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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

GAUTENG  LOCAL DIVISION, PRETORIA

CASE NO:  A843/16

DATE: 01/09/2017

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/NO

In the matter between:

ROBERT PFULUWANI MUNYAI                                                                     APPELLANT

And

THE STATE                                                                                                   RESPONDENT

JUDGMENT

COLLIS AJ: (MOLOPA-SETHOSA and MABUSE JJ concurring)

INTRODUCTION

[1] This matter comes before us as an appeal noted against sentence only. The appellant was charged in the regional court sitting at Waterval with one count of rape in contravention of section 51(1) of the Criminal Law Amendment Act, Act 105 of 1997, and with a further count of assault with the intent to inflict grievous bodily harm.

[2] As per the charge sheet, it is alleged in respect of count 1, that on or about 13 September 2003 and at or near Mpheni in the district of Waterval, Limpopo, the appellant wrongfully and intentionally committed an act of sexual penetration with the complainant, an 8-year-old female, by penetrating her vagina with his penis without her consent. In respect of count 2 the appellant was charged with the crime of assault with the intent to do grievous bodily harm, in that upon or about 13 September 2003 and at or near Mpheni in the district of Hlanganani the appellant wrongfully and intentionally assaulted Thabiso Maswoga, by assaulting her with fist blows thereby causing her grievous bodily harm.

[3] The appellant was initially not legally represented in the court a quo and on 18 June 2004 pleaded not guilty to both counts. During the proceedings he later was represented by the Legal Aid and also made a formal admission in terms of section 220 of the Criminal Procedure Act, Act 51 of 1977 in terms of which he admitted having had sexual intercourse with the complainant without her consent[1]

[4] On 24 June 2004 he was convicted of rape and assault whereafter the proceedings were stopped by the trial court and referred to the High Court for sentencing in terms of section 52(1) (b) of the Criminal Law Amendment Act, Act 105 of 1997.

[5] On 12 April 2005 the conviction was confirmed by Smit J sitting in the Circuit Court held at Makhado and the appellant was sentenced to life imprisonment in respect of count 1 and to three months' imprisonment in respect of court 2.

[6] On 17 September 2013, Tolmay J granted the appellant leave to appeal against his sentence.

BACKGROUND

[7] The facts of the case were that on 13 September 2003 during the afternoon, the complainant was at home playing in the company of her older brother and younger sister. Albeit, that it was in the afternoon, the appellant then called her inside the shack and instructed her to come and sleep with him. It was then that he undressed her panties and had sexual intercourse with her, where after he instructed her to go and wash her panties. Inside the shack and whilst he has sexual intercourse with her, her older brother heard her cries and then he peeped through a hole where he witnessed how the appellant was raping her. After raping the complainant, he also called her younger sister inside the shack but she refused and then he struck her with his fist. This resulted in her falling onto a piece of onto corrugated iron whereupon she was injured by a nail. On the same day, the complainant reported her ordeal to one V. M. that she was raped by her [...] and had pain on her private part. Ms M. lifted up her dress and had found that she had no panties on but had semen on her private part.

[8] The medical report handed in in respect of the complainant confirmed that her hymen was torn at positions 3, 5 and 7 o'clock. The medical practitioner also recorded that the injury must have been caused by hymenal penetration. This report was handed in as an exhibit by agreement with the defence. Similarly, a further medical report handed in by agreement with the defence, confirmed a bruise and abrasion above the complainant's younger sister's right eye, which was caused after he struck her with an open fist and as a result she fell on a piece of corrugated iron injuring herself with a nail.

GROUNDS OF APPEAL

[9] The appellant's appeal on the sentence is premised on the following grounds:

9.1   that the sentence is disproportional;

9.2   that the trial court did not blend the sentence with a measure of mercy;

9.3   the time spent awaiting trial before sentencing;

9.4   the appellant was born in 1979;

9.5   the trial court did not attach sufficient weight to the personal circumstances of the appellant;

9.6   the appellant made admissions in which he accepted responsibility for his actions;

9.7  and that the trial court misdirected itself in finding no substantial and compelling circumstances justifying the imposition of a sentence less than life imprisonment.

[10] It is trite that the appeal court will generally only interfere with the sentence imposed if the court a quo committed an irregularity or misdirected itself in imposing the sentence, or has imposed a sentence which is shockingly inappropriate or completely out of proportion to the magnitude of the offence.

[11] To arrive at an appropriate sentence the court must strike a balance between the seriousness of the offence and the interest of society on the one hand and the personal circumstances of the appellant on the other.[2] The sentence should be individualised to the offender and his or her rehabilitation should also be considered.[3]  The personal circumstances of the appellant at the time of sentencing on 12 April 2005 were as follows:

11.1    the appellant had one previous conviction for assault with the intent to do grievous bodily harm imposed during 2001 and sentenced to six months' imprisonment;

11.2    the appellant was arrested on 16 September 2003 and accordingly he had spent just over under years in custody awaiting finalisation of his trial;

11.3    the appellant was either 18 or 22 years old when the crimes were committed (the record is unclear in this regard) and only attended school up until Grade 4. His upbringing was from a very rural area and he was forced to leave school at an early age;

11.4   at the time of his arrest he worked as a gardener, earning an income of R150 per month, which was partly used to support his family including the complainants;

11.5   the appellant was single and he had no dependants.

[12]   Against the background of the appellant's personal circumstances must be considered the fact that the rape and assault was perpetrated against two [...] who were placed in his care on the day in question. I also take into consideration that the appellant initially pleaded not guilty and only later made certain formal admissions wherein he had admitted having had sexual intercourse with the complainant. The record however reflects no indication that he showed any remorse for the crimes that he had committed or any appreciation of the harm caused by the rape and assault perpetrated on

his [...]. The trial judge found no substantial and compelling circumstances warranting a lesser sentence  than life imprisonment.

[13] Counsel appearing on behalf of the appellant submitted that the trial court misdirected itself in finding no substantial and compelling circumstances. In S v Vilakazi 2009 (1) SACR 552 (SCA) para 58 it was held as follows with regard to what constitutes substantial and compelling circumstances:

"In cases of serious crime the personal circumstances of the offender, by themselves, will necessarily recede into the background. Once it becomes clear that the crime is deserving of a substantial period of imprisonment the questions whether the accused is married or single, whether he has two children or three, whether or not he is in employment, are themselves largely immaterial to what that period should be, and those seem to me to be the kind of 'flimsy' grounds that Malgas said should be avoided. A material consideration is whether the accused can be expected to offend again."

[14] Counsel further submitted that the court a quo misdirected itself by not taking into account that the rape complainant did not sustain any other injuries to her body and as such that this should have been viewed by the court a quo with other factors cumulatively to amount to substantial and compelling circumstances.

[15] In weighing whether the maximum sentence will indeed be proportionate in the present matter, I must take into account that other than the physical injury inherent in the offence, there had been no extraneous violence of any kind and no bruising was recorded during the medical examination which was conducted.

[16] Having said that, I do however think that it must be accepted that no woman, least of all a child, would be left unscathed by a sexual assault and that in this case the complainant in the rape count must indeed have experienced emotional distress and trauma. The social worker's psycho-social and victim impact report presented before the trial court, recommended that the complainant should receive ongoing counselling and support. This report was compiled two years after the incident. [4]

[17] The offence of rape is considered by our courts as one of the most severe crimes that should attract severe punishment. In DPP North Gauteng v Thabethe 2011 (2) SACR 5679-h the Court stated:

"Rape of women and young children has become cancerous in our society. It is a crime which threatens the very foundation of our recent democracy which is founded on protection and promotion of the values of human dignity, equality and the advancement of human rights and freedoms. It is such a serious crime that it evokes strong feelings of revulsion and outrage amongst all right thinking and self-respecting members of society."

[18] Our courts have however repeatedly held, that society demands that persons who make themselves guilty of offences of this nature must be severely dealt with. In S v Ganga[5] it was said that in cases such as this, the "element of retribution and deterrence rather than the interest of the criminal himself comes to the fore when it comes to the assessment of what would be a suitable  sentence."

[19] The decision S v Mahomotsa 2002 (2) SACR 435 (SCA) however conveys that, even where imprisonment for life is prescribed as a minimum sentence, a court must bear in mind that it is the ultimate penalty that the courts in this country can impose. As such it is not to be imposed lightly, even when it is a prescribed minimum sentence..

[20] As mentioned earlier in this judgment in order to arrive at a just sentence, a court must have regard for the seriousness of the crime, the personal circumstances of the accused and the legitimate interests of society. The result thereof is that justice demands that even, for similar crimes, different sentences must often be imposed.

[21] The court a quo, to my mind had failed to adequately consider the personal circumstances of the appellant (especially his age which according to the record is ambiguous) as against the seriousness  of the offences and the interest of society and as such concluded that no substantial and compelling circumstances existed which warranted a departure from the prescribed minimum sentence. This to my mind resulted in a misdirection having taken place by the court a quo in passing sentence and consequently this court should interfere with the sentence imposed.

[22] In the result the following order is made:

22.1   The appeal against sentence is upheld.

22.2   The sentence imposed on the appellant by the court a quo is set aside and the following sentence is substituted in its place:

“In respect of Count 1: The appellant is sentenced to 20 years' imprisonment.

In respect of Count 2: The appellant is sentenced to 3 months' imprisonment.

Both sentences are antedated to 12 April 2005.”

__________________________

C .J . COLLIS

 

ACTING JUDGE GAUTENG DIVISION, PRETORIA

 

__________________________

L. M. MOLOPA-SETHOSA

 

JUDGE GAUTENG DIVISION, PRETORIA

 

__________________________

P.M. MABUSE

JUDGE GAUTENG DIVISION, PRETORIA

APPEARANCES:

 

FOR APPELLANT:         MS. M.B. MOLOI

INSTRUCTED BY:         LEGAL AID SOUTH AFRICA

FOR RESPONDENT:     ADV P. VOSTER

INSTRUCTED BY:         OFFICE OF THE DIRECTOR OF PUBLIC

                                              PROSECUTION GAUTENG DIVISION,

                                              PRETORIA

DATE OF HEARING:     18 AUGUST 2017

DATE OF JUDGMENT:  01 SEPTEMBER 2017

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