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[2021] ZAKZPHC 2
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Sishwili v S (AR160/2020) [2021] ZAKZPHC 2 (22 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR160/2020
In
the matter between:
THANDANANI
VUYO SISHWILI
and
Appellant
THE
STATE
Respondent
ORDER
On
appeal from: Regional Court, Nongoma (sitting as court of first
instance):
[1]
The appeal against sentence is upheld;
[2]
The sentence of fifteen (15) years imprisonment imposed in the court
a quo is set
aside and replaced with a sentence of ten (10) years
imprisonment antedated to 30 August 2016.
JUDGMENT
MARKS
AJ (KRUGER J concurring)
[1]
The appellant (Mr Sishwili) was convicted in
the Regional Court, Nongoma on one count of Rape (c/s 3 of Act 32 of
2007) and sentenced
to a period of fifteen (15) years imprisonment on
30 August 2016.
The
appellant is before us, leave to appeal having been granted by the
court a quo in respect of sentence only.
Background
[2]
The appellant, who was legally represented at
the trial, pleaded 'not guilty' to the Rape charge. His defence was a
bare denial.
The State led the Evidence of four witnesses which
included the complainant. The accused testified in his own defence
and no further
defence witnesses were called. The learned Regional
Magistrate convicted the accused of one count of Rape. The summary of
proved
facts reveal that the complainant who was 79 years old at the
time was inside her room at approximately 10h00 am when the appellant
who is a relative, entered the room. Initially, he asked for money.
The complainant did not have money and told him so. He then
placed
her on the bed. She struggled to get away. Thereafter, the appellant
removed his and her underwear and raped her. After
he finished, the
appellant left. The complainant sustained injuries in the form of
shallow grazes and bruises. She was later examined
by a doctor and
received treatment. The appellant was later arrested by the police.
[3]
It is trite that the appeal court may only
interfere with sentence when the court a quo has committed a material
misdirection or
where the sentence imposed by the court a quo is so
startlingly inappropriate that it warrants the interference of this
court.
see:
S v Malgas
2001 (2) SA 1222
(SCA).
In
S v Pillay
1977 (4) SA 531
(A) 535 F-G, the court said:
'As
the essential enquiry in an appeal against sentence, however is not
whether the sentence was right or wrong, but whether the
court in
imposing it exercised its discretion properly and judicially, a mere
misdirection is not by itself sufficient to entitle
the Appeal Court
to interfere with the sentence, it must be of such a nature, degree
or seriousness, that it shows directly or
inferentially that the
Court did not exercise its discretion at all or exercised it
improperly or unreasonably. Such a misdirection
is usually and
conveniently termed one that vitiates the court's decision on
sentence'.
[4]
It is common cause between the appellant and
the respondent that the trial court when imposing the sentence which
it did, misdirected
itself in finding that the circumstances of the
Rape fell into the category of those cases where the Legislature has
ordained life
imprisonment. The court a quo made a finding that the
complainant has sustained grievous bodily harm, based on the J88
medico legal
report which was handed in by consent, as an Exhibit.
The J88 report indicated that the injuries sustained by the
complainant,
during the course of the Rape, was shallow bruising to
the eye and grazes to the arm. The doctor who examined the victim was
not
called to testify. The paucity of information relating to these
injuries was of little assistance and in any event did not correlate
with the injuries complained of by the complainant. A careful reading
of the judgment in the court a quo does not provide reasons
for the
courts finding that grievous bodily harm was inflicted. It is clear
that the State had failed to prove that the appellant
had inflicted
grievous bodily harm upon the complainant.
The
submission that there was therefore a misdirection by the court a
quo, is well made and can safely be regarded as the type that
vitiates the court a quo's decision on sentence. Therefore this court
is at large to impose a sentence that meets the facts of
this
particular case. The prescribed minimum sentence for a single charge
of Rape upon an adult female in these particular circumstances
would
be ten (10) years imprisonment.
[5]
In the heads of argument the appellant
contended that fifteen (15) years imprisonment is excessive in the
circumstances and induces
a sense of shock. The respondent, in their
heads of argument, concede that although the minimum sentence for
this type of rape
attracts ten (10) years imprisonment, this court
should nevertheless dismiss the appeal against the sentence of
fifteen (15) years
imprisonment, due to the fact that as from 2
August 2017, the
Criminal Law Amendment Act, 105 of 1997
includes
Rape of an 'older person' attracting a minimum sentence of life
imprisonment. Further that the aggravating circumstances
in this
particular case warrants fifteen (15) years imprisonment which in any
event was the
ordinary
jurisdiction of the Regional Court.
[6]
It
is trite that a court imposing a sentence must reflect a balance
between the offender, the crime and the interests of society.
[1]
It
is clear that in every case, before it imposes a prescribed sentence,
the court is enjoined to assess, upon a consideration of
all the
circumstances of a particular case, whether the prescribed sentence
is indeed proportionate for the particular offence.
[2]
Concern
has also been raised that in respect of Rape charges, there is an
absence of any gradation between ten (10) years imprisonment
for a
single rape upon an adult and life sentence for other categories of
Rape.
[3]
[7]
The personal circumstances of the appellant is on record. He was 22
years old at the
time he committed the offence. He is single and has
one minor child. He is unemployed and suffers from asthma. The
appellant has
previous convictions for housebreaking with intent to
steal and theft and received custodial sentences in the past.
Therefore,
this was not his first brush with the law.
[8]
The circumstances of the Rape upon the
complainant has aggravating features. The complainant was an elderly
woman who regarded the
appellant as her grandson. She was attacked in
the sanctity of her own home when the appellant, uninvited, entered
her room and
violated her Constitutional rights to human dignity and
bodily integrity. Although the physical injuries she sustained were
not
of a grievous nature, the psychological and physical trauma she
has suffered at the hands of the appellant are apparent in the victim
impact statement on record.
[9]
Rape is regarded by society as one of
the most heinous crimes.
In
S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
SCA, it was held at para, 5 that:
'Rape
is a humiliating, degrading and brutal invasion of the privacy,
dignity and the person of the victim'.
Gender
based violence is endemic in our country. Rape is a prevalent offence
and society demands that offenders receive lengthy
terms of
imprisonment which is ordained by the Legislature in the Minimum
Sentence Legislation. It is as a result of society's
outrage that the
Legislature has already included further categories of Rape for life
imprisonment sanction.
[10]
The Criminal Law Amendment Act, 105 of
1977, as from 2 August 2017, includes the Rape of an 'older person'
attracting a minimum
sentence of life imprisonment. However, this
amendment is not retrospective. The Rape upon the complainant was
committed before
this enactment. Therefore, the minimum sentence for
the present category of Rape remains ten (10) years imprisonment.
[11]
There being no substantial and
compelling circumstances in this matter, and therefore no reason to
deviate from the prescribed minimum
sentence being ten (10) years
imprisonment.
In
conclusion, the following order is made:
[1]
The appeal against sentence is upheld;
[2]
The sentence of fifteen (15) years imprisonment
imposed in the court a quo is set aside and replaced with a sentence
of ten (10)
years imprisonment antedated to 30 August 2016.
MARKS
AJ
KRUGER
J
I
agree, and it is so ordered.
Case
Information
Date
of Set Down
: 18
January 2021
Date
of Judgment
: 22
January 2021
Counsel
for the Appellant
: MS L
MARAIS
c/o Pmb
Justice Centre
:
Tel: (033) 394 2190
:
Email:
LaurenM@legal-aid.co.za
Counsel
for the Respondent
:
MR K M
SHAH
:
Tel: (031) 334 5010
:
Cell: 084 520 0099
:
Email:
Kshah@npa.gov.za
This
appeal was, by consent between the parties, disposed of without an
oral hearing in terms of
s 19
(a) of the
Superior Courts Act 10 of
2013
.
This
judgment was handed down electronically by circulation to the
parties' legal representatives by email and released to SAFLII.
The
date for hand down is deemed to be 26 January 2021.
[1]
S v Zinn1969 (2) SA 537 (A)
[2]
S v Dodo 2001 (1) SACR 594 (CC) 13
[3]
S v Vilakazi
2012 (6) SA 353
SCA