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[2015] ZAFSHC 222
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Dlamini v S (A125/2015) [2015] ZAFSHC 222 (12 November 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Appeal number: A125/2015
DATE: 12 NOVEMBER 2015
In the matter between:
LEHLOHONOLO ERICK
DLAMINI
...................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
CORAM:RAMPAI, J et MOHALE, AJ
HEARD ON: 5 OCTOBER 2015
JUDGMENT BY:RAMPAI, J
DELIVERED ON: 12 NOVEMBER 2015
[1] This were appeal proceedings. The
appellant was found guilty in the regional court. He was then
sentenced to life imprisonment
in respect of one of the charges. He
was aggrieved by the conviction and sentence. He came to us on appeal
by virtue of his automatic
right to appeal in terms of section 309 of
the Criminal Procedure Act 51/1977. The respondent opposed the
appeal on all grounds.
[2] An incident occurred at Kroonstad
on Monday the 3 August 2009. The victim subsequently reported the
incident to the police.
The investigation of the incident led to the
arrest of three men. The appellant was one of them. They were held
in custody throughout
the entire duration of their trial.
[3] The appellant, accused number 3 in
the court a quo, was charged with two others. Itumeleng Helepi, Neo
Mohlomi and Lehlohonolo
Dlamini were charged as accused number 1,
accused number 2 then accused number 3 respectively. The appellant’s
co-accused
were not before us.
[4] The first charge was robbery with
aggravating circumstances as defined in sec 1 Act No 51/1977. The
prosecution alleged that
the three accused persons unlawfully and
intentionally attacked and assaulted Ms Mokgantsi Petunia Mokhomo (24
years of age) and
violently took her brown leather jacket worth
R350.00 and her Nokia 1100 cellphone worth R300.00. The prosecution
added that before,
during and after the crime the accused were armed
with dangerous weapons.
[5] The second charge was that the
accused persons, without the consent of the aforesaid lady,
wrongfully and intentionally committed
acts of sexual penetration
with her. The prosecution alleged further that by so doing they
contravened section 3 of the Sexual
Offenses and Related Matters Act
32/2007 read with other provisions thereof as specified in the
written charge sheet; sec 261
of the Criminal Procedure Act 51/1977;
sec 51 of the Criminal Law Amendment Act 105/1977 as well as section
52 thereof.
[6] The aforesaid crimes were committed
at Kroonstad on Monday the 3 August 2009 according to the charge
sheet. The undisputed
evidence later amplified the charge sheet and
showed that the scene of the crime was in the vicinity of the
mortuary at Seeisoville
shopping centre.
[7] The trial commenced in the
Kroonstad regional court on 1 September 2010. Mr. Jonker presided,
Mr Lesapo prosecuted and Mr Mahanke
appeared for accused number 1,
and Mr Campher for accused number 2 and accused number 3. The
accused persons were called upon
to plead to the charges. The three
of them pleaded not guilty in respect of both charges. There was no
explanation given by accused
number 1 in respect of both charges.
The explanation given by accused number 2 was that he and the victim
had consensual sexual
intercourse on 3 August 2009. The appellant
did not explain his plea in respect of both charges.
[8] Notwithstanding his plea, the
appellant was convicted as charged on 28 February 2011. On the same
day he was sentenced to 10
years imprisonment in respect of the first
charge, robbery with aggravating circumstance and to life
imprisonment in respect of
the second charge, rape.
[9] On the 3 March 2011 the appellant
filed his notice of appeal. In terms of sec 309(1)(a) Act No.
51/1977 he had an automatic
right to appeal against his conviction
and sentence.
[10] As regards conviction, the grounds
of appeal were: That the trial court add in finding that the
identity of the appellant
was proved; that the trial court
misdirected itself by overlooking “exi c”, in other
words, the statement made by the
investigating officer; that the
trial court misdirected itself by not taking into account the fact
that the appellant was not linked
to the incident by any forensic
evidence and that the trial court erred in finding that there were no
substantial and compelling
circumstances which justified deviation
from the prescribed minimum sentence.
[11] The version of the prosecution was
narrated by three witnesses, namely:
Ms Mokgantsi Petunia Mokhomo, the
victim;
Mr Lephoko Paul Rabanye, aka Sono, the
victim’s boyfriend;
Inspector Molahleng Simon Makhethi, the
investigating officer.
[12] The case for accused number 1 was
closed. Then accused number 2 and the appellant terminated the
mandate of their legal representative,
Mr Campher. The trial was
then postponed to 3 December 2010 to enable them to appoint another
legal representative. The trial
was then postponed on a few
occasions afterwards for various reasons. On 28 February 2011 Mr
Campher resurfaced on behalf of accused
number 2 only. Mr Kamati
appeared on the scene on behalf of accused number 3 on the same day.
The victim and the investigating
officer were recalled at his
request. The court afforded him an opportunity to cross examine the
two prosecution witnesses. His
cross examination revolved around the
statement of the investigating officer which was handed up and
labelled “exi c”.
The witnesses were also again
re-examined by Mr Lesapo. The case for accused number 3, the
appellant, was then closed. The appellant
did not testify and he
called no witness to give evidence on his behalf.
[13] The question in the appeal was
whether the evidence established beyond reasonable doubt, the
identity of the appellant as one
of the perpetrators involved in the
criminal enterprise.
[14] On the one hand Mr. Kambi, counsel
for the appellant, contended that the victim was not in a good
position to reliably identify
the culprits because it was dark and
because she was fearful. Accordingly he submitted that the court a
quo misdirected itself
by finding that the evidence proved beyond
reasonable doubt that the appellant was involved in the commission of
the aforesaid
offences. On the strength of that and other alleged
misdirections, Mr. Kambi urged us to uphold the appeal.
[15] On the other hand Mr. Mashamaite,
counsel for the respondent, sharply differed. He submitted that the
trial court did not
err in finding that the appellant was correctly
identified by the complainant. Counsel contended that there was
sufficient evidence
which indicated that the identification of the
appellant by the victim was not only credible but also reliable to
secure his conviction.
Accordingly counsel urged us to dismiss the
appeal.
[16] Sitting as we were in an appellate
mode, we had to remind ourselves that our appellate powers to
interfere with the factual
findings of the trial court are limited;
that we have to bear in mind the advantages which the trial court had
of seeing, hearing
and appraising witnesses and that an appellate
court will be entitled to interfere with the evaluation of oral
testimony by the
trial court only in exceptional cases. S v Francis
1991 (2) SACR 198
(A) at 204 c-e.
[17] The correct approach to a criminal
trial was articulated as follows in S v Chabalala
2003 (1) SACR 134
(SCA) at 139 i-j.
“The correct approach to
evaluating evidence is to weigh up all the elements which point
towards the guilt of the accused
against all those which are
indicative of his innocence, taking proper account of inherent
strengths and weaknesses, probabilities
and improbabilities on both
sides and, having done so, to decide whether the balance weighs so
heavily in favour of the State as
to exclude any reasonable doubt
about the accused's guilt.”
[18] It is trite that the
uncorroborated evidence of a single, competent credible and reliable
witness is sufficient to secure a
conviction provided the evidence of
such a witness is clear and satisfactory in all material respects –
R v Mokoena
1932 OPD 79
at 80 per De Villiers JP. (See also sec 208
Act No 51-1977)
[19] The evidence of a single witness
cannot be summarily repudiated merely because, in certain respect, it
is blemished by some
unfavourable features. R v Abdoordam
1954 (3) SA
163
(N) at 165 per Broome JP.
“The Court is entitled to convict
on the evidence of a single witness if it is satisfied beyond
reasonable doubt that such
evidence is true. The Court may be
satisfied that a witness is speaking the truth notwithstanding that
he is in some respects an
unsatisfactory witness.”
[20] In S v Sauls & Others
1981 (3)
SA 172
(A) at 180 E-G Diemont JA refined the single witness rule.
“There is no rule of thumb test
or formula to apply when it comes to a consideration of the
credibility of the single witness.
The trial Judge will weigh his
evidence, will consider its merits and demerits and, having done so,
will decide whether, despite
the fact that there are shortcomings or
defects or contradictions in the testimony, he is satisfied that the
truth has been told.
The cautionary rule referred to in R v Mokoena
1932 OPD 79
at 80 may be a guide to a right decision but it does not
mean that the appeal must succeed if any criticism, however slender,
of
the witnesses' evidence were well founded".”
[21] In S v Mthethwa
1972 (3) SA 766
at
167 A-B Holmes JA laid down two cornerstones of evidence of
identification.
“It is not enough for the
identifying witness to be honest: the reliability of his observation
must also be tested. This depends
on various factors, such as
lighting, visibility, and eyesight; the proximity of the witness; his
opportunity for observation,
both as to time and situation; the
extent of his prior knowledge of the accused; the mobility of the
scene; corroboration; suggestibility;
the accused's face, voice,
build, gait, and dress; the result of identification parades, if any;
and, of course, the evidence by
or on behalf of the accused. The list
is not exhaustive.”
[22] As far as the credibility aspect
of the complainant as an identifying witness was concerned, it was
never suggested let alone
contended that she was not an honest
witness. Therefore, it must be accepted that she was a truthful
witness who gave a credible
account of the criminal incident which
precipitated these criminal proceedings.
[23] As far as the reliability aspect
of the complainant as an identifying witness was concerned, it was
contended on behalf of
the appellant that she did not have a good
opportunity for making proper observation both as to time and
situation. Therefore,
the reliability of her observation had to be
tested. The underlying purpose for the testing exercise is to
determine whether the
appellant was identified beyond reasonable
doubt as one of the perpetrators. Since human observation is
fallible, the evidence
of the complainant as an identifying witness
has to be treated with caution. Mr. Kambi submitted that the court a
quo did not
thoroughly or cautiously interrogate the circumstances in
which the complainant found herself at the time she made the
observation.
[24] In the first place the
unfavourable features of the complainant’s observations were
the following:
24.1 The incident took place at night
shortly after 01:00. It is ordinarily dark during night-time;
24.2 The complainant was walking in a
street without the usual burning street lamps;
24.3 The street was deserted shortly
before the incident;
24.4 The complainant was surprised not
by one but three men. It follows, therefore, that her attention was
divided. She could not
concentrate on one person all the time;
24.5 The three men were all strangers
to her. Therefore, she had no prior knowledge of any of them;
24.6 They were armed with 2 knives and
threatened to kill her. The attack took her by complete surprise.
She was very frightened.
She feared for her life.
24.7 The attack was launched in stealth
and from behind. She was then pulled from the street into the toilet
of an disused and
dark building. There only accused 1 raped her.
24.8 She was then taken outside to a
secluded and dark spot between two disused buildings. There all the
three men raped her.
It was so dark that she could not see their
faces well.
[25] In the second place, the
favourable features of the complainant’s observation were as
follows:
25.1 Although there were no street
lamps at the spot where the attack initially took place, there was a
high mast lamp, in common
parlace called Apollo light, which
illuminated the spot very well;
25.2 There were outside lamps affixed
to the morgue which also illuminated the same spot;
25.3 The complainant had the
opportunity of seeing the unmasked faces of the culprits before she
was taken to the eventual scene
where she was actually raped inside
and outside the building;
25.4 She walked with the three
culprits from the scene of the crime at Seeisoville to Malefu’s
Shebeen at Marabastad. The
streets where they walked were brightly
illuminated by the high mast lamp.
25.5 The rape was an accomplished fact
by then. The complainant had already clinched a deal with accused 1
which secured her safety.
She “freely” walked with them
to Malefu Shebeen. She was no longer as scared as she was before the
rape. The walk
to Malefu’s Shebeen gave her a further
opportunity of observing the appellant and his accomplices.
[26] Indeed the complainant could not
tell; as to who immediately followed accused number 1 in raping her
because it was dark on
the second scene where she was raped.
However, she testified that the second rapists had wrapped his penis
with a plastic and
that the third rapist did not use a condom.
Seeing that accused number 2 was incriminated by strong forensic
evidence and accused
number 3 not, it was highly probable that the
second rapist was exonerated by forensic evidence because he was the
rapist who had
his penis plastically wrapped up before he sexually
penetrated the complainant. It can be reasonably deduced, therefore,
that
the second rapist was not accused number 2. Now the spotlight
obviously falls on the companion of accused number 1 and accused
number 2. Who their companion was still remains to be ascertained.
The criticism that the complainant could not tell who followed
accused number 1 in the perking order of rape, though well founded,
did not, therefore, carry much weight.
[27] Indeed the complainant could not
tell as to who threatened to kill her if she yelled. The evidence of
the complainant was
that a1 the first rapist, was busy scanning the
surroundings and the second rapist, the culprit with a
plastic-wrapped penis, was
busy penetrating her at the time their
companion threatened to kill her. Here the spotlight falls on the
third rapist, whom we
have already identified as the third rapist in
the gang perking order. The third rapist was clearly accused number
2. The criticism
was well founded but it was cosmetic in my view.
[28] The description of the clothes a
suspect was wearing becomes very important in a case where a
suspect(s) is arrested shortly
after the incident on the strength of
the description of the clothes given to the police soon after the
incident. The situation
was different here. The appellant was not
arrested on the strength of the clothes he was wearing. Moreover he
was not arrested
on the same day shortly after the incident like
accused number 1. Therefore, the critique was neither here nor
there.
[29] Indeed the complainant could not
tell as to what facial or other physical features peculiar to the
appellant enabled her to
recognize him as one of the perpetrators.
Her evidence was that where she was confronted she saw the
appellant’s face well
but where she was raped she could not.
However, she was not pertinently asked to describe the appellant’s
face. It has
been held, and I respectfully subscribe to that view,
that the mere assertion by an identifying witness, however honest, is
never
sufficient to eradicate the danger of possible mistaken
identification based on fallible human observation. Something more
is,
therefore, required in this case.
[30] The high watermark of the single
identifying witness in this instance was her apparent confidence and
firm belief that she
saw the appellant’s face very well. She
expressed such belief in court for the very first time. Precisely
what she saw
in his face she did not spell out. Her firm belief
subsequently expressed on 1 September 2010 was in sharp contrast to
the apparently
doubtful belief she originally expressed on 4 August
2009 outside court. Such doubtful belief was attributed to her by
the investigating
officer. W/O Makhethi recorded her as follows:
“Complainant did not know the two
and informed me he would not be able to point them out.”
[31] At the trial the complainant and
the investigating officer tried very hard to qualify and to moderate
the ordinary and natural
meaning of the words chosen by the
investigating officer. In my view they both failed. Whatever they
said or tried to say did
not substantially change the plain meaning
of the words used in the passage as quoted above. Way back then, on
4 August 2009 being
a day after the incident, the complainant did not
have the firm belief that she could ever identify accused number 1’s
companions
or fellow perpetrators. This explains why there was no
police identification parade held after the arrest of the appellant.
The
record shows that the appellant was arrested a day after the
incident. Now, if she has seen the appellants face very well as she
testified and if she told the investigating officer so the
identification parade would probably have been held. The fact that
it was not militates against her testimony and that of the
investigating officer. I am, therefore, persuaded that she was
correctly
recorded in para 2 exi c.
[32] In comparing the favourable
features with the unfavourable features of the complainant’s
observation, I am not persuaded
that the evidence given by the
complainant as an identifying witness was reliable. Her apparent
confidence and firm belief were
not sufficient safeguards to exclude
the possibility of an honest but mistaken identification of the
appellant – Magadla
v State (80/2011) ZASCA 195 (16.11.20110.
[33] None of the goods that were stolen
from the complainant were recovered from the appellant. Therefore no
real evidence was
produced or exhibited which objectively connected
him to the crimes committed against the complainant. S v Charzen &
Another
[2006] 2 ALL SA 371
(SCA) para [11]. Before conviction can
follow, the law requires certainty beyond reasonable doubt that he
was involved.
[34] Notwithstanding lack of such real
evidence coupled with the unfavourable features of the observation by
the identifying witness,
there was something more. The following
exchange between the appellant’s first trial lawyer, Mr Campher
and the complainant
must be borne in mind.
• “Ms Mokhomo: … Ja,
nadat hulle my nou klaar verkrag het en ons nou weg van die geboue af
beweeg ek kon die gesigte
sien.
• Mr Campher: Dame, ek gaan sommer
by beskuldigde 3 begin. Ek stel aan u hy sal kom getuig hy was glad
nie daar nie. Hy weet
nie waarvan u praat nie. …
• Ms Mokhomo: Hy was daar.
• Mr Campher: Hy sal kom getuig hy
was by sy huis. Hy het gelê en slap in sy bed. …
• Ms Mokhomo: Hy was daar.”
It emerged from that exchange that the
appellant’s defence was an alibi.
[35] During the cross examination of
accused 1 by Mr. Lesapo, the following evidence was unearthed:
35.1 He answered that he was with
accused number 3, the appellant, at Stocks Tavern where the
complainant also was during the night
of the incident;
35.2 He, by implication, answered that
he knew the appellant better than he knew accused number 2;
35.3 He answered that he took the
police to the appellant’s home and pointed him out as one of
his two companions during the
night of the incident;
35.4 He answered that he called upon
the appellant to point out accused 2 to the police; (Apparently he
did not know accused number
2’s place of residence or his exact
whereabouts at the time).
35.5 He answered that the three of them
were together at Peter’s Tavern earlier before they went to
Stock’s Tavern during
the night of the incident;
35.6 He answered that the three of them
did not shift from Pieter’s Tavern to Stock’s Tavern at
the same time.
[36] It must be borne in mind that
accused number 1 was in the company of the complainant at the time he
was apprehended by members
of the public handed to the complainants
boyfriend and ultimately arrested on the scene by the police. That
heavily implicated
man was a friend to the appellant. When the
police questioned him about his 2 companions, the appellant was the
very first person
he fingered out. Why would he protect the real
culprit at the expense of the innocent man, his friend for that
matter, who was
peacefully asleep in his bed?
[37] The evidence of accused number 1
also indicated that the ties of friendship were stronger between
accused number 2 and the
appellant than between accused number 2 and
accused number 1 himself. Accused number 1 and accused number 2, the
men who were
heavily implicated in this case, had a common friend in
the person of the appellant. The saying that birds of the same
feather
flock together seems to be applicable to them.
[38] The evidence of accused number 1
was never challenged by the appellant through cross examination
despite its devastating adverse
impact on his alibi defence. This is
the first thing. Moreover, the appellant did not challenge the
evidence of accused number
1 by testifying. Such incriminating
evidence called for a decisive response by an innocent man to set the
record straight. But
appellant did not rise up to meet the
challenge. This is the second thing. Failure to testify has certain
adverse implications
– S v Letsoko & Others
1964 (4) SA 768
(AD) at 776B and S v Boesak
[2000] ZASCA 112
;
2000 (1) SACR 633
(SCA) at 646 d-e. The
appellant did not, in the presence of the police, repudiate accused
number 1’s allegation that they
were together during the night
of the incident. He did not instantly say that he was fast asleep at
all times relevant to the
incident. Instead he tacitly endorsed the
allegations made by accused number 1 by taking the police to accused
number 2’s
home.
[39] All those factors strengthened the
contention that the untested alibi defence of the appellant was
false. All those pieces
of circumstantial evidence materially
corroborated the evidence of the complainant that she was raped by 3
men, accused number
1 and his 2 companions. The appellant and
accused number 2 were positively identified by an insider, as his 2
companions at all
times material to the incident.
[40] Where, as in this instance, one
accused person, gives evidence in his own defence which has the
effect of incriminating his
co-accused such evidence is admissible as
against a co-accused thereby incriminated provided such evidence does
not amount to a
confession - See R v Rorke
1915 AD 145
and R v
Zawels & Another
1937 AD 342.
Also see sec 196 and sec 219
Criminal Procedure Act 51/1977.
[41] Mr Helepi, in other words accused
number 1, was an accomplice. That being the case, his evidence had
to be treated with caution.
I have cautiously approached his
evidence in relation to the appellant. Along the way I highlighted
certain factors that materially
reduced the dangers inherently
present in the evidence of an accomplice. To reject or to ignore the
testimony of this particular
accomplice would offend the principle
that the exercise of caution should not be allowed to displace common
sense. S v Sauls &
Others
1981 (3) SA 172
(AD).
[42] For the reasons given above I am
persuaded that the appellant was correctly convicted. The finding by
the trial magistrate
that the appellant was involved together with
his highly implicated 2 co-accused, is one which I, on appeal, cannot
hold to be
wrong. As I see it, the trial magistrate committed no
material and thus appealable misdirection as regards the substantive
merits.
In the absence of an appealable misdirection no appellate
interference is justified. S v Francis
1991 (1) SACR 198
(AD) at 204
c-e. I would, therefore, dismiss the appeal as regards conviction.
[43] Now I turn to the sentence
component of the appeal. The appellant was sentenced to 10 years
imprisonment in respect of the
first charge and life imprisonment in
respect of the second charge. As regards the latter, the court a quo
found that no substantial
and compelling circumstances existed to
warrant deviation from the prescribe minimum sentence of life
imprisonment, a punishment
ordinarily ordained for the situation
where, as in this instance, a victim, often a woman, is raped by two
or more co-perpetrators,
often men – see Part I Schedule 2 to
Act No 105/1997.
[44] In every appeal against sentence,
the judges hearing the appeal should be guided by certain appellate
principles. The first
is that punishment of an offender is primarily
a matter for the discretion of the trial court. The second is that
such judges
should be careful not to erode such discretion. The
third is that the sentence should only be altered, on appeal, if the
discretion
has not been judiciously and properly exercised – S
v Rabie
1975 (4) SA 855
(A) at per Holmes JA.
[45] In S v Malgas
2001 (1) SACR 469
(SCA) para 12 Marais JA aptly sounded a word of caution.
“A court exercising appellate
jurisdiction cannot, in the absence of material misdirection by the
trial court, approach the
question of sentence as if it were the
trial court and then substitute the sentence arrived at by it simply
because it prefers
it. To do so would be to usurp the sentencing
discretion of the trial court. Where material misdirection by the
trial court vitiates
its exercise of that discretion, an appellate
Court is of course entitled to consider the question of sentence
afresh.”
[46] The court fulfils a very important
function in applying the law in our society. It has a duty to see to
it that orderliness
is maintained. Society thrives in a state of
orderliness. It abhors anarchy and chaos. The court operates in a
society to eradicate
lawlessness. Its decisions have an impact on
individuals in the ordinary circumstances of daily living. It covers
all possible
grounds. This is no space it does not include. By its
decisions, including the imposition of sentence, it promotes respect
for
the law. Its sentencing decisions must reflect the seriousness
and gravity of the offence. It must strive to provide just
punishment
for offenders whose personal circumstances must always be
taken into account. The feeling of society and its needs for
protection
from offenders must be considered. So must the
maintenance of peace and tranquillity in our land. S v Banda &
Others
1991 (2) SA 352
(BGD) per Friedman J.
[47] In sentencing the appellant the
trial court was alive to his personal circumstances. The following
mitigating factors were
taken into account:
47.1 He was 24 years of age at the time
he committed the offences and 26 years of age at the time he was
sentenced.
47.2 He was arrested on 4 August 2009.
He was incarcerated ever since then.
47.3 He attended school up to grade 12.
47.4 He was on the verge of starting a
new employment at Sentec Fencing at Vereniging where he was due to
earn a livelihood of R2000
per month at the time of his arrest.
47.5 He was single.
47.6 He had no children.
[48] In sentencing the appellant the
court a quo also took into account the following aggravating factors:
48.1 The nature and seriousness of the
crimes;
48.2 The prevalence of rape in the
region;
48.3 The appellant was a members of
criminal gang of 3 rapists;
48.4 The complainant was raped four
times;
48.5 The 2 members of the gang were
armed with knives with which they threatened her;
48.6 The appellant was remorseless;
48.7 The interest of society dictated
that woman be protected from rapists S v Chapman 1997 (2) SACR (SCA)
3 at 5 B-E.
[49] After considering the mitigating
factors vis-à-vis the aggravating factors, the court a quo
came to the conclusion that
no substantial and compelling
circumstances existed to justify departure from the prescribed
minimum sentence of life imprisonment
in respect of the rape charge.
Mr Kambi submitted that the sentence of life imprisonment was
disproportionate to the offence but
Mr Mashamaite disagreed.
[50] The repulsive misdeed termed rape
ranks among the most prevalent crimes in the country as a whole. The
upsurge of rape by
gangs is also a matter of great concern. The
empherical study done has revealed that the right of a woman to give
or withhold
consent to sexual intercourse with a man is one of the
most frequently violated human rights in our beloved country. It has
also
been lamentably shown that of the notoriously many who rape only
few get caught and jailed.
[51] About the danger of that situation
a judge once remarked:
“There is considerable risk in
those circumstances that excessive punishment will be heaped on the
relatively few who are
convicted in retribution for the crimes of
those who escape or in the despairing hope that it will arrest the
scourge. But the
Constitutional Court reminded us in S v Dodo that
punishment must always be proportionate to the deserts of the
particular offender
- no less but also no more - for all human beings
'ought to be treated as ends in themselves, never merely as means to
an end”
S v Vilakazi
2009 (1) SACR 552
(SCA)
para 3 per Nugent JA.
[52] It was incumbent upon the trial
court, before it imposed the prescribed minimum sentence of life
imprisonment, to consider
all the peculiar circumstances of this
particular case in order to determine whether the prescribed minimum
sentence would indeed
be proportionate to the crime committed. The
prescribe minimum sentence of life imprisonment should not be assumed
“a priori”
to be proportionate to the crime. The victim,
24 years of age, was raped more than once, 4 times to be precise, by
the appellant
acting not alone but with his 2 accomplices. Those
were crucial facts of the case which ordinarily attracted the
ultimate sentence
of life imprisonment.
[53] In a rape case of this notorious
shade those objective hallmarks of the crime surge to the fore in
determining the proper sentence.
The mere fact that the complainant
was sexually penetrated by the appellant acting collaboratively
together with 2 accomplices
is considered by the legislature to
warrant the severest form of punishment permissible in our criminal
law where a sentence of
10 years imprisonment would ordinarily have
been the prescribed minimum sentence had the appellant acted alone
since he penetrated
her once.
[54] It has to be borne in mind that a
trial court is not compelled to impose a sentence that is
disproportionate to the particular
crime of rape. If the prescribed
minimum sentence is mechanically imposed as a norm an injustice may
be perpetrated by the resultant
disproportionate sentence imposed.
See Vilakazi, supra, para 21 per Nugent JA.
“Custodial sentences are not
merely numbers. And familiarity with the sentence of life
imprisonment must never blunt one
to the fact that its consequences
are profound.”
[55] The complainant sustained no
bodily injury. Although the appellant and his accomplices, accused
number 1 and accused number
2 were armed with knives, none of them
actually stabbed the complainant. In this case there was no
extraneous violence of any
kind used by the appellant or any of his
accomplices to harm the complainant which was why no physically
injuries were caused.
See Vilakazi supra, para 55. The court a quo
underplayed the significance of that mitigating factor.
“Sy is aangerand. Soos wat die
verdediging tereg opgemerk het is daar nie noemenswaardige beserings
op die J.88 nie. Ek
dink nie ons moet die voordeel vir julle gee
nie.”
[56] In my view the regional court
materially erred. The apparent lack of serious and permanent
physical injuries was a material
consideration. It indicated no
excessive violence was used in order to break the victim’s
resistance.
See: S v Nkawu
2009 (2) SACR 402
(ECG). S v Mabitse
2012 (2) SACR 380
(FB). Mokoena (A323/2010)
[2012] ZAFSHC 12
(9 February 2012). S v SMM
2013 (2) SACR 292
(SCA)
S v Mosia
2012 (2) SACR 537
(FB) para
20-22 examplies extremely violent and callously brutal acts of rape.
In S v Matyityi
2011 (1) SACR 40
(SCA) Ponnan JA described the
circumstances of the rape as breathtakingly and brazenly brutal. In
casu there was no such brutal
horror.
[57] As regards trauma, there was very
little upon which the adverse emotional impact of the rape upon the
complainant could be
sensibly measured. I understand that the
emotional response that rape might evoke differs from victim to
victim. A trial court
must realize that emotional damage that
accompanies a rape incident might be extensive even if such adverse
impact does not immediately
and overtly manifest itself.
“But while a court must inform
itself sufficiently to be alive to the range of possibilities that
present themselves in such
cases ultimately it must assess the
particular individual that is before it and not a statistical
sample.”
See: Vilakazi supra, para 56 per Nugent
JA. The levels of emotional damage were very high in S v Mosia supra
and S v Matyityi,
supra
[58] To reasonably assess possible
emotional harm done, it was important to have the complainant
properly profiled and individualized.
The emotional impact of rape
on a rape victim is a relevant and significant factor to be taken
into account in the adjudicative
process of determining an
appropriate punishment for a rape offender. The record of the trial
proceeding showed that no attempt
was made to elicit any evidence
relative to the emotional impact of the crime on the complainant. It
would seem that no attempt
was made to seek and obtain a victim
impact report. Such a report might have cast some light on the
question of emotional impact
of the crime on the complainant.
[59] In casu, all we heard was that
after the rape she walked from the scene of the crime to Malefu’s
Shebeen with the 3 rapists;
that she returned to the scene of the
crime with accused number 1; that they met 4 strangers in the
vicinity of the scene; that
she yelled for help when she saw the 4
strangers and that they 4 rescued her and that they called her
boyfriend who found her
on the scene of the crime. There was
virtually no evidence canvassed relative to her emotional state when
she met her boyfriend
or her rescuers. At the trial she was not asked
about the emotional impact of the rape on her for the past few months
before she
testified. All the same we have to accept that the
complainant was, in one way or the other, adversely affected by the
sexual
assault and that she was emotionally traumatised. More than
that the evidence revealed nothing specific. Proof of the adverse
impact of crime, aggravates sentence. But there was no proof of
emotional damage in this instance. Therefore the appellant deserved
credit for such a material consideration.
[60] As regards incarceration, the
appellant again received no credit from the trial court. The
appellant was incarcerated for
almost 19 months, from 4 August 2009
to 28 February 2011.
“Die feit dat u in hegtenis
aangehou is tot nou, is maar deel van die proses.”
So said the trial magistrate.
[61] In Vilakazi, supra, para 60 Nugent
JA, writing for the unanimous court, said that the offender’s
presentencing period
of incarceration was a consideration that must
be taken into account. About that he went on to say:
“At the time he was sentenced he
had accordingly been imprisoned for just over two years. While good
reason might exist for
denying bail to a person who is charged with a
serious crime it seems to me that if he or she is not promptly
brought to trial
it would be most unjust if the period of
imprisonment while awaiting trial is not then brought to account in
any custodial sentence
that is imposed”
The view that an offender be given
double credit for the period of incarceration was finally repudiated
and the debate put to rest
in Radebe v S (726/12) [2013 ZASCA31 (27
March 2013) para 14 but the ordinary length of such period remains a
cumulatively relevant
factor and not an insignificant factor in the
deviation equation.
[62] As regards his clean criminal
record, once again the appellant got no joy. The appellant was a
first offender. He had reached
the age of 24 without any brushes
with the law. He had educationally progressed up to grade 12. He
was about to start with a
relatively stable job at the time he was
arrested. There was nothing in his personal circumstances which is
suspiciously indicative
of an inherently lawless character. It was
significant for the court a quo to consider whether the appellant
could be expected
to offend again. His remorselessness was not in
itsself an absolute indication that, given a chance, he would offend
again. That,
in my view, was a material consideration. No one can
accurately foretell but I venture to say that the evidence disclosed
nothing
to suggest that the appellant is likely to do it again unless
he is permanently removed from society.
[63] The evidence indicated that the
appellant and his accomplices prowled the streets and taverns.
Before they proceeded to rape
the victim they were at Peter’s
Tavern where they consumed some intoxicating beverages. From there
they went to Stock’s
Tavern. They continued to drink even
there. Again they left, probably when the saw the complainant
venturing out alone into the
street. Once again they prowled the
streets. They ambushed the complainant and raped her. After the
rape, they were on the move
again. They walked to Malefu’s
Shebeen. They still wanted to drink further but they found the place
closed. We have to
accept, therefore, that alcohol played a role in
the commission of the offence. The trial magistrate accepted this as
a fact.
Excessive consumption of alcoholic drinks adversely impairs
a drinker’s judgment. So it must have affected the appellant
to some greater or lesser extent.
[64] The court a quo, after dealing
with the mitigating factors and the aggravating factors, came to the
following conclusion:
“Menere, wat wesenlike en
dwingende omstandighede betref, moet die hof eintlik vir u sê
dat daar nie voor die hof sodanige
is nie. Die voorskrif is dat daar
nie ligtelik van minimum vonnisse afgewyk moet word nie.”
The legislative prescription must be
carefully applied.
[65] Whether the prescribed minimum
sentence is indeed proportionate to be imposed, is a question to be
determined upon a painstaking
consideration of all the peculiar
circumstances of a particular case. It cannot be fleetingly done.
The cardinal guiding principles
are that a sentencing court must
approach the matter conscious of the fact that the supreme lawmaker
has ordained the prescribe
minimum sentence as the sentence that
should ordinarily be imposed in the absence of weighty consideration.
That is the one principle.
The other principle is that if the
sentencing court is satisfied that the peculiar circumstances of a
particular case render the
prescribed minimum sentence unjust, it is
entitled to impose a lesser sentence. Malgas, supra
[66] It is indeed so that, the first
principle dictates that the sentencing courts should not readily
depart, for flimsy reasons,
from the prescribed minimum sentence
ordained as an ordinarily appropriate punishment. In this instance,
the sentencing courts
said the following before it imposed the
prescribe minimum sentence in connection with the charge of rape:
“Op aanklag 2 het die hof geen
keuse as om uitvoering aand die wet te gee nie en word u elkeen
gevonnis tot LEWENSLANGE/…”
[67] The impression created was that
the court a quo approached the prescribed minimum sentence from an
incorrect angle that the
prescribed minimum sentence of life had to
be imposed as a matter of course. The prescribed minimum sentence of
life imprisonment
is the harshest sentence a court can impose on an
offender. It is the ultimate punishment in our criminal law. It is
impermissible
to impose it as the norm. The prescribed minimum
sentence is not a standardized rigid norm that must always be
inflexibly imposed
and that must be rarely deviated from only as an
exception. A properly thorough enquiry in terms of sec 51(3) Act No
105/1997
would somehow indicate whether the ordained sentence or
whether a different response was justified. The sentencing court
always
has that choice dictated by the peculiar circumstances of a
particular case. To say that the court has no choice boiled down to
some kind of neglect to exercise the sentencing discretion
judiciously and constituted a material misdirection S v Rabie, supra.
[68] When the peculiar circumstances of
this particular case are carefully viewed as a whole, the only
material feature that emerges
above the rest as having aggravated
what is inherently a serious crime, was the fact that the complainant
was raped by three men.
To impose the ultimate sentence on the
appellant only on the basis that the statutory formalities were
proven would be tantamount
to mechanical sentencing as the norm.
Such a rigid approach would inevitably yield disproportionate
outcome, would erode the discretion
of the sentencing in court and
would give rise to unjust retributive punishment of offenders.
[69] I am satisfied that the peculiar
circumstances of this particular case required a sentencing response
different from the sentence
of life imprisonment. To the extent that
the trial court found otherwise, it materially erred in my respectful
view. As I see
it, the aggravating factors did not eclipse the
mitigating factors. I have earlier pointed out that the appellant
was not given
credit in respect of some important mitigating factors.
The sentence of life imprisonment imposed on the appellant was
exceedingly
retributive and disturbingly disproportionate given the
peculiar circumstances of this particular case as a whole. The
material
misdirections call for an appellate interference. I
consider that a substantial sentence of 18 years imprisonment would
not just
deterrently bring home to the appellant and other potential
rapists the gravity of the crime he committed. Moreover, such
sentence
would also exact sufficient retribution for his crime. It
seems to me to be excessive and enormously disproportionate, given
the
peculiar circumstance of this particular case to make him pay for
the crime with the rest of his life. The circumstances of this
case
dictate that the punishment to be imposed on the appellant should be
blended with a measure of mercy.
[70] Accordingly I make the following
order:
70.1 The appeal against the conviction
fails and the conviction is confirmed;
70.2 The appeal against the sentence
succeeds. The sentence of life imprisonment imposed on the appellant
is set aside and it is
substituted with the one below;
70.3 The appellant, accused number 3 in
the court a quo, is sentenced to 18 years imprisonment from which 19
months are to be deducted
when calculating the date upon which the
fresh sentence is to expire;
70.4 The sentence must be deemed to
have been imposed on 28 February 2011;
70.5 The appeal fails in toto as
regards the first charge of robbery with aggravating circumstances.
M.H. RAMPAI, J
I concur
B.I. MOHALE, AJ
On behalf of appellant: Attorney S.S
Kambi
Instructed by: Bloemfontein Justice
Centre
Bloemfontein
On behalf of respondent: Adv. K.G.
Mashamaite
Instructed by: Director of Public
Prosecutions
Bloemfontein