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REPORTABLE

IN THE SOUTH GAUTENG HIGH COURT

(JOHANNESBURG)

CASE NO: A461/2011

DATE:24/04/2012

In the matter between

ERNEST CHICCO CHUIR....................................................................1^ST APPELLANT

JOAO MOIONE …..................................................................................2^NDAPPELLANT

and

THE STATE …........................................................................................ RESPONDENT

J U D G M E N T

___________________________________________________________________

MUDAU AJ:

[1] The appellants were convicted of kidnapping (count 1) as well as four counts of rape (counts 2 - 5), in contravention of the provisions of section 3, read with other relevant provisions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, in the Protea (Soweto) Regional Court. In terms of s 51 (1) of Act 105 of 1997, the appellants were each sentenced to 5 years’ imprisonment in respect of count 1 and to 25 years’ imprisonment in respect of counts 2 to 5. The sentences were ordered to be served concurrently. The effective sentence is therefore 25 years imprisonment. The appellants were also declared unfit to possess a firearm in terms of section 103 (1) of the Firearms Control Act 60 of 2000.

[2]The appellants now appeal against sentence with leave of the court aquo.

[3]The primary question for consideration by this court is whether the court below correctly assessed all the factors relevant for purposes of sentence.

[4] It is trite that the imposition of sentence is pre- eminently a discretionary matter for the trial court. An appeal court will only interfere with the sentence imposed by the trial court if the latter exercised its discretion in an inappropriate manner. In S v Barnard 2004 (1) SACR 191 (SCA) the court cautioned that:

'A Court sitting on appeal on sentence should always guard against eroding the trial court's discretion in this regard, and should interfere only where the discretion was not exercised judicially or properly. A misdirection that would justify interference by an appeal Court should not be trivial but should be of such a nature, degree or seriousness that it shows that the court did not exercise its discretion at all or exercised it improperly or unreasonably.'

Where there is no clear misdirection by the trial court to justify interference by an appeal court, the remaining question, as was held by the SCA in S v Whitehead 1970 (4) SA 424 (A) is:

'(W) whether there exists such a striking disparity between the sentences passed by the learned trial Judge and the sentences which this Court would have passed — or, to pose the enquiry in the phraseology employed in other cases, whether the sentences appealed against appear to this Court to be so startlingly or disturbingly inappropriate — as to warrant interference with the exercise of the learned Judge's discretion regarding sentence.' See further in this regard the following decisions: S v Obisi 2005 (2) SACR 350 (WLD); S v Dyantyi 2011 (1) SACR 540 (SG); S v Makena 2011 (2) SACR 294 (GNP); S v De Venter 2011 (1) SACR 238 (SCA); S v Malgas 2001 (1) SARC 469 SCA as well as S v Truyens 2012 (1) SACR 79 (SCA).

[5] It is necessary at the outset to briefly set out the material facts of the crimes that the appellants were convicted of.

[6] On the night of the 23^rd November 2008 and between 20:00 and 21:00, the complainant, a 40 years’ old married woman and a mother of 4 children, left a tavern for her home. Along the same street, she saw the two appellants who were seated at another tavern. She knew the second appellant by the name “Chiwawa” and as he once was a tenant at her place of residence. After walking past them, the next she felt was being grabbed by the two men from behind. They covered her mouth to prevent her from screaming. In the process, she was assaulted. They thereafter took her inside the 2^nd appellant’s shack. After undressing her, they each had sex with her two times. The sexual violation took hours. Each time the one had sex with her; the other one would grab and hold her arms. After they raped her, they both fell asleep as they were drunk. She could not find the key to open the door. It was only the next morning at about 5am that the second appellant opened the door which had always been locked, for her to go. She left to report the matter at the police station. She was later attended to by a medical doctor. According to the J88 report which was handed in as an exhibit, the complainant had “multiple physical injuries” noted on her face and jaw. There was however, no evidence of vaginal injuries.

[7] It is trite that the determination of an appropriate sentence requires that proper regard be heard to the well known triad of the crime, the seriousness of the crime, the offender as well as the interest of society. Equally important is the aspect of mercy which is a concomitant of justice. A sentence must be individualized and each case must be dealt with in its own peculiar facts (see State v Samuel 2011 (1) SACR 9 (SCA) par 9).

[8] In sentencing the appellants, the trial court took into consideration that the first appellant was 21 years old and a first offender. He had a standard 8 level of education .The first appellant is a father of a then two year old child. He worked as a panel beater earning R600-00 a week. At the time of sentencing the 1st appellant had spent a year in custody. The 2^nd appellant was 22 years old at the time and also a first offender. He too is a father of a minor child, then 3 years old. He too worked as a panel beater earning R1500-00 a week and had spent a year in custody before being sentenced. The trial magistrate was correct, in my view, in finding all these factors, to constitute “substantial and compelling circumstances” factors that justified the imposition of a lesser sentence than life terms of imprisonment that the appellants faced in terms of section 51 (1) of Act 105 of 1997. It is clear from the facts, albeit not in so many words that the learned magistrate must have found that the appellants had acted “in the execution or furtherance of a common purpose or conspiracy” as required by the relevant Part 1 of Schedule 2 to Act 105 of 1997 by virtue of his consideration of a life sentence for each of the appellants. Also, each of the appellants raped the victim whilst the other held her down.

[9] It has been submitted on behalf of the two appellants that they are” good candidates to be rehabilitated should a lesser sentence than that of 25 years imprisonment be imposed”. It was further contended that this is not “the worst kind of rape”. On the other hand, we were urged by counsel on behalf of the respondent not to interfere with the sentence as it is “neither severe nor inappropriate”.

[10]However, the seriousness of the offences and in particular the prevalence of rape perpetrated against women and children are a scourge in our country, which warrants a long term of imprisonment. Not only is rape a serious offence, its seriousness is exacerbated by its alarming incidence .This country is reported to have some of the highest incidences of rape in the world. Not only was the victim almost twice the appellants’ respective ages, but she was someone else’s wife. It must accordingly, be accepted that the complainant who had been assaulted to subdue her, kept against her will, must have been traumatised by her prolonged rape ordeal. In my view, the rape of a married woman and a mother cannot be categorised differently to the rape of a young virgin. In the case of a married woman, the rape may negatively affect her married life. The absence of genital injuries to a mother, who has delivered 4 children, cannot be used to describe the rape as less serious. It is therefore, apposite to quote the following passage from S v Chapman 1997 (2) SACR 1 (SCA) at 5a–e:

"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 this country 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, to other potential rapists and to the community: We are determined to protect the equality, dignity and freedom of all women, and we shall show no mercy to those who seek to invade those rights."

In my view, the sentence imposed by the trial regional court magistrate is not to severe or shockingly inappropriate. There is also no misdirection on the part of the court a quo which will entitle this appeal court to interfere with the sentence.

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

11.1. The appeal against sentence is dismissed.

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T P MUDAU

ACTING JUDGE OF THE HIGH COURT

I agree and it is so ordered.

CJJ CLASSEN

JUDGE OF THE HIGH COURT

COUNSEL FOR THE APPELLANT ADV (MS) M BOTHA

COUNSEL FOR THE RESPONDENT ADV AMWILLIAMS

DATE OF HEARING 24 APRIL 2012

DATE OF JUDGMENT 24 APRIL 2012

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