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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 NORTH WEST HIGH COURT, MAHIKENG

CASE NO: CAF 08/2017

In the matter between:

NAMPIE JOHANNES MALETE                                                         Appellant

and

THE STATE                                                                                    Respondent

 

HENDRICKS J, GURA J & KGOELE J

DATE OF HEARING: 24 NOVEMBER 2017

DATE OF JUDGMENT: 22 FEBRUARY 2018

COUNSEL FOR APPELLANT: MR. SETUMU

COUNSEL FOR THE RESPONDENT: ADV. MUNERI

JUDGMENT

HENDRICKS J

Introduction

[1] The Appellant, who was accused 1 during the trial in the Regional Court, Temba, was convicted on two counts of rape. The trial court found that he, together with his co-accused, raped the complainants in what is commonly known as gang rape. The matter was transferred to the High Court for sentence in terms of the then applicable legislation. In the High Court their convictions were confirmed and they were sentenced. The appellant was sentenced to life imprisonment on each of the two counts of rape. Leave to appeal against sentence was subsequently granted to the Full Bench of this division; hence the present appeal.

[2] The facts of this case can be succinctly summarized as follows. The complainant in count 1, who was by then a girl of fifteen (15) years of age, testified that she attended a wedding ceremony on the night in question. Later on the appellant arrived and took her by force to his house. He told her to undress but she was reluctant to do so. He threatened that if he undress before her, he would assault her. He indeed managed to undress before she could undress herself. He took a plank and struck her several times with it on her legs and she sustained abrasions as a result of the assaults. He had sexual intercourse with her without her consent. After the sexual encounter the appellant instructed her to get dressed and they proceeded to a stokvel. There the appellant met some of his friends amongst whom were Paul Madiki and his girlfriend. The complainant made a report to Paul’s girlfriend that she was raped by the appellant. They all then proceeded to the appellant’s house.

[3] At his house, they entered into a bedroom and shared one bed. A little while later the co-accused of the appellant, who were accused 2 and 3 during the trial, arrived at the appellant’s house. Appellant left the bedroom. Accused 2 entered into the bedroom after the appellant left and he forced the complainant onto the floor. He undressed himself and had sexual intercourse with her without her consent. When he was done, he left. The complainant, still naked, went to the other bedroom in search of her clothes. She found accused 2, 3 and another boy inside this bedroom. A struggle ensued between her and these boys. At some stage the appellant appeared and slapped the complainant. She was overpowered and accused 2 managed to have sexual intercourse with her for a second time. Accused 3 then also had sexual intercourse with her without her consent and so too did the unknown fourth person. She was ultimately assisted by C S, the complainant in count 2, and Paul and they then left.

[4] C S, the complainant in count 2, testified. She corroborated the evidence of Paul and the complainant in count 1. She said that when they arrived at the house of the appellant, he undressed her and himself and had sexual intercourse with her without her consent. Accused 3 then followed and he also had sexual intercourse with her without her consent. After accused 3, the appellant again had sexual intercourse with her without her consent. She, together with the complainant in count 1 and Paul then left. They laid criminal charges against the appellant and his co-accused.

[5] It is quite apparent that the appellant and his co-accused acted in concert with one another and took turns in having sexual intercourse with the two complainants without their consent. This is what is commonly called gang rape. From these facts it is clear that these offences attracts life imprisonment as the sentence prescribed in terms of the Criminal Law Amendment Act 105 of 1997, unless there are substantial and compelling circumstances present which warrants a deviation. The court a quo (High Court) found that there are no substantial and compelling circumstances present in this case and imposed life imprisonment as a sentence for each count on the appellant.

[6] The following mitigation features and personal circumstances of the appellant were placed on record:

· he was 20 years of age.

· unmarried.

· he has no minor children.

· he was a shoemaker, earning approximately R600 per week.

· he attended school up until standard 6.

· he was staying with his parents.

· only his father was employed.

· he contributed financially to their household expenses.

· he was incarcerated, awaiting the finalization of his trial for almost two (2) years.

· he was under the influence of intoxicating liquor at the time of the offences.

· he is a first offender.

[7] The aggravating circumstances and features of these offences are:

· the complainant in count 1 was forcefully removed from the company she was with .

· she was assaulted with a plank and slapped in her face.

· the complainant in count 1 was gang raped by four men including the appellant .

· the appellant was armed with an axe.

· the complainant in count 2 was raped twice by the appellant.

· the complainant in count 2 was also gang raped.

[8] In S v Malgas 2001 (1) SACR 469 (SCA) the following is stated in paragraph [18]:

“[18] …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 of '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 sentences 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 can 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.”

See: S v Mahomotsa 2002 (2) SACR 435 (SCA).

[9] As already mentioned, the court a quo (High Court) found that there are no substantial and compelling circumstances present in this case. I am holding a different view. In my view, the fact that the appellant is a first offender; his youthfulness; that he was under the influence of intoxicating liquor and the absence of any proof of lasting psychological trauma on the complainants, as well as his personal circumstances as a whole constitute substantial and compelling circumstances.

[10] The court a quo misdirected itself in not finding that there are indeed substantial and compelling circumstances present in this case that warrants a deviation from the impositioning of life imprisonment as a sentence. It therefore put this Court at liberty to impose an appropriate sentence. Having regard to all the mitigating and personal circumstances as well as the aggravating features of this case, I am of the view that an appropriate sentence will be a sentence of twenty (20) years imprisonment on each count. The sentence should also be antedated.

 

Order

[11] Consequently, the following order is made:

(i) The appeal against sentence is upheld.

(ii) The sentence of life imprisonment on both counts imposed by the court a quo (High Court) is set aside and substituted with the following sentence:-

“Twenty (20) years imprisonment on each count.”

“The sentences are ordered to run concurrently.”

(iii) This sentence is antedated to 18 November 2003.

 

 

___________________

R D HENDRICKS

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG.

 

I agree

 

 

___________________

SAMKELO GURA

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG.

 

 

I agree

 

 

___________________

KGOELE J

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG.

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