About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 268
|
|
Masiteng and Another v S (A449/2015) [2016] ZAGPPHC 268 (4 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
APPEAL
CASE NO: A449/2015
DATE:4/5/16
Not
reportable
Not
of interest to other judges
Revised.
IN
THE MATTER BETWEEN
THABISO
MICHAEL
MASITENG First
Appellant
MLINDENI
JERRY
SITHEBE Second
Appellant
and
THE
STATE Respondent
JUDGMENT
LEGODI
J
[1]
This is an appeal against the convictions and sentences imposed upon
the two appellants by the Regional Court Magistrate sitting
in Nigel.
Both appellants were charged with robbery which carries minimum
sentence of 15 years and rape carrying a minimum sentence
of life
imprisonment in that the complainant was raped by more than one
person, interchangeably. Upon conviction, each was sentenced
to 15
years and life imprisonment for robbery and rape respectively.
[2]
The matter is before us on an appeal by the appellants having
automatic right of appeal due to life sentence imposed on them
by a
regional court. The identity of the appellants, in my view, was not
an issue during trial, although the state led evidence
on the
identification parade conducted by the police. The appellants did not
dispute that they were with the complainant on the
morning of the
commission of the offence.
[3]
They admitted that they had sexual intercourse with the complainant,
but that it was with her consent. They however denied the
narration
of the events by the state regarding the rape charge and that they
took by force from the complainant any of her belongings.
In a
nutshell, the evidence as whole was to the following effect:
[4]
It was in the morning of 8 June 2013 at about 05H30 when the
complainant met with the appellants on her way to work. It was
for
the first time she saw them. They walked with her for a while. At a
certain corner, before where she usually takes a taxi,
the two
appellants pushed her into a vegetable tent. Appellant 2 took out a
knife and placed it against her neck. Appellant 2 told
appellant 1 to
take out the firearm. She was instructed to hand over her cellular
phone and she did, but then pleaded with them
to give her the
sim-card, which they did.
[5]
She was then taken to the field. In the field, appellant 2 pulled her
down, undressed her and then raped her. He then moved
away and
thereafter the appellant 1 raped her and they then disappeared. She
stopped a vehicle which was passing-by. She made a
report to the
driver who tried to locate the assailants but in vain. The matter was
reported to the police. She was taken to the
clinic and vaginal swaps
were taken from her. During trial, the appellants admitted the
contents of an affidavit in terms of Section
212 of the Criminal
Procedure Act and in particular that their DNA samples were found in
the complainant's DNA swap extracted from
her.
[6]
As I said, the appellants alleged that they had sexual intercourse
with the complainant's consent. The evidence was rejected
by the
trial court, in my view, correctly so. The complainant was abducted
at about 05h30. The incident was reported at the police
station
before 06h00. It was suggested in cross-examination of the
complainant that the appellant 1 had sexual intercourse with
her
consent at about 07h00 when they were allegedly caught by the
appellant 2 who became very angry with them.
[7]
This version was inconsistent with the evidence adduced by the
appellant 1 during his evidence in court. The new version being
that
he had sexual intercourse with the complainant at about at 05h30.
Furthermore, the version by both appellants does not coincide
with
the version of the driver of the motor vehicle which was passing-by.
He met with the complainant that morning. She was running
and crying
and she made a report to him that she had been raped. He took her to
the police and arrived at the police station at
about 06h00.
[8]
The driver was an independent witness who had nothing to gain from
the case. His evidence was important in two respects: First,
the
appellants' version that the complainant with her consent had sexual
intercourse with appellant 1 at about 07h00 cannot be
correct as by
that time the witness had already met with the complainant. Secondly,
his observation of the complainant that she
was crying and running,
and that she made a report to him was consistent with a person who
had just been in trouble.
[9]
It appears that the appellants having been placed at the scene and
connected to the commission of the rape charge by their DNA
samples,
resorted to a defence of consent, which as I said, was contradicted
as indicated above. Remember, it was the complainant's
evidence that
she did not know any of the appellants before the date in question.
If she really wanted to falsely implicate any
of the appellants, it
would have been easier and better for her to say both of them were
known to her, than going through the process
of two identification
parades.
[10]
Insofar as it relates to the robbery charge, the complainant's
cell phone was found in possession of the appellant 1.
Apparently, it
was located to the appellant as it could be detected from the use
what's up device, that the phone was active. The
appellant 1 sought
to give an explanation for possession of the cell phone as follows:
The
complainant gave him the cell phone. She gave him the cell phone
because he wanted to resolve the problem which they had. He
continued
in evidence as follows:
"I was not going
to go to Dudusa anymore to go and see her in Dudusa.
So,
that is why she gave me her phone so that we
can talk through the phone solving the problems."
He
further continued as follows in his evidence:
"
The reason for
me to take her phone, is this, because she asked me if I have
a
phone. I told her that I do not have
a
phone that is when
she said that to me that she will borrow me her phone.
She then took out her
sim card, saying to me that she will communicate with me through
what's up"
[11]
This evidence seems to have been tailored to coincide with the
evidence of the complainant. But once the evidence of the appellants
was rejected with regard to the rape charge, the evidence as quoted
above ought to be rejected as well. Simply put, the complainant
did
not know the appellants and did not have a relationship with any of
them.
[12]
In other words, there would not have been a need to borrow her phone
to a stranger. Her evidence was clear: A knife was put
against her
neck. Appellant 1 was told by appellant 2 to take out the firearm.
Thereafter, her belongings, the cell phone and money
were demanded
and taken from her. That being so, constituted robbery with
aggravating circumstances and both appellants were, in
my view,
correctly convicted.
[13]
The appeal on both convictions must therefore fail. I now turn
to the sentences of 15 years and life imprisonment imposed
on the
appellants. The trial court had to decide whether there were
compelling and substantial circumstances justifying lesser
sentences
than the prescribed minimum sentences. The question at hand is
whether the trial court erred in finding that there were
no
compelling and substantial circumstances justifying lesser sentences.
[14]
Each case has to be decided on its merits. These were personal
circumstances of each appellant which were placed on record
in the
court a quo: Appellant 1 was 32 years old at the time he was
sentenced on 21 April 2015. In other words, at the time of
the
commission of the offences he was about 30 years old. He was not
married and had one child who at the time of sentencing, was
staying
with its mother.
[15]
As regards appellant 2, it was also placed on record that he was 31
years old and thus about 29 years old at the time of the
commission
of the offences. He had two children when he was sentenced on 21
April 2015 and the children were staying with his sister
before his
arrest.
[16]
Both appellants had previous convictions. Appellant 1 was previously
convicted and sentenced as follows: On 12 February 2004
he was
convicted on a charge of house breaking with intent to steal and
theft and was sentenced to 4 years in terms of section
276
(1) of Act 51 of 1977. The conviction was 9 years old at the time the
present offences were convicted on 8 June 2013. Appellant
2 had the
following previous convictions proved against him: On 25 July 2001 he
was convicted of housebreaking and unlawful possession
of firearm
both committed on 10 June 2000. On the housebreaking charge he was
sentenced to 6 years imprisonment and 3 years imprisonment
on the
unlawful possession of a firearm and ammunitions which was ordered to
run concurrently with the 6 years imprisonment. On
20 June 2008 he
was convicted on 2 counts of housebreakings and theft committed on 1
march 2008. He was sentenced to 8 years imprisonment
half of which
was suspended on certain conditions.
[17]
On 21 February 2011 he was released on parole under supervision until
19 June 2012. The present offences were committed just
a year after
the expiry of the parole conditions. That in view displayed the
character of the person the trial court had to deal
with,
particularly with regards to the robbery charge. The personal
circumstances of both the appellants as set out above, in my
view, as
correctly found by the trial, did not cumulatively considered
constitute compelling and substantial circumstances. However,
counsel
for the appellants sought to put the blame at the door of the trial
court. The trial court committed an irregularity by
not being
proactive during sentencing and by not calling for probation's
officer report, so the contention went around. Whilst
it is correct
that during sentencing, the court must not remain passive, more so
where the severest sentence is likely to be imposed,
for example,
life imprisonment, in the present case, I do not think that the
probation officer's report would have made any difference.
[18]
The circumstances under which the offences were committed are in my
view, aggravating. Women, as often is the case, are victims
of crimes
of this nature. The complainant in the present case was a woman who
had to wake up in the early hours to go to work.
Despite overwhelming
evidence, the appellants were steadfast about their denial of the
commission of the offences. That early morning
at 5h30, the
appellants were on the street already. They approached the
complainant, and pretended like they were concerned about
her safety
when they told her that it was not safe to walk alone around the
corner. It was however, the appellants who threatened
her
safety.
[19]
They dragged her into a tent, threatened her with a knife and firearm
although she did not see the firearm which appellant
2 told the
appellant 1 to take out. They then took her belongings. They took her
out of the tent and dragged her to the field where
they raped her and
run away. Their denial of the commission of these offences throughout
was clearly a sign of lack of remorse
on their part.
[20]
Consequently, the appeal against both convictions and sentences is
hereby dismissed.
________________________
MF
LEGODI
JUDGE
OF THE HIGH COURT
________________________
D
THULARE
ACTING
JUDGE OF THE HIGH COURT
FOR
THE APPELLANT: Adv.
H STEYNBERG
INSTRUCTED
BY Legal
Aid South Africa
FOR
THE RESPONDENT:
Adv NETHONANDA
INSTRUCTED
BY: Director
of Public Prosecutions
Church Square 28
PRETORIA
Matter
heard on:
25 APRIL 2016
Judgment
handed down on:
4
May 2016