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[2016] ZAGPPHC 452
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Mawasha v S (A396/2014) [2016] ZAGPPHC 452 (17 June 2016)
SAFLII
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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: A396/2014
17/6/2016
Not
reportable
Of
interest to other judges
Revised.
In
the matter between:
JOHANNES
MAWASHA APPELLANT
And
THE
STATE
RESPONDENT
JUDGMENT
Fabricius
J,
1.
This
is an appeal against the sentences imposed by Lamont J on 25 April
2013, leave to appeal against the sentences having been
granted on
the same day.
2.
The
Appellant herein had been convicted of the following charges:
2.1 Count 1: Murder: on
this count a term of life imprisonment was imposed;
2.2 Count 2: House
breaking with intent to rob and robbery with aggravating
circumstances: a term of 15 years imprisonment was imposed;
2.3 Count 3: Rape: a term
of 15 years imprisonment was imposed;
2.4 Count 4: Rape: a term
of 15 years imprisonment was imposed;
2.5 Count 6: Robbery with
aggravating circumstances: a term of 15 years imprisonment was
imposed.
It
was ordered that the sentences on counts 2, 3, 4 and 6 should run
concurrent with the sentence on count 1, which means in effect
that
the Appellant was sentenced to life imprisonment.
3.
For
present purposes, a short summary of the evidence follows:
Miss
M. testified that she had been the girlfriend of the deceased Fourie.
On 10 August 2010, she was at school and the deceased
phoned her at
about 16h45. It was expected that the deceased would pick her up at
about 19h45. She phoned him more or less at that
time, but was unable
to contact him. Ultimately, she was offered a lift to the house. Upon
her arrival, there was no answer from
the gardener when she called
for him. She saw the deceased' s car and there was a small light on
the inside, which was burning,
something she could not explain. The
inside lights of the house were on, but the outside lights not. She
phoned the deceased again
without any success. She then went over to
the deceased' s vehicle and could see the feet of someone hanging
outside the car. They
were the feet of the deceased. Someone then
came from inside the car and they apprehended her. A gun was demanded
from her, as
well as money. Two persons were present at the time.
They took her to the grass and told her to undress. She refused to do
so and
was then beaten until she complied. She was then raped. She
was then told to go into the house and show the attackers the safe.
Her house was in shambles, the safe door was already open, and
everything was scattered about. One of the attackers who had not
raped her outside, told her to lie on a mattress and she was then
raped again. After that, they all went outside again and, and
the
person who had not raped her the first time, raped her there again,
for a long while. She was then taken to the car, blankets
were put on
the seat, and she sat there naked. The person who had then raped her
the first time, told her to lie down on the blankets
and raped her
again, repeatedly. She was also forced to commit oral sex at that
time.
4.
They
took her cell phone, and two Nokia cell phones belonging to the
deceased. They also emptied her bag and took the contents.
She was
then locked in the boot of the car, and later on managed to escape.
She went the police where swabs were taken from her.
She also later
on identified various goods which had been recovered from the house,
including her own belongings. She could not,
at the time of these
vicious assaults, identify the assailants, as each wore a balaclava.
5.
The
swab samples were later on analysed and linked with a blood sample
taken from the Appellant. It was found that these samples
matched.
6.
The
Appellant testified and denied any knowledge or participation in the
crimes, but obviously on the basis of the DNA-evidence,
was found
guilty on all the charges, except count 5.
7.
On
behalf of the Appellant, it was submitted that the trial Judge
misdirected himself when he sentenced the Appellant to an effective
sentence of life imprisonment. It was suggested that the sentence was
shocking and out of proportion with the facts of this case.
The
alleged substantial and compelling circumstances, which ought to have
led the Judge to impose a lesser sentence than the prescribed
sentences, were the following:
7.1. Appellant was 29
years old at the time;
7.2. He had only
completed standard 3 at school and had a difficult childhood;
7.3. He had been in
custody awaiting finalization of this trial for a period of two years
and seven months;
7.4. The complainant in
the rape counts sustained no injuries during the incident and no
weapon was used during the rape or robbery.
The submission in this
context was that the honourable trial Judge "misdirected himself
in not taking sufficient cognisance
of the Appellants personal
circumstances and not giving more weight to all mitigating factors
and thereby imposing a sentence that
is shockingly inappropriate and
furthermore not tempering the effect of the term of imprisonment."
8.
I
accept that it is Counsel's duty to make such submissions, as can
reasonably be made in each case, but that is about all one can
say in
the present instance. There are a number of issues that have to be
kept in mind in the present proceedings. Firstly, it
must be
remembered that the imposition of a sentence is pre-eminently a
matter for the discretion of the trial Court, and on appeal,
the
sentence imposed should only be altered if an irregularity took place
during the trial, or sentencing stage, if the Court materially
misdirected itself in some or other manner, or if the sentence
imposed by the Court, could be described as shockingly inappropriate.
See
for instance:
S v Rabie 1975 Vol
4 SA 855
(A).
9.
Obviously,
an aggravating factor is the prevalence of the offence and its
seriousness. In
S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA),
the Supreme
Court of Appeal said the following at 5 b - c: "Rape is a very
serious offence, constituting as it does a humiliating,
degrading and
brutal invasion of the privacy, the 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." This was said by
Mahomed, Chief
Justice at the time. I agree with those sentiments. ln this context
the Court a quo said the following: "When
you wear a balaclava
you instil a deep sense of fear in the people who see you wear a
balaclava. It is difficult from a perspective
of a woman to imagine a
more repulsive act than a man raping her wearing a balaclava, an act
of love is turned into an act of violence
and horror aggravated by
the appearance of the rapist. You raped the complainant in the
immediate vicinity of her lover who was
dead, killed by you. It is
difficult to imagine what went through her mind and her emotions when
you performed those acts. You
also raped the complainant more than
once." The Court a quo then dealt with the other facts and
referred to the interests
of society as well. He did take into
account the rehabilitative aspect of a sentence of imprisonment
albeit for life, and also
referred to retribution. In that context as
a whole, the Court said the following: "As I have previously
indicated to you,
individually these counts would have resulted in
more than your lifetime possibly. As to the murder it is not a spur
of the moment
incident which happened, it is not a matter where you
were driven by someone else to do so or one of the other types of
murders
where you act with significantly reduced moral
blameworthiness. Your blameworthiness in this matter is at a maximum,
and on the
basis of proportionality the maximum punishment should
apply.''
10.
Counsel
for the State further put to us ''that rape is an appalling and
utterly outrageous crime, gaining nothing of any worth for
the
perpetrator and inflicting terrible and horrific suffering and
outrage on the victim and her family. It threatens every woman
and
particularly the poor and vulnerable. In our country, it occurs far
too frequently, and is currently aggravated by the grave
risk of the
transmission of AIDS. A woman's body is sacrosanct and anyone who
violates it does so at his peril and our legislature,
and the
community at large, correctly expects our Courts to punish rapists
very severely". This dictum emanates from
S v Ncheche
[2005] ZAGPHC 21
;
2005
(2) SACR 386
(W) at par. 35.
I agree with the views expressed by
that learned Judge. What is furthermore an aggravating fact is that
the Appellant acted as part
of a group, weapons were used during the
commission of the relevant offences and a person lost his life. The
deceased and the complainant
were attacked in and at their home where
they were supposed to feel safe and secure. The Appellant displayed
no remorse and the
rapes are of the worst kind. The indignity that
the complainant on the rape charge has suffered must have been
horrendous. There
is absolutely nothing to say in the Appellant's
favour and the learned Judge a quo, who imposed the relevant
sentences, did so
justifiably on any possible reasoning. One can only
hope that somehow and someday the victim can regain her dignity.
11.
Accordingly,
the following order is made:
The
appeal against the sentences is dismissed.
_______________________
JUDGE
H.J FABRICIUS
JUDGE
OF THE GAUTENG HIGH COURT, PRETORIA
I
Agree
_______________________
JUDGE
W. R. C. PRINSLOO
JUDGE
OF THE GAUTENG HIGH COURT, PRETORIA
I
Agree
_______________________
JUDGE
N. V. KHUMALO
JUDGE
OF THE GAUTENG HIGH COURT, PRETORIA
17
JUNE 2016