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IN THE HIGH COURT OF SOUTH AFRICA

TRANSVAAL PROVINCIAL DIVISION

DELMAS CIRCUIT COURT

Case No. SH796/03

Registrar Ref. No. CC 477/07

Date:22/09/2008

THE STATE

versus

SANDILE JEREMIA MAMBILA..................................................................Accused

SENTENCE

[1] The accused, Sandile Jeremia Mambila, was charged in the Regional Court, Daveyton with the offence that he raped a certain female person (“the complainant”) on the 29^th November 2002 (count 1), and with the unlawful possession of a firearm (count 2).

[2] The accused was legally represented with the assistance of the Legal Aid Board.

[3] The accused pleaded not guilty to both counts. He made a formal admission in terms of s 220 of the Criminal Procedure Act 51 of 1977 that he had had intercourse with the complainant on the 29^th November 2002, but that, in terms of his plea explanation, such intercourse was with the consent of the complainant who, in terms of the evidence was 15 years of age and school going at the time of the incident. She turned sixteen years old on the 16^th January 2003.

[4] On 5 September 2003, the Regional Court Magistrate found the accused guilty of rape (count 1), and he was found not guilty of unlawful possession of a firearm (count 2).

[5] The accused’s legal representative brought it to the attention of the Regional Magistrate that the complainant was under the age of sixteen at the time of the rape of which the accused was convicted and that the matter should be referred to the High Court for sentence, but the Regional Magistrate did not appear to agree with the suggestion of committing the matter to the High Court for sentence. The accused’s legal representative and the prosecutor thereafter addressed the regional court on sentence.

[6] Also on the 5^th September 2003, the Regional Magistrate sentenced the accused to eight years imprisonment, and at the outset of his judgment on sentence he said the following:

‘At this stage I consider the fact that the complainant was 15 years of age at the time of the commission of the offence and it was only a matter of a month or two before she turned 16 and that she was already a sexually active person with a child as well and her physical appearance did not really suggest that indeed she was 15 years of age and for that reason I will waive the Minimum Sentence Act 105 of 1997.’

The Regional Magistrate also failed to take into consideration that the crime of which he convicted the accused involved the rape of the complainant twice.

[7] On 16 August 2003, the accused applied for leave to appeal, presumably against both his conviction for rape and the sentence imposed.

[8] On 24 December 2004, the Regional Court granted the accused, who was then legally unrepresented, leave to appeal against the sentence imposed upon him.

[9] On 19 March 2007, the sentence imposed upon the accused was set aside in the High Court (Transvaal Provincial Division), and the matter was referred back to a single Judge of the High Court for sentencing in terms of s. 52(1) of the Criminal Law Amendment Act No. 105 of 1997 (“the Act”).

[10] On 5 June 2008, the matter appeared before me in the High Court of the Eastern Circuit of the Transvaal Provincial Division, sitting at Delmas. Adv Cronjè appeared for the State, and Adv Jagnath for the accused.

[11] After having considered the record of the proceedings in the Regional Court and giving both counsel the opportunity of addressing me on the issue of the accused’s conviction, I formed the opinion that the proceedings were in accordance with justice and I accordingly confirmed the conviction of rape.

[12] The State proved two previous convictions against the accused. On 24 November 1998, he was convicted of the statutory offences of unlawful possession of a firearm and of ammunition, and he was sentenced to 3 years’ imprisonment. On 14 May 2002, he was convicted of theft and sentenced to the payment of a fine of R1000.00 or 6 months’ imprisonment.

[13] By agreement between the State and the defence a victim impact report (exhibit D), a probation officer’s report (exhibit B), and a report from a correctional official (exhibit C) were handed in, the information contained in the reports were admitted, and I was invited to have regard to the contents of each report in considering an appropriate sentence for the accused. The State led no viva voce evidence in aggravation of sentence. The accused testified under oath in mitigation of sentence. He made a good impression upon me. He was honest and I accept his evidence as reliable. Both counsel addressed me on the issue of sentence.

[14] The crime under consideration is very serious. The victim was raped twice by the accused and she was a girl under the age of 16 years. It is accordingly an offence referred to twice in Part I of Schedule 2 to the Act for which it is necessary, in terms of ss. 51(1) and 51(3)(a), to impose a sentence of imprisonment for life unless ‘substantial and compelling circumstances’ justify a lesser sentence. The Legislature has ‘…singled out for severe punishment…’ and ordained life imprisonment ‘… as the sentence that should ordinarily and in the absence of weighty justification be imposed …’ for the type of crime committed by the accused [see: S v Malgas 2001 (1) SACR 469 (SCA), at pp 481 h – 482 f ].

[15] The accused overcame the victim’s resistance by threatening her with a firearm, which he also pointed at her. He raped her once in the evening and again early the next morning. The rapes traumatized, devastated and degraded her. Her relationship with her boyfriend ended as a result thereof. She feels unsafe and is scared when seeing the accused. The incident has left her traumatized and she requires trauma counselling as a result thereof.

[16] Our country suffers an unacceptable and distressing incidence of violence, and especially rape against women and children, and the needs of society require courts to deal severely with sexual offenders such as the accused. Our courts have repeatedly emphasized the seriousness of such offences and that severe punishments will be imposed upon such perpetrators, unless the circumstances of a particular case dictate otherwise.

[17] A senior probation officer, Mr Aubrey Sihlangu, states the following in his report (exhibit B):

‘The Offence in question seems to have reached endemic proportion as shown by the amount of requests for Victim Impact reports received by the Department of Social Development-Benoni Cluster.’

[18] The accused’s father neglected his parental responsibilities towards the accused and his siblings and they were raised by his biological mother in Daveyton. At a stage when she worked and lived with her employer as a domestic worker, the accused’s mother also left the accused to be raised by her mother. The lack of a father figure and neglect probably contributed to the accused’s behavioural problems that already manifested when he was school going, and he only managed to progress as far as grade 11 at the Hulwazi Secondary School in Daveyton. The accused was 24 years of age when he committed the offences under consideration. His abuse of drugs and alcohol at the time played a significant role in the commission thereof.

[19] The sentence of a mere eight years’ imprisonment imposed upon the accused by the learned regional magistrate was, in my view, inadequate and the accused deserved a more severe punishment. Such sentence, at the time, was not proportionate to the seriousness of the crimes committed by the accused, the circumstances under which they were committed, the impact on the victim, the needs of society, and the personal circumstances of the accused. I would have imposed a sentence of possibly three times more than that imposed upon him ‘if I could turn back time’.

[20] The accused was arrested in connection with the offence under consideration on the 27^th July 2003, and he accordingly spent a little more than one month in custody before he was convicted and sentenced on the 5^th September 2003. He immediately commenced to serve his sentence of imprisonment and he continued to do so until he was released on parole on 4 September 2007, despite the sentence having been set aside on the 19^th March 2007. While he was incarcerated the accused attended a Sexual Offenders Therapeutic Programme, an Introduction to Computers Programme, and an Emotional Maturity Programme. The accused’s behaviour while incarcerated in the correctional centre was reported to have been good, he showed remorse for the sexual offences that he had committed (exhibit C). He was accordingly recommended for and released on parole for the period 4 September 2007 until 4 March 2011 when the sentence imposed upon him by the regional magistrate expires. The conditions imposed upon him by the relevant parole board were full house arrest, except for Saturdays from 09:00 – 13:00, and the performance by him of a total of 376 hours community service of which 125 hours have been suspended, which community service hours are to be performed at 16 hours per month. Since his release on parole and until the present, the accused has been serving his house arrest at his mother’s home at 1966 Bhele Street, Daveyton, and he has been performing his community service at the Mabuya High School and at other organisations in and around Daveyton.

[21] Mr. Lennon Wright, who is the Head: Community Corrections of the Modderbee Management Area and responsible for overseeing and monitoring the accused since he has been released on parole, reports that the accused is complying with all his conditions as ordered by the parole board as well as community corrections (exhibit C). Mr. Wright informed the probation officer, Mr. Sihlangu, that the accused has demonstrated a positive attitude and is fully co-operating with the correctional officers throughout his placement on parole. There were four incidents where the accused breached his parole conditions by going to an ATM or to the shops, but they are considered reasonable and acceptable in terms of the applicable standards.

[22] The accused’s mother reported to the probation officer that:

‘… the accused has, ever since he has been released from prison on parole, been disciplined and focused. He is looking and caring for her as she is no longer able to do tasks that are physically challenging such as ensuring that the house is well kept and doing the chores since her sisters have moved out of the house.’

And also:

‘Mrs. Mambila reported that she has further entrusted her finances to him and that he is responsible for collecting her monthly old age grant at ATM.’

[23] The accused has been showing remorse since while he was incarcerated. This is inter alia why he was considered suitable for parole. He also expressed remorse to the probation officer, and when he testified in mitigation of sentence. He is ashamed of what he has done to the victim. I consider the remorse expressed by him to be sincere.

[24] The programmes attended by the accused during his incarceration assisted him in rehabilitating from his drug and alcohol abuse, and to lead a socially responsible and crime-free life in future. He became a rehabilitated person and had no difficulty in adjusting to life outside prison. He now sees himself as a more responsible and well adjusted person in society. The accused is showing proper insight into the impact which his crime has had and is having on the victim.

[25] The probation officer reports as follows:

‘He attributed his newly discovered positive attitude to these programmes in particular the sexual offences program which made him to realize the seriousness of the Offence, its consequences and impact thereof on the Complainant.

The Accused further intimated that he benefited immensely from these programs as upon completion, he felt the urge to express and verbalize remorse over his immoral actions towards the Complainant.’

[26] A great injustice will be done in the extraordinary circumstances of this matter to impose another sentence of direct imprisonment upon the accused. He has continued to serve out a sentence even though it was set aside. In serving such sentence he has undergone rehabilitation, overcome his substance abuse problem, and he has become socially responsible and equipped to live a crime-free life in future.

[27] I am accordingly satisfied that substantial and compelling circumstances exist and that they justify a radical departure from the prescribed minimum sentence. I am of the view that an appropriate sentence should aim at maintaining the status quo and that further imprisonment would be inappropriate and it would, in the circumstances of this matter, amount to sentencing the accused twice for the same offence.

[28] A further report of the Head: Community Corrections, Mr LM Wright, was placed before me in accordance with the relevant provisions of s 276 of the Criminal Procedure Act 51 of 1977 (exhibit E). The accused is considered a suitable candidate for correctional supervision as a sentencing option. The report makes specific recommendations as to monitoring, house arrest and community service.

[29] I express my gratitude to both counsel, to Mr. Sihlangu and to Mr Wright for their assistance and reports in this matter. I feel compelled to single out the senior state advocate, Ms Cronje, for her sustained effort and exemplary conduct throughout. She arranged all the reports and assisted in ensuring that the accused’s constitutional right to a fair trial is upheld. Her cross-examination of the accused and her argument relating to sentence assisted greatly in the determination of an appropriate sentence for the accused.

[29] In the result, in terms of s 276(1)(h) of the Criminal Procedure Act 51 of 1977, the accused is sentenced to three years correctional supervision, subject to the following conditions:

1.(a) The accused shall be placed under house arrest for the full duration of the sentence. The house arrest shall apply from Sundays to Fridays from 0:00 to 0:00 and on Saturdays from 0:00 to 9:00 and from 13:00 to 0:00, and shall be served at No. 1966 Bhele Street, Daveyton, provided that the house arrest shall not apply during the time reasonably needed for the performance of community service, office visits and the attendance of a Life Skills Programme and/or any other programme as required by the social worker.

(b) The accused shall perform community service of sixteen hours for every month of the sentence, consisting of working at the Mabuya High School, but the Commissioner of Correctional Services (“the Commissioner”) may change the community service centre at his discretion.

(c) The Commissioner is authorised to suspend any part or period of house arrest under paragraph (a) above and community arrest under paragraph (b) above and to re-introduce such part or period.

(d) The accused shall attend and complete a Life Skills Programme at the time and place prescribed by the Commissioner.

2. The accused shall:

(a) refrain from the use of alcohol or the use of drugs, other than prescribed by a physician, for the duration of this sentence;

(b) notify the Commissioner in writing prior to any change of residential address;

(c) not leave his residential address or magisterial district in which he resides, without prior approval of the Commissioner.

3. In terms of s 52 of the Correctional Services Act 111 of 1998, the Commissioner may set any other condition or conditions that are essential for the execution of the sentence of correctional supervision.

4. The Commissioner shall see to it that the conditions are complied with, and act in accordance with the provisions of s 70 of the Correctional Services Act 111 of 1998 upon the violation of the conditions.

5. The accused must report within forty eight hours at the Community Corrections Office, Benoni (Admissions section), Second Floor Technicon SA Building, 90 Elston Avenue, Benoni (Tel No. 011 746 5500).

P.A. MEYER

JUDGE OF THE HIGH COURT

22 September 2008

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