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2009
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[2009] ZAGPJHC 22
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Makwakwa and Another v S (A50/05) [2009] ZAGPJHC 22 (29 May 2009)
IN THE SOUTH GAUTENG
HIGH COURT
(JOHANNESBURG
)
CASE
NO: A50/05
In the matter between:
MAKWAKWA,
PETRA
First Appellant
LEKALAKALA,
JERRY Second Appellant
And
THE
STATE
Respondent
JUDGMENT
NICHOLLS AJ
The appellants were
convicted by the Regional Magistrate, Roodepoort of robbery with
aggravating circumstance (Count 1), rape
(Count 2), unlawful
possession of a firearm (Count 3) and unlawful possession of
ammunition (Count 4).
2. In
terms of section 52 of the Criminal Law Amendment Act 105 of 1997
(“the Act”) the appellants were referred to
the High
Court for confirmation of the conviction and sentencing. The
appellants appeal with the leave of the court against their
sentences
only.
3.
The
first appellant was sentenced to 15 years imprisonment on count 1;
life imprisonment on count 2; 5 years imprisonment on count
3 and 1
years imprisonment on count 4. It was ordered that all the sentences
run concurrently with the sentence of life imprisonment
on count 2,
an effective life sentence.
4. The
second appellant was sentenced to 10 years imprisonment on count 1;
15 years imprisonment on count 2; 2 years imprisonment
on count 3 and
6 months imprisonment on count 4. It was ordered that all of the
sentences run concurrently with the sentence imposed
on count 2, an
effective 15 years imprisonment.
The
appellants wer
e
convicted of raping a 22 year old woman on the evening of the 20
April 2003. At approximately 22H00 she was waiting on the street
to
be picked up in a car by her male companion. The appellants who
were armed with a nine millimetre pistol approached the woman.
One
grabbed her around the neck and hit her on her forehead with the
firearm whilst the other removed her cell phone and her
rings. When
she screamed they threatened to kill her if she did not keep quiet.
The
appellants then took the young woman into a dark street where they
ordered her to undress. She was raped first by the first
appellant
while the second appellant stood guard holding a firearm. She was
then raped by the second appellant while the first
appellant stood
guard with the firearm in his hand. Afterwards she was ordered to
follow the appellants.
1
As
the appellants and the complainant were walking, a
police motor vehicle approached from behind. She stopped the
vehicle and told the police that she had been raped.
2
The first appellant was apprehended on the scene with the firearm
in his trouser pocket. The second appellant was arrested at
the taxi
rank with the complainant’s property in his possession.
The
complainant suffered bruises on her neck
where
she had been “choked" and her right forehead was swollen
where she had been hit with a firearm. The district
surgeon found
fresh vaginal tears and bruising.
3
9.
In
accordance with the minimum sentencing provisions contained in
section 51 of the Act, when a rape is perpetrated by more than
one
person in execution of a common purpose, the prescribed sentence is
life imprisonment unless substantial and compelling circumstances
are
found to exist. The guidelines for what constitutes substantial and
compelling has been set out by the Supreme Court of Appeal
in
S
v Malgas
2001 (1) SACR 469
(SCA).
In
Mahomotsa
v S
2002(2)
SACR 435 (SCA)
Mpati JA dealt with the approach to be adopted when sentencing in
rape cases. At paragraphs 17, 18 and 19 on page 443 to 444
the test
is set out;
“
[17] The rapes that we are
concerned with here, though very serious, cannot be classified as
falling within the worst category of
rape. Although
what appeared to be a firearm was used to threaten the complainant in
the first count and a knife in the second,
no serious violence was
perpetrated against them. Except for a bruise to the second
complainant's genitalia, no subsequently visible
injuries were
inflicted on them. According to the probation officer - she
interviewed
both
complainants - they do not suffer from any after-effects following
their ordeals. I am sceptical of that but the fact remains
that there
is no positive evidence to the contrary. These factors need to be
taken into account in the process of considering whether
substantial
and compelling circumstances are present justifying a departure from
the prescribed sentence.
[18] It perhaps requires to
be stressed that what emerges clearly from the decisions in
Malgas
and
Dodo
is that it does not
follow that simply because the circumstances attending a particular
instance of rape result in it falling within
one or other of the
categories of rape delineated in the Act, a uniform sentence of
either life imprisonment or indeed any other
uniform sentence must or
should be
imposed. If substantial and compelling circumstances are found to
exist, life imprisonment is not mandatory nor is any
other mandatory
sentence applicable. What sentence should be imposed in such
circumstances is within the sentencing discretion
of the trial Court,
subject of course to the obligation cast
upon it by the Act to
take due cognisance of the Legislature's desire for firmer punishment
than that
A
which may have
been thought to be appropriate in the past. Even in cases falling
within the categories delineated in the Act there
are bound to be
differences in the degree of their seriousness. There should be no
misunderstanding about this: they will all be
serious but some will
be more serious than others and, subject to the
caveat
that
follows, it is only right that the differences in seriousness should
receive recognition when it comes to the meting out of
punishment. As
this Court observed in
S
v Abrahams
2002
(1) SACR 116
(SCA)
,
'some rapes are worse than others and the life sentence ordained by
the Legislature should be reserved for cases devoid of substantial
factors compelling the conclusion that such a sentence is
inappropriate and unjust' (para [29]).
[19] Of course, 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
sentences that
such hypothetical cases would merit. There is always an upper limit
in all sentencing jurisdictions, be it death,
life or some lengthy
term of imprisonment, and there will always be cases which, although
differing in their respective degrees
of seriousness, nonetheless all
call for the maximum penalty imposable. The fact that the crimes
under consideration are not all
equally horrendous may not
matter if the
least horrendous of them is horrendous enough to justify the
imposition of the maximum penalty”.
11
. Nugent
AJ in
Vilakazi
v The State
(2008) ZASCA 87
interprets the “determinative test” set
out in the Malgas case and endorsed in
S v Dodo
2001(3) SA 382 CC, as justifying the view that any sentence
considered to be disproportionate to the offence committed would be
justification for the imposition of a lesser sentence. This is
irrespective whether exceptional circumstances exist or not.
12.
Life
imprisonment is the ultimate sentence that a court may impose. It is
reserved for the most heinous of crimes. This case cannot
be
classified as “the worst kind of rape”. While not
minimizing the horror of being raped by two men at gunpoint, this
falls far short of senseless brutality and violence that often
accompanies rape. The physical injuries were relatively minor. Regard
being had to how the Supreme Court of Appeal has seen fit, when
sentencing in rape matters, to classify rape according to the
violence accompanying the actual rape, this case falls far short of
those instances where the maximum penalty is called for.
1
3. The
first appellant was 32 years old at the time of the commission of the
crime. In sentencing him, the court a quo took into
consideration
his two previous convictions for housebreaking. The learned judge
said of the first appellant that he had
“The
jail sentence that you have served did not have any impact on you.
You proceeded to acquire possession of an unlicensed
firearm. This
only goes to show that you were now regarding yourself as having
graduated from a housebreaker and now you are on
the point of
becoming a killer. I have no doubt in my mind that you being a
housebreaker, you would not hesitate to kill in furtherance
of the
commission of any crime.”
4
There is no evidence before the court to justify such a finding. The
first conviction for housebreaking occurred when the applicant
was a
teenager, and he second occurred in 1997.
5
In my view the learned judge misdirected himself in coming to this
conclusion.
1
4. The
second appellant was a few months short of 18 years when he committed
the crime. In these circumstances, Section 51 of Act
105 of 1977 is
not applicable.
6
For offenders between the ages of 16 and 18 years the sentencing
court is free to impose such sentence as it would ordinarily
impose
subject to the weighting effect of the statutorily prescribed
sentence. The court a quo did not appear to be aware of the
fact that
the mandatory sentence was not applicable. However, the learned judge
correctly found that the second appellant’s
youth and as well
as the fact that he was a first offender to be mitigating
circumstances.
1
5. Both
the appellants were incarcerated for a period of approximately 2
years as awaiting trial prisoners. This should have been
taken into
consideration when imposing sentence.
7
The learned judge erred in failing to attach any weight to this
period of imprisonment.
In
the circumstances,
I
make the following order:
The
appeal on sentence is upheld.
The
sentence
imposed
by the court a quo is set aside and substituted with the following:
Accused
number one is sentenced as follows:
O
n
count 1 : 15 years imprisonment;
On
count 2 :
20 years imprisonment;
On
count 3 : 5
years imprisonment;
On
count 4 :
1 year imprisonment.
The
sentences imposed on count 1,3, and 4 are to run concurrently with
the sentence imposed on count 2, an effective 20 years imprisonment.
Accused
number two
is sentenced as follows:
On
count 1 :
10 years imprisonment;
On
count 2 :
12 years imprisonment;
On
count 3 : 2 years imprisonment;
On
count 4 :
6 months imprisonment.
The
sentences imposed on count 1, 3 and 4 are to run concurrently with
the sentence imposed on count 2, an effective 12 years imprisonment.
______________________________
C. NICHOLLS
ACTING JUDGE OF
THE HIGH COURT
I
concur: ______________________________
L. I. GOLDBLATT
JUDGE OF THE HIGH
COURT
I concur:
_______________________________
H. SALDULKER
JUDGE OF THE HIGH
COURT
APPEARANCES
:
COUNSEL
FOR APPELLANT: JESSE PENTON
INSTRUCTED
BY: JOHANNESBURG JUSTICE CENTRE
COUNSEL
FOR RESPONDENT:
INSTRUCTED BY:
DATE OF HEARING:
DATE OF JUDGMENT:
1
Judgment
P91
2
Judgment
P92
3
Judgment P92
4
Sentence P127
5
Record P168 - 170
6
S v B 2006(1) SACR 311 (SCA)
7
S v Brophy &
Another 2007(2) SACR 56 (W)