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[2019] ZAKZDHC 39
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Nombele v S (AR36/2019) [2019] ZAKZDHC 39 (1 November 2019)
JUDGMENT
AR
36/2019
(1
NOVEMBER 2019)
MOSSOP
AJ
The appellant was charged with a count of rape and
a count of robbery with aggravating circumstances. He was only
convicted
on the count of rape for which he was sentenced to life
imprisonment. He appeals against his conviction and sentence.
Both
charges that the appellant initially faced had their genesis in
events that occurred on the morning of 17 February 2008 at
or near
the Bluff when a married woman, MW (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.
In
delivering his judgment 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 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.
Before
considering the evidence it is necessary to note 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
roleplayers in the trial who were available reconstructed the first
day of evidence in accordance with decided authority.
I am satisfied
that the reconstructed record is adequate for the purposes of
considering the appellant’s appeal.
As
regards the evidence led at the 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 her eyes while she was being
raped and
as a consequence 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 that day. The doctor noted in the J88
medical report that he completed that the vestibule to her
vagina was
swollen and certain tears to her vagina existed at the two
o’clock
and the four
o’clock
position. He also indicated that he took swabs from her vagina for
the purpose of testing.
Other
than the oral evidence of the 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.
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. He requested that the samples taken from
the complainant in this matter be compared with the specimen
he
caused to be taken from the appellant because of the similarity
between the two offences. A subsequent DNA comparison test confirmed
that the material contained in the swab taken from 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 they progressed from the extraction
from those individuals to their arrival at the forensic
laboratory
and their subsequent analysis.
The
appellant chose not to testify in his defence and called no
witness
es.
In
due course the learned 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.
By
virtue of the sentence the appellant was entitled to an automatic
appeal of both his conviction and sentence. For some reason,
this
appeal was never advanced and we are now some ten years after
conviction dealing with the automatic appeal.
The
basis of the appellant’s 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 first by considering the
manuscript notice of the application for leave to appeal.
In
that document the appellant states that –
(1)
He
committed the offence whilst he was intoxicated;
(2)
There
was no evidence that he forced the complainant to have sexual
intercourse with him;
(3)
The
sentence imposed upon him was unreasonable because he pleaded guilty
to the offence as an indication of his remorse;
(4)
He
spent two years in custody pending his trial; and
(5)
He
was youthful at the time of the commission of the offence.
Dealing
with each of these issues, firstly, 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 at all. It
could not have been as the appellant himself did
not testify.
Secondly, as regards there being no evidence that the appellant
forced the complainant to have sexual intercourse
with him, 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, a married woman,
voluntarily chose to have intercourse with him and his
co-perpetrator
who were strangers to her on the floor of a public urinal early in
the morning. Such a contention is simply outrageous
and is evidence
of the fact that the appellant has a distorted sense of what
happened. Thirdly, 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 J15 form indicates. Had he pleaded guilty to the robbery charge
there is every likelihood that he would have
been convicted on that
charge, not acquitted.
Fourthly,
the contention that the period spent awaiting trial is a mitigating
factor is an issue common to both the notice of application
for leave
to appeal and the heads of argument and will be dealt with later in
this judgment when dealing with the argument advanced
in the heads of
argument. Fifthly, the age of the appellant, which appears to have
been twenty-eight at the time of this trial,
does not establish the
appellant to be unduly youthful.
In
short, the issues raised in the notice of appeal lack substance and
are unpersuasive.
As
regards the points raised in the appellant’s heads of argument
they are –
(1)
That
the appellant did not receive a fair trial as he did not have legal
representation;
(2)
That
there was no reason why the appellant’s version which was
apparently contradictory to the State’s version should
have
been rejected by the court
a
quo
;
(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;
(4)
That
there were strong mitigating circumstances primarily to be found in
the appellant’s personal circumstances and the time
that he
spent in custody awaiting trial; and
(5)
That
the sentence induced a sense of shock as the rape was not the worst
kind of rape.
Each
of these submissions are considered.
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. 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 the minimum sentence
in the matter. The
possibility of the 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
be
represented by another Legal Aid attorney other than the one already
assigned to his case by the Legal Aid Board. The learned
regional
magistrate explained to the appellant that he would not be able to
choose the specific identity of the Legal Aid attorney
assigned to
represent him but had to be represented by whichever attorney was
assigned to his matter by the Legal Aid Board.
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 limitations (see
S
v Halgryn
2002 (2) SACR 211
(SCA) at paragraph
11). 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 (see
Fraser
v Absa Bank
[2006] ZACC 24
;
2007 (3) SA 484
(CC) at paragraph
68).
The
learned regional magistrate was correct in advising the appellant as
he did. The appellant indicated that he understood this
and that in
those circumstances he would conduct his own defence. When a person
chooses to represent himself the desirability of
legal representation
should be explained to him or her (see
S
v Radebe, S v Mbonani
1988 (1) SA 191
(T) 195B). After all, even an intelligent and educated layman has
small and sometimes no skill in the science of law. On virtually
every occasion when the matter was adjourned and then 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
stated that he wished to continue representing himself. In my view
the learned regional magistrate did all that
was required of him (see
S v GR
2015 (2) SACR 79
(SCA)). The appellant could not be forced to accept
legal representation where he did not desire it.
With
the freedoms provided by the Constitution comes the right to make
independent decisions, even foolish decisions.
In
addition, the learned regional magistrate was tolerant and patient
with the appellant. He assisted the appellant with his case
throughout the trial and explained matters to him in terms that he
understood where the concepts and allegations may have been
difficult
for the appellant to grasp.
Looking
at the matter holistically, there was no substantial injustice
that occurred despite the appellant having no legal
representation (see
S v Moyce
2013 (1) SACR 131
(WC) at paragraphs 19 and 20).
As
regards the second point raised in the heads of argument, counsel for
the appellant contended 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
witness
es.
What alternative version was there before the court
a
quo
? The
learned regional magistrate clearly informed the appellant that any
questions that he put to
witness
es
did not constitute evidence in his favour. The appellant stated that
he understood this. This particular submission betrays a
lack of
familiarity with the record and is without merit.
As
regards the third complaint raised in the heads of argument
concerning the charge sheet, the charge sheet stated –
“
Section
51 and / 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.”
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
has been convicted of an
offence referred to in
Part I
of Schedule 2 to imprisonment for
life.”
Part
I
of Schedule 2 includes rape as contemplated in Section 3 of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act
4007
when committed in circumstances where the victim is raped more than
once, whether by the accused or by any co-perpetrator
or accomplice.
I
would regard the application of the provisions of Part I of
Schedule 2 as being self-evident. The State alleged that the
appellant and his co-perpetrator each raped her.
That,
however, is not the end of the matter. The
learned
regional court magistrate overlooked the fact that the appellant’s
co-perpetrator was not before him and could not
in the circumstances
be convicted of the rape of the complainant. As a consequence, the
court
a
quo
was not at liberty to conclude that the rape of the complainant fell
within the provisions of Part I of Schedule 2 of the
Criminal Law
Amendment Act 105 of 1997
where the particular part of the schedule
relied upon is the rape of the complainant more than once. It follows
that the minimum
sentence for rape was not applicable to the rape
conviction of the
appellant
and the sentence of life imprisonment must be set aside (see
Mahlase v S
[
2011
]
ZASCA
191 at paragraph
9
and
Ndlovu
v S
ZAKZPH
56, a judgment handed down on 12 August 2019 at paragraph
16).
The
offence consequently falls into
Part III
of Schedule 2 of the
Criminal
Law Amendment Act
105
of 1997
. The minimum sentences applicable to this category of
offences are imprisonment for a minimum period of ten years for a
first
offender and a minimum period of fifteen years for a second
offender.
Having
concluded that the sentence must be set aside it is not necessary to
consider the further criticisms of the sentencing procedure
in the
court
a
quo
as
sentence will be considered afresh.
At
the sentencing stage the appellant was again represented, ironically
by the very attorney he declined to permit represent him
at the
commencement of the trial. His
personal
circumstances
were
advanced by his legal representative and I take cognisance of
them. As to the alleged youthfulness of the appellant, there
is
no evidence by the appellant that his level of maturity or lack
thereof should serve to mitigate his sentence. He is an
adult
and he was mature enough to father a child. There was also no
evidence whatsoever that the appellant has displayed
any remorse for
his actions.
When
considering the crime itself it may be possible to imagine a more
serious set of facts or a more depraved form of violation
but the
violation of a woman 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.”
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.
This
particular rape occasioned injury to the complainant as previously
described in this judgment. The complainant also stated
that she
felt pain whilst being raped. The attack on the complainant was
committed in a base fashion in a public urinal where
she was made to
lie on the floor in order to be raped. The appellant and his
co-perpetrator showed no concern for the complainant’s
wellbeing. They took most of her clothes with them when they
left, presumably in an attempt to hamstring her from emerging
from
the public toilet to raise the alarm. To do so, the complainant
had to use what clothing the appellant and his co-perpetrator
had
left behind, namely a jacket, to shield her modesty thus causing her
further humiliation. That the complainant was traumatised
by the
experience was evident in her distress while testifying in the court
a
quo
.
The
period that the appellant spent in custody awaiting trial is a valid
consideration that must be taken into account. He was arrested
on
18 August 2008. He was asked to plead on 9 December 2009. He was
convicted on 4 October 2010 and was sentenced on 10 November
2010.
Whilst not a model of swiftness, unfortunately, there is nothing
exceptional in the period of time that the appellant was
required to
spend in custody awaiting finalisation of his matter. Nonetheless
that period will be taken into consideration in the
sentence to be
imposed.
It
is so that by the time that the appellant stood trial in the matter
under appeal he had already been convicted on a charge of
rape and
was serving a life sentence for that offence. It was apparently this
offence for which he was convicted and sentenced
that provided the
link to this case. That offence was committed after the present
offence but the appellant was convicted before
this offence. It is
proper that this, despite it not being a
previous
conviction, should be taken into consideration during the sentencing
process in this matter (see
R
v Liebenberg
1924 TPD 579).
In
my view a sentence in excess of the minimum sentence prescribed is
called for in this matter. I am of the opinion that a sentence
of
fifteen years’ imprisonment is appropriate and it may be
imposed in terms of the provisions of Act 105 of 1997 and should
be
imposed. I have arrived at this after taking into consideration the
time that the appellant spent in custody awaiting finalisation
of his
trial.
I
WOULD ACCORDINGLY ALLOW THE APPEAL TO THE EXTENT THAT THE SENTENCE IS
ALTERED FROM ONE OF LIFE IMPRISONMENT TO ONE OF IMPRISONMENT
FOR
FIFTEEN (15) YEARS WHICH SENTENCE IS TO RUN CONCURRENTLY WITH THE
SENTENCE OF LIFE IMPRISONMENT THAT THE APPELLANT IS CURRENTLY
SERVING
.
KRUGER
J
I
agree and it is so ordered.
TRANSCRIBER’S
CERTIFICATE
This
is, to the best abilities of the transcriber, a true and correct
transcript of the proceedings,
where audible
, recorded by
means of a mechanical recorder in the matter:
TANDASO
PETERSON NOMBELE
v
THE
STATE
CASE
NUMBER: AR
36/2019
COURT
OF ORIGIN: DURBAN
HIGH COURT
TRANSCRIBER: KERRY
DICKINSON
DATE
COMPLETED: 27
NOVEMBER
2019
NUMBER
OF CDS: 1
x CD
NUMBER
OF PAGES: 13
Kerry
Dickinson
Final
REPORTABLE/
NOT REPORTABLE
IN
THE KWAZULU-NATAL HIGH COURT
DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE
NUMBER: AR
36/2019
HEARD
AT: DURBAN
DATE: 1
NOVEMBER 2019
TANDASO
PETERSON NOMBELE
versus
THE
STATE
BEFORE
THE
HONOURABLE JUDGE KRUGER
and
THE
HONOURABLE ACTING JUDGE MOSSOP
FOR
THE APPELLANT: MR
E M CHILIZA
FOR
THE RESPONDENT: M
NGCOBO
INTERPRETER:
CONTRACTOR
Sneller Recordings (Pty)
Ltd • P O Box 1193 • Pietermaritzburg • 3200
Tel 033 3425256 •
Fax 033 3941190