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[2014] ZAGPPHC 499
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Mazibuko v S (A224/2013) [2014] ZAGPPHC 499 (25 February 2014)
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IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case No: A224/2013
Date: 25 February
2014
In the matter
between:
MPUMELELO
THAMI
MAZIBUKO
..............................................................................................
Appellant
and
THE
STATE
......................................................................................................................................
Respondent
JUDGEMENT
MAKHUBELE AJ
INTRODUCTION
[1] This is an
appeal against the sentence imposed by the Regional Court Magistrate,
Benoni on appellant on 23 July 2012. Appellant
was about 35 years old
when he was sentenced after having been charged with and found guilty
on one count of rape and one of attempted
murder. Both offences were
committed on the same day, 24 October 2010.
[2]
In count 1, appellant was charged with the crime of RAPE in
contravention of
“
the
provisions of Section 3 read with Sections 1, 56(1), 57, 58, 59, , 60
and 61 of the Sexual Offences and Related Matters Act
32 of 2007 RAPE
(read with the provisions of Sections 51 and or 52 and Schedule 2 of
the Criminal Law Amendment Act 105 of 1977\
as Amended) in that on or
about the 23/10/2010 and at or near DAVEYTON in the Regional Division
of Gauteng the said accused did
unlawfully and intentionally commit
an act of sexual penetration with the complainant to wit, N[...]
M[...] by INSERTING HIS PENIS
IN HER VAGINA without the consent of
the said complainant
"
2.1
In count 2, apppellant was charged with the crime of ATTEMPTED MURDER
in
that upon or about the 24
th
OCTOBER 2010 and at or near [...] M[...] STR D[...], in the Regional
Division of GAUTENG the accused did unlawfully and intentionally
attempt to kill N[...] M[...], a female person, by INFECTING HER WITH
HIV DURING THE COMMISSION OF COUNT 1 (RAPE).
1
[3] Appellant
admitted that he knew that he was HIV positive at the relevant time.
He also stated that he was on antiretroviral
treatment. He also
admitted that he had sexual intercourse with the complainant on the
day in question. His defence was that the
intercourse was consensual
and that it took place after he and the complainant had agreed that
he would pay her an amount of R100.00.
His version is that they
fought after he realised and confronted the complainant about his
money that she stole when he stepped
out of the room after they had
their first sexual encounter. Appellant’s version was rejected
by the Presiding Magistrate
and he was accordingly convicted on both
counts.
[4] Appellant was
duly sentenced to life imprisonment with regard to count one and six
(6) years for count 2. The sentences were
ordered to run
concurrently.
[5] He applied for
leave to appeal against both conviction and sentence. He however
pursued the appeal on sentence in count 1 only.
[6] It appears from
the transcript of the record of proceedings that the appellant was
legally represented throughout the trial.
It is also evident that he
had a fair trial in that he was advised of the prescribed minimum
sentencing regime at the time when
the charges were put to him.
[7] It is trite that
the appeal court can only interfere with the discretion of the lower
courts to impose sentences only if :
[7.1] There was an
irregularity during the trial or sentencing of an accused person.
[7.2] The lower
court misdirected itself in respect of the imposition of the
sentence.
[7.3] The sentence
imposed court could be described as disturbingly or shockingly
inappropriate.
1
[8]
The question is not whether the sentence is right or wrong, but
rather whether the lower court exercised its discretion properly
and
judicially
2
.
SENTENCE IMPOSED
[9] The court below
found that there were no substantial and compelling circumstances to
enable it to deviate from the prescribed
minimum sentencing regime. A
term of life imprisonment was imposed in count 1 (rape). The
appellant was sentenced to six (6) years
imprisonment in count 2
(attempted murder).
[10] It is evident
from the record of proceedings that the presiding magistrate only
considered whether being HIV positive constitute
substantial and
compelling circumstances . He failed to take into account or even
consider the circumstances under which the offence
was committed.
In my view this
constitutes a misdirection by the presiding magistrate and this
entitles this court to interfere with the sentence
imposed.
[12] Count 2 is in
reality contained in count 1 in that appellant knew at the time that
he has the human immunodeficiency virus.
Therefore, for the sake of
sentencing, the two counts should have been taken together. It would
have been double jeorpardy for
the appellant if the sentences were
not ordered to run concurrently. However, this a moot question.
[13]
In the matter of
Mudau
v State
3
, MAJIEDT JA
4
undertook
an analysis of recent court decisions to illustrate the approach
adopted by our courts on the issue of substantial and
compelling
circumstances in view of the prescribed minimum sentences regime.
There appears to be consensus that each case should
be judged on its
own merits and that the correct question to ask is whether life
imprisonment is the appropriate sentence under
the circumstances of
each case.
[14] Considering or
taking into account factors such as the circumstances preceding the
rape, severity of the rape, its effect on
the victim, nature of
injuries , etc does not in my view minimize the fact that rape is a
serious offence. It is a reality that
need to be considered by a
trial courtto reach a correct conclusion with regard to the question
whether there should be a deviation
from the prescribed minimum
sentencing regime. It is not to say that the compalainant deserved or
invited the rape.
The cases referred
to in the judgment of Madjiet JA in the paragraphs quoted below are
illustrative of this fact.
[17]
It is necessary to reiterate a few self-evident realities. First,
rape is undeniably a degrading, humiliating and brutal mvasion
of a
person’s most intimate, private space.
10
The
very act itself even absent any accompanying violent assault
inflicted by the perpetrator; is a violent and traumatic infringement
of a person’s fundamental right to be free from all forms of
violence and not to be treated in a cruel, inhumane or degrading
way.
11
In S v Vilakcuzi,
12
Nugent JA referred to the study done by Rachel Jewkes and
Naeema
Abrahams on the
epidemiology of rape
13
which concluded on the available eindence that ‘women’s
right to give or withhold consent to sexual intercourse is
one of the
most commonly violated of all, human rights in South Africa.”
[18] The second
self-evident truth (albeit somewhat contentious) is that there are
categories of severity of rape. This observation
does not in any way
whatsoever detract from the important remarks in the preceding
paragraph. This court held in S v Abrahams that
‘some rapes are
worse than others, and the life sentence ordained by the Legislature
should be reserved for cases devoid
of substantial factors compelling
the conclusion that such a sentence is inappropriate and unjust’.
14
The advent of minimum sentence legislation has not changed the
centrality of proportionality in sentencing. In Vilakazi Nugent
JA
cautioned against the danger of heaping ‘excessive punishment
on the relatively few who are convicted in retribution for
the crimes
of those who escape or in the despairing hope of that it will arrest
the scourge’.
15
He also pointed to the vast
disparity between the ordinary minimum sentence for rape (10 years
imprisonment) and the one statutorily
prescribed for rape of a girl
under the age of 16 years (life imprisonment) and the startling
incongruities which may result.
16
The judgment also sets
out the dramatic effect that the minimum sentencing legislation has
had in sentencing, most importantly
that statistics show that inmates
serving sentences of life imprisonment has increased more than
ninefold from 1998 to 2008.
17
And he reiterated that even
in the context of minimum sentencing legislation the importance of
assessing each case on its oivn
peculiar facts and circumstances and
the need for proportionality must never be overlooked. Nugent JA
expressed it as follows:
‘
It
is clear from the terms in which the (determinative) 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’
18
.
[19]
Life imprisonment is the most severe sentence which a court can
impose. It endures for the length of the natural life of the
offender,
19
although release is nonetheless provided for in the
Correctional
Services Act 111 of 1998
.
Whether
it is an appropriate sentence, particularly in respect of its
proportionality to the particular circumstances of a case,
requires
careful consideration. A minimum sentence prescribed by law which, in
the circumstances of a particular case, would be
unjustly
disproportionate to the offence, the offender and the interests of
society, would justify the imposition of a lesser sentence
than the
one prescribed by law.
20
As 1 will presently shoiu, the instant case falls into this category.
This is evident from the approach adopted by this court to
sentencing
in cases of this kind.
[20]
In S v Abrahams
21
a sentence of 7 years’ imprisonment imposed on a father for
raping his 14 year old daughter was increased on appeal to a
sentence
of 12 years. Cameron JA, writing for a
unanimous
court,
emphasized the reprehensibility of rape committed within a family
context.
As
stated
above, the learned Judge also pointed out, that ‘some rapes are
worse than others’ (see para 17 above) and, with
reference to
the dictum of Ackerman J in S v Dodo, supra at para 38, emphasized
the need for proportionality.
[21]
In Bailey v S,
22
an appeal against a sentence of life imprisonment imposed on a father
for the rape of his 12 year old daughter was dismissed. In
distinguishing that case from others such as, inter alia Abrahams and
Nkomo, referred to above, Bosielo JA (Brand, Heher, Malan
and Pillay
JJA concurring) laid heavy emphasis on the drastic effect which the
rape has had on the victim, as evidenced by the
victim impact report,
which had been handed in by consent. That report enumerated the
following severe sequelae of the rape on
the complainant: (a)
anxiety, fear and sleeping disorder; (b) misplaced feelings of guilt
and shame; (c) mood swings; (d) a loss
of trust in mankind and a
great sense of anger and hostility towards her father. She also had
to leave school prematurely when
she discovered that she was pregnant
and suffered two miscarriages. Bosielo JA emphasized the need to
decide on the imposition
of an appropriate sentence based on the
particular facts of each case. The primary difficulty in the case
before us is that no
victim impact report ivas placed before the
trial court, an aspect to which I shall revert shortly
[22]
Ndou v
S23
concerned the rape of a 16 year old girl by her
stepfather. The sentence of life imprisonment was set aside by this
court, which
substituted in its stead a sentence of 15 years’
imprisonment. In its judgment this court (per Shongwe JA) referred to
a
misdirection on the part of the trial court which. . .’[created
the impressionj that the minimum sentence of life imprisonment
had to
be imposed regardless of the circumstances’.
24
The learned Judge also made mention of the fact that no evidence was
led on the effect the rape had on the victim
,
but accepted that
it must have been very traumatic.
23
The court found that a sentence of life imprisonment would be
disproportionate and imposed 15 years’ imprisonment.
[23] Lastly there
is the judgment of Kwanape v
S.26
i must immediately point out that
the rape in that matter had not been perpetrated in a family setting.
This court (per Petse JA,
Nugent JA and Erasmus AJA) dismissed an
appeal against a sentence of life imprisonment imposed on a 24 year
old first offender
who had raped a 12 year old girl. One of the
numerous aggravating factors in that case was the fact that the
appellant had abducted
the complainant while she was in the company
of her friends and effectively held her hostage for an entire night.
In this matter
too, a victim impact report was handed in by consent,
from which it appears that the rape has had a devastating impact on
the complainant.
She was forced to leave school, compelling her
mother to give up her employment in order to render emotional support
to the complainant.
The latter had become a recluse so as to avoid
being ridiculed by her peers.
CIRCUMSTANCES
UNDER WHICH THE OFFENCE WAS COMMITTED AND MITIGATING FACTORS.
[15] The following
are common cause facts:
[15.1] Alcohol
played a role. The complainant and her cousin, M[...] M[...] started
drinking at about 19:00 on the day in question.
They moved from one
place to another in what one may refer to as a dinking night out.
[15.2] The
complainant had left her baby at her mother’s house. She did
not bid anyone goodbye. She simply left because her
mother would not
have allowed her to leave her baby.
[15.3] The
cousin-pair met the appellant at STI’s tavern at about 21:00
and were in each other’s company enjoying the
drinks.
[15.4] They agreed
to move to another tavern because complainant wanted to avoid her
boyfriend who wanted to take her home to sleep.
[15.5] The three of
them walked together to appellant’s house at about 01:00 or
02:00 in the morning. The court accepted the
complainant’s
version that appellant wanted to fetch his jersey.
[15.6] According to
the doctor’s report, “clinical evidence not conclusive of
forceful penetration”. Thre was
clinical evidence for assault
though.
[15.7]
The complainant was not infected with the HIV. She tested twice for
the virus, the first time about two days after the incident
and the
second time after what she referred to as
"after
the window period”.
[15.8] The
complainant initially lied to her sibling about how she sustained her
injuries and the whereabouts of the latter’s
shoes (sandals).
She said she was attacked by thugs and that is how she lost the
shoes. She consulted a doctor Omar from Africa
to give her some
medication to cleanse her blood because she was breastfeeding. The
doctor advised her to quit drinking. She only
went to report the
matter to the police after her grandmother threatened to do so
herself. This was after the nurses who tested
her for HIV insisted
that she should report the matter.
[15.8.1] This
illustrates the fact that the rape had no impact on the complainant.
[16] The trial
court, as indicated above only concentrated on the HIV status of the
appellant when considering the question as to
whether there are
compelling and substantoial circumstances entitling the trial court
to deviate from imposing the prescibed sentence
of life imprisonment.
This was a wrong approach. The question should have been whether, in
the light of all mitigating factors
(circumstances under which the
offence was committed, the nature and effect on the complainant) life
imprisonment was an appropriate
sentence.
[17] Under the
circumstances, in my view, life imprisonment was not an appropriate
sentence for the crime.
[18] Appellant
intended to infect the complainant with HIV. This is an aggravating
factor. This should be balanced with the mitigating
factors indicated
above, in particular the fact that there is conclusive proof that he
did not succeed.
APPROPRIATE
SENTENCE AND ORDER
[19] Having found
that the trial court misdirected itself with regard to the correct
approach to determine whether to deviate from
the prescribed minimum
sentences regime, I am of the view that this court is etitled to
evaluate the mitigatory circumstances of
the offence and weigh them
against the aggravating factors. The conclusion that I reach is that
the sentence of life imprisonment
is not proportionate to the crime.
Accordingly, a sentence of twelf (12) years is in my view an
appropriate sentence in count 1.
The appeal is only with regard to
sentence in count 1.
[20] The appellant
was sentenced on 23 July 2012. He had been in custody since his
arrest on 28 October 2010.
[21]
In the matter of
S
V Vilakazi
5
,
NUGENT
JA
7
stated
the following at paragraph 60:
“
[60]
There is one further consideration that must be brought to account.
The appellant was arrested on the day the offence was committed
and
has been incarcerated ever since. At the time he was sentenced he had
accordingly been imprisoned for just over two years.
56
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. In the circumstances I intend
ordering that the sentence - which for purposes
of considering parole
is a sentence of fifteen years
}
imprisonment commencing on the date that the appellant was sentenced
-
is to expire two
years earlier than would ordinarily have been the case.
[61] The appeal
against sentence is upheld. The sentence imposed upon the appellant
is set aside and the following sentence is substituted:
The
accused is
sentenced to fifteen years’ imprisonment from which two years
are to be deducted when calculating the date upon
which the sentence
is to expire. ’
[22] Under the
circumstances, it is my view that the period that appellant spent in
custody awaiting trial should be deducted when
his parole is due for
consideration.
[23] I propose the
following order:
[23.1] The appeal on
sentence in count 1 is upheld.
[23.2] The order of
the trial court with regard to sentence on count 1 is substitued with
the following:
[23.2.1] The accused
is sentenced to twelve (12) years’ imprisonment from which 21
months are to be deducted when calculating
the date upon which the
sentence is to expire”
MAKHUBELE AJ
Acting Judge
I
agree and it is so ordered
BAM
J
APPERANCES:
APPELLANT: ADVOCATE P.D MOTSWENI
Instructed by:
Pretoria Justice Centre
THE STATE:
ADVOCATE M.T MOETAESI
Matter heard on: 27
January 2014.
Judgment
delivered
on:
25
February 2014.
1
Charge
sheet
2
S
v Pillav
1977
(4) SA 531
(A)
at p 535 E-G
3
2013(2)
SACR 292 (SCA)
4
MTHIYANE
DP, CACHALIA JA, ERASMUS and SALDULKER AJJA concurring.
5
2009
(1) SACK 552 (SCA);
2012 (6) SA 353
(SCA)
7
STRETCHER, MLAMBO, MAYA JJA and HURT AJ A concurring