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[2014] ZAFSHC 202
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Khumalo v S (A137/2014) [2014] ZAFSHC 202 (30 October 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A137/2014
In
the appeal of:
BOITUMELO
ISHMAEL
KHUMALO
.................................................................................
Appellant
and
THE
STATE
...........................................................................................................................
Respondent
CORAM:
RAMPAI, AJP et MURRAY, AJ
HEARD
ON: 13 OCTOBER 2014
JUDGMENT
BY: MURRAY, A
DELIVERED
ON: 30 OCTOBER 2014
[1]
This is an appeal against the Appellant’s conviction of the
multiple rape of the same victim and the sentence of life
imprisonment imposed on him by the Regional Court, Viljoenskroon, on
21 April 2011.
[2]
The Appellant pleaded not guilty to the charge of rape in terms of
section 3 the Criminal Law (Sexual Offences and Related Matters)
Amendment Act, Act 32 of 2007, read with
sections 51(1)
and (2) of
the
Criminal Law Amendment Act 105 of 1997
. He was accused of
raping his victim by penetrating her vaginally and anally and forcing
her to suck his private part with
her mouth.
[3]
The complainant testified
in camera
.
She described the rapes in detail, informing the court that the
Appellant grabbed her from behind while she was standing
in front of
her friend’s house and choked her with his arm around her
throat so that she could not scream. He threatened
to stab her
with a bottle if she did scream. He forced her to a dark spot
under the bell-tower of a nearby church where he
undressed her and
told her to lie on her back. He forced her to suck on his
private part until he got an erection,
then penetrated her vaginally
and then anally. At that stage some other men approached
and her assailant told her that
he was the leader of that gang and
that they were waiting to rape her as well. She pleaded
with him to send them away,
and while he was talking to them, she
tried to escape. He, however, caught her before she got
to the gate and raped
her again. The complainant was crying
throughout the ordeal. She told him he was hurting her,
but that did not
stop him and merely elicited derogatory remarks
about her private parts and performance.
[4]
The complainant testified that she could see the Appellant’s
face clearly in the light of a high overhead mast lamp. She
recognised him from having seen him at a house where she had looked
for accommodation some time before. Her version
was
corroborated by the friend whom she told of the rape and who also saw
the Appellant with her directly after the rape.
[5]
The Appellant chose not to testify or to call any witnesses.
The State’s version therefore remained uncontroverted.
On appeal it was correctly conceded that “
the
Court correctly convicted the Appellant and there is no argument to
the contrary”.
[6]
The Appellant did not testify in mitigation before sentencing
either. His legal representative put his personal circumstances
before the court. In considering a suitable sentence, the court
a
quo
then took into consideration the following mitigating
factors:
1)
that the Appellant was 20
years old at the time of the rapes;
2)
that the Appellant was
unmarried with no dependants;
3)
that the Appellant passed
standard 8 at school;
4)
that the Appellant was
unemployed;
5)
that the Appellant was a
first offender; and
6)
that the Appellant had
been incarcerated while awaiting trial for 5 months.
[7]
The court
a quo
also considered as aggravating the following
factors:
1)
the nature and seriousness
of the crime;
2)
the fact that the
Appellant raped the complainant more than once, vaginally as well
as
anally;
3)
the fact that the Appellant
forced her into submission by threatening to stab
her with a
beer bottle;
4)
the fact that the lack of
serious injuries could not be attributed to the Appellant
but was the
result of the complainant having had to submit to his demands out of
fear;
5)
the fact that the Appellant humiliated and degraded the complainant
by raping her in the presence of the other gang members,
by forcing
her to suck his private part, by raping her anally and by making
derogatory comments on her private parts and performance;
6)
the alarming prevalence of this type of crime in the community; and
7)
that the Appellant had had a previous run-in with the law.
[8]
The court
a quo
concluded
that there were no substantial and compelling circumstances which
would justify a deviation from the prescribed minimum
sentence.
Because of the multiple penetrations,
section 51(1)
of the
Criminal
Law Amendment Act, Act
105 of 1997, read with
section 51(3)
and
Part
1
of Schedule 2 of the Act was applicable.
[9]
The court
a quo
therefore
found that in the absence of substantial and compelling circumstances
the mandatory life sentence had to be imposed.
The State
supported the sentence.
[10]
The Appellant’s legal representative in the appeal argued that
the court
a quo
erred
in considering the mitigating circumstances individually instead of
cumulatively. He maintained that, after the
court’s
weighing up of the mitigating circumstances against the aggravating
ones, its imposition of the statutorily prescribed
minimum sentence
was ‘grossly disproportionate’ to the offence and
amounted to a ‘serious misdirection’
and ‘improper
exercise of its discretion’. I do not agree with these
submissions.
[11]
First of all, in my view the fact that the court
a
quo
selected certain of the Appellant’s
personal circumstances for a separate more detailed consideration,
does not
per se
indicate
a failure to consider the cumulative effect of the mitigating
circumstances as alleged. The court, in
fact,
analysed and discarded every other non-personal factor which might
conceivably have counted in the Applicant’s favour
as well.
[12]
Regarding the Appellant’s age (20) the court remarked that he
was not 18. In
S
v Matyityi
Ponnon JA
[1]
stated that
while someone under the age of 18 is to be regarded as naturally
immature, the same does not apply to adults and a
person of 20 years
or more must show by acceptable evidence that he was immature to such
an extent that his immaturity can operate
as a mitigating
circumstance. There was no such evidence in the present
case.
[13]
The Appellant’s status as a first offender regarding this
crime, was also discarded as a possible mitigating circumstance.
In
S
v M
[2]
Satchwell, J, dealt extensively with the fact that the Legislature
did not make allowance for a more lenient sentence for first
offenders when it comes to rapes which fall under Part 1 and section
51(1) and that the imposition of the maximum sentence in such
circumstances therefore does not lead to injustice. In
and of itself the Appellant’s first offender status is
not a
‘substantial and compelling circumstance’ and could only,
in conjunction with other factors, persuade a court
that such
circumstances do exist.
[14]
The other mitigating circumstance that the court
a
quo
singled out for special
consideration, was the length of time that the Appellant had been
incarcerated. The court referred to a
recent decision in the Supreme
Court of Appeal that held that the mere fact that an accused had been
incarcerated for a long time,
is not in itself a substantial and
compelling circumstance.
[15]
In
S
v Malgas
[3]
the court indicated that the only matter that needed to be considered
regarding the length of incarceration was whether the delay
in
finishing their appeal “
in
and of itself”
justified
a lighter sentence. Although incarceration without a very good
reason, is not acceptable, the five months period
which the Appellant
spent in incarceration
in
casu
is
not so inordinate that it in and of itself justifies a lighter
sentence.
[16]
The court
a quo
also
analysed and discarded each of the other, non-personal, factors which
had the potential to be in the Applicant’s favour.
It
indicated, first of all, that the only aspect of the Appellant’s
conduct which it could regard as mitigating, was his
purported
intervention to prevent the other gang members from also raping the
Appellant. But as the court then stated,
it was not even
clear that he did intervene.
[17]
The absence of serious injuries the court ascribed to the
complainant’s fear of being stabbed with the beer bottle and
her consequent acquiescence in the Appellant’s demands. The
court also found that the complainant’s visit to
the tavern
could not be held against her. She was not there alone, but
with three friends.
[18]
The court also examined and discussed, in detail, each of the
numerous aggravating circumstances pertaining to this particular
case
and found that, even with knowledge of the Appellant’s
personal circumstances, it could find nothing that constituted
substantial and compelling circumstances.
[19]
In that context, in my view it is clear that the court did apply its
mind to all the mitigating circumstances and decided that
there were
none weighty enough to warrant a finding of substantial and
compelling circumstances which would outweigh the aggravating
circumstances to the extent that a deviation from the mandatory life
sentence prescribed for multiple rapes could be justified.
[20]
I agree with the court
a
quo
that nothing in the Appellant’s personal circumstances or
conduct carried enough weight, even cumulatively, to tip the scale
towards the presence of substantial and compelling circumstances,
either individually or cumulatively. Had the Appellant
exhibited any sign of remorse, for instance, that could have been a
weighty mitigating factor. But there is a total
absence
of any remorse. There is no sign that the Appellant has taken
any responsibility for his actions. That does
not bode well for
any prospects of rehabilitation (See:
S
v Keyser
[4]
).
He pleaded not guilty and so forced the complainant to relive
the horror of the rapes in court. He failed to testify
either
during the trial or before sentencing and had his legal
representative put a false version to the complainant in
cross-examination.
The latter, of course, a court cannot condone.
[5]
[21]
It is trite that rape is ‘a very serious offence, constituting
as it does a humiliating, degrading and brutal invasion
of privacy,
dignity and the person of the victim
[6]
.
It has been described as ‘
an
appalling and utterly outrageous crime ‘which violates a
‘woman’s body [which] is sacrosanct
.’
[7]
In view, especially, of the Applicant’s repeated
rape of the complainant and the degradation to which he subjected
her
to in the present matter, I respectfully agree with Satchwell, J,
quoting from
S
v Mahomatsa
[8]
that:
“…
one
must guard against the notion that because still more serious cases
than the one under consideration are imaginable, it must
follow
inexorably that something should be kept in reserve for such cases
and therefore that the sentence imposed in the case at
hand should be
correspondingly lighter than the severer sentence that such
hypothetical cases would merit. .”
[22]
A Court in sentencing needs to take into consideration all relevant
factors in such a way that the interests of the community,
the
seriousness of the offence and the personal circumstances of the
Appellant are all properly balanced. (See:
S
v Banda and Another
[9]
).
In my view, the court
a
quo
did not overemphasise any of the abovementioned factors to the
detriment of any of the others in imposing, in the absence of
substantial
and compelling circumstances, the prescribed minimum
sentence. In the circumstances of this case, the sentence does
not appear
to be totally disproportionate to the crime.
Neither does it appear to be shockingly inappropriate. And I
cannot
find that the court
a
quo
committed
such a material misdirection that interference in the sentence is
warranted.
[23]
Therefore, since a court of appeal will only interfere with a
sentence if the sentence is shockingly inappropriate and/or if
the
Court
a quo
materially misdirected itself or committed some serious irregularity
during sentencing, which in my view is not the case in the
present
matter, I find no reason for this court to interfere in the sentence
imposed on the Appellant.
WHEREFORE
the following order is made:
1.
The appeal against the sentence is
dismissed.
2.
The life sentence is confirmed.
______________
H.
MURRAY, AJ
I
concur.
________________
M.H.
RAMPAI, AJP
On
behalf of the
Appellant:
K Pretorius
Bloemfontein
Justice Centre
Southern
Life Plaza Building
First
floor, South Wing
41
Charlotte Maxeke Street
BLOEMFONTEIN
On
behalf of the State:
M Strauss
Director
of Public Prosecutions
Ground
floor
Waterfall
Centre
BLOEMFONTEIN
[1]
2011(1)
SACR 40 (SCA) at para [14]
[2]
2007
(2) SACR 60
(W) at para
[3]
2013
(2) SACR 343 (SCA)
[4]
2012
(2) SACR 437
(SCA) at para [29]).
[5]
S
v GK,
supra,
at
para [23]
[6]
S
v Chapman 1997 (2) SACT 3 (SCA)
[7]
S
v Ncheche 2005(2) SACR 386 (W) at 395h
[8]
2002
(2) SACR 435
(SCA) at para [19] at 444d – e.
[9]
1991
(2) SA (BGD) 355 (A).