IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between;
THE STATE
and
MELIKHAYA NGCOBO

SENTENCE

The accused has been convicted of the murder of Mrs Bisset. of the rape of Mrs Bisset, and of robbery with aggravating circumstances.

Yesterday we heard submissions on behalf of both the State and the defence in relation to an appropriate sentence to be imposed for each of these offences.

The accused has previously been convicted of three offences, namely the offence of abuse of a dependence-inducing drug.

Each of the offences for which the accused has been convicted in this court is mentioned in section 51 of the General Law Amendment Act 105 of 1997. In terms of section 51(1) of that Act, a High Court shall, if it has convicted a person of an offence of murder, inter alia, sentence that person to imprisonment for life. Section 51(1) is subject, however, to section 51(3), which reads as follows:

"If any Court referred to in subsection (1) or (2) is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in those subsections, it shall enter those circumstances on the record of the proceedings, and may thereupon impose such lesser sentence-Subject to a finding of substantial and compelling circumstances, it is not only murder which enjoins the Court to Court to impose a life sentence, but also rape, in certain circumstances.

Of relevance in these proceedings is the requirement in part 2 of the second schedule to the Act, which provides that a minimum sentence of life imprisonment, in the absence of substantial and compelling circumstances, is required when rape is committed, involving the infliction of grievous bodily harm.

In the case of murder, the life sentence is obligatory where, inter alia, 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. Firstly, rape; and secondly, robbery with aggravating circumstances. Section 51(5) provides that the operation of a sentence imposed in terms of the section shall not be suspended, as contemplated in section 297(4) of the Criminal Procedure Act 51 of 1977.   Clearly, the Criminal Law
Amendment Act of 1997 was a response by the legislature to the spate of violent crime which has swept the country. Parts 2 and 3 of the schedule to the Act provide for lesser minimum sentences for convictions of rape and murder in circumstances which do not fall within those mentioned in part 1. And so, section 51(2)(b), read with the third part of the second schedule, requires the imposition of a minimum sentence of 10 years for rape, in the case of a first offender, in the absence of substantial and compelling circumstances, and where the rape does not fall within the categories listed in part 1.

As regards the conviction of robbery, section 51(2)(a), read with part 2 of the schedule, requires the imposition of a minimum sentence of 15 years for a first offender convicted of robbery with aggravating circumstances, or where the taking of a motor vehicle is involved.

circumstances, accordingly, trigger the minimum sentence of life imprisonment, unless we conclude that substantial and compelling circumstances are present which entitle me to reduce the sentence, in my discretion.

Whether a similar minimum sentence of life imprisonment is required in respect of the accused's conviction of rape - again absent substantial and compelling circumstances - occasions more difficulty. The only category mentioned in part 1 of the second schedule which might trigger such a minimum sentence in the case of the conviction for rape, is if it involved the infliction of grievous bodily harm.

"Jy het dit goedgevind om in die donker ure van die nag by haar eie huis gewelddadiglik in te breek. Dit is vir my nou duidelik, in terugskou van al die feite, met een doel alleen, en dit was om haar te verkrag. Jy het dit nodig gevind om in die proses van verkragting soveel geweld op haar toe te pas, dat sy gesterf het. Jy is verantwoordelik vir die feit dat sy dood is. Hierdie verkragting val, in my oordeel, in die heel ernstige kader van verkragting. Jy het nie alleen by die vrou se eie huis in die donker gaan inbreek waar sy alleen was nie, maar jy het haar in haar eie slaapkamer gaan verkrag, en jy het nog haar dood ook veroorsaak deur die geweld wat jy op haar toegepas net."

In the course of its judgment, in which it set aside the Court a quo's sentence of the death penalty for the rape, the Appeal

"Tweedens blyk dit dat die verhoorregter die dood van die oorledene in aanmerking geneem het by die bepaling van 'n gepaste vonnis op die verkragtingaanklag. In die opsig het hy fouteer. Daar moet 'n duidelike verskil getref word tussen die doodsveroorsaking van die oorledene, wat 'n element van die strafbare manslag is, en die geweldpleging, wat 'n bestanddeel van die verkragting is. Die verhoorregter moes noodwendig die doodsveroorsaking van die oorledene in aanmerking neem by die bepaling van 'n gepaste straf ten opsigte van die strafbare manslagaanklag Hy was nie geregtig om dit ook in aanmerking te neem met betrekking tot die vonnis op die verkragtingaanklag nie. Op hierdie aanklag was alleenlik die aard en omvang van die geweldpleging tydens die verkragting 'n relevante oorweging. Dit is ongeoorloof om die doodsveroorsaking by straftoemeting twee keer in aanmerking te neem, omdat dit sou indruis teen die beginsel dat duplisering van vonnisse vermy moet word. Gevolglik moes die verhoorregter die oorledene se dood wegdink toe hy die appellant op die verkragtingaanklag gevonnis het, maar hy het klaarblyklik

It is against this background that I am required to interpret section 51 of the Criminal Law Amendment Act of 1997, read with part 1 of the second schedule to that Act. I have not, in the time available, been able to find any authority in point, and it seems to me that I am required to interpret the legislation in the light of the common law, and that, unless a clear contrary indication is evident, I must assume that the legislature did not intend to alter the common law in this respect. The fact that, by passing this legislation, the legislature clearly signalled an intention to require the Courts to stiffen the sentences for the types of crimes mentioned in the Act, does not, in my view, detract from this conclusion.

To revert then to the facts of the present case. If, of course, the act of the rape of Mrs Bisset itself involved the infliction of grievous bodily harm, quite apart from the violent assault on her which caused her death, then a minimum sentence of life imprisonment, prescribed by part 1 of the schedule, would be triggered   What I cannot do, is take into account the fact that
Mrs Bisset was killed, and assaulted in the course of that killing, in determining whether the minimum sentence for rape, in the present case, is also required.

"Some rapes are worse than others, and the life sentence ordained by the legislature should be reserved for cases devoid of substantial factors compelling the conclusion that such a sentence is inappropriate and unjust."

"As controversial a proposition as this is bound to be, as not all murders carry the same moral blameworthiness, so, too, not all rapes deserve equal punishment. That is, in no way, to diminish the horror of rape. It is, however, to say that there is a difference, even in the heart of darkness."

The evidence of Dr Liebenberg was to the effect that the injuries she observed in and around Mrs Bisset's genitalia, led her to conclude that the intercourse had been forced. This is, of course, the case with virtually all rapes. On the medical evidence presented, however, I am unable to conclude, isolating the rape from the other attacks, that the rape itself involved the infliction of grievous bodily harm in the sense that I have described above. For this reason, in my view, a minimum sentence of life imprisonment for the conviction of rape, in this case, is not compelled by the provisions of section 51, read with part 1 of the second schedule to the Act.

In considering whether there are substantial and compelling circumstances present, I have account all the factors mentioned by Mr Ramovha in support of his submission that I should find that such factors are present. These factors related exclusively to the accused's particular personal circumstances, and do not require enumeration.

The evidence which we heard during the course of the trial made clear that this was a callous and horrible murder, perpetrated on a defenceless old woman. The evidence given by Mrs Starke yesterday eloquently conveyed the terrible effect which acts like this have on the victim's immediate family. The murder of Mrs Bisset occurred in circumstances which I can only describe as unfeeling callousness, and the accused has shown no evident remorse.    In my view, the ultimate punishment for the murder of Mrs Bisset is amply justified, in the present circumstances. I can find no compelling or substantial circumstances which would warrant any lesser sentence.

As regards the rape charge, a minimum sentence of 10 years is prescribed by part 3 of the second schedule to the Act, in the absence of substantial and compelling circumstances. There are none. On the contrary, there are aggravating circumstances, chief amongst them being the fact that this rape was a gratuitous sexual attack on an elderly woman in the supposed sanctity of her own home.

As regards the robbery conviction, in the absence of substantial and compelling circumstances, a sentence of 15 years is also prescribed by part 2 of the second schedule to the Act. This is so, because, inter alia, it involved the taking of a motor vehicle, and the accused is, in relation to the robbery charge, a first offender. I can find no substantial or compelling circumstances which warrant the imposition of a lesser sentence.

In terms of section 280 of the Criminal Procedure Act. I make the following orders in relation to the sentences which I have imposed.
The sentence of 15 years on the rape conviction shall run concurrently with the life sentence on the conviction of murder. Ten years of the sentence of 15 years for the conviction of robbery, shall run concurrently with the life sentence imposed on the murder charge.

/...