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[2015] ZAGPPHC 300
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Khoza v S (A17/2014) [2015] ZAGPPHC 300 (17 March 2015)
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
No: A17/2014
DATE:
17/3/2015
In
the matter between:
SIFISO
JOSHUA
KHOZA
........................................................................................................
Appellant
and
THE
STATE
.............................................................................................................................
Respondent
JUDGMENT
MOHLAMONYANE
AJ:
[1]
The Appellant, Mr Sifiso Joshua Khoza, was arraigned in the Regional
Court for the Regional Division of Gauteng, held at Benoni.
The
Appellant was charged with and convicted of four counts of rape
emanating from an incident in which he raped one Ms N[…]
L[…],
on the night of 25 December 2011 at Mogoba village, Putfontein, near
Benoni.
[2]
The Appellant was sentenced to life imprisonment on 12 February 2013,
leave to appeal against sentence only having been granted
by the
learned Regional Court Magistrate on 26 May 2013.
[3]
Accordingly, this is an appeal by the Appellant against sentence
only.
[4]
It is significant to note that the four counts of rape of which the
Appellant has been convicted related to four different continual
instances of having sexual relations with the complainant in one
night, in one single conduct. The single conduct comprised of
the
first instance of sexual intercourse where the Appellant had put on a
condom, the second one without a condom, the third with
a condom and
the fourth without a condom.
[5]
The personal circumstances of the Appellant, as they appear on record
were that he was twenty-five (25) years old, married and
had one
minor child aged three (3) years. He was staying with his mother and
father at the time of the commission of the offence.
He had been
employed at a construction company. The Appellant had lost his child
who died and his wife left him. He was a first
offender. He had been
in custody for a year and three months at the time he was sentenced
and was as a result unable to bury his
child. I can mention
that at the present moment he has been in custody for at least three
(3) years.
[6]
In aggravation, it was argued on behalf of the Respondent in the
heads of argument and before us that the sentence imposed cannot
be
seen as shockingly inappropriate. The grounds upon which counsel for
the Respondent relied were (a) the Appellant attacked and
raped a
defenceless woman who was locked in a house for several hours; (b)
the victim was forcefully taken away from her boyfriend
and (c) the
victim was assaulted and forcefully hauled to the house in which the
sexual act took place. It was further argued by
counsel for the
Respondent that the gravity of the crime and aggravating features (as
stated above) as well as the societal requirements
far outweighed the
personal circumstances of the Appellant.
[7]
After an extensive analysis of the aggravating and mitigating
factors, the Court
a quo
came
to the conclusion that there were no substantial and compelling
circumstances warranting imposition of a sentence other than
life
imprisonment.
[8]
To this day the triad, propounded in S v Zinn,
1969 (2) SA 537
(A) at
540, is still apposite. As stated in Zinn’s case, the sentence
to be imposed must fit the crime, the offender and
the interests of
society.
[9]
The Appellant had been charged subject to section 51 and Schedule 2
of Part 1 of the Criminal Law Amendment Act, no 105 of 1977.
The
question that arises in this appeal is: what is an appropriate
sentence regard being had to all the relevant circumstances
of this
case. In S v Blaauw
[2001] 3 All SA 588
(C) Van Heerden J, aptly
summed up the situation (regarding section 51) by stating that the
sentence had to fulfil all the objectives
of sentencing, which are
(a) the prevention of similar crimes, (b) deterring other offenders,
(c) the rehabilitation of the accused
person and (d) compensation for
the offence. The Court further stated that the objectives must be
achieved by a balanced weighing
up of different factors such as the
personal circumstances of the Appellant, the nature and seriousness
of the crime and the interests
of society. The Court added that the
interests of the victim are also a critical factor to be considered.
[10]
The Judge in Blaauw’s case
supra
,
followed S v Malgas, 2001(1) SACR 469 par. [25] A that section 51 has
limited but not eliminated the court’s discretion
in imposing
sentence in respect of offences affected by the section. It was
furthermore held that the approach of the courts should
be that life
imprisonment should ordinarily be imposed for the relevant offences,
unless weighty justification exists to warrant
departure from that
rule. (also Ncheche v S,
[2005] ZAGPHC 21
;
[2005] JOL 13886
(W). The case of Ncheche
concerned a
“
double rape”
.
The Appellant and another had taken turns to rape the complainant. I
will later return to the issue of
“
double
rape”
.
[11]
The guiding principle in an appeal against sentence was laid down by
Holmes JA (as he then was) in S v Rabie
1975 (4) SA 855
A, at 857,
where the learned Judge stated:
“
1.
In every appeal against sentence, whether imposed by a magistrate or
a Judge, the Court hearing the appeal-
(a)
should be guided by the principle
that punishment is “pre-eminently 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”.
2.
The test under (b) is whether the sentence is vitiated by
irregularity or misdirection or is disturbingly inappropriate”.
[12]
On behalf of the Appellant, in heads of argument, a case cited as S v
Mafunya (sic) to be read as Mafuya,
1972 (4) SA 565
(O.P.A) was
referred to insofar as it supported the principle that first
offenders should generally,
“
...not
lightly be sent to jail”
. I must
hasten to state that the Mafuya decision is irrelevant to the present
case and inapplicable. The case involved a first
offender convicted
of a minor offence of common assault.
[13]
The seriousness of and heinous nature of the crime of rape need not
be over-emphasized. [S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA)].
[14]
The Appellant was charged with rape as contemplated in
section 3
of
the
Criminal Law (Sexual Offences and Related Matters) Amendment Act,
no 32 of 2007
, in that it was alleged in the charge-sheet that he had
committed four counts of rape, all in one night.
[15]
The facts in this appeal should be distinguishable from the facts in
the Ncheche case,
supra
,
where two accused persons had raped the complainant, which the Court
referred to as
“
double rape”
.
In Zinn, the Appellant was convicted of,
inter
alia
, 14 counts of fraud and 221 counts
of theft. The Appellate Division (as it then was), in Zinn’s
case, regarded all the crimes
committed by the Appellant
“
...as
one course of conduct for purposes of sentence”
.
[16]
In my view, the Court
a quo
over-emphasized the seriousness of the crime and
the prevalence thereof in South Africa to the detriment of the
Appellant. It has
been noted that there is no question about the
seriousness of the crime of rape. However, the learned Magistrate
ought to have
found, for purposes of sentence, that the Appellant
committed the four counts of rape with one single course of conduct
over a
single night.
[17]
“
E. The Legislature has ... deliberately
left it to the courts to decide whether the circumstances of any
particular case call 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”
.
[Per Marais JA (as he then was) in Malgas,
supra
at 482 b].
[18]
In the result I find that the learned Magistrate had over-emphasized
the needs of the society in imposing a sentence of life
imprisonment,
which in itself, is disproportionate with the circumstances of the
case. At age 25, the Appellant is not beyond rehabilitation,
or at
least, it has not been shown in evidence that he is beyond any
measure of rehabilitation. The learned Magistrate ought to
have found
that that fact was a substantial and compelling circumstance
warranting imposition of a lesser sentence than the prescribed
one.
[S v Marais,
2009 (1) SACR 299
ECD, at 302 f-h, par. 5].
[19]
Having said that however, counsel for the Appellant conceded in his
heads of argument and before us as well that an alternative
lengthy
term of imprisonment would be appropriate. In this regard the comment
of Nugent JA, in S v Vilakazi,
2009 (1) SACR 552
(SCA) at 574, par.
58, are apposite:
“
In
cases of serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background.
Once it
becomes clear that the crime is deserving of a substantial period of
imprisonment the questions whether the accused is
married or single,
whether he has two children or three, whether or not he is in
employment, are in themselves largely immaterial
to what that period
should be, and those seem to me to be the kind of ‘flimsy’
grounds that Malgas said should be avoided.
But they are nonetheless
relevant in another respect. A material consideration is whether the
accused can be expected to offend
again. While that can never be
confidently predicted his or her circumstances might assist in making
at least some assessment.
In this case the appellant had reached the
age of 30 without any serious brushes with the law. His stable
employment and apparently
stable family circumstances are not
indicative of an inherently lawless character”.
[20]
In light of the aforegoing exposition, the appeal against sentence
ought to succeed.
[21]
It is on record that during the address in mitigation of sentence,
the Appellant’s attorney submitted that the Appellant
should be
declared unfit to possess a firearm in accordance with the provisions
of
section 103
of the
Firearms Control Act, no 60 of 2000
. However, I
was unable to find, on record, that the learned Magistrate had done
so.
[22]
In the result, I make the following order:
22.1
The appeal against sentence succeeds.
22.2
The sentence of life imprisonment is set aside and replaced with the
following:
“
Accused
is sentenced to 24 years’ imprisonment”
.
22.3
In terms of
section 282
of the
Criminal Procedure Act, no 51 of 1977
,
the sentence of 24 years’ imprisonment is antedated (backdated)
to 12 February 2013.
22.4
The Appellant is declared unfit to possess a firearm in terms of the
provisions of
section 103
(1) (g) of the
Firearms Control Act, no 60
of 2000
.
_________________________________
MD
MOHLAMONYANE
[Acting
Judge of the High Court of
South
Africa,
Gauteng
Division, Pretoria]
I
concur,
__________________________
M.
H.E. ISMAIL
[Judge
of the High Court of
South
Africa,
Gauteng
Division, Pretoria]