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[2016] ZAGPPHC 840
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Mthimkhulu v S (A6/2012) [2016] ZAGPPHC 840 (17 February 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
(GAUTENG
DIVISION,
PRETORIA)
CASE
NO: A6/2012
DATE:
17/2/2016
In
the appeal of:
JOHN
..
MTHIMKULU
………………………………………………………….................
Appelant
and
THE
STATE
…………………………………………………...................................
Respondent
DATE
OF
APPEAL HEARING: 21 FEBRUARY 2013
MONTSHO,
AJ (Maumela J concurring)
[1]
On the 5th August 201 1, the Appellant was convicted on one count of
rape, read with the provisions of Section 51 (2)(b) of
the Criminal
Law Amendment Act, No. 105 of 1997 ("the Minimum Sentences
Act"), and one of robbery with aggravating circumstances.
[2]On
the charge of rape, he was sentenced to 20 (twenty) years
imprisonment imposed in terms of Section 51 (2) and (3) of the
Minimum Sentences Act. On the charge of robbery (of an amount of R
150.00) with aggravating circumstances, the appellant was sentenced
to 5 (five) years imprisonment. The court
a
quo
ordered that the sentences run concurrently, with the result that
the sentence imposed was an effective 20 (twenty) years imprisonment.
[3]
The court
a
quo
further ordered that in
terms of Section 276 B( 1) and (2) of the Criminal Procedure Act, No.
51 of 1977 (as amended), a non-parole
period of 12 (twelve) years was
fixed. This means that the appellant would only be considered
eligible for release on parole after
completion of 12 (twelve) years
of imprisonment.
[4]
On the date of imposition of sentence on the 22nd August 201 1. the
Appellant was 73 (seventy three) years old. He had been
in custody
awaiting trial since his date of arrest. reflected on the charge
sheet as the 28th September 2009. By the time he would
be eligible
for release on parole, he would be 85 (eighty five) years old.
[5]
The appellant subsequently applied for leave to appeal against both
conviction and sentence. He was however granted leave to
appeal in
respect of the sentences only, on the 3rd October 201 1 .
[6]
The appellant was legally represented during his trial and in the
subsequent application for leave to appeal.
[7]
In the court a
qu
o
,
the appellant pleaded
not guilty to both counts. On the charge of rape. his plea
explanation was that he had sexual intercourse
with the complainant.
with her consent. He denied the charge of robbery.
[8]
The State led the evidence of witnesses. namely the complainant,
and her eldest sister. one Ms T M M, as well as one Dr
Kayembe, who
examined the complainant on the date of the incident on the 21
st
September 2009.
[9]
The evidence of the complainant can be summarised as follows:
[9.l]
on the day of the incident, she went to Nelspruit city for purposes
of checking her bank statements at Standard Bank;
[9.2]
on her way to the bank, she found the appellant standing next to a
Foschini store. He then asked her if she did not need employment,
but
she replied that she was still a student at school. The appellant
then told her that the offer was only for one day, for which
she
would be paid an amount of R300.00 (three hundred rand) . Whilst with
him, she saw the appellant approaching a white lady and
the two of
them talked.
[9.3]
the appellant got back to her, and he told her that the person
who was her prospective employer was at home. She then
accepted the
offer of employment. He suggested that they walk together through the
bushes as it was short cut to the houses on
the other side of the
valley, where her prospective employer 's house was;
[9.4]
at some point the appellant suggested that they should sit down to
rest. She acceded to the request, but whilst sitting there,
the
appellant suggested that they should have sexual intercourse. She
refused and stated that she was still a virgin. She was 19
(nineteen)
years old at the time;
[9.5]
she ran away but the appellant grabbed her, and she bit him on his
hand, but then he hit her with a fist to subdue her and
dissuade her
from
further
resistance. The complainant then decided to switch on the video of
her cell phone to record the incident;
[9.6]
the appellant pulled down her pants and forcefully had sexual
intercourse with her without her consent, and took R 150.00
from her
·trouser pocket, after demanding money from her;
[9.7]
after the appellant finished having sexual intercourse with her
without her consent, he told her to go and report to her parents
that
she is a bitch;
[9.8]
she sustained injuries to her genitalia, and consulted a medical
doctor;
[9.9]
the medical report corroborated the complainant's injuries and it was
tendered as evidence during the testimony of Dr Kayembe,
who
testified that he examined the complainant, who was 19 years old at
the time and recorded his findings in the J88 medical form;
[9.10]
a video of the incident was shown in court.
[10]The
appellant's evidence was that:
[10.1
] he did meet the complainant on the 21
st
September 2009,
and the two went into the bushes where they had consensual sexual
intercourse;
[10.2]
he did not dispute the video footage that was shown in court, but
said he was not aware the complainant was recording him.
He however
denied assaulting the complainant, or demanding money from her.
[11]
It is on the evaluation of the aforegoing evidence that the appellant
was convicted as stated hereinabove. The aforesaid conviction
still
stands.
[12]
In sentencing the appellant, the court
a
quo considered as an
aggravating factor the fact that the appellant had
three
previous convictions of rape, though they were committed long in the
past.
[13]
The appellant's counsel, Mr Molobedi, submitted that in imposing
sentence the court
a
quo should have looked at the
personal circumstances of the appellant. He submitted that this
court should impose a lesser
sentence of 10 (ten) years imprisonment,
5 (five) of which should be suspended, thus imposing an effective
sentence of 5 (five)
years imprisonment. He, however cited no legal
authorities in support of this submission.
[14]
On the other hand, the respondent's counsel, Mr Kotze, submitted that
the appellant' s previous convictions on similar charges
should be
viewed in a serious light.
[15]
He argued that there were no substantial and compelling circumstances
present in the appellant's case that warranted a departure
from the
prescribed minimum sentence as contemplated in the provisions of the
Minimum Sentences Act. He submitted that an effective
sentence of 20
(twenty) years imprisonment is appropriate in the circumstances.
[16]
This court, sitting as a court of appeal, is required to consider
whether an effective term of 20 (twenty) years' imprisonment
is
appropriate in the circumstances or whether it is excessive and
induces a sense of shock.
[17]
I also have to consider whether the period the appellant already
spent in custody whilst awaiting trial, and his age, should
be taken
into account on the imposition of sentence.
[18
In
S v
Vilakazi
20
1
2(6)
SA 355 (SCA),
the Supreme Court of Appeal, in a judgment
delivered by Nugent JA stated the
following:
"While
good reason might exist for denying bail to a person who is charged
with a serious crime, it seems to me that if he
or she is not
promptly y brought to trial it would be most unjust if the period of
imprisonment while awaiting trial is not then
brought to account in
any custodial sentence that is imposed"
at
376
A - B
In
this case the court ordered that the imprisonment sentence imposed on
the appellant had to expire two years earlier than would
ordinarily
have been the case,
i.e.
deducting the period spent in custody from the total sentence.
[19]
In
S v
M
atyityi, 20
1
1
(1)
SACR 40
(SCA
)
,
the Supreme
Court of Appeal, per Pennon JA, stated the following:
"Our
Courts derive their power from the constitution and, like other arms
of State owe their fealty to it. Our constitutional
order can hardly
properly patrol the boundaries of their own power by showing due
deference to the legitimate domains of power
of the other arms of
State. Here Parliament has spoken. It has ordained minimum sentences
for certain specified offences. Courts
are obliged to impose those
sentences unless there are truly convincing reasons for departing
from them. Courts are not free to
subvert the will of the legislature
by resort to vague and ill-founded hypotheses that appear to fit the
particular sentencing
officer' s personal notion of fairness.
Predictable outcomes, not outcomes based on the whim of an individual
judicial officer,
is foundational to the rule of law which lies at
the heart of our constitutional order."
at
53, para [33] d - g
[20]
Society cannot be oblivious to the fact that rape is a heinous crime.
In
S v
Chapman,
ZASCA
45:
1
997 (3)
SA
341
(SCA
)
,
the Supreme Court of Appeal stated the following:
"Rape
is
a humiliating,
degrading
and
brutal
invasion
of
the
privacy,
dignity
and
the
person
of
the
victim,
and
that
a
woman
in
this
country
...
have
a
legitimate
claim
to
walk
peacefully
on
the
streets,
to
enjoy
their shopping
and
entertainment,
to
go and come
from work,
and
to enjoy
the
peace and
tranquillity
of
their
homes
without
fear,
apprehension
and
insecurity
which constant
l
y
diminishes
the quality
and
enjoyment
of
their lives"
at
345, A - B
[21]
The State's evidence was that before raping the complainant,
appellant subdued her by hitting her with a fist. In
S
v
Mnguni,
1994(1)
SACR
579(A),
the court stated the following:
"a
cruel
and
inhuman
attack
on
a
helpless unarmed
victim
is
considered
to
be
an
aggravating
factor"
af
583 E
[22]
It is trite that in imposing sentence, the personal circumstances of
an accused person, as well as the interests of the society,
should be
taken into consideration. In S v
Robie,
1975(4) SA 855(A)
at 861 D,
the court held that it is trite that sentences imposed
on convicted offenders have to be blended with an element of mercy.
In
cas
u
,
the appellant had on three
previous occasions, after conviction and serving parts of the
sentences for rape, been released on parole
with particular
conditions. In all three instances, appellant had to be re-admitted
into custody to serve the remainder of the
original sentences that
would have been initially imposed on him. He proved a dismal failure
in matters of compliance with the
law of the land as well as where it
regards reformation.
[23]
Taking into account the age of the appellant (he was 73 years old at
the time of imposition of sentence), and his previous
convictions for
rape and violation of parole conditions, I am not persuaded that
there is still room for his rehabilitation. In
fact, I view these
factors as being aggravating. This court will therefore be failing in
its duty by not removing the appellant
from the society for a long
time.
[24)
I am satisfied that there are no substantial and compelling
circumstances that warrant or justify a departure from the sentence
prescribed by law. Parliament has spoken, and in the circumstances I
am satisfied that the sentence imposed by the court a
quo
is appropriate.
ORDER
The
Appellant's appeal against the sentence is dismissed.
______________
MONTSHO
LM
ACTING
JUDGE OF THE GAUTENG PROVINCIAL DIVISION (PRETORIA)
I
agree
_______________________
MAUMELA
J
JUDGE
OF THE GAUTENG PROVINCIAL DIVISION (PRETORIA)
APPEARANCE:
For
the Appellant: Adv. M G
Molobedi, on instruction by Legal
…
................................
Aid
Board, Pretoria
For
the Respondent: Adv. J. Kotze, Office of the Director of Public
…
...............................
Prosecutions,
North Gauteng, Pretoria