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[2014] ZAGPPHC 1053
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Mango v S (A261/14) [2014] ZAGPPHC 1053 (23 April 2014)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE NO: A261/14
DATE: 23 APRIL
2014
In the matter
between:
ALBERT ZONDI
MANGO
..........................................................................................................
Appellant
And
THE
STATE
................................................................................................................................
Respondent
JUDGMENT
MOLOPA-SETHOSA J
[1] The appellant
was arraigned in the Regional court for the Regional Division of
Mpumalanga, held at Ermelo, on six counts of
rape and one count of
attempted rape of minor children. He pleaded not guilty to all seven
counts on 17 September 2013.
[2]
The appellant was subsequently convicted on two counts of rape, to
wit counts 1 and 4 on the 08 October 2013. The two counts
were taken
together for purposes of sentence and the appellant was sentenced to
life imprisonment on the same day, 08 October 2013.
[3]
The appellant brought an application for leave to appeal against both
his conviction and sentence before the learned magistrate
a
quo
,
and leave to appeal against both conviction and sentence was granted
on the 24
th
February 2014.
[4]
The appellant was legally represented during the trial proceedings in
the court
a quo
[5] The appellant
appeals against both conviction and sentence. His grounds of appeal
are set out in his notice of appeal on paginated
pages 158 to 162 of
the record, which is incorporated herein.
[6] The facts that
led to the conviction of the appellant can briefly be summarised as
follows:
[6.1]
in respect of
count
1,
that
on or about 2012 at or near Ermelo the appellant unlawfully and
intentionally committed an act of sexual penetration with one
Z[...]
S[...], a girl aged 12 years old, without her consent.
[6.2]
in respect of
count
4,
that
on or about 2012 at or near Ermelo the appellant unlawfully and
intentionally committed an act of sexual penetration with one
N[...]
Z[...] D[...], a girl aged 12 years old, without her consent.
[7] The state led
the evidence of the following witnesses:
[7.1] Z[...] M[...],
the Complainant in count 7, record page 26;
[7.2] N[...] Z[...]
W[...] D[...], the Complainant in count 4, record page 42;
[7.3] Z[...] S[...],
the Complainant in count 1, record page 63; and
[7.4] V[...] M[...]
M[...], the first report witness, page 76.
[8]The appellant
testified in his defence and closed his case without calling any
defence witnesses.
[9]
From the evidence on record it appears that during 2012 the minor
children [the complainant in
count
1,
Z[...]
S[...], and the complainant in
count
4,
N[...]
Z[...] D[...], together with one Z[...] N[...], who was complainant
in count 7], were on their way to the shop when the appellant
called
them and gave them money to buy him bread and cold drink.
[10]
On their return from the shop, and after giving the appellant the
bread and the cold drink he had sent them to buy at the shop,
the
appellant closed and locked the door to his house [with the minor
children/complainants aforesaid inside the house]. He told
the said
minor children/complainants to eat, which they did. He thereafter
instructed them to go to his bedroom and undress, which
they did. He
then raped them one by one, starting with the complainant in
count
4
[Z[...]
D[...]], then the complainant in
count
1
[Z[...]
S[...]], respectively aged 12 years old and 10 years old. He was
acquitted of the attempted rape of Z[...] N[...], the complainant
in
count 7.
[11] The appellant,
after raping them/the minor children as aforesaid, he gave the said
minor children money and told them not to
tell their parents and/or
anyone else about the rape; that if they told anyone about the rape
he would kill them.
[12] The appellant
denied the allegations against him and stated that he knows nothing
about the alleged rapes and or attempted
rape.
[13] After all
evidence had been led by both the state and the defence, the learned
magistrate considered and weighed the evidence.
He convicted the
appellant on count 1 and 4, and acquitted him on counts 2, 3, 5, 6
and 7. He correctly cautioned himself that
he was dealing with the
evidence of young children. He found corroboration of the minor
children/complainants’ evidence from
the evidence of the
respective complainants, who were raped in the presence of each other
and in the presence of Z[...] N[...],
the complainant in count 7; as
well as from the appellant himself; e.g. the appellant confirmed that
he used to give the complainants
money when they came to his house;
stating that the complainants were friends to his daughter, and that
when he gave his daughter
money he would also give money to his
daughter’s friends, i.e. the complainants. From the evidence on
record it turned out
that during the incident in question herein, the
appellant’s daughter was not present at her home, and in fact
was no longer
staying at her home with the appellant.
[14] The trial court
has the advantage to see and hear witnesses. It is trite that a trial
court is better placed to make findings
of credibility. Looking at
the totality of the evidence it would have required a deliberate
fabrication by the minor children/complainants
to falsely implicate
the appellant. On the facts this is highly improbable, and it could
never be so.
[15]
The minor children/complainants were minor children aged 12 years old
respectively. They could, in any event, not give valid
consent to an
act of sexual penetration. The mere fact that they may have not
resisted when the appellant ordered them to undress
cannot and does
not validate what may be seen as consent on their part. Any sexual
penetration with a minor child of their age
constitutes the crime of
rape. The complainant in
count
1,
Z[...]
S[...], in her evidence stated that when she cried out while the
appellant was raping her the appellant ordered her to keep
quiet
because she would make neighbours aware that something untoward was
happening, and that that would cause him to be arrested.
The
appellant clearly knew that what he was doing to the minor
children/complainants was wrong and unlawful.
[16] The correctness
of the contents of the following documents was admitted by the
defence and was handed in as:-
[16.1]
Exhibit “A”,
birth
certificate of Z[...] S[...], record page 143.
[16.2]
Exhibit “B”,
birth
certificate of N[...] W[...] [Z[...]] D[...], record page 144.
[16.3]
Exhibit “C’
J88,
medical report of the Complainant Z[...] S[...], record page 145.
[16.4]
Exhibit “D”,
J88,
medical report of the Complainant N[...] Z[...] D[...], record page
150.
[17] The medical
report which was compiled for both complainants confirms that there
were scars and old tears which were of suggestive
forceful
penetration in the past. It may not be disputed with any degree of
success that the Complainants were sexually penetrated.
[18] The identity of
the appellant is not in dispute. He admitted that the Complainants
were known to him and that they used to
play at his home with his
children. The only issue in dispute is whether the appellant raped
and/or sexually penetrated the Complainants
in count 1 and 4 and or
whether he tried to penetrate the other complainant.
[19] The minor
children/complainants appeared to be honest witnesses who could not
lie to make the appellant’s life hard.
They admitted that they
went to the appellant’s place even after they were raped by
him. On the other hand, the appellant
did not seem to be an honest
and reliable witness. His evidence was correctly found to be a
fabrication and thus rejected as false
and not reasonably possibly
true.
[20]
On the facts before this court I cannot find any fault with the
conviction aforesaid; neither can I find any misdirection on
the part
of the learned magistrate
a
quo.
When
the evidence of the state witnesses and that of the appellant is
viewed in its totality, the defence version cannot have any
validity.
[21] In the light of
the above the appeal on conviction cannot succeed. The appellant’s
counsel in this appeal also conceded
that the conviction in this
matter was in order, and that the learned magistrate cannot be
faulted for the findings and conclusion
he came to.
[22]
With regard to sentence, having found that no substantial and
compelling circumstances existed, the learned magistrate
a
quo
sentenced
the appellant as follows:
[22.1]
to an effective term of life imprisonment, the two (2) counts having
been taken together for purposes of sentence.
Further,
the learned magistrate
a
quo
ordered
that:
[22.2] in terms of
section 50 (2) (a) (i) of Act 32 of 2007, the particulars of the
appellant must be included in the National Register
for sex
offenders;
[22.3] that in terms
of section 50 (8) (a) of Act 32 of 2007, the appellant whose name has
been submitted to the registrar must
notify the registrar of any
change to his name, sex, identity no., physical or postal address or
other details, as contemplated
in Section 49 of the Act, within 14
days after such change;
[22.4] that in terms
of section 120 (4) (b) of Act 38 of 2005, the appellant is declared
unsuitable to work with children; [the
correct section should be
section 120 (4) (a) of Act 38 of 2005], and this court accordingly
amends the section cited as 120 (4)
(b) to read as 120 (4) (a) of Act
38 of 2005.
[22.5] that in terms
of Section 103 of Act 60 of 2000, the accused is declared unfit to
possess a firearm.
[23] The Criminal
Law Amendment Act, Act 105 of 1997 prescribes a minimum sentence for
rape where the victim is a girl under the
age of sixteen (16) years
as imprisonment for life. It is this sentence (life imprisonment)
which was imposed by the Court a quo.
[24] The appellant
in essence appeals against the severity of the sentence and submits
that there are substantial and compelling
circumstances which
justified the imposition of a sentence less than the minimum sentence
prescribed.
[25]
The imposition of a sentence is pre-eminently for the sentencing
court. It is trite that a court of appeal does not lightly
interfere
with a sentence imposed by the court of first instance; see
R
v Lindley
1957
(2) SA 235
(N). A court of appeal will interfere with the sentence
only if there is a material misdirection or if the court could not,
in
the circumstances of the case, reasonably have imposed the
particular sentence; see S
v
Pieters
1987
(3) SA 717
(A)
at
734
E.
[26]
It became clear that the issue in this appeal is whether the court
a
quo
erred
in not finding that the facts put forward by the appellant amounted
to substantial and compelling circumstances justifying
a sentence
other than life imprisonment as envisaged by s
5\(3)(a)
of
the Act. The section requires that, if the court is satisfied that
substantial and compelling circumstances exist which justify
the
imposition of a sentence less than life imprisonment, it must enter
those circumstances on the record of the proceedings and
may
thereupon impose such a lesser sentence as it deems appropriate.
[27] The personal
circumstances of the appellant which were placed on record were as
follows:
[27.1] The appellant
was 50 years old when he was sentenced. The appellant’s counsel
submitted that the appellant was near
old age and was not above
rehabilitation. Further that a term of life imprisonment meant that
he will have to turn 81 years old
before he may be considered for
parole. That he will be very old and may be harmless to the community
after spending a long period
of time in custody. It transpired from
the appellant’s ID no. ([...]) during sentencing that the
appellant was actually 48
years old [not 50 years old].
[27.2] He was
married.
[27.3] His wife was
unemployed and he was the sole bread winner at home.
[27.4] He had 3
minor children to maintain.
[27.5] He was
illiterate. He never went to school, never received any life skill
and or anger management lessons.
[27.6] He was not
gainfully employed. He only worked as a builder and he earned income
of about R1500-00 per month.
[27.7] He was a
first offender.
[27.8] He was in
custody for a period of 8 months awaiting trial in this matter
[28]
The appellant’s counsel submitted that the complainants, who
were minor children, were not harmed save for injuries sustained
in
the commission of the offence. That the victim impact reports were
not compiled. Further that the complainants did not appear
to have
suffered irreparable damage as they could still go to the appellant’s
place. Further that the court
a
quo
should
have found that the personal circumstances set out above cumulatively
constitute substantial and compelling circumstances.
[29]
The state counsel on the other hand argued that nothing in the
personal circumstances set out above constituted substantial
and
compelling circumstance to justify this court from deviating from
imposing the minimum sentence as envisaged by s 51(3
)(a)
of
the Act. Further that rape of minor children is prevalent in our
society.
[30] Sentencing in
this matter must attach due weight to the seriousness of the crime.
The seriousness of the crimes must weigh
heavily in deciding upon
appropriate sentences. The trial court was fully aware of this and
largely imposed sentence of appropriate
severity.
[31] Whilst this
court may not presume that the appellant’s conduct inclines
towards a strong prospect against rehabilitation
the appropriate
sentence in this case should bring home to the appellant and
like-minded people that:
(i) Rape is a
serious offence that will not be tolerated in our society;
(ii) Women have the
right to bodily integrity and the law will bear heavily on those who
violate their rights;
(iii) The
molestation and abuse of children likewise, will never be tolerated.
[32] The fact that
no victim impact reports, showing what impact the rape had on the
minor children/complainants, served before
the court cannot detract
from the fact that rape by its nature is atrocious. Rape is a
repulsive crime. It is an invasion of the
privacy, the dignity and
the person of a woman/child; truly a violation of any woman and/or
child’s privacy and dignity,
and is bound to have adverse
psychological impact on any rape victim.
[33] The raping of
the complainants by the Appellant, young children old enough to be
his daughters, is gruesome, heartless, cruel
and abominable. There is
evidence that he threatened them with violence should they have
informed anybody of the rape; and the
complainants only spilled the
beans after one of their peers heard them arguing and mocking each
other about having been raped
by the appellant respectively, and the
said child having then informed her mother about the said
accusations, the mother [Vera]
then reported the matter to the
police.
[34]
In
Kearns
v The State
2009
(2) SACR 684
GSJ at 690 Jajbhay J,
inter
alia
,
remarked that:
“
A
rapist not only violates the victim’s privacy and personal
integrity, but inevitably causes serious psychological as well
as
physical harm in the process. Rape is not merely a physical assault
it is often destructive of the whole personality of the
victim. A
murderer destroys the physical body of his victim; a victim degrades
the very soul of helpless female. The physical scar
may heal up, but
the mental scar will always remain. When a woman is ravished, what is
inflicted is not merely physical injury
but the deep sense of some
deathless shame. It is violation with violence of the private person
of a woman. This constitutes an
outrage by all means. By the very
nature of the offence it is an obnoxious act of the highest order.
”
[35]
Reverting to this appeal, the question to be answered is whether the
court
a quo
erred
in failing to find that the circumstances of this case were so
substantial and compelling, as to justify a departure from
imprisonment for life.
I
cannot
find on the facts before this court that the learned magistrate
misdirected himself in finding that there were no substantial
and
compelling circumstances warranting that he deviates from imposing
the minimum sentence of life imprisonment in the circumstances
herein. The appellant can in fact regard himself lucky that he was
only convicted of 1 count of rape each on the minor children
in
question herein. From the evidence on record it appears that he had
sexual intercourse with these young girls on more than one
occasion,
after which he would give the complainants money in the amount of 50c
or R1.00. He clearly corrupted these little girls/complainants.
[36]
I
have
considered both arguments before this court, keeping in mind what was
said in
S v Malgas,
2001(1) SACR 469 (SCA) at 477 d
-
e
regarding
the concept of substantial and compelling circumstances.
“
The
specified sentences were not to be departed of lightly andfor flimsy
reasons which could not withstand scrutiny. Speculative
hypotheses
favourable to the offender, maudlin sympathy, aversion to imprisoning
first offenders, personal doubts as to the efficacy
of the policy
implicit in the amending legislation
,
and like
considerations were equally obviously not intended to qualify as
substantial and compelling circumstances.
”
[37] The
Supreme Court of Appeal has in S v Malgas supra at paragraph [18]
observed that the wording of the Statute signals
that it is
deliberately and advisedly left to the Courts to decide in the final
analysis whether the circumstances of any particular
case call for a
departure from the prescribed sentence. In doing so the Court is
required to regard the prescribed sentence as
being generally
appropriate for the crime specified and enjoined not to depart from
them unless they are satisfied that there is
weighty justification
for doing so.
[38] It is so that
society cries for protection against all types of criminals who
should not be sent to prison today to return
tomorrow showing bold
and daring faces as heroes of crime in a community that shuns crime.
The convicted offenders must do their
stint in prison for all serious
crimes (as the one here) so that when they return they must respect
the right to life and dignity
and all other rights of the citizen,
including the rights of women and children. The appellant was clearly
sexually abusive of
the minor children/complainants herein. He has
not shown any remorse whatsoever for his conduct; he in fact does not
take responsibility
for his atrocious conduct.
[39]
I am not persuaded that the appellant's personal circumstances set
out above meet the threshold of substantial and compelling
circumstances set out in s 51(3
)(a)
of
the Act. There are no circumstances relating to the commission of the
offence which amount to such weighty circumstances.
[40] The appeal
against the sentence imposed can thus in my view, not succeed.
[41] In the result,
I propose that the following order be made:
1. The appeal
against conviction is dismissed. The conviction is confirmed.
2.
The appeal on sentence is dismissed. The sentence imposed by the
court
a quo
is
confirmed.
L M MOLPA-SETHOSA
JUDGE OF THE HIGH
COURT
I agree
AJ BAM
JUDGE OF THE HIGH
COURT
It is so ordered.