About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 533
|
|
Zulu and Another v S (A738/2014) [2015] ZAGPPHC 533 (26 May 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
I
N
THE
HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case
number: A738/2014
Date:
26/5/2015
DELETE
WHICHEVER IS NOT APPLICABLE
(1)
REPORTABLE: YES/
NO
(2)
OF INTEREST TO OTHE.R JUDGES: YES/
NO
(3)
REVISED
…
26/5/2015
……..…………..
DATE
SIGNATURE
In
the matter between:
MOSES
CHRISTOPHER ZULU
1st
APPELLANT
ANDRIES
LEKGAU
2
ND
APPELLANT
JOSEPH
MATHE
3
RD
APPELLANT
And
THE
STATE
JUDGMENT
PRETORIUS
J
,
[1]
The appellants are appealing only against sentence with the leave of
the court a
quo.
[2]
The appellants were convicted in the Regional Court, Benoni, on 1
April 2014. They were sentenced as follows:
Count
1, 2 and 3: Rape - Fifteen (15) years' imprisonment on each count.
The sentences on counts 2 and 3 were ordered to run concurrently
with
count 1 - Effective period of imprisonment of fifteen
(15)
years, with an order that the appellants have to serve a non
parole period of fifteen (15) years.
Count
4 and 5: Rape - Twenty (20) years' imprisonment on each count to run
concurrently and an order that the appellants were to
serve a
non-parole period of twenty (20) years' imprisonment, thus an
effective sentence of twenty (20) years.
Counts
6 and 7: Rape - Fifteen (15) years' imprisonment on each count.
Count
8: Housebreaking with the intent to rape - Ten (10) years'
imprisonment.
The
sentences on counts 7 and 8 were ordered to run concurrently with the
sentence on count 6. A non-parole period of fifteen (15)
years was
ordered on these counts as well.
[3]
In effect the period of imprisonment
is fifty (50) years and the
magistrate had ordered that the appellants had to serve the full 50
years without being considered for parole at all. The third
appellant
was convicted on conspiracy to commit the offences in counts 1 to 7
and found guilty as charged on count 8.
[4]
The appellants are appealing against sentence on the grounds that the
magistrate erred in fixing a non-parole period of fifty
(50) years'
and that the cumulative effect of fifty (50) years' imprisonment on
the individual sentences imposed is shockingly
harsh and
inappropriate.
[5]
The appellants were legally represented throughout their trial. The
applicability of the minimum sentence of imprisonment was
explained
to the appellants at the beginning of the trial.
[6]
The evidence was that on 24 November 2012 the first complainant, was
at her home at [………] with her husband
and
children. They were asleep but the lights were on as she had attended
to the baby crying during the night and thereafter left
the lights
on. She woke up from the sound of a breaking window and three men
entered the house through the window. She was scared
and covered
herself with a blanket when the first appellant dragged her from the
bed to the kitchen which was separated from the
room by a curtain.
The first appellant raped her on the kitchen table. Thereafter he
raped her daughter, the second complainant,
who was twelve (….)
years at the time. He raped her on the kitchen floor. Then the second
appellant raped the complainant
and thereafter he raped the second
complainant. The first appellant once more raped the first
complainant on the floor whilst she
was lying next to the second
complainant. Then the second appellant raped the first complainant
once again. The first complainant
had to perform oral sex on the
first and second appellants, whereafter the second appellant
raped her once more.
[7]
As the two appellants were raping her and her daughter the
third appellant was guarding her husband. He threatened
him
with a knife, whilst watching the rape by his two co-perpetrators. He
prevented her husband from coming to his wife's and daughter's
assistance. As he shouted for help the appellants fled.
[8]
Order:
Non-parole
p
eriod:
The
appellants were all sentenced to fifty
(50) years' imprisonment with no parole
to be
considered and granted at all.
[9]
Section 2768 of the Criminal Procedure Act, provides:
"Fixing
of
non-parole-period
(1)
(a)
If
a
court
sentences
a person
convicted
of
an
offence
to
imprisonment
for
a period
of
two years
or
longer,
the
court
may as
part of
the
sentence, fix a
period during which
the
person shall
not
be placed
on parole.
(b)
Such
period shall
be
referred to
as
the
non-parole-period, and may not exceed
two thirds of the term of imprisonment imposed
or
25 years,
whichever
is the shorter.
(2)
If
a
person
who
is
convicted of two or
more
offences is sentenced to
imprisonment and
the
court
directs
that
the sentences
of
imprisonment
shall
run
concurrently,
the
court shall,
subject
to
subsection (1)
(b),
fix
the
non-parole-period in respect
of the effective
period
of imprisonment."
[10]
In the present instance it is patently clear that the trial
court did not take the provisions of section 2768 into consideration.
[11]
In
S
v
Stander
2012(1)
SACR
537
(SCA)
at para
12 Snyders JA explained that although section 2768 grants the courts
the power to intrude on the executive's terrain, courts
should be
loath to exercise such power. Snyders JA concluded at para 13:
"This
short summary of the statutory procedure prescribed for the
consideration of a prisoner's release on parole illustrates
why the
Department, and not a sentencing court, is far better suited to make
decisions about the release of a prisoner on parole
and why it
remains desirable to respect the principle of the separation of
powers in this regard."
[12]
In
S v Siluale en Ander
1999(2) SACR
102
SCA,
Grosskopf JA held at p107 b-c:
"Die
Verhoorregter wou verder
klaarblyklik
verhoed
dat die verlening
van parool
en
moontlike
begenadiging
deur
die uitvoerende
gesag
enige
werklike
effek
op
die
appellante
se vonnisse sou
he.
Daardie
oorweging
kan egter nooit
die oplegging
van
'n onrealistiese
swaar
vonnis regverdig
nie.
'n
Hof
is
immers
nie
bevoeg
om
deur
middel
van 'n
ontoepaslike vonnis die toekenning
van
parool
te probeer neutraliseer
n
ie."
(Court's emphasis)
[13]
An order in terms of section 276B should only be made in exceptional
circumstances. There is no undisputed evidence that the
accused have
no chance of rehabilitation. It is clear from the record that the
magistrate did not inform the appellants that he
was contemplating to
impose a sentence with an order denying them parole on their
effective sentences.
[14]
The magistrate did not indicate that counsel for the appellants
should address him in regards to the non-parole order. There
was not
sufficient evidence before the magistrate to indicate that all three
appellants could not be rehabilitated. The court did
not set out that
there were exceptional circumstances which would justify the
imposition of such a harsh, non-parole order.
[15]
The sentences did not exceed twenty-five (25) years and therefor the
magistrate did not comply with the provisions of section
276B(1)(b)
of the Criminal Procedure Act.
[16]
Due to this error this court is entitled to interfere with the
sentence and to set the non-parole period aside.
[17]
The second ground of appeal is that the effective period of fifty
(50) years' imprisonment is shockingly harsh and inappropriate.
[18]
It is clear from the evidence that all eight counts of which the
appellants were convicted relate to the same incident. The
court
takes notice of the dictum in
S
v
Young
1977(1)(SA
602
(A)
at
610 E-H where Trollip JA held:
"Where multiple
counts are closely connected or similar in point of
time,
nature,
seriousness
or
otherwise,
it
is
sometimes
a
useful,
practical way of ensuring that the
punishment imposed is not
unnecessarily
duplicated
or its
cumulative
effect is not
too harsh on the
accused."
[19]
In
S v
Nkosi and Others 2003(1) SACR 91 (SCA)
at
para 9, Farlam JA found:
"Thus, under the
law
as
it presently stands, when what one may call
a
Methuselah sentence is imposed (ie
a
sentence in respect of
which the prisoner would require something approximating to the
longevity of
Methuselah if
it
is
to
be
served
in
full)
the prisoner
will
have no chance of being released
on the expiry of the
sentence
and
also
no
chance
of
being
released
on parole after
serving
one
half
of
the
sentence.
Such
a
sentence
will
amount
to
cruel,
inhuman
and
degrading
punishment
which is proscribed
by s
12(1)(e)
of
the
Constitution
of
the Republic
of
South Africa Act 108
of 1
996"
(Court's emphasis)
[20]
It seems as if the appellants in this instance are sacrificed on the
altar of deterrence, thereby receiving a sentence which
is
unjustifiably cruel and harsh.
[21]
In
S v
Dodo 2001(1)
SACR 594
(CC)
at para 38, Ackerman J found:
"To
attempt to
justify
any period of
penal
incarceration, let alone imprisonment
for
life
as
in
the present
case,
without
inquiring into
the
proportionality
between
the
offence
and
the period
of
imprisonment,
is to ignore, if not to deny, that which
lies at the very heart of
human dignity. Human beings
are not commodities to which a
price can
be
attached; they are creatures
with
inherent
and
infinite
worth; they ought to be treated
as
ends
in themselves,
never
merely
as
means
to an
end.
Where the length
of
a
sentence.
which
has been imposed because of its
general
deterrent
effect
on
others.
bears no
relation
to
the
gravity
of the offence (in
the sense defined in
para
37
above)
the offender is being used essentially as
a means to another end
and
the
offender's
dignity
a
ssailed.
So
too where the reformative
effect
of
the
punishment is predominant
and
the offender
sentenced
to
lengthy imprisonment, principally because
he
cannot
be
reformed
in a
shorter
period,
but
the length
of imprisonment
bears
no
relationship
to
what
the
committed
offence
merits.
Even in the absence of such features, mere
disproportionality between the offence and the period
of imprisonment would also tend to treat the offender
as a means to an
end, thereby denying
the offender's
h
umanity."
(Court's emphasis)
[22]
These principles, as set out in the authorities, should be considered
and applied when sentencing.
[23]
The personal circumstances of the appellants are that the first
appellant is […..] years old, unmarried, has a child
aged [….]
years, was a car-washer earning R300 per week and he obtained grade
5. He has a previous conviction for robbery
in 2002 and was sentenced
to fifteen (15) years' imprisonment. He was on parole when he
committed these crimes.
[24]
The second appellant is [……] years old, unmarried, has
a child and is unemployed with no formal schooling. His
career in
crime started in 1987 with previous convictions for rape and robbery
in 1989, and assault in 2000.
[25]
The third appellant is [….] years old, divorced, the father of
two children and was employed earning R350 per week.
He has previous
convictions dating back to 1987 when he was sentenced to a fine and
six cuts with a light cane. In 1990 he received
4 years' imprisonment
for housebreaking with intent to steal and theft and five years'
imprisonment for four counts of rape in
1993. All his previous
convictions are older than twenty years.
[26]
It is so that women and children are the most vulnerable members of
our violent society. Rape is prevalent in South Africa
and a scourge
which should be combatted in the interest of society. In this
instance the victims were asleep in their own beds,
in their own
homes, when they were violently attacked and raped by the first and
second appellants, whilst the third appellant
was watching and
guarding the helpless husband and father of the victims.
[27]
The seriousness of the appellants' deeds is exacerbated by them
raping both the mother and daughter more than once. The court
is
aware that society and the women in our society are clamouring for
the harsh treatment of these perpetrators.
[28]
However, the court must balance the crime, the perpetrator's
interest, society's interest and the victims' interest when
determining
a balanced sentence.
[29]
I have to agree that an effective sentence of fifty (50) years'
imprisonment is shockingly harsh and inappropriate when all
the
circumstances are taken into account.
[30]
The court has considered all the mitigating and aggravating
circumstances. However, a long period of imprisonment is
called
for if
all
the circumstances are considered.
[31]
I propose the following order:
1.
All the sentences imposed on the appellants are set aside;
2.
Counts 1, 2 and 3 are taken as one and the appellants are sentenced
to fifteen (15) years' imprisonment;
3.
Counts 4 and 5 are taken as one and the appellants are sentenced to
twenty (20) years' imprisonment;
4.
Counts 6 and 7 are taken as one and the appellants are sentenced to
twenty (20) years' imprisonment;
5.
Count 8: the appellants are sentenced to five (5) years'
imprisonment.
6.
It is ordered that ten (10) years' imprisonment on counts 1, 2 and 3
will run concurrently with
the sentence on counts 4 and 5.
7.
It is ordered that the sentences on counts 6, 7 and 8 will run
concurrently with the sentences
imposed on counts 4 and 5.
8.
An effective sentence thus of twenty-five (25) years' imprisonment.
9.
The date of sentence is ante-dated to 1 April 2014.
______________
Judge
C Pretorius
I
agree.
______________
Judge
M M Jansen
Case
number
: A738/2014
Appeal
heard on
: 18 May 2015
For
the Applicant
: Adv. Van AS
Instructed by
: LEGAL AID BOARD
For
the Respondent :
Adv. Van der Westhuizen
Instructed
by :
NATIONAL PROSECUTING AUTHORITY
Date
of Judgment
: 26 May 2015