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[2015] ZAKZPHC 40
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Mkhungo and Another v S (AR455/14) [2015] ZAKZPHC 40 (3 August 2015)
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
CASE NO: AR455/14
DATE: 03 AUGUST 2015
NOT REPORTABLE
In the matter between:
VUYANI SAMKELO
MKHUNGO
..........................................................................
1ST
APPELLANT
SIBONELO CYPRIAN
MYEZA
.............................................................................
2ND
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
Delivered on : MONDAY, 03 August
2015
OLSEN J (VAN ZŸL J and NAIDOO
AJ concurring)
[1] The appellants in this matter
appeal with the leave of the Court a quo against the sentences of
life imprisonment imposed on
them on 27 May 2013, three such
sentences in the case of the first appellant and two in the case of
the second appellant. These
sentences were passed after a trial in
which the State sought to prove the appellants’ shared guilt on
some 13 counts which
generated 12 guilty verdicts in the case of the
first appellant and 10 in the case of the second appellant. Leave to
appeal against
the convictions and against the sentences other than
life imprisonment was refused. (The second appellant was charged
with and
convicted on a further count on his own; it is not relevant
to the present appeal.)
[2] The convictions concerned events
which occurred on three days.
[3] On 29 December 2010 the appellants
forced their way into the home of a Ms [N……..] with a
view to robbing her of
money. Ms [N……..] was alone at
home. She attempted to resist their entry by holding the door closed
against them.
Each appellant was armed with a gun. The second
appellant shot her in order to gain entry, and then she was shot
twice more in
the course of the robbery. She died as a result. The
appellants left the scene with a cell phone and a pair of shoes.
Their
conduct was brutal. Each was sentenced to life imprisonment
for the murder.
[4] On the night of 5 January 2011 the
complainant regarding the events on that day, a 39 year old married
woman who was at home
with two of her children, was awoken by two men
who eventually gained access to her house with intent to rob. They
decided to
rape her, one at a time. This was done in the presence of
the children, one of whom was awake. The complainant could not
identify
her assailants as they had covered their faces. But the
first appellant made an extra-curial statement which was admitted in
evidence,
in which he identified the second appellant and himself as
the perpetrators. This evidence was not admissible against the
second
appellant. Only the first appellant was convicted and a
sentence of life imprisonment was imposed in respect of the rapes.
[5] The third series of events occurred
on 6 January 2011. On this night the appellants accosted an 18 year
old complainant and
raped her six times over a period of some hours,
each of them being the actual perpetrator on three occasions. The
convictions
on these counts generated sentences of life imprisonment
for each of the appellants.
[6] In giving his judgment on sentence
the learned Judge a quo referred to the judgment in S v Chapman
[1997] ZASCA 45
;
1997
(2) SACR 3
(SCA) on the subject of the humiliating and degrading
nature of the crime of rape. He referred to S v Malgas
2001 (1) SACR
46
9 (SCA) on the subject of the sentencing provisions set out in the
Criminal Law Amendment Act 105 of 1997
, and made reference inter alia
to paragraph 9 of the judgment in that case where it is stated that
the specified sentences should
not be departed from “lightly
and for flimsy reasons which could not withstand scrutiny”.
[7] The learned Judge took into account
the personal circumstances of the appellants. The first appellant
was just short of 25
years old when the offences were committed, had
passed Grade 8 at school, was single and had two children supported
by his grandmother.
He was employed as a bricklayer at R800,00 per
forthnight. He had previous convictions from malicious injury to
property and
possession of stolen property. The second appellant was
29 years old when the offences were committed. He had passed
Standard
5, was single and had no children. He had a previous
conviction for stock theft which had resulted in a sentence of 3
years imprisonment.
[8] In dealing with the sentences for
the convictions other than murder and rape the learned Judge warned
himself against overstating
the severity of those crimes as a result
of placing too much emphasis on the impact of the murder and the
rapes which accompanied
the events which led to the lesser
convictions. However he could not conclude with respect to the
convictions of murder and rape
that there were substantial and
compelling circumstances such as would justify the imposition of
sentences other than life imprisonment.
[9] On the contrary, the trial Judge
concluded that it appeared to him that the appellants were “dangerous
men”, and
he could find no reason to think that they would be
susceptible to rehabilitation. They demonstrated no hint of remorse.
They
perpetrated their crimes within a community with which they
were quite familiar, and knowing that their victims were vulnerable
people, of modest means, who did not live within the protection of
fortified homes. The learned Judge drew particular attention
to the
responses of the appellants to the DNA evidence linking them to the
multiple rapes of the complainant on 6 January 2011.
Presumably
advised of the implications of the evidence in advance of the
commencement of the trial, the second appellant made
a statement in
support of his plea of not guilty, that the complainant was his
secret lover and that he had consensual sex with
her during early
January 2011. The day after the DNA evidence was led the first
appellant claimed suddenly to have remembered
that he had consensual
sex with the complainant because she was a prostitute and he was one
of her clients. Both these claims
were rejected. It is apparent,
although not expressly stated by him, that the trial Judge regarded
these responses to what had
befallen the complainant on 6 January
2011 as disturbing indicators of complete indifference on the part of
the appellants to what
they had put their victims through. The
learned Judge a quo added this observation.
“Having seen the accused in the
witness box and having listened to them trying to avoid liability for
what they have done
I have little doubt that these two men constitute
a danger to society”
[10] Counsel for the appellants
informed us that she was unable to make any submissions at all in
support of the appeal against
the life sentences imposed for the
multiple rapes which occurred on 6 January 2011. In my view she did
not err in that regard
and nothing more need be said about those
sentences.
[11] Concerning the murder on 29
December 2010, and the rapes which occurred on 5 January 2011 (of
which only the first appellant
was convicted), counsel for the
appellants was unable to identify any misdirection on the part of the
trial Judge which would enable
us to interfere on appeal. A full
account of the circumstances in which the crimes were perpetrated
would unduly burden this judgment.
It suffices to say that a
consideration of the record leads to a conclusion that the trial
Judge was quite correct in describing
the conduct of the appellants
as “merciless”. Against that factors such the relative
youthfulness of the perpetrators
(bearing in mind that they were
already no strangers to brushes with the law), and the fact that the
second appellant did the shooting
when Ms [N……..] was
murdered (bearing in mind that the appellants both entered her home
armed with hand-guns) pale
into insignificance. The fact that the
appellants had been in custody in advance of sentencing for a little
over two years could
in other circumstances have contributed to a
finding that a sentence of life imprisonment was not required; but in
my view in this
case that factor does not support a conclusion, in
combination with any other factors, that there was a misdirection
which would
justify upholding the appeals.
[12] The learned trial Judge addressed
the question as to whether the life sentences were disproportionate.
He concluded in respect
of all the convictions attracting sentences
of life imprisonment that such would likely have been the appropriate
sentences in
the absence of the governing legislation. In my view
there is nothing on the record which would justify a conclusion that
he misdirected
himself in that regard.
[13] I conclude that there is no merit
in the appeals and the following order is made.
The appeals against the sentences of
life imprisonment imposed on the appellants on 27 May 2013 are
dismissed, and those sentences
are confirmed.
OLSEN J
VAN ZŸL J
V NAIDOO AJ
Date of Hearing: MONDAY, 27 JULY
2015
Date of Judgment: : MONDAY, 03
AUGUST 2015
For the Appellants : Ms P Andrews
Instructed by: LEGAL AID OF SOUTH
AFRICA
Appellants’ Attorneys
20 OTTO STREET
PIETERMARITZBURG
(Ref.: )
(Tel No.: 033 – 394 2190)
For the Respondent: Ms K Shazi
Instructed by: Director of Public
Prosecutions
Respondent’s Attorneys
6th Floor, Southern Life Building
88 Joe Slovo Street
Durban
(Ref. )
(Tel.: 031 – 3345114 / 033 –
845 4400)