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[2013] ZAKZPHC 30
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Sithole v S (AR 118/13) [2013] ZAKZPHC 30 (20 June 2013)
IN THE KWAZULU-NATAL HIGH COURT,
PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
Appeal
Case No. AR 118/13
In the matter between:
SIBUSISO JOSEPH SITHOLE
...............................................................
APPELLANT
and
THE STATE
........................................................................................
RESPONDENT
______________________________________________________________
JUDGMENT
Delivered
on: 20 June 2013
MNGUNI
J
[1] The appellant was convicted of
three counts of attempted robbery as defined in section 1 of the
Criminal Procedure Act 51 of
1977 (‘the Act’) (counts 1,
5 and 8), two counts of indecent assault (counts 2 and 3), two counts
of common law rape
(counts 4 and 10), two counts of assault with
intent to do grievous bodily harm (counts 9 and 15) and three counts
of rape in contravention
of section 3 read with sections 1, 58, 59,
60 and 61 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32
of 2007 (‘the CLAA’) (counts 12, 13 and
14). The indictment on counts 4, 10, 12, 13 and 14 was read with the
relevant
provisions of the Criminal Law Amendment Act 105 of 1997
(‘the
Criminal Law Amendment Act&rsquo
;).
[2] On counts 1 and 5 he was sentenced
to a term of 5 years’ imprisonment on each count. On counts 2,
3 and 8 he was sentenced
to a term of 10 years’ imprisonment on
each count. On count 10 he was sentenced to life imprisonment. Counts
12, 13 and 14
were taken as one for the purposes of sentence and he
was sentenced to life imprisonment. On count 15 he was sentenced to a
term
of 6 months’ imprisonment. The court
a quo
directed
all the sentences to run concurrently with the sentence imposed on
count 10. In addition, the court
a quo
fixed a non-parole
period of 25 years in respect of the effective period of
imprisonment. With the leave of the court
a
quo
, this
appeal is directed against the severity of the sentence.
[3] On behalf of the appellant, it
was, firstly submitted that there are substantial and compelling
circumstances present which
justified lesser terms of imprisonment on
counts 10, 12, 13 and 14 than those imposed and therefore this Court
is at liberty to
interfere with the sentence. Secondly, it was
submitted that the court
a quo
misdirected itself in imposing
a non-parole period of 25 years in terms of section 276(B) (2) of the
Act.
[4] In order to have regard to the
contentions raised on behalf of the appellant, it is necessary to set
out the facts and the circumstances
surrounding the commission of the
offences in question, as they emerge from the record.
[5] During January 2007, the
complainant on counts 1 and 2 resided at Mpolweni Mission, in the
district of New Hanover. On 1 January
2007 she was in Durban. She
left Durban in the afternoon for the Mpolweni Mission. She had to
catch a taxi to Pietermaritzburg
in order to connect with the one to
Mpolweni Mission. She arrived in Pietermaritzburg at 18h00 and
alighted at East Street. She
went to Masukwane Taxi Rank to connect
with a taxi to Mpolweni Mission. She did not find taxis to Mpolweni
Mission at the taxi
rank. She went to look for a public telephone to
telephone home and report about her predicament. She met two males at
the robot
controlled intersection, one of whom was the appellant.
They asked her where she was going to. She told them that she was
looking
for a public telephone. The appellant and his companion
grabbed her by her hand and took her to a bushy area near the ML
Sultan
School. Upon reaching the bushy area, the appellant’s
companion left him with her. The appellant thereafter aggressively
demanded money from her. She gave him her handbag. The appellant
searched through the handbag and found a negligible amount of money.
[6] He threw the handbag at her face
and searched her body but did not find anything. He slapped her with
his hand and asked her
to remove her pants. She refused and the
appellant removed them. She unsuccessfully tried to push him away but
the appellant ordered
her to bend forward. He then unzipped his
pants, took out his penis, inserted it into her anus and made sexual
movements. After
a while, he stopped and asked her to lie down and
face up. He climbed on top of her and asked her to kiss him and she
refused.
The appellant kissed her against her will and he thereafter
ordered her to dress up.
[7] She felt wetness in her thighs. He
took her panty, threw it away telling her that he was doing that to
prevent her from laying
charges against him. Dr Sewrain of Northdale
Hospital examined her on the same day of the incident. He recorded
his findings and
conclusion on the form J88 which was received into
evidence as exhibit “C”. The vaginal examination
confirmed that
she was still a virgin but the anal examination showed
a bruising of haematoma, redness and a dilated orifice and a whitish
discharge.
Dr Sewram concluded that anal penetration had occurred.
[8] During February 2007 the
complainant on counts 3 to 6 resided at Ntabamhlophe area in the
district of Escourt. On 16 February
2007 she travelled in a bakkie
from Escourt to Pietermaritzburg. She arrived in Pietermaritzburg
between 17h30 and 18h00. The appellant
was also a passenger in the
same bakkie. When she arrived in Pietermaritzburg, she alighted near
a school and walked up the road
to catch a taxi to Machibisa,
Edendale. The appellant alighted with her and referred to her as his
home girl. The appellant volunteered
to carry her bag for her and
said that they should take a shortcut to fetch his sister first
before going to Machibisa. She walked
with him along the suggested
shortcut until they reached a bushy area near a school. The appellant
then turned and slapped her
repeatedly with an open hand on the face.
He thereafter forced her to walk with him further into the bush where
he aggressively
demanded money and a cellphone from her. He assaulted
her further and forced her to undress. He thereafter ordered her to
lie down,
which she did. He pulled his pants down, lay on top of her,
pulled out his penis, inserted it into her vagina and sexually
assaulted
her against her will. When he finished, he ordered her to
lick his penis. He took her bag, emptied the contents, took out her
towel,
wiped himself and threw it at her.
[9] He then walked away and left her
in the bush. She found her way out of the bush and went to the
Shoprite Taxi Rank where she
met a certain lady and reported to her
what had happened. The said lady took her to the Imbali Clinic and
from there she was transported
by ambulance to the Edendale Hospital.
Dr Khumalo examined her. During examination, the doctor found
abrasions to her posterior
fourchette which, according to the doctor,
were caused by constant friction without lubrication. The doctor
found the abrasions
to her posterior fourchette to be consistent with
non-consensual intercourse. The doctor also found semen on her
vagina. The doctor
recorded her findings and conclusion on a form J88
which was received into evidence as exhibit “K”.
[10] During February 2007 the
complainant on counts 7 to 10 resided at Sweetwaters area in
Pietermaritzburg. In the morning of 17
February 2007 she left home
for work in Pietermaritzburg. She knocked off from work at about
14h00 and went to town to buy food
for her child. Whilst walking
along Retief Street proceeding towards Pietermaritz Street, the
appellant approached her and offered
to give her a lift home. The
appellant was not known to her but he seemed to know her very well
and he even called her by name.
He introduced himself to her as a
prison warder who works at the Westville Prison. The appellant told
her that he also resided
at the Sweetwaters area.
[11] The appellant asked her to board
his vehicle and told her that he would fetch his wife first at the
Masukwane Taxi Rank before
proceeding home. She boarded his vehicle.
The appellant drove towards the Masukwane Taxi Rank with her. When
they arrived at the
taxi rank, he asked her to alight with her
luggage. Although she became suspicious, she alighted. The appellant
also alighted.
They walked along a footpath until they reached an
area near the ML Sultan School where he aggressively turned against
her and
demanded money and a cellphone. As she was taking the money
out from the bag, the appellant grabbed the bag and took out the
money.
He thereafter demanded her cellphone but she told him that she
did not have one.
[12] The appellant then ordered her to
undress but she refused. He undressed her by removing her panty and
skirt and ordered her
to lie on her back. He thereafter lay on top of
her, took out his penis, inserted it into her vagina and sexually
assaulted her.
When he finished, he ordered her to lie on her stomach
and wanted to penetrate her from the back but she refused. She picked
up
a brick and hit him with it. When he realised that she was
fighting back the appellant also picked up a brick and hit her on the
head. She sustained an open wound on the head and bled. He grabbed
her, pressed her down to the ground, bit her on the chest area,
turned her around and forced her to lie facing down. He sexually
assaulted her again by penetrating her vagina from the back. When
he
finished, he instructed her to get up and go.
[13] She ran out of the bushy area
with her panty on her ankles until she reached the road. She was
assisted by a traffic officer
who contacted the police for her. She
was taken by ambulance to Northdale Hospital where Dr Rajpaul
examined her. The examination
revealed that she sustained a
laceration on the head and a bite mark on the chest. The doctor
concluded that the laceration on
the head was consistent with being
hit with a brick. The appellant also robbed her of an amount of R
70.00. The white top which
she wore was heavily blood-stained. The
doctor also found semen on her vagina. He took a vaginal swab and
placed it into the sealed
box which he received from the police. He
recorded his findings and conclusions in the form J88 which was
received into evidence
as exhibit “N”.
[14] During December 2007 the
complainant on counts 11 to 15 resided at Cinderella Park in
Pietermaritzburg and was working at the
Eastwood Beer Hall. On 28
December 2007 she knocked off from work at 19h00 and went to a taxi
rank near the Asmalls Shop to board
a taxi home. The appellant was at
the taxi rank and he asked here where she was going to. After she
told him about her intended
destination, the appellant offered her a
lift. He told her that his vehicle was parked behind the Masukwane
Taxi Rank and asked
her to accompany him to the vehicle. She went
with him. Upon reaching the Masukwane Taxi Rank, she asked him as to
where was the
vehicle he was talking about. The appellant told her to
feel free. He said to her that he was a prison warder and promised
not
to harm her.
[15] When they were near the ML Sultan
School he turned against her and demanded money and a cellphone. He
grabbed her handbag and
searched it but did not find any money. She
told him that she only had a taxi fare. The appellant ordered her to
remove her clothes
and to leave them ten paces away from them. The
appellant had already drawn a knife and was threatening her with it.
He ordered
her to suck his penis. She complied. He thereafter lowered
his pants, asked her to turn around and bend over. He inserted his
penis
into her vagina from behind whilst she was bending over and
holding onto a tree stump. When he finished, he asked her to turn
around
and lie on her back against the tree stump facing up. He again
inserted his penis and sexually assaulted her. When he finished,
he
went to where she left her clothes, picked up a piece of plank and
threw it at her, hitting her on the ankle. She left the scene
and
reported the incident to the police. She was taken to the Northdale
Hospital where she was examined by Dr Vanker. The doctor
did not make
any positive findings regarding the sexual assault. He, however
testified that the absence of such a finding did not
mean that no
sexual assault had taken place.
[16] It is trite that the sentencing
court has a wide discretion in imposing what it considers to be an
appropriate sentence and
that each case depends upon its own peculiar
facts. Accordingly, a court sitting on appeal will generally be slow
to interfere
with the exercise of the trial court’s discretion
and may do so only in limited circumstances. In
S v Kent
1981
(3) SA 23 (A) at 28H Holmes AJA stated these considerations as
follows:
“
[the]
court can only interfere if the [court
a
quo
]
exercised its resultant discretion improperly; that is to say, if its
sentence is vitiated by misdirection or irregularity or
is
disturbingly inappropriate.”
[17] In
S v Malgas
2001 (1)
SACR 469 (SCA) para 12 Marais JA restated the approach in considering
an appeal against sentence to be the following:
“
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial Court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates its
exercise of
that discretion, an appellate Court is of course entitled to consider
the question of sentence afresh. In doing so,
it assesses sentence as
if it were a court of first instance and the sentence imposed by the
trial court has no relevance. As it
is said, an appellate Court may
yet be justified in the interfering with the sentence imposed
by
the
trial
court. It may do so when the disparity between the sentence of the
trial court and the sentence which the appellate Court
would have
imposed had it been the trial court is so marked that it can properly
be described as ‘shocking’, ‘startling’
or
‘disturbingly inappropriate’.”
[18] The evidence placed before the
court
a quo
in mitigation of the sentence was that the
appellant was 37 years of age. He was not married and had two minor
children aged 10
and 7 years. Both children were staying with their
mother who worked as a domestic worker. The appellant possessed a
standard 9
level of education. He was unemployed at the time of his
arrest, having been last employed as a Rank Manager in 2007 and
earned
R 250.00 a week.
[19] In aggravation of the sentence,
counsel for the State in the court
a quo
emphasised that the
appellant was convicted of theft in 2004 and was sentenced to a term
of 6 months’ imprisonment. In 2005
he was convicted of robbery
and sentenced to a term of 3 years’ imprisonment. He submitted
that those sentences and the time
spent by the appellant in prison
did no salutary effect on his further commission of offences. Instead
the appellant graduated
into committing more serious offences.
[20] The record demonstrates that the
appellant was engaged in a course of conduct where he would lure
unsuspecting impressionable
ladies by a chivalrous act of offering to
accompany them to a taxi stop or by offering them lifts in his
vehicle. He would then
take them to a secluded place where he would
attack them and sometimes rob them of their possessions and would
thereafter sexually
assault them. The court
a quo
correctly
found that these attacks, robberies and sexual assaults on the
complainants were premeditated, systematically planned
and executed.
[21] Having carefully considered the
matter, I am satisfied that the court
a quo
was correct in
concluding as follows:
“
I
have said time and time again that rape is one of the most serious of
violent crimes. The victim’s dignity and privacy are
violated.
Whilst the physical scars may heal in time, the mental anguish and
trauma often live on, with devastating consequences
to normal living.
The victims in this case were severely traumatised and this
manifested as they testified in court. Most of them
broke down, could
not bear to look at the accused and they had to relive the horror of
those moments when they testified. Despite
being connected by DNA
evidence and being positively identified, you denied involvement in
the commission of these crimes. You
sat impassive throughout the
trial, clearly unmoved by the anguish exhibited by the complainants.
All the victims were strangers
to you. The offences were brazenly
committed in a public place where the complainants had a right to
feel safe. You also, in one
instance, used a knife to threaten your
victim. In another you viciously, as I have indicated, assaulted her
with a brick. And,
on the last victim you threw a piece of wood at
her for no apparent reason. All these offences indicated a sadistic
streak. You
showed absolutely no regard for the complainants. It is a
sad reality that crimes of this nature are increasing. This country,
as a result thereof, appears to be plunging into a moras of
immorality. Actions, such as yours, rip our very frayed moral fabric
asunder. The Courts have a constitutional duty to protect our
vulnerable persons.”
[22] There remains one further matter
to be considered. It is this. Counsel for the appellant contended
that the court
a quo
misdirected itself in imposing a
non-parole period of 25 years in terms of section 276 (B) )2) of the
Act in this matter. He submitted
that the trial court did not
consider whether it should exercise its discretion to impose a
non-parole period and did not afford
counsel during the trial an
opportunity to address the court on whether the court should exercise
that discretion, and if the trial
court was so disposed, what that
non-parole period should be. For this submission, he found comfort in
the judgment of
Mthimkhulu v The State
(547/12) [2012] ZASCA
53 (4 April 2013). Although there is some merit in this submission,
it does not assist the appellant because
in terms of
section 73
(6)
(b) (iv) of the
Correctional Services Act No 111 of 1998
he may not
be placed on parole until he has served at least 25 years of the
sentence. In any event, I am satisfied from the evidence
adduced in
the court
a quo
that the appellant is a serial rapist with no
prospects of rehabilitation.
[23] Having carefully considered the
judgment of the court
a quo
on sentence, I am satisfied that
it comprehensively considered and weighed all the competing interests
on sentence and made findings
that were well grounded in the record.
I can find no error in its analysis of the evidence on sentence and I
am satisfied that
it took into account all the factors enumerated by
the appellant’s counsel in mitigation of sentence.
[24] I am further satisfied that the
circumstances of this case do not render the prescribed sentences
unjust and disproportionate
to the crime, the criminal and the needs
of the society and that no injustice has resulted in imposing of
same.
Order
[25] In the result, I make the
following order:
The appeal against the sentence is
dismissed and the sentences imposed by the court
a quo
are
confirmed.
____________
Mnguni J
____________
Patel JP:
____________
Stretch AJ: I agree
Date of Hearing : 17 May 2013
Date of Judgment : 18 June 2013
Counsel for the Appellant : Adv. J.
Butler
Instructed by : PMB Justice Centre
Counsel for the Respondent : Adv.
A.S.H Walters
Instructed by : Director of Public
Prosecutions,
Durban