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PAULOS SEKONYANE FOFO APPELLANT

and

THE STATE RESPONDENT

CASE NO. 312/87 CCC

IN THE SUPREME COURT OF SOUTH AFRICA

(APPELLATE DIVISION)

In the matter between
PAULOS SEKONYANE FOFO APPELLANT
and
THE STATE RESPONDENT
CORAM: VAN HEERDEN, NESTADT JJA et KUMLEBEN AJA
HEARD: 16 FEBRUARY 1988
DELIVERED: 11 MARCH 1988

JUDGMENT NESTADT, JA:
This appeal is against the sentences im-posed by VERMOOTEN AJ, sitting in the Witwatersrand

Local/

2.

Local Division, for a series of crimes of which appellant was found guilty. After a lengthy trial, he was con-victed on ten counts of rape, one of attempted rape, one of indecent assault, one of assault to do grievous bodily harm, ten of housebreaking with intent to rape (nine of which were with aggravating circumstances), one of house-breaking with intent to steal, twelve of robbery (ten with aggravating circumstances) and one of theft of a motor vehicle. In respect of four of the convictions of rape, three death sentences were imposed. For the rest, he was sentenced to varying periods of imprisonment, totalling 155 years. The individual sentences range from ten years for housebreaking and rape to four years for robbery. They were ordered to run concurrently

in/
3. in such a way as to produce an effective period of im-prisonment of 41 years.
Appellant was a hawker, aged 28, at the time of his trial (in November 1986). He was born in Lesotho where he received a Std 1 education. Nevertheless, he was regarded by the trial judge as "a very intelligent man". According to the court's observations, he is strongly built and has a "forceful nature". He came to the Republic in 1978. He has one previous conviction but it is not relevant. He is unmarried.
The crimes were committed in or near Jo-hannesburg during the period 9 October 1984 to 3 August 1985. Save for the theft of the car, they concerned fourteen women. Of these, one an 18 year-old girl, was robbed of some.money

at/
4. at knife-point in a suburban street one morning. The other thirteen were accosted by appellant in their homes into which he had broken, save that in one case he was able to enter without effecting a breaking. Except in this last instance the crimes were committed at night (usually in the early hours of the morning). In most cases, the complainants either lived alone or. were alone at the time. The others lived either with a child, mother or girl friend. As I have indicated, ten of the women were raped; one was the subject of an attempted rape; and the other two were assaulted in the manner stated. The latter were aged 15 and 17. Those who were raped were in their twenties save for three who were aged 31, 45 and 51. Other than in one instance each of them

was/
5. was at the same time robbed of relatively small amounts of money. On seven of the thirteen occasions, appellant wielded a knife or similar weapon with which he threatened his victims. In one case, as will be seen, he actually injured one of the women with it. Five of the other complainants did not see that he was armed but each time there was a threat by appellant to kill them.
That, in outline, is an account of appellant's nefarious conduct. His denial of any participation in the crimes was rejected by the trial court. In considering the appeal it is necessary to deal separately and indepen-dently with the (effective) sentence of 41 years' imprisonment on the one hand and the death sentences on the other,

irrespective/
6. irrespective of the fate of the latter. I commence with the former. I do not recount, in any greater detail, the circumstances of the crimes. Without detracting from their seriousness, I entertain no doubt that the resul-tant sentence of 41 years' imprisonment is unduly severe and cannot be allowed to stand. As appears from what was said in S vs Sibiya 1973(2) S A 51(A), a sentence of longer than 25 years' imprisonment is an unusual one and is not often imposed in this country. The longest effec-tive sentence, according to certain sample statistics referred to in the judgment (at 57 in fin - 58 B), was, up to that time,32 years (imposed in 1964). I have been unable to procure any more recent figures but my

impression/

7. impression is that a sentence in excess of 25 years remains an exceptional one. The reason is that it does not,in comparison with a lesser one, more effective-ly promote the main purposes of punishment, especially those of deterrence and reformation (S vs Khumalo & Others 1984(3) S A 327(A) at 330 D, 331 A - B and E - F; S vs Skenjana 1985(3) S A 51(A) at 54 I - 55 E). In my opinion,an effective sentence of 25 years' imprisonment would be an appropriate one in this matter. The indi-vidual sentences will be ordered to run concurrently in such a way that this will be achieved..
I turn to a consideration of the appeal against the death sentences. It requires a closer analysis

of/
8. of the facts of each of the three incidents. The trial court gave a direction that the identity of the complainants be not disclosed. In order to preserve the effect of this order, I refer to the complainants by fictitious initials. The one rape involved AB. She was a 27 year-old, unmarried air hostess who lived on her own in a cottage adjoining the main house on the property. At about 10 o' clock on the morning of 9 October 1984 she was doing some wash-ing. whilst in the lounge-cum-bedroom of her home she suddenly noticed appellant in the room. He had obviously entered through the open,outside door. He had a knife in his hand. He held it aloft. He told her to be quiet. He demanded money. She gave him what cash she had in her nearby

bag/

9.

bag, viz, R54. He then said that he wanted "her". He grabbed her by the arm. She tried to break loose. He held the knife against her neck. He threatened to kill her if she tried to escape. They struggled. She was thrown to the floor. He began throttling her. She felt herself losing consciousness. His reaction to her plea that he release her was to laugh. He then took off his pants and raped her. At one stage he wanted her to kiss him. She managed to escape when he sprang up to retrieve his knife which was lying nearby. She sustained several minor injuries in the attack, viz, a cut on the front part of her neck (which has left a prominent scar), as also cuts on the palm of her hand and on one of her

fingers. She also suffered various bruises and abrasions.

When/

10.
When medically examined about four days later she was
still, in the words of the doctor, "very upset and shocked".
He gave her a tranquilliser (in addition to a penicillin in-

jection, to avoid infection). She was off work for a week.
She felt herself unable to continue living in the cottage
and left it a week later. She moved to another city. As
to the effect of what befell her, she testified:

"Mens kan nie daarvan wegkom nie...

Kom dit neer op die feit dat u nooit weer vertroue in 'n man sal kan hê, of sal die tyd kom wanneer u weer ver-
troue in 'n man kan hê? Ek het tot
dusver nog nie vertroue in 'n man gekry nie, en ek twyfel of ek dit weer sal hê... Ek kan nie in my woonstel in-gaan sonder om die deur toe te sluit en die vensters toe te maak nie. Ek is
chronies behep met alles toesluit. Oor
ekbang is. Ek weet nie waarvoor nie,
maar ek bly bang."

She/

11.

She added that at the time "het (sy) op trou gestaan" but the relationship was subsequently terminated. This was apparently because she became frigid as a result of her experience. According to the evidence of her landlady (who lived in the house) she was now "different"; she had become "very nervy" and withdrawn. The second death sentence was imposed for the rape of two women. The offences were taken together for the purposes of sentence. CD, a university lecturer aged 27, and EF, a university student aged 21, both un-married, shared a house. They slept in separate bed-rooms. At about 2 am on 1 June 1985, EF was in bed, though not asleep. She heard her curtains rustling. She put the lights on. She saw appellaht next to her

bed./

12
bed. He was undressing himself. She screamed. He threatened to kill her if she did not keep quiet. He said he had a knife (though he never produced it). She offered him money and gave him R30 from the purse in her bag. At about this stage, CD, who had been awoken by EF's screams and had gone to investigate, asked her (from outside the door pf EF's bedroom) whether anything was wrong. Appellant, on hearing this, went out, grabbed hold of CD and pulled her into EF's bedroom. He ordered both of them to undress and lie on the bed. On his instructions the light was switched off. He then proceeded to rape each of the women alternately a number of times. According to CD, she was raped four

times/
13. times and EF three times. The evidence of EF was that she was raped twice. At one stage during the approxi-mately 45-minute encounter, they asked him to allow them to go to the toilet. He did so but he insisted on accompanying them there. When EF was being raped she cried out and asked appellant to stop. He said he would kill them if they made a noise or resisted. He had also ordered EF to put her arms round him. Having eventually satisfied his lust, he demanded money from CD. She gave him a cash cheque for R100 which he accepted. He also took a radio which he found in the room. Before leaving he said that he wanted to cut the telephone cord. CD pulled the plug out and he

left/

14. left it at that. It was later established he had broken
into the house by removing the burglar bars and climbing
through a window of one of the rooms. On examination by a
doctor soon after the attack, both women were found to be in
a state of shock. Neither felt able to continue living in
the house after the events of that night. They feared appellant's
return. CD went to England for a year. Whilst there, she re-
ceived psychological therapy for the distress from which she
was suffering. Though she had since formed friendships and trusting
relations with men, her evidence was that "psychologically

I will always remember what has happened and I will not

be the same again as I was before". She still feels the

need for therapy. Her doctor testified that she was

depressed and anxious. EF, who was a virgin at the time,

sustained/
15. sustained a small laceration of the hymen. She des-cribed herself as having become "very nervous and scared". She feels "suspicious" of men; her social life has been adversely affected. She believes it will take a long time to recover,. She has been receiving treatment from a psychologist who testified that she is depressed.

The conviction giving rise to the third

death sentence arose from the rape of GH. She was a 23 year-old divorcee who lived with her four year-old child in a house which they shared with a woman friend of hers. Some time after midnight on 17 June 1985 she was woken by appellant. He had gained entry through the window of her child's bedroom. He was standing

next/
16. next to her bed with a knife in his hand. Later she also saw that he had an axe. He threatened to kill her if she "made a move". She began to tremble. He hit her in the face with a cupped hand. He demanded money and then took some from the pocket of her jacket where she indicated it could be found. He ordered her to un-dress. Apparently, in order to stifle the sound of her crying,he covered her face with a pillow. He then had intercourse with her whilst she lay on her back on the bed. At about this time she fainted.- He raped her a second time from the rear. Thereafter, whilst lying on her for what, according to her, "seemed like a year", he engaged her in conversation, asking her questions

about/

17. about what type of work she did. Before leaving and having taken her watch, which he found next to the bed, he ascertained that there was no telephone in the house. Obviously he wished to ensure that it could not be used to raise the alarm. He told her to remain lying on the bed until he had gone and that, if she did not do so, he

would kill her. He again hit her in the face about four times with his hand. Soon after he had gone, he returned

to retrieve the axe he had left behind. He repeated his threat to kill her if she did not remain where she was. She did this until she was sure he had finally left. In an hysterical condition, she then ran to the room of her friend. She now lives in another city. She could no ionger stay in the house. She feared that appellant would

return/

18.

return and attack her again. But even where she now

lives, she is "neurotic" about living alone. She does

not sleep well; she reacts "irrationally" (as she put it)

to noises. She was asked whether her experience had
affected her social life. She replied:

"Well first I could not relate to anyone, I broke my relationship with my boyfriend ... I could not stand he must come near me...

Are you able to trust men?

With difficulty."

A psychologist is treating her for depression. She
has lost her self-confidence.

Those then are the circumstances of the

crimes in respect whereof the learned judge a quo
exercised his discretion in favour of the imposition
of the death sentence. He did so because, so it was

found/
19. found, each was an "extreme case", ie it was sufficiently serióus to warrant the death sentence; indeed, it was the only appropriate sentence; appellant had shown no true remorse; there was no prospect of his reform; appellant was "a menace to women".
The submission of Mr Nowitz, on behalf of appellant, was that the trial judge had not properly exercised his discretion, that the death sentences should therefore be set aside and that (lengthy) periods of im-prisonment should be substituted. In broad terms it was founded on the contention, firstly, that thê learned judge had misdirected himself and, secondly, that, in any event, the death sentences were not the only

suitable/

20.

suitable sentences; imprisonment would have been an appropriate punishment; none of the offences in question constituted an extreme case; and the death sentences should therefore have been avoided. In support of the second proposition, certain dicta in S vs V 1972(3) S A 611(A) at 614 F - G and S vs K en 'n Ander 1972(2) S A 898(A) at 902 A were referred to. It is possible and convenient to deal with both argu-ments together. In summary, the following was said in support thereof:

(i) The crimes were not accompanied by excessive brutality or violence. Only minor physical injuries were inflicted. Nor should too much

be/

21. be made of the psychological scars which had resulted. The trial judge had been unduly influenced by the complainants' distraught con-dition when giving evidence. This was temporary. No permanent damage had resulted. Moreover, appellant had not displayed an entirely callous attitude in the treatment of his victims. He showed glimpses of compassion towards some of them. Thus, in the case of CD and EF, he acceded to their request to be allowed to go to the toilet. And, on being told that EF was a virgin, he ceased his sexual assault on her.

(ii)/

22.

(ii) For the most part appellant employed the same modus operandi in the execution of the crimes. Many of the features which the trial court had regarded as aggravating, also existed in those cases where the death penalty had not been imposed. This showed its imposition in the instances under consideration to have been unjustified. (iii) Insufficient consideration was given to the as-pect of appellant's rehabilitation. He had ex-pressed remorse for what he had done. He needed to be taught,and would in prison learn, the value of discipline and training. He had been denied these by his lack of education. He was thus not

able/ .

23.

able to control his sexual urges. He was a first offender. He was therefore a good can-didate to be reformed.

I am unable to agree with the argument. This court cannot interfere with the sentences of the trial judge unless, in imposing them, he improperly exercised his discretion. I do not think VERMOOTEN AJ did. I do not think he committed any misdirection of any consequence. The further question is whether the death sentence could in each case reasonably have been im-posed. That, rather than whether it was the only suitable sentence or an extreme case, is the test to be applied (S vs Pieters 1987(3) S A 717(A)). In my opinion, the question must be

answered/

24.

answered in the affirmative.

These were serious crimes. The follow-ing highlights this assessment. They were part of a series of crimes which were committed over a period of some ten months. It would seem that this was a factor that the trial judge took into account. In my view, he was entitled to (S vs Kok 1974(1) P H H2 AD; S vs S 1988(1) S A 120(A) at 123 E - H). But even
individually regarded, it cannot be said that the death sentence could not reasonably have been imposed. The offences took place in the privacy of the complainants' homes. Each one involved a degree of planning and pre-meditation. Appellant did not act on a sudden impulse.

In/

25.

In two out of the three cases, there was a breaking-in. A8 was throttled; she almost lost consciousness. When she asked appellant to desist,he laughed. In the struggle between her and appellant, she was injured by his knife. She was further humiliated by being asked to kiss him. GH's face was smothered with a pillow. She was also hit as has been described. She was raped twice. And it will be remembered that he threatened to kill her. He had a knife and an axe. He also threatened to kill CD and EF. They did not see that he was armed but it is clear that they, with justification, took his warning seriously. Each was raped a number of times in each others presence. The fright, fear and revulsion of

appellant's/

26.

appellant's victims must have been only too apparent to him. The effect of their ordeal was such that each felt it necessary to leave their home. And,over a year later, each was still suffering from certain residual psychological after-effects of what they had gone through. The trial judge did not, as was argued, misdirect himself in finding that CD "has received permanent psychological and emotional damage". Her evidence' was that "I will not be the same again as I was before".
It is true that many of these factors were not peculiar to the offences which carried the death sentence. A number of them featured in the other rapes as well. It does not,however follow that

there/

27.

there was an improper exercise by the trial judge of

his discretion. In my view,he was entitled to regard

(as he obviously did) the counts under consideration as

having more of these common characteristics,and therefore
as being more serious,than the others. He cannot, in
these circumstances, be faulted for confining the death
sentence to them.

As to the argument that insufficient re-

gard was had to appellant's possible rehabilitation, it
must be remembered,in the first place, that it is in-
correct to say that the death sentence can only properly
be imposed where the possibility of an accused being re-
habilitated by a period of imprisonment does not exist

(S vs/ ......

28. (S vs Tshomi en 'n Ander 1983(3) S A 662(A) at 667 A - D; S vs Mooi 1985(1) S A 625(A) at 631 A). In any event, there was no evidence relating to the likelihood of appellant's rehabilitation. The fact that he is, in effect,a first offender, does not per se suffice. Unlike the accused in S vs V (supra), appellant is no youngster. Moreover, I agree with the finding that he showed no real remorse. In his testimony in mitigation, he stated that he was "sorry about these incidents which I have participated in". However, he immediately added that "all these things happened to me without my intention. I did not intend to do such things. I did not intend to hurt anybody". He was cross-examined on this state-
ment as follows:

"What/

29.

"What do you mean that you did not

intend to do such things? The
reason is that as I have told the Court that I was a sick person and I could not find out what I was doing. I thought you said you were sorry that you committed these crimes, or sorry for these incidents which you partici-

pated in? Yes, that is so.

Are you now admitting that you did participate in these incidents as you
call them? Well, I do admit as
the Court has decided that I am the person who did these things. I cannot argue that point that I had never done such things. You yourself, do you admit that you
attacked these females? Yes,
according to the evidence that had been given here I do admit to that, but I was not aware of the fact that I was doing such things."

The allegation that he did not know what he was doing

was/

30.

was guite rightly rejected. In these circumstances, his statement that he was sorry is a hollow one.
To sum up, it was in the discretion of the trial judge whether to impose a lengthy period of imprisonment or the death sentence. After a careful review of all the circumstances he decided on the latter. He took into account the nature of the crimes, the personal circumstances of appellant and the interests of society. In my opinion, and for the reasons given, it cannot be said that he improperly exercised his discretion. He committed no material misdirection. And, though a long period of imprisonment may have been a suitable punishment, the death sentence was,in each

case/

31.

case, also one that could reasonably have been imposed.

It is, therefore, on the authority of S v Pieters (supra),
not possible to interfere with any of the death sen—
tences.

The following order is made:

(1) The appeal against the imposition of an effective sentence of 41 years' imprisonment in respect of counts 2, 7 - 11, 15 -18, 20 - 26, 29 - 33 and 35 - 45 succeeds. Such effective period of imprisonment is reduced to 25 years' imprison-ment by ordering that the sentences imposed on counts 10 - 11, 15 - 18, 20 - 21, 23 - 26, 29 - 33 and 35 - 45 run concurrently with the

sentences/

32.

sentences imposed on counts 2 (5 years' imprison-ment), 7 and 8 (10 years' imprisonment), 9 (5 years' imprisonment) and 22 (5 years' imprison-ment). (2) The appeal against the death sentences im-posed on counts 3, 27 and 28, and 34 is dismissed.

H H NE5TADT, JA

VAN HEERDEN, JA)
CONCUR KUMLEBEN, AJA )

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