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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: SS81/2016

DPP REF. NO: 10/2/11/1-211/2015

Not reportable

Not of interest to other judges

8 September 2017

In the matter between:

THE STATE

and

KHUMALO, MIKE                                                                                                ACCUSED

(ALSO KNOWN AS CHAUKE, MICHAEL)

 

JUDGMENT ON SENTENCE

 

MUDAU J

[1] The accused has been convicted on multiple charges for crimes ranging from murder; aggravated robbery, rape, attempted rape, and kidnapping, a total of 24 counts, all arising from several incidents after a lengthy trial. Consequently, sentencing has to be meted out. When dealing with the question of sentence this court is enjoined to consider the triad as espoused in S v Zinn[1],  that is, the personal circumstances of the accused, the seriousness of the offences as well as the interests of society.  These principles applicable in determining a fair, balanced and appropriate sentence have long been laid down.

[2] The court is also obliged to consider the application of the minimum sentencing provisions as required by ss 51(1) and 51 (2) of the Criminal Law Amendment Act 105 of 1997 (‘the CLAA’), as amended. The accused was before pleading advised that in the event of a conviction, the State intended to invoke the provisions of s 51 of the CLAA which prescribes minimum sentences for certain specified offences.

[3] The relevant part in relation to s 51 of the CLAA provides:

(1) Notwithstanding any other law, but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person it has convicted of an offence referred to in Part 1 of Schedule 2 to imprisonment for life.

(2) Notwithstanding any other law but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person who has been convicted of an offence referred to in:-

(a) Part II of Schedule 2 in the case of:-

(i) a first offender, to imprisonment for a period not less than 15 years...”

The relevant provision of Part 1 of Schedule 2 of the CLAA provides as follows:

“Murder, when:-

(c) the death of the victim was caused by the accused in committing or attempting to commit or after having committed or attempted to commit one of the following offences:-

(i) Rape or compelled rape as contemplated in Section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively…

Rape as contemplated in s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007:-

(a) when committed:-

(i) in circumstances where the victim was raped more than once whether by the accused or by any co-perpetrator or accomplice…

(c) involving the infliction of grievous bodily harm.

In instances of robbery Part II of Schedule 2 of the CLAA provides:

Robbery:-

(a) when there are aggravating circumstances…”

[4] In determining an appropriate sentence regard must also be had to inter alia the main purposes of punishment. These purposes were described in R v Swanepoel[2] as deterrent, preventative, reformative and retributive. In S v Rabie[3] reference was made to Gordon, Criminal Law of Scotland, (1967) at 50 where it was stated that

"The retributive theory finds the justification for punishment in a past act, a wrong which requires punishment or expiation... The other theories, reformative, preventive and deterrent, all find their justification in the future, in the good that will be produced as a result of the punishment".

[5] Schreiner JA observed in R v Karg[4] that:

‘While the deterrent effect of punishment has remained as important as ever, it is, I think, correct to say that the retributive aspect has tended to yield ground to the aspects of prevention and correction. That is no doubt a good thing. But the element of retribution, historically important, is by no means absent from the modern approach. It is not wrong that the natural indignation of interested persons and of the community at large should receive some recognition in the sentences that courts impose, and it is not irrelevant to bear in mind that if sentences for serious crimes are too lenient, the administration of justice may fall into disrepute and injured persons may incline to take the law into their own hands. Naturally righteous anger should not becloud judgment.’

[6] It is appropriate to deal with the accused’s personal circumstances at this stage. He was born on 1 September 1974, which makes him 43 years of age. He must have been 41 when most of the incidents of crime were committed.  He is an unmarried father of 2 children; a son aged 20 and a daughter aged 16 years. The accused initially stated his age as 39 years, but in the absence of an identity document or travelling documents, this could not be confirmed. The children are in the care and custody of the accused’s parents in his native country, Mozambique. The accused has two adult siblings, his younger brothers. He is a grade 4 drop-out. He arrived in this country as an economic migrant in 1992 when he learnt carpentry as a skill from his then employer. In 2009 he was employed by Pick’n Pay supermarket as a stock packer, a position he held for one and half year.

[7] At the time of his arrest on 7 June 2015 the accused had no formal employment. He has been in custody ever since, which is a period of approximately two years and two months. He admitted to a record of previous convictions. On 2 March 2004 the accused appeared before the Johannesburg Regional Court under the name Alfred Chauke, for possession of stolen property. After being convicted he was sentenced to six years’ direct imprisonment but released on parole on 1 July 2008. On 13 July 2013 he was convicted by the Randburg Magistrates’ Court under the name George Khumalo, on a charge of robbery for which he received three years’ direct imprisonment. In this court, he introduced himself by various names i.e. Mike Khumalo, Michael Chauke as well Mike Alfred (or Alfredo) Khumalo. His real identity has never been established.

[8] As to the crimes committed, the accused's legal representative accepted that all are serious offences and that it is a scourge that must be eradicated. The offences of which he was convicted are particularly serious given their planned and callous nature. In the words of the defence counsel whilst addressing this court in mitigation, the conduct by the accused was ‘predatory in nature’.  His modus operandi after a social interaction involved kidnapping, verbally and physically threatening the victims, and using or threatening the use of weapons before he attempted or sexually abused all his victims.

[9] The evidence established that except for the complainant in counts 1-3 who was accosted on her way home late at night, women, and mostly foreigners, were targeted and promised work as in-house domestic workers. Without exception they were all phoned by the accused who claimed to be a gardener sent by his employer to meet with them and take them to the employer. They were all taken to the bush around the Northgate area where the accused lived. The accused was in possession of mostly, a knife. They were threatened and robbed of their money, phones and other valuables, and once the complainants (all women), had been subdued; they were raped or almost raped. One of the accused’s victims also paid with her life. The accused thus established a pattern of behavior that was used to predict his activities and aided in his arrest and eventual conviction.

[10] To add insult to injury, the complainant in counts 1-3, Ms V Q, not only sustained a laceration on her hand as she tried to fight off the accused, but was raped whilst in her menstrual period. This was a humiliating experience as she confirmed in her testimony. Her rape makes the accused eligible for a life sentence as envisaged in s 51 (1) of the CLAA.

[11] The deceased in counts 4-6 was not only kidnapped and raped, but lost her life heartlessly, in the hands of the accused after being stabbed on her chest with a butcher’s knife. The accused clearly lacked empathy and emotions.  The irony is that like the majority of the victims, the deceased was an economic migrant in search of a better life as was the accused. With her body found in the veld only the following day, hers must have been a terrifying and lonely experience, by a complete stranger. She left behind a fifteen years old son, now in the care and custody of her elderly mother in Lesotho. The deceased is survived not only by her elderly mother, but an older sister as well. The murder of the deceased following her rape, also make the accused eligible for a life term of imprisonment as envisaged in s 51 (1) of the CLAA.

[12] The rape of Ms PNB (counts 7-9), by the accused with his fingers and later with a stick “to rid her of her HIV status” as the accused would have it, did not only cause her vaginal injuries, but evidently caused her emotional torment as she cried when she relived the cruelty meted out to her.  Another victim, Ms B N (counts 20-23), had to return to Zimbabwe as she does not want to live and seek employment in South Africa anymore. In her case she was raped more than once, which makes the accused eligible for a life sentence as envisaged in s 51 (1) of the CLAA in both these instances.

[13] The multiple external injuries suffered by Ms E N, a married woman with children, were severe. Her clothes were bloodied and served as a grim reminder of the accused’s callous behaviour.  The vaginal injuries she sustained in the course of the rape were not only severe but indicative of the physical pain she endured.  Like all the accused’s victims, she stressed in her testimony that her emotional trauma was not over, but worsened when she had to relive the incident and when she saw the accused. She has contemplated ending her life since that incident. Again, adding insult to injury, she was called a witch by the accused as he believes all Zimbabweans are, in sexual matters especially, a notoriously grave insult to ordinary Africans. Her rape qualifies the accused for a life term of imprisonment as envisaged in s 51 (1) of the CLAA.

[14] In none of the rape incidents did the accused use a condom, thus exposing the victims not only to severe mental distress, but to possible sexually related illnesses. The offence of rape is considered by our courts as one of the most serious crimes that should attract severe punishment. In S v Chapman[5]  the court remarked:

‘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 civilization.’

[15] In recent times, in DPP, North Gauteng v Thabethe[6] 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. Our courts have an obligation in imposing sentences for such a crime - particularly where it involves young, innocent, defenceless and vulnerable girls - of the kind of sentences which reflect the natural outrage and revulsion felt by the law- abiding members of society. A failure to do so would regrettably have the effect of eroding the public confidence in the criminal justice system.’

[16] As for statutory mandatory minimum sentences, Ponnan JA, in S v Matyityi[7] stated:

‘Despite certain limited successes there has been no real let-up in the crime pandemic that engulfs our country. The situation continues to be alarming. It follows that, to borrow from Malgas, it still is 'no longer business as usual'. And yet one notices all too frequently a willingness on the part of sentencing courts to deviate from the minimum sentences prescribed by the legislature for the flimsiest of reasons - reasons, as here, that do not survive scrutiny. As Malgas makes plain courts have a duty, despite any personal doubts about the efficacy of the policy or personal aversion to it, to implement those sentences. Our courts derive their power from the Constitution and like other arms of state, owe their fealty to it. Our constitutional order can hardly survive if courts fail to properly patrol the boundaries of their own power by showing due deference to the legitimate domains of power of the other arms of state. Here parliament has spoken. It has ordained minimum sentences for certain specified offences. Courts are obliged to impose those sentences unless there are truly convincing reasons for departing from them. Courts are not free to subvert the will of the legislature by resort to vague, ill-defined concepts such as 'relative youthfulness' or other equally vague and ill-founded hypotheses that appear to fit the particular sentencing officer's personal notion of fairness. Predictable outcomes, not outcomes based on the whim of an individual judicial officer, is foundational to the rule of law which lies at the heart of our constitutional order.’

[17] In the instant case the accused displayed no remorse in the face of the overwhelming evidence against him. His lack of empathy and emotions was evident when he testified. He maintained his innocence even after his conviction for the various grave crimes in instances where he was not only implicated by the various victims, but also by DNA evidence. The accused boasted about his crimes of rape and murder to some of his victims who had survived, which makes him a great danger to society. By his conduct, the accused is a serial rapist. All indications are that he is illegally in the Republic of South Africa, thus making his crimes more aggravating. One would have expected him to maintain peace and to respect the laws of the country which gave him economic sanctuary.

[18] The personal circumstances of the accused pale into inconsequentiality when the offences committed by him are considered. Besides, this was not his first brush with the law. That being the position, viewed cumulatively, the mitigating facts and the personal circumstances of the accused does not justify a departure from the prescribed minimum sentences. Neither could I find any substantial and compelling circumstances to exist. None were advanced by the defense lawyer and not for lack of trying considering at all the objective facts. As Nugent JA observed in S v Vilakazi[8]:

‘In cases of serious crime the personal circumstances of the offender, by themselves, will necessarily recede into the background.’

[19] I have considered all the evidence carefully and have concluded that regard being had to all the foregoing the following sentences are justified:

19.1 Counts – 1; 4; 7; 10; 12; 15; 20 and 24 (Kidnapping): Five (5) years’ imprisonment in respect of each count.

19.2 Count – 2 (Rape):  life imprisonment.

19.3 Count -5 (Rape):  life imprisonment.

19.4 Count – 8 (Rape):  life imprisonment.

19.5 Count – 14 (Rape): life imprisonment.

19.6 Count – 17 (Rape): ten (10) years’ imprisonment.

19.7 Counts - 22 and 23 (Rape):  life imprisonment.

19.8 Counts – 3; 9; 11; 13; 16; 21 and 26 (Robbery with aggravating circumstances): fifteen (15) years’  imprisonment in respect of each count.

19.9 Count: – 25 (Attempted Rape): five (5) years’ imprisonment.

19.10 Count: – 6 (Murder):  life imprisonment.

It is recommended that in the event the accused is considered for parole, that he be deported to his native country, Mozambique.

________________

MUDAU T P

[Judge of the High Court,

Gauteng Local Division,

Johannesburg]

Hearing Date on Sentence: 4 September2017

Judgment Date on Sentence: 8 September 2017

APPEARANCES

For the State: Adv. N.P. Serepo

Instructed by: Office of the Director of Public Prosecutions Johannesburg

For the Accused: Adv. C. Pleho

Instructed by: Legal-Aid South Africa

 

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