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[2014] ZAGPPHC 184
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Nkosi v S (A694/2013) [2014] ZAGPPHC 184 (1 April 2014)
REPUBLIC OF SOUTH
AFRICA
NORTH GAUTENG
HIGH COURT PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
Case
no: A694/2013
DATE:
01 APRIL 2014
In the matter
between:
NDUKU SIMON
NKOSI
..........................................
APPELLANT
AND
THE
STATE
...........................................................
RESPONDENT
JUDGMENT
BAQWAJ, KHUMALO J
[1] This is an
appeal against sentence only subsequent to a conviction and sentence
of the appellant by the Magistrate in the Regional
Division of
Gauteng sitting at Nigel.
[2] The appellant
was charged with two counts of kidnapping and committing an act of
sexual penetration with a minor child without
her consent as defined
in section 3 of the Criminal Law Amendment Act 32 of 2007 (rape) and
he pleaded not guilty to both counts.
[3] He was convicted
on both counts and sentenced to six (6) years on count one
(kidnapping) and to twenty three (23) years on the
second count of
rape. He applied for leave to appeal against sentence only and leave
was granted accordingly.
[4] The background
to this case is briefly as follows;
4.1. Complainant,
who was ten (10) years old at the time of commission of the offence,
disappeared after having been sent to buy
some meat at a nearby shop
by her mother. She was found by her aunt the following day at the
premises of the appellant.
4.2. The J88 report
completed by the witness Doctor Themba Khambule corroborated
complaint’s evidence with regard to the injuries
suffered and
the treatment she suffered at the hands of the appellant.
[5] After testing
complainant’s competence as a witness and weighing her evidence
and that of the other state witnesses against
that of the appellant,
the magistrate found that the state had proved its case beyond a
reasonable doubt and convicted the appellant.
[6] It is correct
that the charge sheets attached to the case record refer to different
accused and case numbers. However, the contents
thereof refer to the
complainant in this case, date of offences and charges pertaining to
the subject matter of this case. The
rest of the record seems to
indicate a typographical error in the said charge sheets.
[7] It is also
correct that the Magistrate concluded that there were substantial and
compelling circumstances present which enabled
the court a quo to
deviate from the sentence of life imprisonment prescribed in the
Criminal Law Amendment Act 105 of 1997 (commonly
referred to as the
Minimum Sentences Act).
[8] The court a quo
found the following to be mitigating factors:
Appellant is a first
offender who is not married, unemployed and without dependants. He
spent 38 months in prison pending the outcome
of the trial. The
magistrate also considered in appellant’s favour that
complainant, who was twelve (12) years old when she
testified did not
appear to show any residual adverse effects whilst testifying in
court.
[9] Despite the
Magistrate’s deviation from the sentence prescribed in the
Minimum Sentences Act, counsel for the appellant
submits that twenty
three years (23) for the count of rape is shockingly harsh and
inappropriate in the circumstances. At the same
time counsel
correctly concedes that the rape, particularly of young children, is
considered in a very serious light and that it
should be visited with
appropriately stringent sentences.
[10] The fact is,
whilst guidance must inevitably be sought by the sentencing court
from other similar cases, it is not a purely
mathematical or
mechanical process. Each case should be judged on its own merits.
[11] Appellant was
forty three (43) years old at the time of the commission of this
offence without having had a brush with the
law. This is a factor
that ought to have weight heavily in the appellant’s favour.
[12] A further
factor that ought to have been weighed in favour of the appellant by
the court a quo is that both the kidnapping
occurred at the same time
and place. The court therefore ought to have considered the sentences
running concurrently.
[13] On the other
hand, the deliberate manner in which the appellant acted, in
kidnapping a young child who was at the time ten
(10) years old,
tying her up and raping her overnight was in itself a cold-blooded
and chilling act committed by a person who was
old enough to be a
parent of the child, the appellant. I find this to be an aggravating
feature in this case which would not justify
a reduction of sentence.
[14] It is trite
that sentence should fit the triad of the crime, the criminal and the
needs of society. It is in this context that
I agree with the
sentiments expressed in the case of S v Sikhipa 2006(2) SALR 439 SCA
where the following was stated: "In
my view, life imprisonment
is not a just sentence for the appellant However, a lengthy sentence
of imprisonment is warranted. I
consider that a period of twenty (20)
years imprisonment will send a message to the community that rape,
and especially the rape
of a young girl, will be visited with severe
punishment. It will send a strong deterrent message. ’’
[15] In the
circumstances I propose that the sentence imposed by the court a quo
be set aside and substituted with the following:
15.1. The appellant
is sentenced to serve a term of six (6) years imprisonment on count
1.
15.2. The appellant
is sentenced to serve a term of twenty three (23) years imprisonment
on count 2.
15.3. The sentence
on count 1 will run concurrently with the sentence on count 2.
15.4. The
particulars of the appellant should be registered in the National
Register of Sexual Offenders and appellant is prohibited
from being
licensed to possess a firearm.
It is so ordered.
S.A.M BAQWA
(JUDGE OF THE HIGH COURT)
I agree.
N.V KHUMALO
(JUDGE OF THE HIGH COURT)