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[2019] ZAGPPHC 207
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Shikwambana v S (A274/2018) [2019] ZAGPPHC 207 (12 June 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES/
NO
(3)
REVISED
Case number: A274/2018
Date of hearing: 3 June 2019
Date delivered: 12 June 2019
In
the matter between:
REUBEN
SHIKWAMBANA
Appellant
and
THE
STATE
Respondent
JUDGMENT
SWANEPOEL
AJ
THE
CHARGES
[1]
Appellant was charged in the Pretoria
Regional Court with three counts:
1.1
Kidnapping:
In that on or about 28 January 2014 and at Mamelodi he unlawfully and
intentionally deprived M[….] N[….]
("the
complainant") of her freedom of movement by forcefully taking
her to Mamelodi and threatening to kill her should
she try to run
away;
1.2 Contravention
of section 3 of the Criminal Law (Sexual Offences and Related
Matters) Amendment
Act, Act 32 of 2007, in that on 28 January 2014 he
unlawfully and intentionally committed an act of sexual penetration
with the
complainant without her consent;
1.3 Contravention
of section 3 of the Criminal Law (Sexual Offences and Related
Matters) Amendment
Act, Act 32 of 2007, in that on 29 January 2014 he
unlawfully and intentionally committed an act of sexual penetration
with the
complainant without her consent.
[2]
Counts 2 and 3 carry a minimum sentence
of 10 years' imprisonment in the event of the accused being a first
offender, by virtue
of the provisions of section 51 (2) (b) read with
Part Ill of Schedule 2 of the Criminal Law Amendment Act, Act 105 of
1997, a
fact of which appellant was alerted in the charge sheet.
[3]
The appellant pleaded not guilty to all
counts, and in a plea explanation he stated that he and the
complainant were lovers and
that she had gone with him voluntarily.
He stated that they had had intercourse with the complainant's
consent. He denied that
he had kidnapped the complainant.
[4]
The appellant was duly convicted and
sentenced to 4 year's imprisonment on count 1, and ten years'
imprisonment on each of counts
2 and 3. The imprisonment in respect
of count 3 was ordered to run concurrently with that on count 1,
effectively a sentence of
twenty years' imprisonment. This appeal is
against both conviction and sentence.
THE EVIDENCE
[5]
The State called the complainant to
testify. A brief synopsis of her evidence is as follows:
5.1
She
met the appellant for the first time on the morning of 28 January
2014 when she went to drop her children off a creche in Ekangala.
He
approached her and asked whether she was looking for a job, and when
she confirmed that she was, he told her that there was
employment
available at a shop in Cullinan where he was then working. They
agreed to meet at Cullinan where he would introduce
her to his
employer.
5.2
The
complainant left her children at the creche and went home to advise
her husband that she was going to Cullinan to look for a
job. Knowing
that he would object should she tell him that she was going with
another man, she told him that she was going with
a woman. Her
husband was not happy to let her go, but she left nonetheless.
5.3
Upon
her arrival in Cullinan she met up with appellant. They found a lift
which took them to a four-way stop where they alighted.
They started
walking to appellant's place of employment. They walked a long way
and whenever she asked where they were going, appellant
kept saying
that the place they were going to was further along.
5.4
Eventually
complainant became: apprehensive and told the appellant that she was
leaving, at which point he took out a knife and
threatened her. He
said he would cut her throat unless she did what she was told. He
later told her that they were going to his
place in Mamelodi.
5.5
During
this ordeal appellant told the complainant that she should act in
such a manner that they looked like a couple. He said his
job was
killing people and that he had previously killed a woman. He also
stated that he had been sent to kill her, and that if
he could not
kill her, he would kill her husband.
5.6
Upon
their arrival in Mamelodi they eventually found accommodation at the
home of one R[….] M[….]. She gave them a
bed to sleep
in, and when the complainant wanted to sleep on a sofa, the appellant
insisted that she should sleep in the bed with
him. It was at that
point that appellant started to undress the complainant and himself,
whereafter he raped her.
5.7
The
following day they left Masoga's place and walked a long way until at
one point they entered a bushy area where he raped her
again. They
then proceeded to appellant's brother's place where they were given
money. They boarded a taxi and returned to Ekangala.
Appellant asked
for her cellular telephone number, and they separated. The
complainant went straight to the police station to report
the events.
[6]
The State also called Masoga who
testified that appellant had asked her for accommodation and food.
Masoga specifically noticed
that the complainant was acting
strangely. She was withdrawn and quiet and was not responding to
anything. The following morning
when she offered them breakfast,
appellant was the only one who responded to her. The complainant was
still quiet, to such an extent
that Masoga took note of her strange
conduct. That concluded the State's case.
[7]
The court refused an application for a
discharge in terms of section 174 of the Criminal Procedure Act, Act
51 of 1977. Appellant
testified that he had known the complainant for
some four months and had been involved in a relationship with her.
They planned
a trip to Bronkhorstspruit or Mamelodi so that she could
meet his relatives. The complainant left her children at the creche
and
told him that her sister in law would care for them. They met up
later at a four-way stop where she told him that he did not need
to
worry about her husband because he worked in Kempton Park during the
week and only returned on Fridays. The complainant also
suggested
that they should go to Mamelodi.
[8]
For some reason they found a lift with a
vehicle going to Cullinan where they purchased food. They waited a
while and by the time
the sun was setting they found a lift to
Mamelodi. They could not visit his family because it was already late
and they would not
have approved of him having a girlfriend, as he
was already staying with another woman. They could not find
accommodation, and
eventually they ended up at Masoga's home.
[9]
He denied that he had raped her, and
although he admitted having intercourse with the complainant, he
alleged that it was consensual.
The following morning they left
Masoga's place and went to Mama Fikile's business. There he
introduced the complainant to his cousins
and told them that she was
his second wife. Everyone welcomed the complainant and appellant
explained to his cousins that he had
had a disagreement with his
wife. The complainant also explained that she had had a falling out
with her husband, and that she
was in a relationship with appellant.
They eventually left Mamelodi at 17h00 having spent the day with his
family and they eventually
separated in the vicinity of the creche in
Ekangala. He denies having intercourse with the complainant in a bush
on 29 January
2014.
[10]
At some stage appellant was apprehended by a police officer who had a
description of the complainant's
rapist. He apparently recognized the
appellant from the description and duly arrested him. The complainant
later pointed appellant
out at an identity parade. That concluded the
evidence
EVALUATION
OF EVIDENCE
[11]
The court a
quo
found the complainant to be a credible witness
and the evidence .of the appellant was rejected as being false beyond
a reasonable
doubt. In our view there is no reason to fault the court
a
quo's
credibility finding. On the one hand, the complainant
was a straightforward witness who even volunteered that she had
misled her
husband by saying that she was going to Cullinan with a
woman. She could have left out that information to protect her
credibility.
The fact that she was forthcoming about lying to her
husband is indicative of her credibility.
[12]
The complainant's evidence reveals a
woman who was so scared by the threats of violence to herself and to
her husband, that she
was willing to go along with whatever the
appellant wanted her to do. Her evidence is supported by that of
Masoga. Masoga's testified
that something was clearly bothering the
complainant. She was withdrawn and unresponsive, to such an extent
that Masoga even asked
appellant what was wrong with her. This
evidence supports complainant's version that she was being held
against her will. Furthermore,
when the complainant eventually
escaped the appellant's clutches, she went straight to the police
station to report the rape. It
is inexplicable that a woman who was
with a man of her own free will, would suddenly make false and very
serious allegations against
him, unless she had in fact been raped.
[13]
On the other hand one has the convoluted
version of the appellant. He testified that he specifically wanted to
show off his new
girlfriend to his family in Mamelodi, but for some
reason they ended up going to Cullinan. When he eventually reached
Mamelodi
and he had to introduce the complainant to his family he
demurred, on the grounds that it was late and that they would not
approve
of him having another girlfriend.
[14]
Whereas they initially intended to go to
his place in Mamelodi, they ended up not having anywhere to spend the
night, and they had
to approach a stranger to help them with
accommodation.
[15]
What is strange about appellant's
version is that having allegedly had this long standing relationship
with the complainant, and
having introduced the complainant to his
family, one would have expected the appellant to try and contact her
again after the incident.
He did not do so.
[16]
Furthermore, even though there is no
onus on appellant to prove his innocence, one would have expected the
appellant to call his
cousins to testify. They could have confirmed
that he had introduced the complainant to them, and that she had told
them that they
were involved in a relationship. It would have been
incontrovertible evidence of the truth of his version. He did not do
so, in
our view, because he had fabricated a version. In our view the
court a
quo
was
correct in rejecting appellant's version. In the circumstances the
appeal against conviction should be dismissed.
SENTENCE
[17]
The appellant was 44 years old when the
offences were committed. In a pre-sentence report it was reported
that appellant still maintained
that he had been involved in a
relationship with the complainant and that they had travelled to
Mamelodi at complainant's insistence
so that she could meet his
family. The appellant was therefore still not prepared to accept
responsibility for his actions. The
pre-sentence report indicates a
complete lack of remorse.
[18]
Appellant is unmarried and has two
children, one that was 18 years, and the other 3 years of age at the
time of sentencing. He was
unemployed and had experienced difficulty
in obtaining employment. He is not a first offender, but none of his
previous convictions
were for offences of a sexual nature.
[19]
The offences were particularly
abhorrent. Both the kidnapping and the rapes would have been
traumatizing for the complainant. The
appellant took advantage of the
complainant's desperation to obtain employment. He knew that she was
vulnerable and he exploited
that vulnerability. The offences were
committed over a span of more than 24 hours. In that time the
complainant was threatened
that she would be killed, and also that
her husband would be murdered, should she not cooperate. She was
completely at the mercy
of the appellant who showed her no mercy.
[20]
The incident nearly cost the complainant
her marriage, and has left her psychologically scarred. The
complainant's mother-in-law
reported that the incident had
traumatized the entire family and that it had destroyed the
complainant's husband's trust in her.
[21]
In considering whether to interfere in a
sentence, an appeals Court must bear in mind that the sentence is
preeminently a matter
for the discretion of the trial court.
(The
State v Skenjana
1985 (3) SA
51
(A))
It is not for this Court
to usurp the sentencing discretion of the trial court.
[22]
The court
a quo
quite correctly considered the so-called
'triad', the personal circumstances of the appellant, the seriousness
of the offences,
and the interests of the community.
(See:
The
State v Zinn
1969 (2) SA 537
(A) at 540)
The personal
circumstances of the appellant are unremarkable, and there are no
mitigating factors. He was not a young man, and he
should have known
better than to kidnap and rape a woman 18 years his junior.
[23]
As far as the offences are concerned,
rape is one of the most serious crimes. These Courts are faced with
these cases on a daily
basis and rape seems to be becoming more and
more prevalent. Victims are often targeted specifically because they
are vulnerable,
or, as in this case, desperate for a job. Not only
does the offence have a devastating impact on the victim, one finds
that it
has a ripple effect on the families of both the complainant
and the victim that lasts for years afterwards. It is an offence that
goes to the very fabric of our society, harming relationships,
reputations and causing enormous psychological harm. As stated in
Skenjana (supra at
55
B)
a
Court must give recognition to the natural indignation and the fears
and apprehensions of interested parties and the community
at large,
in considering a sentence for such a serious offence.
[24]
The legislature has found it necessary
to impose minimum sentences for those convicted of rape. The
legislation clearly reflects
the revulsion that society feels towards
this crime. Therefore, before a court is entitled to deviate from the
minimum sentence,
it has to be satisfied that there are substantial
and compelling circumstances that justify the deviation from the
minimum sentence.
[1]
[25]
The manner in which to approach the
enquiry into whether there are substantial and compelling reasons to
deviate from the minimum
sentence was outlined in
The
State v Ma/gas
2001 (2) SA 1222
(SCA at 1230 I to 1231
DJ:
"Moreover, those circumstances had to
be substantial and compelling. Whatever nuances of meaning may lurk
in those words, their
central thrust seems obvious. The specified
sentences were not to be departed from lightly and for flimsy reasons
which could not
withstand scrutiny. Speculative hypotheses favourable
to the offender, maudlin sympathy, aversion to imprisoning first
offenders,
personal doubts as to the efficacy of the policy implicit
in the amending legislation, and like considerations were equally
obviously
not intended to qualify as substantial and compelling
circumstances. Nor were marginal differences in the personal
circumstances
or degrees of participation of co-offenders which, but
for the provisions, might have justified differentiating between
them. But
for the rest I can see no warrant for deducing that the
legislature intended
a
court
to exclude from consideration, ante omnia as it were, any or all of
the many factors traditionally and rightly taken into
account by
courts when sentencing offenders. The use of the epithets
"substantial" and "compelling" cannot
be
interpreted as excluding even from consideration any of those
factors. They are neither notionally nor linguistically appropriate
to achieve that. What they are apt to convey, is that the ultimate
cumulative impact of those circumstances must be such as to
justify a
departure. It is axiomatic in the normal process of sentencing that,
while each of a number of mitigating factors when
viewed in isolation
may have little persuasive force, their combined impact may be
considerable."
[26]
It was argued on behalf of appellant
that an effective sentence of twenty years' imprisonment was
excessive . Whether we believe
that the sentence is excessive is not
the point. As was pointed out by Nicholas JA in
Skenjana
(supra),
even
if we were of the view that the sentence was more severe than that
which we would have imposed had we been conducting the trial,
the
question is whether the trial court exercised its discretion
reasonably. As it happens, we agree that there were no substantial
and compelling circumstances that justify a lesser sentence, and that
the sentence was appropriate. In the circumstances there
are no
grounds to interfere in the sentence.
[27]
I therefore propose the following
order:
27.1 The appeal against
conviction and sentence is dismissed.
·
Swanepoel
AJ
,
Acting
Judge of the High Court,
Gauteng
Division, Pretoria
I
agree and it is so ordered
JANSE
VAN NIEUWENHUIZEN
Judge
of the High Court
Gauteng
Division, Pretoria
[1]
Section 51 (2) (b), read with Schedule 2 of The Criminal Law
Amendment Act, Act 105 of 1997 (as amended):