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THE REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1)   REPORTABLE: NO

(2)   OF INTEREST TO OTHER JUDGES: NO

(3)   REVISED.

 

                                         Case no: A320/2019

3/9/2020

 

In the matter between:

NOAH DUMISANI CHILEMBE                                                                           APPELLANT

V

THE STATE                                                                                                           RESPONDENT

 

JUDGMENT

 

AC BASSON, J

 

[1]        On 26 October 2011 the appellant pleaded guilty on the following 6 counts in the regional court, Pretoria:

(i)         Count 1:         Robbery with aggravating circumstances read with the provisions of section 51 of the Criminal Law Amendment Act, Act 105 of 1997;

(ii)        Count 2:         Rape read with the provisions of section 51 of Act 105 of 1997;

(iii)       Count 3:         Rape read with the provisions of section 51 of Act 105 of 1997;

(iv)       Count 4:         Rape read with the provisions of section 51 of Act 105 of 1997;

(v)        Count 5:         Attempted murder;

(vi)       Count 6:         Robbery with aggravating circumstances read with the provisions of section 51 of Act 105 of 1997.

 

[2]        On 26 October 2011 the appellant was convicted on all 6 charges and on 1 February 2012 sentence was imposed as follows:

 

(i)         Count 1:         Fifteen (15) years’ imprisonment;

(ii)        Counts 2, 3 and 4 were taken together for imposition of sentence.  A sentence of life imprisonment was imposed;

(iii)       Count 5:         Five (5) years’ imprisonment;

(iv)       Count 6:         Ten (10) years’ imprisonment.

 

[3]          The trial court ordered that the sentences in respect of counts 1, 5 and 6 were to run concurrently with the sentences imposed in respect of count 2.  The effective period of imprisonment is therefore life imprisonment.  The appellant has an automatic right of appeal which he noted in respect of sentence only.

 

[4]        The appellant was legally represented throughout the trial.  During sentencing proceedings, a social workers’ report was presented on behalf of the appellant.  The State also led the evidence of the complainant and submitted medical evidence as exhibits to the proceedings.

 

Brief exposition of the facts

[5]        During the afternoon of 11 September 2010, the 39-year-old complainant was walking back to her workplace after church when the appellant accosted her.  He produced a knife, pushed it into her stomach and demanded her cell phone and money.  The complainant gave her handbag to the appellant. He also took her cell phone.  When the complainant informed the appellant that she did not have money, he forced her into a bush, while beating and kicking her.  He also stabbed her in the head.

 

[6]          The appellant then brutally raped the complainant three times whilst swearing at her. The appellant then phoned a friend and requested him to bring a gun, saying that there was a problem to be solved. The appellant then moved the complainant to another location, where he raped her once again, this time while she was kneeling on the ground. The appellant then turned the complainant around, forced her on her back, and raped her again.  From the evidence presented to court it appears that the appellant raped the complainant five times even though only three charges were put and accepted by the State.

 

[7]        The appellant was interrupted by a phone call from the employer of the complainant.  Conversations followed regarding money.  The employer realised that something was wrong when the complainant asked her employer for money to save her life. The appellant even indicated that he would accept R500.00.  The appellant moved the complainant closer to the road to wait for the complainant’s employer to bring the money. He threatened the complainant that he would kill her if the police were called.  The appellant stabbed the complainant in her head when he saw security vehicles arriving.  The complainant was seriously injured and lost consciousness.  The ordeal lasted approximately two hours.

 

Ad conviction

[8]        The conviction of the appellant is supported by the facts.  It also appears from the heads of argument on behalf of the appellant that the conviction is accepted. As stated above, the appellant pleaded guilty to the charges for which he was convicted.

 

Ad sentence

[9]        During the hearing it was presented to the trial court that the appellant was 21 years old at the time of the incident. In this regard his legal representatives made the point that the appellant committed this crime “[A]t his tender age, 21 years of age”. However, if regard is had to the certificates attached to the papers reflecting his education history, it appears from the birthdate appearing on that certificate that he was actually three years older, in other words 25 years old, at the time of the incident (1987-10-18). It also appears from the pre-sentencing report that the appellant must have represented to the interviewing that he was 21 at the time and that his birthdate 1990-02-07. Whether this was a deliberate attempt to mislead the trial court regarding his age, remains a mystery. The evidence further was that, at the time, he was not married and had no children.  He was unemployed and had no previous convictions.

 

Evaluation of the sentence

[10]      A minimum sentence of fifteen (15) years’ imprisonment is prescribed in terms of section 51(2) of Act 105 of 1997 for a first offender of robbery with aggravating circumstances.  Section 51(1) of Act 105 of 1997 provides for a minimum sentence of life imprisonment in circumstances where the victim was raped more than once by the accused.

 

[11]      Section 51(3) of Act 105 of 1997 provides that when a court is satisfied that substantial and compelling circumstances exist which justifies the imposition of a sentence less than the prescribed minimum, such circumstances shall be entered on the record of the proceedings and must thereupon impose such lesser sentence.

 

[12]        The law is trite that sentencing is a matter pre-eminently for the discretion of the trial court. A court sitting on an appeal should be careful not to erode that discretion and would generally only interfere with such a discretion if it was not judicially and properly exercised or where the sentence that was imposed is vitiated by an irregularity or misdirection or is disturbingly inappropriate. A court will interfere with the sentence where it can be shown that the sentence is strikingly shocking or that the court has misdirected itself. See in this regard the decision of the Supreme Court of Appeals in  [zRPz]S v Malgas[1] where the court emphasised the function of an appeal court in considering the sanction imposed by the trial court:

 

“[12] The mental process in which courts engage when considering questions of sentence depends upon the task at hand. Subject, of course, to any limitations imposed by legislation or binding judicial precedent, a trial court will consider the particular circumstances of the case in the light of the well-known triad of factors relevant to sentence and impose what it considers to be a just and appropriate sentence. A Court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, an appellate Court is of course entitled to consider the question of sentence afresh. In doing so, it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellate Court is at large. However, even in the absence of material misdirection, an appellate Court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when 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'.”

 

 

[13]       Similarly in S v Monyane and others,[2]  the Supreme Court of Appeal restated the principle that it would interfere with sentences imposed by a trial court only where the degree of disparity between the sentence imposed by the trial court and the sentence the appeal court would have imposed was such that interference was competent and required. The Supreme Court of Appeal explains:

 

“[15] This court's powers to interfere on appeal with the findings of fact of a trial court are limited. It has not been suggested that the trial court misdirected itself in any respect. In the absence of demonstrable and material misdirection by the trial court, its findings of fact are presumed  to be correct and will only be disregarded if the recorded evidence shows them to be clearly wrong (S v Hadebe and Others  1997 (2) SACR 641 (SCA) at 645e - f). This, in my view, is certainly not a case in which a thorough reading of the record leaves me in any doubt as to the correctness of the trial court's factual findings. Bearing in mind the  advantage that a trial court has of seeing, hearing and appraising a witness, it is only in exceptional cases that this court will be entitled to interfere with a trial court's evaluation of oral testimony (S v Francis  1991 (1) SACR 198 (A) at 204e).”

 

 

 [14]     It is trite that rape is a serious crime. The Supreme Court of Appeal in the well-known matter of S v Chapman[3] stated as follows:

 

“Rape is a very serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim.

The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the Constitution and to any defensible civilisation. Women in South Africa are entitled to the protection of these rights. They have a legitimate claim to walk peacefully on the streets, to enjoy their shopping and their entertainment, to go and come from work, and to enjoy the peace and tranquillity of their homes without the fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives. The Courts are under a duty to send a clear message to the accused in the present case, to other potential rapists and to the community that the Courts are determined to protect the equality, dignity and freedom of all women, and they will show no mercy to those who seek to invade those rights.”

 

[15]       Having regard to the facts of this case, I can find no reason to interfere with the imposition of the prescribed sentence in respect of the charges preferred against the appellant. The legislature has imposed minimum sentences that are regarded as appropriate and just punishment for certain specified crimes. Rape is a repulsive crime by its very nature. The magistrate found that there are no substantial and compelling circumstances to deviate from the prescribed sentence. The learned magistrate duly took into account the particular circumstances of this crime in evaluating whether the imposition of the prescribed minimum sentence is appropriate in the circumstances. I can find no reason to interfere with the exercise of the learned magistrate’s discretion.

 

[16]      I am therefore in agreement with the submission on behalf of the State that there are no substantial and compelling circumstances in casu.  Moreover, in addition to the absence of substantial and compelling circumstances, there are numerous aggravating circumstances which fully justify the imposition of the minimum sentence.  This was a horrendous crime perpetrated against a defenceless woman.  Not only did he rape her numerous times, he stabbed her with a knife in her head. Imposing the minimum sentence in these circumstances is not, in my view, disproportionate to the crime. The appellant also does not deserve any measure of mercy in light of the callous manner in which he violated the complainant on that fateful day. Also, the mere fact that the appellant entered a plea of guilty does not absolve him from the seriousness of the crime.

 

Conclusion

[17]      In the result I propose the following order:

 

The appeal against sentence is dismissed.

 

 

 

A C BASSON

JUDGE IN THE HIGH COURT

 

I agree.

 

 

           

KLAM  MANAMELA

ACTING JUDGE IN THE HIGH COURT

 

 

For the appellant

Adv LA Van Wyk

Instructed by Legal Aid SA

 

For the respondent

Adv CP Harmzen

Instructed by National Prosecuting Authority

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