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[2019] ZAKZPHC 56
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Ndlovu v S (AR96/2018) [2019] ZAKZPHC 56; 2019 (2) SACR 484 (KZP) (12 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
REPORTABLE
CASE
NO:
AR96/2018
In the matter between:
XOLANI
NDLOVU
Appellant
and
THE STATE
Respondent
ORDER
(a)
The appeal against the conviction is dismissed.
(b)
The appeal against the sentence succeeds. The sentence of life
imprisonment is set aside
and replaced with a sentence of 15 years’
imprisonment. The sentence is ante-dated to 23 May 2017.
JUDGMENT
Delivered
on:
12
August 2019
Ploos
van Amstel J (Bezuidenhout J concurring)
[1]
I have read the judgment prepared by my colleague Hadebe J. I agree
with her that
the appeal against the conviction of rape should fail,
for the reasons set out in her judgment. I write separately because
we differ
on a point of law with regard to sentence. This concerns
the decision of the Supreme Court of Appeal in
Mahlase
v S,
[1]
and in particular whether we are bound to follow it in the matter
before us
.
[2]
The magistrate found that the complainant was raped several times by
the appellant
and his companions, acting with a common purpose, after
they had kidnapped her from her home. The appellant was the only one
who
was arrested and prosecuted. The identities of his
co-perpetrators are not known.
[3]
The magistrate held that the prescribed minimum sentence was life
imprisonment in
terms of
s 51(1)
of the
Criminal Law Amendment Act
105 of 1997
read with
Part 1
of Schedule 2.
Part 1
includes the
offence of rape as contemplated in
s 3
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007
, when
committed in circumstances where the victim was raped more than once
whether by the accused or by any co-perpetrator or accomplice;
or by
more than one person, where such persons acted in the execution or
furtherance of a common purpose or conspiracy. He found
that there
were no substantial and compelling circumstances which justified the
imposition of a lesser sentence, and imposed life
imprisonment.
[4]
In
Mahlase
the appellant had been convicted in a High Court of robbery, rape and
four counts of kidnapping. In respect of the robbery he was
sentenced
to 20 years’ imprisonment, life imprisonment in respect of the
rape and five years’ imprisonment in respect
of each of the
kidnapping convictions. The basis on which the trial court imposed
life imprisonment in respect of the conviction
of rape was that the
victim had been raped by more than one person.
[2]
On appeal Tshiqi JA (with whom Lewis and Theron JJA concurred)
referred to this as a misdirection and said the trial judge had
overlooked the fact that the other person who had raped the victim
was not before the trial court and had not yet been convicted
of the
rape. She said in those circumstances it could not be held that the
rape fell within the provisions of
Part 1
(where the victim was raped
more than once), with the result that the minimum sentence for rape
was not applicable. The sentence
of life imprisonment was set aside
and replaced with 15 years’ imprisonment.
[5]
In subsequent cases a number of judges have expressed their
puzzlement about the reasoning
and outcome in
Mahlase
.
In
Cock
and Manuel
[3]
the court dealt with two separate appeals directed against a sentence
of life imprisonment imposed on each of the appellants consequent
upon their convictions on a charge of rape. The convictions of the
two appellants arose out of the same incident, the State having
alleged that on 26 December 2010 the complainant was raped by both
appellants, who were acting in the furtherance or execution
of a
common purpose to rape her. The one appellant, Cock, was apprehended
first. He pleaded guilty and in respect of the conviction
of rape was
sentenced to life imprisonment. The other appellant, Manuel, was only
apprehended after Cock had been sentenced. He
also pleaded guilty and
in respect of the conviction of rape was sentenced to life
imprisonment.
[6]
Pickering J (writing for a full court) said
Mahlase
gave rise
to an anomalous situation in that the appellant Cock was liable to a
minimum prescribed sentence of ten years’
imprisonment, and any
other accused who is thereafter convicted as having been part of the
gang which raped the complainant (the
appellant Manuel) would be
liable to the prescribed minimum sentence of life imprisonment, it by
then having been established,
in terms of
Mahlase,
that the
complainant had indeed been raped more than once, by two men. The
learned judge expressed himself as follows:
‘
[27]
I do not understand on what basis the credible and cogent evidence of
the complainant that she was
raped by two men, one of whom was
identified as being the accused, should be disregarded, not only to
the prejudice of the victim
and of the state, but also, by way of
contrast, to the benefit of the accused on the arbitrary basis that
he happened to be the
first of the gang to have been arrested and
convicted.’
[7]
The full court found that despite these difficulties, it was bound by
Mahlase
. It held therefore that the trial judge had erred in
finding, in the case of the appellant Cock, that the prescribed
minimum sentence
of life imprisonment was applicable. The court set
the sentence aside, proceeded to consider the question of sentence
afresh, and
in the exercise of its common law jurisdiction held that
the only appropriate sentence in the circumstances of the case was
life
imprisonment, which it imposed. In the case of the appellant
Manuel the prescribed minimum sentence of life imprisonment was
applicable
in as much as his accomplice, Cock, had already been
convicted of raping the complainant. In Manuel’s case the
sentence of
life imprisonment was upheld.
[8]
In the matter before us the trial took place in a regional court. The
effect of
Mahlase
is that the regional magistrate erred in approaching the matter on
the basis that the prescribed minimum sentence was life imprisonment.
The offence then fell in
Part III
of Schedule 2 and the prescribed
minimum sentence was ten years’ imprisonment, which the
regional court could, in terms of
s 51
(2), exceed by not more than
five years. We can of course not impose a sentence in excess of what
the regional court could have
imposed.
[4]
[9]
Counsel for the State referred us to a judgment of the Gauteng Local
Division, Johannesburg,
in
Khanye
v The State,
[5]
where a full court held that it was not obliged to follow
Mahlase
.
In that matter the appellant had been convicted in a regional court
of kidnapping, assault with intent to do grievous bodily harm
and
rape. In respect of the conviction of rape he was sentenced to life
imprisonment on the basis that this was the prescribed
minimum
sentence, as he had encouraged others to rape the victim after
him.
[6]
[10]
The reasoning by Carelse J, who wrote for the full court, was as
follows. Although the full court
was bound by
Mahlase
,
it was equally bound by
S
v Legoa
.
[7]
In
Legoa
Cameron JA said
[8]
when the commission of offences scheduled in the minimum sentencing
legislation is proved in the form specified in the schedule,
the
sentencing court acquires an enhanced penalty jurisdiction. It
acquires that jurisdiction, however, only if the evidence regarding
all the elements of the form of the scheduled offence is led before
verdict on guilt or innocence, and the trial court finds that
all the
elements specified in the schedule are present. Carelse J said the
ratio of
Legoa
is that once the jurisdictional facts have been proved, a court is
obliged to impose the prescribed minimum sentence unless substantial
and compelling circumstances are found to exist. Therefore, once it
is proved that the complainant was raped more than once, whether
by
the accused or by more than one person, the prescribed minimum
sentence is triggered. The learned judge pointed out that the
trial
court in that matter had found that the victim was raped three times
by three different men, and held that in those circumstances
the
prescribed minimum sentence was imprisonment for life. She added
that, if the case was not distinguishable from
Mahlase
,
it was such a ghastly case of rape that it would justify a life
sentence. It would appear that the court overlooked the fact that
it
was dealing with an appeal from a regional court, which could only
have imposed life imprisonment if the matter fell within
Part I
of
Schedule 2.
[11]
It seems to me, with respect, that there is a flaw in the reasoning
in
Khanye
. The effect of
Mahlase
is that it cannot be
said that the victim had been raped by more than one person unless
both of them have been convicted. Put differently,
unless both have
been convicted the jurisdictional facts required to trigger the
application of
Part I
have not been proved. It is no answer to say,
as
Khanye
seems to say, that on the basis of
Legoa
the
prescribed minimum sentence has to be imposed when the relevant
jurisdictional facts have been proved, and that therefore
Mahlase
does not have to be followed. This begs the question of what
constitutes such proof. According to
Mahlase
it is the
conviction of both.
[12]
Counsel for the State submitted before us that the decision in
Mahlase
is wrong. We are not concerned with whether or not this is so
.
It is a judgment of the Supreme Court of Appeal and we are bound by
it.
[9]
The courts in
S
v Cock; S v Manuel
,
and
Nyaku
v S
[10]
also considered themselves bound by it. In the latter case it appears
that the court, as in
Khanye
,
overlooked the fact that it was dealing with an appeal from a
regional court. When it found that on the basis of
Mahlase
the prescribed minimum sentence of life imprisonment did not apply,
it could not impose a sentence in excess of what the regional
court
could have imposed.
[13]
The result in my view is that the prescribed minimum sentence in the
present matter was ten years’
imprisonment, as provided for in
Part III
of Schedule 2. In terms of
s 51
(2) the regional magistrate
could have imposed an additional five years’ imprisonment.
[11]
[14]
The circumstances of the rape were horrendous and I agree with my
colleague that the appellant
deserved to be sentenced to imprisonment
for life. On the basis that I have explained, that option is
unfortunately not open to
us.
[15]
This court is therefore unanimous with regard to the appeal against
the conviction, but with
regard to sentence there is a dissenting
judgment.
[16]
On the basis that we are bound to follow
Mahlase
, the
following order is made:
(a)
The appeal against the conviction is dismissed.
(b)
The appeal against the sentence succeeds. The sentence of life
imprisonment is set aside
and replaced with a sentence of 15 years’
imprisonment. The sentence is ante-dated to 23 May 2017.
Ploos
van Amstel J
Hadebe
J (dissenting on sentence):
[17]
This is an appeal against conviction and sentence on rape in
contravention of
s 3
of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007
read with
s 51(1)
and
Part I
of
Schedule 2 of the Criminal Law Amendment Act 105 of 1997 (the CLAA).
[18]
The appellant was initially charged on two counts i.e. the count of
rape and that of kidnapping
before the Regional Court,
Pietermaritzburg. He was convicted on both counts and was sentenced
to life and three years’ imprisonment
respectively.
[19]
He launched an application for leave to appeal against his conviction
and sentence on the count
of kidnapping. His application was
dismissed by the trial court with the court finding that there were
no prospects of success
in the case of both conviction and sentence
in respect of that count. The dismissal of the application for leave
to appeal against
the conviction and sentence on the count of
kidnapping was never petitioned by the appellant and as such, it
stands.
[20]
In the appeal before us, the appellant is basing his appeal on his
automatic right of appeal
in terms of
s 309(1)(a)
of the
Criminal
Procedure Act 51 of 1977
.
[21]
The appellant is challenging his conviction and sentence on the rape
charge on the basis that
the complainant was a single witness and the
averment by the appellant in this regard is that her evidence was not
reliable on
account of the contradictions between her evidence and
the other two State witnesses, the Madondos, who are her neighbours
and
also the contradictions based on the reports she made to her
mother as well as to the Madondos. The other criticism of the
complainant’s
evidence is based on the reports she made to the
doctor and the actual findings made by the doctor in so far as the
existence of
injuries on the complainant is concerned.
[22]
On the aspect of the sentence handed down by the trial court, the
submission made on behalf of
the appellant is that the learned
regional magistrate failed to attach sufficient weight to mitigating
factors based on the appellant’s
personal circumstances and
that had the court done so, it would have found that cumulatively
these factors amounted to substantial
and compelling circumstances
warranting a deviation from the prescribed minimum sentence.
[23]
During argument at the hearing of this appeal before us, the parties’
attention was drawn
to the judgment of
S v Mahlase
2013 JDR
2714 (SCA). This is a judgment where a
s 204
witness had testified
that the complainant had been raped by three men. Only the appellant
had appeared before Makgoba J sitting
as a court of first instance in
Thohoyandou, Limpopo High Court. Although the evidence proved that
the complainant had been gang
raped and Makgoba J found as such the
Supreme Court of Appeal found that the trial court had misdirected
itself in finding that
the provisions of
Part 1
of sch 2 of the CLAA
were applicable in these circumstances.
[24]
The parties seemed not to have been aware of the
Mahlase
judgment. They were thus accordingly invited to submit further heads
of argument which they have obligingly done. Counsel for the
appellant insists that this court should abide by the
Mahlase
judgment and not impose the sentence of life imprisonment. The
argument on behalf of the State on the other hand is that this court
should not follow the decision of the SCA in the
Mahlase
judgment. The court has been referred to decisions of other divisions
of the high court where the
Mahlase
judgment has not been
followed. These are the judgment of Pickering J (with Plasket and
Smith JJ concurring) in
Cock v S
;
Manuel v S
; the
judgment of Carelse J also writing for the full court in
Khanye v
The State
(Counsel for the State has also referred us to the
writing of the authors Hahlo and Khan:
The South African Legal
System and its Background
(1968) at 245 – 257 where they
write under the heading: Sources of Law: Judicial Precedent.
[25]
I will revert to what is entailed by the authorities to which we have
been referred to and whether
such references have any impact on the
matter that this court is seized with.
[26]
The evidence presented by the State at the trial of this matter was
to the effect that in the
early hours of 29 November 2014, the
complainant was abducted from her home. She was physically carried to
a secluded house by
three men wearing balaclavas. The men had gained
entry into her home by raising down the kitchen door to her house.
[27]
Whilst the breaking down of the kitchen door was ongoing, she had run
to her mother’s bedroom
to try and alert her to what was
happening. She discovered that her mother was not in her bedroom. Her
sister’s children
who had been sleeping with her mother were
alone inside the mother’s bedroom. She had then called out for
help to a neighbouring
Madondo house. The lady of the house had
assured her that she and her husband were on their way.
[28]
The abductors overtook the Madondos to the house when they managed to
gain entry and remove the
complainant. In the process of her
abduction, the complainant’
s 14
month old baby with whom she
had been sleeping in her bed was left behind crying frantically.
[29]
As soon as the complainant was out of her home, now in the hands of
her captors, she was muzzled
with sellotape and the same tape was
used to close her eyes. She could hear the Madondos calling out her
name as she was caused
to drift away from her home. She could not
respond as she was now taped around her mouth.
[30]
Immediately as she and the three males entered the unknown room, the
lights were put on and the
appellant removed his balaclava. He
enquired if the complainant knew him. She denied such knowledge. This
denial was not the truth
as she actually knew the appellant. At one
stage he had come to her house to deliver material to build an RDP
house at her home.
The appellant had shown interest in the
complainant, asking her to give him her cell number. This had been
rejected by the complainant
who was not interested in the appellant’s
advances. She said she had deliberately denied knowing him as she
feared that if
she confirmed such knowledge of the appellant, the
likelihood was that he might kill her.
[31]
It was at that stage that the appellant started gloating, asking the
complainant if she thought
he would not find her. Having the
complainant now at his mercy, exactly where he wanted her, he
proceeded to undress the complainant,
leaving her stark naked. With
the help of his companions, he managed to tie the complainant onto
the bed where she had been caused
to sit, each of her arms and each
of her legs was tied to the extreme end of the bed. She was again
taped around her mouth and
eyes. At that stage she was aware that the
appellant had also completely undressed himself. His two companions
still had their
balaclavas on and had not removed their clothes.
[32]
She felt somebody mounting on top of her, penetrating her and having
sexual intercourse with
her. She was repeatedly raped by what she
believes were different people. In her blinded state, she was unable
to say who exactly
raped her at what turn. However, she was aware
that after the first person had ejaculated into her vagina, he had
invited the second
person to have his turn in raping her. The process
went on, with the people taking turns in raping her vaginally. In the
process,
they would ask each other to make it quick, so that the next
person would have his turn. At one stage she felt herself being wiped
with something that felt like a towel. As the rape continued, with
her captors taking turns as indicated, she could only feel a
person
climbing on top of her but could not feel anything thereafter. She
attributed this to numbness caused by the pain she felt
around her
vaginal area.
[33]
She was aware that at one stage she was turned around and was caused
to kneel on the bed. She
was penetrated anally, by at least two
people taking turns. After the first anal penetration, she felt that
she was being wiped
with something that felt like a wet towel. She
was again penetrated anally for the second time. When she was turned
around to lie
on her back, it was at that stage that she realised she
was bleeding from her anus.
[34]
The sellotape was removed after the anal abuse of the complainant.
She realised that all three
men were naked. The two still had their
balaclavas on whereas the appellant’s face was still uncovered.
At this stage the
appellant persisted in questioning the complainant
if even then she still maintained that she did not know him. She
still maintained
that she did not know the appellant. The appellant
started making threats that he would kill the complainant because she
had lied.
He was concerned that if they let her go, she would go and
report her ordeal to the police.
[35]
She begged the appellant, asking him to consider her little child.
She gave him assurances that
she would not make a report to the
police. The appellant insisted that she needed to be killed. When she
tried to cry out at this
insistence by the appellant, the latter
replaced the sellotape around her mouth. At this stage the sun was up
and she could clearly
observe her surroundings and the people around
her. The other two people still had their balaclavas on. One of the
other two pleaded
the complainant’s case, indicating they
should let her go. The appellant was seriously opposed to that
suggestion, indicating
that she could not be let free as she knew
him, had seen him and that she would go and report the incident to
the police.
[36]
The men seem to have taken their time in their naked pose; they sat
around and started smoking.
The complainant was right through naked,
with the three men sitting around her, seemingly savouring their
conquest. Something seems
to have struck a human nerve on the
appellant as he enquired if the complainant wanted anything to eat,
which offer she denied.
He then informed her that they were going on
a drinking spree and that on their return, they would kill her. She
told the court
that this caused her hurt and she started crying all
over again.
[37]
As the three men were leaving, after they had dressed up, it was the
appellant who took an electric
cord, using it to tie together the
complainant’s hands. The three men left, taking her pyjamas
with them. She could hear
the door being locked from the outside. She
was left inside the room where she had endured her ordeal from the
early hours of the
morning until sunrise. She sat there contemplating
her fate. She resolutely tried to untie herself which she eventually
managed
to do. She removed the sellotape from around her mouth. She
spotted a bucket inside the same room. She turned it upside down,
climbed
on top of it and jumped out of the window, still naked as she
had been right through the day. It was now night and her abductors
had not returned to the room where they had left her.
[38]
After she had managed to exit through the window, looking around, the
complainant realised that
the house where she had been holed in was a
Dlamini house, a residence in the area. It transpired and was not
disputed under cross-
examination that the Dlamini homestead, where
the complainant had been detained was actually a place where the
appellant rented
premises. His actual home was confirmed to be at
Ezakheni, Ladysmith by the investigating officer, Constable Bhengu
who effected
the arrest of the appellant at his parental home.
[39]
The complainant ran all the way until she reached her home where she
found that her family had
gathered around. She was still stark naked
when she reached her home.
[40]
Although the complainant made every effort to be seen by a doctor on
the same night, she was
caused to wait and shuffle on the hospital
benches until the following day when she was eventually examined by a
doctor. The doctor
who examined the complainant was no longer
available at the trial stage of this matter. The report of the
doctor’s findings
was read into the record by a Dr A Akinola
who described himself as the Head of the Thuthuzela Care Centre,
Edendale Hospital.
He could not advise of the whereabouts of Dr Dladi
who had examined the complainant at the same Centre after the rape
incident.
[41]
Of relevance in the report read into the record by Dr Akinola are the
findings of the examining
doctor that the findings were in keeping
with the history (given) and that sexual assault could not be
excluded. His expert advice
to the court under cross- examination is
relevant. This is what he said in this regard.
[12]
‘
Q.
And will you be able to inform us maybe as to why there would be no
injuries as to if there
was blunt force?
A.
Okay, firstly, if the hymen is absent, there is less resistance to go
through
to bluntly penetrate the vagina. Number two, the level of
relaxation, or I can call it submission of the victim. And by that, I
mean if the victim is tense and there was a lot of struggle, we will
expect to see some or more injuries. And if the client is
submissive
[my emphasis], we will see less injuries.
Q.
Now, doctor, if the hymen were absent and, as indicated, was only one
centimetre of
the finger that could be inserted, would there still
probably be no injuries?
A.
Yeah, there is also possibility of there being no injury. You must
also remember
that the vagina is capable of expanding widely, that is
where babies come from, you know, so it is quite possible.’
[42]
Dr Akinola went on explaining, giving his opinion under which
circumstances injuries in the anal
area could be observed depending
on the capacity, training and competency of the particular doctor
doing the examination.
[43]
According to the version of the appellant the sexual intercourse
between him and the complainant
on the morning of the incident was
pre-planned. He had been proposing love to the complainant prior to
this. He had come across
her at a local shop on the morning prior to
the day of the incident and arrangements had been made for him to
come to the complainant’s
home as her mother would not be
around. He had obliged and had gone to the complainant’s home
that same evening.
[44]
From the appellant’s version it is apparent that the
complainant was worried about the
children who would be left alone.
His version does not go far enough to indicate what was going to be
the solution for this hurdle.
He seems to leave that aspect hanging
and jumps to the part where he and the complainant had to move to his
place and ended up
being intimate.
[45]
I found this statement by the appellant intriguing “…nothing
was mentioned about
love because the way we were towards each other,
it was as if we were loving – we were in a love relationship
with each other.”
Surely, nothing in this statement, in my mind
suggests that the complainant ever acceded to the appellant’s
love proposals.
[46]
Another aspect of the appellant’s evidence which was new when
he testified is the fact
that when he left with the complainant she
was wearing a track suit. This was never put to the complainant. Her
evidence was clear,
indicating that she was taken from her home in
her pyjamas as she had been sleeping with her 14 month old baby.
[47]
It was also a new aspect of the appellant’s version that the
complainant ever asked to
use his cellphone to phone through to her
cellphone which according to him she had found to be off.
[48]
It is common cause that this so called pre-arranged visit by the
complainant, to the appellant’s
apartment was for the first
time on the day of the incident. He never saw her nor spoke to her
again after that. When he heard
that the police and members of the
community were looking for him, he had disappeared from the surface
of the earth and had gone
back to his homestead in Ladysmith, leaving
his employment behind.
[49]
In his evaluation of the evidence in its totality, the regional
magistrate found the appellant’s
version to be palpably false
and rejected it. He warned himself that he had to approach the
evidence of the complainant with the
necessary caution. On the proven
facts he found that any other inference was excluded other than the
inference that the complainant
was raped by more than one person
including the appellant and that those people were furthering a
common purpose.
[50]
Based on the totality of the evidence before it, the court found that
the guilt of the appellant
had been proved beyond reasonable doubt in
relation to the two counts, to wit the counts of rape and kidnapping.
[51]
The trial court’s findings of fact and credibility are presumed
to be correct because the
trial court has had the advantage of seeing
and hearing the witnesses and is in the best position to determine
where the truth
lies (See
S v Francis
1991 (1) SACR 198
(A) at
204c-d);
R v Dhlumayo & another
1948 (2) SA 677
(A)). It
is only in instances where a court of appeal finds that there was
demonstrable and material misdirection on the part of
the trial court
in its findings of fact that it would find reason to interfere (
S
v Hadebe & others
1997 (2) SACR 641
(SCA) at 645e-f).
[52]
A consideration of the regional magistrate’s judgment shows
that he went through the evidence
with a fine comb. Along the
analysis of the evidence, he warned himself of the questions that his
judgment had to answer. He was
alive to the issues of where the onus
rested.
[53]
The following aspects of the evidence are worth noting. In the entire
ordeal that the complainant
was subjected to, the appellant appears
to have taken a lead role. He was the one who took the initiative
when the complainant
was tied up and blindfolded before she was
brutally raped and indecently assaulted repeatedly. He is the very
person who tied the
complainant after she had been raped. He is the
one who insisted that the complainant needed to be silenced by having
her killed.
[54]
The appellant has selectively avoided incorporating as part of his
evidence that he had initially
requested to be given the
complainant’s cell number and this request was rejected by the
complainant. After the kidnapping
and inside the appellant’s
room the first question that he asked the complainant was if she
thought he would not find her.
His arrogance and the feeling of
control blinded him so much that he was the only one who removed his
balaclava when his companions
had them on until they left his room.
[55]
The State witnesses, including the complainant’s mother
corroborated the complainant’s
version on material aspects.
Their evidence sufficiently showed that entry into the house was
forced. Mr and Mrs Madondo confirmed
that the complainant had called
out for help in those odd hours of the morning. When Mrs Madondo
returned with the complainant’s
mother after she had gone to
call her from where she was, both women confirmed that the
complainant’s toddler was crying
uncontrollably in the dark
room where his/her mother had been forcefully taken from. The lights
in the house were only put on when
the complainant’s mother, Ms
Mvelase, returned to her home.
[56]
The complainant confirmed that the assailants had struck at about
2:45am, she had confirmed the
time from her cellphone which was next
to where she had been sleeping. Mrs Madondo and her husband confirmed
that it was around
that time that they had heard the complainant’s
screams for help. Ms Mvelase finally confirmed that it was around
3:00 in
the morning that she returned to her house after she had been
alerted by Mrs Madondo as to what was happening at her home. This
volume of evidence around the time of the occurrence of the incident
puts to question the version of the appellant that he had
left with
the complainant, with her co-operation that very same night.
[57]
The other consideration is that the evidence clearly shows that the
complainant only learned
for the first time when the door to her home
was banged at that her mother was not around. Clearly in the
circumstances she could
not have made prior arrangements for the
appellant to come around on the understanding that her mother was not
going to be at home.
[58]
The issue of the contradictions raised in the appellant’s
argument pales in the face of
the overwhelming evidence against him.
As was stated in
S v Mafaladiso en Andere
2003 (1) SACR 583
(SCA) at 593-594, not every error by a witness nor every
contradiction or deviation affects the credibility of a witness.
Non-material
deviations are not necessarily relevant. This statement
finds equal application in the instant matter. The issue of whether
the
door was lying flat on the ground or whether it was still holding
by the frame, the issue whether the lights were on or not are
irrelevant in the light of the overwhelming and uncontradicted
evidence presented by the State at the trial of this matter.
[59]
I in the circumstances find no misdirection by the regional
magistrate, either on fact or on
the law, and I am of the view that
there will be no justification for this court to interfere with his
findings that the appellant
is guilty of raping the complainant in
furthering a common purpose with his companions.
[60]
In handing down sentence, the learned regional magistrate considered
the following: that;
(a)
sentencing is not an act of vengeance but an act of correction;
(b)
the sentencing on the count of rape falls to be considered in terms
of the minimum sentencing
regime which prescribes certain minimum
sentences;
(c)
though the CLAA did not eliminate his sentencing discretion, it did,
to a certain
extent limit it;
(d)
the triad, incorporating the appellant’s interests and his
personal circumstances;
(e)
he had to engage in a balancing exercise, ie balancing the personal
interests of the appellant,
the nature of the crime including the
seriousness and prevalence thereof and lastly the interests of
society. In this regard, the
learned regional magistrate warned
himself of the fact that the sentence he was to pass should not be to
please or fulfil public
opinion but to serve the public interest;
(f)
he took into consideration the humiliation that was brought to bear
on the complainant
in the hands of the appellant and his companions,
her dignity that she was completely stripped off;
(g)
he found that there were no substantial and compelling circumstances
in the case of the
appellant to persuade him to deviate from the
prescribed minimum sentence applicable in a case of this nature; and
(h)
he warned himself of the vagaries of a life imprisonment, that it is
not a norm, and not
a sentence that one can just impose lightly. He
found the sentence of life imprisonment to be the only appropriate
sentence in
the circumstances of this case.
[61]
Rape on its own is a horrible experience to be endured by any woman.
It stamps the authority
of someone’s control over the woman’s
body. It reminds every woman and girl child of how vulnerable they
are in a country
where the statistics of rape on women and girl
children are alarming and do not seem to be abating. It has escalated
to such heights
that it seems that there is no space that is safe for
women. The present case bears testimony to that. The complainant was
removed
from the safety and sanctity of her parents’ home to a
secluded spot where she was severely, brutally and mercilessly abused
over a prolonged time. She was ridiculed by the appellant and
reminded that she could not stand in his way, he could do what he
wanted to with her body. As if that was not enough, she was
threatened with being killed. I cannot think of any horrific
treatment
of a human being by another human being than what the
complainant endured in the hands of the appellant and his companions.
[62]
I associate myself fully with the following pronouncements by Victor
J in
S v MS
2014 (1) SACR 59
(GNP) para 25:
‘
In
regard to an appropriate sentence, the appellant’s attitude
reflected an approach to women….that they are mere chattels
to
be used at his will…’.
And
Bosielo JA in
S v Mashigo
2015 JDR 0907 (SCA) para 29 that:
‘…
The
evidence paints a horrid picture of three men waiting in the dark for
the poor and vulnerable complainant…This behaviour
shows lack
of respect for the complainant’s right to life, her physical
integrity, freedom of movement and importantly, her
human dignity.
The appellant has proffered no explanation for this egregiously
barbaric behaviour.’
[63]
It is in matters like the present one that courts must, without
reservation express their indignation
to the type of behaviour as was
exhibited by the appellant and his companions. In the victim impact
statement, the complainant
says:
‘
I
am completely destroyed”. That is what the act of rape does to
a rape victim.
S v C
1996(2)
SACR 181 correctly noted that what a rapist does is not murdering his
victim but that he murders her self-respect and destroys
her feeling
of physical and mental integrity. The judgment in
S
v C
also noted that the
monstrous deed of a rapist often haunts his victim and subjects her
to mental torment for the rest of her life,
a fate often worse than a
loss of life.’
[64]
The legislature has put in place sufficiently enabling legislation in
the form of the CLAA for
cases of this nature. It is now well
documented that sentences provided for in this piece of legislation
are not to be deviated
from lightly and for flimsy reasons which
cannot withstand scrutiny (
S v Malgas
2001 (1) SACR 469
(SCA)
para 9).
[65]
I am mindful of the reasoning in the Supreme Court of Appeal judgment
of
Mahlase
v S
where the following was said at para 9 of that judgment:
‘…
The
learned judge however overlooked the fact that because accused 2 and
6, who were implicated by Mr Mahlangu, were not before
the trial
court and had not yet been convicted of the rape, it cannot be held
that the rape fell within the provisions of
Part 1
Schedule 2 of the
Criminal Law Amendment Act (where
the victim is raped more than once)
as the high court found that it did. It follows that the minimum
sentence for rape was not
applicable to the rape conviction and the
sentence of life imprisonment must be set aside’.
[66]
Section 51
of the CLAA deals with discretionary minimum sentences for
certain offences and it provides as follows:
‘
(1)
Notwithstanding any other law, but subject to subsections (3) and
(6), a regional court
or High Court
shall
sentence a person it has
convicted of an offence referred to in
Part 1
of Schedule 2 to
imprisonment for life.’
(my
emphasis)
Subsection
3 deals with the existence of substantial and compelling
circumstances in any given case and how these should be dealt
with if
they were to be found to exist, whereas subsec 6 deals with the
exclusion from the application of
s 51
of offenders who would have
been 18 years of age at the time of the commission of the offence.
[67]
Part 1
of Schedule 2 of the CLAA deals with categories of offences in
terms of which
s 51(1)
finds application. Under the category of rape
as contemplated in
s 3
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007
para (a) (ii) makes provision
for rape when committed “by more than one person, where such
persons acted in the execution
or furtherance of a common purpose or
conspiracy”.
[68]
It is clear from the submissions on sentence made by the parties in
the court a quo that the
regional magistrate was not referred to the
Mahlase
judgment and as such he did not consider it in his
judgment on sentence. He relied on
s 51(1)
as it stands in the
statute book. I must, with the utmost respect say at this juncture
that I find myself puzzled by the reasoning
of the Supreme Court of
Appeal in
Mahlase
. A consideration of the provisions of
s
51(1)
do not seem, with respect to provide room for the condition
that for this section to find application the perpetrators of a gang
rape must all be before the trial court and also be convicted of
rape. The section makes the imposition of life imprisonment
peremptory
pursuant to a conviction of “a person” in the
relevant categories of offences dealt with in terms of this section.
[69]
In his judgment in
S v Cock
;
S v Manuel
2015 (2) SACR
115
(ECG) Pickering J (writing for the full court) says the following
at para 23 regarding the
Mahlase
judgment:
‘
Reverting
to what is stated in para 9, I have with greatest respect,
considerable difficulty in understanding the basis upon which
the
conclusion was reached that the rape did not fall within the
provisions of
part I
of Schedule 2 to the act where the complainant
had been raped more than once by more than one person.’
[70]
Being unable to agree with the court’s finding in
Mahlase
though agreeing that he was still bound thereby Pickering J
resorted to his common law jurisdiction, and was able to avoid the
binding
effect of
Mahlase
and to impose the sentence of life
imprisonment anyway.
[71]
In
Khanye v S
(A66/2015) [2017] ZAGPJHC 320 (13 March 2017),
Carelse J referred to what was said in
S v Legoa
2003 (1) SACR
13
(SCA) regarding the application of minimum sentences. The
following appears at para 18 of the
Legoa
judgment:
‘
It
is correct that, in specifying an enhanced penal jurisdiction for
particular forms of an existing offence, the legislature does
not
create a new type of offence. Thus ‘robbery with aggravating
circumstances’ is not a new offence. The offences
scheduled in
the minimum sentencing legislation are likewise not new offences.
They are but specific terms of existing offences,
and when their
commission is proved in the form specified in the schedule, the
sentencing court acquires an enhanced penalty jurisdiction.
It
acquires that jurisdiction, however, only if the evidence regarding
all the elements of the term of the scheduled offence is
led before
verdict on guilt or innocence, and the trial court finds that all the
elements specified in the schedule are present…'
(footnotes
omitted)
[72]
Carelse J was of the view that had the Supreme Court of Appeal
considered
S v Legoa
, in
Mahlase,
this may have
resulted in a different finding.
[73]
Writing under “Sources of Law – Judicial Precedent”,
the authors
Hahlo
& Kahn
[13]
make it clear that the appellate division expects lower courts to
follow the
rationes
decidendi
of its decisions whatever the size of the appellate division bench.
In the same paragraph, the learned authors state the following:
‘
The
obligation would not exist where there was subsequent overriding
legislation or the Appellate Division’s decision had
been
rendered
per incuriam.
Incuria
is probably confined to the ultimate court’s overlooking
legislation governing the case…’ (footnote omitted).
and
at page 247:
‘
Obviously
the Appellate Division will no more regard itself as bound by one of
its decisions than will a lower court, where it was
rendered
per
incuriam
or there was later overriding legislation.
Incuria
would include overlooking a governing enactment or one of its own
decisions in point.’
[74]
Pickering J was of the considered view that once the evidence
establishes beyond reasonable doubt
that the complainant was raped
more than once by two men, one of whom was the accused and that once
that evidence is accepted,
the fact that one of the men who raped the
complainant had not been apprehended and convicted of the rape
appeared to be entirely
irrelevant to him. I endorse this view.
[75]
In the matter before us there is evidence in abundance that the
complainant was repeatedly raped
and indecently assaulted by three
men who took turns in raping her. The fact that the appellant ended
up being the only one to
be prosecuted, does not, in my mind change
the correct finding of the regional magistrate that the appellant
acted in concert with
his companions to achieve a common purpose, ie
of raping and humiliating the complainant.
[76]
As in the case of
S v Cock;
S v Manuel
the judgment
dealt with by Pickering J in a case like the one before us, I would
be of the view that the prescribed minimum sentence
of ten years’
imprisonment would be outrageous. I have extensively dealt with what
complainant had to deal with in the present
matter.
[77]
I am of the firm view that the only and appropriate sentence in this
case involving this type
of rape of the complainant is that of life
imprisonment. In that sense, I find no irregularity in the
magistrate’s
finding that the sentence of life imprisonment was
the only appropriate sentence in these circumstances.
[78]
Having warned myself of the binding effect of the
Mahlase
judgment, I, like the other judges in the judgments I have
referred to in the previous paragraphs, with respect find myself in
great
difficulty to agree with the reasoning in the
Mahlase
judgment. One of the greatest concerns in my mind are the
expressions that the court in
Mahlase
chose to employ. At para
4 the following expressions appear:
‘…
Ms
D M was raped,
apparently
more than once, and
allegedly
by more than one of the
assailants. [my emphasis]
[79]
I find these expressions concerning in that, in my mind, and with
respect to the Supreme Court
of Appeal justices, they do not seem to
convey the finding of Makgoba J that the complainant was indeed raped
by more than one
person.
[80]
Having considered the authorities that I have, I am satisfied that
the present case is one such
deserving case where the obligation to
be bound by a decision of the Supreme Court of Appeal can be avoided.
In interfering with
the sentence in the
Mahlase
judgment the
SCA did, in my respectful view overlook the provisions of
s 51
(1) of
the CLAA read with
Part 1
of Schedule 2. I accordingly find no
misdirection or irregularity in the magistrate’s decision to
sentence the appellant
in terms of this enabling piece of
legislation.
[81]
I would have made the following order:
“
The
appeal against conviction and sentence is dismissed”.
Hadebe
J
Appearances:
For
the Appellant
: Z Fareed
Instructed
by
:
Pietermaritzburg Justice
Centre
For
the Respondent
:
C Kander
Instructed
by
:
The Director of Public Prosecutions
:
Pietermaritzburg
Date
Judgment Reserved
:
28 June
2019
Date
of Judgment
: 12 August 2019
[1]
Mahlase v The State
[2011] ZASCA 191.
[2]
See
S
v Cock; S v Manuel
2015
(2) SACR 115
(ECG) para 19, where Pickering J quotes from the trial
court’s judgment in
Mahlase
.
[3]
Note 2 above.
[4]
In
S
v Cock; S v Manuel
the
trial took place in the High Court.
[5]
Khanye v The State
(A66/2015) [2017] ZAGPJHC 320 (13 March 2017).
[6]
Part I
of Schedule 2.
[7]
S v Legoa
2003 (1) SACR 13 (SCA).
[8]
Para 18.
[9]
With regard to the deference owed by
a court to the decisions of a higher court, see
Blaauwberg
Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd
2004 (3) SA 160
(SCA) and the cases referred to in para 20 of that
judgment.
[10]
Nyaku v S
(A212/2018)
[2018] ZAFSHC 208
(22 November 2018)
.
[11]
The finding that the offence of which
the appellant was convicted does not fall within
Part I
of Schedule
2 because none of his co-perpetrators have been convicted, is a
finding in the appellant’s favour on a question
of law. In the
light thereof the State has the right, in terms of
s 311
of the
Criminal Procedure Act 51 of
1977, to take the matter on appeal to
the Supreme Court of Appeal, should it so wish.
[12]
Page 102, line 7 to line 20.
[13]
At page 245.