IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE LOCAL DIVISION, BHISHO) Case no: 42/2010 Date heard: 7 November 2014 Date delivered: 18 November 2014

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1 1 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE LOCAL DIVISION, BHISHO) In the matter between NOT REPORTABLE Case no: 42/2010 Date heard: 7 November 2014 Date delivered: 18 November 2014 LUKHANYO MGANGALA Appellant vs THE STATE Respondent JUDGMENT PICKERING J: The appellant was charged, as accused no 2, in the High Court, Bhisho, before Hartle J, together with one Luvo Kasile, as accused no 1, with housebreaking with intent to rob and robbery with aggravating circumstances (count 1), and rape (count 2). They were both acquitted on count 1 but convicted as charged on count 2. The learned Judge concluded her judgment on the merits as follows: The accused are found not guilty on count 1, but guilty on count 2 being the repeat rape of the complainant under circumstances where they acted in concert and in furtherance of a common purpose as contemplated by subsections (a)(i) and (ii) under the rape category referred to in Part 1 to Schedule 2 of the Criminal Law Amendment Act no 105 of 1997.

2 2 Hartle J thereafter sentenced both appellant and his co-accused to life imprisonment but granted leave to each of them to appeal against their sentences to the Full Bench. The application for leave to appeal by both appellant and his co-accused were heard together by Hartle J and leave was granted to both of them on 29 April For some reason, however, the appeal of the present appellant s coaccused was heard as far back as November 2013 by a Full Bench comprised of Tshiki J, Smith J and Lindoor AJ. Although there was some confusion as to when the judgment of the Full Bench was delivered (with, unfortunately, no date of delivery appearing thereon and the file apparently having gone missing) it is now common cause that it was delivered some time during January We have not been informed as to why the present appellant s appeal was not heard together with that of his co-accused and why there should have been such an inordinate delay in prosecuting his appeal. It is, in my view, generally undesirable that appeals of co-accused arising out of the same set of facts should be heard separately by two different courts of appeal and every effort should be made by the practitioners involved to ensure that such appeals are set down and heard together. Be that as it may, the appeal of the erstwhile accused no 1 was dismissed by the Full Bench in a judgment by Lindoor AJ, concurred in by Tshiki and Smith JJ, in which the facts relating to the matter are fully set out. The pertinent facts were summarised by Lindoor AJ as follows: [3] The facts are briefly as follows. The Complainant, at the time a [ ] year old scholar, on a Friday evening at about 23h00, was alone at the house which she shares with her [ ] year old brother. She was studying and her brother was at work at the time. The windows and doors had been secured. [4] A noise from outside caused her to investigate. Upon opening the door it was pushed further inwards by an intruder (the appellant s co-accused) who hit her and dragged her by her clothes in the direction

3 3 of the court-yard. He also strangled her. She surmised that this was in order to keep her quiet. [5] Before being taken around a corner and out of sight, she observed two other male intruders (one being the Appellant), who had gone into the house. The first intruder ordered her to take off her panties, but he was beckoned by one of the men who had gone into the house. He dragged her back into the house. [6] Inside the house another of the three ordered her to lie on top of the coffee table in the lounge whereafter she was raped by all of them. She was later ordered to move to her brother s room where she was once again raped by the three, again taking turns. One of her assailants used a condom during the rape in the bedroom. In paragraph 13 of his judgment Lindoor AJ stated as follows: The applicable principles to the enquiry into the existence of substantial and compelling circumstances as envisaged in Section 51(3) of the Act have been set out in a number of decisions of the Supreme Court of Appeal. The most notable of these decisions are: S v Malgas (supra) [2001(1) SACR 469 (SCA)]; S v Fatyi 2001 (1) SACR 485 (SCA); S v Vilakazi 2009 (1) SACR 552 (SCA) and S v Matyiyi 2011 (1) SACR 40 (SCA). With the principles expounded in these judgments in mind I turn to consider the personal circumstances of the present appellant. His circumstances were comprehensively detailed by Hartle J. judgment she stated, inter alia, as follows: In her Concerning accused no 2, Mr. Mgangala, you are similarly a first offender, (although serving a sentence for an undisclosed offence), and

4 4 presently [..] years of age. You were brought up by your mother (who is now deceased) and your maternal grandmother. Your mother cohabited with a man who took care of your needs. Although he is said to have abused alcohol, your sister confirms that he never abused you in any way and you regarded him as your father for all intent and purposes. You have also enjoyed the benefit of the support of your biological father s family, living with them for a period and even assuming their surname. You dropped out of school whilst doing Grade 7 to take up employment with Wine & Dine in Mdantsane. You resided with your family in a three roomed brick house described by the social worker Ms. Dhlodhlo in her report as being adequately furnished and neat. She too reports that crime is rampant where your family lives and that most people are illiterate and unemployed. She complains that there are no recreation facilities for the youth to engage their time in. No-one at your home is employed (I assume presently). Before your incarceration it appears that you assisted the family financially whenever you could. You too come from a family of churchgoers who similarly involve themselves in cultural rituals and attend such activities in the community. Your sister described you as a quiet and disciplined person who helped to discipline the younger siblings at home. If not at home then you were at your paternal family home, whereas you claim, on the other hand, to have been spending time with your friends consuming alcohol. In your case too this is seemingly a negative factor which has cost you your freedom. you have the insight to have recognised that those you consorted with in the tavern were not your true friends but merely acquaintances. You claim to be a bit of a loner and shy, which fits your sister s description of you as being secretive. You have no children of your own. In your instance too you have verbalised remorse and regret for your actions in committing this crime. You stated your desire to seek

5 5 forgiveness from Ms. Nyosi and her family. You have offered some plausible reason for your involvement in the crime, namely that you felt aroused whilst watching your co-accused rape Ms. Nyosi. Having regard to the personal circumstances of the appellant as well as the facts of this matter I am entirely unpersuaded that Hartle J erred in finding that no substantial and compelling circumstances existed such as would justify the imposition of a lesser sentence than life imprisonment. The courts have time and again expressed their abhorrence at the offence of rape. It has been justly described as the most invasive and dehumanising violation of human rights. In S v Matyityi 2011(1) SACR 40 SCA Ponnan JA reiterated at 51g h what has so often been said: As this court has previously sought to make clear, women in this country 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 (S v Chapman 1997 (2) SACR 3 (SCA) What is particularly aggravating in this case, in my view, is that the complainant was alone at home when she was confronted by the appellant and his co-accused and raped. In S v Mqikela 2010 (2) SACR 589 (E) Jones J with whom Nepgen and Plasket JJ concurred, stated as follows at 594 e h: [T]he rape was committed after the perpetrators had invaded the sanctity of the victim s home, the one place in a troubled world where everyone is entitled to feel safe and secure. In a recent judgment of the full court of the Eastern Cape High Court, Grahamstown, S v Sobhanga (case no CC210/2007 delivered on 28 November 2007), Kroon J (Jones and Jansen JJ concurring) referred (in para 11) with approval to the following quote from the judgment of Pickering J in the court below:

6 6 What makes [the accused s] actions all the more reprehensible is that complainant was supposedly safe in the sanctity of her home with the door locked and the windows closed when the accused broke in, well knowing that she was alone. Everybody, especially women and children, are entitled to feel secure at home and should not have to barricade themselves in, in case some thug should attack them. Would-be criminals should be aware that if they break into someone s home and proceed to commit rape they will feel the full might of the law. In my view, this type of case, where a person breaks into a house well knowing that a young girl is alone at home and proceeds to rape her does fall within the worst category of rape. When the facts of this case are weighed against the appellant s personal circumstances there is, in my view, no warrant for the imposition of a sentence other than the statutory minimum. Any lesser sentence would be inadequate and disproportionate to the gravity of the offence. Accordingly the appellant s appeal against sentence is dismissed. J.D. PICKERING JUDGE OF THE HIGH COURT I agree, N. BESHE JUDGE OF THE HIGH COURT I agree,

7 7 I. STRETCH JUDGE OF THE HIGH COURT Appearing on behalf of appellant: Mr Mpokela Instructed by: Legal Aid SA, King William s Town Appearing on behalf of Respondent: Mr Willemse Instructed by: The Director of Public Prosecutions