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[2016] ZAGPPHC 690
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Radebe v S (A497/2015) [2016] ZAGPPHC 690 (4 August 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No: A497 / 2015
4/8/2016
In
the matter between:
BONGANI
RADEBE
Appellant
and
THE
STATE
Respondent
JUDGEMENT
MAKHUBELE
AJ
INTRODUCTION
[1]
On 13 March 2012, Bongani Radebe ("the Appellant"), then a
21 year old male, was convicted and sentenced to a term
of life
imprisonment and a further 12 years imprisonment by the Sebokeng
Regional Court Magistrate, Mr A.J Von Wielligh ("the
Presiding
Officer") for the rape and attempted murder of one P. M., a 22
year old woman ("the complainant").
[2]
In Count 1, it was alleged that the Appellant contravened
"the
provisions of Section 3 read with Sections 1, 56,57, 58, 59,
,
60
and 61 of the Sexual Offences (Act 32 I 2007 ) (read with
sections
92(2)
,
94
,
256
,
257
and
281
of the
Criminal Procedure Act 51/ 1977
and
the provisions of
Sections 51(1)
or (2) and Schedule
2 Act 105
of 1997, as amended by the Criminal Law Amendment Act 38 of 2007 in
that on or about 16/ 12/2009 and at or near EVATON in the Regional
Division of GAUTENG the said accused did unlawfully and intentionally
commit an act of sexual penetration with the complainant
to wit, P.
M., 22 year old female person by PENETRATING HER VAGINA WlTH THEIR
PENISES [sic!] without the consent of the said complainant.”
[3]
In count 2, it was alleged that on the same date and place as in
Count 1, the Appellant
"did unlawfully and intentionally
attempt to kill P. by STABBING HER REPEATEDLY ON HER NECK, BACK AND
BODY, AND PUSHING HER
INTO A STREAM"
[4]
His application for leave to appeal was refused. He then filed a
petition in terms of Section 309C of Act 51 of 1977 for leave
to
appeal against his conviction and sentence.
[5]
His petion to appeal the conviction was refused and he was granted
leave to appeal against the sentence only.
[6]
The record of proceedings was reconstructed from the bench notes of
the Presiding Officer. Both the Public Prosecutor and the
Appellant's
defence attorney confirmed that the reconstructed record was correct.
[7]
It appears from the reconstructed record that the Appellant was
legally represented throughout the trial. It is also evident
that he
had a fair trial in that he was advised of the consequences of the
prescribed minimum sentencing regime at the time when
the charges
were put to him.
THE
RELEVANT FACTS
[8]
The Appellant was convicted on the following factual matrix;
8.1. The complainant was
walking home alone at about 23:45 after attending a braai when she
passed a group of about 7 males. Two
of them followed her and one of
them called her name. She looked back and realized that it was the
Appellant, whom she knew. They
walked with her whilst the Appellant
asked questions about where she was coming from. The Appellant and
the unknown man talked
between themselves in a language she did not
understand.
8.2. The unknown man
suddenly pulled her by her hand. She asked him why he was pulling
her. He told her that she was going to have
sex with the both of
them. He let go of her hand. She ran away. He gave chase, tripped her
and she fell. The Appellant arrived
where they were. They both hit
her with open hands and dragged her to the bushes whilst she was
screaming. They threatened to kill
her if she did not keep quiet. The
Appellant held her hands whilst the other man undressed her.
8.3. The Appellant
ordered her to lie on her back, which she did. He had sexual
intercourse with her. The other man did too. After
they finished, the
Appellant suggested that they should kill her because if they did
not, she would lay charges against them. The
other man then started
to stab her. She attempted to run, but the other man got hold of her
and stabbed her on the back several
times.
8.4. She tried to fight
back but he stabbed her hand. She fell down. They thought she was
dead. The Appellant's accomplice pushed
her into a nearby stream. She
waited until their voices died down, then got up and ran to a nearby
house to seek help. She knocked
at the door but no one answered. She
ran to her friend's house. Her friend's mother opened the door. She
fell down and was not
able to communicate. They called an ambulance
but it did not come. In the morning her friend took her to a clinic.
She was transferred
to the hospital.
8.5. Two other witnesses
were called to testify and they confirmed her physical state she
arrived at her friend's house.
8.6. The medical Form
(J88 Form) was accepted as an Exhibit. Several lacerations of varying
lengths on various parts of her body
such as back, hip, shoulder,
legs and fingers were noted. It was also noted that there was
"Clinical evidence of physical
assault (multiple lacerations +
left lung pleural effusion. Blood and air at the left lung".
There was also evidence of forced
vaginal penetration.
[9]
On the Rape charge, the Appellant admitted that he had sexual
intercourse with the complainant on the day in question. His defence
was that the intercourse was consensual. His version was that they
were lovers. On the night in question they met at a tavern.
They had
a discussion about the Appellant's relationship with her friend. At
some point the police conducted a raid in the tavern.
The Appellant
asked the complainant that they should leave to drink elsewhere. At
first she was reluctant to leave but agreed after
he promised to buy
her liquor. They went to his place of residence as he wanted to
change his shirt. They discussed the status
of their relationship
whilst seated on the bed. One thing led to another and they ended up
having intercourse. They left to attend
a party that complainant was
at before she went to the tavern. They stayed there for about two
hours. The complainant went to sit
with her friends. The Appellant
sat next to them, but she later disappeared. Her friends told him she
was outside. He went to look
for her but did not find her. He waited
for her until he decided to leave at about 01:00.
9.1 He denied the
allegations with regard to Count 2.
[10]
The Appellant's version was rejected by the Presiding Officer and he
was accordingly convicted as charged on both counts.
THE
SENTENCE IMPOSED AND FACTORS THAT WERE TAKEN INTO ACCOUNT
[11]
The State proved one previous conviction of robbery that was
committed on 11 September 2009 for which he was sentenced to three
(3) years imprisonment. The whole sentence was suspended for a period
of five years on certain conditions that were not placed
on record.
The circumstances under which he was convicted were also not placed
on record.
[12]
The personal circumstances that were placed before the trial court
were that the Appellant was;
12.1. 21 years old;
12.2.
"not
married, but he has a wife and one child”
[1]
12.3. unemployed; and
12.4. has only passed
standard 6 at school.
[13]
The trial court also took into account the fact that the complainant
was raped by more than one person and that in terms of
Section 51(1)
of the
Criminal Procedure Act the
prescribed minimum sentence of life
imprisonment was mandatory unless there were compelling and
substantial circumstances to justify
a lesser sentence.
[14]
There is no indication in the reconstructed record that the legal
representatives made any submissions with regard to what
would
constitute compelling and substantial circumstances.
The
Presiding Officer simply indicated that he did not find any such
compelling and substantial circumstances.
[15]
Other factors that appear to have been taken into account are that:
15.1. The Appellant and
the unknown male overpowered the complainant with the aim of raping
her and thereafter brutally attacked
her with the aim of killing her
so that she cannot lay a charge against them.
15.2. The Appellant
committed these offences a year and 3 months after he received a
suspended sentence for robbery. This shows
that he has no respect for
the life or bodily integrity of other persons.
15.3. He did not show
remorse for his actions.
GROUNDS
OF APPEAL AND FINDINGS THEREOF
[16]
Counsel for the Appellant, Ms Van Wyk, submitted that the Appellant's
legal representative failed to address the court with
regard to the
factors that would have constituted compelling and substantial
circumstances to justify deviation from the minimum
prescribed
sentence of life imprisonment. She referred us to the matter of
S
V
Mokgara 1015(1) SACR 634 (GP)
to advance her submission
that the Presiding Officer had a duty under the circumstances, to put
pertinent questions to the Appellant's
legal representative to
determine facts that may have proved the existence or non-existence
of compelling and substantial circumstances.
We were also referred to
the matter of S v
Magano
2014 (2)
SACR 423
(GP)
for a
contention that sentencing an accused to life imprisonment requires
the presence of enough information to enable the court
to arrive at a
balanced verdict.
[17]
Whilst I agree with the principles in the cases that we were referred
to, the submission that no such questions were put to
the legal
representative may not be a fact, in view of the fact that the record
was reconstructed.
I
must hasten to add that in the context of the reasons that were given
for the sentence, the Presiding Officer does not appear
to have
considered whether any of the factors that were placed before him in
mitigation of sentence would qualify as compelling
and substantial
circumstances. In that regard, he misdirected himself. He also did
not consider whether the age of the Appellant
was a factor that he
should take into account when considering what would constitute
compelling and substantial circumstances.
[18]
It was also argued on behalf of the Appellant that the period that he
spent in prison whilst awaiting finalization of the proceedings
should have been taken into account. He was arrested on 26 October
2010 and remained in custody until he was sentenced on 13 March
2012.
He spent two years in custody as an awaiting trial prisoner. His
counsel contended in the heads of argument that the sentence
should
be antedated to 13 March 2012 in terms of
section 282
of the
Criminal
Procedure Act
[19
]
A further submission was that the Appellant was 20 years old when he
committed the offences in question. He can be rehabilitated.
Even if
a longer prison terms is imposed, the fact that there is hope for a
parole will have a positive effect in his rehabilitation
whilst he is
in prison.
[20]
Ms Van Wyk argued further that the robbery was committed in 2008 when
he was still a minor. It was conceded though that the
Appellant
deserves a custodial sentence because the previous record, though not
strictly relevant, shows that he has a propensity
to violence.
Furthermore, a suspended sentence that was imposed on him does not
appear to have had any positive effect on him.
LEGAL
PRINCIPLES
[21]
It is trite that the appeal court can only interfere with the
discretion of the lower courts to impose sentences only if:
21.1. There was an
irregularity during the trial or sentencing of an accused person.
21.2. The lower court
misdirected itself in respect of the imposition of the sentence.
21.3. The sentence
imposed by the lower court could be described as disturbingly or
shockingly inappropriate.
[22]
The question is not whether the sentence is right or wrong, but
rather whether the lower court exercised its discretion properly
and
judicially.
[2]
[23]
The proper approach to sentencing under circumstances where the
provisions that created a mandatory minimum sentencing regime,
Section 51(3)(a)
of Act 105 of 1997 are applicable was formulated by
Marais
JA
in
the leading case of
S
v Malgas (117/20001 (20011 ZASCA 30;
(2001) 3 All SA 220
IA! 119
March 2001)
[3]
.
In
Paragraph 25, Marais JA summarized the proper approach by examining
the provisions that created the minimum sentencing regime
as well as
the specific offences referred to in Part 1 of Schedule 2. With
regard to the latter, the learned Judge stated that
the court's
discretion in imposing sentence has been limited, and not eliminated.
The usual factors that a trial court would take
into account when
sentencing are still applicable, such as proportionality of the
sentence to the crime, balancing the various
competing interests, and
the nature of the offence.
[24]
In the appeal before us, the Presiding Officer failed to evaluate the
mitigatory circumstances of the offence and weigh them
against the
aggravating factors. This is a misdirection that entitles the appeal
court to intefere in the sentence imposed by the
Presiding Officer.
The
personal circumstances of the appellant, such as his age, constitute
substantial and compelling circumstances that the Presiding
Officer
should have taken into account to determine whether he should depart
from imposing the minimum sentence or not.
[25]
In the matter of
Mudau
v State
[4]
, MAJIEDT JA
[5]
undertook
an analysis of recent court decisions to illustrate the approach
adopted by our courts on the issue of substantial and
compelling
circumstances in view of the prescribed minimum sentences regime.
There appears to be consensus that each case should
be judged on its
own merits and that the correct question to ask is whether life
imprisonment is the appropriate sentence under
the circumstances of
each case.
[26)
Considering or taking into account factors such as the youthfulness
of an accused person does not in my view minimize the fact
that rape
is a serious offence. It is a reality that needs to be considered by
a trial court to reach a correct conclusion with
regard to the
question whether there should be a deviation from the prescribed
minimum sentencing regime. It is not to say that
the complainant
deserved or invited the rape.
Duty of a sentencing
court
[27]
In the matter of
S
v Siebert
[6]
,
the
duty of a sentencing court was described as follows
"Sentencing
is
a
judicial function sui generis. It should not be governed by
considerations based on notions akin to onus of proof. In this field
of law, public interest requires the court to play a more active,
inquisitorial role. The accused should not be sentenced unless
and
until all the facts and circumstances necessary for the responsible
exercise of such discretion have been placed before the
court”
[28]
In
S V
Vilakazi 2012 (6) SA 353 (SCA)
[7]
,
the duty of a court before passing sentence was formulated as
follows:
"It
is clear from the terms in which the test was framed in Malgas and
endorsed in Dodo that it is incumbent upon a court in
every case,
before it imposes a prescribed sentence, to assess, upon a
consideration of all the circumstances of the particular
case,
whether the prescribed sentence is indeed proportionate to the
particular offence. The Constitutional Court made it clear
that what
is meant by the 'offence' in that context (and that is the sense in
which I will use the term throughout this judgment
unless the context
indicates otherwise) consists of all factors relevant to the nature
and seriousness of the criminal act itself,
as well as all relevant
personal and other circumstances relating to the offender which could
have a bearing on the seriousness
of the offence and the culpability
of the offender. '22
If a court is indeed satisfied that a lesser
sentence
is
called
for in a particular case, thus justifying a departure from the
prescribed sentence, then it hardly needs saying that the
court
is
bound
to impose that lesser sentence. That was also made clear in Malgas,
which
said that the relevant provision in the Act 'vests the sentencing
court with the power, indeed the obligation, to consider
whether the
particular circumstances of the case require a different sentence to
be imposed . And a different sentence must be
imposed if the court is
satisfied that substantial and compelling circumstances exist which
'justify'...it'’
23
Youthfulness of the
Appellant
[29]
Schoeman AJA
[8]
re-iterated the
principles in this regard in the following paragraphs of his judgment
in the matter of
Netshivhodza
v S
(962/
2013) (2014) ZASCA 145
(26 September 2014)
[9]
"[13] In S v
Mabuza & others [4] Cachalia JA said the following when
discussing the position of youthful offenders who
have attained the
age of 18 years in the light of s 51(2) of the Act:
'. . . .
So while
youthfulness is, in
the case of juveniles who have attained
the age of 18, no longer per se a substantial and compelling factor
justifying a departure
from the prescribed sentence, it
often
will be, particularly when other factors are present. A court cannot,
therefore, lawfully discharge its sentencing function by
disregarding the youthfulness of an offender in deciding on an
appropriate
sentence, especially when imposing a sentence of life
imprisonment, for in doing so it would deny the youthful offender the
human
dignity to be considered capable of redemption.'
[14] In S v Matyityi
[5]
Ponnan JA said the following when dealing with the
'relative youthfulness' of an appellant.
'The question, in the
final analysis,
is
whether the offender's immaturity, lack of
experience, indiscretion and susceptibility to being influenced by
others reduce 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.
'
[15] The aspect of the
appellant's youthfulness was not explored to determine the degree of
his maturity and the influence, or lack
thereof, of his fam ily and
home environment and in that way to assess his moral culpability. It
was clear however that the appellant
did not live the life of an
adult: he lived at home, the income from his temporary work of
washing cars at a local school was ploughed
back into his
large family and was not used to support himself or any dependants.
This sense of obligation might also be indicative
that the appellant
is a useful member of society that fulfils his obligations to his
family and thereby to society as a whole.
[16] The appellant is
young and there exists a real possibility of rehabilitation. There
has been no other indication that he is
a recidivist without hope of
becoming a useful member of society. He indicated through his legal
representative that he will not
place himself in a similar position
again.
[17]
....................................................................
.
[18] In Rammoko v
Director of Public Prosecutions [6]. Mpati JA stated:
'Life imprisonment is
the heaviest sentence a person can be legally obliged to serve.
Accordingly, where s 51(1) applies, an accused
must not be subjected
to the risk that substantial and compelling circumstances are, on
inadequate evidence, held to be absent.
'
[19] Furthermore, in S
v Mahomotsa [7] it was set out that there are bound to be different
degrees of seriousness of rape even in
cases where life imprisonment
is the prescribed minimum sentence in terms of the Act. It is the
duty of the court to consider all
those factors before it imposes
sentence"
Period
spent in custody whilst awaiting trial
[30]
In the matter of
S
V Vilakazi
[10]
, NUGENT JA
[11]
stated
the following:
"[60] There
is
one further consideration that must be brought to account. The
appellant was arrested on the day the offence was committed and has
been incarcerated ever since. At the time he was sentenced he had
accordingly been imprisoned for just over two years. 56 While
good
reason might exist for denying bail to a person who is charged with a
serious crime it seems to me that if he or she
is not promptly
brought to trial it would be most unjust if the period of
imprisonment while awaiting trial
is
not then brought to
account in any custodial sentence that
is
imposed. In the
circumstances I
intend ordering that the sentence
-
which
for purposes of considering parole
is
a sentence of fifteen
years' imprisonment commencing on the date that the appellant was
sentenced
- is
to expire two years earlier than would
ordinarily have been the case.
[61] The appeal
against sentence
is
upheld. The sentence imposed upon the
appellant
is
set aside and the following sentence
is
substituted:
'The
accused
is
sentenced to fifteen years' imprisonment from
which two years are to be deducted when calculating the date
upon which the sentence is to expire.
'
[31]
Subsequent SCA judgments appear to discourage this mechanical method
of deducting the number of years spent whilst awaiting
trial. The
correct approach it would seem, is to consider whether such period
should be taken into account when considering the
appropriate
sentence that should be imposed. There is no rule to determine the
weight to be given to a period that an accused person
spent whilst
awaiting finalization of his trial. Each case is decided having
regard to all the relevant circumstances. It is not
a mechanical
calculation of time actually spent, but whether, like any other
factor, the time spent should be taken into account.
(Director of
Public Prosecutions v Gcwala (295
/ 13)
[2014] ZASCA 44
(31
March 2014 at para.18 and 19). Lewis JA referred to an earlier SCA
decision in the matter of
Radebe and Another
v S
(726 /12) {2013/ ZASCA
31
(27
March
2013);
2013 (2) SACR 165
(SCA) (27 March 2013)
where it was held that there was no rule of thumb in respect of
calculation of the weight to be given to such period.
CONCLUSION
[32]
Although trial courts are not obliged to call for pre-sentence
reports, the same purpose would have been achieved had the Presiding
Officer played a more active role during the sentencing stage with a
view to establish whether life imprisonment was an appropriate
sentence.
[33]
More emphasis was placed on the fact that two persons raped the
complainant. As a result of this, the Presiding Officer appear
to
have been compelled to impose a life sentence.
[34]
The fact that the Appellant was convicted of a crime of robbery
whilst he was still in his teens should have sounded warning
bells on
the Presiding Officer to want to know more about his background and
possibility of rehabilitation.
[35]
It is also clear from the evidence that the unknown man that was not
apprehended was the main instigator. He chased the complainant,
tripped her and undressed her.
[36]
Besides the rape that in itself is a humiliating and degrading act,
the complainant was seriously injured. She was pushed in
a stream and
left for dead. I cannot find any reason to interfere with the
sentence that was imposed in respect of count 2 (attempted
murder).
The
Appellant deserves a severe punishment, but one that will not confine
his normal life to a prison cell.
His
counsel conceded that a custodial sentence should be imposed.
[37]
He was sentenced in 2012. Remitting the matter back to the trial
court will not serve a purpose, more so because the trial
record was
lost and reconstructed from the bench notes.
[38]
Accordingly, this court is in a better position, having found that
there were several misdirections, to impose sentence afresh.
[39]
Under the circumstances, I propose the following order:
39.1. The appeal with
regard to sentence on count 1 is upheld and the sentence of the trial
court is set aside and substituted as
follows:
"the
Accused is sentenced to 15 years imprisonment”
The sentence is ante
dated in terms of
section 282
of the
Criminal Procedure Act to
13
March 2012.
39.2. The appeal with
regard to sentence in Count 2 is dismissed and the sentence of the
trial court is hereby confirmed.
_______________________
MAKHUBELE
AJ
Acting
Judge of the High Court
I
agree, and it is so ordered
_______________________
E.M
KUBUSHI
Judge
of the High Court
APPERANCES:
Appellant:
Advocate LA Van Wyk
Pretoria
Justice Centre
The
State:
Advocate C. Pruis
The Director of
National Prosecutions, Pretoria
[1]
This is a contradiction. It appears from later pronouncements by the
Presiding Officer that he had what he referred to as a "life
partner".
[2]
S v Pillav
1977 141 SA 531
(A) at p 535 E-G
[3]
reported in the South African Criminal Lar Reports as S V Malgas
2001 (1) SACR 469 (SCA)
[4]
2013 (2) SACR 292
(SCA)
[5]
MTHIYANE DP, CACHALIA JA, ERASMUS and SALDULKER AJJA concurring.
[6]
1998 (1) SACR 554
(SCA) at 558j-559a.
[7]
at paragraph 15
[8]
Cachalia and Willis JJA concurring
[9]
footnotes were omitted.
[10]
2009 (1) SACR 552
(SCA);
2012 (6) SA 353
(SCA)
[11]
STRECHER, MLAMBO, MAYA JJA and HURT AJA concurring