REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: A15/2015
In the matter between:
HLAYISANI EPHRAIM VUKEYA FIRST APPELLANT
MASENGANYI CHRISTOPHER VUKEYA SECOND APPELLANT
VONANI WITNESS VUKEYA THIRD APPELLANT
And
THE STATE RESPONDENT
_______ _____
JUDGEMENT
(1)
(2)
(3)
REPORTABLE: YES/NO
OF INTEREST TO THE JUDGES: YES/NO
REVISED.
DATE ........... . SIGNATURE: ............ .
KGANYAGO J
[1] On 30th July 2014 the three appellants were convicted by the regional court
magistrate MJ Coetzee of Malamulele regional court on one count of rape
read with the provisions of section 51(1) of Act 105 of 1997 (CLAA) and one
count of robbery. It was found by the court a quo that the complainant had
been gang raped. On 4th August 2014 all the appellants were sentenced to life
imprisonment on the count of rape and ten years imprisonment on the count
of robbery. Both sentences were ordered to run concurrently.
[2] Since the appellants were sentenced to life imprisonment by the regional court,
they are having automatic right of ap peal. The appellants’ appealed against
sentence only. On 18th September 2015 the High Court upheld the appeal on
sentence, and set aside all the sentences imposed by the court a quo . The
matter was referred back to the court a quo for compliance with subsections
274(1) and 274(2) of the Criminal Procedure Act 51 of 1977 (Act). As per the
court order the State and defence were directed to lead evidence in
aggravation and mitigation if any. Further that the fresh sentence to be
imposed by the court a quo be backdated to the date of the original
sentencing.
[3] In compliance with the court o rder directing for compliance with section 274 of
the Act, th ree probation officers were called to testify on behalf of the three
appellants. In relation to the first appellant, the probation officer testified that
he is married and having four children; s elf-employed; first born in a family of
six; wife unemployed. The first appellant denies raping the complainant, and
denied ever meeting her. The first appellant is involved in criminal activities for
the fifth time. He is having three previous convictions of assault GBH and one
of housebreaking. Three of the first appellant’s children are receiving social
grant. The first appellant is a member of the Zion Christiaan Church. The first
appellant dropped out of school in grad e seven, but did not give the reasons
for dropping out. The first appellant is suffering from chronic illness. The first
appellant smoke dagga but does not drinks alcohol. The first appellant has
been described as a violent person who is always involved in violence, and
there are a lot of assault cases against him in the community. The first
appellant is also violent towards his family members. The first appellant is not
remorseful to the offences he has committed.
[4] Regarding the second appellant, the probation officer testified that he is
unemployed, and his mother has passed away and his father still alive; he is
the third born in a family of six; the second appellant’s father is unemployed .
On the night in question, he was in the compa ny of the first appellant when
they found the third appellant raping the complainant in the bushes. After the
third appellant had finished raping the complainant, he and the first appellant
took turns in raping the complainant. After the second appellant h ad finished
raping the complainant, he told the complainant that if she wants she can go
and report the matter to the police, and may inform the police that they will
find them at Mokumo, Mukasa or Mukhabela café. The complainant told the
second appellant that the third appellant had taken her blackberry cell phone.
[5] The second appellant is a first -time offender; he makes a living by doing odd
jobs; he dropped out of school in grade 8 due to financial con straints; he is
epileptic and prison authoriti es does not provide him with medication for his
condition. The second appellant drinks alcohol and has bad behaviour when
under the influence of alcohol. The second appellant is taking responsibility
for the offences that he had committed, however he is sh owing lack of
remorse.
[6] Regarding the third appellant the probation officer testified that the third
appellant is unemployed; he was raised well by both his parents who are both
still alive; he dropped out of school in grade nine after repeating th e grade
twice; he is married and having one child; he was born during 1991; her wife
is still a learner. The third appellant denies having committed the offences he
been charged for.
[7] With regard to the complainant the probation officers testified about the victim
assessment report they have compiled. They testified that the complainant
was dragged by the unknown man at about 20h00 when she was from work.
She was dragged to the bushes where she lost her consciousness on the way
as a result of the struggle she was having with this man. When she regained
her consciousness , she found that this man had already undressed her
trouser and panty, and was on top her raping her. Later two men came to the
scene and took turns in raping her.
[8] The incident had severely affected her to the extent that she left her
employment. Being raped by more that one person was traumatic to her. The
complainant had never attended any therapeutic counsel ling sessions, and
that leaves her on the risk of getting flashbacks of what had happened to her,
and may lead to post traumatic disorder. The complainant had decided to quit
her counselling sessions on her second appointment as she was irritated by
long waiting on the queue before her file was handed to Malamulele hospital
where she was supposed to receive thera peutic sessions. The complainant
needs further assistance in understanding the impact that the incident will
have in her life at a later stage if h e does not go for counselling. The
complainant was put through trauma that will last for the rest of her life. The
complainant was put through unprotected sex when South Africa is facing
high rate of people living with HIV and AIDS.
[9] The court a quo for second time still sentenced all the appellants to life
imprisonment on the count of rape, and ten years imprisonment on the count
of robbery. Both sentences were ordered to run concurrently. The appellants
are having automatic right of appeal on the s entence of life imprisonment
imposed by the regional court. The appellants have exercised their right by
appealing on sentence only.
[10] The appellants grounds of appeal are that the imposed sentence of life
imprisonment against them is shockingly inappropriate and it induces a sense
of shock; the sentencing proceedings were vitiated with irregularities; the
appellants were sentenced in terms of the provisions of section 51(1)
Schedule 2, Part 1 of the CLAA, when the appellants were not warned of the
applicability of section 51(1) of the CLAA, which resulted in the appellants not
getting a fair trial; the court a quo erred by sentencing the appellants in terms
of section 51(1) of the CLAA when the appellants were not convicted of rape
read with the provisions of section 51(1) of the CLAA; the court a quo erred by
sentencing the appellants on the basis of the charge sheet that was defective
in that the charge sheet referred to section 51(1) and/or 52 and Schedule 2 of
the C LAA; the court a quo erred by sentencing the appellants in terms of
section 51(1) of the CLAA when the charge sheet indicated section 51(1)
and/or 52 of the CLAA is applicable in that: “gang rape”; the court a quo failed
to attach any weight to mitigating factors placed on record on behalf of the
appellants; the court a quo failed to take into consideration that the mitigating
factors placed on record by the appellants individually constitute substantial
and compelling circ umstances which justify a deviation from the prescribed
minimum sentence of life imprisonment; and that the court a quo did not fully
understand the provisions of section 51(3) (a) of the CLAA relating to the
issue of substantial and compelling circumstances.
[11] The appellants’ appeal is directed on sentence only. It is trite that sentenc ing
is the prerogative of the trial court and should not lightly be interfered with. An
appeal in which the interference with sentence will be justified is when it is
found that the trial court has misdirected itself in some respect or if the
sentence imposed was so disturbingly disproportionate that no reasonable
court could have imposed it. The test is not whether the trial court was wrong,
but whether it exercised its discretion properly. (See S v Romer1).
[12] The court a quo has found that the complainant has been gang raped by the
three appellants, and therefore the sentence to imposed falls within the ambit
wherein the prescribed minimum sentences are applicable. Ordinarily where
minimum sentences are applicable, they should be imposed unless the court
finds substantial and compelling circumstances to exist which justify a
deviation from the prescribed minimum sentence. In the case at hand the
minimum sentence which ordinarily should have been imposed is that of life
imprisonment. The factors which are considered in determining whether
1 2011(2) SACR 153 (SCA) at paras 22 & 23
substantial and compelling circumstances exists are all factors traditionally
taken into consideration in assessing an appropriate sentence.
[13] In The Director of Public Prosecutions Gauteng Division, Pretoria v Portia
Thulisile Tsotetsi2 Coppin AJA said:
“As held in Malgas confirmed in S v Dodo and explained in S v Vilakazi, even
though substantial and compelling factors need not be exceptional, they must
be truly convincing reasons, or ‘weighty justification’, for deviating from the
prescribed sentence. The minimum sentence is not to be deviated from lightly
and should ordinarily be imposed”.
[14] Some of the appellants’ grounds of appeal are that they did not receive a fair
trial in that they were not warned of the applicability of section 51(1) of the
CLAA at the commencement of the trial, but was only done so during
sentencing stage; the appellants were not convicted of rape read with the
provisions of section 51(1) of the CLAA; the charge sheet was defective; the
charge sheet referred to gang rape , and that the words gang rape are not
supported by section 51(1) and Schedule 2, Part 1 of the CLAA.
[15] In S v Legoa3 Cameron JA said:
“It is an established principle of our law that a criminal trial has two stages –
verdict and sentence. The first stage concerns the guilt or innocence of the
accused on the offence charged. The s econd concerns the question of
sentence. Findings of fact may be re levant to both stages. However, those in
the first stage relate to the elements of the offence (or the specific form of the
offence) with which the accused is charged. Those in the second m itigate or
aggravate the sentence appropriate to the form of the offence of which the
accused has been convicted”.
2 [2017] ZASCA 83 (02 June 2017) at para 27
3 2003 (1) SACR 13 (SCA) at para 15
[16] All the appellants have not appealed against conviction. Whether the
complainant was raped by more than one person are the elements of the form
of the offence of rape with which the appellants were charged in the court a
quo. By not appealing against conviction, the appellants were satisfied that
the State had proved the offence of rape against them, despite th e alleged
deficiencies. After the second sentencing, the appellants were aware of th e
alleged irregularities, and they also amended their notice of appeal. In
amending their notice of appeal, they had an opportunity to also appeal
against conviction, but they have failed to do so. By failing to appeal against
conviction, the appellants were satisfied that the conviction was in order. It is
therefore opportunistic of them to argue that they did not receive a fair trial
whilst at the same time they are satisfied with the conviction.
[17] The appellants even though did not appeal against conviction, have raised
grounds that are normally raised as part of an appeal against conviction. The
manner in which these grounds are raised as part of the appeal against
sentence are technical. It is trite that an accused has a right to be informed of
the charge he/she is facing with sufficient details to enable him/her to answer.
Further that the State if it intends to rely on the minimum sentencing regime
created by a statute, th at should be brought to the attention of the accused at
the commencement of the trial. The State had conceded that from the charge
sheet and the transcribed record it does not appear that the appellants were
forewarned or conscientized of the possibility o f the sentence of life
imprisonment on the count of rape, but that the presiding regional magistrate
did so during sentencing stage.
[18] In S v Kolea4 Mbha AJA said:
“In S v Legoa Cameron JA held that under common law it was desirable, but
not essential, that the charge sheet should set out the facts the State intended
to prove in order to bring the accused within a minimum sentencing
jurisdiction. Referring to the Bill of Rights, he said that one of the specific
4 [2012] ZASCA 199; 2013 (1) SACR 409 (SCA) (30 November 2012) at para 8
rights referred to therein i s to be informed of the charge with sufficient detail
so as to enable an accused to answer to it. Although Cameron JA did not
elaborate on what this exactly meant, he emphasised that, under the current
constitutional dispensation it could be no less desirable than under the
common law that the facts which the State intended to rely on for an
increased sentence under the Act, should be clearly set out in the charge
sheet. Significantly, his expressed view was that the matter was one of
substance and not form. He was reluctant to lay down a general rule that the
charge sheet must in every case recite the specific form of the scheduled
offence, or the facts the State intended to prove to invoke a particular
provision of the Act”.
[19] The charge sheet refers to section 51(1) or 52 of Schedule 2 of CLAA. It is
common cause that section 52 has been repealed. The appellants were
legally represented throughout the proceedings. The appellants have pleaded
to the charge as it stands without raising any object ion, and have also
participated fully in the proceedings without at any stage of the proceedings
raising any objection. During the second sentencing proceedings, the
appellants never argued that their conviction was not in terms of section 51(1)
of CLAA, but in terms of section 52 of the CLAA with the court a quo. They
could not have argued that the conviction was in terms of section 52 because
they knew that the section has been repealed. When delivering judgment, the
court a quo has stated that all the th ree appellants were charged in terms of
the provisions of section 3 of Act 32 of 2007 read with the minimum sentences
Act. It can therefore not be said that the appellants were charged in terms of a
repealed section. All these alleged irregularities were r aised for the first time
during the hearing this appeal, and was never raised during the first appeal.
Despite raising these alleged irregularities, the appellants have failed show in
what way they were prejudiced by all these alleged irregularities that t hey
have raised.
[20] Despite the charge sheet referring to section 51(1) or 52, when the
prosecution put the charge of rape to the appellants, the prosecution has
stated that “section 51 is applicable in this matter because the complainant
was gang raped”, and did refer to section 52. That shows that the prosecution
was alive to the fact that the section has been repealed and was no longer on
the statute book. By using the word ‘gang’ refers to more than one individual,
and that cannot render the charge sheet to be defe ctive. The evidence
presented during trial had also proved that the complainant was raped by
more one individual . Th at in my view, had clarified or cured any defect or
vagueness that might have been in the charge. The appellants were legally
represented th roughout the trial, and their legal representative should have
explained to the m the seriousness of the offence they were facing and any
possible sentence in case of conviction.
[21] According to the evidence of the three probation officers, all the three
appellants did not show any remorse, despite been convicted and the
conviction was based on evidence which was overwhelming against them.
Even their counsel before this court has correctly conceded that all the three
appellants did not show any remorse. In S v Matyityi5 Ponnan JA said:
“Remorse is a gnawing pain of conscience for the plight of another. Thus
genuine contrition can only come from an appreciation and ackno wledgment
of the extent one’s error. Whether the offender is sincerely remorseful, and
not simply feeling sorry for himself or herself at having been caught, is a
factual question. It is to the surrounding actions of the accused rather than
what he says in court, that one should rather look. In order for the remorse to
be a valid consideration, the penitence must be sincere and the accused must
take the court fully into his or her confidence”.
[22] An accused can be said to be remorseful if he/she acknowledge the extent of
his/her error, and the damage that he/she might have caused to the
complainant. An accused who ask for leniency should at least show some
form of remorse for the court to see that he/she is acknowledging his/her
error. By the time the probation officers consulted with the appellants, the
three appellants have already partly served their sentences, and have had
5 2011 (1) SACR 40 (SCA) at para 47a-c
ample time to reflect on what kind of damage t hey have caused to the
complainant. Despite the high unemployment rate in this country, the
complainant was forced to resign from her work due the trauma that she was
enduring, and still the appellants are unable to acknowledge the extent of the
damage they have caused to the complainant. It will therefore be difficult for
the court to be lenient to an accused who is not remorseful. The court must
pass a sentence that will reform and rehabilitate an accused person. Remorse
is the beginning of a journey to reformation and rehabilitation.
[23] Offences of this nature are prevalent in the entire country and has become a
scourge. The complainant was attacked and dragged until she lost her
consciousness and when she regained her consciousness, the third appell ant
was on top her raping her after he had undressed her. When the first and
second appellant arrived at the scene, instead of coming to her rescue, the y
took turns in raping her. After they all have finished raping her, they all left the
complainant in th e bush despite it been at night exposing her to be further
raped by others who had no respects for women. The complaint was raped in
a brutal and degrading way by the appellants.
[24] In S v Chapman6 Mohamed CJ said:
“Rape is a very serious offence, constituting as it does a degrading and brutal
invasion of the privacy, dignity and the person of the victim. The rights to
dignity, to privacy and the intergrity of every person are the basic ethos of the
Constitution and to any defensible civilisation. Women in this country are
entitled to the protection of these rights. The have a legitimate claim to walk
peacefully on the streets, to enjoy their shopping and entertainment, to go and
come back from work, and to enjoy the peace a nd tranquillity of their homes
without the fear, the apprehension and the insecurity which constantly
diminishes the quality and enjoyment of their lives”.
6 1997 (2) SACR 3 (SCA) at 5b-c
[25] The complainant was apprehended and raped whilst she was peacefully
walking on the street fr om work. The appellants have shown that they did not
have respect for these rights which women in this country are entitled to be
protected. Despite the appellants having blatantly violated these rights, they
did not show any slightest remorse. The second appellant when he told the
complainant that she can go and report the matter to the police, sound as if he
was boastful and not a sign of remorse. If it was a sign of remorse, he would
not have left the complainant alone at the scene at night, and not take some
initiatives to accompany her home.
[26] In my view, the personal circumstances of all the three appellants cumulatively
taken are not truly convincing reasons or weighty justification for deviating
from the prescribed minimum sentence of life impr isonment. On the other
hand, the aggravating factors far outweigh the mitigating factors. There is
nothing to fault the court a quo in finding that there were no substantial and
compelling circumstances to justify a deviation from the prescribed minimum
sentence of life imprisonment on the count of rape, and ten years
imprisonment on the count of robbery. From the comments of the presiding
regional magistrate in passing sentence, it may look like he did not
understand what constitute substantial and compell ing circumstances.
However, that did not change the fact that the appe llants have failed to
present convincing reasons or weighty justification for deviating from the
prescribed minimum sentence of life imprisonment. It follows that the
appellants appeal stands to fail.
[27] In the result the following order is made:
27.1 The appellants’ appeal is dismissed.
KGANYAGO J
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO DIVISION, POLOKWANE
I AGREE
_____________________________
PILLAY AJ
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
Counsel for the appellant : AL Thomo
Instructed by : Legal Aid SA Thohoyandou
Counsel for the respondent : Adv SM Mawasha
Instructed by : DPP Polokwane
Date heard : 29th November 2024
Electronically circulated on : 5th December 2024