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[2015] ZAGPPHC 1023
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Nkosi v S (A123/2015) [2015] ZAGPPHC 1023 (19 August 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION.
PRETORIA)
CASE NO: A123/2015
DATE: 19 AUGUST 2015
IN THE MATTER BETWEEN
LUCAS SABELO
NKOSI
.................................................................................................
APPELLANT
AND
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
MAKUME. J
[1] The appellant was convicted on 24
January 2014 in the regional court sitting in Brakpan on the
following charges:
1.1 one count of rape;
1.2 one count of possession of a
dangerous weapon.
[2] The appellant was sentenced to
fifteen years imprisonment for rape and six months imprisonment for
possession of a dangerous
weapon. He was granted leave to appeal
against sentence on petition by this court. The trial court did not
order that the sentences
run concurrently.
[3] The grounds of appeal against
sentence as I understand them from a reading of the appellant's heads
of argument can be summarised
as follows:
3.1 It is argued that the appellant was
not warned that in the event of being convicted on the count of rape
the minimum sentence
will be applicable.
3.2 That the trial court erred in
imposing a sentence higher than the prescribed minimum sentence of
ten years by sentencing the
appellant to fifteen years without giving
reasons.
3.3 That the trial court erred in
over-emphasising the seriousness of the offence and under-emphasised
the personal circumstances
of the appellant.
3.4 That the lengthy sentence of
fifteen years is shockingly harsh and induces a sense of shock.
3.5 That the trial court failed to
investigate the presence or absence of substantial and compelling
circumstances.
3.6 That the trial court failed to take
into account the period of two years and four months that the
appellant spent in custody
awaiting trial.
3.7 That the trial court erred in not
making an order that the sentence of six months in count 2 run
concurrently with the sentence
in count 1.
The facts
[4] The appellant stalked the
complainant over a period of time until on 22 October 2011 when he
broke into her room at about midnight
and raped her.
[5] The appellant told the complainant
before he raped her that today is her day and that he is going to
kill her because it is
long that he has been telling her that he
loves her. The appellant pointed a knife at her, undressed her and
raped her. When he
had finished he showed the complainant the window
in her room through which he gained entry. The appellant left at
about 04:15
after threatening the complainant with death should she
report the incident.
[6] The following morning at about
05:30 the complainant left her home with the intention to go and
report the incident at Brakpan
police station. She noticed the
appellant at the stop-sign near her place. She became scared
and instead walked to the station where
she boarded a train and went to her work. She reported the incident
to a security man at
Dunswart station.
[7] The appellant kept on phoning her.
She told the police about this and a trap was set up and on 25
October 2011, the appellant
was arrested whilst at the gate of the
premises where the complainant lives.
[8] In his defence the appellant told
the court that the complainant was his girlfriend and that they had
consensual sex. He denied
having raped the complainant.
The sentence
[9] I do not deem it necessary in this
judgment to deal with each and every ground of appeal raised suffice
it to say that at the
nub of the grounds of appeal are the following:
(a) was the trial court justified in
imposing a sentence of fifteen years instead of ten years which is
the prescribed minimum sentence
for a first offender on rape;
(b) should the trial court have not
taken into consideration the period spent by the appellant in custody
whilst awaiting trial;
(c) should the trial court not have
ordered that the sentence on count 2 run concurrently with the
sentence on count 1.
[10] It is trite law that punishment is
pre-eminently a matter for the discretion of the trial court. In this
matter the learned
court a quo found correctly so that the appellant
had shown no remorse and concluded that the fact that he had spent
time in custody
awaiting trial does not constitute substantial and
compelling circumstances.
[11] This aspect w as dealt with by the
Supreme Court of Appeal in the matter of S v Radebe 2013(2) SACR 165
at page 171 where Lewis
JA says the following at paragraph [18]:
"It is so that the appellants
spent two years and ten months in detention before they were
convicted. That must of course be
taken into account. But in my view
this factor does not outweigh the aggravating circumstance attendant
on the crime committed.
As pointed out by counsel for the state
detention for some of that period was the result of the appellants
insisting on private
legal representation although they did not have
the ability to pay for it and by the changing of their versions
during the course
of the trial such that a trial-within-a-trial had
to be held. As the regional magistrate said they had only themselves
to blame
for the lengthy period under which the trial was conducted.
"
[12] The same can be said about this
matter not only does the appellant have previous convictions
involving violence but it is also
correct that there are aggravating
circumstances attendant. The complainant was stalked for days by a
man whose advances she had
rejected. She was then surprised in the
middle of the night in the quite of her home where she thought she
was safe. She was threatened
with a knife and the appellant warned
her that if she should report the incident he will kill her. He
continued harassing and telephoning
her after the ordeal. When she
was giving evidence she broke down in the witness-box which indicates
that she was still traumatised
a year after the incident. The learned
Lewis JA in the Radebe matter found that the period spent in
detention awaiting trial was
not on its own substantial and
compelling circumstances.
[13] The next aspect is whether the
trial court was justified in sentencing the appellant to fifteen
years instead of the prescribed
minimum of ten years. Our courts have
in the past reminded that there is no prohibition in passing of
sentence for a period more
than the prescribed minimum because as the
Act says it is a minimum sentence and it remains the starting point.
[14] Pillay AJ in S v Nkunkume 2014(2)
SACR 166 (SCA) at page 177 pargraph [17] describes rape in the
following terms:
"[17] Rape must rank as the worst
invasive and dehumanising violation of human rights. It is an
intrusion of the most private
rights of a human being, in particular
a woman, and any such breach is a violation of a person's dignity
which is one of the pillars
of our Constitution. There does not seem
to he any significant decline in the incidence of rape since the
publication of the statistics
above. The same can be said of robbery.
No matter how they are viewed society has called on more than one
occasion for the courts
to deal with offenders of such crimes sternly
and severely. "
[15] In the present matter the
appellant breached the sanctity of the complainant's home. It must
have been a terrifying ordeal
for her to be woken up and be surprised
by a person brushing her thighs in the middle of the night. She broke
down whilst testifying.
[16] The only other aspect remaining is
whether the trial court should have made the sentence of six months
run concurrently with
the fifteen years sentence. I hold the view
that he should have done so.
[17] In the result I make the following
order:
(a) The appeal is dismissed.
(b) The sentence of six months on count
2 shall run concurrently with the sentence of fifteen years on count
1.
Dated on this day of August 2015.
MAKUME M. A.
(JUDGE OF THE HIGH COURT)
I agree
TUCHTEN N. B.
(JUDGE OF THE HIGH COURT)
HEARD ON: 30 JULY 2015
FOR THE APPELLANT: ADV M M P MASETE
(Ms)
INSTRUCTED BY: LEGAL AID, PRETORIA
TEL (012)
401-9200 OR 0728057144
FOR THE RESPONDENT: ADV J CRONJE
INSTRUCTED BY: OFFICE OF DEPUTY
DIRECTOR OF
PUBLIC PROSECUTIONS TEL 012 351-6731