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[2016] ZAGPPHC 375
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Langa v S (A515/2015) [2016] ZAGPPHC 375 (13 May 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case
number: A515/2015
Date:
26/05/2016
In
the matter between:
JAMES
LANGA
APPELLANT
And
THE
STATE RESPONDENT
JUDGMENT
PRETORIUS
J,
(1)
This
is an appeal against sentence only. On 8 May 2008 Eksteen AJ
sentenced the appellant as follows:
Count 1: Robbery with
aggravating circumstances – 15 years’ imprisonment
Count 2:
Kidnapping – 5 years’ imprisonment
Count 4:
Rape – Life imprisonment
Count 5:
Rape – Life imprisonment
Count 6:
Rape – Life imprisonment
Count 7:
Indecent assault – 2 years’ imprisonment
Count 8:
Possession of an unlicensed firearm – 2 years’
imprisonment
Count 10:
Attempted robbery – 5 years’ imprisonment
Count 11:
Attempted robbery – 5 years’ imprisonment
(2)
On
5 November 2013 leave to appeal against the sentence of life
imprisonment imposed on counts 4 and 5 (the rapes of B. A. K.) was
granted by Ledwaba DJP.
(3)
The
facts of the matter are that on 31 March 2004 at 4h00 Mr K.,
accompanied by his wife and his niece, was driving in his bakkie
on
the highway near the Grassmere tollgate. He was forced off the
road by a red Camry, in which there were several passengers,
including the appellant. One of the assailants took over the
steering wheel from Mr K. and the bakkie followed the Camry,
to where
both vehicles stopped. Mr and Mrs K., as well as their young
niece, aged 14 years, were forced out of the bakkie
and ordered to
get into the boot of the Camry. Mr K. could not do so and he
was ordered to run, which he did, whilst being
shot at. He fell
down an embankment and got away. The Camry drove off with Mrs
K. and her young niece in the boot of
the car. At a later stage
the Camry stopped and Mrs K. and her young niece were taken from the
Camry’s boot.
(4)
Mrs
K. was undressed by two assailants at the same time. The person
raping her kept on hitting her on her head. She
was dragged to
the front of the car and raped once more. She begged them not
to rape her young niece and as a result they
slapped her and the
appellant raped her niece, whilst instructing her to keep quiet.
This in response to her request not
to rape her niece.
(5)
Afterwards
they were told to run away, wearing only T-shirts and were
subsequently found by the police and Mr K.. Both victims
had to
use anti-retroviral drugs for a period of 6 months.
(6)
The
appellant was convicted of two counts of rape on Mrs K., as being an
accomplice, although he had not raped Mrs K., but was watching
whilst
she was raped and thus associated himself with the rapes.
(7)
The
court
a
quo
dealt with the sentence of the appellant as follows
[1]
:
“…
Although
you were convicted of accomplicity in respect of Counts 4 and 5, this
Court is of the opinion that the legislator has intended
to cover
even accomplicity. This specific provision was enacted as a
result of the number of rape cases where gangs were
operating.
Where a rape was initiated as a result of a conspiracy or common
purpose. Whether the same person raped
three times or whether
anybody else three times, it is meant to include any form of rape by
a co-perpetrator or an accomplice.
And the Court is therefore
of the opinion that the provisions of the so-called Minimum Sentences
Act is applicable…as well
as the three rape charges.”
(8)
Counsel
for the appellant argued that the indictment only referred to the
provisions of section 51 of the
Criminal
Law Amendment Act
[2]
and did not specify whether the State relied on section 51(1), where
life imprisonment is the minimum sentence, or section 51(2),
where
the minimum sentence is 10 years’ imprisonment. Section
51(1) of the Act provides:
“
(1)
Notwithstanding any other law, but subject to subsections (3) and
(6), a regional court or a High Court shall sentence a person
it has
convicted of an offence referred to in Part I of Schedule 2 to
imprisonment for life.”
And Part 1 of Schedule 2 provides:
“
Rape as
contemplated in section 3 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007-
(a)
when committed-
(i)
in circumstances where the victim was raped more than once whether by
the accused or by any co-perpetrator or accomplice;
(ii)
by more than one person, where such persons acted in the execution or
furtherance of a common purpose or conspiracy;”
(9)
In
S
v Cock; S v Manuel
[3]
the Full Bench found that the court is bound by the decision by
Mahlase
v State
[4]
where the Supreme Court of Appeal held:
“
The
second misdirection pertained to the sentence imposed for the rape
conviction. The court correctly bemoaned the fact that Ms
D M was
apparently raped more than once and in front of her colleagues. The
learned judge however overlooked the fact that because
accused 2 and
6, who were implicated by Mr Mahlangu, were not before the trial
court and had not yet been convicted of the rape,
it cannot be held
that the rape fell within the provisions of Part 1 Schedule 2 of the
Criminal Law Amendment Act (where the victim
is raped more than once)
as the high court found that it did. It follows that the minimum
sentence for rape was not applicable
to the rape conviction and the
sentence of life imprisonment must be set aside.”
(10)
In
the present instance the appellant was convicted after Mr Ismael
Casimo had already been convicted and sentenced in 2007 in the
High
Court, which distinguishes this case from the
Mahlase
case
[5]
,
as in the
Mahlase
case
,
according to the Supreme Court of Appeal, the other perpetrators had
not yet been convicted of the gang rape.
(11)
We
must agree with the State, that the appellant had known throughout
the trial that the provisions of section 51 of the
Criminal
Law Amendment Act
[6]
were applicable. The summary of substantial facts, which formed
part of the indictment, clearly stated that Mrs K. had been
raped
twice by two of the gang members and that her niece had been raped by
the appellant in close proximity to the car.
We find that the
appellant suffered no prejudice because specific reference to section
51(1) was not made. The principles
and findings in this regard
in
S
v Kolea
[7]
are applicable.
(12)
The
defence would not have been handled differently had there been
specific reference to section 51(1) in the indictment.
There
was no objection in the court
a
quo
against the application of section 51 of
Act
105 of 1997
.
We therefore find that the provisions of section 51(1) are
applicable.
(13)
The
court
a
quo
was correct in finding that life imprisonment for both counts was the
correct sentence, as Mrs K. was raped twice by more than
one person
with the appellant partaking as a spectator and raping the young
girl.
(14)
The
second leg of the appellant’s argument is that, even if section
51(1) applies, the sentence is shockingly harsh and that
this court
should consider the question of substantial and compelling
circumstances. The court is fully aware of the findings
in S v
Malgas
[8]
where it was held:
“
The
specified sentences were not to be departed from lightly and for
flimsy reasons which could not withstand scrutiny. Speculative
hypotheses favourable to the offender, maudlin sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy
of
the policy implicit in the amending legislation, and like
considerations were equally obviously not intended to qualify as
substantial and compelling circumstances.
Nor
were marginal differences in the personal circumstances or degrees of
participation of co-offenders which, but for the provisions,
might
have justified differentiating between them
.”
(Court
emphasis)
(15)
The
only mitigating fact placed before us by counsel for the appellant,
is that the appellant did not physically partake in the
rape of Mrs
K., as he was raping her young niece at the time she was raped by the
two men. The judgment in the
Malgas
case
[9]
makes it quite clear that the appellant, as a co-offender, should be
treated on the same basis as the persons who had raped Mrs
K. in
these circumstances.
(16)
In
S
v Swart
[10]
Nugent JA found:
“
What
appears from those cases is that in our law retribution and
deterrence are proper purposes of punishment and they must be
accorded due weight in any sentence that is imposed. Each of the
elements of punishment is not required to be accorded equal weight,
but instead proper weight must be accorded to each according to the
circumstances.
Serious
crimes will usually require that retribution and deterrence should
come to the fore and that the rehabilitation of the offender
will
consequently play a relatively smaller role
.”
(Court
emphasis)
(17)
We
cannot find that this fact alone is mitigating if regard is had to
the whole incident. The appellant was at all times a
participant in hi-jacking the bakkie, putting the victims in the boot
of the Camry, taking them out, watching whilst Mrs K. was
raped and
raping her young niece. This is one of the most serious rape
cases we have dealt with and the dictum in the
Swart
case
[11]
is apposite in this case.
(18)
Mrs
K. and her niece suffered severe trauma, where they witnessed how Mr
K. was shot at and did not know at the time whether he
had been
injured or killed. After the gang rape they were left in a
desolate area with very little clothes on. They
did suffer
physical injury and Mrs K. was raped more than once, whilst a gun was
used to subdue her. The victim impact report
regarding Mrs K.
by Dr Lize Wolfaardt, a psychologist, reflects:
“
She was
treated for severe post-traumatic stress and depression. She
was totally shocked, stunned and overwhelmed by what
had happened.
She experienced intense feelings of shame, helplessness and felt
totally stripped of all dignity. On
a sexual level she felt
like “spoilt goods”. It is therefore quite accurate
to state that Beverly K. suffered
from a total identity crises after
being hi-jacked and brutally raped…The happenings of 31 March
2004 have changed Beverley
K.’s life forever.”
(19)
The
appellant and his co-perpetrators acted in a brutal and callous
manner with no regard at all to human dignity. These crimes
were committed in such a heinous manner that the victims will carry
the emotional scars for the rest of their lives.
(20)
These
rapes are some of the worst this court has dealt with. The
court
a
quo
held:
“
It brings
the Court further to discuss whether there are any circumstances
substantial or compelling to justify the imposition of
a lesser
sentence than those sentences prescribed in the Act, referred to
above. The Court is of the opinion that any circumstance
to be
identified in this regard, will be artificial, and it will pay only
lip service to the so-called circumstances.”
We have to agree
with this opinion of the court
a quo
and cannot find that the court
a quo
had erred in imposing life sentences on both counts.
(21)
In
the circumstances and after careful consideration of all the facts,
we cannot find substantial and compelling circumstances or
any reason
to interfere with the court
a
quo’s
sentence.
(22)
Therefore,
the following order is made:
The appeal, against
sentence on both counts 4 and 5 is dismissed.
_____________________
Judge C Pretorius
I agree.
_____________________
Judge R G Tolmay
I agree.
_____________________
Acting Judge Petersen
Case
number
: A515/2015
Matter heard on
: 13 May 2016
For the Appellant
:
Adv L Augustyn
Instructed
by
: Legal Aid
For the
Respondent
: Adv E Leonard
Instructed
by
: Director of Public Prosecutions
Date of
Judgment
:
[1]
Volume
5 page 458 line 19 etc.
[2]
Act
105 of 1997
[3]
2015(2)
SACR 115 (ECG)
[4]
[2011]
ZASCA 191
at paragraph 9
[5]
Supra
[6]
Supra
[7]
2013(1)
SA 409 (SCA)
[8]
2001(1)
SACR 469 (SCA)
[9]
Supra
[10]
2004(2)
SACR 370 (SCA) at paragraph 12
[11]
Supra