCES:
For the Appellant
: Mr HL
Alberts
For
the Respondent
: Advocate SD Ngobeni