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[2016] ZAGPPHC 334
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Mabuza v S (A384 / 2015) [2016] ZAGPPHC 334 (17 March 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A384 / 2015
DATE:
17 MARCH 2016
In
the matter between:
VUSIJOSEPH
MABUZA
And
THE
STATE
JUDGMENT
SIKHWARI,
AJ
[1]
This matter came by way of appeal from
the regional court of Mpumalanga division held at Tonga, the court
a
quo.
Leave to appeal was granted by the
court
a quo
against sentence only.
[2]
The appellant was charged with rape in
that he was accused of being guilty of contravening the provisions of
Section 3 read with
Sections 1, 56(1), 57, 58, 59, 60 and 61 of the
Criminal Law Amendment Act (Sexual Offences and Related Matters Act)
32 of 2007
- RAPE (read with the provisions of Section 51 and / or 52
and Schedule 2 of the Criminal Amendment Act 105 of 1997, as amended)
in that on or about the 20
th
day of May 2011 and at or near Block A Trust area in the regional
division of Mpumalanga the accused did unlawfully and intentionally
commit an act of sexual penetration with
the complainant to
wit, [N…….] [K…….] [S……]
of 25 years of age by penetrating her vagina and anus without the
consent of the said complainant.
[3]
Briefly, the circumstances of the rape
are that the appellant went to the homes
tead of his friend,
[M…..]. On arrival he found that [M…..]
was not present. Instead, he found
the complainant sleeping in
[M…..]
's house. The complainant was
ordered by the by the appellant under the threat of a knife to dress
for them to go and look for [M…..]
.
They took a strange route where there were no people. The route was
scary. At a certain stage she tried to break loose from the
appellant
and ran away but he chased after her and caught up with her. It was
in the bushes.
[4]
The complainant screamed but could not
be rescued. The appellant then caused her to lay down, pulled up her
skirt, cut her panty
with the knife he was having and penetrated her
by putting his penis into her vagina. This was the first rape. A
second rape followed
but not much details of this second rape were
stated in the evidence.
[5]
The t
hird rape took place at
[E…….]
. This session included
anal penetration while the complainant was on her knees. It is during
this third session that appellant
assaulted the complainant several
times with open hands and also threatened her with a knife. The
fourth rape took place at the
homestead of the complainant. The
appellant ordered the complainant to go with him to his homestead. He
proposed love to her. At
this homestead he forced her to eat food or
she will die. After eating food, she was ordered to join the
complainant in his bed.
That's when the fourth rape took place. This
ordeal lasted from about 11 pm to 4 am. At 6 o'clock in the morning
the appellant
accompanied the complainant but left her halfway. He
threatened her with death if she should lay charges.
[6]
The appellant was found guilty by the
court
a quo
and was sentenced to life imprisonment. The appellant is now
appealing the said sentence of life imprisonment.
[7]
In sentencing the appellant to life
imprisonment, the court
a
quo
found that there was no substantial
and compelling circumstance to persuade it to deviate from the
prescribed minimum sentences
in terms of the relevant provisions of
Section 51
of the
Criminal Law Amendment Act 105 of 1997
, as amended.
In his address in mitigation appellant's legal representative told
the court
a quo
that
"...the defence is
well aware of the Minimum Sentence Act, at this stage I will have no
address
with
regard to the said Act. And may the Court impose a suitable
sentence...".
Effectively, he
missed the opportunity to address the court
a
quo
on the substantial and compelling
circumstances justifying a less severe sentence than the one
prescribed.
[8]
The presence of substantial and
compelling circumstances is not dependant on counsel's submission
that they are there or not. The
court has a duty to analyse the
submitted circumstances of the appellant, circumstances of the case,
surrounding circumstances
as well as aggravating factors; and then
make a finding if indeed there are no substantial and compelling
circumstances.
[9]
Du Toit
et
aI
in their work entitled 'Commentary on
the Criminal Procedure Act, at page 28-18D-17
(service
52 of 2014)
have stated that:
"in
5 u' /V 2000 (1) 209 (W) it was held that In determining
whether
‘substantial
and compelling
circumstances' justifying a less than the prescribed sentence under
Section 51 of Act 105 of 1997 existed, the court
is to consider all
facts relevant to sentence, both aggravating and mitigating, and in
the light thereof to decide whether the
prescribed minimum sentence
is grossly disproportionate to the crime committed. If such a finding
is made, 'substantial and compelling
circumstances' existed entitling
the court to impose a lesser than the prescribed sentence. The court
was however to bear in mind
that the reason for the prescribed
minimum sentence Is deterrence and it can therefore not simply have
regard to previous sentences
in comparable cases..."
[10]
In S v Jansen
1999 (2) SACR 368
(C) Davis J held that "in
considering the imposition of minimum sentence
in terms of Sections 51, 52 and 53 of Act 105 of 1997, the court is
to consider all
available mitigating factors to determine whether
they are of substantial weight, thus enabling the court to exercise
its discretion
to provide for a reduced sentence".
[11]
In
S
V Van Wyk
2000 (1) SACR 45
(C) it was
decided that the phrase 'substantial and compelling circumstances'
included all factors which were previously referred
to as mitigating
circumstances which may indicate diminished moral blameworthiness on
the part of the offender.
[12]
The court
a
quo
was informed that the appellant was
22 years of age, a first offender, a sole breadwinner of his family,
employed as a fruit picker
with a monthly salary of R1000, he has no
pending cases against him, he is a single father of one child, he
could still be rehabilitated,
complainant did not sustain serious
physical injuries, and the state did not prove severe emotional pain
on the part of the complainant.
The State did not submit any evidence
or submission in aggravation. Though the State did not submit any
aggravating evidence or
facts to the court
a
quo,
the fact that the appellant has
raped the girlfriend of his own friend is aggravating.
[13]
These factors, when taken together, in
my view do constitute 'substantial and compelling circumstances'.
Life imprisonment is the
harshest punishment which our courts can
impose on an offender. This court aligns itself with the decision in
S v Malgas
2001 (1) SACR 469
(SCA) at pages 481J-482A, where
the SCA stated that
"the
specified sentences are not to be departed from lightly and for
flimsy reason. Speculative hypotheses
favourable
to the offender, undue
sympathy, aversion to imprisoning first offenders, personal doubts
are to the efficacy of the policy underlying
the legislation, and
marginal differences in personal circumstances or degrees of
participation between co-offenders are to be
excluded".
In
the Malgas matter the SCA set aside the sentence of life imprisonment
and replaced it with 25 years’ imprisonment.
[14]
The court
a
quo<M
not consider the circumstances
of the appellant which were presented in mitigation. This was a
misdirection on the part of the
court
a
quo.
The submitted circumstances are
neither flimsy nor light. They are genuine and uncontested by the
respondent. Therefore, the court
a
quo
should have properly considered the
said circumstances, together with aggravating circumstances, in order
to determine whether
or not they carry substantial and compelling
weight. This exercise was not done by the court
a
quo.
[15]
The courts are determined to impose long
terms of imprisonment to offenders in more serious cases like rape,
murder and robbery
with aggravating circumstances. The Supreme Court
of Appeal has expressed the correct approach towards rape cases in
S
v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) at page
344J-345B when it held that
"rape is a very serious
offence, constituting as it does a humiliating, degrading and brutal
invasion of the privacy, dignity
and the person of the victim. The
rights to dignity, to privacy and the integrity of every person are
basic to the ethos of the
Constitution and to any defensible
civilisation. Women in this country are entitled to the protection of
these rights. They 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, the apprehension and the insecurity which constantly
diminishes
the quality and enjoyment of their lives"
[16]
The SCA went further to sum it up at page 345D of the
Chapman decision that
"the courts are
under a duty to send a clear message to the accused, to other
potential rapists and to the community: We are
determined to protect
the quality, dignity and freedom of all women, and we shall show no
mercy to those who seek to invade those
rights".
The SCA
then confirmed an effective sentence of fourteen years of direct
imprisonment for three counts of rape.
[17]
The above approach was further emphasised in DPP, North
Gauteng v ThabethelQll
(2)
SACR 567
(SCA) at page 577G-I
"... rape of women and
young children has become cancerous in our society. It is a crime
which threatens the very foundation
of our nascent democracy, which
is founded on protection and promotion of the values of human
dignity, equality and advancements
of human rights and freedoms. It
is such a serious crime that it evokes strong feelings of revulsion
and outrage amongst all right-thinking
and self- respecting members
of society. Our courts have an obligation to
impose
sentences in such crime- particularly where it involves young,
innocent,
defenseless
and vulnerable
girls—of the kind which reflects the natural outrage and
revulsion felt by the law-abiding members of the
society. A failure
to do so would regrettably have the effect of eroding the public
confidence in the criminal justice system".
The SCA
imposed a sentence of ten years imprisonment in Thabethe case.
[18]
In 5 / VHakazi
2009 (1) SACR 552
(SCA) at page 574D the
SCA Stated that
"in cases of serious crime
the personal circumstances of the offender, by themselves, will
necessarily recede into the background.
Once it becomes clear that
the crime deserves of a substantial period of imprisonment the
question whether the accused is married
or single, whether he has two
children or three, whether or not he is in employment, are in
themselves largely immaterial to what
that period should be, and
those seem to me to be the kind of 'flimsy' grounds that MaigasssiwS
should be avoided. But they are
nonetheless relevant in another
respect The material consideration is whether the accused can be
expected to offend again. While
that can never be confidently
predicted his or her circumstances might assist in making at least
some assessment".
In Vilakazi the SCA set aside the
sentence of life imprisonment for rape of a victim who was under the
age of sixteen years and
replaced it with fifteen years of direct
imprisonment.
[19]
Both
Ma/gas
and
Vilakazi
decisions do not take away the discretion of the trial court on
sentencing and its duty to determine if there are substantial and
compelling circumstances by way of applying the correct test. Courts
should guard against sacrificing an accused person at the
expediency
of deterrence. These decisions inform the court imposing sentence
that it must do so having it in tis mind that the
legislature has
legislated certain minimum sentences.
[20]
In 5
1
'
Nkomo
2007 (2) SACR 198
(SCA) the appellant's age of 29 years, employment,
and positive chances of rehabilitation were accepted by the SCA as
constituting
substantial and compelling circumstances.
This
should be taken into account with the fact in mind that life
imprisonment is the gravest form of sentence that can be imposed.
Therefore,
Malgas
and
VHakazi
should be understood within the context that each case will be
determined on its own merits.
[21]
This court is persuaded that there are
'substantial and compelling circumstances' in favour of the appellant
which justify a less
severe sentence than the one prescribed in terms
of Act 105 of 1997. However, due to the fact that appellant raped the
complainant
repeatedly, a lengthy term of imprisonment is justified.
[22]
In the premises, the following order is
made:
1.
That the appellant's appeal against
sentence is upheld.
2.
That the sentence of the court
a
quo
of life imprisonment is set aside
and replaced with the following:
2.1.
The appellant, Vusi Joseph Mabuza, is
sentenced to fifteen (15) years imprisonment.
2.2.
That the sentence so imposed of 15 years
is antedated to the 24
th
day of November 2011 being the date upon which the sentence of life
imprisonment was imposed.
DATAED
IN PRETORIA ON THIS THE DAY OF MARCH 2016
SIKHWARI,
AJ
ACTING JUDGE OF THE HIGH COURT, PRETORIA
I
agree
TOLMAY,
3
JUDGE
OF THE HIGH COURT, PRETORIA