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[2014] ZAGPPHC 139
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Mabena and Another v S (A353/13) [2014] ZAGPPHC 139; 2014 (2) SACR 43 (GP) (1 April 2014)
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REPUBLIC OF SOUTH
AFICA
IN THE HIGH COURT
OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
CASE
NUMBER: A353/13
DATE:
01 APRIL 2014
In the matter
between:
SIBUSISO
PROFESSOR MABENA
.............................
FIRST
APPELLANT
SIBUSISO BLESSION
NGWENYA
........................
SECOND
APPELLANT
AND
THE
STATE
..........................................................................
RESPONDENT
JUDGMENT
MOSEAMO AJ
[1] The first
appellant, second appellant and a third accused were charged and were
convicted in the Piet Retief Regional Court
for Contravention of
Section 3 of Act 32 of 2007 - rape. They were sentenced on the 26th
October 2009 to life imprisonment in
terms the provisions of Section
51 (1) of Act 105 of 1997. First appellant is appealing against both
conviction and sentence while
Second Appellant is appealing only
against sentence.
[2] At the hearing
of the appeal appellants’ counsel conceded that the conviction
of the first appellant is proper and cannot
be faulted.
[3] The appelant’s
defence was that he did not commit any of the offences as he was not
present during the commission thereof.
[4] The complainant
testified that (a) first appellant, second appellant and a third
accused assaulted her and dragged her away
to a field; (b) she
managed to escape but was apprehended again; (c) first appellant and
second appellant raped her one after the
other. (d) she knew the
second appellant before the date of the incident.
[5] The
complainant’s testimony is supported by her boyfriend, M.....,
who witnessed the assault and the conclusion of the
rape. M......
testified that he knew the appellants before the date of the
incident.
[6] The third
accused testified that he observed the appellants raping the
complainant whilst holding her legs.
[7] I am of the view
that the first appellant was correctly convicted. Consequently the
conviction against the First appellant stands
to be confirmed.
SENTENCE
[8] It is trite that
the only time that the court of appeal can interfere with sentence,
is when the sentencing court has seriously
misdirected itself or when
there is such disproportion between the sentence that the appeal
court considers appropriate and the
one imposed by the sentencing
court that it invokes a sense of shock.
[9] In the event
that the appeal court finds that the trial court misdirected itself,
it will interfere with the sentence. To come
to a conclusion that the
trial court misdirected itself, the appeal court would assess the
sentence with a view to determine whether
there is a stark difference
between the sentence of the trial court and that which the appeal
court would have imposed.
[10] Appellants were
convicted in terms of s 51 of
Criminal Law Amendment Act 105 of
1997
. In terms of
s 51(3)(a)
a court which has found somebody guilty
of an offence referred to in
Part I
of Schedule 2 or referred to in
Part II
of Schedule 2 shall, if it is satisfied that substantial and
compelling circumstances exists which justify the imposition of a
lesser sentence described in those subsections, enter those
circumstances on the record of the proceedings and may thereupon
impose
a lesser sentence.
[11] Appellant
contends that the court a quo neglected to consider the following
substantial and compelling circumstances which
justify a deviation
from the prescribed sentence: (a) Although the First appellant has a
previous conviction of assault while the
Second appellant has no
previous conviction this does not mean they have a propensity for
violence (b) The appellants are not beyond
rehabilitation. (c) The
complainant did not suffer serious physical injuries during the rape.
(d)The rape was not planned or pre-meditated.
(e) The appellant
consumed alcohol and it was the abuse of alcohol which contributed to
the commission of the offence.
[12] It is the
Respondent’s sumbission that: (a) Rape is a very serious
offence and prevalent in South Africa; (b) Appellants
showed no
remorse; (c) Psychological trauma suffered by the Complainant is
likely to last longer.
[13] The court a quo
considered personal circumstances of the appellants in passing
sentence. It also noted the fact that first
appellant had a previous
conviction of assault. The fact that consumption of alcohol could
have contributed to the commision of
the offence was dimissed by the
court a quo on the basis that ‘most young boys drink just
enough to get dutch courage to
do what they wanted to do’.
[14] In S v Vilakazi
2009 (1) SACR 552
SCA the court cautioned against placing too much
emphasis on the personal circumstances of an offender that the
sentence imposed
ends up not serving the interest of justice and that
of the society.The court also indicated that:
‘In the same
way the interest of justice will not be served by too harsh a
sentence or too lenient a sentence that it is not
in synch with the
crime committed.’
[15] Life
imprisonment is the longest prison sentence that a court can impose
and it is aimed mainly at the protection of the society.
The effect
of life imprisonment is to remove the offender from the society.
In S V MABASO
2014
(1) SACR 299
KZP the court referred to the three bench split decision
in S v Nkomo
2007 (2) SACR 198
(SCA) where the imposition of life
imprisonment was avoided; ‘ Notwithstanding the appellant’s
conviction for raping
his victim five times during the night,
slapping, kicking and forcing her to perform oral sex on him, and
holding her captive after
she injured herself when she attempted to
escape, the majority found that there were substantial and compelling
circumstances.
These circumstances were relative youthfulness of the
appellant who was 29 years old; he was employed; there was a chance
of rehabilitation,
even though the appellant showed no remorse and no
evidence was led on the prospects of rehabilitation. The majority
reduced the
sentence to 16 years imprisonment.’
[16] I agree with
the Respondent that rape is a serious offence which is prevalent in
South Africa. The Appellants’ submission
that the Complainant
did not suffer any serious injuries is rejected on the basis that
Section 51
(3) (aA) (ii)
Criminal Law Amendment Act 105 of 1997
provides that lack of physical injuries to the complainant in a rape
case does not justify imposition of a lesser sentence.
[17] In this case
the complainant was raped by more than one person and the complainant
was under the age of 16 at the time of the
rape. Appellants dragged
the complainant to the field and chased her to her home after she
managed to escape. They raped her while
the third accused held her
legs. There is no question that this kind of conduct requires a
lengthy prison term.
[18] The legislature
has provided for life imprisonment in circumstances such as mentioned
above and it is for the court to decide
whether the cicumstances of
this particular case call for the departure from the prescribed
sentence.
[19] In S v Malgas
2001 (2) SA 1222
SCA it was stated that even in the absence of
material misdirection, an appellate court may yet be justified in
interfering with
the sentence imposed by the trial court if the
difference between the sentence imposed by the trial court and the
sentence which
the appellate court would have imposed had it been the
trial court is so marked that it can properly be described as
‘shocking’,
‘startling’ or ‘disturbingly
inapropriate’.
[20] It was further
stated in S v Malgas above that:
“The greater
the sense of unease a court feels about the imposition of a
prescribed sentence, the greater its anxiety will
be that it may be
perpetrating an injustice. Once a court reaches the point where
unease has hardened in to a conviction that an
injustice will be
done, that can only be because it is satisfied that the circumstances
of the particular case render the prescribed
sentence unjust or,
disproportionate to the crime, the criminal and the legitimate needs
of the society.”
[21] I am of the
view that there is no material misdirection on the part of the court
a quo to justify deviation from the imposed
sentence.
[22] However, based
on the above, I find that there is a disproportion between the
sentence that the appeal court would have imposed
if it were the
trial court and the sentence imposed by the court a quo. This
resulted from the court’s failure to take into
consideration
that the fact that the appellants’ are still young and can
still be rehabilitated.
I would therefore
make the following order:
1. The First
Appellant’s appeal against conviction is dismissed and
conviction is confirmed.
2. The Appellants’
appeal against the sentence of life imprisonment is upheld, the
sentence of the court a quo is set aside
and it is substituted by
sentence of 15 years imprisonment.
3. The sentence is
antedated to 26 October 2009.
P D MOSEAMO
ACTING JUDGE OF
THE NORTH GAUTENG HIGH COURT
I agree,
N KOLLAPEN
JUDGE OF THE
NORTH GAUTENG HIGH COURT
It is so ordered.