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[2019] ZAKZPHC 85
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Nombele v S (AR36/18) [2019] ZAKZPHC 85 (18 October 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL DIVISION
PIETERMARITZBURG
Appeal
number:
AR 36/18
In
the matter between:
THANDAZO
PETERSON
NOMBELE
Appellant
and
THE
STATE
Respondent
JUDGEMENT
DELIVERED ON 18
OCTOBER 2019
MOSSOP
AJ:
1.
The
Appellant was charged with a count of rape and a count of robbery
with aggravating circumstances. Remarkably, he was only convicted
on
the count of rape for which he was sentenced to life imprisonment.
2.
Both
charges had their genesis in events that occurred on the morning of
17 February 2008 at or near the Bluff when Merle Wright
(henceforth
‘the Complainant’) was robbed and raped in a public
toilet near Brighton Beach. Two men were involved in
the robbery and
two men were involved in the rape.
3.
In
delivering his judgement in the Court a quo, the Learned Regional
Magistrate concluded that he was unable to find that the two
individuals who robbed the Complainant were the same two individuals
who raped her. I consider this to be a very lucky break for
the
Appellant, as there can be very little doubt in my view that the
robbers and the rapists were one and the same people.
4.
Before
considering the evidence, it is necessary to consider the fact that
the record of the first day of hearing, which included
the evidence
of the Complainant, was lost. It is most unfortunate that this
happened. However, the Learned Regional Magistrate,
together with the
other role players in the trial who were available, reconstructed the
first day o
f
evidence in accordance with decided authority.
[1]
I am satisfied that the reconstructed record is adequate for the
purposes of considering the Appellant’s appeal.
[2]
5.
As
regards the evidence
led at trial,
the evidence of the Complainant did not implicate the Appellant. She
was called to establish that the act of rape
(and robbery) had
occurred. She testified that she held her hands over eyes whilst she
was being raped and stated that she was
unable to identify who the
rapists were. That she was raped was confirmed by a doctor who
examined her at Addington Hospital later
on the day of the rape. The
doctor noted in the J88 document that he completed that the vestibule
to the vagina was swollen and
certain tears to vagina existed at the
2 o’clock and the 4 o’clock position. He also indicated
that he took swabs from
her vagina for the purpose of testing whether
there was spermatozoa present.
6.
Other
than the oral evidence of a member of the South African Police
Services that related to a portion of the chain of evidence
regarding
the specimens taken from the Complainant, no other oral evidence was
led at trial.
7.
How
the Appellant became linked to this particular crime was as a
consequence of him being arrested for a similar matter which also
occurred at the same public toilet. The investigating officer in the
second matter had a sample of blood taken from the Appellant
for
forensic analysis purposes and requested that the samples taken from
the Complainant in this matter be compared with the specimen
taken
from the Appellant because of the similarity between the two
offences. A subsequent DNA comparison test confirmed that the
spermatozoa discovered in the Complainant matched the DNA of the
Appellant. A series of documents was handed in by consent showing
the
complete chain of how the samples taken from the Complainant and the
Appellant respectively were dealt with as those sample
progressed
from those individuals to the forensic laboratory.
8.
The
Appellant chose not to testify in his defence and called no
witnesses.
9.
In
due course, the Leonard Regional Magistrate convicted the Appellant
on the charge of rape and acquitted him on the count of robbery.
The
sentence imposed on the rape charge was, as stated, that of life
imprisonment.
10.
By
virtue of the sentence, the Appellant was entitled to an automatic
appeal of both his conviction and sentence
.
[3]
Fo
r
some reason, this appeal was never advanced and we are now, some 10
years after conviction, dealing with the automatic appeal.
11.
The
basis of the Appellants appeal may be found in a manuscript Notice of
Application for Leave to Appeal that the Appellant either
prepared
himself or caused to be prepared on his behalf and in the heads of
argument delivered on his behalf. I shall deal with
the contents of
both documents but commence by considering the manuscript Notice of
Application for Leave to Appeal first.
12.
In
that document the Appellant states that he committed the offence
whilst he was intoxicated. He also states that there was no
evidence
that he forced the Complainant to have sexual intercourse with him.
He further claims that the sentence imposed upon him
was unreasonable
because he pleaded guilty to the offence as an indication of his
remorse. He also draws attention to the fact
that he spent two years
in custody pending his trial and he stresses his youthfulness at the
time of the commission of the offence.
13.
There
was no evidence that the Appellant was under the influence of
intoxicating liquor at the time of the commission of the offence.
It
was never mentioned.
14.
As
regards there being no evidence that the Appellant forced the
Complainant to have sexual intercourse with them, such argument
is
disingenuous. A knife was produced prior to the rape in order to
secure the compliance of the Complainant. The Appellant surely
cannot
contend that the Complainant voluntarily chose to have intercourse
with him and his co-perpetrator in a public place when
she did not
know them at all. Such a contention is simply outrageous and is
evidence of the fact that the Appellant has distorted
sense of what
happened.
15.
Contrary
to what is stated in the Notice of Application for Leave to Appeal,
the Appellant did not plead guilty to the offences
with which he was
charged: he pleaded not guilty as the J 15 form indicates. The age of
the accused, which appears to have been
28 at the time of this trial,
does not establish the Appellant to be unduly youthful. In short, the
notice of appeal is without
merit.
16.
The
contention that the period spent awaiting trial is a mitigating fact
is an issue common both to the Notice of Application for
Leave to
Appeal and the Appellant’s heads of argument and will be dealt
with later in this judgment.
17.
As
regards the points raised in the Appellant’s heads of argument,
they are:
17.1
that
the Appellant did not receive a fair trial as he did not have legal
representation;
17.2
that
there was no reason why the Appellant’s version which was
apparently contradictory to the State version should have been
rejected by the Court a quo;
17.3
that
the charge sheet did not disclose why the provisions of Part I of
Schedule 2 to Act 105 of 1997 was applicable and that the
Learned
Regional Magistrate erred in concluding that it fell within Part I of
Schedule 2;
17.4
that
there were strong mitigating circumstances primarily to be found in
the Appellants personal circumstances and the time that
he spent in
custody awaiting trial; and
17.5
that
the sentence induced a sense of shock as the rape was not the ‘the
worst kind of rape’.
Each
of these submissions will be considered.
18.
Dealing
with the first point, prior to the trial commencing, the Appellant
had applied for, and had been granted, legal representation
by the
Legal Aid Board. He was, however, dissatisfied for an undisclosed
reason with the attorney who was assigned to his matter
and when the
trial commenced he stated that he did not wish to be represented by
that particular attorney. The attorney accordingly
applied to
withdraw from the matter. Such application was granted.
19.
Prior
to the Legal Aid attorney being permitted to withdraw, he indicated
to the Learned Regional Magistrate that he had informed
the Appellant
of the possible application of a minimum sentence in the matter. The
possibility of a minimum sentence being applied
was also drawn to the
Appellant’s attention by the Learned Regional Magistrate prior
to the Legal Aid attorney being permitted
to withdraw. The Appellant
said that he understood this and stated that he did not wish to
employ a private attorney but that he
would like to have another
Legal Aid attorney other than the one assigned to his case by the
Legal Aid Board. The Learned Regional
Magistrate explained to the
Appellant that he would not able to choose the identity of the Legal
Aid attorney assigned to represent
him but had to be represented by
whichever attorney was assigned by the Legal Aid Board.
20.
The
entitlement of a person charged to be represented, if necessary, by a
legal practitioner at public expense is an important safeguard
of
fairness in the administration of criminal justice.
Although
the right to choose a specific legal representative is a fundamental
one, and one to be zealously protected by the Courts,
it is not an
absolute right and is subject to reasonable limitatio
ns.
[4]
The Constitutional Court has endorsed this view, stating that the
right embodied in section 35(3)(f) of the Constitution does not
mean
that an accused person is entitled to the legal services of any
counsel he or she chooses, regardless of his or her financial
situation. Financial constraints necessarily play a role and
competing needs and demands have to be balanced, more so where the
entity providing the legal services is the Legal Aid Board with its
limited budget.
[5]
The Learne
d
Magistrate was correct in advising the Appellant as he did.
21.
The
Appellant indicated that he understood this and that in those
circumstances he would conduct his own defence.
22.
Where
a person chooses to represent himself, the desirability of legal
representation should be explained to him o
r
her.
[6]
Afte
r
all, even an intelligent and educated layman has small and sometimes
no skill in the science of law.
23.
On
virtually every occasion when the matter was adjourned and
recommenced, the Learned Regional Magistrate enquired from the
Appellant
whether he had changed his mind concerning legal
representation and whether he wished to apply for representation to
the Legal
Aid Board. The Learned Regional Magistrate was fastidious
about this. On each occasion, the Appellant indicated that he
understood
the position but that he wished to continue representing
himself.
24.
In
my view, the Learned Regional Magistrate did all that was required of
him.
[7]
The Appellant could not
be forced to accept legal representation where he did not desire it.
With the freedoms pro
vided
by the Constitution comes the right to make independent decisions,
even foolish decisions.
25.
The
Learned Magistrate was tolerant and patient with the Appellant. He
assisted the Appellant with his case throughout the trial
and
explained matters that may have been difficult for the Appellant to
grasp in terms that he understood. Looking at the matter
holistically, there was no substantial injustice that occurred,
despite the Appellant having no legal repr
esentative.
[8]
26.
As
regards the second point, counsel for the Appellant contended in his
heads of argument that the Court a quo was faced with two
contradictory versions and was not justified in rejecting the
Appellant’s version because it was improbable or it was not
supported. This argument suffers from but a single flaw, but it is a
catastrophic flaw: the Appellant advanced no alternative version.
The
Appellant chose not to testify and chose to call no witnesses. What
alternative version was therefore before the court? The
Learned
Regional Magistrate clearly informed the Appellant that any questions
that he put to witnesses did not constitute evidence
in his favour.
The Appellant stated that he understood this. This submission is
accordingly without merit.
27.
As
regards the third complaint concerning the charge sheet, the charge
sheet stated that:
‘
Section
51 and the/or 52 and schedule 2 of the criminal law amendment act 105
of 1997, as amended is applicable in that: victim
was raped by
accused and an accomplice at knifepoint.’
28.
Section
51(1)
of the
Criminal Law Amendment Act 105 of 1997
provides that
notwithstanding any other law, and subject to subsections (3) and
(6), a regional court or a High Court shall sentence
a person that it
has convicted of an offence referred to in
Part I
of Schedule 2 to
imprisonment for life.
29.
Part
I
of Schedule 2 includes rape as contemplated in
section 3
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007
when (i) committed in circumstances where the victim was raped more
than once whether by the accused or by any co-perpetrator or
accomplice and (ii) when the victim was raped by more than one
person, where such persons acted in the execution or furtherance
of a
common purpose or conspiracy.
30.
The
unchallenged evidence of the Complainant was that she was raped once
by each of two rapists. In my view, the provisions referred
to above
are self-evidently both of application. The Complainant was raped
more than once by the Appellant and his associate. In
addition, there
is evidence that the two rapists acted in the furtherance of common
purpose. Evidence of the common purpose is
apparent from the
Complainant’s evidence:
30.1
both
the men pushed her into the toilet cubicle;
30.2
one
of them told her to keep quiet and the other one put a knife to her
throat;
30.3
whilst
she was being raped by the one man, the other told him to ‘hurry
up’. Thereafter that man also raped her.
31.
It
is clear from this narration that her assailants acted in concert and
they both intended to, and in fact did, rape her.
32.
Counsel
for the Appellant’s contention in his heads of argument was
that the Complainant was raped by two individuals, each
acting on his
own accord. As is evident from what is stated above, there is ample
evidence that the Complainant’s assailants
assisted each other
and facilitated and encouraged each other and did not act on their
own independent, but identical, accord.
I accordingly find that the
Learned Regional Magistrate was correct in applying the minimum
sentence provisions.
33.
Dealing
with the fourth point, the factors alluded to by the Appellant in his
heads of argument concerning his personal circumstances
are not
factors that justify the imposition of a lesser sentence. In my view,
the imposition of a sentence of life imprisonment
was fully justified
on the facts of this case.
34.
The
meaning and effect of a previous conviction as referred to in
s 271
were given as follows by Holmes JA in R v Zonele and Others D
1959
(3) SA 319
(A) at 330C – D:
'A
previous conviction may be described as one which occurred before the
offence under trial. Generally speaking, previous convictions
aggravate an offence because they tend to show that the accused has
not been deterred, by his previous punishments, from committing
the
crime under consideration in a given case.'
35.
As
regards the fifth point, namely that this was not the worst type of
rape, it is so that it may be possible to imagine a more
serious set
of facts or a more depraved form of violation. But a violation
remains a violation. The act of rape is a gross invasion
of a woman’s
bodily integrity.
It was described in S v Chapman as:
‘
a humiliating,
degrading and brutal invasion of the privacy, the dignity and the
person of the victim’.
[9]
36.
There
is a great public clamour at the moment against gender-based violence
and such an outcry is justified. The clamant cry is
for appropriate
sentences in instances of this nature.
37.
This
particular rape occasioned injury to the Complainant: the vestibule
to her vagina was swollen afterwards and her vagina was
torn in two
places. The Complainant stated that she felt pain whilst being raped.
The attack on the Complainant was committed in
a base fashion in a
public urinal. The Appellant and his co-perpetrator showed no concern
for the Complainant’s well-being.
They took her clothes with
them when they left, presumably in an attempt to hamstring her from
emerging from the public toilet
to raise the alarm, thus causing her
further humiliation.
That
a rape committed by more than one person is particularly traumatic
for the victim requires no further elucidation - this is
the very
reason why the legislature saw fit to impose the maximum sentence for
this offence. That the Complainant was traumatised
by her experience
was evident in her distress while testifying in the Court a quo.
38.
As
to whether the sentence induces a sense of shock ordinarily,
sentencing is within the discretion of the trial court. An appeal
court can only interfere with the sentence imposed if the trial court
misdirected itself to such an extent that its decision on
sentence is
vitiated, or the sentence is so is proportionate or shocking that no
reasonable
court could have imposed it.
[10]
There
is abundant case law dealing with sentencing in general and the
cumulative effect thereof in particular. In S v
Rabie,
[11]
Holmes JA
o
bserved
that:
‘
1
In every appeal against sentence,
whether imposed by a magistrate or a Judge, the Court hearing the
appeal -
(a)
should be guided by the principle that punishment is “pre-
eminently a matter for the discretion of
the trial Court”;
and
(b)
should be careful not to erode such discretion: hence the further
principle that the sentence should only
be altered if the
discretion has not been “judicially and properly exercised".
2
The test under (b) is whether the sentence is vitiated by
irregularity or misdirection or is
disturbingly inappropriate.’
39.
In
sentencing the Appellant, the trial court took into consideration his
personal circumstances and the nature and seriousness of
the offence.
It found, correctly so in my view, that the personal circumstances of
the Appellant do not constitute substantial
and compelling
circumstances justifying a deviation from the prescribed sentence of
life imprison
ment.
[12]
The
Appellant’s personal circumstances diminish into insignificance
when compared with the seriousness of the offence.
40.
It
was argued that the period that the Appellant spent in custody was a
mitigating factor. The Appellant was arrested on 18 August
2008. He
was asked to plead on 9 December 2009, was convicted on 4 October
2009 and was sentenced on 10 November 2010. While not
a model of
swiftness, the time between arrest and convictions is not startlingly
long.
41.
The
test concerning the period of incarceration is not whether on its own
that period of detention constituted a ‘
substantial
and compelling circumstance
’,
but whether the effective sentence proposed was proportionate to the
crime or crimes committed: whether the sentence in
all the
circumstances, including the period spent in detention prior to
conviction and sentencing, was a just one. The period spent
in
detention pre-sentencing is but one of the factors that should be
taken into account in determining whether the effective period
of
imprisonment to be imposed is justifie
d.
[13]
A pre-conviction period of imprisonment is not, on its own, a
substantial and compelling circumstance; it is merely a factor in
determining whether the sentence imposed is disproportionate or
unjust.
[14]
42.
As
to the alleged youthfulness of the Appellant, there is no evidence by
the Appellant that his relative immaturity should count
in mitigation
of his sentence. There is also no evidence whatsoever that the
Appellant has displayed any remorse for his actions.
43.
There
was some debate in the Court a quo over whether another offence of
rape for which the Appellant was already serving a sentence
of life
imprisonment was, or was not, a previous conviction. The meaning and
effect of a previous conviction as referred to in
s 271
was explained
by Holmes JA in R v Zonele and Others as follo
ws:
[15]
'A previous conviction
may be described as one which occurred before the offence under
trial. Generally speaking, previous convictions
aggravate an offence
because they tend to show that the accused has not been deterred, by
his previous punishments, from committing
the crime under
consideration in a given case.'
44.
It
is not the date of the crime but the date of the conviction that is
relevant in deciding what is or what is not a previous
conviction.
[16]
45.
There
is, accordingly, no basis on which to find that the sentence imposed
by the trial court is disproportionate or shocking and
that no other
Court would have imposed such a sentence. This Court is, therefore,
not entitled to interfere with the sentence imposed
by the trial
court.
46.
In
my view, the appeal must fail.
MOSSOP
AJ
I
agree and it is so ordered.
KRUGER
J
[1]
S v Leslie
200 (1) SACR 346
(W); S v Zenzile
2009 (2) SACR 407
(WCC); S v Gora and Another
2010 (1) SACR 159
(WCC).
[2]
State
v Zondi 2003 (2) SACR 227 (W).
[3]
Section
10 of the Judicial Matters Amendment Act 42 of 2013, read with
section 309 of the Criminal Procedure Act.
[4]
S v Halgryn
2002
(2) SACR 211
(SCA)
at paragraph 11.
[5]
Fraser
v ABSA Bank
[2006] ZACC 24
;
2007
(3) SA 484
(CC)
at paragraph 68.
[6]
S v Radebe; S v Mbonani
1988 (1) SA 191
(T) at page 195B.
[7]
S v GR 2015 (2) SACR 79 (SCA).
[8]
S v Moyce
2013 (1) SACR 131
(WCC) at paragraphs 19 and 20.
[9]
S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at page 278.
[10]
Bogaards v S
2013 (1) SACR 1
(CC) at paragraph 41.
[11]
1975
(4) SA 855
(A)at page 857D to F.
[12]
Sipho Ximba v The State (1171/18)
[2019] ZASCA 111
(16 September
2019).
[13]
S
v Radebe and Another
2013 (2) SACR 165
(SCA) at paragraph 14.
[14]
Ngcobo
v The State
2018 ZASCA 06
(23 February 2018) at paragraph 14
[15]
1959 (3) SA 319
(A) at page 330C to D.
[16]
S
v Motebele 1983 (2) PH H201 (O).