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[2015] ZAKZPHC 19
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Hargreaves v S (AR669/13) [2015] ZAKZPHC 19 (12 February 2015)

IN
THE KWAZULU NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
CASE
NO: AR669/13
DATE:
12 FEBRUARY 2015
Reportable
In
the matter between:
ERNEST
JOHN
HARGREAVES
............................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
Delivered
on 12 February 2015
NDLOVU
J
Introduction
[1]
The appellant, a 36 year-old man, was convicted by the Durban
regional court on two counts of rape and one count of attempted

murder. In sentencing the appellant, on 4 May 2011, the learned
regional magistrate took all three counts as one for the purpose
of
sentence and imposed a sentence of life imprisonment. With the leave
of the court
a quo
, the appellant now appeals to this Court
against the sentence only. The court
a quo
declined leave to
appeal against the convictions. The appeal was opposed by the State.
[2]
In respect of the rape charges, the State alleged that the appellant
contravened section 3 read with the relevant provisions
of the
Criminal law (Sexual Offences and Related Matters) Amendment Act,
2007
[1]
and further read with
section 51 of the Criminal Law Amendment Act, 1997 (the 1997 Act)
[2]
,
in that on or about 31 January 2008 and at Amanzimtoti in Durban, he
unlawfully and intentionally committed an act of sexual penetration

with the complainant without her consent, “
by
inserting a 750 ml bottle into her genital organ”
(count
1) and “
by
inserting his genital organ into her anus”
(count 2). On the attempted murder charge (count 3) it was alleged
that the appellant unlawfully and intentionally assaulted the

complainant “
by
strangling her with his hands and a neck tie, assaulting her with his
hands and fists and banging her head against a door and
forcing her
out of a 10
th
floor window, with intent to kill her”.
The appellant was legally represented at the trial and he pleaded not
guilty to all the charges.
The issues on
appeal
[3]
The issues in this appeal, on which the appellant relied as its
grounds in challenging the sentence imposed by the court
a quo
,
are the following:
3.1
Whether the court
a quo
, being a regional court, was empowered
by law to impose the sentence of life imprisonment for attempted
murder under any circumstances.
3.2
Whether the court
a quo
erred in confining itself only to
those issues raised during the address in mitigation of sentence by
the erstwhile defence counsel
and failing to take into account a
number of further mitigating factors that were evident from the trial
record.
Overview of
proceedings in the court
a quo
[4]
The facts and circumstances of this case, in light of the evidence in
the court
a quo
, can be summarised as follows. The complainant
and the appellant were involved in a romantic relationship for some
unspecified
period of time. They had started dating each other since
time the appellant was still staying at his sister’s place in
Wentworth,
before he moved to his own apartment in Amanzimtoti.
According to the complainant, on 31 January 2008, the appellant
picked her
up from her place of residence (not specified) and they
proceeded to his apartment in Amanzimtoti. Realising the room was
untidy
she started cleaning it up. A short while later she noticed
the appellant seated on the floor and smoking something which she did

not know what it was. As she put it, she saw some “
white
cloud”
emitting from what the appellant was smoking. The
appellant had only his shorts on. She knew the appellant smoked
cigarettes, but
it was not ordinary cigarettes which he was smoking
on that day. She had never seen the appellant smoke anything else
other than
cigarettes. Frightened by the experience, the complainant
asked the appellant what he was doing. In response, he petulantly
retorted:
“
What do you think I am doing, what does it look
like?”
Thereupon, the complainant requested the appellant
to take her back home as she did not like what she was seeing then.
At that
stage, according to the complainant, the appellant “
snapped”
and he said to her: “
You see, my wife thought she was clever
but I showed her something”.
The complainant said she was
then even more surprised and shocked because the appellant had
previously told her that he was not
married.
[5]
The complainant proceeded and testified of how the appellant had then
become aggressive and violent towards her. He ordered
her to take off
her clothes. He advanced to her. By then he had taken off his shorts
and was naked. It was not possible for her
to run out of the house
because the appellant had locked the door when they arrived. He
ripped her clothes off, including her panties
and left her completely
naked. He threw her on the bed and she landed on her back. The
appellant then got on top of her and pressed
on his arms with his
knees. When she tried to scream he picked up her blue top or sweater
and shoved part of it into her mouth,
trying to stop her from
screaming. Then he strapped a neck tie around her neck. He pulled the
tie from the front and she could
barely breathe. The appellant kept
on demanding her to tell him “
the truth about what she was
doing behind his back”
and about whom it was that she was
going out with behind his back. The complainant said she could not
understand what the appellant
meant because the truth was that there
was no other man that she was dating at the time.
[6]
The appellant said when she realised that she could hardly breathe
due to the suffocation, she nodded her head indicating to
the
appellant that she was then prepared to talk, even though she knew
there was actually nothing for her to say in that regard.
Once she
had made that signal, the appellant removed the gagging stuff from
her mouth and threw her against the built-in wardrobe.
He also banged
her head against the door. She was continuously screaming. He made
her sit down on the floor against the wardrobe
and he sat in front of
her. He had his handgun placed next to himself in such a way that she
would see it. Next to the firearm
was the substance that he was
smoking, which the complainant assumed was drugs. The appellant asked
the complainant, once again,
what it was that she was doing behind
his back. The complainant denied ever cheating on him.
[7]
At that stage the appellant became aggressive and violent towards the
complainant, as she kept denying that she was cheating
on him. She
said, at that moment, “
when I looked at him I just saw
evil.”
They were still both naked. She then saw a 750ml
beer bottle in the appellant’s hands and she did not know where
he got it
from. The appellant said he was going to show her what must
be done to a bitch. With her legs apart, the appellant inserted the

beer bottle into her vagina and pushed it up. The complainant
continued screaming and begging him to stop it as it was hurting
her,
but he would not. Instead, according to the complainant, the
appellant used his foot to shove the bottle even more and deeper

inside her vagina. After a while he took the bottle out, pulled the
complainant up and threw her onto the bed. Again he demanded
her to
tell him who the man was that she was going out with. When she said
there was no-one he put the gun against the back of
her head saying
“
Don’t fuckin lie bitch.”
[8]
Thereafter the appellant put the firearm aside and pulled the
complainant’s legs apart again. He then approached her from
the
back and penetrated her anally with his penis. She was screaming,
pleading with him to stop as he was hurting her, but he would
not
listen. He pinned her down with his one hand whilst his other hand he
used to push the penis inside her anus, moving forward
and backward.
After a while he stopped and withdrew his penis. It was at that stage
that the complainant said she noticed blood
on his penis. She
requested to go to the toilet but he refused her to go there. She
said he continued and smoked his
thing
again and warned her
that she must be prepared to tell him the truth by the time he
finished that round of smoking. She requested
again to go to the
toilet and at that time he allowed her to go.
[9]
The complainant said when she got into the toilet she noticed that
the window was too small for her to escape through. The appellant

then shouted at her to come out. He was aggressive. She then came out
and found him waiting for her. He was sitting down at the
corner of
the room. He started saying strange things such as, as the
complainant put it, “
he is going to swear on his mother and
his brother’s grave that I tell him the truth”.
When
she asked him what truth he was talking about he hit her on the face
with his hand. She was crying all the time, she said.
[10]
At that stage the appellant told the complainant to place her hand in
his hand as he wanted to pray to God that she should
tell him the
truth and that only God would tell him whether she was lying to him
or not. She complied with his instruction and
placed her hand in his.
He said when he finished praying she must furnish him with all the
names and contact numbers of all the
men that she was going out with.
She told him there were no such people. Once she said that, he hit
her again on the face and she
bled from her lip. He pushed her and
she collided against the wall. He returned to smoke his “drugs”
again.
[11]
This pattern of abuse of the complainant by the appellant carried on
until, out of the blue, the appellant told the complainant
that he in
fact loved her and did not want to hurt her. He said he was no longer
going to hit her. She was crying most of the time.
In about the early
hours of the following morning, he escorted her out of the apartment
complex into his car. He drove out and
took the north-bound freeway
towards the city. However, at the Jacobs off-ramp he turned into the
direction of Wentworth. He did
not tell the complainant where they
were proceeding to. The appellant had his gun on his lap to scare the
complainant. In Wentworth
he pulled up at a certain flat where he
went out and collected something contained in a transparent packet
from a certain man there.
[12]
From there the appellant drove back to his residence in Amanzimtoti
with the complainant.  That was where the complainant
noticed
that the contents of the transparent packets were tablet-like
substances. The appellant continued where he had left off
with the
complainant. He grabbed her by the hair, pushed her onto the floor
and kicked her on the side of her body, continually
calling her a
bitch. She said, as she was lying down on the floor, she asked him
why he was doing all that to her. He answered
arrogantly that it was
because he enjoyed it.
[13]
Eventually, the appellant went into the bathroom and whilst in the
shower he ostensibly had a change of heart, as he told the

complainant that she could leave if she wanted to. He indicated to
her where she would find the door keys. Hence, the complainant

managed to leave the house and understandably thought that her ordeal
had come to an end. However, it was not yet to be. Shortly

thereafter, the appellant came out running after her. He caught up
with her, pinned her on the ground and trying to gag her on
the mouth
as she was screaming.  Fortunately, just in time, three ‘
Good
Samaritans’
appeared and came to her rescue. It was two
females and one man. When the appellant saw the three people coming
towards them, he
ran away. The woman helped the complainant up. Two
of these strangers testified at the trial, namely, Hermanus
Serfontein and Susanna
Erasmus who both corroborated the complainant
in relation to the position they found her and the appellant, as well
as the physical
and emotional condition in which she was at the time.
They were both residents in the same apartment building and testified
to
the effect that they were attracted to the scene by screams of a
woman from the direction of the appellant’s flat. The police

were called to the scene and, subsequently, the complainant was
transported to Prince Mshiyeni Memorial Hospital where she was

appropriately treated and managed. Dr Kamal Singh testified on the
gynaecological, anal and other bodily injuries which he found
on the
complainant when he examined her on 1 February 2008. These were
consistent of the complainant having been severely sexually
abused.
Analysis and
evaluation
[14]
The ordinary maximum penal jurisdiction of a regional court is 15
years imprisonment and this position is governed by
section 92(1)(a)
of the
Magistrates’ Courts Act, 1944
[3]
,
which provides as follows:
“
Save
as otherwise in this Act or in any other law specially provided, the
court, whenever it may punish a person for an offence
–
(a)
by imprisonment, may impose a sentence of
imprisonment for a period … not exceeding 15 years, where the
court is the court
of a regional division; …”
However,
section 51(1) of the 1997 Act provides:
“
Notwithstanding
any other law, but subject to sub sections (3) and (6), a Regional
Court or a High Court shall sentence a person
it has convicted of an
offence referred to in Part 1 of Schedule 2 to imprisonment for
life.”
To
the extent relevant to this case, part 1 of schedule 2 refers to:
“
Rape
as contemplated in section 3 of the Criminal Law (sexual offences and
related matters) Amendment Act, 2007 when committed in
circumstances
where the victim was
raped more than
once
whether by the accused or any
co-perpetrator or accomplice.”
[15]
Given that the appellant was convicted of having raped the
complainant more than once, the matter fell within the ambit of
part
1 of schedule 2. Hence the learned regional magistrate was empowered
to sentence the appellant to life imprisonment in respect
of the rape
charges.  However, as attempted murder is not included in this
category, it follows that the regional magistrate
was not empowered
to impose life imprisonment in relation thereto. A regional court
does not have inherent jurisdiction to impose
life imprisonment and,
besides, there is no other law in terms whereof the regional
magistrate would have been empowered to impose
life imprisonment for
attempted murder. It follows that the sentence of life imprisonment
imposed on the appellant was an incompetent
sentence, which falls to
be set aside.
[16]
Indeed, I agree with counsel for the appellant that, in her judgment
on sentence, the regional magistrate appeared to have
relied only on
the mitigation address by appellant’s erstwhile counsel when
the regional magistrate concluded that there
were no substantial and
compelling circumstances justifying a departure from the prescribed
sentence of life imprisonment. This
conclusion by the regional
magistrate is apparent from the record when she remarked as
follows
[4]
:
“
In
respect of mitigation of sentence or factors that were submitted on
your behalf there were very few. There was just basically
two
submissions made, that you were married, you have 6 children aged
from 5 to 23, and that you were employed on a full-time basis.
Your
advocate further indicated that imprisonment, as an appropriate
sentence, would have a dire effect on your children and that
they
would become wards of the State. He has also submitted that the
previous conviction that you were convicted of, that of drugs
in
2000, was quite some time ago and that it did not involve violence.
Unfortunately those were the only
mitigating factors that were submitted in your favour
.
(Underlined by me)
The
learned regional magistrate continued and said
[5]
:
“
Now,
no substantial or compelling circumstances were put forward by your
defence in order for the Court to consider them.”
And
concluded that
[6]
-
“ …
as
far as section 51 of Act 105 of 1977 is concerned, no substantial and
compelling circumstances were put before this Court in
order to
consider justification for a reduction of the prescribed minimum
sentence.”
[17]
It is apparent that the learned regional magistrate departed from the
premise that the presentation to the court of evidence
or submissions
in relation to substantial and compelling circumstances, as envisaged
in section 51(3) of the 1997 Act, was only
the responsibility of the
defence. This was an obvious misdirection on the part of the regional
magistrate. As a matter of law,
in every case, where none or
inadequate information is presented to the court in relation to
substantial and compelling circumstances,
it is the responsibility of
the presiding judicial officer to inquire into the existence or
otherwise of such circumstances. This
is the position even in
instances where the provisions of the 1997 Act do not apply. Such
responsibility is not confined only to
matters raised by the defence
during the mitigation stage, but it extends to the consideration of
the entire evidence during the
trial.
[7]
[18]
It was common cause that the appellant and the complainant met in
November 2007. Thereafter they developed what the complainant

described as “
a very understanding and loving relationship”.
The complainant admitted that she and the appellant had
consensual sexual intercourse as part of their loving relationship
prior
to 31 January 2008. She described this as an “
intimate
relationship
”. Counsel submitted that the evidence of the
complainant that the appellant “
just snapped”
was
clear indication that his conduct was completely out of character on
that particular night. The appellant was a married man
with six
dependent children of whom he was the primary care giver as his wife
was unemployed. He was said to be involved in a number
of
occupational activities, including being a successful businessman in
the rigging industry; a foreman in a construction company
and engaged
in sub-contract work. Thus he was a productive member of society.
These were some of the mitigating factors which counsel
submitted
that the court a quo failed to take into account in determining the
presence  or otherwise of substantial and compelling

circumstances.
[19]
Whilst it may be true that the appellant had never previously behaved
in a similar manner toward the complainant or generally,
his
behaviour and utterances on that night clearly indicated that he had
for some time harboured hard feelings against the complainant
over
what appeared to be unfounded suspicion that the complainant was
cheating on him. He only waited for the opportune moment
when he
would confront the complainant and vent out his anger and frustration
on her, in a manner most humiliating and degrading
of her privacy and
dignity as a human being. In
S
v Chapman
[8]
the Supreme Court of Appeal appropriately described the crime of rape
in the following terms
[9]
:
“
Ra
pe
is a very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity and
the
person of the victim. The rights to dignity, to privacy and the
integrity of every person are basic to the ethos of
the
Constitution and to any defensible civilisation. Women in this
country are entitled to the protection of these rights. They
have a
legitimate claim to walk peacefully on the streets, to enjoy their
shopping and their entertainment, to go and come from
work, and to
enjoy the peace and tranquillity of their homes without the
fear, the apprehension and the insecurity which constantly
diminishes
the quality and enjoyment of their lives”.
In
S
v C
[10]
the Court further amplified as follows:
[11]
“
Rape
is regarded by society as one of the most heinous of crimes, and
rightly so. A rapist does not murder his victim - he murders
her
self-respect and destroys her feeling of physical and mental
integrity and security. His monstrous deed often haunts his victim

and subjects her to mental torment for the rest of her life - a fate
often worse than loss of life”.
Recently,
the Supreme Court of Appeal, in
S
v Nkunkuma and others
,
[12]
declared thus:
[13]
“
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 be any significant decline in the incidence of
rape since the publication of the statistics
referred to 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 decisively”.
[20]
In the well renown decision of
S
v Malgas
[14]
,
the Supreme Court of Appeal made it clear that “
unless
there are, and can be seen to be, truly convincing reasons for a
different response”
[the]
“
courts
are required to approach the imposition of sentence conscious that
the Legislature has ordained life imprisonment”
in these cases and that such sentence was “
not
to be departed from lightly and for flimsy reasons”.
The
extreme degree of evil and merciless brutality which the appellant
caused the complainant to suffer was an aggravating
feature of this
case which, in my view, far outweighed any mitigating factors that
might be present, including the claim that the
appellant committed
this horrible and heinous deed whilst under the influence of drugs
and that he had no previous convictions
involving violence.
[21]
I also find it somewhat strange, but indeed significant, that all
along, during the trial and beyond, the fact of the appellant’s

conduct having allegedly been impaired by his intake of drugs was
never raised as an issue, in mitigation of sentence or otherwise.

This is raised for the first time here on appeal. Its omission all
along was clearly not accidental but deliberate – the
reason
thereof being the  fact that the appellant persistently
protested his innocence and alleged that the sexual intercourse
with
the complainant was consensual. Therefore, it seems to me that this
sudden reliance on the drug-intake incidence was only
opportunistic
and self-serving on the part of the appellant, in his apparent
realisation of complete absence of substantial and
compelling
circumstances in this case.
[22]
Indeed, despite the overwhelming and reliable evidence against him,
the appellant, as pointed out above, persistently denied
having done
anything wrong or harmful to the complainant and insisted that the
complainant had been a willing participant in the
“
rough
sex”
in which they had both engaged and ostensibly enjoyed.
He denied up to the end ever shoving a beer bottle up the
complainant’s
vagina – indeed, a spine-chilling act in
everyone’s imagination. He simply showed no remorse whatsoever
for his actions.
[23]
To my mind, on the facts of this case, there was no misdirection on
the part of the court
a quo
in its finding that substantial
and compelling circumstances did not exist in this case. In the
circumstances, this Court may not
interfere with the sentence imposed
by the court
a quo
in respect of the rape convictions.
However, for the attempted murder conviction, it seems to me that a
sentence of ten years imprisonment,
which should be ordered to run
concurrently with the life imprisonment imposed in respect of the
rape convictions, would be appropriate.
The
order
[24]
In the result, the following order is made:
1.
The appeal against the sentence for the rape convictions is
dismissed. However, the appeal against the sentence for the attempted

murder conviction is upheld.
2.
The sentence imposed by the court
a quo
is altered to read as
follows:
“
Counts
1 and 2
: Both counts are treated as one
for the purpose of sentence:  The accused is sentenced to
imprisonment for life.
Count
3
: The accused is sentenced to undergo
10 (ten) years imprisonment.
It
is ordered that the sentence imposed on count 3 shall run
concurrently with the sentence imposed on counts 1 and 2.”
3.
The new sentence shall be antedated to the date of the original
sentence, i.e. 4 May 2011.
NDLOVU
J
I
agree.
NTSHANGASE
J
[1]
Act
32 of 2007.
[2]
Act
105 of 1997, as amended by the Criminal Law Amendment Act 38 of
2007.
[3]
Act
32 of 1944.
[4]
Record,
at 366 line 21 to 367 line 5
[5]
Record,
at 367 lines 11 - 13
[6]
Record,
at 370 lines 11 – 14
[7]
See:
Rammoko
v Director Public Prosecutions
2003 (1) SACR 200
(SCA), at 205 F-G;
S
v Dickson
2000 (2) SACR 304
(C) at 307F-G)
[8]
1997
(3) SA 341 (SCA)
[9]
Ibid,
at 345
[10]
1996
(2) SACR 181
(C)
[11]
Ibid,
at 186d-f
[12]
2014
(2) SACR 168 (SCA)
[13]
Ibid
at para 17
[14]
2001
(1) SACR 469
(SCA)