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[2015] ZAGPPHC 251
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Mali v S (A34/2014) [2015] ZAGPPHC 251 (19 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No. A34/2014
Date
Heard: 09 March 2015
Date
of judgment: 19 March 2015
In
the matter between:
ZENGISA
MALI
.......................................................................................................................
Appellant
and
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
A.M.L.
Phatudi J:
[1]
The appellant was convicted of attempted robbery
with aggravating circumstances and rape at Benoni regional court on
14 June 2013.
On 26 July 2013 the appellant was sentenced to 5
years on the attempted robbery with aggravating circumstances and
life imprisonment
on rape. The appellant appeals with leave of the
trial court against the conviction and sentence.
[2]
At the commencement of the hearing, Mr Moeng for the appellant was
initially of the view that the evidence of the complainant
in counts
1 and 2, of which the appellant was acquitted of, was of relevance to
the findings of the guilty verdict in respect of
which is the subject
of this appeal. He, after our engagement thereto, conceded that such
evidence was irrelevant vis-à-vis
the grounds of appeal the
appellant relies on. To summarise the said grounds, the appellant
challenges the complainant’s
evidence in as far as it relates
to his identification on the basis that it was not satisfactory. In
short, he argues that it is
a mistaken identity.
[3]
The complainant, a 15 year old girl at the time, testified that in
the afternoon of the 28 March 2012 at about 15h00, she was
on her way
home from school clad in school uniform when she noticed a man
wearing a black and white golf shirt and grey pants following
her.
The man had a greyish cap on and was pushing a small dark blue
bicycle with two tennis balls hanging on the front wheel. The
said
man, who was in the company of one of her school mate walked pass
her. After a while, the said man returned approaching her
from the
front. He immediately grabbed her by her neck and pointed her with a
knife. She immediately recalled an incident where
one of the girls
was killed. She asked him not to kill her.
[4]
The appellant ordered her to behave herself and to comply with the
orders given. She complied by handing over her school bag.
The
appellant emptied the bag in search for the cell phone but to no
avail. He caused her to undress. He then forced her to kneel
down
where he penetrated her with his penis vaginally from behind and
raped her. The uncontested J88 form which was accepted as
evidence
and handed up indicate that the Labia minora was
‘
swollen
and red internal with tear all along the Right side from vagina to
urethra’.
[5]
The complainant identified the appellant by the scar below the eye
and the cheekbones on his face. During cross examination
she was
confronted with the appellant’s other scar that was
indisputably visible than the scar on the left, lower right eye.
Impressively to the trial court she stated that the appellant was
wearing a cap that is why she could not have seen the scar
[1]
.
[6]
It is trite law that
‘
a
court of appeal will be hesitant to interfere with the factual
findings and evaluation of the evidence by a trial court, and will
only interfere where the trial court materially misdirected itself in
so far as its factually and credibility findings are concerned.’
[2]
[7]
The trial court was alive to the facts and was in a position to
observe the complainant when she was testifying. The trial court
even
reprimanded the defence counsel during cross examination in trying to
confuse the complainant or introduce that which the
complainant never
said.
[8]
The appellant conceded that the bicycle depicted on the photo is his.
The trial court described it as unique. The trial court
took judicial
notice of the area. The trial court went further to say that
‘
[i]t
cannot take [the appellant] 10 or 15 minutes at the most to engage
[the incline], so he must have been home around 15:00…
which
would have given him ample time to commit these crimes.’
[9]
In my evaluation of the evidence tendered, I find no misdirection on
the part of the trial court’s factual and credibility
findings
that led to its pronunciation of the guilty verdict. There is nothing
at my disposal to warrant interference with the
conviction.
[10]
With regards to sentence, Holmes JA remarked as follows in S v De
Jager
[3]
‘
It
would not appear to be sufficiently recognized that a Court of Appeal
does not have a general discretion to ameliorate the sentences
of
trial Courts. The matter is governed by principle. It is the trial
Court which has the discretion, and a Court of Appeal cannot
interfere unless the discretion was not judicially exercised, that is
to say unless the sentence is vitiated by irregularity or
misdirection or is so severe that no reasonable Court could have
imposed it. In this latter regard an accepted test is whether
the
sentence induces a sense of shock that is to say if there is a
striking disparity between the sentence past and that which
the Court
of Appeal would have imposed. It should therefore be recognized that
Appellate jurisdiction to interfere with punishment
is not
discretionary, but, on the contrary, is very limited’.
[11]
This Court therefore needs to determine as to whether the trial court
exercised his discretion judicially when sentencing the
appellant.
‘
It
is also self-evident that sentence must always be individualized, for
punishment must always fit the crime, the criminal and
the
circumstances of the case. It is equally important to remind
ourselves that sentencing should always be considered and passed
dispassionately, objectively and upon a careful consideration of all
the relevant factors. Public sentiment cannot be ignored,
but it can
never be permitted to displace the careful judgment and fine
balancing that are involved in arriving at the appropriate
sentence.
Courts must therefore always strive to arrive at a sentence which is
just and fair to both the victim and the perpetrator,
has regard to
the nature of the crime and takes account of the interests of
society. Sentencing involves a very high degree of
responsibility
which should be carried out with equanimity.’
[4]
[12]
This Court has considered the trial court’s judgment on
sentence. Even though it may be argued that the trial court failed
in
considering and passing sentence in a dispassionate manner, it is
clear that the trial court did consider the personal circumstances
of
the appellant, the crime and the interests of society vis-à-vis
the provision of section 51(1) of the Criminal Law Amendment
Act 105
of 1997(CLAA). It would appear that the trial court might have
over-emphasized the crime and the interests of society,
to the
expense of the person of the appellant, which clearly resonates in
the severity of the sentence.
[13]
The appellant is a first offender, a young man of 22 years of age at
the time of the commission of the offence with one infant
child of 17
months. He was gainfully employed. In aggravation of the sentence,
the state’s counsel submitted that the appellant
showed no
remorse. She referred us in this regard to S v Matyityi
[5]
where the Supreme Court of Appeal stated that
‘
[t]here
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 him 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.’
[14]
In S v Malan
[6]
it was held that
personal circumstances of an accused can be a “substantial and
compelling circumstance warranting the imposition
of a lesser
sentence”. In S v Vilakazi
[7]
the court considered the principle set out in S v Malgas and
following S v Dodo. The court held at paragraph [15] that
‘
it
is clear from the terms in which the test as framed in Malgas and
endorsed in Dodo that it is incumbent upon a court in every
case,
before it imposes a prescribed minimum 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…”
[15]
Flemming DJP (as he then was) in S v Martin
[8]
stated that “life sentence imposed upon a lively man of 30
years imposes a much longer and harsher sentence…”I
have
no doubt in my mind that an effective life imprisonment imposed on
count 4(rape) on the present lively 25 year old appellant
is too
severe and induces a sense of shock under the circumstances. I am of
the opinion that his youthful age dictates that he
is a candidate for
rehabilitation and that renders the sentence disproportionate to the
offence for which the appellant is convicted.
In my view, the
mitigating factors are at par with the aggravating. The
interest of the communities and the duty bestowed
on this court
warrant a harsher sentence.
[16]
The communities have been riddled with this crime of rape and robbery
of cell phones with aggravating circumstances, at times
leading to
the causation of victims’ death. The Supreme Court of
Appeal echoed in numerous cases that “courts
are expected to
dispense justice.” It is further echoed that “this
kind of brutality” of robbing cell phones
and rape is
regrettably to regularly a part of life in South Africa. The public
is eying the type of sentences this court is imposing
critically.
This court is expected to send out a clear message that behaviour
such as this one will meet the full force and
effect of the law.
I
have no qualm with the sentence imposed for robbery (count3)
I,
in the result, make the following order.
Order:
1.
The appeal against the conviction is
dismissed.
2.
The appeal against the sentence is
partially upheld.
3.
The sentence imposed on count 3 is
confirmed.
4.
The sentence imposed on count 4 is
set aside and replaced with the following;
“
Count
4: The appellant is sentenced to 20 (twenty) years imprisonment.
The sentence on count 3 is to run concurrently with
the sentence
imposed on count 4, with an effective sentence of 20 (twenty) years
imprisonment.
5.
The sentence is antedated to 26 July
2013.
A.M.L.
Phatudi
Judge
of the High Court
I
agree.
D.S.
Molefe
Judge
of the High Court
On
behalf of the Appellant: Legal Aid South Africa
2
nd
Floor
FNB
Building
Church
Square
Mr
S. Moeng
On
behalf of the Respondent: The Director of Public Prosecutions
Pretoria
Adv.
M.J. Makgwatha
[1]
Page
144 of the record
[2]
R
v Dhlumayo and Another 1948(2) SA 677 (A)
[3]
1965(2)SA616A
at page 629
[4]
S
v SMM
2013 (2) SACR 292
SCA
[5]
2011
(1) SACR 40
SCA
[6]
2004(1)
SACR 246 (T),
[7]
2009(1)
SACR 553 (SCA)
[8]
1996(1)
SACR (W)