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[2021] ZAKZPHC 18
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Gumede v S (AR119/20) [2021] ZAKZPHC 18 (26 May 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
Case No: AR119/20
In the matter
between:
ZAKHELE
GUMEDE
APPELLANT
and
THE STATE
RESPONDENT
The judgment was
transmitted to the parties by electronic mail with the date of
handing down of the judgment deemed to be 26 May
2021 at 12:30.
ORDER
On
appeal from the Regional Court, Ngwelezane:
The appeal is
dismissed.
JUDGMENT
Chetty J (Ploos van Amstel J concurring)
[1]
The appellant was charged in the Regional Court, Ngwelezane
with one count of rape in which it was alleged that on 23 January
2008
in the Thukwini Reserve,
Sokhule,
KwaZulu-Natal, the appellant unlawfully had sexual intercourse with
the complainant, to whom I will refer to by her initials
‘MTM’,
without her consent and on more than one occasion.
[2]
The charge against the appellant was framed in terms of s 51,
Schedule 2, Part 1 of the Criminal Law Amendment Act 105 of 1997
(‘the
Amendment Act’) and he was alerted to the
applicability of life imprisonment in the event of his conviction and
the absence
of substantial and compelling circumstances. The
appellant pleaded not guilty to the charge. He was legally
represented
at his trial. After considering the evidence before
it, and in particular the DNA evidence linking the appellant to the
offence,
the trial court convicted the appellant as charged.
[3]
On 19 September 2018, the appellant was sentenced to life
imprisonment as the court a quo found no substantial and compelling
circumstances
to deviate from the prescribed sentence of life for
rape on multiple occasions. The matter comes before this court as an
automatic
appeal in terms of s 309 of the Criminal Procedure Act 51
of 1977 (‘the Act’).
[4]
The facts of the matter are briefly that
the complainant, a 32-year-old female with four children, testified
that on 23 January
2018 at about 20h00 hours, she was walking home
when she was accosted by a male person who grabbed her from behind,
wrestling her
to the ground. He pulled her into nearby bushes,
threatened her with a knife. She was made to lie down, after which he
undressed
and forcibly had sexual intercourse with her. She had an
amount of R200 concealed in her bra, which the assailant took. During
the course of the assault, the complainant’s eyes were covered
and she was instructed not to look at her attacker.
[5]
After the initial sexual assault on the
complainant, her assailant again had forcible sexual intercourse with
the, after which he
drove to an area and instructed her to wash
herself. Unable to find an area where she could bath, the assailant
then bent her over
and penetrated her from behind. Eventually, the
assailant led the complainant to a river where he instructed her to
wash herself,
and in particular the area around her vagina. She
eventually fled from her assailant and managed to seek assistance at
a nearby
Homestead.
[6]
On seeking refuge away from her
assailant, she realised that members of the community had already
realised that she was missing
and had sent out people to look for
her. Her brother arrived at the house where she had been waiting, and
she reported to him that
she had been raped by a person not known to
her. She was taken to the police and thereafter to the Ngwelezane
Hospital where she
was examined by a doctor.
[7]
The complainant’s brother, Mr PS
Mtshali, testified that on the night of the incident, he was
performing his duties as a security
officer when he received news of
his sister’s disappearance. After receiving a report as
to what had transpired, he
proceeded to the spot that she had
referred to as the place where she was sexually assaulted. Mr Mtshali
noticed that there were
prints on the sand in the area, which
appeared to have been made by a pair of sandals made from the rubber
used in vehicle tyres.
These are referred to in IsiZulu as
“izimbadada”. The prints of the sandals were followed,
eventually leading to a
homestead where the appellant was found
sleeping inside together with another male. After searching the room,
Mr Mtshali found
a pair of sandals under the bed of the occupant as
well as an amount of R200 which was concealed in the sofa. The police
were then
contacted and the occupant of the house was arrested.
The State further led the evidence of a doctor who attended to
the
complainant and from whom he took a forensic specimen, which was
eventually sent for DNA analysis and was returned with a positive
match to the appellant. The court a quo was satisfied that the chain
of evidence in respect of the obtaining of the DNA sample
and the
conveyance thereof to the forensic lab were intact.
[8]
The appellant testified in his defence
and was unable to offer any explanation as to how he could be linked
by DNA evidence to the
rape of the complainant. He conceded that he
wore a pair of sandals as well as long black trousers, which was
consistent with what
the complainant described her assailant as
having worn. The appellant’s version was simply that he was
playing snooker at
a tavern up until 22h00 on the night in question,
after which he retreated to his room where he went to sleep until he
was awoken
by a person for a pair of sandals in his room.
[9]
The court a quo considered the totality of the evidence,
concluding, correctly in my view, that the version of the appellant
was
improbable and ought to be rejected as false. As stated earlier,
the State relied on DNA evidence linking the appellant to the crime.
In the circumstances, the trial court found that the State had proven
its case beyond reasonable doubt. Albeit that there has been
no
appeal noted against the conviction, I am satisfied that the
conviction is in order. Mr Marimuthu, who appeared on behalf of
the
appellant, conceded that the appellant was properly convicted.
[10]
It is accepted by counsel for the appellant that the court a
quo was enjoined to impose life imprisonment in the absence of
substantial
and compelling circumstances. It is well established that
in the absence of a misdirection, an appeal court is not at large to
interfere with a sentence imposed by the trial court.
The
issue before us is not whether the sentence imposed is excessive, but
rather whether there has been a material misdirection.
[1]
Rape is a most serious and vile crime. (See:
S v
Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA)). The appellant was a first
offender, 28 years of age, unmarried, without children and having
attained only grade 2 at school.
At the time of being sentenced, he
had already been in custody for little more than eight months. Bail
was refused to the appellant.
[11]
In
S v Rabie
1975 (4) SA 855
(A) at 857 Holmes JA
stated the principle thus: ‘
1.
In every appeal against sentence, whether imposed by a magistrate or
a Judge, the court hearing the appeal –
(a)
should be guided by
the principle that punishment is “pre-eminently a matter for
the discretion of the trial court”;
and
(b)
should be careful not
to erode such discretion: hence the further principle that the
sentence should only be altered if the discretion
has not been
“judicially and properly exercised”.
2.
The test under
(b)
is whether the sentence is vitiated by
irregularity or misdirection or is disturbingly inappropriate.’
[12] In considering the
applicability of life imprisonment as a result of the rape of the
complainant on three occasions, the court also took into account that
the appellant had attempted to avoid detection by instructing
the
complainant to wash herself. It was perhaps the quick reaction of
community members as well as the appellant’s brother
in tracing
the prints made by a pair of sandals worn by the assailant, that led
him to the house of the appellant, resulting in
his eventual
apprehension. It was contended on behalf of the appellant that this
was not the most serious of rapes and that the
complainant did not
sustain any serious physical injury. As the court a quo pointed out
with reference to s 51(3)(aA)(ii) of the
Amendment Act, when imposing
a sentence in respect of the offence of rape, an apparent lack of
physical injury to the complainant
shall not constitute substantial
and compelling circumstances justifying the imposition of a lesser
sentence. The legislation
is clear that the absence of
accompanying violence or resultant physical injuries to the
complainant do not constitute a basis
alone to deviate from the
prescribed penalty. Equally, the fact that the complainant was
32 years old cannot be a factor
that operates in favour of the
appellant. Rape leaves profound physical as well as emotional
scarring.
De Beer v S
[2017] ZASCA 183
;
2018 (1) SACR
229
(SCA).
[13]
As the appellant was sentenced in terms of s 51(1) of the Act, it is
important to keep
the objectives of the Act described by Marais JA in
S v Malgas
2001 (2) SA 1222
(SCA) as a measure aimed at
responding to:
'an
alarming burgeoning in the commission of crimes of the kind specified
resulting in the government, the police, prosecutors and
the courts
constantly being exhorted to use their best efforts to stem the tide
of criminality which threatened and continues to
threaten to engulf
society.'
[14]
I am in agreement with the court a quo that our courts are obliged to
send a strong message
that crimes such as rape deserve the strongest
of sentences, in this case, life imprisonment prescribed by the
legislator. It has
been held that whether or not substantial and
compelling circumstances exists is not a discretionary issue but
rather a value judgment
which judgment a court of appeal is obliged
to bring to bear on the facts presented in the court
a quo
.
There is nothing to indicate that the appellant was remorseful for
his actions, although Mr Marimuthu submitted that this may
perhaps be
found in his decision only to appeal against sentence and not
conviction. I am not persuaded by this submission, as
even counsel
conceded that the conviction could not be faulted. Neither am I
persuaded by the submission that his actions
were “opportunistic”.
He preyed on an unsuspecting adult woman returning home after work.
When the complainant saw
him standing near a light pole, she took
evasive action and changed the direction of her route. That did
not deter the appellant
who followed her, wrestled her to the ground
and strangled her to the extent that she was unable to scream.
In addition,
the appellant also threatened her with a knife.
[15]
As a court of appeal, even if we consider cumulatively all of the
factors traditionally
taken into account in respect of sentencing, we
are still unable to conclude that within that milieu there exist
substantial and
compelling circumstances. As pointed out in
Director
of Public Prosecutions, Grahamstown v T M
[2020] ZASCA 5
para 15:
‘
The
reality is that South Africa has five times the global average in
violence against women. There is mounting evidence that these
disproportionally high levels of violence against women and children,
has immeasurable and far-reaching effects on the health of
our
nation, and its economy. Despite severe underreporting, there are 51
cases of child sexual victimisation per day. UNICEF research
has
found that over a third (35.4%) of young people have been the victim
of sexual violence at some point in their lives. What
cannot be
denied is that our country is facing a pandemic of sexual violence
against women and children.
Courts
cannot ignore this fact. In these circumstances the only appropriate
sentence is that which has been ordained by statute.’
[16]
I do not consider the sentence of life imprisonment to be
disproportionate to the offence,
and I am unable to find any
misdirection in the sentence imposed by the trial court. On
that basis, there is no ground to
interfere with the sentence
imposed.
[17] In the circumstances, I
propose the following order:
The appeal is dismissed.
M R CHETTY
Appearances:
For appellant:
Mr P Marimuthu
Instructed by:
Legal Aid South
Africa Durban
For respondent
Mr Ngcobo
Instructed by:
Director of Public
Prosecutions Durban
Heard on
21 May 2021
Judgement
delivered
26 May 2021
[1]
See
Hewitt v S
[2016] ZASCA 100
;
2017 (1) SACR 309
(SCA) para
8:
'It is a
trite principle of our law that the imposition of sentence is the
prerogative of the trial court. An appellate
court may not interfere
with this discretion merely because it would have imposed a
different sentence. In other words, it is
not enough to conclude
that its own choice of penalty would have been
an
appropriate
penalty. Something more is required; it must conclude that its own
choice of penalty is the appropriate penalty and
that the penalty
chosen by the trial court is not. Thus, the appellate court
must be satisfied that the trial court committed
a misdirection of
such a nature, degree and seriousness that shows that it did not
exercise its sentencing discretion at all
or exercised it improperly
or unreasonably when imposing it. So, interference is justified only
where there exists a ''striking''
or ''startling'' or ''disturbing''
disparity between the trial court's sentence and that which the
appellate court would have
imposed. And in such instances the trial
court's discretion is regarded as having been unreasonably
exercised.'