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[2015] ZAFSHC 151
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Saliwe v S (A49/2015) [2015] ZAFSHC 151 (13 August 2015)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Appeal
number: A49/2015
In
the appeal between:
NDOYISILE
ISAAC SALIWE
Appellant
and
THE
STATE
Respondent
CORAM:
MOCUMIE,
J
et
FISCHER, AJ
JUDGMENT:
FISCHER,
AJ
HEARD
ON:
27
JULY 2015
DELIVERED
ON:
13
AUGUST 2015
[1]
The appellant Ndoysile Isaac Saliwe and two others were charged with
the contravention of the provisions of section 3 read with
section 1,
56(1), 57, 58, 59, 60 and 61 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, Act 32 of 2007,
as well as the
provisions of
sections 92(2)
,
94
and
256
and
261
of the
Criminal
Procedure Act, 51 of 1977
read with the provisions of
sections
51(1)(a)
and Schedule II of the Criminal Law Amendment Act, 105 of
1997 as amended. The allegations levelled against them were
that
on 26 January 2013 and in Phahameng in the district of
Bultfontein and within the regional division of the Free State
Province,
the appellant and his two co-accused unlawfully and
intentionally raped the complainant Dinah Olifant, a 43 year old
woman.
[2]
On 16 October 2014 the appellant was convicted as charged in the
regional court. On 17 October 2014 and in the regional
court
for the Free State held at Odendaalsrus he was sentenced to life
imprisonment in terms of the provisions of section 51(1)
of Act 105
of 1997, as amended. The grounds advanced by the appellant in
terms of his automatic right of appeal against the
sentence were that
the sentence was shockingly inappropriate for the reasons that: (1)
factors in mitigation of sentence were not
properly adjudicated, (2)
the court showed no mercy, (3) the court failed to consider the fact
that the appellant was forced by
his co-accused to rape the
complainant and (4) the court failed to take into account the fact
that the appellant had already spent
22 months in prison prior to
conviction and sentence.
[3]
To summarise, the appellant submitted on appeal that, having regard
to the particular circumstances of the case the court
a
quo
erred by making a finding that there were not compelling and
substantial circumstances justifying a departure from the minimum
sentence of life imprisonment.
[4]
It is necessary for purposes of considering the appeal to re-visit
not only the approach of the court in respect of the sentence
imposed
but as importantly, the relevant facts which may be summarised as
follows:
4.1
At
approximately 0h30 and pursuant to a domestic problem involving her
husband, the complainant left home and proceeded to the local
police
station. At the door of the police station she was approached
by one of appellant’s co-accused with a knife
and
pulled/dragged to where the appellant and the second co-accused were
sitting
“
met
hulle koppe gebuk”.
4.2
The
appellant’s two co-accused then proceeded in turn to have
sexual intercourse with the complainant in various positions
whereafter the complainant raped her in a similar manner. The
three perpetrators thereafter simply walked away. The
complainant herself proceeded to a tavern where she asked the person
in charge to accompany her to the police state where the incident
was
reported.
4.3
According
to the appellant he was in the company of his two co-accused drinking
alcohol at a local tavern sometime after 23h00.
They then
decided to go to a second tavern and on their way there one of
appellant’s co-accused saw the complainant some
distance away,
told his companions to stay put and ran in her direction stating that
he was going to get money from her.
4.4
The
appellant and the second co-accused overheard the first co-accused
asking the complainant for money near some trees in the immediate
vicinity of the police station whereupon this first co-accused
returned to the complainant and the second co-accused.
4.5
The
first co-accused then once again returned to the complainant and when
the appellant and the second co-accused approached noticed
that he
had undressed the complainant and was in the process of having sexual
intercourse with her.
4.6
When
he had finished having intercourse with the complainant, the
appellant suggested they immediately leave the scene whereupon
the
first co-accused who had just raped the complainant warned the
appellant and the second co-accused that if they were not going
to
rape the complainant as well
“
he
was going to phone his friends from Welkom to come and stab us”
.
4.7
The
second co-accused then proceeded to rape the complainant whereafter
the appellant testified that
“
I
was heavily under the influence of liquor and frightened and then I
found myself doing that kind of thing, raping her.”
4.8 The
appellant asked the complainant for forgiveness for raping her
stating that
“
I
did not have the intention to do something like that and I also did
not plan to do something like that”
and
that he believed that he had been pressurised by his co-accused and
adversely effected by consumption of alcohol.
[5]
Save to record that the first co-accused absconded whereafter a
warrant of arrest was issued, and that the second co-accused
was
acquitted for lack of evidence, it is unnecessary to deal any further
with the involvement of the appellant’s co-accused.
In
sentencing the appellant to life imprisonment, the court
a
quo
considered, in mitigation of sentence, the fact that the appellant
had been in prison for approximately 22 months awaiting trial,
that
he had been under the influence of alcohol as well as his friends and
that he was a first offender. In aggravation of
sentence the
court
a
quo
found that the complainant was a defenceless woman who had been raped
by three men and that it must have been a traumatic experience
which
would remain with her for the rest of her life.
[6]
It has repeatedly been stated that the appropriate sentence imposed
on an accused such as the appellant must be balanced between
the
interests of society, the offence and personal circumstances of the
accused,
in
casu
the appellant (See
S
v Banda and Others
1991 (2) SA (BGD) at 355A.
[7]
On appeal a court can interfere with the sentence imposed by a lower
court if it is clear that in all the circumstances such
lower court
did not exercise its discretion properly and judicially and that
where a misdirection had taken place that the lower
court did not
exercise its discretion at all, alternatively exercised it improperly
and/or unreasonably (See
S
v Rabie
1975 (4) SA 855
(A) and
S
v Pieters
1987 (3) SA 717
(A).
[8]
The evidence led in mitigation of sentence relating to the personal
circumstances of the appellant were the following: (1) he
was 24
years old, (2) he was unmarried and had no children, (3) he had
completed grade 10 at school, (4) he was gainfully employed
at the
time of the incident and his subsequent arrest, (5) whilst his mother
was still alive he had no idea as to the whereabouts
of his father,
(6) he had asked the complainant for forgiveness for what he had
done, (7) he asked the court to have mercy.
[9]
The court
a
quo
,
after considering the personal circumstances of the appellant as well
as those factors which it regarded as aggravating, found
no
substantial and compelling circumstances present and imposed the
prescribed minimum sentence of life imprisonment.
[10]
The Constitutional Court in
S
v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC) at para
[40]
confirmed that the
“
determinative
test”
approach
employed in
S
v Malgas
2001 (1) SACR 469
(SCA) regarding when a prescribed sentence may be
departed from is the correct approach to be followed as per
S
v Malgas
supra
at para [25]:
“
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.”
[11]
Nugent JA in
S
v Vilakazi
2009 (1) SACR 552
(SCA) at 560 confirmed with reference to both the
Malgas
and
Dodo
matters above that:
“
It
is clear from the terms in which the test was framed in
Malgas
and endorsed in
Dodo
that it is incumbent upon a court in every case, before it imposes a
prescribed 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.
[12]
The court
a
quo
correctly found in accordance with the
Criminal Law (Sexual Offences
and Related Matters) Amendment Act, 32 of 2007
and more specifically
section 51(3)(aA)
that an apparent lack of physical injury to the
complainant cannot and will not constitute substantial and compelling
circumstances
justifying the imposition of a lesser sentence.
[13]
I will accept that this court in assessing whether or not the
prescribed minimum sentence was appropriate, is not entitled
to
resort to vague and unsubstantiated speculation and conjecture in an
attempt to impose a lesser sentence which would comply
with this
court’s subjective notion of fairness (See
S
v Kwanape
2014 (1) SACR 405
(SCA) at para [15].
[14]
In
casu
and upon a careful reading of the record, it does however appear that
the court
a
quo
failed to have appropriate regard to the appellant’s personal
circumstances and more specifically the fact that he was a
relative
youth, had asked the complainant for forgiveness and had spent the
last 22 months in prison awaiting trial. The
court chose rather
to rely on the view that the complainant had been severely
traumatised and would carry the scars of the unfortunate
incident
with her for the rest of her life, notwithstanding the fact that
there was no evidence on record to support this inference.
[15]
A sentence of life imprisonment is currently the gravest of sentences
that can be imposed on an individual by a court of law
in South
Africa and this for even more severe crimes such as murder. I
am of the view that there are a number of factors
that weigh heavily
in the appellant’s favour such as the fact that he is only 24
years of age, was gainfully employed, a
first offender, had been
materially influenced by his co-accused as well as the consumption of
alcohol and that he had in conclusion
seen the error of his ways in
seeking forgiveness from the complainant. In my opinion these
factors strongly suggest a very
real prospect of rehabilitation.
The trial court clearly ignored this reality and chose instead to
focus on the nature of
the crime as well as the complainant’s
personal circumstances. The Supreme Court of Appeal has found
that such circumstances
are deemed to be substantial and compelling
and if discarded by the trial court would be deemed to be unjust
entitling a court
of appeal to interfere and impose a different
sentence. (See
S
v Nkomo
2007 (2) SACR 198
(SCA) at para [13], [14] and [24]).
[16]
In the circumstances I am of the opinion that the very real prospect
of rehabilitation of the appellant together with the fact
that he is
a first offender who realised the error of his ways must, in the
particular circumstances of the case, be regarded as
substantial and
compelling circumstances justifying a lesser sentence than life
imprisonment.
[17]
In order to give substance to the prospect of rehabilitation, I am of
the view that imprisonment for a period of 20 years would
be more
appropriate.
[18]
The appeal against sentence accordingly succeeds and the following
order is made:
The
sentence of life imprisonment is set aside and there is substituted
for it a sentence of imprisonment for 20 years.
Insofar
it may be necessary to do, the sentence so imposed is antedated to 17
October 2014 being the date upon which the sentence
of life
imprisonment was imposed.
______________
P.
FISCHER, AJ
I
concur.
_______________
B.C.
MOCUMIE, J
On
behalf of the appellant: Mr J. D. Reyneke
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. M. Strauss
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
/eb