S v Sithole (CC40/2019) [2020] ZAGPPHC 497 (2 September 2020)
- Citation
- [2020] ZAGPPHC 497
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- PJ Johnson
- Case number
- CC40/2019
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- PJ Johnson
- Case number
- CC40/2019
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the accused committed rape involving grievous bodily harm and robbery with aggravating circumstances, both falling under the mandatory minimum sentencing regime. The accused failed to prove substantial and compelling circumstances to justify deviation from the prescribed sentences. His alleged remorse was not genuine, as he did not take the witness stand or provide an explanation for his actions. The recovery of the robbed items was not due to any action by the accused. The accused's previous convictions and commission of the offences while on parole were aggravating factors. The court concluded that the prescribed sentences must be imposed to protect society and deter similar crimes.
Court disposition
The accused was sentenced to life imprisonment for rape and 20 years imprisonment for robbery with aggravating circumstances. No finding was made regarding fitness to possess a firearm, resulting in automatic disqualification.
Orders
- Count 3: Rape read with section 51(1) of the Criminal Law Amendment Act 32 of 2007: Life imprisonment.
- Count 4: Robbery read with section 51(2) of the Criminal Law Amendment Act 32 of 2007: 20 years imprisonment.
- In terms of section 103(1) of Act 60 of 2000, the accused is automatically unfit to possess a firearm.
02
Material facts
Parties
The State
ApplicantThemba Sithole
Defendant Counsel: Advocate Mtsweni03
Procedural history
Posture
Criminal Law Trial / Sentencing
04
Questions and positions
Legal issues
- 01
Whether the accused should receive the mandatory minimum sentence for rape involving grievous bodily harm.
- 02
Whether substantial and compelling circumstances exist to justify deviation from the prescribed minimum sentences for rape and robbery.
- 03
Whether the accused's plea and alleged remorse constitute mitigating factors.
- 04
Whether the accused is unfit to possess a firearm under section 103(1) of Act 60 of 2000.
Party arguments
- Applicant
- The prosecution argued that the offences committed by the accused are of a serious nature, falling under the mandatory minimum sentencing regime. The complainant suffered grievous bodily harm during the rape, and the robbery involved aggravating circumstances. The accused has previous convictions for violent crimes and committed these offences while on parole. The prosecution contended that there are no substantial and compelling circumstances to justify a lesser sentence and that the accused poses a danger to society.
- Respondent
- Advocate Mtsweni, for the accused, argued that the accused showed remorse and made admissions amounting to a guilty plea. He submitted that the recovery of the robbed items and the accused's consumption of alcohol should be considered as mitigating factors. He further argued that the accused's plea and request for forgiveness should be seen as substantial and compelling circumstances warranting deviation from the prescribed sentences.
05
Court’s reasoning
Legal principles
- 01
Criminal Law Amendment Act 105 of 1997, sections 51(1), 51(2), and 52(3)
A High Court must impose the mandatory minimum sentence for offences listed in Schedule 2 of the Criminal Law Amendment Act unless substantial and compelling circumstances exist to justify a lesser sentence.
- 02
S v Malgas 2001 (1) SACR 469 (SCA)
Courts must impose prescribed sentences for serious crimes unless substantial and compelling circumstances are proven by the accused on a balance of probabilities.
- 03
DPP North Gauteng v Thabete 2011 (2) SACR 567 (SCA) at 577g
Rape of women and children is a serious crime threatening the foundation of democracy and must be punished severely.
- 04
S v M 2007 (2) SACR 60
The mere acknowledgement of guilt or formal admissions, without genuine remorse, does not constitute a mitigating factor.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the accused committed rape involving grievous bodily harm and robbery with aggravating circumstances, both falling under the mandatory minimum sentencing regime. The accused failed to prove substantial and compelling circumstances to justify deviation from the prescribed sentences. His alleged remorse was not genuine, as he did not take the witness stand or provide an explanation for his actions. The recovery of the robbed items was not due to any action by the accused. The accused's previous convictions and commission of the offences while on parole were aggravating factors. The court concluded that the prescribed sentences must be imposed to protect society and deter similar crimes.
Obiter and limits
- Parolees who reoffend pose a significant problem in society, and the parole system requires urgent attention.
- The vulnerability of elderly victims and the emotional and physical harm caused by such crimes must be recognized in sentencing.
- The court must blend its sentence with a measure of mercy, but not at the expense of the interests of society.
Court disposition
The accused was sentenced to life imprisonment for rape and 20 years imprisonment for robbery with aggravating circumstances. No finding was made regarding fitness to possess a firearm, resulting in automatic disqualification.
- Count 3: Rape read with section 51(1) of the Criminal Law Amendment Act 32 of 2007: Life imprisonment.
- Count 4: Robbery read with section 51(2) of the Criminal Law Amendment Act 32 of 2007: 20 years imprisonment.
- In terms of section 103(1) of Act 60 of 2000, the accused is automatically unfit to possess a firearm.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES : NO
(3) REVISED: 2020/09/02
CASE NO: CC40/2019
DATE: 2020/03/23
In the matter between
THE STATE
and
THEMBA SITHOLE
Accused
S E N T E N C E
JOHNSON, J: According to the provisions of section 51 (1) of the Criminal Law Amendment Act 105/1997 (“The Act”), a High Court shall sentence a person who has been convicted of an offence referred to in Part I of schedule 2, to life imprisonment. Part I of Schedule 2 includes amongst others rape as contemplated in section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, involving the infliction of grievous bodily harm.
According to the provisions of section 52 (2) a High Court shall sentence a person who has been convicted of an offence referred to in Part II of schedule 2, to imprisonment of not less than 15 years imprisonment in the case of a first offender, and 20 years in the case of a second offender. Part II includes amongst others robbery where there are aggravating circumstances. These provisions are subject to subject to subsections (3) and (6).
When a Court is faced with such a situation it has no discretion but to impose the mandatory prescribed sentences unless in terms of Sub-section (3) substantial and compelling circumstances exist which justify the imposition of a lesser sentence. The onus to prove substantial and compelling circumstances lies with an accused person
and must be proved on a balance of probabilities. Sub-section (6) does not apply because you were not under the age of 16 years when you committed the offences.
In par 6 of your admissions Exhibit B, you admitted the contents of the Medico-Legal Examination, the J88, pertaining to the injuries that the complainant sustained after you had raped her. The doctor described multiple injuries which he concluded were caused by blunt assault, not excluding an attempted strangulation. It is clear that the rape involved the infliction of grievous bodily harm.
The infliction of grievous bodily harm is also an aggravating circumstance as far as the robbery charge is concerned.
To avoid being sentenced to life imprisonment for rape, and a minimum of 15 years imprisonment for robbery with aggravating circumstances, you have to prove that substantial and compelling circumstances exist which would warrant the court from deviating from those sentences.
Courts must be aware of the facts that the Legislature has prescribed certain sentences for certain serious crimes. These sentences must be imposed in the absence of substantial and compelling circumstances, so as to illicit a standardized and consistent response from the courts. See S v Malgas 2001 (1) SACR 469 SCA.
When considering a sentence, your personal circumstances, the interest of society and the offences are taken into account. Due weight must be given to each of these, without over- or under emphasizing any of them. The court must also ensure that it blends its sentence with a measure of mercy.
You are 40 years of age and not married. You have no dependants and reached grade 11 at school. Your mother is deceased and your father a pensioner. You are unemployed.
The two offences of which you have been found guilty of, is so serious in nature that the Legislator has prescribed certain minimum sentences in an attempt to curb the violence in the community. Unfortunately,
it has not had the desired effect because these violent crimes are on the increase. The complainant is regarded as part of the vulnerable groups in society. Violent persons like you have no respect for vulnerable groups and go about their crimes unperturbed by the interests of society. When you raped and robbed the complainant, you had no regard for her safety and wellbeing. You disregarded the fact that she is an elderly lady, 75 years of age in fact, nearly twice your age, and you seriously assaulted her to get your way.
She testified today, and it was noticeable that she is a small, frail, elderly lady. She testified that this incident changed her life. She was active in the community and rendered various services before this incident, but she had to stop it due to the attack.
This incident has caused her embarrassment and she is now avoiding contact with other people. As a result of the incident she got shingles which in itself was an embarrassment to her.
This incident has emotionally scarred her and it will take a long time to recover. The reckless way in which you disregarded her life is evident from the fact that you raped her without using a condom.
This caused her to frequently visit the hospital for blood tests.
The community is entitled to demand that those who perform these perverse acts be adequately punished, and a clear message must be sent to society, both by Parliament and Courts alike, that serious crimes will be punished severely. (See S v M 2007 (2) SACR 60)
In DPP North Gauteng v Thabete 2011 (2) SACR 567 (SCA) at 577g the Court stated as follows:
“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.”
More often than not victims die or are seriously injured by the indifference to their safety by criminals like you.
Robbery is also a serious crime which also cause victim serious injuries or loss of life. It is taken into account that the robbed items were recovered, but that was not as a result of anything from your side. It was recovered after you were involved in an accident with the vehicle that you robbed from the complainant. You caused her unnecessary damage to her property.
It is an aggravating factor, that you have not learnt from your previous brushes with the law. You have 3 similar previous convictions of which the last two have elements of violence. For the last two offences of housebreaking with the intent to rob and robbery, you were cumulatively sentenced to 15 years imprisonment on 28 January 2010. About halfway through the sentence on 19 June 2017, you were released on parole until 27 July 2024. About 14 months after you release and while still on parole, you struck again, and unfortunately the complainant fell prey to your evil deeds.
Parolees are becoming a huge problem in our society and the number of them
that fall back to committing crimes, is alarming. There is a problem in our parole system which has to be addressed sooner rather than later. Fortunately, the Minister of Justice and Correctional Services has taken the lead in addressing the problem.
Adv Mtsweni has argued that you have remorse. This court does not believe that you have. You never took the witness stand and took the court and the community into your confidence as to what motivated you to commit these crimes. One would expect of a remorseful person to take the Court and the community into his confidence and play open cards as to the reasons for his behaviour. You have not done so.
Although you made formal admissions which boiled down to a plea of guilty, and that you mentioned therein that you ask for forgiveness for what you had done, that in itself is not enough to indicate that you have real remorse to be taken into account as a mitigating factor. It seems that the evidence, which included DNA evidence, was so overwhelming that you had no other choice but to plead guilty. Mere acknowledgement of guilt is an empty gesture and cannot be regarded as true remorse.
Adv Mtsweni has also argued that the fact that you have pleaded guilty should be seen as a substantial and compelling circumstance. The fact is that you did not plea guilty. It was obvious that you made admissions when you heard the nature of the DNA evidence, which would obviously afford you no route of escape. He also argued that you consumed alcohol. It is quite clear that you only consumed alcohol after you had robbed it and after you raped the complainant. He also argued that the robbed items were recovered. I have already addressed this. Cumulatively there are no substantial and compelling
reasons which entitles me to deviate from the prescribed minimum sentences.
You are a danger to society and should be removed in the interest of the safety of all of us.
After consideration, I am of the view that the following sentences are appropriate:
Count 3: Rape read with section 51 (1) of the Criminal Law Amendment Act 32 of 2007: Life imprisonment;
Count 4: Robbery read with section 51 (2) of the Criminal Law Amendment Act 32 of 2007: 20 years imprisonment.
Advocate Mtsweni has not advanced any reasons why the Court should find that you are not unfit to possess a firearm; therefore, in terms of section 103(1) of Act 60 of 2000 the Court makes no finding. That means that you are now automatically unfit to possess a firearm.
……………………………………
PJ JOHNSON
ACTING
JUDGE OF THE HIGH COURT
DATE: 2020/09/02
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