About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2019
>>
[2019] ZANCHC 34
|
|
Mthini v S (CA & R 16/19) [2019] ZANCHC 34 (30 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA, NORTHERN CAPE DIVISION, KIMBERLEY
Not reportable
Case no: CA & R 16/19
In
the matter between:
AYANDA
MTHINI
APPELLANT
And
THE
STATE
RESPONDENT
Heard:
06 May 2019
Delivered:
30 August 2019
Coram:
Phatshoane J and Pakati J
JUDGMENT
PHATSHOANE
J
[1]
Mr
Ayanda Mthini, the appellant, and Mr Michael Gqedyua, his co-accused,
stood trial as accused No1 and No 2, respectively, before
a Regional
Court Magistrate, Ms A.I. Venter, sitting at the Regional Court,
Colesburg . They faced two counts of rape in contravention
of
s 3
of
the
Criminal Law (Sexual Offences and Related Matters) Amendment Act,
32 of 2007
, and were convicted as charged on 03 July 2012. The
convictions were taken together for purposes of sentence and each one
was sentenced
to life imprisonment.
[2]
The
appellant was out of time in noting his appeal and therefore sought
condonation which the State did not oppose as it is apparent
from the
record that there were various delays which could not be attributed
to him. I can conceive of no prejudice if condonation
is granted and
it is so ordered.
[3]
The
appeal is directed against the sentence only in terms of s 309(1)(a)
of the Criminal Procedure Act, 51 of 1977 ("the CPA"),
which affords convicted and sentenced persons an automatic right to
appeal if the accused person was sentenced to imprisonment
for life
by a Regional Court under s 51(1) of the Criminal Law Amendment Act,
105 of 1997 ("the minimum sentence legislation").
He or she
may note an appeal without having to apply for leave in terms of s
3098.
[4]
In
the main Mr Steynberg, for the appellant, contended that the Court
a
quo
erred in finding that there were
no substantial and compelling circumstances justifying a departure
from the imposition of a sentence
of life imprisonment; that the
sentence imposed was shockingly harsh and inappropriate in that it is
disproportionate to the crime,
the circumstances of the offender and
the interest of the society; and further that the appellant is a good
candidate for rehabilitation.
[5]
The
State's case was as follows. On 26 March 2010 at about 19h30 the 16
year old Ms JVR, the complainant, accompanied accused No
2 to "Die
Hoek" Township to look for her cousin, Stompie, who happened to
be accused No 2's girlfriend, but could not
find her. On their way
back home they were accosted by the appellant who blocked the
complainant's way. She fled but fell on her
knees. The appellant
grabbed her arm and pulled her; she tried to break-free but he held
her tight; she loosened the grip and ran
towards accused No 2's
mother, who was slightly inebriated and told the complainant to leave
her alone. She ran towards her aunt's
in-law's house but because the
dog was barking loud they could not hear her screams. The appellant
caught up with her; grabbed
her by her throat; and closed her mouth.
[6]
The
appellant and accused No 2 pulled the complainant to a desolate red
brick house with no doors or lighting. The appellant informed
accused
No 2 to have intercourse with the complainant first. She testified:
"En toe hou hy die k/ip hier by
my gesig, hier by die deur-waar ek by die deur staan....hy wou my
gekap het met die klip in
my gesig. Toe skreeu ek."
The
appellant missed her with the stone because she ducked. Accused No 2
ordered her to take off her pair of trousers. She refused.
Accused No
2 lowered her trousers. He climbed on top of her; penetrated her
vagina with his penis; and had intercourse with her.
She kept
screaming and crying. The appellant kept guard at the door. When
accused No 2 had completed his misdeed the exact roles
were reversed.
The appellant climbed on top of the complainant; inserted his penis
into her vagina and had intercourse with her.
[7]
The
19 years old Ms Bukelwa Jacobs corroborated the complainant's version
in material respects. At about 19h00 on 26 March 2010
Bukelwa and her
friends including accused No 2's brother, Jonathan (Nosi) Gqedyua,
came across accused No 2 and the complainant
who both said that they
were on their way to look for accused No 2's girlfriend. Bukelwa
noticed the appellant running towards
the complainant and enquired
from accused No 2:
"How does he
leave a "top notch" alone".
Bukelwa
witnessed the brawl as described by the complainant. She also heard
the complainant scream that
"he
should not kill her"
because
the appellant had picked up a stone.
[8]
Bukelwa
saw the complainant being dragged by the appellant to a desolate
house situated opposite her home, approximately 15 meters
away, while
accused No 2 was following them. She saw accused No 2 standing in the
passage of the old house. Bukelwa and one Kaaitjie
reported the
incident to the police. They, escorted by the police, pounced on the
appellant who was with the half-naked complainant.
Accused No 2 was
nowhere to be seen. Bukelwa observed that the complainant had her
panty and pants in her hands and was crying
and also shivering. The
appellant told the police that he engaged in the sexual intercourse
with the complainant in return for
the payment of R50.00 which
allegation was denied by the complainant. Jonathan (Nosi) Gqedyua,
accused No 2's brother, also heard
the complainant screaming and saw
her cry.
[9]
Constable
Mario Baardman, who accompanied Bukelwa to the scene, in essence
corroborated Bukelwa's account as they were in each other's
presence.
The appellant informed the officers that he had an accomplice and
undertook to take the officers to his accomplice's
home. They
proceeded to accused No 2's home but did not find him. The appellant
requested that he be taken to his family to inform
them of the
episode. Upon their arrival he became rebellious which necessitated
the police to put him back into their van.
[10] `The
police took the complainant to the Police Station and thereafter to
Manne Dipico Hospital where
she slept overnight and was examined in
the morning. The medical report (J88), which was completed by Dr N
Strampe, was handed
in evidence by consent. It showed that the
complainant had superficial laceration to her labia majora and labia
minora.
[11]
The
Magistrate found that the appellant contradicted himself in a number
of material respects which she painstakingly highlighted
in her
judgment. In the overall, she reasoned that the two accused were
clutching at straws. They colluded and acted with a common
purpose to
haul the complainant to the deserted house in order to have
intercourse with her. She rejected their evidence as false
insofar as
it was contradicted by the evidence adduced by the State.
[12]
The
Magistrate had an in depth regard to the interest of the society, the
offence, and the appellant and his co-accused's personal
and
mitigating circumstances. She noted that the appellant and accused No
2 were in their mid-twenties, 26 and 24 years old, respectively,
at
the time of the commission of the offences; they did odd jobs prior
to their arrest; they were involved in romantic relationships
with
other women and had dependents which they had no contact with. The
appellant had a previous conviction of assault with the
intention to
cause grievous bodily harm dated 19 April 2000 and was sentenced to
R500.00 fine or 100 days imprisonment which was
wholly suspended on
certain conditions; on 02 July 2004 he was convicted of assault and
was cautioned and discharged; on 03 November
2004 he was convicted of
escaping or attempting to escape and robbery for which he was
sentenced to nine years direct imprisonment.
The Magistrate labelled
the appellant and his co-accused's previous convictions: ':A
worrisome testimony of their lives on
earth."
[13]
The
Magistrate further considered that the appellant had been in prison
awaiting his trial from 17 September 2010 to 03 July 2012
which, she
remarked, the State could not be blamed for because the trial had
been postponed several times at the behest of the
appellant and his
co-accused. The Magistrate was of the view that they failed to show
any contrition and instead lied to the Court
that the complainant had
visited them in prison where she recanted on her accusation that she
was raped which resulted in her being
recalled to once more testify.
[14]
The
Magistrate noted that although the complainant did not receive
counselling it appeared that she suffered some psychological
scars.
She was of the view that the appellant and his accomplice posed a
serious danger to society which required protection from
them. On the
whole, she found that there were no substantial and compelling
circumstances which required deviation from the imposition
of the
prescribed sentences.
[15]
What
arises for consideration in this appeal is whether the Court
a
quo
misdirected itself in finding
that there were no substantial and compelling circumstances
justifying a deviation from the imposition
of the prescribed sentence
of life imprisonment and/or whether the sentence imposed is
shockingly harsh and inappropriate.
[16]
Mr
Steynberg contended that the Court
a
quo
erred in not attaching weight to
the fact that the complainant did not suffer any serious injuries
during the commission of the
offences. He submitted that although the
absence of physical injuries does not in itself amount to substantial
and compelling circumstances
it is a factor to be taken into account
in determining an appropriate sentence.
[17]
Mr
Steynberg further submitted that the appellant is terminally ill and
attempted to commit suicide while in prison awaiting his
trial; that
this was his first contravention of
s 3
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 32 of 2007
; that the
Magistrate erred in overemphasizing the appellant's lack of remorse;
that the appellant's personal and mitigating circumstances
considered
cumulatively justify a deviation from the imposition of life
imprisonment. Lastly, he submitted, that at the age of
29, when the
appellant was sentenced, he was relatively youthful. Therefore, the
sentence of life imprisonment was severe and left
no room for
rehabilitation.
[18] In
Director of
Public Prosecutions v Mngoma
[1]
,
the SCA restated
the well established principle as follows:
'[11] The powers of an appellate
court to interfere with a sentence imposed by a lower court are
circumscribed. This is consonant
with the principle that the
determination of an appropriate sentence in a criminal trial resides
pre-eminently within the discretion
of the trial court. As to when an
appellate court may interfere with the sentence imposed by the trial
court, Marais JA enunciated
the test as follows in
S v Ma/gas
2001
(1) SACR 469
(SCA)
(2001 (20) SA 1222
;
[2001] 3 All SA 220)
at
478d-g:
'A court exercising appellate
jurisdiction cannot, in the absence of material misdirection by the
trial court, approach the question
of sentence as if it were the
trial court and then substitute the sentence arrived at by it simply
because it prefers it. To do
so would be to usurp the sentencing
discretion of the trial court. Where material misdirection by the
trial court vitiates its
exercise of that discretion, an appellate
Court is of course entitled to consider the question of sentence
afresh. In doing so,
it assesses sentence as if it were a court of
first instance and the sentence imposed by the trial court has no
relevance. As it
is said, an appellate Court is at large. However,
even in the absence of material misdirection, an appellate court may
yet be justified
in interfering with the sentence imposed by the
trial court. It may do so when the disparity between the sentence of
the trial
court and the sentence which the appellate Court would have
imposed had it been the trial court is so marked that it can properly
be described as 'shocking', 'startling' or 'disturbingly
inappropriate.'
[19] Ms
Lesinda Grootboom, a probation officer, testified during the
sentencing phase on her report in respect
of the appellant. She
highlighted that the appellant informed her that he attempted to
commit suicide while in prison; that he
was terminally ill and on
chronic medication; that his family was unaware of his sickness. In
her report she pointed out that Sister
Moya, a nurse in the service
of the Department of Correctional Services, could not confirm the
ailment because the appellant was
not present on two occasions (twee
kontak geleenthede). Nevertheless he is receiving medical treatment.
According to the probation
officer a provision would be made for the
appellant to continue receiving medical treatment in prison in the
event he was sentenced
to direct imprisonment.
[20] The
manner in which the appellant and his co-accused went about
perpetrating the offences paints a
sordid picture of their perceived
entitlement to act with indifference and in total disrespect of those
around them. They both
confirmed that there were other people in the
street, where the incident took place, amongst them were: Bukelwa,
Jonathan, and
Kaaitjie. Accused No 2's mother is also said to have
been present. They were undeterred by this. The appellant quite
brazenly stated
that he did not care that other people could see him
having intercourse with the complainant save for his own girlfriend.
In my
view, this is a display of a complete disregard for the law and
the consequences flowing from his action.
[21] The
J88 medical report shows that the complainant was 16 years old; she
weighed 43 kg and stood 144
cm tall. According to the victim's impact
report she is a quiet and disciplined child and was at some stage
withdrawn following
the gang rape. She was defenceless and posed no
threat to the appellant. Her scream during that fateful evening as
described by
Jonathan (Nosi) Gqedyua:
"Los
my, los my.. .hoe Here help my, Here help- los my uit asseblief, ek
wil huis toe gaan"
is
extremely disturbing. She was dragged to a desolate place and gang
raped. She tried to escape but was held captive by the rapists.
These
are serious aggravating circumstances. The absence of any physical
injuries on the body of the complainant does not ameliorate
the
gravity of the offence. The Magistrate was alive to this. It is as
well to remember that the appellant used a stone to subdue
the
complainant. She stood no chance against the two men. Therefore, the
argument of lack of physical injuries cannot avail the
appellant.
[22] In
his lifetime the appellant amassed four previous convictions
involving dishonesty and violence.
He did not learn from his previous
brushes with the law. Surely he cannot be a good candidate for
rehabilitation. Insofar as it
was argued on his behalf that at the
age of 29 he was youthful, a person of 20 years or more must show by
acceptable evidence that
he was immature to such an extent that his
immaturity can operate as a mitigating factor.
[2]
He failed to demonstrate this.
[23]
The appellant posed a danger to the
society as correctly found by the Magistrate. In
S
v Lister
[3]
the Appellate Division remarked:
"To focus on the well-being
of the accused at the expense of the other aims of sentencing, such
as the interests of the community,
is to distort the process and to
produce, in all likelihood, a warped sentence."
[24]
Nothing stands out in the appellant's
personal and mitigating circumstances as constituting substantial and
compelling circumstances
justifying a departure to the imposition of
the prescribed sentence. Indeed nothing induces any shock in the
sentence of life imprisonment
imposed by the Magistrate.
Concomitantly, the appeal must fail. In the result I make the
following order.
Order
1.
The appeal against the sentence of life
imprisonment is dismissed.
MV
Phatshoane J
Pakati
J concur in the judgment of Phatshoane J
APPEARANCES:
FOR
THE APPELLANT:
Adv H. Steynberg
Instructed by Legal Aid South
Africa.
FOR
THE RESPONDENT:
Adv J.J. Rosenburg
Instructed by the Director of
Public Prosecutions,
Northern Cape.
[1]
2010 (1) SACR 427
SCA at para 11
[2]
S v Matyityi
2011 (1) SACR 40
(SCA) at 47 para 14
[3]
1993 (2) SACR 228
(A) at 232g - h