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[2014] ZAGPPHC 517
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Ndlovu v S (A562/2012) [2014] ZAGPPHC 517 (28 May 2014)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
APPEAL No:
A562/2012
DATE: 28 MAY 2014
In the matter
between:
STEVEN
NDLOVU
.....................................................................................................................
APPELLANT
And
THE
STATE
.............................................................................................................................
RESPONDENT
JUDGEMENT
MOLOPA-SETHOSA J
[1] The appellant
was charged in the North Gauteng High Court, Pretoria, on four counts
of rape and four counts of robbery with
aggravating circumstances.
[2] The appellant
pleaded not guilty to all eight (8) counts on 25 January 2005, and
exercised his right to remain silent, i.e.
he did not give a plea
explanation disclosing the basis of his defence.
[3]
Later, on 06 June 2005, after the state had led the evidence of eight
(8) witnesses, the appellant changed his plea to guilty
on all eight
(8) counts, and a statement in terms of section 112(2) of the
Criminal Procedure Act 51 of 1977 (“The Act”),
as
amended, which the court
a
quo
accepted
as admissions in terms of section 220 of the Act, was read into the
record, and handed in at court as Exhibit E.
[4]
The Appellant was subsequently convicted of three counts of rape, one
count of attempted rape and four counts of robbery with
aggravating
circumstances on 06 June 2005.
[5] The appellant
was sentenced as follows:
i. In respect of
counts 1 and 2, the two taken together for purpose of sentence, to 15
years imprisonment,
ii. In respect of
counts3 and 4, the two taken together for purpose of sentence, to 15
years imprisonment,
iii. In respect of
counts 5 and 6, the two taken together for purpose of sentence, to 15
years imprisonment,
iv. In respect of
counts 7 and 8, the two taken together for purpose of sentence, to 15
years imprisonment,
v. The sentence of
15 years in respect of counts 5 and 6 was ordered to run concurrently
with the sentence imposed in counts 1 to
4.
vi. 10 years of the
sentence in counts 7 and 8 was ordered to run concurrently with the
sentence in counts 1 to 4.
[6] The effective
sentence of the appellant is 35 years imprisonment.
[7]
The appellant brought an application for leave to appeal against his
sentence before the learned judge
a
quo.
On
05 May 2008 the Appellant’s application for leave to appeal
against his sentence was dismissed by the learned trial judge.
[8]
The appellant then petitioned to the Supreme Court of Appeal for
leave to appeal. Leave to appeal to the full bench of this
Honourable
Court against the Appellant’s sentence was granted by the
Supreme Court of Appeal on 31 May 2011.
[9] The appellant
was legally represented during the trial.
[10]
The facts that led to the conviction of the appellant can briefly be
summarised as follows: in respect of
count
1,
that
on or about 24 February 2003 and at Eastlynn, Pretoria, the appellant
wrongfully and unlawfully had sexual intercourse with
one N[...]
M[...] without her consent. In respect of
count
2,
that
on or about 24 February 2003 and at Eastlynn, Pretoria, the appellant
wrongfully and unlawfully robbed N[...] M[...] of her
cell phone and
R150.00 cash, by assaulting, threatening and throttling her.
[11]
In
respect of
count
3,
that
on or about
15
March
2003 and at or near Kilnerpark, Pretoria, the appellant wrongfully
and unlawfully had sexual intercourse with one S[...] R[...]
M[...]
without her consent. In respect of
count
4,
that
on or about
15
March
2003 and at or near Kilnerpark, Pretoria, the appellant wrongfully
and unlawfully robbed S[...] R[...] M[...] of her money,
cash in the
amount of R20.00, by assaulting and threatening her with a knife.
[12]
In respect of
count
5,
that
on or about 20 March 2003 and at or near Kilnerpark, Pretoria, the
appellant wrongfully and unlawfully had sexual intercourse
with one
D[...] C[...] without her consent. In respect of
count
6,
that on or about 20 March 2003 and at or near Kilnerpark, Pretoria,
the appellant wrongfully and unlawfully robbed D[...] C[...]
of her
cell phone money, cash in the amount of R20.00, by assaulting and
threatening her with a knife.
[13]
In respect of
count
7,
that
on or about 09 April 2003 and at or near Kilnerpark, Pretoria, the
appellant wrongfully and unlawfully had sexual intercourse
with one
M[...] A[...] without her consent. In respect of
count
8,
that
on or about 09 April 2003 and at or near Kilnerpark, Pretoria, the
appellant wrongfully and unlawfully robbed M[...] A[...]
of her cell
phone, by threatening her with a knife.
[14] Basically from
the allegations above, it appears that between 24 February 2003 to
around 09 April 2003, the appellant would
apparently rape and rob the
complainants in the bushes around Pretoria suburbs during the day.
[15] Basically from
the allegations above, it appears that between 24 February 2003 to
around 09 April 2003, the appellant grabbed
his victims [the 4
complainants above], threatened them with a knife, then took them to
the bushes where he raped them; and he
thereafter took their
belongings, e.g. cellular phones and money.
[16]
In his statement, exhibit E referred to above, the appellant admitted
all the elements of the crimes he was charged with, albeit
after the
state had extensively led the evidence of eight (8) witnesses,
including amongst others, the complainants and the doctor
that
examined them; and he was duly convicted of all 8 counts as charged,
save that in respect of count 7 the court
a
quo
only
found him guilty of attempted rape, as the complainant and her
witness, one D[...] M[....], had testified that the appellant
was
disturbed by women who saw him pulling the complainant into the
bushes screaming for help, and he ran away before he could
complete
the act of rape.
[17]
Although
in his application for leave to appeal
[record,
vol.3 pp224-227]
the
appellant had raised issues/grounds pertaining to conviction as well,
it appears on the record
[vol.
3 pp237]
that
he pursued leave to appeal against his sentence only; which is the
leave granted by the Supreme Court of Appeal.
[18] The grounds set
out as a basis upon which he appeals against his sentence can be
summarised as follows:
•
that
the court a quo had little or no regard to his personal
circumstances; that all his personal circumstances taken together
could have qualified as substantial and compelling circumstances
•
that
the sentence in the court a quo is unreasonably long and induces a
sense of shock, more particularly because the appellant
changed his
plea to guilty which shows remorse.
•
that
even though the court a quo took the counts together for purpose of
sentence, 35 years effective term is still very long under
all the
circumstances which were placed on record, which also required
careful consideration.
•
that
the court a quo failed to take into account the fact that the
appellant was not in his sober senses when he committed these
offences, in that he was influenced by liquor, drugs and witchcraft.
•
that
the court a quo failed to take into account time spent by the
appellant in custody pending the finalisation of this matter.
•
that
the sentence imposed is not fair and does not promote the interests
of society.
[19]
It is trite that the imposition of sentence is pre-eminently a matter
within the judicious discretion of a trial court. The
appeal court’s
power to interfere with a sentence is circumscribed to instances
where it is convincingly shown that such
discretion was not
judicially and properly exercised and that the sentence is vitiated
by an irregularity, misdirection or where
there is a striking
disparity between the sentence and that which the appeal court would
have imposed had it been the trial court.
See generally:
S
v
Rabie
1975
(4) SA 855
(A);
S
v
Snyder
1982 (2) SA
694
(A); S v Sadler
2000
(1) SACR 331
(SCA); and Director of Public Prosecutions,
KZN
v P
2006
(1) SACR 243
(SCA) para 10; S v Blignaut
2008 (1) SACR 78
(SCA) at
81f-83f.
[20]
As to the nature of the misdirection which entitles a court of appeal
to interfere, the following was stated in
S
v Pillay
1977
(4) SA 531
(A) at 535 E-F:
“
Now
the word "misdirection" in the present context simply means
an error committed by the Court in determining or applying
the facts
for assessing the appropriate sentence. As the essential inquiry in
an appeal against sentence, however, is not whether
the sentence was
right or wrong, but whether the Court in imposing it exercised its
discretion properly and judicially, a mere
misdirection is not by
itself sufficient to entitle the Appeal Court to interfere with the
sentence; it must be of such a nature,
degree, or seriousness that it
shows, directly or inferentially, that the Court did not exercise its
discretion at all or exercised
it improperly or unreasonably. Such
misdirection is usually and conveniently termed one that vitiates the
Court's decision on sentence.
”
[21]
At the commencement of the trial, the appellant was duly sensitized
of the applicability of s 51 of Act 105 of 1997 by the
court
a
quo
that
upon conviction he would face sentence of 10 years imprisonment
minimum on each count of rape and 15 years minimum on each
count of
robbery with aggravating circumstances. The warning was repeated
again prior to the appellant's submission of admissions
in terms of
Section 220 of the Act [exhibit E], which the court
a
quo
had
considered in the light of the evidence already led when convicting
the appellant.
[22] The trial court
took into consideration the serious nature of the offences, and
carefully balanced it against the appellant's
personal circumstances
which were placed on record by the appellant himself during his
evidence in mitigation of sentence as follows:
•
He
was born on 1 August 1972 which made him effectively round about 33
years old at the time of sentence.
•
He
was born out of a family of three and he is the second born child, he
was born at a place called Tweefontein, in Kwa- Ndebele.
•
At
the time of the commission of the offences he was staying in Mamelodi
Township.
•
He
was employed at a butchery at the time of the commission of the
offences and that he was so employed for a period of about two
years
before his arrest, that he was earning round about R3 500, 00 per
month.
•
He
was married and has four children, aged 12 years, 9 years, 6 years,
and 3 years respectively. His wife passed away during 2002
and at the
time of the death of his wife, the youngest child, according to him,
was 3 months old. The four children were attending
school. He had
continued to bring up his children alone, after the death of his
wife. When his wife passed away, he felt very bad.
The children were
with his mother who was receiving old pension moneys.
•
He
was told that his father separated with his mother whilst he was
still very young and he never saw his father and he has never
been
raised under the guidance of a male person.
•
He
attended school up to grade 9 which he has passed in 1988.
•
He
indicated to the court
a
quo
that
he committed these offences because of usage of dagga, drinking
liquor and misusing drugs; further that he was bewitched.
[23] The trial court
found to be aggravating the fact that
❖
The
appellant committed a series of crimes which by their nature are
considered especially serious and even more serious as they
appeared
to have been planned.
❖
The
appellant targeted vulnerable woman walking alone in broad day light.
❖
A
knife was used to threaten the complainants.
❖
The
complainants were not only robbed of their personal belongings and
but robbed of their dignity.
❖
The
victim impact reports compiled by a social worker, Ms Norah Ngobeni,
revealed the devastating effect that the appellant's crimes
had on
the lives of the complainants.
❖
The
interests of the community.
[24]
The trial court also took into account all the applicable principles
in consideration of what is the befitting sentence in
the
circumstances, as articulated in
inter
alia, Malgas vS
2001
(3) ALL SA 220
(SCA)
[2001 (2) SA 1222
(SCA)] on substantial
circumstances; 5
vZinn
1996
(2) SA 537
(A) on balancing the crime itself with the interest of
society;
Public
Prosecutions Pretoria & Another
2007
(5) SA 30
(CC) on the gravity of the offence and its prevalence and
its indignity to females; S v Khumalo & another
[1984] ZASCA 30
;
1984 (3) SA
327
(A) on the deterrence purpose of sentence.
[25] The trial court
after considering all the factors presented to it concluded that
there were no substantial and compelling circumstances
to depart from
imposing the prescribed minimum sentence. I find no fault with this
finding.
[26]
Counsel for the appellant submitted on behalf of the appellant that
the learned judge
a
quo
did
not show mercy on the appellant when he imposed an effective sentence
of 35 years imprisonment; that the sentence in question
was stiff and
harsh in the circumstances. She however correctly conceded that on
the facts before this court there was no misdirection
at all on the
part of the learned judge.
[27]
On the other hand counsel for respondent submitted that the appellant
takes no responsibility for his crimes and insists that
alcohol,
drugs and witchcraft are to blame for his crimes. That the
prosecutor's cross-examination and the court's questions rubbished
these claims during the trial; and that this was not only an
indicator of lack of remorse but also an indicator that the appellant
may not easily be rehabilitated. He further submitted that the court
a quo
made
no misdirection in arriving at the sentence and imposed an
appropriate sentence which does not warrant any interference. As
already stated above counsel for the appellant is
ad
idem
with
this submission that on the facts before this court it cannot be said
that there was misdirection on the part of the learned
judge
a
quo.
[28] I agree with
both counsel that on the facts before this court it cannot be said
that there was misdirection on the part of
the trial court.
[29] In my view, the
only aspect deserving of consideration is whether the trial court
showed mercy on the appellant if regard is
had to the sentence
imposed, or not. The trial court clearly, despite the severe
aggravation in this matter, displayed mercy on
the appellant by
recognising that the consecutive imposition of the applicable minimum
sentences would cumulatively lead to a sentence
of 60 years
imprisonment; which the court held would be disproportionate to the
crimes committed and accordingly made concurrency
orders which
resulted in an effective sentence of 35 years imprisonment.
[30]
It brooks no argument that rape is inherently a serious crime which
violates the right to dignity of the victim, degrades and
dehumanises
the victim, reducing her to a chattel for the satisfaction of the
lust of the perpetrator. However, the various degrees
of seriousness
of such crimes must still be had regard to when imposing sentence;
refers v Mohomotsa
2002 (2) SACR 435
(SCA)
at
444 a-e.
[31]
Indeed in
S v
Mahomotsa supra at 443 f-h, 445 e-h,
it
was held that factors such as the nature and gravity of the injuries
inflicted on the rape victim, the after-effects following
the ordeal
should be taken into account considering in considering whether
substantial and compelling circumstances are present,
justifying
departure from imposition of the minimum sentence.
[32]
In casu
the
victim impact reports of the complainants [exhibits F, G, H and J
respectively], compiled by a social worker Ms Norah Ngobeni,
were
placed before the court and revealed the devastating effect that the
appellant's crimes had on the lives of the complainants.
Ms Ngobeni
also testified, and it is clear from her evidence and from these
reports, exhibits F, G, H and J respectively, that
the rapes
adversely affected the complainants' lives. The rape impacted on
their physical, emotional health, social, financial
and family lives.
Based on this the trial court correctly found that the crimes
committed by the appellant herein affected the
complainants
psychologically and socially.
[33] As already
stated above, the trial court, after considering all the factors
presented to it, correctly in my view, concluded
that there were no
substantial and compelling circumstances to depart from imposing the
prescribed minimum sentence. The trial
court further took into
account the cumulative effect of the sentence imposed and as set out
above, ordered that some sentence
run concurrently with the sentence
in other counts. In my view the trial court showed immense mercy on
the appellant.
[34]
Having regard to all the conspectus of the matter, I do not find any
misdirection in the manner which the learned judge
a
quo
considered
sentence. There is no evidence to suggest that the sentence is
vitiated by irregularity either. Equally I find nothing
shockingly
disproportionate in the sentence of 35 years imprisonment in the
circumstances of the case.
[35] In the absence
of misdirection or disproportionality, we are not entitled to
interfere with the sentence. In my considered
view there is no merit
in the appeal on sentence.
[36] In the premises
I propose the following order:
1. The appeal
against sentence is dismissed.
L M MOLOPA -
SETHOSA J
JUDGE OF THE
HIGH COURT
I agree
M J TEFFO
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA
I agree:
D DOSIO
ACTING JUDGE OF
THE HIGH COURT OF
SOUTH AFRICA
and it is so ordered