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[2008] ZAWCHC 233
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Ndzube v S (A191/08) [2008] ZAWCHC 233 (8 August 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: A191/08
In
the matter between;
MLUNGISA
NDZUBE
Appellant
And
THE
STATE
Respondent
JUDGMENT:
8 AUGUST 2008
MEER,
J
[1]
The Appellant was convicted in the Wynberg Regional Court on a count
of rape and a count of robbery. Although it was alleged
that the girl
he had raped (in Oct 1999) was 14 years ofd, the State did not prove
her age. The Court accordingly considered the
rape to be one under
Schedule 3 of Act 105 of 1997, attracting a minimum sentence of 10
years.
[2]
The Magistrate stated that he considered both charges as one for the
purpose of sentencing and sentenced Appellant to 12 years
imprisonment.
[3]
Appellant appeals against his sentence only. In so doing he contends
in essence that the Magistrate erred in failing to inform
Appellant,
who conducted his own defence, of his right to address the Court on
sentence, in failing to consider the question of
substantial and
compelling circumstances, and in classifying Appellant as an adult
mate. The sentence, contends Appellant induces
a sense of shock and
stands to be altered. Alternatively, Appellant's circumstances,
viewed cumulatively constitute substantial
and compelling
circumstances warranting a deviation from the prescribed minimum
sentence.
[4]
It is simply not so that there is no indication that the accused was
not informed about addressing the court before sentencing.
The record
dearly indicates he was given the opportunity himself or call
witnesses to testify in mitigation of sentence. It is
however so that
there was a paucity of information about Appellant's personal
circumstances before the Court, the information being
limited to his
having a child and a girlfriend. Not even the SAP 69 was at hand.
Given the Appellant's youth, a probation officer's
report ought to
have been requested enabling the court to obtain a profile of the
young offender it was sentencing.
[6]
The question which is posed on appeal is whether the sentence of 12
years imprisonment imposed on a first offender is in all
the
circumstances shocking. The circumstances in which the offences
occurred were accompanied by violence - both complainants were
young
girls. Appellant ripped the chain off the one complainant whom he
robbed - then proceeded to drag the 2
nd
complainant into a bush held a knife to her throat, kicked her, gave
her a blue eye and raped her. There is no indication of remorse
on
his part as he continued to profess his innocence.
[7]
I am unable to find that the imposition of the minimum sentence of 10
years on the rape charge was shocking, nor from the record
am I able
to ascertain substantial and compelling circumstances which militate
against the imprisonment of the minimum sentence.
I note moreover the
fact that the Magistrate did not pertinently mention substantial and
compelling circumstances, does not necessarily
means this aspect was
not considered.
[8[
However I am of the view that the court a
quo
erred
in not sentencing Appellant separately on each count with which he
was charged. Given the circumstances in which the 2 offences
occurred, and moreover the fact that Appellant was a first offender,
the court a
quo
ought
in my view to have allowed for the concurrent operation of the
sentences. On appeal I would accordingly substitute the following
sentences:
On
Count 1
:
Rape
The
Accused is sentences to 10 years imprisonment.
On
Count 2
:
Robbery
The
Accused is sentences to 2 years imprisonment.
The
sentence in respect of counts 1 & 2 shall run concurrently.
The
Accused is accordingly sentenced to an effective period of 10 years
imprisonment.
Meer,
J
I
agree
S
OLIVER, AJ