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Thipe v S (A26/2018) [2020] ZALMPPHC 41 (19 June 2020)

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Criminal Law
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Brief Summary

Criminal Law — Rape and robbery — Conviction and sentencing — Appellant convicted of rape and robbery with aggravating circumstances, receiving life imprisonment for rape and 15 years for robbery, to run concurrently — Appeal against conviction and sentence — No substantive challenge to convictions; appeal focused on the severity of the sentence — Court finds no substantial and compelling circumstances to justify deviation from life sentence — Evidence of extreme nature of the crime and lasting trauma to the victim upheld as justification for the sentence imposed.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was an automatic appeal to the Limpopo Division of the High Court, Polokwane, arising from convictions and sentences imposed by the Nebo magistrate’s court (regional court). The appellant, Thipe, Thapelo Shelele, had been convicted on one count of rape and robbery with aggravating circumstances. The respondent was the State.


Following conviction, the appellant was sentenced to life imprisonment for rape and 15 years’ imprisonment for robbery with aggravating circumstances. In terms of section 280(2) of the Criminal Procedure Act 51 of 1977, the robbery sentence was ordered to run concurrently with the life sentence. Because a sentence of life imprisonment was imposed, the appellant enjoyed an automatic right of appeal in terms of section 309(1)(a) of the Criminal Procedure Act 51 of 1977.


The appeal was determined on the papers without oral submissions, by agreement with counsel, pursuant to section 19(a) of the Superior Courts Act 10 of 2013. Although the notice of appeal covered both conviction and sentence, the High Court recorded that the written submissions disclosed no substantive attack on the convictions, with the principal challenge directed at sentence, specifically whether the regional court erred in finding that no substantial and compelling circumstances existed to justify a departure from the prescribed sentence of life imprisonment.


The dispute therefore concerned, in substance, the correctness of the trial court’s evaluation of sentence in a matter involving gang rape, the use of a knife, physical assault, and the taking of the complainant’s property.


2. Material Facts


The material facts accepted and relied upon by the High Court emerged primarily from the complainant’s evidence, corroborative evidence from a cousin who was present shortly before the attack, and forensic DNA evidence linking the appellant to semen recovered from the complainant.


On the evening of 30 December 2014, the complainant (aged 17) was walking home with three cousins after spending time at a shop where they had been dancing. Between 23:00 and 00:00, they encountered two men on the road. The appellant produced a large knife, scraping it on the road to produce sparks, which frightened the group. The complainant and her cousins fled in different directions, and the appellant pursued the complainant while threatening her with the knife.


After catching her, the appellant punched her on the mouth, and the J88 medical report recorded bruising to the inner aspect of her upper lip. The appellant demanded and took two cellphones (including one belonging to a cousin) and removed a chain from her neck. The complainant’s evidence was that, after surrendering these items, she was not released. Instead, she was told she was “not going anywhere” and that the men intended to have sexual intercourse with her. She was pulled away to a dilapidated house, ordered to remove her pants, and raped vaginally by the appellant’s companion and then by the appellant, both without condoms, with threats and the use of the knife to prevent her from shouting.


The complainant testified that she was on her menstrual cycle at the time. After the initial rapes, she was taken further into the veld and, at rocks, was again threatened with death and raped repeatedly, again without condoms. The High Court recorded that the complainant was raped several times, amounting to a total of five rapes during the ordeal. The assailants threatened her with death if she reported the incident.


After the attack, she made her way back to the shop and the incident was reported to the police. She later identified the appellant at an identification parade. The complainant’s cousin, M[….], testified and placed the appellant and his companion at the scene immediately before the girls ran away.


The appellant testified and denied involvement in the offences. The High Court noted that the State’s case also rested on DNA evidence, namely that the appellant’s DNA matched the DNA profile obtained from semen extracted from the complainant’s vagina. The DNA evidence was recorded as not seriously challenged.


For sentencing, a pre-sentence/probation report indicated that the appellant was 19 when the offences were committed, came from a difficult socio-economic background, had passed matric, and was a first offender. The report also recorded that, despite his trial denial, he acknowledged guilt to the probation officer and alleged he succumbed to pressure from his companion (without explaining the nature of that pressure). The probation officer recommended a sentence in terms of section 276(1)(i) of the Criminal Procedure Act 51 of 1977.


The State placed a victim impact assessment report before the trial court. It recorded significant ongoing trauma, including nightmares and flashbacks, educational disruption (failure of matric and inability to continue schooling), withdrawal and isolation, and adverse effects on family members through secondary victimisation. The complainant was said to harbour hatred against men and to have derived limited benefit from counselling.


3. Legal Issues


The central issues on appeal were whether the convictions and sentences were sustainable, but the High Court made clear that there was no substantive challenge to conviction in the written submissions and that the evidence against the appellant was regarded as overwhelming.


The primary legal question concerned sentence, namely whether the trial court erred in concluding that there were no substantial and compelling circumstances justifying a departure from the prescribed sentence of life imprisonment for rape in the circumstances of this case (including repeated rape and physical injury). This involved the application of legal standards to the facts, together with an evaluative judgment about proportionality and whether the threshold for departure from prescribed sentences had been met.


A further issue concerned the scope of appellate interference in sentence, specifically the circumstances in which an appeal court may interfere with a sentence imposed in the exercise of a sentencing discretion.


4. Court’s Reasoning


On conviction, the High Court approached the matter on the basis that the trial court had carefully evaluated the evidence and that the appellant’s denial had been correctly rejected. The High Court highlighted three main sources of proof relied upon by the trial court: the complainant’s direct evidence, corroboration placing the appellant at the scene, the identification parade, and the DNA evidence linking the appellant to semen recovered after the rape. In the High Court’s view, these features rendered the case against the appellant compelling and the convictions sound.


On sentence, the High Court restated the principle that an appellate court does not interfere with sentence merely because it would have imposed a different one. Interference is warranted only where the difference between the sentence imposed and the sentence the appellate court considers appropriate is so marked that it justifies an inference that the trial court acted unreasonably or improperly. The court supported this approach with reference to S v Anderson 1964 (3) SA 494 (A).


The High Court evaluated whether the appellant had shown substantial and compelling circumstances. It considered the appellant’s age (19 at the time of the offences; 22 at sentence), first-offender status, and personal background as reflected in the pre-sentence report. It also took note of the report’s statement that the appellant acknowledged guilt to the probation officer, notwithstanding his trial denial, and the recommendation under section 276(1)(i).


However, the High Court accepted the trial court’s assessment that the appellant’s alleged remorse was not genuine. It emphasised that the appellant did not show remorse during the trial and only asserted it later in the reporting process, and it endorsed the trial court’s reliance on S v Matyityi 2011 (1) SACR 40 (SCA) for the proposition that remorse must be genuine and is not established by belated or unconvincing assertions.


In assessing the seriousness of the offences and proportionality, the High Court treated as aggravating the presence of violence and threats, including the use of a large knife, the punching of the complainant causing injury, the taking of property, the repeated nature of the rapes, and the absence of condoms which increased the risk of pregnancy and transmission of disease. It also attached weight to the complainant’s age and the prolonged and degrading nature of the ordeal, including the fact that the complainant was menstruating and nevertheless subjected to repeated sexual assaults. The emotional consequences described in the victim impact report were treated as severe and life-altering.


The High Court applied the minimum-sentencing approach articulated in S v Malgas [2001] 3 All SA 220 (A), namely that prescribed sentences are intended to be the norm for specified offences and that departure requires truly weighty justification, assessed with reference to proportionality in the circumstances of the particular case. It also referred to S v Vilakazi 2009 (1) SACR 552 (SCA) for the proposition that, in serious crimes, ordinary personal circumstances (such as marital status, children, or employment) generally recede in significance once substantial imprisonment is clearly warranted.


The High Court further relied on S v Chapman [1997] ZASCA 45; 1997 (3) SA 341 (SCA) in emphasising the invasive and degrading nature of rape and the duty of courts to send a clear message of protection for women’s dignity and equality. The court also cited S v Abraham 2013 JDR 0909 (ECG) to support the view that, for offenders over 18, youthfulness is not in itself exceptional and must be accompanied by something more to justify a deviation from prescribed sentencing outcomes.


Having weighed the appellant’s personal circumstances against the gravity of the offences and the interests of society, the High Court concluded that the trial court properly exercised its sentencing discretion. It found no misdirection and no basis to hold that substantial and compelling circumstances existed. The court accordingly held that the prescribed sentence of life imprisonment was appropriate and that the appeal lacked merit.


5. Outcome and Relief


The appeal against conviction and sentence was dismissed.


The effect was that the appellant’s sentences remained in place: life imprisonment for rape and 15 years’ imprisonment for robbery with aggravating circumstances, with the robbery sentence running concurrently with the life sentence in terms of section 280(2) of the Criminal Procedure Act 51 of 1977. The judgment, as provided, did not set out a separate or additional costs order.


Cases Cited


S v Anderson 1964 (3) SA 494 (A)


S v Matyityi 2011 (1) SACR 40 (SCA)


S v Malgas [2001] 3 All SA 220 (A)


S v Vilakazi 2009 (1) SACR 552 (SCA)


S v Chapman [1997] ZASCA 45; 1997 (3) SA 341 (SCA)


S v Abraham 2013 JDR 0909 (ECG)


Legislation Cited


Criminal Procedure Act 51 of 1977, section 280(2)


Criminal Procedure Act 51 of 1977, section 309(1)(a)


Criminal Procedure Act 51 of 1977, section 276(1)(i)


Superior Courts Act 10 of 2013, section 19(a)


Section 51 (prescribed minimum sentence provisions) (referred to in the judgment as “section 51 of the Act”)


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The High Court held that the trial court’s convictions on rape and robbery with aggravating circumstances were supported by overwhelming evidence, including eyewitness testimony, identification evidence, and uncontroverted DNA evidence, and that there was no basis to interfere with the rejection of the appellant’s denial.


On sentence, the High Court held that the regional court correctly applied the prescribed minimum sentencing framework and did not err in finding an absence of substantial and compelling circumstances. The appellant’s youthfulness and personal circumstances, viewed against the brutality, repetition, threats, and enduring harm caused by the offences, did not justify departure from the prescribed sentence of life imprisonment for rape. The appeal was therefore dismissed in its entirety.


LEGAL PRINCIPLES


The judgment applied the principle that an appellate court will not interfere with a sentence imposed in the exercise of a sentencing discretion unless the disparity between the imposed sentence and the sentence the appellate court considers appropriate is so significant that it indicates unreasonableness or improper exercise of discretion.


The judgment applied the minimum-sentencing approach that prescribed sentences are intended to be imposed ordinarily for specified serious offences, and that departure is permitted only where substantial and compelling circumstances are present, assessed through a proportionality enquiry in the context of the case’s particular facts.


The judgment applied the principle that, in serious offences such as rape, personal circumstances of an offender frequently carry reduced weight once it is clear that a lengthy term of imprisonment is warranted, and that courts should avoid relying on insubstantial personal factors as grounds for deviation.


The judgment applied the principle that remorse must be genuine and is not established by belated assertions inconsistent with an accused’s stance during trial, and that a lack of demonstrated remorse may weigh against mitigation.


The judgment reaffirmed the understanding of rape as a profoundly degrading and invasive crime and treated repeated rape, the use of threats and weapons, physical assault, and demonstrable long-term psychological harm as powerful aggravating considerations in the sentencing balance.

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[2020] ZALMPPHC 41
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Thipe v S (A26/2018) [2020] ZALMPPHC 41 (19 June 2020)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE: NO
(2)
OF INTEREST TO
OTHER JUDGES:  NO
(3)
REVISED:
YES / NO
CASE
NO: A26/2018
In
the matter between:
THIPE,
THAPELO SHELELE

APPELLANT
And
THE
STATE

RESPONDENT
J
U D G M E N T
MUDAU,
J:
[1]
The
appellant in this matter was convicted on one count of rape and
robbery with aggravating circumstances in the Nebo magistrate's

court. Subsequently, he was sentenced to life imprisonment in respect
of the rape charge and 15 years’ imprisonment for robbery.
In
terms of s 280(2) of the Criminal Procedure Act 51 of 1977(CPA),
the sentence in respect of robbery was ordered to run
concurrently
with the sentence imposed in respect of count the rape charge.
Pursuant to the sentence of life imprisonment being
imposed by the
regional court, the respondent lodged an appeal against his
conviction and sentence by virtue of the automatic right
of appeal
sanctioned in terms of s 309(1)(a) of the CPA.
After
an agreement with counsel, this appeal was disposed of on papers
without further oral submissions in open court, pursuant
to
section
19
(a) of the
Superior Courts Act 10 of 2013
.
From the written submissions on behalf of the appellant, there is no
substantive attack on the convictions.
[2]
Briefly
stated, the facts regarding this matter are as follows. Ms. PDM
testified that as at 30 December 2014, which is the day
of the
incident she was 17 years of age. At about 6 PM she and her cousins,
D[….], M[….] and K[….] went for
a visit at her
grandmother’s place. They visited a shop in the area where they
spent time dancing to the music. Between 11
and 12 midnight later as
they walked back home, they met with two men who stood in front of
them on the road. One of the two men,
the appellant in this matter
produced a huge knife that he scratched on the road surface, which
caused sparks. This frightened
the girls who ran in separate
directions. However, the appellant chased after her still holding the
knife with which he threatened
her to stop.
[3]
Upon
reaching her, the appellant punched her on the mouth. Consequently as
per the J 88 report compiled at 04:40 early the next
morning, she was
bruised on the inner aspect of her upper lip. Thereafter he demanded
the two cell phones that she had in her possession
one of which
belonged to her cousin, D[….]. As the appellant was taking off
the chain around her neck, his companion who
had been chasing one of
the other girls joined them. She had hoped to be released after
handing over her valuables. That was not
to be. Her pleas were
ignored. They told her clearly that she was not going anywhere, and
that they wanted to have sexual intercourse
with her. Both of them
started touching her on her private parts whilst pulling her away.
They pulled her to a dilapidated house
after which she was ordered
to take off her pants. The appellant’s companion, a hefty man
in appearance, took out his
penis that he ordered her to insert into
her vagina. She was then pushed to the ground. The man was rude and
swearing at her.
[4]
She
pleaded with him to at least, use a condom before raping her. At all
material times, the appellant stood by, holding the knife
telling her
not to shout. The appellant’s companion proceeded to rape her
without the use of a condom, which took approximately
15 minutes
until he ejaculated. Thereafter, the appellant raped her as well
without the use of a condom for about 10 minutes until
he too
ejaculated. As she was being raped, the appellant’s companion
held the knife. She was on here menstrual cycle at the
time. When he
was finished raping her at that point, he ordered her to dress up.
Her panties were soiled up. She left her sanitary
pad on the scene.
[5]
She
did not put her panties on again. She was taken further into the
veld. At some rocks, there she was ordered to bend over and

threatened with death in case she refused. Once more, the two of them
raped her vaginally without the use of condoms and in turn.
When the
appellant’s companion was finished raping her, the appellant
raped her one more time, again without the use of a
condom. They
threatened her with death in the event she reported the incident to
the police as they left. Eventually she made her
way to the shop
where she and her cousins were earlier that night. Police were
called, and the incident was reported. She later
identified the
appellant at an identification parade. The complainant’s
cousin, M[….] also testified and confirmed
the events that
occurred that night. She placed the appellant and his companion at
the scene of the incident before the girls ran
away.
[6]
The
appellant testified and denied committing any of the crimes with
which he was charged.
[7]
The
case against the appellant was also based on the forensic evidence
concerning the matching of his DNA with the DNA analysis
of the semen
extracted from the complainant’s vagina after she was gang
raped. The DNA evidence was not seriously challenged.
The
learned magistrate carefully analysed all the evidence before him,
considered all the arguments presented, and in a well-reasoned

judgment concluded that the appellant was guilty of the
charges referred to above. In my view, the learned
magistrate
cannot be faulted for finding the appellant guilty of the
crimes he was charged with. The trial court was correct in rejecting
the appellant’s version on the merits.
[8]
It
remains to deal with the appeal on sentence. The attack against the
sentence is that the trial court erred in finding that there
are no
substantial and compelling circumstances justifying another sentence
other than life imprisonment. It is trite that, a Court
of appeal
will not alter a determination arrived at by the exercise of a
discretionary power merely because it would have exercised
that
discretion differently. “There must be more than that, the
Court of appeal, after careful consideration of all the relevant

circumstances as to the nature of the offence committed and the
person of the accused, will determine what it thinks the proper

sentence ought to be, and if the difference between that sentence and
the sentence actually imposed is so great that the inference
can be
made that the trial court acted unreasonably, and  therefore,
improperly, the Court of appeal will alter the sentence.
If there is
not that degree of difference the sentence will not be interfered
with”. (See S. v
Anderson
,
1964
(3) SA 494 (A)
at 495.)
[9]
From
the presentencing report presented, the appellant was 19 years of age
when the offences were committed. He was the youngest
of four
siblings. He came from a difficult upbringing in that his mother, a
domestic worker was the main source of income. The
family depended
largely on social grants for upkeep. He passed matric, after having
trouble passing in earlier grades. However,
he was 22 years of age, a
first offender, unmarried and without dependents, upon being
sentence. In spite of his initial denial
of the offences, the
appellant acknowledged his guilt to the probation officer who
compiled the report.
[10]
On
his version, he had succumbed to pressure from his companion in
committing the offences. The nature of the pressure was not spelt

out. The report surrounding his interpersonal relations is somewhat
conflicted. Before he matriculated with a diploma pass and
change
schools, there was a report of him having tried to stab another
leaner. The last report was that he was a good person. The
probation
officer recommended a sentence in terms of
section 276
(1) (i) of the
CPA. The section provides for imprisonment from which such a person
may be placed under correctional supervision
in in the discretion of
the commissioner of prisons.
[11]
The
state presented a victim impact assessment report. From this report,
the complainant still suffered nightmares and experienced
flashbacks
because of the incident. The incident of the crime traumatized her
badly. In 2015, she failed her matric. Her attempts
to continue with
her schooling in 2016 also failed. As at the time of the trial in
2017, she was doing nothing but remained at
home. The complainant’s
family members reported suffering from secondary victimization from
the incident. The complainant
harboured hatred against men in
particular. Although she attended counselling, it did not help. She
became more withdrawn and isolated.
[12]
In
imposing the life sentence, the learned magistrate concluded that the
appellant did not show any sign of remorse during the trial
but only
mentioned this aspect in the presentencing report. He was of the view
that the appellant was not genuinely remorseful
but regretted the
incident with reference to S
Matyityi
2011 (1) SACR 40
(SCA).
[13]
In
this case, there had been violence, as the complainant was punched on
her resulting in an injury, preceded by threats thereof
with a huge
knife. The complainant, a young girl, suffered physical injury to her
mouth over and above that, inherent in the offence
committed. The
appellant and his companion did not minimise the risk of pregnancy
and transmission of other sex related diseases
by using condoms. The
emotional impact on the complainant because of the incident has been
life changing. At the time of her testimony,
she was still suffering
emotional distress and trauma. She cried during her testimony.
The
appellant face life imprisonment because the victim was raped more
than once
(several
times)
by
the accused and as co-perpetrator,
and
because the complainant suffered an injury on her mouth in the course
of the rape.
[14]
In
S
v
Malgas
[2001] 3 All SA 220
(A), it is said that a court must
approach
the matter 'conscious [of the fact] that the Legislature has ordained
[the prescribed sentence] as the sentence that should ordinarily and

in the absence
of weighty justification be imposed for the listed crimes in the
specified circumstances. However, whether the prescribed sentence
is
indeed proportionate, and thus capable of being imposed, is a matter
to be determined upon a consideration of the circumstances
of the
particular case.
Malgas
made
it clear that the Act signalled that it was not to be 'business as
usual' when sentencing for the c
ommission
of the specified crimes.
[15]
In
S v
Vilakazi
(2009 (1) SACR 552
(SCA), Nugent JA stated at para 51: “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 that period
should be, and those seem to me to be the kind of 'flimsy' grounds
that Malgas said
should be avoided”. That our country
is facing a crisis of epidemic proportions in respect of gender-based
violence and rape,
particularly of women and young children, is an
understatement. It remains a blot given our human rights culture
since the advent
of the Constitution and the prestige in which this
is viewed worldwide.
[16]
The
question to be answered is whether the trial court erred in failing
to find that the circumstances of this case were so substantial
and
compelling, as to justify a departure from imprisonment for
life. In this case the complainant was subjected to not only
sexual
abuse of an extreme nature, she was verbally abused, and as indicated
above, but also physically assaulted. To add insult
to injury, two
adult men sexually assaulted her over a long period repeatedly, a
total of 5 times, during that period in the month
that she needed
ultimate privacy. That she was menstruating did not deter the
appellant and his companion. Accordingly, it is necessary
to echo a
few incontrovertible truths. Rape is unquestionably a degrading,
humiliating and brutal invasion of a person's most
intimate, private
space as evidenced by the facts in this case (The oft-quoted dictum
of the SCA in S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) at 344J –
345A is apposite).
[17]
Undeniably,
life imprisonment is the most severe sentence that a court can
impose.
Courts
are
obliged to impose those sentences (specified minimum sentences)
unless there are truly convincing reasons for departing from
them (S
v Matyityi
2011 (1) SACR 40
(SCA) at [23]. As Pillay J puts it in
S
v Abraham 2013 JDR 0909 (ECG) at para 22-23,
where life imprisonment for a 19 years old was confirmed on appeal:
“
[I]t
is clear from the Act itself (51 (b)) that section 51 of the Act does
not apply to offenders who are under the age of 16 years
old and that
even if it is applicable , a maximum of half the prescribed sentence
may be suspended where the offender is under
18 years old. (51 (5)
(b)). It is therefore clear that offenders over the age of 18
are perceived as capable of being sentenced
in terms of the act
without any exceptions. They must be treated as adults and
youthfulness does not seem to constitute an
exceptional factor. This
means then that age must be accompanied by something more in order to
find that it would be an injustice
to impose the
minimum
sentence”.
[18]
The
trial magistrate made a finding in respect of which I can find no
fault. The evidence against the appellant was overwhelming.
To recap,
this being the direct evidence by the witnesses, the results of the
identification parade as well as the DNA evidence.
During the trial,
he expressed no remorse for his conduct, but did so when the report
before sentence was compiled in respect of
which the learned
magistrate said the appellant was merely regretting that he was
caught, and that the remorse was not genuine.
[19]
In
my view, the delicate relationship between the gravity of the
offences, the interests of society and the interests of the appellant

was properly considered. In the circumstances, having considered
all the relevant issues, the appeal against conviction and
sentence
is without merit. There are no substantial or compelling
circumstances that are found in favour of the appellant. As Mahomed

CJ stated in Chapman: “
The
Courts are under a duty to send a clear message to the accused, to
other potential rapists and to the community: We are determined
to
protect the equality, dignity and freedom of all women, and we shall
show no mercy to those who seek to invade those rights”
.
I agree. It follows therefore that the appeal against conviction as
well as prescribed sentence of life imprisonment must fail.
[20]
In
the result, the appeal against conviction and sentence is dismissed.
T P MUDAU
Judge of the High Court
I agree
M V SEMENYA
Judge of the High Court
Date of Hearing:

15 June 2020
Date of Judgment:

19 June 2020
APPEARANCES
For the Appellant:

Adv.Nonyane
Instructed by:

Legal Aid
For the Respondent:

Adv. Kotze
Instructed by:

DPP –
Polokwane

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