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[2016] ZAGPPHC 427
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Nhleko v S (A687/2015) [2016] ZAGPPHC 427 (31 May 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
CASE
NO: A687/2015
DATE:
3/6/2016
In
the matter between:
DANIEL
MANDLA
NHLEKO
................................................................................
Appellant
AND
THE
STATE
…...................................................................................................
Respondent
JUDGMENT
L
I
VORSTER AJ
[I]
The appellant was convicted and sentenced in the Mpumalanga Regional
Court held at Secunda on six counts: -
[1.1]
..................
Murder;
[1.2]
..................
Rape;
[1.3]
.................
Rape;
[1.4]
.................
Kidnapping;
[1.5]
..................
Assault;
and
[1.6]
...................
Assault.
[2]The
appellant was sentenced as follows: -
Count
1:
...................
15 year's
imprisonment.
Counts
2 and 3:
........
Life imprisonment.
Count
4:
...................
Three years
imprisonment. Six months
Count
5:
...................
Six imprisonment.
Count
6
:..................
Six months
imprisonment.
[3]
The appellant appeals against his convictions and sentences.
[4]The
incidents when the offences took place all happened during the night
of 25 December 2004 at a place called Afghanistan in
Kinross
Location.
[5]The
appellant pleaded not guilty to all the counts. In his plea
explanation he made the following admissions in terms of
section 220
of the
Criminal Procedure Act 51 of 1977
:-
[5.1.]
The appellant admitted that he stabbed the deceased in count1 with a
knife twice.
[5.2]
The appellant admitted that he had sexual intercourse with [S S], the
complainant in counts 2 and 3.
[6]
The incidents all happened when the appellant and his friend met [S
S] and her boyfriend [A B]. [C N], the complainant in count
6 was
also there and also some other people.
[7]
The State called [S S] to testify about the rape charges (counts 2
and 3), Celeste Nathan about the assault (count 6). [S S]
also
testified about the kidnapping (count 4) and assault on her (count
5). Danie Masilela was called as a corroborating witness
who saw what
took place at the tavern where the confrontation between the
appellant and the deceased took place, as well as Warrant
Officer
Banda who arrested the appellant. The appellant also testified.
[8]
The Magistrate analysed all the evidence and in a detailed and well
considered judgment accepted the evidence of the complainants
and
rejected the evidence of the appellant as false. I agree with the
conclusions of the Magistrate on the evidence. The complainants
in
the rape counts and assault counts were all corroborated in all
material respects by Sabelo Ngema, Sergeant Banda, Alister Nathan
and
Evelyn Nhleko.
[9]
In argument before us the appellant raised two points which need to
be addressed separately. The first relates to the count
1 (murder)
and the second relates to count 4 (kidnapping) and counts 2 and 3
(rape).
[10]
As far as count 1 (murder) is concerned, the point raised is that,
whilst the appellant admitted that he stabbed the deceased
with a
knife twice, it does not follow that the deceased died as a result of
those two stab wounds. The second point is that the
kidnapping charge
(count 4) is a duplication of the rape charges (counts 2 and 3). I
deal with those points below.
[11]
In the J88 report, which was handed in by agreement, the cause of
death was described as multiple wounds and a head injury.
The
Magistrate concluded that not only two but all the stab wounds were
inflicted by the appellant. The conclusion is an inference
which is
based on the fact that, immediately after appellant left the
deceased, he was lying on the ground and the ambulance arrived.
There
was the no intervening opportunity for another person inflicting
wounds on the deceased. I agree with that conclusion. It
follows as a
matter of logic that the appellant inflicted more than the two stab
wounds he was prepared to admit.
[12]
As far as the merits are concerned, the question of splitting of
charges in respect of count 3 and 4 remains. This point was
not
argued or denied by the Magistrate.
[13]
The elements of the rape charge is simply to have intercourse with
the victim against her will. The elements of kidnapping
is to deprive
the victim of freedom of movement. In this case the complainant in
counts 3 and 4 was dragged by the appellant from
the scene where the
murder was committed for a distance to the place where he raped her.
When raping her, he also deprived her
from freedom of movement, but
that deprivation was incidental to his intention to rape her, which
is a different offence. Consequently,
I find that there was not a
duplication of offences.
[14]
As far as sentence is concerned, the Magistrate considered the
personal circumstances of the appellant, which were all covered
in a
pre-sentencing report, the fact that he had previous convictions, the
seriousness of the convictions, the prescribed minimum
sentences and
the question of substantial and compelling circumstances. The court
could find no substantial and compelling circumstances
and imposed
the prescribed minimum sentences. I find no irregularity in the
reasoning of the Magistrate or the imposed sentences
shockingly
harsh. Consequently, there is no merit in the appeal against the
sentences.
[15]
In the result, the appeal against convictions and sentence must be
dismissed.
[16]
I make the following order: -
Order
I
. The appeal against the convictions and sentences is dismissed.
2.
The convictions and sentences of the court
a quo
are
confirmed.
L
I VORSTER AJ
JUDGE
OF THE HIGH COURT
I
agree and it is so ordered
________________
P
VAN NIEKERK AJ
JUDGE
OF THE HIGH COURT
For
the appellant
Advocate H. Steynberg
(082 7346631)
Instructed
by
Legal Aid South Africa
For
the Respondent
Advocate A Rossouw
(084 294 7901)
Instructed
by
The Director of Public Prosecutions