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[2018] ZAECMHC 69
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S v Siyeka and Another (CC 06/2018) [2018] ZAECMHC 69 (14 December 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION:
MTHATHA]
CASE
NO. CC 06/2018
In
the matter between:
THE
STATE
VS
XOLISA
SIYEKA
ACCUSED NO. 1
MNCEDISI
VUBA
ACCUSED NO. 2
JUDGMENT
ON SENTENCE
JOLWANA
J
[1]
The accused were convicted of having raped the complainant, S Q. They
must now be sentenced for the said offence.
[2]
At the risk of being repetitive, the circumstances in which this
crime was committed are worth mentioning again. The complainant
was
in her own community in which she was born enjoying herself with
alcohol together with other members of the community all of
whom were
known to her and they all knew her. Some of the people were not only
known to her but were related to her. She testified
that she and the
late Z S were cousins and that she was related to the S family
through her maternal aunt. The circumstances in
which the drinking
was taking place as described above are such that she had every right
to take for granted that she was safe
despite the alarmingly high
violent crime levels in this country especially rape, and violence
against women and children, who
are the most vulnerable in our
society.
[3]
When N, the eye witness to the accused’s criminal activities
that night saw them violating her on different occasions,
starting
with what she called “
fingering
” and thereafter
taking turns to rape her whilst she was deep in her drunken sleep,
they were undeterred despite her admonishment.
The accused had no
regard for the complainant’s dignity not only as a human being
but also as a woman. They saw her as an
object of their
entertainment, no different from other utensils they were using to
entertain themselves. They objectified, used
and abused her with no
shame, stripping her naked, others would watch while one of them
would be having sexually intercourse. During
all of this, at times
the complainant would cry in her defenceless drunken stupor.
[4]
For a crime such as this the Legislature has prescribed a minimum
sentence. In terms of section 51(1) read with Part 1 of Schedule
2 of
the
Criminal Law Amendment Act 105 of 1997
life imprisonment is the
prescribed sentence. This is so because the complainant was raped by
more than one person namely, accused
no.1, accused no.2 and the late
Z S all of whom took turns in raping her, assisting one another in
their despicable conduct acting
in the execution or furtherance of a
common purpose of sexual gratification.
[5]
In
S v Malgas
[2001] 3 ALL SA 220
(A) it was stated that a
court was required to approach sentencing conscious of the fact that
the Legislature has ordained life
imprisonment or the particular
prescribed period of imprisonment as the sentence which should
ordinarily be imposed for the commission
of the listed crimes in the
specified circumstances.
[6]
Having said this, it must also be born in mind that the Legislature,
in its wisdom decided, correctly in my view, to leave it
to the
courts to decide what the substantial and compelling circumstances
are in any given case, justifying a departure from the
prescribed
sentences. No court has or is able to give an exhaustive list of what
those circumstances should be in any given case.
The uniqueness of
the circumstances of each case make sentencing innately difficult if
not controversial.
[7]
In a number of decisions our courts have repeatedly made certain
pronouncements on the approach that a court considering a sentence
should adopt where a prescribed minimum sentence is applicable. In
S
v Homareda
1999 (2) SACR 319
(W) para 326 it was stated that:
“
The
correct approach in exercising the discretion conferred on the Court
in
section 51
of 105 of 1997 is:
(1)
The
starting point is that the prescribed minimum sentence must be
imposed,
(2)
Only if the
Court is satisfied that substantial and compelling circumstances
exist which justify the imposition of a lesser sentence
may it do so,
(3)
In deciding
whether substantial and compelling circumstances exist, each case
must be decided on its own facts and the court is
required to look at
all the factors and consider them cumulatively; and
(4)
If the
court concludes in a particular case that a minimum prescribed
sentence is so disproportionate to the sentence which would
have been
appropriate … it is entitled to impose a lesser sentence.”
[8]
It is now trite that a sentencing court does have a discretion to
depart from the prescribed minimum sentence if the jurisdictional
factors for the exercise of that discretion exist. Those are the
substantial and compelling circumstances justifying a departure
from
a prescribed minimum sentence which the Legislature has ordained that
it should ordinarily apply or be imposed. In
Malgas
the court
said that in finding that substantial and compelling circumstances
exist justifying a departure courts are to respect
and not pay lip
service to the Legislature’s view that the prescribed periods
of imprisonment are to be taken to be ordinarily
appropriate when
crimes of the specified kind are committed.
[9]
It was submitted on behalf accused no.1 that he is a first offender
and relatively young at the age of twenty four years. He
lives with
his elderly parents and his father receives old age pension. He was
severely injured when he was stabbed by the complainant’s
mother as a result of which he had to spend a period of more than a
month in hospital. He has not fully recovered. A letter addressed
by
the Hospital Section of the Queenstown Correctional Centre dated 15
June 2018 was submitted as exhibit “F”. The
letter is
addressed to the Head of Section, Queenstown Correctional Centre. In
that letter the accused is sought to be excused
from doing certain
exercises due to an undisclosed medical condition which presumably is
the consequence of being stabbed. At hospital
he underwent two
operations.
[10]
Accused no.1 also has a boy child who is three years old. He
supported this child from income derived from odd jobs as a labourer
and his father also assists with his old age pension in looking after
the needs of the child. The child’s mother is still
at school
doing grade eleven. He himself dropped out of school before
completing grade eleven.
[11]
In respect of accused no.2 it was submitted that he was raised by his
grand-parents. His mother passed on while he was still
an infant. He
also dropped out of school in grade eleven. He also did odd jobs
assisting in building operations. He has a four
year old child that
he supported from his odd jobs as a labourer. He is epileptic and
receives treatment from traditional doctors.
However, no proof of the
diagnosis of his epileptic condition or its severity was submitted.
He was thirty one years old when the
crime was committed and is a
first offender. He was also stabbed by the complainant’s mother
that night.
[12]
It was further submitted on behalf of both of them that liquor played
a role in the commission of the offence. It was also
submitted that
they have spent a period of more than a year in custody and therefore
the pre-sentence detention period should be
taken into account.
[13]
The principles of sentencing as well as the applicable law has been
authoritatively stated in our courts on countless occasions.
The
courts have emphasised the need to try and find the correct balance
between the crime, the offender as well as the interests
of the
society. This is obviously a very serious offence for which the
accused have been convicted and the society’s expectation
for a
heavy sentence must be counter balanced with the interest of the
accused, including any prospects of rehabilitation as well
as the
circumstances in which the offence was committed.
[14]
The application of the law on sentencing as it relates to cases such
as this in which the minimum sentence legislation applies
was
summarised very concisely by the Supreme Court of Appeal in
S v
Vilakazi
2009 (1) SACR 552
in which Nugent JA aptly articulated
the legal position as follows:
“
15.
It is clear from the terms in which the test was framed in
Malgas
and endorsed in
Dodo
that it is incumbent upon a court in every case before it imposes a
prescribed sentence to assess, upon a consideration of all
the
circumstances of the particular case, whether the prescribed sentence
is indeed proportionate to the particular offence. The
Constitutional
Court made it clear that what is meant by the “offence”
in the context ... “consists of all factors
relevant to the
nature and seriousness of the criminal act itself, as well as all
relevant personal and other circumstances relating
to the offender
which could have a bearing on the seriousness of the offence and the
culpability of the offender.” If a court
is indeed satisfied
that a lesser sentence is called for in the particular case, thus
justifying a departure from the prescribed
sentence, then it hardly
needs saying that the court is bound to impose that lesser sentence.”
[15]
The balancing act that needs to be done is by no means an easy task.
Some of the considerations are in the realm of the state
of mind of
the accused when the offence was committed. In this case the accused
continued with their abhorable conduct even after
N had tried to stop
them. In fact at some point accused no.1 wanted to assault N in their
determination to prey on the defenceless
complainant who could not
even stand on her own. If a woman such as the complainant decides to
entertain herself and drink liquor,
she is entitled to do so in the
same way that men are entitled to enjoy themselves in whatever lawful
manner they choose to. It
cannot be accepted that if a woman gets
drunk she must be victimised and preyed on as vulturously as the
accused did to the complainant.
[16]
What makes men such as the accused person arrogate to themselves the
right to have sexual intercourse with a woman without
her consent,
whose only sin is to get drunk and fall asleep is a twisted evil mind
which is nothing short of an abomination.
[17]
As was pointed out by Ms Govender, counsel for the state, the
complainant received unwarranted public and media attention which
is
hugely humiliating and degrading. It makes it worse that in evidence
before court the accused tried to insult the complainant
by making
spurious accusations against her to create the impression that she is
a woman of loose morals who sleeps around indiscriminately.
That was
literally adding insult to injury and very disrespectful to the
complainant.
[18]
Like vultures they preyed on her repeatedly taking turns to rape her.
The public anger and indignation is well founded and
justified. They
never showed any remorse nor was it submitted that they were
remorseful or regretted what they had done to the
complainant. Their
main concern was to ensure that they escaped the consequences of
their unlawful and despicable conduct.
[19]
However, as indicated above our justice system requires that a proper
balance be struck between the gravity of the offence,
the interests
of the society and those of the offender, the so–called triad
in the sentencing realm. It is indeed true that
the accused are first
offenders as their counsel, Mr Gxaba submitted, as no previous
convictions were proved by the state. The
crime itself was committed
in circumstances in which there was a drinking spree of liquor, as
their counsel put it.
[20]
When the mother of the complainant was called and told that her
daughter was being raped by the accused, she armed herself
with a
knife precisely because of the criminal activities of young men like
the accused in that community of Zwartwater who make
it unsafe for
women to walk freely at night. When she entered Zamile’s
bedroom and saw what they were doing to her daughter,
she described
herself as having become very emotional. I understood her to mean
that she was overcome with anger, justifiably so
seeing her child
being raped by one of the accused, while others were waiting to take
their turns with their pants already at their
knees, a horrendous
sight for any parent.
[21]
However, it must be born in mind that public anger and indignation,
while not to be disregarded, but should not outweigh other
relevant
considerations as mentioned above. The Supreme Court of appeal has
made it very clear that in sentencing, courts must
be careful of
being swayed or influenced by public opinion as they do the balancing
act. Harms JA cautioned as follows in
S v Mhlakaza
[1997] 2
All SA 185
(A)
“
7….it
is necessary to express a general note of caution. The object of
sentencing is not to satisfy public opinion but to
serve the public
interest. (CF Ashworth and Hough Sentencing and the Climate of
Opinion
[1996] Crim LR 776
;
S
v Mafu
1992 (2) SACR 494
(A) 496 g-j.) A sentencing policy that caters
predominantly or exclusively for public opinion is inherently flawed.
It remains
the court’s duty to impose fearlessly an appropriate
and fair sentence, even if the sentence does not satisfy the public.
In this context the approach expressed in
S
v Hyperlink
and
Another
[1995] ZACC3
[1995] ZACC 3
; ;
1995 (2) SACR 1
(CC) para 87-89 (per Chaskalson P)
applies
mutatis
mutandis
:
public opinion may have some relevance to the enquiry, but, in
itself, it is no substitute for the duty vested in the court; the
court cannot allow itself to be diverted from its duty to act as an
independent arbiter by making choices on the basis that they
will
find favour with the public. That in the words of Schreiner JA in
R
v Karg
1961 (1) SA 231
(A) 236 B-C, does not mean that it is “wrong
that the natural indignation of interested parties and of the
community at large
should receive some recognition in the sentences
the courts impose, and it is not irrelevant to bear in mind that if
sentences
for serious crimes are too lenient the administration of
justice may fall into disrepute and injured persons may incline to
take
the law into their own hands”. But he added, “righteous
anger should not becloud judgment.”
[22]
I have considered all the evidence, the seriousness of the offence,
the circumstances of drunkenness in which the crime was
committed,
the personal circumstances of the accused, the fact that on the night
in question all three assailants were stabbed,
one of them fatally.
Accused no.1 spent a period of more than a month in hospital
consequent upon being stabbed and had to undergo
two operations.
Accused no.2 spent six days in hospital. Both of them have been in
detention since their arrest for a period of
fifteen months.
[23]
I have also considered the pain both physically and emotionally that
the complainant went through and must still be going through.
It goes
without saying that her dignity was trashed and she will forever live
with the embarrassment of having been made a public
spectacle of the
events of that day, the 2 September 2017, a day she probably will
never forget. Whether or not she will ever completely
recover and
regain he dignity as a woman will never be known.
[24]
The interest of the society and the public indignation and abhorrence
of this offence especially the Zwartwater community who,
on the
evidence of Mrs Q, are besieged by crime perpetrated by people such
as the accused are all matters that I have considered
in deciding on
an appropriate sentence. I have concluded that substantial and
compelling circumstances exist justifying a departure
from the
minimum sentence of life imprisonment as provided for in
section
51(3)
of the
Criminal Law Amendment Act. Having
said that a very
significant period of incarceration is not only justified but also
required to send a clear message to the youth
and other criminals in
that community that their criminal conduct of taking advantage of
women and other vulnerable members of
the community will be punished
severely by the courts.
[25]
Accordingly accused no.1 and accused no.2 are sentenced as follows:
1.
They are sentenced to 30 years imprisonment, five years of which is
suspended for 5 years on condition that they are not convicted
of a
sexual offence committed during the period of suspension.
2.
The sentence is to be antedated to the 02 September 2017.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for the State: C. GOVENDER
Instructed
by: NPA
MTHATHA
Counsel
for the accused: K.M. GXABA
Instructed
by: LEGAL AID BOARD
MTHATHA
Heard
on: 12 December 2018
Delivered
on: 14 December 2018