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[2016] ZAGPPHC 556
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Phage v S (A35/15) [2016] ZAGPPHC 556 (21 June 2016)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG DIVISION,
PRETORIA
CASE NO: A35/15
DATE: 21 JUNE 2016
In
the matter between:
TEBOGO
PHAGE
....................................................................................................................
Appellant
And
THE
STATE
...........................................................................................................................
Respondent
JUDGMENT
TEFFO.
J
:
[1]
This is an appeal against sentence only.
The appellant was arraigned in the regional court, Potchefstroom,
where he faced two counts
of rape, which were read with the
provisions of sections 51(2), 52(2), 52A and 52B of the Criminal Law
Amendment Act 105 of 1997
(the Act). He pleaded not guilty but was
ultimately convicted and sentenced to life imprisonment on each
count. The two sentences
of life imprisonment were ordered to run
concurrently.
[2]
The appellant also brought an
application for condonation of the late filing of the appeal. The
application was not opposed and
it was accordingly granted.
[3]
He appeals against the sentence with
leave of this Court having been granted on petition.
[4]
Briefly the evidence led in this matter
was as follows:
On 6 October
2007 Ms E M
, the complainant in this matter,
was at her house watching a soccer match together with her
friend
and neighbour, Mr L M. During half-time Mr M
went away. After he left her homestead and at approximately 18:00 the
complainant closed the curtains and locked the house. Subsequently
she heard a person knocking at the door. Upon asking who the person
was, there was no response. She opened the door and an unknown
man
entered the house. She thought the person had mistaken her house for
a spaza shop in the neighbourhood and gave him the direction
to the
spaza shop. The person told her that he was not looking for the spaza
shop. He in fact wanted her to make love with him
as he heard people
saying she had good sex with m
en. She screamed for Mr M
who had just left her homestead. The unknown man closed her house and
locked it. At that time he had a bottle of beer in his possession.
He
put it on the TV-stand. He started throttling her. She screamed and
in the process she fell with her knees on the floor and
got hurt. Her
assailant pulled her with her clothes towards the bathroom where he
put her inside the bathtub and opened the tap
to let the water flow.
She got wet. The assailant took her out of the bathtub, took off her
jersey and tried to tear her skirt.
He did not succeed. He
immediately went to the kitchen where he fetched a knife and tore off
the complainant’s skirt. She
struggled to crawl to her bedroom
where she sat on top of the bed as her assailant was walking
alongside her. He undressed himself
and took off his shoes.
Eventually he took out a condom, put it on his penis, tore off her
skirt, tights and panty, and inserted
his penis into her vagina. He
made love to her on the bed while the knife was next to him. While he
was busy having sex with her,
she managed to push him backwards with
her hands. The condom that was on his penis fell on the bed. He put
another condom which
he took out of his pocket onto his penis and
inserted his penis for the second time into her vagina thereby once
more having sexual
intercourse with her.
The
first sexual intercourse took place on the bed. It could have lasted
for about 4 minutes. The second sexual intercourse took
place while
her assailant was leaning on the floor and could have lasted for
about 10 minutes. After he had finished having sexual
intercourse
with her, he put on his clothes and left. He locked the house and
left with the house keys. While he was out of the
house, he threw the
keys of the house inside the house through the sitting room window.
The complainant eventually took the keys
and locked herself inside
the house. She managed to crawl with her knees to her bedroom where
she took out her
cellphone and called Mr M
.
She saw her assailant prior to the inc
ident, standing with Mr
M
at the time he had just left her homestead
while she w
as closing the door. Mr M
immediately rushed to her house after receiving her call and she
showed him what the man he saw standing with him outside her house
did to her. No one could have heard her screaming because it was
raining that evening and her assailant closed the door immediately
he
heard that she was screaming. Neighbours and police were called to
the scene and she was taken to the hospital by ambulance.
The police
arrived, looked around inside the house and found the bottle of beer
her assailant was carrying at the time. She did
not know the accused
prior to the incident.
Mr M
corroborated the complainant’s evidence with regard to her
encounter with him on the day of the incident and that he met
the
accused on his way home after he had left the complainant’s
house. He did not know the appellant’s name but knew
his face.
The appellant requested him when they met to wait for him at his home
as he was coming to see him and tell him who he
was. The appellant
was linked to the offences with the fingerprints which were found on
an empty 450 ml beer bottle he left behind
at the complainant’s
house.
[5]
The following personal circumstances of
the appellant were placed on record in mitigation of sentence:
That
he was 33 years old at the time of the commission of the offence. He
has three children aged 17, 8 and 3 years respectively.
He worked as
a loader and packer at Chubby Chick prior to his arrest. He
maintained and supported his children and his elderly
parents with
the income he earned at the time. He spent three years and one month
in custody while awaiting trial.
[6]
It was argued on behalf of the appellant
that the trial court misdirected itself when it imposed a sentence of
life imprisonment
in each of the two counts of rape while the
appellant faced charges which were read with the provisions of
sections 51(2), 52(2),
52A and 52B of the Act. It was also pointed
out that the trial court overemphasised the seriousness of the
offence and the interest
of the community at the expense of and to
the exclusion of the appellant’s personal circumstances.
Counsel for the appellant
further submitted that the appellant used a
condom at the time of the rape. He did not physically assault the
complainant. She
was only threatened. No evidence was presented which
indicated how the rape incident emotionally affected the complainant.
Counsel
for the appellant referred the court to the case of S v Nkawu
2009 (2) SACR 407
ECG and submitted that the court in that case
concluded that the proper interpretation of section 51(3)(aA)(ii) of
the Act does
not preclude a court sentencing for rape to take into
consideration the fact that a rape victim has not suffered permanent
injuries
along with other relevant factors to arrive at a just and
proportionate sentence. He argued that all the aforementioned factors
cumulatively taken, should have persuaded the trial court to deviate
from imposing the sentence of life imprisonment.
[7]
While the State conceded that the
charges the appellant faced were read with the provisions of section
51(2) and not section 51(1)
of the Act, it was argued after reference
was made to the case of S v Kolea
2013 (1) SACR 409
(SCA) that the
court should look at the evidence presented before the trial court.
The Kolea matter approved the minority judgment
in S v Mashinini and
Another
2012 (1) SACR 604
(SCA). Counsel for the State further
submitted that the fact an incorrect section of the Act was relied
upon when the appellant
was charged, does not mean that the correct
section which is supported by the evidence presented at the trial
court, is not applicable.
He further argued that the trial court was
correct in imposing the prescribed minimum sentence of life
imprisonment The following
submissions were made in aggravation of
sentence: That the offence of rape was serious and prevalent in the
country. That the complainant
was threatened with a knife. She was
attacked in the sanctity of her home. The appellant invaded the
privacy of a woman who was
much older than him. He did not show any
remorse. The complainant suffered both emotional and physical pains.
She suffered serious
physical and vaginal injuries which is an
indication that this was a violent, cruel and horrific rape. The
appellant has two previous
convictions of rape where he was convicted
in November 1994 and August 2000 respectively. He is a danger to
women and the previous
sentences of rape did not deter him from
raping innocent women.
[8]
The basic approach in every appeal
against sentence was set out in S v Rabie
1975 (4) SA 455
(A) at
857D-F to be the following: the court hearing the appeal -
“(a) should be guided by
the principle that punishment is ‘preeminently a matter
for the discretion of the trial
court’, and
(b) should be careful not to
erode such discretion: hence the further principle that the sentence
should only be altered if the
discretion has not been judicially and
properly’ exercised
The
test under (b) is whether the sentence is vitiated by any
irregularity or misdirection or is disturbingly inappropriate (see
also S v Giannoulis
1975 (4) SA 869
(A), S v Barnard
2004 (1) SACR
191
(SCA) at 194C-D, S v Mayisela
2013 (2) SACR 129
(GNP) at [13].
[9]
The court in S v Malgas
2001 (1) SACR
469
(SCA) at 478E-H said the appeal court can only interfere with the
sentence imposed by the trial court where it is vitiated by a
material misdirection or where the disparity between the sentence of
the trial court and the sentence that the appellate court
would have
imposed had it been the trial court, is so marked that it be
described as ‘shocking’, ‘startling’
or
‘disturbingly inappropriate (see also Madiba v S
[2015] JOL
33686
(SCA)).
[10]
The J88 medical report describes the
injuries sustained by the complainant as follows: tears on the labia
majora, bruises on her
cheek, breast, leg, hand and neck due to
throttling. The evidence is clear that the complainant was assaulted,
having been throttled
by the appellant. She sustained serious
injuries as described above. The submission by the appellant’s
counsel that the complainant
was not physically assaulted is
therefore without merit.
[11]
Rape is a serious offence, constituting
as it does a humiliating, degrading and brutal invasion of privacy,
dignity and the person
of the victim. The rights to dignity, privacy
and integrity of every person are basic to the ethos of the
Constitution and to any
defensible civilisation (S v Chapman
1997
(3)
SACR 341
(SCA)).
[12]
I find it prudent to deal with the
matter of S v Kolea supra. The Supreme Court of Appeal in the Kolea
matter held that a sentencing
court is not precluded from imposing a
life sentence or referring a matter to a high court for consideration
of sentence, solely
on the basis that the charge sheet erroneously
refers to section 51(2) instead of section 51(1) of the Act. The
appellant in that
matter was convicted of one count of rape where the
victim was raped more than once by more than one person. The charge
that he
faced was read with the provisions of section 51(2) instead
of section 51(1). The magistrate when convicting the appellant
accepted
from the complainant’s evidence that she was raped by
more than one person and that a co-perpetrator managed to evade the
arrest. After convicting the appellant, he was informed that as he
was liable to be sentenced to life imprisonment, which sentence
was
beyond the jurisdiction of the regional court at the time, the
magistrate accordingly referred the matter to the high court
for
sentence.
Proceedings
in the regional court were confirmed by the high court. The appellant
was sentenced to 15 years imprisonment after the
High Court which
sentenced him under section 51(1) found that there were substantial
and compelling circumstances. He was subsequently
granted leave to
appeal to the full court against the conviction and sentence. The
full court dismissed his appeal against conviction,
found that there
were no substantial and compelling circumstances present and
sentenced him to life imprisonment.
[13]
The Mashinini matter supra also related
to one count of rape which was committed by more than one person (a
gang rape). The accused
in that matter were also charged under
section 51(2) instead of section 51(1) but it was clear at the
commencement of the proceedings
that more than one accused person was
charged with one single count of rape.
[14]
The facts in the present matter clearly
indicate that although the complainant was only raped by one person,
the appellant in this
matter, he raped her more than once (twice) and
that she sustained injuries during the rape. Given these facts the
State chose
to charge the appellant with two counts of rape which
were read with the provisions of section 51(2) instead of charging
him with
one count of rape read with the provisions of section 51(1).
Section 51 (2) of the Act provides for the imposition of a minimum
sentence of 10 years’ imprisonment in respect of a first
offender, while section 51(1) prescribes a sentence of life
imprisonment.
The appellant in the present matter faced two counts of
rape where it was alleged that he raped the complainant once in each
count.
Nowhere in the proceedings that led to the conviction did the
State and/or the magistrate refer to the provisions of section 51(1)
of the Act. The section was only referred to when the magistrate
sentenced the appellant after hearing arguments on mitigation
and
aggravation of sentence.
[15]
I am of the view that the present matter
is distinguishable from the Kolea and the Mashinini matters as I have
highlighted the facts
in those matters supra. In the present matter
although the evidence establishes one count of rape read with the
provisions of section
51 (1) it was erroneous for the magistrate to
sentence the appellant to life imprisonment on each count of rape. In
any event the
record does not even reflect the reasons why the
appellant was sentenced as such. I would agree with the State’s
submission
as supported by the decision in the Kolea matter if the
appellant was convicted with one count of rape which was incorrectly
read
with the provisions of section 51(2) instead of section 51(1).
If one looks at the charge sheet it cannot be said that the State
incorrectly charged the appellant under section 51(2). The appellant
was charged with two separate counts of rape which were read
with the
provisions of section 51(2) each where the victim in each count was
raped once. The magistrate did not even make a finding
that the two
counts of rape were committed with the infliction of bodily injuries.
It is therefore my view that the submission
by counsel for the
appellant has merit.
[17]
The appellant in the present matter is
not a first offender. He has two previous convictions of rape. In
November 1994 he was convicted
of rape and sentenced to 7 years
imprisonment. On 18 August 2000 he was also convicted of rape and
sentenced to 10 years’
imprisonment. He committed the second
rape on 19 November 1999 before the expiry of the period of his
sentence of 7 years imprisonment
in the first rape. The present rape
was committed on 6 October 2007 although he was convicted on 21 June
2012. The appellant is
therefore regarded as a third offender in
terms of the offence of rape. Section 51(2) of the Act provides for a
minimum sentence
of 30 years in respect of a third and subsequent
offender.
[18]
There is no doubt that the circumstances
under which the rape was committed are aggravating. The complainant
was raped in the sanctity
of her own home where she thought she was
safe. She sustained physical injuries as a result of the throttling.
She also suffered
genital injuries. She was raped by a person who
could be regarded as her son. The complainant will definitely live in
her house
with fear. Obviously her disposition will never be the same
to men as it was prior to the incident of rape. The rape was
committed
under violent circumstances. In my view, taking into
account the factors mentioned in mitigation and aggravation of
sentence, and
the circumstances under which the rape was committed,
the magistrate should have invoked the provisions of section 51(2) of
the
Act and exercised his discretion of increasing the sentence with
the period of 5 years imprisonment. It is therefore my view that
the
magistrate committed a misdirection entitling this Court to interfere
with the sentences of life imprisonment imposed on both
counts.
[19]
The finding of the magistrate that there
are no substantial and compelling circumstances in this matter cannot
be faulted.
[20]
In my view the appropriate sentence
under the circumstances should have been a sentence of 35 years
imprisonment on each count of
rape and the sentences on both counts
should have been ordered to run concurrently. There is therefore a
striking disparity between
the sentence imposed by the trial court
and that which this Court would have imposed had it sat as a trial
court. The sentence
of the trial court therefore falls to be set
aside.
[21]
In the premise I make the following
order:
21.1
The
appeal against sentence is upheld and the sentence of the court a quo
is set aside and replaced with the following sentence:
“The
accused is sentenced to 35 years imprisonment on count 1.
The
accused is sentenced to 35 years on count 2.
The
sentence in count 2 is ordered to run concurrently with the sentence
in count 1. The accused is therefore effectively sentenced
to serve a
period of 35 years in prison”
21.2
In
terms of
section 282
of the
Criminal Procedure Act 51 of 1977
the
substituted sentence is antedated to 26 June 2012, being the date on
which the appellant was sentenced.
M
J
TEFFO
JUDGE
OF
THE
HIGHCOURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
I
agree:
S A THOBANE
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA GAUTENG
DIVISION, PRETORIA
FOR THE
APPELLANT L A MORE
INSTRUCTED
BY PRETORIA JUSTICE CENTRE
FOR THE
RESPONDENT R S MATLAPENG
INSTRUCTED
BY THE DIRECTOR OF PUBLIC PROSECUTIONS
DATE OF
JUDGMENT 21 JUNE 2016