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[2019] ZASCA 111
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Ximba v S (1171/18) [2019] ZASCA 111 (16 September 2019)
SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 1171/18
In
the matter between:
SIPHO
XIMBA APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Sipho
Ximba
v
The
State
(1171/18)
[2019] ZASCA 111
(16 September 2019)
Coram:
Maya
P, Zondi and Mokgohloa JJA and Dolamo and Hughes AJJA
Heard:
16
August 2019
Delivered:
16
September 2019
Summary
:
Criminal Procedure – sentence – whether substantial and
compelling circumstances exist to justify deviation from the
prescribed minimum sentence – no misdirection by the trial
court and full bench – appeal dismissed.
ORDER
On
appeal from:
KwaZulu-Natal
Division of the High Court, Pietermaritzburg (Balton and D Pillay JJ
sitting as the court of appeal).
The appeal is
dismissed.
JUDGMENT
Mokgohloa
JA (Maya P and Zondi JA and Dolamo and Hughes AJJA concurring):
[1]
The appellant was arraigned and convicted in the regional court
Ezakheni, KwaZulu- Natal (Additional Magistrate Qwabe), on a
charge
of rape in contravention of s 3 of the Criminal Law (Sexual Offences
and Related Matters) Amendment Act
[1]
read with s 51 of the Criminal Law Amendment Act (the CLAA).
[2]
Having found that no substantial and compelling circumstances
existed, the trial court sentenced him to life imprisonment. His
appeal against conviction and sentence was dismissed by the
KwaZulu-Natal Division of the High Court, Pietermaritzburg (Balton
and D Pillay JJ). Special leave to appeal was granted by this Court
on sentence only.
[2] The issue before
this Court is whether the trial court erred in its conclusion that
there existed no substantial and compelling
circumstances that
justified a deviation from the prescribed minimum sentence of life
imprisonment in respect of the conviction
of rape where the victim
was raped repeatedly.
[3]
Before turning to consider whether the sentence imposed on the
appellant was appropriate, a brief consideration of the background
facts is necessary. On 7 March 2009 around 3h00, the 26 year old
complainant was asleep in her room in her shack situated at
Steadville.
She heard loud banging on the door of her shack. The
door, which was locked with an iron rod, was then broken and the
appellant,
whom she knew and whom had previously propositioned her,
entered her room. He spat on her face slapped her, called her a bitch
and asked how long must he propose love to her. He then pushed her
onto the bed, removed her panties and raped her. The appellant
made
the complainant to change positions and raped her four times. He also
threatened to gouge out her eyes. At some stage, the
appellant
stopped raping her and took a knife from a nearby cupboard. The
complainant, wearing only her pyjama top, then ran out
of the room to
seek help from the neighbours. The appellant chased and caught her.
He pressed her against the wall of her shack
and spat on her face
again. He also demanded her cellphone, which she had hidden in her
pyjama sleeve. He pulled her back to the
room where he threw her on
the bed, stuck his tongue in her mouth and continued to rape her. The
rape continued until 7h30 when
the appellant instructed the
complainant to pack her belongings and go home with him. He wanted to
give her money but she rejected
the offer. As they were walking, the
appellant threatened to kill her if she reported the rape to the
police. They parted ways
at a nearby tuck shop as she asked to visit
someone and promised to return to him in the afternoon.
[4]
The complainant proceeded to a nearby hostel and reported the
incident to Ms Nokuthula Khumalo. The police were called and she
was
taken to hospital. The medical report confirmed that the
complainant’s vagina was bruised and bleeding. The appellant
denied the incident when he was charged with the rape and insisted
that the complainant was falsely implicating him. He raised
an alibi
that he was at his home with his girlfriend on the night in question.
[5]
The rape in this matter falls within the ambit of s 51(1) of the
CLAA, which prescribes a minimum sentence of life imprisonment
in
circumstances where the victim was raped more than once, unless there
exist substantial and compelling circumstances that justify
deviation
from the prescribed sentence.
[6]
Before us, counsel for the appellant submitted that the trial court
misdirected itself when it found that there existed no substantial
and compelling circumstances justifying deviation from the prescribed
sentence of life imprisonment. Counsel also drew attention
to the
appellant’s personal circumstances, namely, that he was 29
years old, a first offender, single with three minor children
and was
gainfully employed. She submitted that these factors, cumulatively
taken, constituted substantial and compelling circumstances.
She
further submitted that this was not the worst kind of rape and that
no evidence was led relating to the extent of the complainant’s
trauma after the rape. According to her, the trial court
over-emphasised the seriousness and prevalence of the offence above
the
appellant’s personal circumstances and thereby left no room
for mercy in his sentencing.
[7]
It is, therefore, necessary to assess whether the trial court
misdirected itself in finding that no substantial and compelling
circumstances existed that warranted a lesser sentence than that
prescribed. In
S
v Malgas
[3]
this Court set out how a court should conduct an enquiry as to
whether substantial and compelling circumstances are present as
follows:
‘
[18] Here
lies the rub. Somewhere between these two extremes the intention of
the legislature is located and must be found. The
absence of any
pertinent guidance from the legislature by way of definition or
otherwise as to what circumstances should rank as
substantial and
compelling or what should not, does not make the task any easier.
That it has refrained from giving such guidance
as was done in
Minnesota from whence the concept ‘‘substantial and
compelling circumstances’’ was derived
is significant. It
signals that it has deliberately and advisedly left it to the courts
to decide in the final analysis whether
the circumstances of any
particular case call for a departure from the prescribed sentence. In
doing so, they are required to regard
the prescribed sentence as
being
generally
appropriate
for crimes of the kind specified and enjoined not to depart from them
unless they are satisfied that there is weighty justification
for
doing so. A departure must be justified by reference to circumstances
which may be seen to be substantial and compelling as
contrasted with
circumstances of little significance or of debatable validity or
which reflect a purely personal preference unlikely
to be shared by
many.’
[8]
Ordinarily, sentencing is within the discretion of the trial court.
An appeal court can only interfere with the sentence imposed
if the
trial court 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.
[4]
[9]
Rape, a highly endemic crime in South Africa, is undeniably a
horrific, cruel and selfish act in which the aggressor treats
with
utter contempt the dignity and feelings of the victim.
[5]
It was described in
S
v Chapman
as ‘a humiliating, degrading and brutal invasion of the
privacy, the dignity and the person of the victim’.
[6]
Its gravity in this case is aggravated by the fact that the
complainant was attacked in the sanctity of her own home. The
appellant
forced entry into her home, treated her with utter
disregard by insulting her, spitting in her face, threatening to
gouge out her
eyes and kill her, forcing her to run outside half
naked and subjecting her to a horrific ordeal that lasted for hours.
The rape
was so brutal that the complainant, who had children and was
sexually active, bled profusely after the rape to the extent that her
skirt was bloodied and such that she had to be given a sanitary pad
at the hospital. The appellant continued to humiliate and terrorise
her by forcing her to accompany him in the morning, taking her where
he willed in blood-stained clothes. The complainant suffered
physical
injury and emotional trauma. Even though she received counselling,
the emotional scars will remain with her for a long
time. I certainly
find this to be the worst rape.
[10]
In sentencing the appellant, the trial court took into consideration
his personal circumstances, the nature and seriousness
of the offence
as well as the interests of society. It found, correctly so in my
view, that the personal circumstances of the appellant
do not
constitute substantial and compelling circumstances justifying
deviation from the prescribed sentence of life imprisonment.
His
personal circumstances paled into insignificance when compared to the
seriousness and brutality of the offence.
[11]
There is, accordingly, no basis on which to find that the sentence
imposed by the trial court is disproportionate or shocking
and that
no other court would have imposed such a sentence. This Court is,
therefore, not entitled to interfere with the sentence
imposed by the
trial court. The appeal must accordingly fail.
[12]
The following order is made:
The
appeal is dismissed.
___________________
FE
Mokgohloa
Judge
of Appeal
APPEARANCES:
For
Appellant: P Andrews
Instructed
by: Justice Centre, Pietermaritzburg
Legal
Aid, Bloemfontein
For
Respondent: D Naicker
Instructed
by: The Director of Public Prosecutions, Pietermaritzburg
The
Supreme Court of Appeal, Bloemfontein
[1]
Criminal Law (Sexual Offences
and Related Matters) Amendment Act 32 of 2007
.
[2]
Criminal Law
Amendment Act 105 of 1997
.
[3]
S v Malgas
2001
(1) SACR 469
(SCA);
[2001] 3 All SA 220
(A) para 18.
[4]
Bogaards v
S
[2012]
ZACC 23
(CC);
2013 (1) SACR 1
(CC);
2012 (12) BCLR 1261
(CC) para
41.
[5]
N v T
[1994]
(1) All SA 496
(C);
1994 (1) SA 862
(C) at 864G.
[6]
S v
Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA);
[1997] 3 All SA 277
at 278.