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[2020] ZALMPPHC 32
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Malotsa and Others v S (A69/2017) [2020] ZALMPPHC 32 (20 May 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE
NUMBER: A69/2017
20/5/2020
In
the matter between:
LESIBA
EPHRAIM MALOTSA
FIRST APPELLANT
FRANS
MAKHAFOLA
SECOND APPELLANT
ALFRED
LESIBA MAGONGOA
THIRD APPELLANT
And
THE
STATE
RESPONDENT
JUDGEMENT
GAISA
AJ
INTRODUCTION:
[1]
The
three appellants were charged together in the Mahwelereng Regional
Court, Limpopo Province, with one count of contravention
of Section 3
of the Criminal Law Sexual Offences and Related Matters Amendment
Act, No 32 of 2007, read together with the provisions
of Section
51(1) Part 1 of Schedule 2 of the
Criminal Law Amendment Act, No 105
of 1997
.
[2]
The
state alleged that the appellants unlawfully and intentionally
committed an act of sexual penetration with the complainant by
inserting their penises into her vagina without her consent.
[3]
All
the appellants were legally represented throughout the trial and
pleaded not guilty to the charges proffered against them.
[4]
At
the end of the trial all three appellants were convicted, on 17
October 2017, and sentenced to life imprisonment on 4 December
2017.
[5]
The
appellants appeal to this court against both the conviction and the
sentence.
FACTUAL BACKGROUND IN
SUMMARY:
[6]
The court
a
quo
was essentially faced with two
issues for determination, namely: (1) whether the act of sexual
penetration between the first two
appellants and the complainant was
consensual; and (2) whether the third appellant in fact engaged in a
non-consensual sexual act
as alleged by the state.
[7]
The court heard the evidence of three
state witnesses: the complainant; the complainant's father-in-law;
and Dr Manisa James Makhubo.
All the state witnesses testified under
oath.
[8]
For the defence, the court heard the evidence of all three
appellants, who testified
under oath and did not call any further
witnesses.
[9]
A J88 form (a report on a medico-legal
examination by a health care practitioner) was submitted and accepted
as Exhibit A before
the court
a quo.
[10]
The complainant painted a picture of
what happened to her on the morning of 16 September 2016. She gave a
step-by-step account of
the events and seemed consistent during
cross-examination. She related that she had been attending a funeral
at Ledwaba's homestead,
a neighbour one street away from her
homestead in her village, until the early hours of the morning, when
she decided to go
home alone.
[11]
Her path was illuminated by lights from the next-door neighbour's
homestead and three men, the appellants,
emerged from behind her.
[12]
The appellants attacked her in front of her homestead. The third
appellant closed her mouth from behind
and caused her to bend forward
and fall on the ground. The other two appellants held her by her legs
and undressed her while she
was on the ground; all three appellants
took turns penetrating her vaginally with their penises without using
condoms. She sustained
injuries including on her hands and legs.
[13]
The complainant's father-in-law heard some noises next to his window.
He woke up and saw one person
running away and others in front of the
house. The complainant entered the house running and informed him
that her attackers wanted
to kill her.
[14]
The complainant testified that all the accused are well known to her
as neighbours and she used to
relate well with all of them prior to
the incident.
[15]
The court a
quo
established that
the noise which her father-in-law heard was of the appellants
attacking the complainant. He testified that it was
clear that there
was a struggle she was trying to escape from.
[16]
Dr Makhubo testified that he had examined the complainant and
observed injuries on her hands and legs,
and some abrasions on the
knee.
[17]
The doctor made it clear that it was
highly unlikely that the abrasions arose from an accidental fall.
They were most likely caused
by being forced to the ground and moved
against it.
[18]
The court
a
quo
found all three state witnesses
to be credible and reliable.
[19]
In the defence's case, the first and
second appellants did not dispute that they had sexual intercourse
with the complainant at
the place and on the date mentioned in the
charge sheet (although not at the same time). For these appellants,
the question of
consent is therefore preeminent. The third appellant
provided a bare denial, denying ever having had sexual intercourse
with the
complainant.
[20]
The complainant is a single witness to
her sexual assault. No other person saw that assault. As such, the
court
a quo
had
regard to the cautionary rules applicable when assessing this type of
evidence (as per
Section 208
of the
Criminal Procedure Act 51 of
1977
). The court a
quo
was
also clearly aware of the fact that it could only convict on the
evidence of a single witness if such evidence was satisfactory
in
every material respect, (as per
S
v
Artman en Ander
1968 (3)
SA
339
(A)).
[21]
The court a
quo
correctly referred to
S
v Sauls and Others
1981 (3)
SA
172
(A) 180e
(albeit
it incorrectly noted the page number as 140), where it was
said that there is no rule-of-thumb test or formula to
.apply when it comes to the consideration of the credibility of a
single
witness. The trial court should weigh the evidence of the
single witness and should consider its merits and demerits and,
having
done so, should decide whether it is satisfied that the truth
has been told despite shortcomings or defects or contradictions in
the evidence.
[22]
In
S v Webber
1971 (3) SA 754
(A).
it was decided
that the evidence of a single witness should be approached with
caution and that such evidence ought not necessarily
to be rejected
merely because the single witness happens to have an interest in the
matter or bias against the accused. The correct
approach is to assess
the intensity of the bias and to determine the importance thereof in
the
light
of the evidence as a whole..
[23]
Ultimately, having heard all of the evidence of the state and
defence, the court a
quo
found that the
complainant's evidence was clear and satisfactory in all material
respects. She was a witness who could and should
be believed. Her
evidence was corroborated by the her father-in-law, who had left her
at Ledwaba's funeral.
[24]
The court a
quo
found that the fact that her
father-in-law was awoken
by noise and
looked out
to see what was happening
was consistent with the complainant's evidence that she was under
attack and further that
"if the
noise was not amiss he could not have woken up under the
circumstances".
[25]
The court
a
quo
also found that despite the
credibility of the state witnesses, it was not entitled to convict
the accused unless it was satisfied
beyond reasonable doubt that the
version of the state witnesses was true.
[26]
The court
a
quo
correctly considered
S
v Chabalala
,
[1]
where it was held that:
"The correct approach is
to weigh up all the elements which point to the guilt of the accused
against all those which are indicative
of his innocence, taking
proper account of inherent strengths and weaknesses, probabilities
and improbabilities on both sides and,
having done so, to decide
whether the balance weighs so heavily against the state as to exclude
any reasonable doubt about the
accused's guilt."
[27]
It is trite that the accused (the
appellants before this court) have no onus on them to prove their
innocence.
[28]
The court
a
quo
found the versions of the first
arid third appellants to be riddled with contradictions and
inconsistencies.
[29]
It found that it was common cause that
the appellants and the complainant knew each other well as
co-villagers and neighbours. It
also found that it was not in dispute
that: (a) the complainant and the accused knew each other; (b) the
complainant and the accused
attended Ledwaba's funeral; and that (c)
the first and second appellants had sexual intercourse with the
complainant. What was
in dispute in regard to the first and second
appellants was the issue of consent.
[30]
The court found that it was improbable
that the complainant had engaged in an act of consensual intercourse
with the appellants
given the nature of her injuries specified on the
J88 form. It
did not
find that she fell accidentally at the gate.
[31]
Based on their contradictions and
inconsistencies, the court a
quo
held
that the first and third appellants were tailoring their evidence to
suit the questions posed to them. It found them to be
extremely poor
witnesses. The appellants further alleged that the claimant was
drunk, and this, according to them, explained why
she had had sexual
intercourse with them.
[32]
The definitions offered in the Criminal
Law Sexual Offenses and Related Matters Amendment Act of 2007 state
that consent means
"voluntary or
un-coerced agreement".
This Act
further describes circumstances in which a person cannot be in a
position to give a voluntary or un-coerced agreement.
That is when at
the time of the commission of such an act the person was asleep,
unconscious or in an altered state of consciousness,
including under
the influence of any medicine, drug, alcohol or other substance, to
the extent that the consciousness or judgement
of the person is
adversely affected.
[33]
The court a
quo
found that the defence wanted the
court to hold that the complainant was so drunk that she was not
capable of acting normally. But
if this were so, then she could not
have provided her consent.
[34]
Regardless, the court a
quo
found that the complainant was in
fact not drunk at the time.
[35]
It considered the case of
S
v Shackell,
[2]
where it was stated that:
"A court does not have to
be convinced that every detail of an accused's version is true. If
the accused's version is reasonably
possibly true in substance, the
court must decide the matter on the acceptance of that version. Of
course it is permissible to
test the accused's version against the
inherent probabilities. But it cannot be rejected merely because it
is
improbable;
it can only be rejected on the basis of inherent probabilities if it
can be said to be so improbable that it cannot
reasonably possibly be
true."
[36]
Based on the totality of the evidence
placed before it, the court found that the appellants' version could
not reasonably be held
to be true or probably true. It found
therefore that there was no consent.
[37]
Regarding the third accused, the court
found that his bare denial could not be believed - all three had
planned to follow the complainant,
had attacked her, and had sexual
intercourse with her without her consent and without using condoms.
[38]
In
Booysen
v The State
[3]
the SCA held that:
"[20] The appellant did
not use
a
condom. This is
yet another aggravating factor, specifically at
a
time when the
whole world is grappling with the scourge of the HIV and AIDS
pandemic. The majority of rape victims are not only
left to deal
with
the
physical, emotional and psychological trauma of the rape, but are
also exposed to the possible hardships associated with living
with
HIV, its side effects and stigma. The only manner in .which victims
may be protected is through anti retroviral drugs,
which also
have side effects. It is not clear ex facie the medical report (JBB)
whether or not this precaution was taken with regard
to this young
girl. No evidence
was
led in this
regard."
[39]
Rape is defined in Section 3 of the
Criminal Law Sexual Offences and Related Matters Amendment Act of
2007 in the following terms:
"Any
person who unlawfully and intentionally commits an act of sexual
penetration with
a
complainant,
without the consent of B, is guilty of the offence of rape."
[40]
Sexual penetration is defined in Section
1 of the above Act as:
"sexual penetration"
includes any act which causes penetration to any extent whatsoever
by-
(a)
the genital organs of one person
into or beyond the genital organs, anus, or mouth of another person;
(b)
any other part of the body of one
person or, any object, including any part of the body of an animal,
into or beyond the genital
organs or anus of another person; or
(c)
the genital organs of an animal,
into or beyond the mouth of another person,
and
"sexually penetrates" has a corresponding meaning.
[41] The
court
a quo
found that the complainant's vagina was sexually
penetrated by the appellants without her consent on the date and
place mentioned
in the charge sheet and in the manner she described
and that the state had proved its case beyond reasonable doubt. It
consequently
found the appellants guilty of rape.
DETERMINATION BY THIS COURT:
CONVICTION
[42]
The test for permissible interference by
a court of appeal with a trial court's factual finding imposes a high
threshold. In
S
v
Francis,
[4]
Smalberger JA explained it as follows:
"This court's powers to
interfere on appeal with the findings of fact of
a
trial court are
limited. Accused no 5's complaint is that the trial court failed to
evaluate D's evidence properly. It is not suggested
that the court
misdirected itself in any respect. In the absence of any misdirection
the trial court's conclusion, including its
acceptance of D's
evidence is presumed to be correct. In order to succeed on appeal,
accused no 5 must therefore convince us on
adequate grounds that the
trial court was wrong in accepting D's evidence
-
reasonable doubt
will not suffice to justify interference with its findings. Bearing
in mind the advantage which
a
trial court has
of seeing, hearing and appraising a witness, it is only in
exceptional cases that this court will be entitled to
interfere with
the trial court's evaluation of oral testimony."
[43]
In the face of the overwhelming evidence
against the appellants and the manner in which the court a
quo
dealt with that evidence, I find
that the conclusion of the court a
quo
is fully borne out by the record and
I can therefore see no misdirection on the part of the court a
quo's
assessment of the evidence and the
factual findings.
SENTENCING:
[44] The
court a
quo
found that the first and third appellants had no
previous. convictions. The second appellant had two previous
convictions, namely
(a) assault with intent to do grievous bodily
harm, for which he was sentenced on 28 February 2008; and (b) theft,
sentenced on
16 October 2010.
[45] For
the purpose of the appeal on sentencing, it is necessary to address
the two main issues appearing
from the notice to appeal and the heads
of argument filed on behalf of the appellants: (1) whether or not,
with regard to the minimum
prescribed sentence, there were
substantial and compelling circumstances which ought to have moved
the court a
quo
to deviate from
the minimum sentence and
.
impose a sentence of less than life imprisonment, and (2) in any
event, whether the sentence imposed by the court a
quo
was appropriate
and in accordance with justice and equity. We address these issues in
what follows.
Paying money so that the
case does not see its day
in
court:
[46]
The
appellants are appealing against the conviction and sentencing by the
court
a quo
because
they believe that the court
a quo
did
them an injustice. It is disturbing that at times those who come to
court seeking justice are not themselves prepared to afford
that
justice to others.
[47]
The
court
a quo
heard
how the appellants attempted to bribe the complainant and her
husband, offering them money not to bring the matter to court
and to
justice.
[48]
It
is unfortunate that in the present day, many coldly believe that
every man has a price. Yet in the words of Ellen G White:
"The greatest want
of the world is the want of men
-
men who will not
be bought or sold; men who in their inmost souls are true and honest;
men who do not fear to call sin by its right
name; men whose
conscience is as true to duty as the needle to the pole; men who will
stand for the right though the heavens fall.
"
[5]
[49]
The complainant and her husband refused
to be bought. Instead they brought the matter to be heard fairly and
lawfully so that justice
could be done.
Sentencing is clearly the most
difficult part of criminal proceedings:
[50]
It
"is
widely accepted that sentencing is a particularly difficult part of
the criminal justice process".
[6]
[51]
In
Fredericks
v S,
[7]
the court held that sentencing is
the
most
difficult
part of criminal proceedings. It involves a careful and dispassionate
consideration balancing the gravity of the offence,
the interests of
society, the personal circumstances of the offender, and also the
interests of the victim.
[8]
[52]
Shongwe JA,
in
Fredericks
supra,
stated that the purpose of
sentencing is to deter would-be offenders, punish the actual offender
and prevent the re occurrence
of the crime.
[9]
[53]
There is no doubt that any sentence
pronounced by a court will leave a legacy. Whatever the sentence,
somebody somewhere is likely
to be unhappy with the outcome.
When may the court of appeal
interfere?
[54]
In
S v
Kgosimore,
[10]
Scott JA
said
the following with respect to an appeal court's powers to interfere
with an imposed sentence:
"It is trite law that
sentence is
a
matter for the
discretion of the court burdened with the task of imposing the
sentence. Various tests have been formulated
as
to when
a
court of appeal
may interfere. These include whether the reasoning of the trial court
is vitiated by misdirection or whether the
sentence imposed can be
said to be startlingly inappropriate or to induce
a
sense of shock or
whether there is
a
striking
disparity between the sentence imposed and the sentence the court of
appeal would have imposed. All these formulations,
however, are aimed
at determining the same thing: viz whether there
was
a
proper and
reasonable exercise of the discretion bestowed upon the court
imposing sentence. In the ultimate analysis this is the
true inquiry.
Either the discretion was properly and reasonably exercised or it
was
not. If it was,
a
court of appeal
has no power to interfere; if it
was
not, it is free
to do
so. "
[55]
In
S v Tafeni,
[11]
it was held that a court of appeal is in any event able to interfere
with the court a
quo's
sentence
if it finds substantial and compelling circumstances even where there
is no material misdirection or failure by the court
a
quo
to exercise discretion.
[56]
In terms of the applicable legislation (Act 105 of 1997), a court may
only impose· a lesser
sentence if it is satisfied that there
are substantial and compelling circumstances which justify the
imposition of a lesser sentence.
In
S
v Malgas
it was
stated,
inter
alia,
that the
very fact that this amending legislation has been enacted indicates
it was no longer to be
"business
as
usual'
when sentencing
for the commission of the specified crimes.
[12]
[57]
The approach in
S
v Malgas
was endorsed by the
Constitutional Court in
S v Dodo.
[13]
The SCA, in
S
v Vilikazi,
[14]
explained that particular factors, whether aggravating or mitigating,
should not be taken individually or in isolation as substantial
and
compelling circumstances, but must be viewed cumulatively. In the
end, the minimum sentence will be imposed, unless a court
finds, by
considering all relevant issues, that there are indeed substantial
and compelling circumstances within the parameters
of Section 51
(3)(a) to justify the imposition of a lesser sentence, or where the
sentence by a court a
quo
is
clearly not a just sentence.
The Triad of Zinn and the
four principles of punishment:
[58]
Terblanche
wrote
that:
"Our law attempts to ease
the sentencing process through the establishment of general
principles. These principles are trite.
They consist of
the
Triad of Zinn,
[15]
as augmented by the
four
so-called purposes of punishment.
These
principles are
so
trite that attempts to· check whether they are still relevant
today are very rare indeed. Often the courts, even to the
highest
level, will do nothing other than quote
a
few
well-established sources.
"
(Own underlining)
[59] The
most important principle at the imposition of sentence is the
so-called Triad of Zinn. In Zinn
it was held:
"What has to be considered
is the triad consisting of the crime, the offender and the interests
of society."
[16]
[60]
The dictum in Zinn has become settled
law.
[17]
Sometimes it is also said that punishment must
"be
blended with
a
measure
of
mercy''.
[18]
[61] In
Hiemstra's
Criminal Procedure,
[19]
it is explained that
"[b]lending
does not mean that the Court first determines an appropriate sentence
and then reduces it for the sake of mercy.
Mercy infuses the
assessment of the three Zinn considerations, it is not an independent
fourth element”.
[62] The
four aims of punishment, which are as important as the triad -
deterrent, prevention, reform, and
retribution - were succinctly
expressed in
R v
Swanepoel,
[20]
as follows:
"The aim of punishment
therefore is no other than to prevent the criminal from doing further
injury to society, and to prevent
others from committing the like
offence. Such punishment, therefore, and such
a
mode of
inflicting them, ought to be chosen as will make the strongest and
most lasting impressions on the minds of others, with
the least
torment to the body of the criminal."
[63]
The record shows that the court a
quo
aimed
"
at achieving ... retribution, prevention, deterrence and reformation"
and continued to explain and analyse
these concepts in relation to the crime for which the appellants were
convicted.
[64]
The court a
quo
stated that:
"Having said that, of
importance to this Court is that the end, justice must be seen to
have been done. The probation officer
testified to the effect that
the victim
was
affected, and her
sense
of
life has been affected. It
is
bad gentlemen, to
be raped by one person, and to be raped by more than two persons,
that
is
very
serious.
"
[65]
The court a
quo
was explicitly mindful of balancing
the seriousness of the offence with the interests of society, the
personal circumstances of
those involved and the interests of the
victim.
[66]
It concluded that the appellants had
attacked a vulnerable victim in a heinous manner - someone who was
helpless and at their mercy
- and that they furthermore displayed no
remorse. The gravity of the crime, it held, should be reflected
through the sentence.
[67]
But it said it would not lose sight of
the necessity for mercy when considering what a just sentence would
be. Part of the exercise
of this mercy was to treat the accused as
first-time offenders.
[68]
Be this as it may, the court a
quo
was mindful that current applicable
legislation enjoins an increased standard of severity to which courts
are bound to give effect
in sentencing. The circumstances and gravity
of the rape, the court held, therefore justified imposing the minimum
prescribed sentence.
[69]
Regarding the alternative sentences
which may have been considered by the court a
quo,
the social worker testifying before
court lent support to this stance by stating that other sentences
would not be appropriate for
the gang-rape which had been committed.
The prescribed minimum sentence would act as a deterrent for the
accused and future offenders,
and this was important given the
prevalence of gang-rape in Ga-Magongwa Village and surrounding areas.
[70]
Having found no compelling and
substantial reasons to justify a departure from the prescribed
minimum sentence, the court a
quo
imposed the sentence of life
imprisonment on all three appellants.
Mitigating circumstances:
[71]
In mitigation, the appellants impressed
on the court a
quo
two
main issues. I deal with these next. They are: (a) that the court
must be mindful that when the appellants raped the complainant,
they
had consumed some alcohol; and (b) that the court must be merciful
towards the appellants.
Alcohol:
[72]
The defence declared that the appellants
were drunk and that the court
a quo
should take this into consideration.
It failed to lead further evidence demonstrating whether or not the
appellants were highly
intoxicated at the time of the commission of
the rape, or to what extent they were intoxicated at all. This
failure makes it difficult
for this court to determine whether such
drinking constitutes any substantial and compelling circumstances,
and (in conjunction
with the consideration of the remaining relevant
factors) its impact on imposing an appropriate and just sentence.
[73]
Without expressing any views (for or
against the consumption of liquor), the fact is that the effects of
the intake of alcohol on
an accused person have been considered in
prior cases when imposing sentence. To do this properly requires the
evaluation in every
case of the particular facts relating to the
alcohol consumption - not only a consideration in cases where the
appellant reaches
a certain degree of intoxication.
[74]
Wessels J
(as
he then was) stated in
Fowlie v Rex
,
[21]
that:
"It would be absurd to say
that if
a
man
in his cold, sober senses did the act he should be punished with no
greater severity than the man who did it whilst under the
influence
of liquor. That there should be
a
difference in the
degree of punishment has been recognised in almost every system of
jurisprudence. In the Digest, (48, 19, 11),
we find the distinctions
drawn between the punishment of
a
sober man and of
a
man
who had been drinking; and Matthaeus says: Ebrius aliquo mitius
puniri debet quia non proposito sed impetu delinquit. Although
a
man may not be so
drunk
as
to
be excused the commission of
a
crime requiring
special intent, yet he may have been so affected with liquor that his
punishment should be softened."
[75]
In
S v
Ndhlovu
[22]
the (then) Appeal Court stated that:
"Intoxication is one of
humanity's age-old frailties, which may, depending on the
circumstances, reduce the moral blameworthiness
of
a
crime, and may
even evoke
a
touch of
compassion through the perceptive understanding that man, seeking
solace or pleasure in liquor, may easily over-indulge
and thereby do
the. things which sober he would not do."
[76]
In
S v
Sigwahla,
[23]
the court stated that:
"Furthermore, in
regard to the latter, the Court took into account against him his
evidence that he was unaffected by the liquor.
This seems to me an
imperative approach, for it overlooks the human tendency to deny the
consumption of liquor or to deny or be
unaware of the effects of its
consumption. It seems to me probable that the liquor in question did
play some part in the appellant's
lawless conduct that evening.
.
In considering
the relevance of intoxicating liquor to extenuating circumstances the
approach of
a
trial Court
should be one of perceptive understanding of the accused's human
frailties, balancing them against the evil of his deed."
[77]
However, in the matter of
S
v Booysen,
[24]
the SCA found that there is an onus
on the appellant to show that he acted as a result of the
alcohol.
[25]
In the present matter the defence failed to discharge this onus. It
simply stated that the court a
quo
should take the fact that the
appellants had consumed alcohol into account.
[78]
In the
Guide
to Sentencing in South Africa ,
Terblanche
sets out that:
"7.
3.9 Liquor and drugs
The intake of alcohol or drugs
is not necessarily a mitigating factor; the circumstances of the case
will determine whether it is.
Generally, however, once the court is
satisfied that the offender was intoxicated, his intoxication will be
a
mitigating
factor. The reason for this is that '[liquor] can arouse sense and
inhibit sensibilities,' which may diminish the responsibility
of the
offender. However, it has to be shown that the intoxication actually
impaired the mental faculties of the offender,·
only then can
his blameworthiness be regarded as diminished."
[79] In a
matter similar to the present one,
Mpongoshe
v S,
[26]
Lowe J,
in
the Eastern Cape Division, Grahamstown, held that:
"[26] As to intoxication
as a
relevant
sentencing factor the learned Judge effectively dismissed this
completely on the basis that this was an opportunistic contrived
defence of criminal incapacity. Crucially having correctly noted the
above, the learned Judge continued as follows:
'Whilst it is so that
there was evidence that you consumed alcohol and that it affected
your faculties to a limited extent, in my
view it did not make any
appreciable difference to your moral reprehensibility".'
[80]
Even if I am wrong on this, the evidence
of the third appellant was that he was drunk but was in a position to
differentiate between
right and wrong.
[81]
Neither the court
a
quo
nor this court is able, without
much more, to come to the aid of the appellants and find that they
were so intoxicated that the
intoxication actually impaired their
mental faculties to the extent that their blameworthiness can be
regarded as diminished.
Mercy:
[82]
There can be no doubt, in my view, that
in the light of the appellants' conduct, not only through their rape
of the complainant,
but also through their attempts at paying off the
complainant and her husband, and the fact that they did not show any
remorse
for what they had done, they did not exercise the same mercy
towards the complainant that they sought from the court
a
quo,
and now seek from this court.
My view is supported by the pre-sentencing reports, the evidence of
the social worker and the testimony
of the appellants on record.
[83]
The social worker testified that the
appellants do not acknowledge
"the
wrongfulness"
of their actions.
[84]
Mercy is preceded by, or requires,
repentance or remorse. Repentance is preceded by or requires an
acknowledgment of wrongdoing.
In a nutshell, repentance or remorse is
the necessary condition for mercy or forgiveness.
[85]
The conduct of these men has revealed
that they do not see others as deserving of good - they are neither
repentant nor remorseful.
Consequently, they do not value doing.
good unto others; their drive is selfish, and the self is their idol.
They have no
regard for justice and mercy for others, and as such
they have perpetuated avarice and strife. Self-gratification has
blinded them
to the fact that justice and mercy are the foundations
of the very law they wish to benefit from.
[86]
It goes without saying that justice and
mercy are the controlling powers that must be nurtured for the good
of all. Our values and
laws as a people are to be continually
uplifted by discouraging that behavior that seeks to separate and
misapply justice and mercy.
It often happens that due to a lack of
appreciation of the two concepts and their application, some may wish
to separate and abuse
these concepts. It is the duty of our courts to
guard against this.
[87]
As the rainbow in the cloud results from
the union of sunshine and shower, so the justice system hopefully
represents the union
of mercy and justice. The justice system must be
holistic to achieve its intended purpose, which is to rehabilitate
all those affected
by it. The sun brings benefits to the earth and so
does the rain. In the absence of either, there is no rainbow. Here
the same
principle applies - in the absence of mercy, there is no
justice, and vice versa. Mercy and justice are inseparable twins;
mercy
does not set justice aside.
[88]
In the present matter mercy and justice
were trampled upon. Never was a family, the very fabric of our
society, treated in so inhuman
a manner as was the complainant and
her husband. The effects of the violation of mercy and justice upon
them can never be fully
felt nor understood by third parties. The
appellants certainly did not appreciate their suffering. This is
evident from the behavior
of the appellants at trial in the court a
quo
and
thereafter, including their attempt to buy the silence·
and complicity of the complainant and her husband. They
seem to have
no appreciation of the consequences of their actions on the
complainant and her husband - physically, mentally, or
emotionally.
What the appellants did was evil.
[89]
Ubuntu is expressed in justice no less
than in mercy. Justice is the foundation of all human relations, and
the fruit of its love.
It has often been the purpose of evil minds to
divorce mercy from truth and justice, and this is often driven by the
motive of
escaping unpleasant consequences.
[90]
Mercy and· justice cannot be
divorced. Evil minds may imagine that in the separation of mercy and
justice, a court could
be expected only to show mercy, thereby
absolving wrongdoers of the consequences of their actions. This
thinking is misplaced
- it lacks an appreciation for the unity
of justice. Mercy and justice work hand in hand. There would be no
need for mercy if there
was no wrongdoing. Justice calls the
wrongdoer to account and that account ought to be dealt with in a
just and merciful manner.
Remorse as a mitigating factor:
[91] In
S
v Matyityi,
[27]
the Supreme
Court of Appeal, dealing with remorse as a mitigating factor, made
the following statement:
"There is, moreover,
a
chasm between
regret and remorse. Many accused persons might well regret their
conduct, but that does not without more translate
into genuine
remorse. Remorse is
a
gnawing pain of
conscience for the plight of another. Thus genuine contrition can
only come from an appreciation and acknowledgment
of the extent of
one's error. Whether the offender is sincerely remorseful, and not
simply feeling sorry for himself or herself
at having been caught, is
a
factual
question. It is to the surrounding actions of the accused, rather
than what he says in court, that one should rather look.
In order for
the remorse to be
a
valid
consideration, the penitence must be sincere and the accused must
take the court fully into his or her confidence. Until and
unless
that happens, the
genuineness
of the contrition alleged to exist, cannot be determined. After all,
before
a
court
can find that an accused persons is genuinely remorseful, it need
·
to have
a
proper
appreciation of, inter alia: what motivated the accused to commit the
deed; what has since provoked his or her change of
heart; and whether
he or she does indeed have
a
true appreciation
of the consequences of those actions."
[92]
In the present matter, the importance of
remorse, or indeed the lack of such remorse, is to help establish the
appellants' propensity
for rehabilitation, to which an acceptance
that they acted in error - and had the conscience to realise their
error and act remorsefully
thereafter - is most important. Without
such acceptance, the prospect of the ·crime being
successfully addressed and
of rehabilitation taking place are
lessened, as in the present case. This is relevant to an assessment
of mitigation (not aggravation)
of sentence.
[93]
In the present matter the appellants
expressed no remorse whatsoever and gave no explanation, thus failing
to take the court a
quo
into
their confidence.
[94]
In
Mpongoshe
v S,
Lowe J,
observing
that the appellant did not show any remorse held:
"[39] That Appellant is
effectively a first offender in this matter, pales into
insignificance and is of little moment in consideration
of the
penalty he must sustain."
[95]
In
S v
Vilikazi,
[28]
the
SCA held that:
"In cases of serious
crime, the personal circumstances of the offender, by themselves,
will necessarily recede into the background.
Once 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 the
period should be, and those seem to me to
be the kind of "flimsy"
grounds that Ma/gas said should be avoided.
"
DETERMINATION
BY THE THIS COURT: SENTENCING:
[96]
In the preamble, in Tshabalala v S;
Ntuli v S
[29]
,
the Constitutional Court stated that:
"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. The rights to dignity, to privacy,
and the
integrity of every person are basic to the ethos of the Constitution
and to any defensible civilisation. Women in this
country are
entitled to the protection of these rights. They have
a
legitimate claim
to walk peacefully on the streets, to enjoy their shopping and their
entertainment, to go and come from work, and
to enjoy the peace and
tranquillity of their homes without the fear, the apprehension and
the insecurity which constantly diminishes
the quality and enjoyment
of their lives."
[97]
In the same matter, the Constitutional
Court held that:
"[1] The facts of this
case demonstrate that for far too long rape has been used as
a
tool to relegate
the women of this country to second-class citizens, over
whom
men can exercise their power and control, and in so doing, strip them
of their rights to equality, human dignity and bodily
integrity. The
high incidence of sexual violence suggests that male control over
women and notions of sexual entitlement feature
strongly in the
social construction of masculinity in South Africa. Some men view
sexual violence as
a
method of
reasserting masculinity and controlling women."
[98] On
the constitutional principles, the Constitutional Court stated:
"[60] The constitutional
principles of equality, dignity, protection of bodily and
psychological integrity, and not to be treated
in
a
cruel inhumane
and degrading way, should be afforded to the victims of sexual
assault. It would be
a
sad day if courts
were to countenance such an arbitrary distinction.
[63] This scourge has reached
alarming proportions in our country. Joint efforts by the courts,
society and law enforcement agencies
are required to curb this
pandemic. This Court would be failing in its duty if it does not send
out
a
clear
and unequivocal pronouncement that the South African Judiciary is
committed to developing and implementing sound and robust
legal
principles that advance the fight against gender-based violence in
order to safeguard the constitutional values of equality,
human
dignity and safety and security. One such way in which we can do this
is to dispose of the misguided and misinformed view
that rape is
a
crime purely
about sex. Continuing on this misguided trajectory would implicate
this Court and courts around this country in the
perpetuation of
patriarchy and rape culture.
[73] Rape, at its core, is an
abuse of power expressed in
a
sexual way. It is
characterised with power on one side and disempowerment and
degradation on the other. Without more being said,
we know which
gender falls on which side."
[99] The
Constitutional Court quoted very alarming statistics:
"[76] In 2018119, the
South African Police Service recorded 41 583 cases of rape, which is
an increase from 40 035 cases of
rape recorded in 2017118. This
indicates that approximately 114 cases of rape were recorded by the
police each day in 2018119.
In 2003, it was also alleged that a woman
was raped every 36 seconds in South Africa. This illustrates that
rape is not rare, unusual
and deviant. It is structural and systemic.
Incidents of rape and the fear of rape are commonplace in the lives
of women.
[78] Addressing rape and other
forms of gender-based violence requires the effort of the Executive,
the Legislature and the Judiciary
as well as our communities."
[100] The crime, rape,
of which the appellants have been convicted must be placed in its
proper context and be seen
for what it really is without fluffing it
up or sugar coating it. Here the Constitutional Court held:
[77] The importance of the
proper construction and characterisation of rape cannot be gainsaid.
This is because in all incidents
of rape, there are two victims
-
the direct victim
and the indirect victim. The former refers to someone who is actually
raped whereas the latter refers to people
who are affected by the
rape incident and the treatment of that direct victim. Again, this
reinforces that rape is systemic and
structural. We ought to heed the
warning by Sachs J, albeit in the context of domestic violence that:
'The ineffectiveness of the
criminal justice system ...sends an unmistakable message to the whole
of society that the daily trauma
of vast numbers of women counts for
little."'
[30]
CONCLUSION:
[101]
The highest standards of strict and
impartial justice should be afforded to all, even those whom we may
view as undeserving. Although
the misconduct and evil mind of
the wrongdoer must be corrected, the law observed, and justice firmly
respected, let the decision-maker
mingle justice with mercy, for
these should never be separated. What constitutes the proper
application of the two ought not be
determined from the subjective
viewpoint of the wrongdoer, who will inevitably argue for mercy, but
from an objective viewpoint
comprehending the required balance.
[102]
In appealing to this court, the
appellants subjectively expect that they can be afforded mercy and
absolved of proper sanction for
their wrongdoing. They know enough to
know that mercy is foundational to our justice system but they
arrogantly expect it to be
applied in a way which would ultimately
lead to a travesty of justice. It is truly said that one of the great
challenges in life
is "knowing enough to think you're right but
not enough to know you're wrong".
[31]
[103]
Ultimately, regarding the minimum
prescribed sentence, I find, for the reasons set out above, that
there are no substantial and
compelling circumstances which ought to
have moved the court a
quo
to
deviate and impose a sentence of less than life imprisonment; and (2)
that the sentence imposed by the court a
quo
was appropriate and in accordance
with justice and equity.
[104]
The court a
quo
correctly
analysed and applied the factors relevant to aggravation and
mitigation, as well as the appellants' personal circumstances.
[105]
All three appellants raped the complainant, and from the record it
does not appear that they showed any appreciation
or remorse for what
they did to her.
[106]
There can be no doubt about the guilt of
the appellants; their conviction and sentence are confirmed.
[107]
In the result, the appeals against all
convictions and resulting sentences are dismissed.
GAISA AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO
DIVISION, POLOKWANE
I
concur,
KGANYANGO J
JUDGE OF THE HIGH OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
APPEARENCES
FOR
THE APPELLANTS
:
MR LM MANZINI
INSTRUCTED
BY
: LEGAL AID SA, POLOKWANE
FOR
THE RESPONDENTS
: ADV N MOLEPO
INSTRUCTED
BY
: DPP POLOKWANE
DATE
OF HEARING
: 6
TH
DECEMBER 2019
DATE
OF JUDGMENT
: 20/05/20
[1]
2003 (3) SACR 134
(SCA)
[2]
[2001] 4 All SA 279
(SCA) at page 288, para E-F
[3]
(268/10) (2010]
ZASCA
162 (1 December 2010).
[4]
1991 (1)
SACR 198
(A) at 204c- e
[5]
Thoughts on the Business of Life,
https://
www.forbes.com/quotes/2632/
, accessed on 15 May 2020
[6]
SS Terblanche in 2013 (76) THRHR at page 95 to 97
[7]
2012 (1) SACR 298
(SCA)
[8]
Fredericks supra at para [8]
[9]
Fredericks supra at para [8]
[10]
1999 (2) SACR 238
(SCA)
[11]
2016 (2) SACR 720
(WCC) at 723
[12]
S v Malgas
supra
para [7]
[13]
2001 (3) SA 382 (CC)
[14]
2009 (1) SACR 552 (SCA)
[15]
S v Zinn
1969 (2) SA 537
(A) at 540G - H ("Zinn")
[16]
Zinn
supra
at 540G.
[17]
See S v V
1972 (3) SA 611
(A) at 614D; S v Rabie
1975 (4) SA 855
(A)
at 862G; S v Khumalo
[1984] ZASCA 30
;
1984 (3) SA 327
(A) at 331H - 332F; S v Pieters
1987 (3) SA 717
(A) at 738F
[18]
S v Kumalo
1973 (3) SA 697
(A) at 698; S v Sparks
1972 (3) SA 396
(A) at 410A
[19]
Hiemstra's Criminal Procedure by Victor Gustav Hiemstra, Albert
Kruger 2008, at page 28-5
[20]
1945 AD 444
at 454 para 4
[21]
1906 TS 505
at 511
[22]
1965 (4) SA 692
(A) at 695C - D
[23]
1967 (4) SA 566
(A) at 5781B - D
[24]
1990 (1)
SACR
331
(A)
[25]
Booysen
supra
at 333D - E
[26]
(CA&R211/2018) [2019] ZAECGHC 104 (9 September 2019)
[27]
2011
(1)
SACR 40
(SCA)
[28]
2009 (1) SACR 552
(SCA) at para [25]
[29]
2020 (3) BCLR 307
(CC)
[30]
Baloyi (Minister of Justice Intervening)
[1999] ZACC 19
;
2000 (1) BCLR 86
(CC) at
para 12
[31]
Neil deGrasse Tyson,
twitter.com
(1 Feb 2017)