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[2016] ZAGPPHC 239
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Ngwekazi v S (A874/2014) [2016] ZAGPPHC 239 (26 February 2016)
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Certain
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG DIVISION,
PRETORIA
CASE NO: A874/2014
DATE: 26 FEBRUARY 2016
In the matter between:
VUSI JOHANNES
NGWEKAZI
.............................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
TEFFO.
J
:
[1]
This is an appeal against sentence only. The
appellant was arraigned in the regional court, Springs, where he
faced a charge of
attempted rape in contravention of section 55 of
the Criminal Law Amendment Act 32 of 2007.
He pleaded not guilty but was
ultimately convicted and sentenced to 8 (eight) years imprisonment.
He was also declared unfit to
possess a firearm.
[2]
He appeals against the sentence with leave of this
court having been granted on petition.
[3]
The facts of this matter are briefly as follows:
On the morning of 1 April 2013 at
approximately 05:30, Ms [G…….] [D……], the
complainant in this matter,
was accosted by the appellant on her way
to work, who placed a knife on her neck and demanded to have sexual
intercourse with her.
She “pleaded “with him” not
to proceed but he Insisted and she eventually on his orders, took off
her skirt and
panties. He pushed her towards the end of the passage
and ordered her to lie down on her back. He then lowered his pants
until
his penis was visible. He could not get an erection. As a
result he shouted at her. She cooperated and informed him that she
would
assist him to get an erection if he lay down. As he lay down,
he moved the knife into his left hand. This enabled Ms [D…..]
to grab the knife from him. She then stabbed him above his eye.
Subsequent thereto they wrestled over the knife and she again managed
to stab him at the back on his waist. The handle of the knife broke
and she was only left with the blade. The appellant tried to
stab
her. She screamed and he pushed her against the wall, she continued
to scream and cried out for help. A man and a lady appeared
in the
passage. The appellant fled as they were approaching them and Ms
[D…….] also ran after him. She was half naked
at that
stage. The couple that was approaching them in the passage after
hearing the screams followed suit and managed to apprehend
the
appellant while Ms [D……] sat down when she reached the
street and was given her skirt found at the scene which
she wore and
covered herself. That, briefly, was the evidence on which the
appellant was convicted.
[4]
The following personal circumstances of the
appellant were placed on record in mitigation of sentence:
That he was 42 years old at the time
of the commission of the offence, he is married with three children
aged 13, 9 and 6 years.
He was employed as a security guard
and earned a salary of R3 500,00 per month. He was stabbed twice
during the incident, once on
the head and once on the waist. He was
under the influence of alcohol. He holds a firearm licence and used a
firearm at his work
as a security guard. He was a first offender.
[5]
It was argued on behalf of the appellant that the
trial court did not adequately consider the factors in mitigation of
sentence
which related to the personal circumstances of the
appellant, the submission that the appellant is a candidate for
rehabilitation,
that he is a first offender and that the offence was
not planned. It was also pointed out that the trial court
overemphasized the
seriousness of the offence, the interest of
society and the prevalence of the offence. A further submission was
made that the sentence
imposed is out of proportion with the totality
of the mitigating factors, it is grossly excessive and that the
magistrate did not
exercise his discretion properly. It was also
submitted that the declaration of the appellant’s unfitness to
possess a firearm
is punishment on its own because the appellant was
employed as a security officer at the time of the commission of the
offence.
Accordingly, declaring him unfit to possess a firearm would
disable him from getting the same employment in the future.
[6]
The state made the following submissions in
aggravation of sentence: The appellant acted out of character the way
he reacted. He
committed a violent crime. He used a weapon to attack
the complainant. The complainant bought for h
e
r
l
ife.
Her integrity was attacked. She had to run to the street half naked,
sat there crying in pain, shame and humiliation and people
around her
told her to dress to cover herself. As a security guard the appellant
was supposed to guard people against criminals
and protect them but
he took a weapon, went out and attacked the complainant. The
complainant had shortly before the attack, buried
her father. She is
a breadwinner at her homestead. She wanted to protect and save her
job by defending herself from the appellant
as she did not want her
mother to mourn for another member of her family. It was argued that
the appellant could not be trusted
with a dangerous weapon like a
firearm in the community.
[7]
The basic approach in every appeal against sentence
was set out in S
v
Rabie
1975 (4) SA 455
(A) at 857D-F to be the
following: the court hearing the appeal
“(a)
should be guided by the principle that punishment is ‘preeminently
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’."
The test under (b) is whether the
sentence is vitiated by any irregularity or misdirection or is
disturbingly inappropriate (see
also S
v
Giannoulis
1975 (4) SA 869
(A), S
v
Barnard
2004 (1) SACR 191
(SCA) at 194C-D, S y
Mayisela
2013 (2) SACR 129
GNP at [13].
[8]
In S
v
Ncheche
[2005] ZAGPHC 21
;
2005 (2) SACR 386
(W) the Full Court also held
that sentencing fell primarily within the discretion of the trial
court and that an appeal court may
only interfere where the trial
court has not properly and reasonably exercised its discretion when
imposing sentence. It further
held that where that sentencing
discretion was properly and reasonably exercised, the appeal court
had no power to interfere. Within
this context, the Full Court
pointed out that a trial court in imposing sentence is not bound by
sentences imposed by other courts,
including higher courts, as long
as it exercises its sentencing discretion reasonably. See S
v
Holder
1979 (2) SA 70
(A) at 80D and
R
v Karg
1961 (1) SA 231
(A) at 236H where the following
was stated:
‘'Fourthly
and finally; it was contended for the appellant that SNYMAN, AJ.,
paid no, or no sufficient regard to the trend
of judicial decisions
quoted to him. It may be accepted that sometimes a succession of
punishments imposed for a particular type
of crime provides a useful
guidance to a court dealing with such a crime. But each case should
be dealt with upon its own facts,
connected with the crime and the
criminal, and no countenance should be given to any suggestion that a
rule may be built up out
of a series of sentences which it would be
irregular for a court to depart from ”
[9]
The court in S
v
Malgas
2001 (1) SACR 469
(SCA) at 478E-H said the
appeal court can only interfere with the sentence imposed by the
trial court where it is vitiated by a
material misdirection or where
the disparity between the sentence of the trial court and the
sentence that the appellate court
would have imposed had it been the
trial court, is so marked that it can be described as
'shocking',
'startling
or
‘
disturbingly
inappropriate
’ (see also
Madiba
v S
[2015] JOL 33686
(SCA).
[10]
I now turn to the present appeal. The complainant
in this matter was 24 years old at the time of the commission of the
offence.
According to the J88 the complainant was examined at the Far
East Rand Hospital on the same day of the incident. She sustained a
laceration to her left index finger, as well as her right ring
finger. She also had abrasions on her right big toe and her left
knee. She was stitched for the injuries on her hand. She did not know
the appellant. The appellant was walking in front of her
prior to the
incident around 05:30 while she was on her way to work. At some stage
he disappeared and she thought he had taken
another direction.
Suddenly he came out of a passage, ran across the street to her where
she was walking and placed a knife on
her neck. He was a first
offender and a security guard. He pushed the complainant to a passage
where he attempted to rape her.
I agree with the state’s
submission that given the nature of his job, the appellant was not
supposed to do what he did as
members of the community like the
complainant looked upon him for protection against criminals. It is
common cause that he was
drunk and acted out of his usual character.
He also sustained injuries which were inflicted on him by the
complainant when she
tried to defend herself. The complainant was
indeed violated and degraded by being forced to strip and watch the
appellant in a
semi-naked state stimulating himself. She had to run
to the street with her private parts exposed.
[11]
The state submitted that there was no misdirection
on the part of the court a
quo
when it imposed the sentence of 8 years and that there can be no
prospects of rehabilitation as the appellant denied his involvement
in the commission of the offence.
[12]
I do not agree with this submission taking into
account that the appellant was 42 years old at the time of the
commission of the
offence with no previous convictions. He was drunk.
The state’s evidence was that the appellant’s behaviour
on that
day was strange. One of the state witnesses adduced evidence
that he knew him to be a good person All this evidence cannot be
ignored.
[13]
It is common cause between the parties that alcohol
played a role in the commission of the offence. The appellant has
been declared
unfit to possess a firearm. His chances of being
employed as a security guard in the future are very slim. After
considering the
totality of the evidence, the circumstances of the
offence, its nature and the seriousness thereof, the interests of
society, the
personal circumstances of the appellant and the impact
of the offence on the victim, the principles of sentencing and the
decisions
referred to above, I am of the view that the appropriate
sentence that should have been imposed under the circumstances is a
sentence
of 4 years imprisonment. I am persuaded that the sentence
imposed by the trial court is disturbingly disproportionate with the
offence committed. There is, in any event, a striking disparity
between the sentence imposed by the trial court and that which this
court would have imposed had it sat as a trial court. It therefore
falls to be set aside.
[14]
As regards the declaration of the appellant’s
unfitness to possess a
f
i
r
ea
rm
I
a
m
not inclined
to
accept
the appellant’s counsel’s submission
that such declaration is punishment. The appellant had been convicted
of a sexual
offence. He used violence in the commission of the
offence. He should have known better taking into account the nature
of his job
at the time, that should he engage himself in acts of
violence and be found guilty thereof, there would be consequences. I
cannot
therefore fault the magistrate for arriving at this decision.
[15]
I therefore make the following order:
15.1
The appeal against sentence is upheld and the
sentence of the court
a
quo
is set aside and replaced with the following
sentence:
“The
accused is sentenced to 4 years imprisonment.
15.2
In terms of
section 282
of the
Criminal Procedure
Act 51 of 1977
the substituted sentence is antedated to 27 May 2014,
being the date on which the appellant was sentenced.
15.3
The order of the court a
quo
declaring the appellant unfit to possess a firearm is hereby
confirmed.
M J TEFFO
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION,
PRETORIA
I agree:
T M MAKGOKA
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
FOR THE APPELLANT L W RANKAPOLE
INSTRUCTED BY PRETORIA JUSTICE
CENTRE
FOR THE RESPONDENT M MASHEGO
INSTRUCTED BY THE DIRECTOR OF
PUBLIC
PROSECUTIONS
DATE OF JUDGMENT 26 FEBRUARY 2016