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[2016] ZAGPPHC 716
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Sibiya v S (A451/2015) [2016] ZAGPPHC 716 (1 April 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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OFFICE
OF THE CHIEF JUSTICE
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION: PRETORIA
CASE
NO: A451/2015
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
1/4/2016
In
the matter between:
FANA
MARTIN
SIBIYA APPELLANT
And
THE
STATE RESPONDENT
JUDGMENT
MSIBI
AJ
[1]
The appellant was charged in the Regional Court, Nigel Mpumalanga
with Rape, Kidnapping and Assault with the intent to inflict
Grievous
Bodily Harm on S. H. a 24 year old woman.
[2]
the provisions of
section 51
of the
Criminal Law Amendment Act 105 of
1997
applied on the count of Rape.
[3]
On 19 March 2015 the appellant was convicted on all 3 charges. The
Regional Magistrate, proceeded to consider whether or not
substantial
and compelling circumstances as contemplated in
section 51(3)(a)
existed. The trial court found that there were no substantial and
compelling circumstances warranting deviation from the minimum
prescribed sentence.
[4]
On the first count he was sentenced to ten years imprisonment. On the
second count to 3 years imprisonment. On the third count
to 1 year
imprisonment. The trial court ordered that sentences should not run
concurrently. Thus the effective sentence was 14
years imprisonment.
Applicant was granted for leave to appeal on sentence only.
[5]
Counsel for the appellant submitted
Firstly-
that the trial court misdirected itself in finding that there were no
substantial and compelling circumstance to justify
the imposition of
a lesser sentence than 10 years on the charge of rape.
Secondly-
that the trial court misdirected itself in failing to consider the
cumulative effect of the sentences imposed.
[6]
The evidence disclosed that the complainant S. H. and her boyfriend
G. N. M. were in bed early in the morning hours of 12 May
2013. S.
went out of her home at approximately 6:45 to go to the veld to
relieve herself as usual. At the veldt she was approached
by the
appellant, who requested her to accompany him. When she refused the
appellant started to pull her. When she resisted he
hit her with
fists on her mouth, he pulled her to a more secluded part of the veld
while threatening to kill her. After giving
her instructions to
undress. She did and also lay down as requested.
[7]
He put his knee on her chest and told her that he would kill her and
throw her body into the nearby tarred road thereafter.
He raped her
without a condom. When she screamed he strangled her, causing
injuries that were observed and recorded by the doctor
on Exhibit A;
the J88. After he had finished raping her he got up and she also got
up and ran to her home.
[8]
Mr M. had already woken up upon her return to the house. He noticed
that she was bleeding from her mouth and she was crying.
She reported
that the appellant, who was well known to her, had raped her.
[9]
Constable Masy Meme Mkonjane testified that she was the investigating
officer in the case. It took her long to arrest the accused
since he
could not be traced.
[10]
The appellant, Martin Fana Sibiya testified that the complainant was
his girlfriend. He had a prior arrangement to meet with
the
complainant. On that date they met and had consensual sex and they
argued, appellant then assaulted her.
[11]
It is on record that the complainant and the appellant lived in the
same neighborhood.
[12]
The appellant was 33 years old while complainant was 24 years old at
the time of the commission of the offence. There is an
age gap of 9
years between the victim and the perpetrator.
[13]
The J88 was admitted as Exhibit A which reflected injuries to her
mouth, her neck and genitals. The DNA results were admitted
as
Exhibit B.
[14]
The court will now deal with sentence on count (1).
In
S V RABIE
1975 (4) ALL SA 723
A
the court summarized the legal
position as follows:
"In every criminal appeal against
sentence, whether by
a
magistrate or
a
judge, the court
hearing the appeal.
(a)
Should be guided by the provision that the punishment is pre
eminently
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 or properly exercised."
The
test under para. (b) is whether sentence is vitiated by irregularity
or misdirection or is disturbingly inappropriate.
[15]
Counsel for the appellant referred this court to
S V NKOMO
2007
(2)
SACR 198
(SCA)
wherein the court held that although it
was difficult to imagine a rape under much worse conditions, it was
still able to impose
a lesser sentence as opposed to the one
prescribed by the legislature after finding that substantial and
compelling circumstances
existed.
[16]
In the present matter, the trial court, after having considered all
relevant factors on sentence, the crime and the personal
circumstance
of the appellant, made a finding that substantial and compelling
circumstance did not exist.
[17]
In the NKOMO case mentioned above the court of appeal imposed a
lessor sentence, deviating from the prescribed minimum sentence
after
finding that substantial and compelling circumstances existed that
called for deviation from imposing a minimum sentence.
[18]
In respect of the present matter on count 1 counsel for the appellant
is further submitting to this court to consider the cumulative
effect
of the following factors in order to establish the existence of
substantial and compelling circumstances.
(1) that appellant
is a first offender.
(2) that appellant
has been in custody while attending trail.
(3) that this is
not worst rape scenario
(4) that the extend
of the trauma suffered by the complainant was unknown
(5) that no
evidence was led to the effect that appellant cannot be
rehabilitated.
[19]
The general approach on imposing sentence in terms of Act 105 of 1997
was considered in
S V MALGAS
2001
(3)
ALL SA 220
(A) para
25[8].
It was held amongst others that
"courts
are
required to approach imposition of sentence conscious that the
legislature has ordained life imprisonment or the particular
prescribed period of imprisonment
as
the sentence that
should ordinarily and in the absence of weighty justification be
imposed for the listed crimes in the specified
circumstances."
[20]
At
Paragraph [25) D Marais JA
further states that:
"The
specified sentences are not to be departed from lightly, for flimsy
reasons, speculative hypothesis favourable to the
offender, undue
sympathy, aversion to imprisonment of first offenders, personal
doubts as is efficacy of the policy underlying
the legislation
and marginal differences in personal circumstances or degrees of
participation between co-offenders are to be excluded."
[21]
At
Paragraph G Marais JA
further states that:
"The
ultimate impact of all the circumstances relevant to sentencing must
be measured against the composite yard stick.
They must be such
as
cumulatively justify
a
departure from the
standardized response that the legislature has ordained."
[22]
Functions of the courts of appeal.
On
Sentence:
In
S
V PILLAY
1977 (4) SA 531
(A) para 535 F-G
the court set out
the correct approach in an appeal against sentence as follows:
"The
essential inquiry in all appeal against sentence is not whether
sentence was right or
as
wrong but whether the court in
imposing sentence executed its discretion properly or judicially,
a
mere misdirection is not by itself sufficient to entitle the
Appeal Court to interfere with sentence. It must be of such
a
nature, degree of seriousness that it shows directly or
inferentially that the court did not exercise its discretion at all
or
exercised it improperly or
unreasonably."
The same cannot be said about the sentence of
the trial magistrate, in the case before us.
[23]
This court cannot say that the trial magistrate did not exercise his
discretion at all or exercised it improperly or unreasonably
on
sentence. The trial court correctly found that there were no
substanstial and compelling circumstances that warranted a deviation
from the prescribed minimum sentence on count 1.
[24]
Cumulative effect of all 3 sentences
.
Counsel
for appellant submitted what the charges were from one incident, the
actions were closely related to each other. Counsel
for the
respondent submitted these are different charges; especially count 1
is regulated under Act 105 of 1997. The trial court
is the court that
had the privilege to listen to, and see all witnesses as they
testified. The court exercised its discretion on
conviction and
sentence based on its first hand observations.
[25]
In
STATE VERSUS CHAPMAN 1997(3) SA 341 SCA at p.345 D ,
the
court remarked as follows "
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
equality
,
dignity and freedom of all women
,
and we
shall show no mercy to these who seek to invade those rights."
In casu
appellant invaded the complainants' body, humiliated her
and striped her of her dignity.
[26]
Having regard to the above mentioned, this court is not persuaded
that the
court
a
quo
misdirected itself in imposing the
sentence of 10 years imprisonment on counts 1 and the subsequent
order that sentences should
not run concurrently.
[27]
Accordingly the following order is made.
The
appeal on sentence is dismissed.
________________________
MSIBI
S M
ACTING
JUDGE OF THE HIGH COURT OF
SOUTH
AFRICA GAUTENG DIVISION PRETORIA
I
agree
________________________
VORSTER
L I
ACTING
JUDGE OF THE HIGH COURT OF
SOUTH
AFRICA GAUTENG DIVISION PRETORIA
HEARD
ON: 08 MARCH 2016
DELIVERED
ON:
COUNSEL
FOR APPELLANT: ADV L A VAN WYK
ATTORNEYS
FOR APPELLANT: PRETORIA JUSTICE CENTRE
COUNSEL
FOR RESPONDENT: ADV M VAN VUUREN
ATTORNEYS
FOR RESPONDENT: STATE ATTORNEY