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2012
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[2012] ZAFSHC 18
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Madingoa and Others v S (A 263/10) [2012] ZAFSHC 18 (16 February 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
CASE NO. A 263/10
In
the review between:
GODFREY SELLO MADINGOA
…...................................
1
st
Appellant
ISAK TSIETSI MABASO
…..............................................
2
nd
Appellant
ELLY MATSHIDISO
RICHARD MORATA
…....................
3
rd
Appellant
ABRAHAM MOHLOUWA
NCHENCHE
…........................
4
th
Appellant
PETRUS BAMBISO
….......................................................
5
th
Appellant
versus
THE
STATE
…....................................................................
Respondent
_____________________________________________________
CORAM:
CJ
MUSI, J
et
NAIDOO, AJ
_____________________________________________________
JUDGMENT BY:
NAIDOO, AJ
HEARD ON:
13 FEBRUARY 2012
DELIVERED ON:
16 FEBRUARY 2012
_____________________________________________________
NAIDOO AJ
[1] The appellants were
charged with two counts, the first being Rape and the second being
Assault with Intent to do Grievous Bodily
Harm. The appellants are
alleged to have raped A M V (the complainant) on 7 September 2008 at
Monyakeng in Wesselbron in the Free
State and on the same day at the
same place to have stabbed her with a knife. They were convicted on
both counts in the Wesselbron
Regional Court and sentenced to life
imprisonment on count 1 and two years’ imprisonment on count 2.
The sentences were ordered
to run concurrently. The appellants now
appeal against their conviction and sentence. It should perhaps be
pointed out that the
notices of appeal which were lodged by the
appellants indicated that they were appealing against both their
conviction and sentence
in respect of the rape charge. When the
notice of appeal was filed by their legal representative, the appeal
appeared to be only
in respect of sentence in respect of the rape
charge. They were legally represented during the trial in the
Regional Court. Mr
L Tshabalala appears on behalf of the appellants
in this court and Mr WJ Harrington on behalf of the State.
[2] On the evening of 7
September 2008, the complainant left a tavern in the company of two
male friends. As they walked along,
she noticed eight men whom she
had seen in the tavern and who were known to her approach her and her
companions. They then grabbed
her and dragged her to a nearby school.
They took her behind the school, stripped her of her clothes and
threw her to the ground.
Thereafter they took turns to rape her. She
knew five of the men, who are the appellants in this matter. The
other three she did
not know and they were not arrested. Prior to the
rape, the third appellant stabbed her on her head with a knife. She
was further
assaulted by being kicked on her body and face by a
number of her assailants.
[3] After she was raped,
the second appellant took to his brother’s house as there was
some talk of killing her. At his brother’s
house, he made a bed
for them to sleep, but at that time the third appellant and a male
person that the complainant did not know
arrived at the house she was
in. They kicked the door which was then opened. These two men then
grabbed the complainant and dragged
her to another zinc structure
where the third appellant and the unknown male raped her again. They
made her lie on the bed between
them. A few hours later, while the
third appellant was asleep, the unknown male then left, and the
complainant climbed over the
sleeping third appellant and escaped.
She went back to the school yard to collect her clothes, and
thereafter she stopped at a
nearby house to ask for something to wrap
around her bleeding head. She was given a scarf with which she
wrapped her head. Thereafter,
she went to the house of her uncle and
reported the rape to her cousin, Mamoketi Merriam Mphaka, the second
State witness (Mphaka).
This was shortly before 6H00. Thereafter
Mphaka took her to the police station where a charge was laid. The
complainant was then
taken to the hospital for medical attention. The
appellants were thereafter arrested, mainly with the assistance of
the complainant
who identified the various appellants. As indicated
earlier, she knew only five of her attackers. The other three who
raped her
were never arrested.
[4] Appellants 1, 2, 4
and 5 offered bare denials of the charges as their respective
defences. Appellant 3 changed his plea of not
guilty to one of guilty
in respect of both charges shortly before the State closed its case,
indicating that he admits, as correct,
the complainant’s
version in so far as it relates to him. The third appellant also
admitted the correctness of the DNA report
which linked him to the
crimes, such admission being recorded in terms of Section 220 of the
Criminal Procedure Act 51 of 1977
(the CPA).
[5] At the hearing of the
matter before this court, Mr Tshabalala conceded that the convictions
in respect of all five appellants
were in order and made no further
submissions in respect thereof. He addressed the court only in
respect of the sentence of life
imprisonment, relating to the rape
charge. Mr Tshabalala submitted that the fact that the appellants
spent nineteen months in custody
prior to the conclusion of the trial
should have been taken into consideration by the trial court and that
a lesser sentence should
have been imposed on the appellants. He also
referred the court to
S v Nkomo
2007 (2) SACR 200
(SCA)
, where
it was held that factors such as the age and absence of previous
convictions could be taken into account as mitigating factors.
While
he urged this court to do likewise and interfere with the sentence of
life imprisonment, Mr Tshabalala conceded, however,
that Nkomo was
distinguishable from the present matter because of the circumstances
under which the offences in this matter were
committed, and that if
he were to argue the matter independently of the Nkomo case, he would
be unable to take that argument further.
[6] Mr Harrington
submitted that the sentence of life imprisonment was wholly
appropriate in the present matter. The complainant
was gang raped by
eight men, some of whom raped her again at a place other than the
original crime scene. She was as a result raped
ten times or more.
She was severely assaulted and stabbed on her head. In addition, the
perpetrators were assaulting each other
with knives in order to get a
turn to rape the complainant. He also submitted that when one views
the seriousness of the circumstances
of this matter as a whole, the
nineteen months in custody did not amount to such a long period of
time. The time spent in custody,
awaiting trial in this matter could
and should not, therefore, be regarded as substantial and compelling
enough to deviate from
the prescribed minimum sentence. In addition
to Mr Harrington’s submissions, it can perhaps also be noted
that the treatment
to which the complainant was subjected was cruel,
inhumane and callous. She was made to walk naked and bleeding in the
street firstly
by the second appellant when he took her to his
brother’s house and then by the third appellant and his
companion when they
dragged her from the house of the second
appellant’s brother. In addition, she was obliged to walk naked
in the morning from
the room in which the third appellant and his
friend held her captive, until she reached the school yard where she
retrieved her
clothes
[7] It is clear and not
in dispute that the Criminal Law Amendment Act 105 of 1977 (the Act)
is applicable in this matter. Section
51 (1) of the Act provides that
“
Notwithstanding
any other law, but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person
it has convicted of an
offence referred to in Part 1 of Schedule 2 to imprisonment for
life.”
Part 1 of Schedule 2 of
The Act provides that rape
“
(a)
when committed-
In circumstances
where the victim was raped more than once whether by the accused or
by any co-perpetrator or accomplice;
By more than one
person, where such persons acted in the execution or furtherance of
a common purpose or conspiracy;
……
……
(b) ……
(c) involving the
infliction of grievous bodily harm.
Section 3(a) of the Act
provides for the imposition of a lesser sentence than the prescribed
minimum if the court is satisfied that
substantial and compelling
circumstances exist to justify the deviation from the prescribed
minimum sentence.
[8] The learned
magistrate undertook an extensive examination of the circumstances of
this case as well as the dicta of many leading
cases on the way the
offence of rape should be viewed. He also dealt with the approach, as
set out in our case law, which the courts
should adopt in sentencing
persons convicted of rape. He examined the personal circumstances of
each appellant in detail and concluded
that he could find no
substantial and compelling circumstances that justified his
imposition of a lesser sentence than life imprisonment.
The learned
magistrate also stated that he did not consider the time spent in
custody awaiting trial to be a substantial or compelling
circumstance. Although the learned magistrate did not say, in so many
words, why he did not think so, it is clear, when regard
is had to
the circumstances of the offence as I have outlined above, that the
time spent in custody awaiting trial is not particularly
significant
for the purposes of sentence, and is overshadowed by the aggravating
factors dealt with by the magistrate and also
raised by Mr Harrington
in his address to court. It is perhaps also useful to record that Mr
Tshabalala very candidly conceded
the aggravation inherent in those
factors. I cannot, therefore, fault the learned magistrate’s
reasoning or his conclusion,
and I agree with the sentence of life
imprisonment imposed on each appellant in respect of count 1.
[9] I, accordingly, make
the following order:
The appeal be dismissed.
The convictions and
sentences are confirmed.
____________
NAIDOO, AJ
I agree,
________________
CJ MUSI, J
Counsel for Appellant:
Mr LM Tshabalala
Instructed by:
Bloemfontein Justice Centre
113 St. Andrew Street
St Andrew Building
Bloemfontein
Counsel for the
Respondent:
Mr WJ Harrington
Instructed by
Director
of Public
Prosecutions
Bloemfontein