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[2016] ZAGPPHC 1223
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Moilwa and Others v S (A536/2016) [2016] ZAGPPHC 1223 (19 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: A536/2016
Not
reportable
Not
of interest to other judges
19/6/2017
In
the matter between:
ELIAS
FINA
MOILWA
First
Appellant
ABEL
LESHAO
Second
Appellant
TEBOGO
VALENTINE
MAKGETHA
Third
Appellant
HENDRIK
GOLIATH
Fourth
Appellant
and
THE
STATE
Respondent
JUDGMENT
Tuchten
J:
1.
The four appellants were respectively accused numbers one to four in
a regional court. They were charged with gang raping the
complainant,
a woman then aged 23, in a pit toilet cubicle in Extension 5, Tshing,
Northwest Province on 6 July 2013. The offence
was alleged to have
been aggravated by the violence the rapists inflicted, with the
intent to cause grievous bodily harm, on the
complainant, Before they
pleaded, the appellants were duly warned of the applicability of the
provisions of the minimum sentence
regime imposed by the Criminal Law
Amendment Act, 105 of 1977.
2.
The first second and third appellants pleaded not guilty. The fourth
appellant pleaded guilty to a single act of rape. He was,
he said in
plea explanation, alone when he raped the complainant and did not
injure her except by raping her. The prosecutor refused
to accept the
plea as it was not in accordance with the state case and the plea of
accused no 4 was changed to not guilty.
3.
The four appellants were all convicted of having participated in the
gang rape. The versions of all the appellants were rejected
by the
regional magistrate. They were each sentenced to imprisonment for
life. Pursuant to the provisions of s 10 of the Judicial
Matters
Amendment Act, 42 of 2013, they all appeal to this court. The fourth
appellant appeals only against his life sentence.
The other
appellants appeal against both their convictions and their sentences.
4.
The complainant went that evening to a tavern. She had to walk part
of the way home. Near a stream called Kaalgat, she was waylaid
by a
gang of young men, stabbed on the forehead and back when she bravely
tried to resist and dragged into a pit toilet. The toilet
bowl itself
is ceramic, with a wooden seat and was enclosed in a cubicle with
metal walls and roof and had a metal door. Images
of the toilet were
admitted to the record. It is clear from these images that the toilet
is designed to accommodate only one adult
at a time. The complainant
said that she did not know any of the rapists and was unable to
identify any of them except for the
first appellant.
5.
When the complainant was dragged into the toilet and thereafter, the
complainant screamed. Her screams were heard by a resident
nearby,
Mrs Seleke, who was woken by the screams at about 12h45 and called
the police.
6.
The complainant testified that she was stripped naked and forced to
stand with her head in the toilet bowl. She was then vaginally
raped
by the several gang members from behind. She could not say how many
rapists there were or how many times she was raped. There
is no doubt
whatsoever that the complainant was subjected to an orgy of brutality
in that toilet cubicle. Her bloodstains were
later that morning found
on the toilet seat, the walls and the floor.
7.
At a stage during this horrifying ordeal, the rapists paused. One of
them expressed the view that she must be killed. The suggestion
was
made that she should not be killed in the toilet but back at Kaalgat.
But according to the complainant, one of the rapists
whom the
complainant later identified as the first appellant, said that he had
not yet been satisfied and wanted to rape her some
more. The gang
then dispersed. The first appellant slung the naked body of the
complainant on his back and carried her off in the
direction of
Kaalgat.
S8.
The state led DNA evidence at the trial. It was proved that the DNA
of the second, third and fourth appellants were found in
a semen
stain lifted from the red jacket of the first appellant which the
complainant was wearing when she and the first appellant
were found
by the police in circumstances I shall later describe. It was further
proved that the DNA of the third and fourth appellants
was detected
on intra-vaginal swabs taken from the complainant.
9.
The police eventually arrived at Mrs Seleke's house. She gave them
directions and they went off in their vehicle. They encountered
the
complainant together with the first appellant. The complainant
testified that when the headlights of the police vehicle became
visible, the first appellant put the complainant down and gave her a
T shirt or jersey which he had been wearing with which to
cover
herself. In fact the first appellant gave the complainant his red
jacket which the complainant wore. The first appellant
was detained
and he and the complainant were taken by the police to the police
station. The complainant was later examined by a
medical practitioner
during the early morning on 6 July 2013. The doctor concluded that
she had suffered vaginal injuries consistent
with being raped from
behind. She was found by the doctor to be dishevelled and covered
with human urine.
10.
The version of events advanced by the fourth appellant was that he
alone raped the complainant when she ran into the toilet
to seek
shelter after, so the fourth appellant testified the complainant told
her, an argument with her "husband". This
cannot be true
because Mrs Seleke, an independent witness who impressed the regional
magistrate, testified that she had seen three
"boys" at the
toilet. One of them was wearing a white jacket, one a red jacket and
another a "greyish background
coat". She saw the young man
with the red jacket go into the toilet and the one with the white
jacket come out. She heard
the tallest of these men say that they
must kill the complainant.
11.
The version of the first appellant was that he was the boyfriend of
the complainant. He said that while in the company of the
second
appellant, he found the complainant at the home of the third
appellant. He drew the inference that she had been unfaithful
to him
and became angry, he said, at this betrayal. He then stabbed her. The
second appellant happened to be there, so proceeds
the version, and
restrained the first appellant from further injuring the complainant.
The complainant then sneaked away and, he
said, he later saw her
hiding in the toilet. He asked her to accompany him to get her
treatment for her injuries. The version of
the first appellant is
that he did not have intercourse with the complainant that night.
12.
But no bloodstains were found at the home of the third appellant
while copious bloodstains were found in the toilet. It is simply
impossible that there would have been no bloodstains at the home of
the third appellant if she had been stabbed there as alleged
by the
first appellant. Furthermore, the second appellant could not
innocently have been in the company of the first appellant
because
the semen of the second appellant was detected on the red jacket. The
version of the first appellant can therefore not
be reasonably
possibly true.
13.
It was submitted by counsel for the first appellant that there was no
evidence that the first appellant actually raped the complainant.
I
do not agree. There was the evidence of Mrs Seleke that the young men
outside the pit toilet, including the man wearing the red
jacket,
took turns in going into the toilet. The evidence of the complainant
was that each of those who went into the toilet raped
her. Then there
is the evidence that the person who must have been the first
appellant told his co-perpetrators that he had not
had enough - not
that he had not had any. The first appellant carried the complainant
off to rape her further and then kill her.
He would not have been
part of the gang in the first place if he had not wanted to share in
the criminal spoils of their enterprise.
The first appellant
fabricated a version in an attempt to take account of the DNA
evidence against the second and third appellants.
He is unlikely to
have done this unless he had been one of the rapists.
14.
The regional magistrate found all the state witnesses, including the
complainant and Mrs Seleke, to be credible witnesses. An
appeal court
should be hesitant to interfere with the factual and credibility
findings of the trial court. No misdirections have
been shown to have
been made by the trial court and the record supports the conclusion
that the complainant and Mrs Seleke are
both credible and reliable.
The complainant is corroborated by the circumstances in which she was
found together with the first
appellant and the condition in which
the medical practitioner found the complainant very shortly
thereafter, as well as by the
injuries found by the medical
practitioner on examination of the complainant. The complainant is
further corroborated by the elaborate
and absurd versions proffered
by the appellants in an attempt to weave exculpatory or less
incriminating versions around what they
must have appreciated were
the inescapable facts of the DNA evidence and the visible injuries
caused to the complainant when she
was stabbed.
15.
The rejection of the version advanced by the first appellant
necessarily leads to the rejection of the versions of the second
and
third appellants as well. In the case of the second appellant, there
is further the fact that his DNA was found on the red
jacket. The
most likely explanation for the presence of the semen of the second,
third and fourth appellants in the stain on the
jacket of the first
appellant is that it leaked there from the body of the complainant.
16.
There is thus no reason to interfere with the conclusion of the
regional magistrate that the appellants are all guilty as charged
of
gang raping the complainant. I would therefore dismiss the appeals
against conviction. Iturn to the appeals against sentence.
17.
The court in considering an appropriate sentence must have regard and
take into consideration the aims of punishment. These
are deterrence,
retribution, rehabilitation and prevention. During the sentencing
process the court should never lose sight of
the element of mercy.
The concept of mercy has been described as a balanced and humane
state of thought which should temper the
approach to the factors to
be considered in arriving at an appropriate sentence. It has nothing
in common with maudlin sympathy
for the accused, recognises that fair
punishment may sometimes have to be robust, eschews insensitive
censoriousness in sentencing
a fellow mortal, and so avoids severity
in anger. The measure of the scope of mercy depends upon the
circumstances of each case.
18.
The court further must strive to balance all the facts, factors and
circumstances evenly for the attainment of the aims of punishment
as
set out above. In this regard, a court must have regard to the nature
of the offences, the personal circumstances of the accused
and the
interests of society. A court should strive to impose a proportionate
sentence without over-emphasising or under-emphasising
any of these
factors at the expense of the other.
19.
In terms of
section 51
of the
Criminal Law Amendment Act, 105 of 1997
the court must impose the prescribed sentence of life imprisonment in
a case such as this unless there are substantial and compelling
circumstances to justify a deviation from the prescribed sentence.
The approach a court should follow in determining whether there
are
substantial and compelling circumstances present was laid down in
S
v Ma/gas
2001 2 SA 1222
para 25:
B. Courts are required to approach the
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.
C. Unless there are, and can be seen
to be, truly convincing reasons for a different response, the crimes
in question are therefore
required to elicit a severe, standardised
and consistent response from the courts.
D. The specified sentences are not to
be departed from lightly and for flimsy reasons. Speculative
hypotheses favourable to the
offender, undue sympathy , aversion to
imprisoning first offenders, personal doubts as to the efficacy of
the policy underlying
the legislation, and marginal differences in
personal circumstances or degrees of participation between
co-offenders are to be
excluded.
E. The Legislature has however
deliberately left it to the courts to decide whether the
circumstances of any particular case for
a departure from the
prescribed sentence. While the emphasis has shifted to the objective
gravity of the type of crime and the
need for effective sanctions
against it, this does not mean that all other considerations are to
be ignored.
F. All factors (other than those set
out in D above) traditionally taken into account in sentencing
(whether or not they diminish
moral guilt) thus continue to play a
role; none is excluded at the outset from consideration in the
sentencing process.
G. The ultimate impact of all the
circumstances relevant to sentencing must be measured against the
composite yardstick ('substantial
and compelling') and must be such
as cumulatively justify a departure from the standardised response
that the Legislative has ordained.
H. In applying the statutory
provisions, it is inappropriately constricting to use the concepts
developed in dealing with appeals
against sentence as the sole
criterion.
I. If the sentencing court on
consideration of the circumstances of the particular case is
satisfied that they render the prescribed
sentence unjust in that it
would be disproportionate to the crime, the criminal and the needs of
society, so that an injustice
would be done by imposing that
sentence, it is entitled to impose a lesser sentence.
J. In so doing, account must be taken
of the fact that crime of that particular kind has been singled out
for severe punishment
and the sentence to be imposed in lieu of the
prescribed sentence should be assessed paying due regard to the bench
mark which
the Legislature has provided.
20.
The concept of remorse is an important factor in the evaluation of an
appropriate sentence. Remorse is something different from
regret. The
nature of remorse was explained in
S v Matyityi
2011 1SACR 40
SCA para 13:
There is, moreover, a chasm between
regret and remorse. Many accused persons might well regret their
conduct, but that does not
without more translate to genuine remorse.
Remorse is a gnawing pain of conscience for the plight of another.
Thus genuine contrition
can only come from an appreciation and
acknowledgement of the extent of one's error. Whether the offender is
sincerely remorseful,
and not simply feeling sorry for himself or
herself at having been caught, is a factual question. It is to the
surrounding actions
of the accused, rather than what he says in
court, that one should rather look. In order for the remorse to be a
valid consideration,
the penitence must be sincere and the accused
must take the court fully into his or her confidence. Until and
unless that happens,
the genuineness of the contrition alleged to
exist cannot be determined. After all, before a court can find that
an accused person
is genuinely remorseful, it needs to have a proper
appreciation of, inter alia: what motivated the accused to commit the
deed;
what has since provoked his or her change of heart; and whether
he or she does indeed have a true appreciation of the consequences
of
those actions.
21.
It follows, therefore, that an accused person who has refused to take
responsibility for his actions can seldom if ever claim
to have
demonstrated remorse.
22.
Finally in these general remarks and before Ideal with the specific
cases of the appellants, I refer to
Director of Public
Prosecutions, Western Cape v Prins and Others
2012 2 SACR 183
SCA
para 1:
No judicial officer sitting in South
Africa today is unaware of the extent of sexual violence in this
country and the way in which
it deprives so many women ... of their
right to dignity and bodily integrity ... . The rights to dignity and
bodily integrity are
fundamental to our humanity and should be
respected for that reason alone. It is a sad reflection on our world,
and societies such
as our own, that women ... have been abused and
that such abuse continues, so that their rights require legal
protection by way
of international conventions and domestic laws, as
South Africa has done in various provisions of our Constitution and
in the Criminal
Law ... .
23.
None of the appellants testified in mitigation of sentence. Their
personal circumstances were placed before the court by their
legal
representatives. The first appellant was 21 when he was sentenced on
20 October 2015. He was therefore 19 (not 18 as his
lawyer asserted)
when he committed the crime. He was unemployed when he was arrested
on the day of the crime. He lived with his
parents. He completed
Grade 9 at school. He had a previous conviction for robbery,
committed on 20 December 2012, for which he
received a suspended
sentence, corrective supervision and community service.
24.
The second appellant was 23 when he was sentenced and 21 when he
committed the crime. He was unemployed when arrested on the
day of
the crime and lived with this mother and brothers. He had a minor
child. He completed Grade 12 at school. He had a previous
conviction
for housebreaking with intent to assault and assault with intent to
cause grievous bodily harm committed on 13August
2012 for which he
was sentenced to two years in prison.
25.
The third appellant was born on 14 February 1990. He was thus 23 when
he committed the crime and 25 when sentenced. He had a
child aged 4
at the time of sentencing. He had one previous conviction, for
housebreaking with intent to steal and theft, which
he committed on
18 December 2012, for which he was sentenced to corrective
supervision and community service.
26.
The fourth appellant was 21 when he committed the crime and 23 when
sentenced. He had no children. He contributed to the support
of his
grandmother and young brother by doing piece jobs. He had previous
convictions for housebreaking with intent to assault
and assault,
committed on 13 August 2012, for which he was sentenced to two years
imprisonment.
27.
There was no basis upon which it could even be argued that the first,
second and third appellants displayed remorse for what
they had done.
In the case of the fourth appellant, it was argued that remorse
should be found from his plea of guilty and the
fact that he "did
not waste the Court's time". Of course by lying he did waste the
court's time. It was said from the
bar that he had lied about the
true events because he was "afraid for his life" if he told
the truth. There is no evidence
that he feared for his life. The
guilty plea was doubtless motivated by the knowledge of the DNA
evidence against him. The fourth
appellant did not take the court
into his confidence. I reject his claim of remorse.
28.
Rape is a serious offence. The crime which the four appellants
committed was a dreadful one, even by the standards to which
those
who serve in the criminal courts of this Division have become
accustomed. The horror of the crime lies not so much in the
actual
physical injuries suffered by the complainant. I hope that I shall
not be misunderstood when I say that the stab wounds
and other
abrasions suffered by the complainant during the course of the
multiple rapes and even the facial scarring which the
regional
magistrate observed are relatively mild injuries compared with many
cases which this Division has had to judge .
29.
The true horror of the crime lies in the way the appellants went
about stripping the complainant of her dignity. First they
waylaid
her. Then they subdued her by violence when she resisted. The stab
wounds to the forehead and eyebrow, 1 cm and 3 cm long
respectively,
were probably inflicted to cause blood to flow into her eyes and put
an end to her resistance without making her
unfit for the awful
purpose for which they had waylaid her. Then they forced her to go to
the pit toilet they had chosen as the
scene of their crimes. There
was no suggestion that the stab wound to the back, 3 cm long, was
caused while the complainant was
in the toilet. That wound was
probably the result of prodding her with a knife as they drove her
towards the toilet. At a stage
before they began raping her they
stripped her naked. Then they forced her to put her head in the pit
toilet bowl. Those inevitably
noisome devices are designed for the
reception of human waste. By forcing the complainant to lower her
head into that toilet, the
appellants were telling the complainant
that she was less than human, a creature no more significant on the
scale of existence
than human waste.
30.
The appellants planned to kill the complainant after they had
finished using her. But through the good deed of Mrs Seleke in
alerting the police and the eventual attention of the police to their
duty, the evil plan of the appellants was thwarted.
31.
Counsel for the fourth appellant submitted that there was no evidence
that the complainant suffered any trauma apart from the
trauma she
suffered while the rapes were actually being carried out. I do not
think that any human being can go through what the
complainant
endured without suffering trauma for a large part, if not the rest,
of her life.
32.
Counsel for the appellants submitted that the court ought to have
required pre-sentencing reports. But the appellants were adults
and
were all legally represented at their trial. There was no request for
such a report and there was no suggestion from counsel
for the
appellants of what possible material favourable to the appellants
such reports could have produced.
33.
The conduct of each of the appellants was nothing less than that of a
predator whose prey was a defenceless woman. The public
interest
demands that such conduct be punished by heavy sentences.
34.
The relative youth of the appellants has been advanced as a
mitigating circumstance. I have given this aspect careful
consideration.
But this was not the first time each of them had
transgressed the law. Each of them had previously been given a light
or extra-custodial
sentence. There is nothing on the record to
suggest that these earlier sentences had any rehabilitative effect on
any of he appellants.
There is similarly nothing to suggest that the
youth of the appellants rendered them more susceptible to committing
these crimes.
35.
IN
Matyityi, supra
at
para 14, the following was said regarding the youthfulness of an
offender:
[1]
It is trite that a teenager is prima
facie to be regarded as immature and that the youthfulness of an
offender will invariably be
a mitigating factor, unless it appears
that the viciousness of his or her deeds rule out immaturity.
Although the exact extent
of the mitigation will depend on all of the
circumstances of the case, in general a court will not punish an
immature young person
as severely as it would an adult. It is well
established that the younger the offender the clearer the evidence
needs to be about
his or her background, education, level of
intelligence and mental capacity in order to enable a court to
determine the level of
maturity and therefore moral blameworthiness.
The question, in the final analysis, is whether the offender's
immaturity, lack of
experience, indiscretion and susceptibility to
being influenced by others reduces his blameworthiness. Thus whilst
someone under
the age of 18 years is to be regarded as naturally
immature the same does not hold true for an adult. In my view a
person of 20
years or more must show by acceptable evidence that he
was immature to such an extent that his immaturity can operate as a
mitigating
factor.
36.
As I have said, the first appellant was 19 when he committed the
crime. The first appellant however admitted to stabbing the
complainant, the necessary precursor to the gang rape itself. He was
the gang member who accepted the task of killing the complainant
when
he had finished with her. There is no suggestion that the conduct of
the first appellant was influenced by another gang member,
even
though he was the youngest. He had a previous conviction for a
violent crime. I do not consider it will in these circumstances
be
appropriate to sentence the first appellant more leniently than the
other, older gang members.
37.
The youth of an offender may in a proper case show that the offender
is immature and therefore suitable material for rehabilitation.
The
appellants all declined to place evidence in this regard before the
court or were unable to do so because no such material
existed. There
is simply nothing on the record to show that the young men who
committed these crimes have any prospects of being
rehabilitated.
Unless and until they are rehabilitated, they pose a danger to every
woman who finds herself in the position of
the complainant. The
complainant was fortunate not to have been killed by the appellants.
Unless the appellants are removed from
society, their next victim may
not be so lucky.
38.
For these reasons, I am entirely unpersuaded that there are
substantial and compelling circumstances which would in this case
justify a deviation from the prescribed sentence of life
imprisonment. Given the totality of the circumstances of this case,
the
only appropriate sentence the court below could have imposed was
one of imprisonment for life for each of the appellants. This
permanently removed each of the appellants from society. Inevitably
in a case such as this, retribution and deterrence weighed more
heavily than what I have found to be the highly improbable prospect
of rehabilitation in relation to each of the appellants.
39.
Indeed, had I heard this case as of first instance and untrammelled
by the strictures of the minimum sentencing regime, I would
have sent
each of the appellants to prison for life for what he did.
40.
I propose that this court makes the following order:
The appeals of each of the appellants
are dismissed and the convictions and life sentences imposed by the
court below are confirmed.
_________________
NB
Tuchten
Judge
of the High Court
19
June 2017
I
agree. It is so ordered.
V
Tlhapi
Judge
of the High Court
June
2017
[1]
Footnotes omitted