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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH)

NOT REPORTABLE

CASE NO: CA & R 372/2013

In the matter between:                                                    

JOSEPH MOLELEKOA                                                                                       First Appellant

AYANDA BUNU                                                                                               Second Appellant

MPHO MATHOBISA                                                                                           Third Appellant

And

THE STATE                                                                                                              Respondent

 

Coram:                       Chetty, J

Heard:                        24 March 2014

Delivered:                  28 March 2014

Summary:                  Appeal – Against sentence – Substantial and compelling circumstances – Complainant’s home forcibly entered and she abducted and rape by second and third appellants – No basis to interfere in sentence – First appellant already serving twelve years for similar offence – Cumulative effect of two sentences unduly severe – Portion ordered to run concurrently

JUDGMENT

Chetty,

[1] The three appellants, (hereinafter referred to, collectively, as the appellants and individually as accused no’s 1, 2 and 3 respectively) were arraigned for trial before Hartle, J., in the East London circuit division on charges of housebreaking with intent to rob (count 1), robbery with aggravating circumstances as defined in s 1 (1)(b) of the Criminal Procedure Act[1] (the Act) (count 2), and rape, in contravention of s 3, read with sections 56(1), 57(1), 58, 59, 60 and 68(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act[2]. They were found guilty on all counts save that on the rape charge, accused no’s 2 and 3 were convicted on the basis that they had raped the complainant more than once whilst accused no. 1 was convicted on the basis that he had inserted his finger into the complainant’s vagina and had thereby sexually penetrated her as defined in the Sexual Offences and Related Matters Act as aforesaid.

[2] The appellants were sentenced to six (6) years imprisonment on count 1 and eighteen (18) years imprisonment on count 2. Four (4) of the six (6) years imposed on count 1 was ordered to run concurrently with that imposed on count 2. On the rape conviction, accused no’s 2 and 3 were sentenced to life imprisonment whilst accused no. 1 was sentenced to five (5) years imprisonment.

Accused no. 1 was however granted leave to appeal against the sentences imposed on counts 1 and 2 whilst accused no’s 2 and 3 were granted leave to appeal only against the ordained sentence of life imprisonment imposed on count 3.

[3] It is wholly unnecessary to burden this judgment with a recital of the proven facts. These have been meticulously recorded by the trial court. Words cannot begin to adequately describe the sheer horror to which the complainant had been subjected. The sanctity of her home was violated, and she, her son and the latter’s friend terrorized by the appellants. She was robbed of her belongings, assaulted and forcibly abducted in her night clothes in her own vehicle which her assailants had commandeered. In the dead of night she was ordered to alight from the vehicle and locked in the boot of her vehicle. Shortly thereafter she was removed from the boot, a ligature placed around her neck and gagged by the insertion of a sock in her mouth. Her clothes were ripped and cut from her body whereafter she was violated, raped and abandoned in unfamiliar territory.

[4] The appellants now come before us on appeal against the alleged severity of the sentences imposed on them. Although the ordained sentence on count 2 was one of fifteen (15) years imprisonment, the trial court, actuated no doubt by the premeditative nature of the offence and its violent execution, was constrained to conclude that there were no substantial and compelling circumstances which warranted the imposition of a lesser sentence than that prescribed by the legislature, but, on the contrary, the offence demanded the imposition of a sentence in excess of fifteen (15) years. In the exercise of her discretion, the trial judge determined that an appropriate sentence would be one of eighteen years imprisonment. On the rape conviction of accused no.’s 2 and 3 and these she likewise found that there were no substantial and compelling circumstances to warrant a departure from the ordained sentence. 

[5] In determining the legitimacy of the clamour for an amelioration of the sentences imposed, it is apposite to reflect on the now trite approach propounded by the Supreme Court of Appeal in S v Malgas[3], where the learned judge, Marais, J.A., said: -

“[21] It would be foolish of course, to refuse to acknowledge that there is an abiding reality which cannot be wished away, namely, an  understandable tendency for a court to use, even if only as a starting point, past sentencing patterns as a provisional standard for comparison when deciding whether a prescribed sentence should be regarded as unjust. To attempt to deny a court the right to have any regard whatsoever to past sentencing patterns when deciding whether a prescribed sentence is in the circumstances of a particular case I manifestly unjust is tantamount to expecting someone who has not been allowed to see the colour blue to appreciate and gauge the extent to which the colour dark blue differs from it. As long as it is appreciated that the mere existence of some discrepancy between them cannot be the sole criterion and that something  more than that is needed to justify departure, no great harm will be done.

[22] What that something more must be it is not possible to express in precise, accurate and all-embracing language. The greater the sense of unease a court feels about the imposition of a prescribed sentence, the greater its anxiety will be that it may be perpetrating an injustice. Once a court reaches the point where unease has hardened into a conviction that an injustice will be done, that can only be because it is satisfied that the circumstances of the particular case render the prescribed sentence unjust or, as some might prefer to put it, disproportionate to the crime, the criminal and the legitimate needs of society. If that is the result of a consideration of the circumstances the court is entitled to characterise them as substantial and compelling and such as to justify the imposition of a lesser sentence.

[23] While speaking of injustice, it is necessary to add that the imposition of the prescribed sentence need not amount to a shocking injustice (''n skokkende onreg' as it has been put in some of the cases in the High Court) before a departure is justified. That it would be an injustice is enough. One does not calibrate injustices in a court of law and take note only of those which are shocking.” 

[6] In argument before us, Mrs. C. urged us to draw a clear distinction between the conduct of accused no. 1 and his fellow cohorts by reason of the alleged lesser role played by him, his attempt to protect the complainant from further harm and his remorse, as epitomized by his guilty plea on counts 1 and 2. She submitted that the trial court underemphasized the aforementioned factors to the detriment of the accused.  Whilst it is undoubtedly so that accused no. 1’s participation in the events post the stalling of the complainant’s motor vehicle near the informal settlement was not of the magnitude of his companions’, it is clear that his prior conduct not only precipitated the forced entry into the complainant’s home but that he played the leading role in the events in the house. The complainant’s uncontroverted evidence was that she had noticed accused no. 1 peering over her boundary wall approximately two weeks prior to the incident. When accused no. 2 dragged her to her son’s room, presumably with the intention of raping her, he desisted from so doing at the behest of accused no. 1. Accused no’s 2 and 3 obesience at accused no. 1’s command, demonstrates the leadership role of accused no. 1.

[7] He furthermore ordered her to unlock the garage door and drove the vehicle laden, not only with her, but her possessions as well. After he had crashed the vehicle, he went and withdrew money at the ATM from her account. When accused no.’s 2 and 3 raped her in his presence, he remained impassive and made common cause with them thereafter by blindfolding her. His altruism in offering to carry her on his back was clearly a sham. It afforded him the opportunity of fondling and penetrating her genitalia digitally.  To contend that he played a subordinate role in this horrendous saga is thus entirely fatuous.

[8] Upon an holistic appraisal of the aforementioned aggravating circumstances, accused no. 1’s personal circumstances must give sway. Not only was the trial court’s finding that there were no substantial and compelling circumstances which militated against the imposition of the ordained sentence of fifteen years imprisonment undoubtedly correct, but, moreover, the decision to impose a sentence in excess of that ordained, cannot be faulted. Appellate interference in the effective sentence of twenty-five (25) years imprisonment is clearly not warranted.

[9] When regard is had however to the fact that at the sentencing stage accused no. 1 was serving a sentence of twelve (12) years imprisonment, which, together with the sentence of twenty-five (25) years imprisonment, would cause him to be incarcerated for thirty-seven (37) years, then appellate interference seems meet. The cumulative sentence is unduly harsh and no useful purpose would be achieved thereby. However, to order that the entire prior sentence run concurrently with that imposed by the trial court would be inimical to the interests of justice for it is apparent from the judgment of the trial court, in the application for leave to appeal, that the facts in that matter bear an uncanny resemblance to those in casu. A portion of that sentence however should be ordered to run concurrently. 

[10] The trial court’s finding that the imposition of the ordained sentence of life imprisonment upon accused no.’s 2 and 3 was justified, cannot be faulted. In my view, it was imperatively called for. The factors enumerated by Mrs. C. as constituting substantial and compelling circumstances pale into insignificance regard being had to the aggravating circumstances. In the result the following orders will issue: -

1.    The appeals against the sentences imposed upon the appellants are dismissed.

2.    It is however ordered that seven (7) years of the sentence of twelve (12) years imprisonment imposed upon accused no. 1 by the regional court, shall run concurrently with the sentences imposed by the court below.

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D. CHETTY

JUDGE OF THE HIGH COURT

Dukada, J

I concur. It is so ordered.

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D. DUKADA

JUDGE OF THE HIGH COURT

Lowe, J

I concur. It is so ordered.

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M. LOWE

JUDGE OF THE HIGH COURT

Obo the Appellants:                         Adv E. Crouse, Port Elizabeth Justice Centre, North End, Port Elizabeth, Ref: E Crouse; Tel: (41) 408 2800

Obo the Respondent:                     Adv Hendricks, National Director of Public Prosecutions, High Street, Grahamstown,

                                                            Tel: (046) 6023000

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