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[2013] ZAFSHC 174
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Nyareli v S (126/2004) [2013] ZAFSHC 174 (3 October 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No: 126/2004
In
the matter between:
THABO NYARELI
.....................................................................
Applicant
and
THE STATE
..........................................................................
Respondent
_____________________________________________________
JUDGMENT:
DAFFUE, J
DELIVERED ON:
3 October 2013
_____________________________________________________
[1] Applicant firstly
applies for condonation for the late filing of his application for
leave to appeal and secondly that leave
be granted to appeal against
the sentence imposed by the honourable court (per Van Coppenhagen J)
on 11 October 2004. The notice
of motion contains a prayer 3 wherein
the applicant seeks such further and/or alternative relief as the
court deems fit.
[2] Although leave is
sought to appeal against the sentence only, it is apparent from
paragraph [5] of the founding affidavit read
with paragraph [9]
thereof that applicant intends to appeal against his conviction as
well.
[3] On receipt of the
file I requested the office of the DPP as well as the Bloemfontein
Justice Centre to file heads of argument
to deal specifically with
the conviction and sentence in respect of count two. Advocates Botha
and Makhene from the DPP and Bloemfontein
Justice Centre
respectively, are thanked for their valuable heads of argument which
I sincerely appreciate. I confirm that both
counsel could not argue
the matter on the time and date set and agreed upon, whereupon they
agreed that I could deal with the application
in chambers.
[4] Applicant and three
others were convicted in the regional court Bloemfontein on 17 July
2004 on two counts of rape whereafter
the matter was referred to the
Free State High Court for purposes of sentence. On 11 October 2004
the Free State High Court, per
Van Coppenhagen J, confirmed the
convictions and after hearing evidence of the complainant in count
two, sentenced applicant to
12 years’ imprisonment in respect
of the first count and life imprisonment in respect of the second
count.
[5] On 26 March 2009 CJ
Musi J struck applicant’s application for leave to appeal from
the roll as it was not accompanied
by an application for condonation.
On 6 May 2013 a further four years down the line applicant, through
the offices of the Bloemfontein
Justice Centre, served and filed the
notice of motion referred to in paragraph one
supra
.
[6] Mr Botha indicated in
his heads of argument that the State did not oppose the application
for condonation. I must say that the
reasons advanced for the delay
are not at all convincing, but taking into consideration the
situation of applicant as a sentenced
prisoner, the seriousness of
the matter, the infringement of applicant’s rights if
condonation is not granted and the prospects
of success in respect of
the sentence imposed in respect of count two, I am of the view that
condonation should be granted.
[7] I had serious
concerns whether the conviction on count two was in order. I
considered granting leave to appeal in this regard.
It is common
cause that applicant never raped the particular complainant. However,
having considered the totality of the evidence
and the authorities
referred to I am satisfied that applicant was an accomplice to the
rape in count two and that he acted in the
execution of a common
purpose with the other accused. Although he did not rape the
complainant in count two, he and accused three
were responsible for
taking the two complainants away from the build-up area to an open
veld next to a dam. Appellant was armed
with a kierie. When he was
busy raping the complainant in count one, his colleague, accused
three, was raping the complainant in
count two. At that time the two
other accused and a fifth person arrived and took over. The two
complainants were raped by these
persons as well. Thereafter the five
males accompanied the two complainants, eventually to disperse whilst
accused three took the
complainant in count two to his house where he
raped her again during the night.
[8] I am satisfied that
applicant through his conduct facilitated, assisted in and/or
encouraged the rape of the complainant in
count two by accused three
and the other perpetrators. It would not be possible for accused
three, acting on his own, to force
the two ladies from the township
to the open veld to be raped there. It is also clear from the
evidence that applicant very well
knew that he and accused three and
probably the others as well, would have sexual intercourse with the
two complainants against
their will and therefore he associated
himself with the acts of those that raped the complainant in count
two. See
S v Msomi
2010 (2) SACR 173
(KZP) at 176 and
177.
[9] In adjudicating this
application I also considered
S v Kimberley and Another
2005 (2) SACR 663
(SCA). This judgment must be distinguished as the
facts therein are not on all fours with the facts
in casu
. It
was found in para [12] at p 669 that appellant one in that case was
an accomplice and not a co-perpetrator, but it was not
found that he
acted in the execution of a common purpose or conspiracy. In
casu
and notwithstanding the absence of proof of a prior agreement, I am
satisfied that the pre-requisites for a conviction based on
common
purpose have been met. See
S v Mgedezi and Others
1989
(1) SA 687
(AD) at 705I – 706C.
[10] Consequently I am
satisfied that there are no reasonable prospects of success on appeal
in respect of the conviction on count
two. I did not even require
argument pertaining to the conviction on count one as the evidence
against applicant was overwhelming
and there is just no reasonable
possibility that another court may come to a different conclusion.
[11] Regarding sentence I
must say that the sentence of 12 years’ imprisonment in respect
of count one seems to be too lenient.
There is no reasonable prospect
that another court may come to a conclusion that the sentence is too
harsh should be reduced. The
only further issue that merits attention
is the sentence of life imprisonment in respect of count two.
[12] Van Coppenhagen J
heard the evidence of the complainant in count two and made it clear
that it was apposite to individualise
and impose different sentences
in respect of the two counts. It appeared from the evidence that the
complainant in the second count
had to be hospitalised for three
months as a result of depression. She even attempted to commit
suicide. Her personality changed
totally as a result of the rape and
furthermore she was tested positively for HIV. Clearly the rape was
regarded as a severely
traumatic experience that had a significant
impact on such a young lady.
[13] I fully embrace the
convictions of our Supreme Court of Appeal as
inter alia
set
out in
S v Matyityi
2011 (1) SACR 40
(SCA) at para
[23], p 53 and
S v Malgas
2001 (1) SACR 469
(SCA) to
the effect that minimum sentences have been ordained by the
legislature and should be imposed, unless there are truly
convincing
reasons for departing from them. I also endorse the
dicta
of
the SCA in
S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at
5 b-e.
[14] Having said this I
am of the view that another court, acting reasonably, may find that
life imprisonment was not warranted
in
casu.
Applicant was not
a co-perpetrator in respect of count two as he at no stage raped or
attempted to rape the complainant or threatened
to do so. He parted
ways with accused three and the complainant where after she was raped
again more than once during the night.
Although he should be blamed
for the traumatic experience which the complainant encountered, his
role in the whole ordeal is much
lesser and not as severe as that of
accused three in particular.
[15] Consequently I am of
the view that applicant’s case is more than arguable and that
there are reasonable prospects that
another court may come to a
different conclusion in respect of the sentence of life imprisonment.
It is not necessary to refer
the matter to the Supreme Court of
Appeal and leave should therefore be granted to the Full Bench of the
Free State High Court.
ORDER
[16] Therefore the
following orders are made:
The application for
condonation is granted;
Leave is granted to
applicant to appeal to the Full Bench of the Free State High Court
against the sentence imposed in count two
only.
______________
J. P. DAFFUE, J
On behalf of applicant:
Adv. J. S. Makhene
Instructed by:
Justice Centre
BLOEMFONTEIN
On behalf of respondent:
Adv. J P du P Botha
Instructed by:
The Director: Public
Prosecutions
BLOEMFONTEIN
/eb