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[2012] ZAFSHC 183
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Thebe and Another v S (A155/2011) [2012] ZAFSHC 183 (27 September 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A155/2011
In
the appeal between:
MOHAU ISHMAEL THEBE
..............................................
First
Appellant
MOHLABANE DAVID
NTWATSABONE
....................
Second
Appellant
and
THE STATE
..........................................................................
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
et
LEKALE, J
JUDGEMENT BY:
RAMPAI, J
_____________________________________________________
HEARD ON:
17 SEPTEMBER 2012
_____________________________________________________
DELIVERED ON:
27 SEPTEMBER 2012
_____________________________________________________
Rampai, J
[1] These proceedings
were concerned with an appeal. Mohau Ishmael Thebe, the first
appellant, and Mohlabane David Ntwatsabone,
the second appellant,
were together tried, convicted and sentenced as accused number 1 and
accused number 2 respectively in the
Botshabelo Regional Court on
three criminal charges. They came before us on appeal with the leave
to appeal granted by the court
a quo.
[2] The first appellant’s
appeal was not heard. Advocate D Greyling appeared on his behalf. She
carried a brief from the local
lawfirm Kramer Weihmann & Joubert.
She applied for a postponement of the appeal as a whole. The
application to have the whole
appeal postponed was refused but it was
partially granted in respect of the first appellant. His appeal was
accordingly postponed
to Monday the 28 January 2013 by agreement
between Advocate S. Chalale, counsel for the respondent and Advocate
D Greyling. In
he light of all these, I shall say no more about the
first appellant during the course of this judgment.
[3] The scope of the
second appellant’s appeal was limited. He was aggrieved by the
sentence only. The court
a quo
had imposed an effective
sentence of a 28-year term of correctional imprisonment.
[4] The second appellant
was convicted on the 16 March 2010 by Ms M Khoduga, the regional
magistrate. The particulars of the first
charge were that he and
others unlawfully and intentionally had consentless sexual
intercourse with the first victim, Ms N at Section
K, Botshabelo on
Saturday the 28 February 2009. The particulars of the second charge
were pretty much the same as those of the
first. The particulars of
the third charge were that he and others had attacked, stabbed and,
by violent means, robbed Mr Lucky
Boneficious Nzaka of his money. The
gentleman, in other words, the second victim, was also known as
Zembe.
[5] About two weeks
later, on the 29 March 2010, the second appellant was sentenced to 20
years imprisonment in respect of the first
charge of rape, to a
further 20 years imprisonment in respect of the second charge of rape
and to 8 years imprisonment in respect
of the third charge of robbery
with aggravating circumstances. The trial court directed in terms of
section 280
of the
Criminal Procedure Act, 51 of 1977
that the second
appellant serve the first and second sentences concurrently.
Therefore, the effective sentence imposed on him was
28 years
imprisonment.
[6] The grounds of the
second appellant’s appeal were that the trial magistrate
misdirected herself in two ways in sentencing
him as she did.
Firstly, he contended that the court
a quo
misconstrued the
purpose of sentencing. Secondly, he contended that the court
a quo
did not properly take into account his peculiar personal
circumstances.
[7] On the one hand, Ms
Kruger, counsel for the second appellant, submitted that as a result
of those two misdirections, the effective
sentence imposed on her
client was so severely harsh and unbalanced that it warranted
appellate interference.
[8] On the other hand Mr
Chalale, counsel for the respondent, sharply differed. He submitted
that the individual sentences imposed
on the second appellant though
stiff, were not too severe to justify any interference on appeal,
regard being had to the peculiar
circumstances of this particular
case.
[9] In sentencing the
second appellant the court
a quo
took into account his
personal circumstances. He was 22 years of age at the time he
committed the crimes. He was 23 years of age
at the time he was
sentenced. He received formal education up to grade 11. He was
unmarried. He had no dependent minor children.
He was employed as a
general worker. He earned R1 200,00 per month as wages. He was
arrested on 17 June 2009. He had a clean criminal
slate. Those then
were the mitigating factors pertaining to his unique profile as an
individual.
[10] In sentencing the
second appellant the court
a quo
also took into account
certain factors as aggravating factors. As regards the crime of rape
the court
a quo
aligned itself with a very authoritative
decision that rape was a very serious and brutal crime which
humiliates, degrades, invades
and impairs the human dignity, the
privacy and the person of the victim –
S v CHAPMAN
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) at 344I – J.
[11] The trial magistrate
firmly held the view that notwithstanding very punitive legislative
measures enacted in 1997 the incidence
of rape in the country,
particularly in Botshabelo, remained alarming. I share the same view
with the learned regional magistrate.
When the
Criminal Law Amendment
Act 105 of 1997
was enacted it was hoped that the alarmingly high
incidence of rape in general and rape gangsterism in particular would
substantially
decline. Now if it would appear that the legislative
measures have not achieved the contemplated objective as yet. Almost
15 years
later it remains a lamentable state of affairs to note that
women still cannot walk peacefully on the streets of our cities and
suburbs or our towns and townships because criminal gangs are
prowling on the streets in order to rape them almost at will.
[12] The prevalence of
rape gangsterism at the place concerned has done untold harm to the
public interest of the community. It
is high time that the scourge of
rape gangsterism which appears to be spreading like a wave of an acid
in that part of the province
is drastically curbed if not entirely
eradicated. The courts must deterrently, preventatively and
retributively punish convicted
gangsters.
[13] In
S v ZITHA &
OTHERS
1999 (2) SACR 404
(W) at 418g – i Goldstein J
had this to say about a gang of three who had committed a series of
horrific multiple acts of
invasions on the bodily sanctity of the
victim:
“
The word
must go out to the cities and to the suburbs, to the towns and
townships and to the countryside that parliament has directed
the
courts to punish the perpetrators of gang rape as heavily and
severely as the law will allow in the absence of substantial
and
compelling circumstances dictating otherwise, and that the courts
will not shrink from their duty of carrying out this directive
however painful it may be to do so.”
[14] Twelve years since
that very stern legislative warning of heavy sentences was sent
throughout the country, the rape gangsters
are not slowing down. The
second appellant and his cohorts clearly did not heed the warning.
The first rape victim and her companion,
the robbery or second
victim, were peacefully walking in an alley at Section K when they
were surprised by the second appellant
and his cohorts. The first
victim ran away when she saw that her male companion was under
attack. The second victim managed to
escape although he was already
wounded. The first victim was not that lucky. She tried very hard to
flee. However, the gangsters
relentlessly pursued her and caught her
on a residential property where she had run to seek help. From the
presumably fearful inmates
of that particular house she received no
help.
[15] The gangsters
audaciously dragged her out and away from there to an open veld where
each member of the gang shamelessly raped
her. As if those three
horrific and invasive acts of rape were not despicable enough, the
gangsters dragged her away one more time
from the first scene in the
open veld to the second scene inside a dilapidated and disused
building structure. There the second
appellant raped her yet again.
So did each of his two fellow gangsters.
[16] As a result of the
violent attack and physical assault by the criminal gang the first
victim sustained certain bodily injuries
in addition to her genital
injuries. The court
a quo
found, among other aggravating
factors, that the second appellant was remorseless. Against that
backdrop of aggravating factors,
relative to the second appellant,
this appeal has to be considered.
[17] The second
appellant’s criminal conduct as outlined in the paragraph
preceding the aforegoing paragraph attracted the
prescribed minimum
sentence of life imprisonment. That was so seeing that he actually
raped the first victim twice and practically
helped each of his two
fellow gangsters to do likewise. In theory and in law the second
appellant by so doing, made himself guilty
of six acts of rape –
vide section 51 of the Criminal Law Amendment Act 105 of 1977 as
amended read with Part 1 Schedule
2 thereto with particular reference
to paragraphs (a)(i), (a)(ii) and (c). The criminal actions of the
second appellant fell squarely
within the ambit of those three
specific categories. Now, any of these categories of rape attracts
life imprisonment as the ordained
prescribed minimum sentence for
such an offender.
[18] There were serious
aggravating factors against the second appellant. Notwithstanding
such factors the court
a quo
found that there were substantial
and compelling circumstances present which justified deviation from
the imposition of the prescribed
minimum sentence of life
imprisonment. The court
a quo
recorded two factors, which in
the view of her worship, constituted the cornerstones of her finding,
those were: the status of
the second appellant as a first offender
and the 9.5 months presentence incarceration he had to endure. I have
some reservations
as to whether, in this case, those two factors will
properly be. I say no more about that finding.
[19] The real attack on
the sentence imposed on the second appellant was that despite the
aforegoing favourable finding for deviation,
the effective sentence
of 28 years imprisonment was clearly shockingly severe and thus
inappropriate. It was contended on behalf
of the appellant that the
court
a quo
failed to attach sufficient weight to the fact
that the second appellant had saved the life of the first victim when
his cohorts
mooted out the idea that she should be killed.
[20] I am persuaded that
the second appellant rescued the first victim from the verge of
imminent danger. He prevented them from
killing her, took her away
from a very dangerous scene, gave her protective shelter for the rest
of the night and refrained from
raping her any more in his shack. By
so doing, the second appellant morally distinguished himself from his
fellow gangsters. Some
force of intrinsic goodness rekindled the
fading spark of humanity inside him. The good prevailed over evil. He
adopted admirable
apathetic attitude towards the troubled poor victim
at a very crucial moment of her endangered life. In this way the
gained high
moral ground over his co-perpetrators. That subsequent
compassion and respect for human life was, in my view, the strongest
of
all the mitigating factors attributed to him. In spite of his
initial heinous misdeeds.
[21] He did not only
rescue her at that fateful moment in the middle of the night. The
next morning he went a step further. He advised
her to report the
incident to the police. Moreover, he did not ask for any special
favour from her. He knew she would incriminate
him in her report or
statement to the police. It seemed to me that he was prepared to pay
the price.
[22] Those aspects of his
subsequent conduct demonstrated his remorseful acknowledgment of the
wrongs he had done. All those decent
aspects of his conduct tended to
diminish the otherwise high moral blameworthiness of his prior
criminal conduct. In my view all
those acts of compassion signified
that he has the potential to be rehabilitated. The rescue of the
first victim by the second
appellant was a substantial factor which
compelled the conclusion that it would be unjust to impose the
ultimate criminal punishment
on him.
[23] To the extent that
the court
a quo
failed to give the second appellant
substantial and compelling credit for saving the life of the first
victim, it erred in my view.
I firmly believe that the humane manner
in which he ultimately treated the poor woman deserved not only to be
recognised as a substantial
and compelling factor which justified
deviation, but also to be meaningfully acknowledged and reflected in
a form of a distinctive
sentence imposed on him. It was not done in
the court
a quo
. As I see it real differentiation should have
been made between the sentence imposed on him and that imposed on his
co-perpetrator
as regards the two counts of rape.
[24] Besides that, it has
to be borne in mind that the court
a quo
correctly found that
he did not play a leading role even though he was actively involved.
That too was an important factor which
the court
a quo
overlooked in sentencing the second appellant.
[25] It follows,
therefore, that the second appellant was not adequately
individualised during the sentencing component of the judgment
- vide
S v MOKOENA
2012 JDR 0212 (FB) paras [11 - 13] per
Rampai AJP
et
Phalatsi AJ. He and his co-accused were simply
painted with the same brush without much ado. His conduct was
characterised by important
considerations and distinctive features
which justified substantial and not a mere marginal differentiation
in the sentences imposed.
Perhaps a differentiation of three years in
respect of each count of rape would have been fair, just and
equitable. So much about
the sentencing relative to the rape charges.
[26] Now I turn to the
sentence imposed on the second appellant in connection with the
charge of robbery with aggravating circumstances.
The evidence showed
that the second victim was confronted by one member of the gang.
During that confrontation, the second appellant
was a passive
spectator. He did not participate when the aggressive member of the
gang searched the second victim, when he took
his money and when he
stabbed him. It was so that the second appellant was armed with a
knife like his two co-cohorts and that
he took part in the subsequent
chasing of the second victim as he was fleeing from danger. As I have
already said the second victim
eluded the gang, managed to escape and
to hide. The gangsters readily gave up and called off the search.
They did so because the
female and not the male was the prime target
of their common criminal enterprise.
[27] The question arose
during the course of argument on appeal as to whether, on those
facts, the conviction of the second appellant
could be sustained. Mr
Chalale readily conceded that it could not. Ms Kruger was in
agreement. In my view the concession was correctly
made. It was clear
and obvious that the three members of the gang had jointly conspired
to rape the second victim’s female
companion. That much was
evident from the similar actions from which a prior criminal pact
could be inferred with ease. I am persuaded,
as Mr Chalale said, that
the gangster who actually robbed the second victim was indeed on a
criminal frolic of his own when he
did so.
[28] However, as regards
the charge of armed robbery, the proven objective facts relative to
the second appellant did not exclude
all other reasonably possible
inferences save the one drawn by the court a
quo
against the
second appellant. That court found that he was involved in the
robbery incident as well. I cannot agree with that finding.
There
were two reasonably possible scenarios or explanations as to why the
second appellant participated in the chasing of the
second victim.
The first was that it might well have been that the second appellant
wanted to rob or to assault the second victim
further when he
actually became involved in the chasing.
[29] The second possible
explanation, which was no less probable and plausible than the first,
was that it might well have been
that the second appellant did not
intend to rob or to assault the second victim at all when he chased
him as he did but merely
wanted to get him out of the way in order to
get to the first victim. It must be borne in mind that when the
chasing started the
robbery of the second victim was an accomplished
fact. At worst for the second appellant he ran the risk of being
convicted as
an accessory after the fact, and nothing more, by
chasing the second victim. But even such a conclusion would have been
grounded
on a very weak and thin factual foundation.
[30] In those
circumstances the method of inferential reasoning as authoritatively
enunciated in
R v BLOM
1939 AD 188
appeared to have
been misapplied. The inference drawn by the court
a
quo was
not consistent with all the proven facts. Because it was inconsist it
could not have been legitimately drawn. The second
appellant was
entitled to the less burdensome of the two equally reasonable
possibilities, explanations or constructions. The court
a quo
clearly misdirected itself in implicitly drawing, as the only
valid inference, that could be legitimacy drawn from the proven
objective
facts, an adverse inference that the second appellant
participated in the armed robbery merely because he took part in the
subsequent
chasing of the second victim. There was no direct evidence
that he did and no criminal intent to do so could properly have been
inferred from his
ex post facto
conduct.
[31] On the facts, it
could not be said that, by merely chasing the second victim, the
second appellant’s conduct constituted
the requisite criminal
act of association which triggered off the operation of the doctrine
of common purpose (see
S v LUMGILE AND ANOTHER
1999 (2)
SACR 597
(SCA) paras [10 – 11]). I am therefore inclined to
interfere with the conviction on the question law. The finding of the
court
a quo
that the second appellant positively acted in
consent with the fellow gangster who actually robbed the second
victim is one which
I, on appeal, cannot hold to be correct. Such a
finding was a material misdirection which vitiates his conviction –
S v JIMENEZ
2003 (1) SACR 507
(SCA) at 517g - h. It
follows, without saying, that if the conviction of the second
appellant is set aside as regards the charge
of armed robbery, the
sentence of 8 years imprisonment imposed on him in connection with
that offence automatically falls away.
[32] Accordingly I make
the following order:
32.1 The convictions in
respect of the first and the second charges of rape stand.
32.2 The conviction of
the second appellant in respect of the third charge viz robbery with
aggravating circumstances is annulled.
32.3 The sentences of 20
years imprisonment imposed on the second appellant in respect of the
first and second counts of rape are
set aside.
32.4 The aforegoing
sentences are substituted with a sentence of 17 years imprisonment in
respect of each count of rape.
32.5 The second appellant
shall serve the two sentences concurrently.
32.6 The effective
sentence is therefore 17 years imprisonment.
________________
M. H. RAMPAI, J
I concur.
________________
L. J. LEKALE, J
On behalf of appellant:
Ms D Kruger
Instructed by:
The Justice Centre
BLOEMFONTEIN
On behalf of respondent:
Adv. S Chalale
Instructed by:
Director: Public
Prosecutions
BLOEMFONTEIN
/eb