S v Matyityi

• Jurisdiction: South Africa
• Judge: Navsa JA, Ponnan JA and K Pillay AJA
• Judgment Date: 30 September 2010
• Citation: 2011 (1) SACR 40 (SCA)
• Docket Number: 695/09
• Hearing Date: 14 September 2010
• Counsel: GG Turner (DPP, Grahamstown and Bloemfontein) for the State (appellant).E Crouse for the respondent, instructed by the Legal Aid Board, King William's Town and Bloemfontein.
• Court: Supreme Court of Appeal

Ponnan JA (Navsa JA and K Pillay AJA concurring):

[1] At approximately 6 pm, on 16 April 2008, 45-year-old Anthony Cannon was seated alone in his motor vehicle enjoying a beer at Leaches Bay, East London, when he glimpsed, out of the corner of his eye, someone in close proximity to his vehicle. Before he could react his car window was smashed and he was struck in the face. He was robbed by B three assailants of his Nokia cellphone, cash to the tune of R500 and a bank card. A hood was placed over his head, and his Honda Ballade vehicle, with him in the back seat, was driven to a secluded spot, where his hands were bound and he was secured to a tree.

[2] To buy himself some time, he deliberately furnished his attackers C with a false automated teller machine (ATM) pin code. They set off in his Honda Ballade in search of an ATM. In their absence he managed to remove his hood by working his head against the tree, but was otherwise unable to free himself. His assailants returned, annoyed at not having been able to access his bank account with the pin number that had been D furnished. He was told that they had heard him scream, but that he was wasting his time because there was 'not a soul in sight who could assist him'. Realising that his ploy had failed, he divulged the correct pin code. Once again they left in his Honda Ballade. After they had left he eventually managed, not without a struggle, to free himself from the tree and with his hands still tied behind his back made good his escape. Being E familiar with the area he made his way on foot to the nearby home of his uncle where he sought assistance.

[3] Five days later, on 21 April 2008, Mr Cannon was informed that his Honda Ballade had been recovered by the police. Upon inspecting it he F noticed, aside from other damage that is not necessary to detail, that a JVC CD player had been removed. Later that very day the trio struck once again. This time the victims were Ms KD and her boyfriend Mr MF. Ms KD, a 31-year-old divorcee and mother of four children, had fetched her boyfriend Mr MF from his place of employment and at approximately 5 pm they made their way in her BMW motor vehicle to G the tidal pool in the vicinity of Leaches Beach, called Water World, in East London. She was initially apprehensive about their safety but being reassured by Mr MF, she parked the car in a secluded spot.

[4] After they had engaged in some intimacy Mr MF alighted from the H motor vehicle. When Ms KD, who was seated in the driver's seat, became concerned that he was taking too long to return to the vehicle, she glanced over her shoulder and observed what she described as two men wrestling with Mr MF. She reached for her car keys that were lying in the console of the motor vehicle but before she could insert the key into the ignition, a third person, whom she described as Rasta, smashed I the driver's window and the key was snatched out of her hand. When she looked back once again she saw Mr MF running, followed closely by two men. She observed Mr MF fall but being preoccupied with Rasta could not tell what caused him to do so. She was then ushered by Rasta onto the back seat of the motor vehicle and whilst doing so she saw Mr MF, with blood trickling down his face, fall to his knees and beg his attackers J

Ponnan JA

A not to harm her. On the back seat Rasta began to fondle her breasts and touch her inappropriately. When she tried to push him away, he told her to co-operate or he would kill her. Mr MF, who by then was bleeding quite profusely, had been forced into the boot of the motor vehicle. The rear exterior of the motor vehicle was then washed to remove any trace B of his blood and with Ms KD wedged between two of the three in the back seat, the vehicle was driven by the third for what seemed like 15 minutes to a more secluded area.Ponnan JA

[5] Once the vehicle had come to a halt the driver removed a set of JVC speakers from the rear of the vehicle and placed it in his backpack. C Thereafter each took Ms KD into the surrounding bushes where she was raped. After being raped in turn by each, the boot of the motor vehicle was opened and after a long struggle Mr MF, who was by that stage unconscious and soaked in blood from head to feet, was removed and placed on the back seat. The vehicle was then driven back in the D direction from whence they had come. After ascertaining if she was familiar with their whereabouts and receiving an affirmative response, the vehicle was stopped and the three men alighted. Ms KD then drove to the Frere Hospital, but by the time that she got there it was already much too late for Mr MF, who was pronounced dead on arrival.

E [6] On 23 April 2008, acting on information received, the investigating officer, Captain Alexander, visited an informal settlement in Fort Grey, East London, where the respondent, Vuyisile Matyityi, allegedly lived with his girlfriend. A search of the premises in his absence yielded the JVC speakers that had been removed from Ms KD's BMW and the JVC F CD player that was missing from Mr Cannon's Honda Ballade when it was recovered. During the early hours of the next morning the other two alleged perpetrators were arrested. A visit to the home of the respondent then followed. Upon gaining forcible entry to his home the police discovered that the respondent had fled. That evening, however, the G respondent handed himself over to the police.

[7] All three were indicted in the Eastern Cape High Court (East London) on one charge each of murder and rape and two charges of robbery. At the commencement of the trial the respondent, unlike his co-accused, expressed a willingness to tender a plea of guilty to all of the H charges, and after the trials were separated he was convicted as charged by Matiwana AJ on his guilty plea. He was sentenced to 25 years' imprisonment on each of the murder and rape charges. And in respect of each of the robbery counts to 13 years' imprisonment. The sentences were ordered to run concurrently. He was thus sentenced to an effective I term of 25 years' imprisonment.

[8] Aggrieved by the sentences imposed in respect of the murder and rape, that were regarded as being too lenient, the appellant, the Director of Public Prosecutions (Eastern Cape), appealed in terms of s 316B of the Criminal Procedure Act 51 of 1977, with the leave of the court J below. The sentence imposed in respect of the robbery is not before us.

Ponnan JA

But it matters not, for, were the appeal to succeed, the sentence imposed A in respect of it will naturally be subsumed by that imposed in respect of the murder and rape.

[9] The nature of the offences brought the matter within the purview of s 51 of the Criminal Law Amendment Act 105 of 1997 which prescribes B minimum sentences, namely life imprisonment for each of the murder and rape convictions, unless substantial and compelling circumstances were found to be present. Matiwana AJ identified the issue thus:

'The question, therefore, that I am faced with, is whether there are any compelling circumstances in this case, which, if present, would justify a C departure from the prescribed sentences laid down by the legislature.'

Accepting that by the epithet 'compelling' he meant 'substantial and compelling', that is a correct identification of the issue. He answered that question as follows:

'As I have stated, in my mind, the court should not impose the D prescribed minimum sentence in [this] case, in view of the accused's age, and in the light of the remorse displayed by him during the trial here.'

On a thorough reading of the record I could find no other factors that E could be relied on as constituting substantial and compelling circumstances within the meaning of that expression. Nor was counsel able to suggest any in argument before us.

[10] Aside from whether the trial judge was justified in his conclusion that a departure from the prescribed minimum sentences was warranted F in this case, there appear to be at least two other respects in which he appears to have misdirected himself. First, although the respondent had a previous conviction, it was not taken into consideration against him on the basis that it 'is not much related to the offences of which he has been found guilty'. Why that was thought so is not entirely clear to me. The G SAP 69 shows him to have been convicted during 2005 of being in possession of an unlicensed firearm in contravention of the Arms and Ammunitions Act. [1] He was sentenced to a fine of R1500 or 12 months' imprisonment. He evidently appears to have spurned the mercy shown him by the court then. Second, the trial judge appears to have accepted that Ms KD sustained no injuries. To the extent that he may have been H referring to permanent physical injuries, one can hardly quarrel with that conclusion. But, with respect, to restrict the enquiry to permanent physical injuries, as the learned judge appears to have done, is to fundamentally misconstrue the act of rape itself and its profound psychological, emotional and symbolic significance for the victim. As it was put by this court in S v De Beer: [2] I

Ponnan JA

A 'Rape is a topic that abounds with myths and misconceptions. [3] It is a serious social problem about which, fortunately, we are at last becoming concerned. The increasing attention given to it has raised our national consciousness about what is always and foremost an aggressive act. It is a violation that is invasive and dehumanising. The consequences for the rape victim are severe and permanent. For many rape B victims the process of investigation and prosecution is almost as traumatic as the rape itself.'

[11] I turn now to the central issue in the appeal, namely whether, given the facts of this case, the trial court was correct in its...