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[2021] ZAGPJHC 666
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S v Jiyane (SS094/2020) [2021] ZAGPJHC 666 (6 August 2021)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
DPP REF NO:
10/2/11/1 – 2020/036
CASE NO: SS
094/2020
In the matter
between:
THE STATE
And
JIYANE,
THOKOZANE
ACCUSED
JUDGMENT ON
SENTENCE
MUDAU, J;
[1]
The accused has been
convicted of various serious offences as set out in my judgment on
the merits.
The
accused was convicted of rape in relation to counts 5, 6, 8, 10, 11,
14, 15, 17, 18, 20, 24, 25, 29, 30, 33, 37 and 38. He was
convicted
of robbery with aggravating circumstances as defined in
section 1
of
the
Criminal Procedure Act 51 of 1977
in respect of counts 3, 7, 9,
12, 16, 19, 23, 28, 32, and 36. He was also convicted for kidnapping
in respect of counts 4 and 35.
Finally, he was convicted for fraud in
respect of counts 21, 31 And 34. The incidents occurred over a period
of approximately six
months. The accused, no doubt, is a serial
rapist.
The
matter is before the court for sentencing purposes. I am required to
impose appropriate sentences on the accused for all his
transgressions.
[2]
It
is trite that the determination of an appropriate sentence requires
that proper regard be had to the well-known triad of, the
crime, the
offender, and the interests of society. In
S
v Matyityi
,
[1]
the court stressed the importance of proportionality and balance
between the crime, the criminal, and the interests of society.
It
is important for the court to maintain an appropriate balance between
the triad. In
S
v Banda
and Others
,
the court said:
“
The
elements of the triad contain an equilibrium and a tension. A court
should, when determining sentence, strive to accomplish
and arrive at
a judicious counterbalance between these elements in order to ensure
that one element is not unduly accentuated at
the expense of and to
the exclusion of the others. This is not merely a formula, nor a
judicial incantation, the mere stating whereof
satisfies the
requirements. What is necessary is that the Court shall consider, and
try and balance evenly, the nature and circumstances
of the offence,
the characteristics of the offender and his circumstances and the
impact of the crime on the community, its welfare
and concern. This
conception as expounded by the Courts is sound and is incompatible
with anything less.”
[2]
[3]
Because
of the fact that the accused raped each of the complainants in counts
5 and 6; 10 and 11; 14 and 15; 17 and 18; 24 and 25;
29 and 30; 37
and 38 more than once that includes grievous bodily harm in respect
of the complainant in count 29 and 30 , the prescribed
sentence in
each instance is life imprisonment, unless substantial and compelling
circumstances justify a less severe sentence.
[3]
In respect of count 33, the complainant was raped once, the minimum
prescribed sentence is ten years’ imprisonment, in the
absence
of substantial and compelling circumstances.
[4]
Each of the aggravated robbery charges in respect of counts 3, 7, 9,
12, 16, 19, 23, 28, 32, and 36 also attracts a prescribed
minimum
sentence of 15 years. In determining whether substantial and
compelling circumstances exist to justify the imposition of
a less
severe sentence than that prescribed, all of the factors
traditionally taken into account are up for consideration.
[4]
At the hearing of
the sentencing procedure, the accused testified in mitigation of
sentence. The court also accepted the report
prepared by Ms Mazibuko,
a probation officer in the employ of the Department of Social
Development, who compiled a report regarding
the accused and his
personal circumstances, which was handed in by consent of the
parties. The contents of a report compiled by
Lt Colonel Myburgh
of the SAPS, attached to the Investigative Psychology Section,
Criminal Records and Crime Scene Management,
Division Forensic
Science Services, was accepted by counsel for the defence and the
State. The report was also handed in by consent.
[5]
The accused was born
on 10 October 1997 out of wedlock. He was therefore 22 years old when
the first offence was committed in October
2019 until March 2020 in
relation to the last incident. Currently, he is two months short of
his 24
th
birthday. His father, whom he never met, died when he was very young.
Consequently, he was raised by his mother as a single parent.
However, he is the youngest of five children from both sides of the
family. He left school in grade 10. He has no formal employment
history.
The
accused lived, before his arrest, with his mother and elder brother.
The offences that the accused has been convicted of are
all serious.
Those that stand out, the rapes as well as aggravated charges, as I
indicated, are subject to mandatory minimum sentences.
[6]
As indicated in the
judgment on merit, the accused put in place a simple, but
well-thought-out plan, in which he lured the majority
of the victims
to secluded places in the veld but in his immediate neighbourhood
where he carried out the rape and robbery offences.
To recap,
the
various female victims, between the period October 2019 and the
arrest of the accused in March 2020, were befriended on social
media.
They were promised employment in either the entertainment or
hospitality industry and some met him in pursuit of love
relationships.
The accused had created a fake profile and used the
name and photos of a well-known local television actor, Ney Maps.
What
stands out in each incidence is the accused’s resort to
violence or threats in order to force the complainants to comply
with
his orders. So, when he robbed and raped the complainant in counts 3
to 6, he threatened her with a knife. When he robbed
and raped the
complainant in counts 7 to 8, he punched her with a clenched fist.
She was forced to perform oral sex on him without
him wearing a
condom and so was the complainant in respect of counts 9 to 11. He
compounded her humiliation by raping her whilst
on her period after
the accused had removed her sanitary pad. The complainant in counts
12 to 15 was assaulted so hard that she
bled through her nose and was
also choked. The complainant in counts 16 to 18 was not only forced
to perform oral sex on the accused,
but was raped after the accused’s
condom broke.
[7]
The
complainant in counts 19 to 21 was not only choked but poked with a
broken glass during the incident. The complainant in counts
22 to 25
was not only forced to perform oral sex on the accused but was also
threatened with a broken bottle and choked. The complainant
in counts
26 to 31 was punched severely, kicked on her face, stoned, and also
threatened with death if she did not comply with
his orders. In
respect of counts 32 to 34 the complainant was choked and slapped
with open hands. She subsequently became pregnant
but had to
terminate the pregnancy as she could not live her life with the
memory of the incident. In respect of counts 35 to 38,
the
complainant was choked during the incident. An additional aggravating
feature is that in all instances, he deprived the complainants
of
their liberty and held them against their wishes for extensive
periods of time.
[8]
It
is clear from the evidence of the complainants, albeit emanating from
the merits before conviction, that the harrowing, degrading
and
traumatic experiences they were forced to endure at the hands of the
accused has had a profound, adverse emotional effect on
all of them.
The complainants are still plagued with nightmares. All of them say
that what they endured is an experience they will
not easily forget.
The trauma that they all suffered at the hands of the accused was
tangible as they were forced to relive the
incidents when they
testified. They teared up and cried during the trial. The proceedings
were often interrupted to accommodate
the complainants in that
regard. They were no doubt embarrassed for having fallen victims to
the accused’s misdeeds. In
S v Chapman
,
Mahomed CJ stated:
“
Rape
is a very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity
and the
person of the victim.”
[5]
[9]
I
must also take into account the interests of the community. In
S
v Van Deventer
[6]
the court confirmed that society's ‘natural indignation’
should be recognised in determining an appropriate sentence.
The
state introduced a report dated 22 July 2021 by consent of the
parties - Exhibit FF from “The Business Standard”
which
reflects that our country tops the list of 10 countries with the
highest rape rates. The figures reflected are astonishing,
but not
totally surprising. The rate is some 66 196 incidents per 100 000
people. It is common knowledge that society is outraged
at the
ongoing sexual violation of, in particular, women and children.
Society's interests would not be served by a sentence which
is
disproportionately light having regard to the seriousness of the
offences.
[10]
As
stated by the Supreme Court of Appeal in cases such as
S
v Swart
[7]
and
S
v Vilakazi
,
[8]
serious cases will usually require that retribution and deterrence
should come to the fore and that the personal circumstances
of the
offender, by themselves, will necessarily recede into the background
.
In
Vilakazi
,
the court held, “[o]nce it becomes clear that the crime is
deserving of a substantial period of imprisonment the questions
whether the accused is married or single, whether he has two children
or three, whether or not he is in employment, are in themselves
largely immaterial to what that period should be …"
[9]
This, in my view, is precisely the type of case where the retributive
and deterrent purposes of punishment come to the fore, with
the
accused’s personal circumstances fading into the background.
[11]
The probation
officer, in her report, is of the view that any other sentence is
unsuitable but imprisonment in terms of
section 276(1)(b)
of the CPA.
Lieutenant Colonel Myburgh opined that the sophisticated
modus
operandi
the
accused exhibited indicates that he is high functioning and is
capable of being deceptive and manipulative for extended periods
of
time. She is of the opinion that the accused poses a high-risk of
committing acts of violence and sexual violence in the future.
She
also listed by way of example, numerous cases in this country where
persons who had raped before, went back to their nefarious
habits of
raping and, in some cases, followed by murder upon their release from
prison. Significantly, she pointed out that there
are currently no
rehabilitation programs for serial rapists. She points out that the
accused has a very poor prognosis for rehabilitation
and would most
likely remain a danger to society as long as he lives.
[12]
As I indicated, the
crimes committed by the accused are extremely serious and were
aggravated by his use or threat of violence.
The victims were
terrorised over a lengthy period of time in each instance. These
crimes were not only deliberate but were premeditated.
Evidently, he
has a propensity for violence, inferred from his repeated conduct in
this case. It signals that he is a serious danger
to people
generally, and women in particular. The accused has shown no remorse
for his actions in respect of all the offences he
has committed and
maintains his innocence in the face of overwhelming evidence against
him which includes the recovery, for instance,
of the cell phone
taken from one of his victims upon arrest.
[13]
I accordingly
conclude that his chances of rehabilitation are minimal. In my view,
the cumulative effect of the personal circumstances
of the accused,
as weighed against the aggravating factors, do not constitute
substantial and compelling circumstances justifying
a departure from
the prescribed minimum sentence. I am accordingly of the view that
there are no substantial and compelling circumstances
to deviate from
the prescribed sentence. He is a perfect candidate to be removed from
society for life.
[14]
The accused is
sentenced as follows:
Count
4 (kidnapping): five (5) years’ imprisonment to run
concurrently with the sentence in respect of counts 5 and 6.
Counts
5 and 6: life imprisonment
Count
8: 20 years’ imprisonment
Counts
10 and 11: life imprisonment
Counts
14 and 15: life imprisonment
Counts
17 and 18: life imprisonment
Count
20 (rape): 20 years’ imprisonment
Count
21 (fraud): one-year imprisonment to run concurrently with the
sentence in respect of Count 20.
Counts
24 and 25: life imprisonment
Counts
29 and 30: life imprisonment
Count
31: one (1) year imprisonment to run concurrently with the sentence
imposed in respect of Counts 29 and 30
Count
33: 20 years’ imprisonment
Count
34 (fraud): one-year imprisonment to run concurrently with the
sentence imposed in respect of counts 33.
Count
35 (kidnapping): five (5) years’ imprisonment to run
concurrently with the sentence imposed in respect of Counts 37
and
38.
Counts
37 and 38: life imprisonment
Counts
3, 7, 9, 12, 16, 19, 23, 28, 32, and 36 (
robbery):
15 years’ imprisonment for each of the mentioned Counts.
The
15 years’ imprisonment in respect of Count 3 is to run
concurrently with the life imprisonment sentence in respect of
Counts
5 and 6.
The
15 years’ imprisonment in respect of Count 7 is to run
concurrently with the sentence of 20 years’ imprisonment
in
respect of Count 8.
The
15 years’ imprisonment in respect of Count 9 is to run
concurrently with the life imprisonment sentence in respect of
Counts
10 and 11.
The
15 years’ imprisonment in respect of Count 12 is to run
concurrently with the life imprisonment sentence in respect of
Counts
14 and 15.
The
15 years’ imprisonment in respect of Count 16 is to run
concurrently with the life imprisonment sentence in respect of
Counts
17 and 18.
The
15 years’ imprisonment in respect of Count 19 is to run
concurrently with the sentence of 20 years’ imprisonment
in
respect of Count 20.
The
15 years’ imprisonment in respect of Count 23 is to run
concurrently with the life imprisonment sentence in respect of
Counts
24 and 25.
The
15 years’ imprisonment in respect of Count 28 is to run
concurrently with the life imprisonment sentence in respect of
Counts
29 and 30.
The
15 years’ imprisonment in respect of Count 32 is to run
concurrently with the sentence of 20 years’ imprisonment
in
respect of Count 33.
The
15 years’ imprisonment in respect of Count 36 is to run
concurrently with the life imprisonment sentence in respect of
Counts
37 and 38.
In
terms of
section 103
(1) (g) of the
Firearms Control Act, 60 of 2000
the accused is unfit to possess an arm.
T
P MUDAU
Judge
of the High Court
Date
of Hearing: 22 July
2021
Date
of Judgment: 6 August 2021
APPEARANCES
For
the State: Adv R Barnard
Instructed
by: DPP, JHB
For
the accused: Adv L Musekwa
Instructed
by: Legal Aid South Africa
[1]
2011
(1) SACR 40 (SCA).
[2]
1991
(2) SA 352
(BG) at
355A-C.
[3]
See
s 51(1)
of the
Criminal Law Amendment Act 105 of 1997
, read with
Part I
of Schedule 2.
[4]
See
s 51(2)
of the
Criminal Law Amendment Act read
with
Part III
of
Schedule 2.
[5]
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 5B.
[6]
2011 (1) SACR 238
(SCA) at para [17].
[7]
2004 (2) SACR 370
(SCA).
[8]
2009 (1) SACR 552 (SCA).
[9]
Vilakazi
supra
at
paragraph [58].