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[2015] ZAGPPHC 331
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Tladi and Others v S (A469/2013) [2015] ZAGPPHC 331; 2016 (1) SACR 424 (GP) (17 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: A469/2013
Date:
17 March 2015
Not
reportable
Not
of interest to other judges
In
the matter between:
MOHAU
DANIEL TLADI
(GLADI)
.................................................................................
1
st
Appellant
MPHO
MTJALI
.................................................................................................................
2
nd
Appellant
SAMUEL
RAMAELE
........................................................................................................
3
rd
Appellant
and
THE
STATE
..........................................................................................................................
Respondent
JUDGMENT
POTTERILL
J
[1]
The three appellants were convicted on one count of kidnapping and
one count of rape each. In respect of count 1 all the
appellants were sentenced to four years imprisonment. In
respect of count 2 the first and third appellants were sentenced
to
15 years imprisonment, whilst the second appellant was sentenced to 5
years imprisonment. Leave to appeal against their
convictions
and sentences were refused by the court
a
quo
. On petition all three
appellants were granted leave to appeal against both conviction and
sentence.
[2]
The matter was previously postponed to reconstruct or complete the
record of the proceedings. At a further hearing the
matter was
postponed for the appellants to furnish reasons to the court why
their sentences should not be increased; S
v
Bogaards
2013 (1) SACR 1
(CC)
.
Pursuant thereto the appellants filed affidavits wherein they stated
that they did not want to pursue the appeal and had
in fact
terminated their counsel’s mandate to act in the appeal.
It is however trite that once courts give notice that
there would be
a possible increase of a sentence the appellants cannot withdraw
their appeal without permission of the court of
appeal;
S
v Kirsten
1988 (1) SA 415
(A)
.
[3]
For purposes of this appeal the appellants have conceded that the
convictions are in fact and law correct and that they no longer
seek
to appeal against the convictions. I am satisfied that the
court
a quo
did
not err in finding the appellants guilty on both counts.
[4]
The state has not requested that the sentences on count 1 be
increased. The respondent has however submitted that the
sentences of all three appellants on count 2 is shockingly
inappropriate and should be set aside and replaced with other
sentences.
[5]
The appellants kidnapped the complainant and raped her in total six
times. In
S v Chapman
[1997] ZASCA 45
;
1997
(2) SACR 3
(SCA)
at 5b-c raped was
described in these terms:
“
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.
Women in this
country are entitled to the protection of these rights. They
have a legitimate claim to walk peacefully on the
streets, to enjoy
their shopping and their entertainment, to go and come from work, and
to enjoy the peace and tranquillity of
their homes without the fear,
the apprehension and the insecurity which constantly diminishes the
quality and enjoyment of their
lives.”
Furthermore
in
N v T
1994
(1) SA 862
(C)
at 864G rape was
described as:
“
Rape
is a horrifying crime and is a cruel and selfish act in which the
aggressor treats with utter contempt the dignity and feelings
of his
victims.”
[6]
The offences committed are indeed horrific. On 30 July 2010 the
complainant was enjoying an evening with her boyfriend
at a tavern
after he had travelled all the way from Mpumalanga to spend some time
with her. Appellant 1 physically fought
with her boyfriend to
obtain control of the complainant. Appellants 2 and 3 deviously
offered the victim assistance by running
away with her while full
well knowing that it was done in stealth just to later meet up with
appellant 1 and so doing to execute
their plan. They took her
to a shack where appellant 3 raped the victim. Thereafter
appellant number 2 covered his
penis with an empty packet of Simba
chips, which he utilised as a homemade condom, to rape her.
Appellant 3 again raped the
victim. Appellants 2 and 3 ran away
upon hearing a police siren and appellant 1 took her to a house where
he raped her three
times. During this horrific ordeal the
victim was begging them not to kill her. The probation officer
reported that
the victim informed her that she is enduring unbearable
physical pain emanating from her vagina. She has lost her
appetite
and experiences nightmares. She has lost her trust and
faith in people and especially men. Her sister confirmed that
the offences had affected her sister in that she stubbornly will not
go anywhere alone even if so instructed. A worse ordeal
cannot
be imagined and the circumstances of this rape justify a sentence of
life imprisonment.
[7]
In addressing the needs of society the Minimum Sentence Act was
promulgated to address specifically rape in this country.
A
court should thus not likely deviate from the minimum prescribed
sentence unless there are compelling and substantial circumstances.
Society urges the court to address these brutal crimes with a minimum
sentence. The imposition of life imprisonment as prescribed
would thus also address the needs of society; S
v
Malgas
2001 (1) SACR 469
(SCA)
at 478d-g.
[8]
The court must however also take cognisance of the personal
circumstances of the offenders and must deviate from the prescribed
minimum sentence if the sentences are disproportionate to the
appellants.
[9]
The court
a quo
took note of the fact that appellant 1 was 28 years old, had made
Grade 10 at school and had fathered two children. He was
unmarried and was unemployed at the time of the commission of the
offences.
[10]
Appellant 2 was 17 years and 11 months old at the time of the
commission of the offence and was 19 years old when sentencing
took
place. He was doing odd jobs prior to his arrest and had no
dependents. He had obtained Grade 11 at school.
He had a
health problem i.e. a respiratory problem.
However
the probation officer’s report confirmed that the appellant was
in good health. It further stated that he was
a first offender
and that he never knew his father and his mother had passed away.
His older sister was looking out for him.
The probation officer
recommended direct imprisonment.
[11]
Appellant number 3 was 20 years old at the time of sentencing.
He had obtained Grade 10 and was performing odd jobs prior
to his
detention. He suffered from headaches.
[12]
The court
a quo
found the following compelling and substantial
circumstances pertaining to appellants 1 and 3:
12.1
They had been in custody for 1 year and 2 months.
12.2
Liquor played a role.
12.3
That appellant 3 was a first offender.
12.4
That first appellant had two children.
[13]
As for appellant 2 the court in fact found it aggravating that the
appellant had made a condom from a Simba packet rendering
him very
knowledgeable about the consequences of his action. The court
also took cognisance as compelling and substantial
the fact that
liquor played a role and that he had also been in custody for 1 year
and 2 months. A further factor was that
the second appellant
was a first offender.
[14]
Appellants 1 and 3 in their reasons as to why their sentences should
not be increased set out the following facts:
14.1
They had already learnt from their incarceration;
14.2
They were misguided in their appeal by their fellow custodians;
14.3
They have had now accepted their convictions and sentences;
14.4
They are attending courses to make them better people;
14.5
The third appellant is now a priest and is preaching the word of God;
14.6
If their sentences were to be increased then they would not be able
to obtain employment due to their age and they would be
useless
citizens in not being able to provide for their families.
[15]
No reasons were forwarded as to why appellants 2’s sentence
should not be increased for the following reasons:
“
Not
because state did not mentioned him from the beginning, but because
he gave his intention that he is fine with the
findings of the court/trial court”
This
was of course incorrect as the state had indicated that all three the
appellants’ sentences should be increased and the
state had
also in their heads referred to why appellant number 2’s
sentence should be increased.
[16]
The court
a quo
was
correct that the imposition of life imprisonment for appellant 2
would be bad in law and unjust. However no reasons were
forwarded why there is the disparity between appellant number 2 and
appellant 3’s sentence. It must be noted that there
is
approximately one year’s age difference between appellant
number 2 and appellant number 3. In
S
v Giannoulis
1975 (4) SA 867
(A)
in which the court was concerned with
an appeal against sentence on the grounds of a disparity between the
sentence imposed upon
him and the sentence imposed upon a
co-offender, Holmes JA said the following at 873F-H:
“
1.
In general, sentence is a matter for the discretion of the trial
court. Disparity in the sentences imposed on participants in
an
offence (whether tried together or in separate courts) will not
necessarily warrant interference on appeal. Uniformity should
not be
elevated to a principle, at variance both with a flexible discretion
in the trial court and with the accepted limitation
of appellate
interference therewith.
2. Where,
however, there is a disturbing disparity in such sentences, and the
degrees of participation are more or less equal, and
there are not
personal factors warranting such disparity, appellant interference
with the sentence may, depending on the circumstances,
be warranted.
The ground of interference would be that the sentence is disturbingly
inappropriate.
3.
In ameliorating the offending sentence on appeal, the Court does not
necessarily equate the sentences: it does what it considers
appropriate in the circumstances.”
In
S v Monyane and Others
2008
(1) SACR 543
(SCA)
the court found that
a court of appeal would only interfere where the degree of disparity
between the sentence imposed by the trial
court and the sentence the
Appellate Court would have imposed was such that the interference was
competent and required.
[17]
In casu
I
am satisfied that the degree of disparity between what the Court of
Appeal would have imposed and what the trial court in fact
imposed is
such that interference is competent and required. I furthermore
find that pertaining to appellant 2 the disparity
between the
sentences of appellant 2 and appellant 3 is disturbingly
inappropriate.
[18]
In considering why the sentence should be increased the court takes
cognisance of the following factors:
18.1 No reasons have
been forwarded as to why the sentence of appellant 2 must not be
increased.
18.2
As far as the offences are concerned, both appellants 2 and 3 gained
the complainant’s trust by offering to run away
with her, only
to abuse her. Although appellant 3 raped the complainant twice
and appellant 2 raped the complainant only
once, this does not render
a 10 year disparity in sentence justified. In fact the actions
of the second appellant was gross
in utilising a Simba chips paper as
a homemade condom. In fact the court
a
quo
found that in doing so the second
appellant was knowledgeable and in was in fact trying to save his own
life with no dignity to
the complainant. There were thus more
or less equal degrees of participation of appellants 2 and 3.
[19]
As far as the personal circumstances of appellants 2 and 3:
both are young with only a year difference between the two.
Both were in custody for the same period and both were first
offenders. There are no personal circumstances warranting the
disparity of 10 years in sentences.
[20]
The court
a quo
did
not motivate why he only imposed 5 years imprisonment versus 15 years
on the third appellant. The magistrate was very
aware that the
second appellant could not be sentenced to life imprisonment, but
that is not a factor not to impose 15 years on
the same set of facts
with the same personal circumstances as that of appellant 3. I
am satisfied that 15 years imprisonment
would be just and
proportionate to appellant 2 in view of his age and prospects of
rehabilitation. This is furthermore so
because the four years
sentence was not ordered to run concurrently. The cumulative
effect thereof is that appellant 2 would
thus serve 19 years
imprisonment.
[21]
The question arises if appellant 3’s sentence must be
increased. The deviation from life imprisonment was indeed
for
flimsy reasons. Taking liquor is not a license to rape and is
not a factor to be taken as compelling and substantial.
The
mere fact that he was a first offender also did not on its own or
cumulatively with any other factor render the sentence of
life
imprisonment unjust. The age of the appellant and the fact that
he can be rehabilitated are however compelling and substantial
circumstances. The fact that the sentence on counts 1 and 2
were not ordered to run concurrently also has a cumulative effect.
I am satisfied that 19 years for the offences are just towards the
appellant.
[22]
As for appellant 1 he was a mature adult at the time of the
commission of the offences. He physically fought with the
complainant’s boyfriend to obtain control over the
complainant. His co-accused finished raping the complainant and
ran away due to a police siren. This did not bring him to his
senses, in fact he took her to another home and raped her there.
As the oldest of the three appellants he should have desisted with
this horrifying crime, but he persisted and raped her three
times.
There is nothing in the personal circumstances of the appellant that
renders life imprisonment unjust. The fact
that he had children
is most certainly not compelling and substantial. The fact that
he took liquor as set out above is not
a compelling and substantial
circumstance and the fact that he was an awaiting trial prisoner does
not cumulatively with the other
factors as set out above render life
imprisonment unjust. I accordingly am satisfied that the first
appellant’s sentence
must be increased to life imprisonment
with count 1’s sentence to run concurrently.
[23]
I accordingly propose the following order:
23.1
Appellant 1’s sentences are set aside and replaced with the
following:
“
1.
Count 1 – Four (4) years imprisonment to run concurrently with
the sentence on count 2.
2.
Count 2 – Life imprisonment.”
23.2
Appellant 2’s sentences are set aside and replaced with the
following:
“
1.
Count 1 – Four (4) years imprisonment.
2.
Count 2 – Fifteen (15) years imprisonment.
3.
The sentences are not to run concurrently.”
23.3 With regard to
appellant number 3 the sentences are not increased and the sentences
are confirmed as:
“
1.
Count 1 – Four (4) years imprisonment.
2.
Count 2 – Fifteen (15) years imprisonment.
3.
The sentences are not to run concurrently.”
__________________
S.
POTTERILL
JUDGE
OF THE HIGH COURT
I
agree
__________________
N.
JANSE VAN NIEUWENHUIZEN
JUDGE
OF THE HIGH COURT
CASE
NO: A469/13
HEARD
ON: 13 March 2015
FOR
THE APPELLANT: ADV. M.I. KOMAPE
INSTRUCTED
BY: Legal Aid Board
FOR
THE RESPONDENT: ADV. F.W. VAN DER MERWE
INSTRUCTED
BY: Director of Public Prosecutions
DATE
OF JUDGMENT: 17 March 2015