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[2024] ZAKZPHC 108
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Gwala v S (AR18/2022) [2024] ZAKZPHC 108 (22 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
number:
AR18/2022
In the matter between:
SIBONGISENI FANO
GWALA
APPELLANT
and
THE
STATE
RESPONDENT
Coram:
Mossop J and Hadebe AJ
Heard:
22 November
2024
Delivered:
22 November 2024
ORDER
On
appeal from:
the Regional Court,
Inkanyezi (sitting as court of first instance):
1.
The appeal against the sentences imposed
upon the appellant on 24 June 2021 is dismissed, save to the extent
set out in paragraph
2 of this order.
2.
The sentence imposed on the appellant is
corrected to read as follows:
(a)
‘
On each of counts 1, 2 and 3, the
appellant is sentenced to life imprisonment in terms of the
provisions of section 51(1) read with
schedule 2, part 1 of Act 105
of 1997;
(b)
On count four, the appellant is sentenced
to 15 years’ imprisonment in terms of the provisions of section
51(2)(a) read with
schedule 2, part 2 of Act 105 of 1997; and
(c)
In terms of the provisions of
section
280(2)
of the
Criminal Procedure Act 51 of 1977
, the sentences
imposed on counts 2, 3 and 4 shall run concurrently with the sentence
of life imprisonment imposed on count 1.’
JUDGMENT
HADEBE
AJ
(
MOSSOP
J concurring):
Introduction
[1]
This is an appeal against the sentences
imposed upon the appellant by the regional magistrate sitting at the
regional court of Inkanyezi
on 24 June 2021. The appellant was
charged with three
counts of rape and one
count of robbery with aggravating circumstances. He was convicted on
all four counts. On counts 1, 2 and
3, he was sentenced to undergo
life imprisonment. On count 4, he was sentenced to fifteen years
imprisonment with the trial court
ordering that the sentences imposed
on counts 2, 3 and 4 were to run concurrently with the sentence of
life imprisonment imposed
on count 1.
[2]
In terms of the provisions of
s
309(1)
(a)
of the Criminal Procedure Act 51 of 1977 (the CPA),
the appellant has an automatic right of appeal to challenge both his
conviction
and sentence but has elected only to challenge the
sentences imposed upon him.
Uncertain
meaning of the sentence
[3]
I have some difficulty in comprehending the
sentences imposed in respect of counts 1, 2 and 3 as recorded in the
transcript of proceedings
in the trial court. In respect of those
counts, it appears that the regional magistrate sentenced the
appellant to a single term
of life imprisonment. This appears from
the regional magistrate’s judgment as recorded in the
transcript which reads as follows:
‘
ON
COUNTS 1
, 2 AND 3: IN TERMS OF
SECTION 51(1) READ WITH SCHEDULE 2, PART 1, OF ACT 105 OF 1997, YOU
ARE SENTENCED TO LIFE IMPRISONMENT.’
[4]
From this, it appears that a single
sentence was imposed in respect of counts 1, 2 and 3. The regional
magistrate did not indicate
that on
each
of counts 1, 2 and 3 a sentence of life imprisonment was imposed.
However, she did order that the sentences imposed by her on counts
2,
3 and 4 were to run concurrently with the sentence imposed on count
1.
[5]
That the regional magistrate intended the
sentence to be life imprisonment on each of counts 1, 2 and 3,
however, appears certain
from an annexure to the charge sheet in
which details of the sentence imposed were recorded in manuscript on
a pre-printed form,
which reads:
‘
Count
1: Life imprisonment
In terms of Section 51(1)
read with Schedule 2 Part 1 of Act 105 of 1997
Count 2: Life
imprisonment
In terms of Section 51(1)
read with Schedule 2 Part 1 of Act 105 of 1997
Count 3: Life
imprisonment
In terms of Section 51(1)
read with Schedule 2 Part 1 of Act 105 of 1997’.
[6]
The fact that the regional magistrate
directed that the sentences imposed on counts 2, 3 and 4 were to run
concurrently with the
sentence on count 1 reaffirms the fact that she
sentenced the appellant to life imprisonment on counts 2 and 3 as
well for it would
not be possible, or necessary, to order the
sentence on those counts to run concurrently with the sentence on
count 1 if there
was only one sentence imposed in respect of counts 1
to 3.
[7]
The issue was addressed with counsel for
the appellant who submitted that, despite what is recorded in the
transcript of proceedings,
she understood the appellant to have been
sentenced to one sentence of life imprisonment on each of counts 1, 2
and 3.
[8]
I am, however, satisfied that the sentence
imposed on the appellant was life imprisonment on each of counts 1 to
3 and the sentence
of the regional magistrate will be corrected,
ex
abundanti cautela
, to reflect that.
Judicial officers must ensure that sentences imposed clearly and
unambiguously reflect their intentions.
The offences
[9]
From the evidence adduced at the trial, the
victims on counts 1 to 3, three young ladies, were returning from
school when they were
approached by the appellant who pointed a gun
at them and forced them to accompany him across a river, where he
raped all three
of them consecutively. After doing so, he then forced
them to wash themselves in the river. It is common cause that the
aforesaid
victims were under the age of 16 at the time of the
incident.
[10]
In relation to count 4, the appellant
robbed two of his victims at gunpoint. The appellant was, however,
well known to one of the
victims as he used to buy from her at her
shop. The court a quo was satisfied with the evidence led by the
state and found the
appellant guilty on all counts. The appellant
accepts those findings and does not dispute his guilt on any of the
four counts.
Personal particulars
[11]
During the phase of the trial when sentence
was considered, the appellant did not testify in mitigation of the
sentences to be imposed
upon him but elected, rather, to make
submissions through his legal representative. It was submitted on his
behalf that he was
30 years of age with no pending charges. He had
been in custody since his arrest on 15 January 2019, with his trial
commencing
on 31 July 2019, on which date he was called upon to
plead. By the time that he was sentenced on 24 June 2021 at the
conclusion
of the trial, he had been in custody for a period of some
two and a half years. He had a child aged four years. It was
explained
that he never knew his father and that his mother had died
when he was ten years old. He was unemployed when he was arrested but
indicated that he would obtain ‘piece’ jobs plastering
houses from time to time and earned R300.00 per room when so
employed.
[12]
It was submitted on the appellant’s
behalf that the court should consider his personal circumstances as a
whole as constituting
substantial and compelling circumstances
justifying a deviation from the mandatory minimum sentences.
Aggravating
circumstance
[13]
The court a quo found that the manner in
which the rapes were committed to be aggravating. The victims were
under the age of 16,
a particularly aggravating factor. In relation
to the robbery, the victims were female victims and there was a young
child present
when it took place. A shot was fired while the victims
were lying on the floor.
[14]
From the content of the victim impact
statements handed in at the trial and which form part of the appeal
record, it is evident
that all the complainants remain traumatised by
their brutal experience. As a consequence, the trial court found that
the aggravating
factors far outweighed any of the mitigating factors
that may have existed in favour of the appellant. It also found that
there
were no substantial and compelling circumstances justifying the
imposition of a lesser sentence other than the prescribed minimum
sentence on all the counts.
The
grounds of appeal
[15]
The grounds of appeal raised by the
appellant are the following:
(a)
The sentences imposed are harsh and
shockingly inappropriate;
(b)
There was a compelling justification for
deviating from the minimum sentences;
(c)
The regional magistrate did not judiciously
exercise her sentencing discretion; and
(d)
The court a quo did not consider the period
spent by the appellant in custody when sentencing the appellant and
that, in itself,
constituted a substantial and compelling reason for
the court to deviate from the minimum sentences.
Submissions
by the appellant
[16]
Ms
Anastasiou-Krause, who appeared for the appellant, argued that the
trial court erred in failing to find the existence of substantial
and
compelling circumstances. Had it done so, it would have been entitled
to impose a sentence other than the prescribed sentence
of life
imprisonment on each of the three counts of rape. It was also
contended that the trial court misdirected itself by not
considering
the personal circumstances of the appellant and the period that he
spent in custody whilst awaiting trial. She referred
in this regard
to the case of
S
v Sangweni
,
[1]
a judgment of Steyn J.
[17]
It was, however, correctly conceded in the
appellant’s heads of argument that the rape of young children
has become a scourge
in our society, but it was further submitted
that the imposition of sentence should always be blended with an
element of mercy.
Both the concession and the proposition are
correct.
Submissions by the
respondent
[18]
Mr Naidoo, who appeared for the State,
briefly submitted that the judgment on sentence was well balanced and
thoroughly considered.
The court a quo was bound to impose sentences
of life imprisonment in respect of the three counts of rape because
the three victims
were under the age of sixteen. The sentence of 15
years imprisonment on the robbery charges was also justified. The
appellant,
moreover, had four previous convictions, three of which
involved dishonesty in the form of housebreaking with intent to steal
and
theft.
[19]
It was further submitted that in acting as
he did, the appellant took advantage of the victims’
vulnerability, and it was
consequently submitted that there were no
compelling reasons to deviate from the minimum sentences prescribed
by law. The period
spent by the appellant in custody awaiting trial
was not a valid consideration as he was serving a sentence for
another matter.
The legal principles
[20]
It
is trite that the imposition of sentence is pre-eminently a matter
that falls within the discretion of the trial court, and that
a court
of appeal will only interfere in certain discrete circumstances. Such
circumstances may present themselves if the sentencing
court did not
exercise its discretion appropriately, or if it exercised it
unreasonably, or in circumstances where the sentence
imposed is
adversely disproportionate to the offender, the crime committed and
the legitimate needs of society. Reiterating
this principle,
Kampepe J stated the following in
Bogaards
v S
:
[2]
‘
An
appellate court’s powers to interfere with sentences imposed by
courts below is circumscribed. It can only do so where
there has been
an irregularity that results in a failure of justice; the court below
misdirected itself to such an extent that
its decision on sentence is
vitiated; or the sentence is so disproportionate or shocking that no
reasonable court could have imposed
it.’
[21]
Notwithstanding
that there may not be an obvious material misdirection, an appellate
court may be entitled to interfere with a sentence
imposed by a trial
court if the disparity between the sentence of the trial court and
the sentence which the appellate court would
have imposed, had it
been the trial court, is so marked that it can properly be
described as ‘shocking’, ‘startling’
or
‘disturbingly inappropriate.’
[3]
Analysis
[22]
Having considered the grounds of appeal
and the proceedings in the trial court, I am not
able to discern any misdirection by the regional magistrate. I also
do not consider
the sentences imposed to be harsh or ‘shockingly
inappropriate’, as the appellant submits. What I find shocking
is
the sense of entitlement of the appellant who believed that he
could force himself on three young schoolgirls against their will.
The appellant displayed no concern for his victims, nor did he
exhibit any respect for their right to their bodily integrity or
their human dignity. Rape is an act of sexual violence that cannot be
tolerated, nor can it be allowed to be normalised. No man
should
believe that he is justified in violating a woman and all men must
know that, if they do, the harshest possible consequences
await them.
[23]
In
my view, the trial court correctly concluded that there were no
substantial and compelling circumstances justifying a lesser
sentence
than life imprisonment on the three rape counts and the sentence of
15 years imprisonment on count 4. The Supreme Court
of Appeal has
repeatedly made it quite clear that the prescribed minimum sentences
are not to be departed from lightly and for
flimsy reasons. These are
the ordained sentences to be imposed for the specified offences,
unless there are substantial and compelling
circumstances justifying
such a departure.
[4]
The
regional magistrate, correctly in my view, found that there were no
such circumstances present in this matter.
[24]
I can, furthermore, discern no improper use
of the regional magistrate’s sentencing discretion. She fully
appreciated the
heinous nature of the appellant’s offences but
did not lose sight of his personal circumstances as she came to her
decision
on the appropriate sentences.
[25]
Regarding
the period spent in custody whilst awaiting trial, the Supreme Court
of Appeal held in
Radebe
and another v S
[5]
that the period spent awaiting trial cannot, on its own, constitute
substantial and compelling circumstances justifying a departure
from
the prescribed minimum sentence. Lewis JA observed that:
‘
The
period in detention pre-sentencing is but one of the factors that
should be taken into account in determining whether the effective
period of imprisonment to be imposed is justified: whether it is
proportionate to the crime committed’.
[26]
The argument advanced on behalf of the
appellant that this period of prior detention amounts to substantial
and compelling grounds
entitling him to a lesser sentence than the
prescribed minimum sentences that he received is both audacious and
wrong. The crimes
of which the appellant was rightly convicted are so
disgraceful and repugnant that they can only justify the minimum
sentences
that were properly imposed upon him.
[27]
The trial court therefore did not err when
it found that there were no substantial and compelling circumstances
justifying a deviation
from the prescribed minimum sentence nor do
the sentences that were imposed upon the appellant leave me with a
profound sense of
shock or seem to me to be disturbingly
inappropriate.
Order
[28]
The appeal must accordingly fail. The
sentences imposed on counts 1, 2 and 3 need to be clarified, as
previously discussed. To avoid
any future uncertainty, it is probably
wise to set out the corrected sentence in full. I would accordingly
propose the following
order:
1.
The appeal against the sentences imposed
upon the appellant on 24 June 2021 is dismissed, save to the extent
set out in paragraph
2 of this order.
2.
The sentence imposed on the appellant is
corrected to read as follows:
(a)
‘
On each of counts 1, 2 and 3, the
appellant is sentenced to life imprisonment in terms of the
provisions of section 51(1) read with
part 1 of schedule 2 of Act 105
of 1997;
(b)
On count four, the appellant is sentenced
to 15 years’ imprisonment in terms of the provisions of section
51(2)
(a)
read
with part 2 of schedule 2 of Act 105 of 1997; and
(c)
In terms of the provisions of
section
280(2)
of the
Criminal Procedure Act 51 of 1977
, the sentences
imposed on counts 2, 3 and 4 shall run concurrently with the sentence
of life imprisonment imposed on count 1.’
HADEBE AJ
I agree and it is so
ordered:
MOSSOP J
APPEARANCES
Counsel
for the appellant
:
Ms
Anastasiou-Krause
Instructed
by
:
Legal
Aid South Africa
Pietermaritzburg
Counsel
for the respondent
:
Mr
D Naidoo
Instructed
by
Directorate
of Public Prosecutions
Durban
[1]
S
v Sangweni
[2009]
ZAKZPHC 60; 2010 (1) SACR 419 (KZP).
[2]
S
v Bogaards
[2012]
ZACC 23
;
2013 (1) SACR 1
(CC) para 41.
[3]
S
v Malgas
2001
(1) SACR 469
(SCA) para 12.
[4]
Ibid
para 9.
[5]
Radebe
and another v S
[2013]
ZASCA 31; 2013 (2) SACR 165 (SCA) para14.