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[2017] ZAWCHC 123
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Wanga v S (A286/17) [2017] ZAWCHC 123 (3 November 2017)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: A286/17
In
the matter between:
SIPHO
WANGA
Appellant
and
THE
STATE
Respondent
Court:
Justice A Le Grange
et
Justice J Cloete
Heard:
3 November 2017
Delivered:
3 November 2017
JUDGMENT
CLOETE
J
:
[1]
The appellant was convicted in the Parow regional
court on one count of rape of an 8 year old girl and sentenced on
26 April
2016 to 20 years imprisonment. The trial court granted
him leave to appeal against both conviction and sentence. He persists
with
his appeal against sentence only.
[2]
The facts found proven were briefly as follows.
The complainant and her family were neighbours, although not friends,
of the appellant
and his family. On 27 February 2015 the
complainant was playing at the appellant’s home with his 7 year
old son. He
sent his son to a shop to buy bread and pulled the
complainant into his bedroom. He forced her onto his lap and after
her panties
and trousers were removed attempted to penetrate her
vagina with his penis. He was not successful and fetched cooking oil
from
the kitchen which he smothered on his penis and her private
parts, thereafter managing to penetrate her vaginally. He was caught
red handed by the complainant’s mother who came to fetch her.
[3]
The doctor who examined the complainant found
fresh abrasions in the vestibule area of the vagina which he
concluded was consistent
with penetration beyond the labia minora but
not beyond the hymen. There were no other physical injuries.
[4]
The appellant maintained his innocence throughout
and tried to portray the complainant as a liar. He showed no remorse
even after
his conviction and before he was sentenced.
[5]
Given that this was the rape of a child under the
age of 16 years, it attracted a minimum sentence of life imprisonment
in terms
of s 51(1) read with Part 1 of Schedule 2 of the
Criminal Law Amendment Act 105 of 1997 (‘
the
Act’
) unless the court found the
existence of substantial and compelling circumstances such as to
justify a deviation from the prescribed
minimum in terms of s 51(3)
thereof. The trial court essentially found that the only factor
justifying such a deviation was
that there was always a chance the
appellant could be rehabilitated while serving his sentence, and thus
imposed a lesser sentence
of 20 years imprisonment.
[6]
The magistrate reasoned that there are no degrees
of seriousness when it comes to rape; the lack of physical injury was
neutralised
by the severe long term emotional and psychological
impact on the complainant as was abundantly clear from the evidence,
including
the victim impact report handed in without objection by the
defence; the appellant showed no remorse; his personal circumstances,
although objectively favourable, were insignificant weighed against
the gravity of the offence; and members of society demanded
the
imposition of a harsh sentence. She also found that the fact that the
appellant is a first offender was largely irrelevant
given that the
Act itself stipulates a minimum sentence of life imprisonment for a
first offender for the rape of a child below
the age of 16 years.
[7]
Although the trial court also referred to the
proportionality requirement, which it is settled law continues to
apply even to offences
covered by the minimum sentence legislation,
the appellant effectively submits that she only paid it lip service
in that she: (a) gave
insufficient attention to his personal
circumstances and the fact that he is a first offender; (b) failed to
attach sufficient
weight to his prospects of rehabilitation; and (c)
overemphasised the interests of the community.
[8]
On the other hand the State submits that the
trial court was too charitable towards the appellant in finding that
his possibility
of rehabilitation while serving his sentence
constituted a substantial and compelling circumstance sufficient to
justify a deviation
from the prescribed minimum.
[9]
At the time of the offence the appellant was 44
years old and had not previously been convicted of any offence. He
was in stable
employment as a security guard earning R2200 per month.
He had been married for 12 years and has 3 children, all of
whom,
along with his unemployed wife, were dependent on him for
financial support. It also appears from the record that he consumed
alcohol
before committing the offence. He was on bail before his
conviction.
[10]
In
Malgas
[1]
it was made clear that although the legislature ordained that the
prescribed minimum sentences are to be regarded as ‘
ordinarily
appropriate’
in the absence of weighty justification to the contrary when crimes
of the kind specified are committed, an individualised response
to
sentencing a particular offender has not been dispensed with by the
Act. This approach was approved in
Dodo
[2]
where it was held that:
‘
The
test in Malgas must be employed in order to determine when section
51(3) can legitimately be invoked by a sentencing court to
pass a
lesser sentence than that prescribed by section 51(1) or (2). The
test of gross disproportionality, on the other hand, must
be applied
in order to determine whether a sentence mandated by law is
inconsistent with the offender’s section 12(1)(e)
right.’
[Referring
to s 12(1)(e) of the Constitution, i.e. the right not to be
treated or punished in a cruel, inhuman or degrading
way].
[11]
In
Vilakazi
[3]
the court, while emphasising the brutal and repulsive nature of the
crime of rape, went on to say:
‘…
The
Constitutional Court reminded us in
S
v Dodo
that punishment
must always be appropriate to the deserts of the particular offender
– no less but also no more – for
all human beings “ought
to be treated as ends in themselves, never merely as means to an
end”.’
[12]
At para [58] it was held that:
‘
[58]
The personal circumstances of the appellant
,
so far as they are disclosed in the evidence, have been set out
earlier. In cases of serious crime the personal circumstances
of the
offender, by themselves, will necessarily recede into the background.
Once it becomes clear that the crime is deserving
of a substantial
period of imprisonment the questions whether the accused is married
or single, whether he has two children or
three, whether or not he is
in employment, are in themselves largely immaterial to what that
period should be, and those seem to
me to be the kind of “flimsy”
grounds that
Malgas
said
should be avoided. But they are nonetheless relevant in another
respect. A material consideration is whether the accused can
be
expected to offend again. While that can never be confidently
predicted his or her circumstances might assist in making at least
some assessment. In this case the appellant had reached the age of 30
without any serious brushes with the law. His stable employment
and
apparently stable family circumstances are not indicative of an
inherently lawless character.’
[13]
In
SMM
[4]
it was stated that:
[17]
It is necessary to reiterate a few self-evident realities. First,
rape is undeniably a degrading, humiliating and brutal invasion
of a
person’s most intimate, private space. The very act itself,
even absent any accompanying violent assault inflected by
the
perpetrator, is a violent and traumatic infringement of a person’s
fundamental right to be free from all forms of violence
and not to be
treated in a cruel, inhumane or degrading way…
[18]
The second self-evident truth (albeit somewhat contentious) is that
there are categories of severity of rape. This observation
does not
in any way whatsoever detract from the very important remarks in the
preceding paragraph. This court held in
S
v Abrahams
that “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.” The advent of minimum
sentence
legislation has not changed the centrality of proportionality in
sentencing. In
Vilakazi
Nugent JA cautioned
against the danger of heaping “excessive punishment…on
the relatively few who are convicted in
retribution for the crimes of
those who escape or in the despairing hope that it will arrest the
scourge”. He also pointed
to the vast disparity between the
ordinary minimum sentence for rape (10 years’ imprisonment) and
the one statutorily prescribed
for rape of a girl under the age of 16
years (life imprisonment) and the startling incongruities which may
result…’
[14]
In
SMM
the
complainant was a 13 year old girl and the appellant was her uncle
who was sentenced to life imprisonment for her rape.
[15]
He had been requested by her mother to assist her
with an application for admission to a high school. The appellant was
alone when
the complainant arrived at his home. He asked her whether
she was sexually active. She replied that she was not. He then asked
her to show him her panties. She obliged and he forcefully inserted
two of his fingers into her vagina. At that point there were
voices
outside the house. He instructed her to sit on the bed while he went
to investigate. He returned moments later and instructed
her to
undress and also to lie down sideways on the bed. He then forcefully
inserted his penis into her vagina. When she started
crying, he
withdrew and told her to get dressed.
[16]
The medical examination revealed that there were
no abrasions but that some penetration may have occurred. Forensic
evidence showed
that the appellant’s semen was found on the
complainant’s panties.
[17]
At the time of sentencing in that case the
appellant was 47 years old, employed as a taxi driver and earning
R1000 per week. His
wife was also employed. They had four children,
all of them dependent on their parents for financial support. A
previous conviction
dated 1998 for assault with intent to do grievous
bodily harm was disregarded for purposes of sentence.
[18]
The appeal court reasoned that, given his
personal circumstances, it could be accepted that the appellant had
no propensity to commit
crime, which increased his chances of
rehabilitation. It found that this was not the most severe form of
rape and that the appellant
desisted when he realised that the child
was crying. There was also no evidence that the child suffered any
ongoing trauma, over
and above the trauma she would inevitably have
experienced as a result of what had happened. The medical report
showed that the
doctor did not find any serious physical injuries and
there was no violence in addition to the rape.
[19]
The appeal
court referred to
S
v Nkawu
[5]
where Plasket J was called upon to consider the provisions contained
in s 51(3)(aA)(ii) of the Act, namely that when a court
sentences for rape ‘
an
apparent lack of physical injury to the complainant’
shall not be regarded as a substantial and compelling circumstance.
The appeal court stated at para [26]:
‘
Plasket J expressed the
view, correctly as I see the matter, that a literal interpretation of
that provision would render it unconstitutional,
since it would
require judges to ignore factors relevant to sentence in crimes of
rape, which could lead to the imposition of unjust
sentences. I agree
with the learned judge that “to the extent that the provision
restricts the discretion to deviate from
a prescribed sentence in
order to ensure a proportional and just sentence it would infringe
the fair trial right of accused persons
against whom the provision
was applied”. He correctly in my view concluded that the proper
interpretation of the provision
does not preclude a court sentencing
for rape to take into consideration the fact that a rape victim has
not suffered serious or
permanent physical injuries, along with other
relevant factors, to arrive at a just and proportionate sentence. To
this one must
add that it is settled law that such factors need to be
considered cumulatively, and not individually.’
[20]
The appeal court considered the factors referred
to above to be mitigating and weighed them against its finding that
the appellant
abused his position of trust and showed no remorse by
denying in court that the incident had taken place. Instead of taking
responsibility
for what he had done, he sought to make the
complainant a liar and thus in effect victimised her again.
[21]
It concluded at para [28]:
‘
Having weighed the
mitigating factors against the aggravating ones, the imposition of
the statutorily prescribed minimum sentence
by the high court was in
my view grossly disproportionate to the offence. This court is
therefore obliged to set it aside and impose
a fresh sentence. The
offence is, nonetheless, deserving of severe punishment so as to
convey the gravity of the offence and society’s
justified
abhorrence thereof. I am of the view that a sentence of 15 years’
imprisonment would meet the objectives of sentencing
and would fit
the crime, the criminal and the needs of society…’
[22]
Having regard to these legal principles
contained in the decisions of our highest courts, by which we are of
course bound, I am
of the view that the magistrate’s reasoning
was flawed in certain respects. However, the question nonetheless
remains whether
or not the sentence of 20 years imprisonment should
be substituted with another sentence. Although the magistrate’s
reasoning
may have been flawed this does not necessarily mean that
she committed a material misdirection in the result, or that the
sentence
imposed is shocking, startling or disturbingly inappropriate
(per
Malgas
).
[23]
On the one hand the complainant was merely
8 years old and the rape was only stopped because her mother
interrupted the appellant.
There was a degree of violence involved to
subdue the complainant and all indications are that the appellant was
intent on raping
the complainant by fully penetrating her vaginally,
given that he fetched oil and used it to make penetration easier.
There was
also sufficient evidence placed before the trial court of
the severe emotional and psychological effect on the complainant. The
magistrate who had the benefit of observing her when she testified
was struck by how traumatised she still was.
[24]
On the other hand, the appellant’s personal
circumstances are indeed favourable and are not indicative of a
propensity to
commit serious crime or of an inherently lawless
character. It also seems that alcohol may have played a role and that
the offence
was committed somewhat opportunistically.
[25]
To my mind however, and taking into account all
relevant considerations, it cannot be said that the trial court erred
in the result.
The appellant, even if he serves the full 20 years,
will have a realistic prospect on his release at age 65 of returning
to become
a productive, law abiding member of society, and he will
not be sacrificed on the altar of deterrence. The sentence also
reinforces
that harsh penalties are called for in these matters. Rape
is a reprehensible crime which shows no sign of abating in this
country.
Its seriousness and the disregard displayed by perpetrators
for the constitutionally entrenched rights of their victims must, as
far as possible, be given full weight in every sentencing process.
[26]
I would thus propose the following order:
1.
The appeal against sentence is refused.
2.
The appellant’s conviction and
sentence are confirmed.
__________________
J
I CLOETE
LE
GRANGE J
:
I
agree and it is so ordered.
__________________
A
LE GRANGE
[1]
S v
Malgas
2001 (1) SACR 469
(SCA) at paras [22] – [25].
[2]
S v
Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC) at para
[40]
.
[3]
2009 (1) SACR 552
(SCA) at para [3].
[4]
2013 (2) SACR 292
(SCA).
[5]
2009 (2)
SACR 402
(ECG).