Zamla v S (A207/2016) [2018] ZAWCHC 130 (25 September 2018)

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[2018] ZAWCHC 130
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Zamla v S (A207/2016) [2018] ZAWCHC 130 (25 September 2018)

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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
no. A 207/2016
Before: The Hon. Mr Justice Binns-Ward
The Hon. Mr Justice Nuku
The
Hon. Mr Justice Papier
First hearing: 9 February 2018
Rehearing (s 14(3) A/10 of 2013): 8 August 2018
Judgment:
25 September 2018
In
the matter between:
MONELEZI
ZAMLA
Appellant
and
THE
STATE
Respondent
Order: The appeal against conviction and
sentence
is dismissed
.
JUDGMENT
BINNS-WARD
J (dissenting):
[1]
This appeal was heard initially by my
Brother, Nuku J and me on 9 February 2018.  After the
two of us had exchanged
draft judgments, it became apparent that we
were unable to agree on the outcome of the appeal concerning
sentence.  The appeal
was thereafter reheard on 8 August
2018 before a supplemented bench, as provided for in terms of
s 14(3)
of the
Superior Courts Act 10 of 2013
.  The third judge,
Papier J, has subscribed to the judgment prepared by Nuku J
dismissing the appeal; whilst, for the
reasons set forth below, I
remain of the view that the appellant’s appeal against sentence
should have been upheld.
[2]
I gratefully adopt Nuku J’s
description of the facts of the matter.  I concur in my
colleagues’ conclusion
that the appeal against conviction
should be dismissed.
[3]
I also endorse the observations made in
Nuku J’s judgment that the magistrate intervened
inappropriately during the leading
of the evidence of the witnesses,
both in chief and during cross-examination.  Whilst no point was
made of this in the grounds
of appeal or the heads of argument, when
the appeal was argued before Nuku J and me, counsel for both the
state and the appellant
acknowledged the disquieting extent of the
trial magistrate’s interventions when we raised the matter
ourselves at the first
hearing.
[4]
In my view, it was especially disturbing
that the magistrate appeared during the trial to question the
propriety of the appellant’s
previous conviction for the
statutory rape of the complainant.  Leaving aside the question
of the admissibility prior to his
conviction of the evidence
concerning the previous conviction, the ineluctable implication in
the remarks made by the magistrate
in this regard was that there had
been a miscarriage of justice, and that the appellant should instead
have been previously convicted
on the basis of non-consensual sexual
relations with the complainant.  The magistrate in her sentence
judgment then found,
without hearing the prosecutor in the previous
case or having insight into the police docket in that matter, that
the previous
conviction had been the product of the neglect by ‘
an
indolent prosecutor
’ and that the
sentence that had been imposed was ‘
totally
and utterly inappropriate
’.
[1]
[5]
In point of fact, although its significance
appears to have been overlooked by both the magistrate and the
appellant’s legal-aid
appointed attorney at the trial, the
complainant’s evidence, if anything, actually tended to
corroborate the existence of
a prior romantic relationship between
herself and the complainant, of which her mother had been
disapproving.  I refer in
this connection to the following
passage in the complainant’s evidence concerning her having
misled her mother that she was
going to spend the October school
holidays at a school camp:
Defence attorney:
And did your mother also ask you why
you lied to her in the first place?
Complainant:
No
I can’t recall that.
Defence attorney:
Did any of the questions that your
mother or your aunt asked you; did it have anything to do that they
thought you are going out
with boys or mixing with boys?
Complainant:
Yes there was a suspicion that
there’s a boy.
Defence attorney
:
Were you seeing a boy at that time or did you have relations with a
boy at that time or not?
Complainant:
No I never had a boy.
Defence attorney:
So when they asked you those
questions then what did you tell them?
Complainant:
No
they suspected that I have got a boy and then I denied it to them.
I said no I don’t have a boyfriend and by the
time that they
wanted to examine me; at that time my mother she was aware –
she heard information that they have seen the
accused around.
[6]
The complainant’s evidence indicates
that the complainant’s mother suspected that she was conducting
a romantic relationship
with the appellant, and that that had been
the reason for her having misled her mother into believing she was
going to a school
camp whereas in fact she went to spend the school
holiday at the house of her grandfather not far from her home.
The mother’s
reported suspicions (which, it must be said,
no-one at the trial saw fit to investigate further with the
complainant, or with the
mother when she gave evidence) are
consistent with there having been some prior liaison between the
appellant and the complainant:
A fact that would make sense of
the nature of the appellant’s previous conviction.
[7]
More pertinently, there was just no basis
for the magistrate to have appeared on the record to go behind the
nature of the appellant’s
previous conviction.  Her
treatment of the matter in the sentence judgment, without any
properly informed insight into the
proceedings in the other court,
amounted to a material misdirection that by itself entitles this
court to revisit and, if needs
be, interfere with the sentence that
was imposed.
[8]
This was not the only disquieting feature
of the trial.  Others relate to the magistrate’s
understanding and treatment
of the medical evidence and to the victim
impact report; matters with which I shall deal later.
[9]
It is therefore with not a little
diffidence that I have been satisfied, after an anxious consideration
of the record of proceedings
assessed in their totality, that the
appellant’s fair trial rights were nevertheless not so
materially infringed by the magistrate’s
conduct as to have
vitiated the proceedings.
[10]
I regret, however, that, as indicated at
the outset, I am unable to agree with the majority’s conclusion
that the appeal on
sentence should be dismissed.  The essential
basis for the difference between us is that I do not think that a
sentence of
life imprisonment was a proportionate sanction.  In
this regard my colleagues and I appear to have a materially divergent
conception of the principles pertaining to the application of the
prescribed minimum sentence regime.
[11]
I do agree with Nuku J’s view
that a long sentence of imprisonment – one that would remove
the appellant from society
for a long period – would be
appropriate.  In my judgment that can be achieved by imposing a
very lengthy sentence of
imprisonment, somewhere in the range of
between 15 and 25 years.  Sentences in that range are by no
means representative of
a ‘business as usual’ approach
when compared with the significantly shorter sentences of
imprisonment that used to
be imposed for rape prior to the
promulgation of the
Criminal Law Amendment Act 105 of 1997
.
[2]
I think it is relevant, when considering what an appropriate sentence
would be, to bear in mind that sentences in that range are
regularly
imposed by our courts under the prescribed minimum sentence regime
for crimes involving very serious instances of violence
in which
innocent and often especially vulnerable victims are brutalised,
badly injured and even murdered.  There is a vast
difference
between the practical implications of such sentences for the
convicted accused person and one of life imprisonment.
[12]
As I shall discuss presently, the
authorities show that the effect of these practical implications must
be taken into account when
the determination of what an appropriately
proportionate sentence might be is considered.  It must be borne
in mind, even
when it is the prescribed punishment, that the sentence
of life imprisonment is the most extreme sentencing option available
under
our law.  It is understandable in the circumstances that
the Supreme Court of Appeal has observed that ‘[f]
rom
those who are called upon to sentence convicted offenders such cases
[i.e. rape cases]
call
for considerable reflection. Custodial sentences are not merely
numbers. And familiarity with the sentence of life imprisonment
must
never blunt one to the fact that its consequences are profound
’.
[3]
[13]
The need for a carefully measured judicial
approach to sentencing is particularly important in respect of
especially heinous crimes
that are liable to elicit an instinctively
harsh visceral human response.  In this respect I believe that I
find support in
the observations by the Supreme Court of Appeal in
the opening paragraphs of that court’s salient judgment in
S
v Vilakazi
[2008] ZASCA 87
;
[2008] 4
All SA 396
(SCA);
2009 (1) SACR 552
;
2012 (6) SA 353:
[1] Rape is a repulsive crime. It was
rightly described by counsel in this case as 'an invasion of the most
private and intimate
zone of a woman and strikes at the core of her
personhood and dignity'. In
S
v Chapman
[(1997
(3) SA 341 (A) at 345A-B]
this
court called it a 'humiliating, degrading and brutal invasion of the
privacy, the dignity and the person of the victim' and
went on to say
that
[w]omen 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 tranquility of their homes without the fear, the
apprehension and the insecurity
which constantly diminishes the
quality and enjoyment of their lives.
[2] Yet women in this country are still far from having
that peace of mind. According to a study on the epidemiology of rape
‘the
evidence points to the conclusion that women's right to
give or withhold consent to sexual intercourse is one of the most
commonly
violated of all human rights in South Africa’.
During 2007 as many as 36 190 reports of rape were made to the
police.  Perhaps in some cases the report was false but the
figure is nonetheless staggering bearing in mind that rape is
notoriously under-reported. It is also notorious that relatively few
offenders are caught and convicted.
[3] There is considerable risk in those circumstances
that excessive punishment will be heaped 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.  But the
Constitutional
Court reminded us in
S v Dodo
[2001] ZACC 16
;
[2001 (1) SACR
594
(CC)
(2001 (3) SA 382
;
2001 (5) BCLR 423)
, at para. 38]. that
punishment must always be proportionate 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'.
(Footnotes omitted.)
[14]
We were not presented with any statistics,
but the common – and, I suspect, justified – perception
is that the incidence
of rape in South Africa remains as appallingly
high today as it was more than a decade ago when the judgment in
Vilakazi
was delivered.
[4]
The statutory and constitutional context for sentencing in such
matters is still the same as it was then.  The temptation
to
undiscriminatingly visit the commission of such dastardly crimes with
the harshest of punishments is also just as pressing,
if not more so,
as it ever was.  These are all good reasons, in my respectful
view, why sentencing courts must remain astute
to what Nugent JA
described in para. 3 of
Vilakazi
as ‘
the considerable risk
’
of the imposition of disproportionate punishment in these cases.
[15]
The
Criminal Law Amendment Act 105 of 1997
has aptly, with respect, been described by the Supreme Court of
Appeal as a blunt instrument.
[5]
In this regard, taking the sentencing provisions for the crime of
rape as an example, the Court pointed to the vast disparity
between
the ‘standard’ provision in the Act for a 10-year
sentence of imprisonment and the sentence of life imprisonment

prescribed in respect of the crime committed in any of the eight
categories of circumstances described in paragraph 12 of the
judgment, and noted the absence of any provision for a gradation
between the two poles to take account of the peculiar circumstances

of a given case.
[6]
The Court identified this as reflecting the omission of any provision
for proportionality.  It explained that in the
circumstances it
was the only the implication of a means of achieving proportionality
by applying the determinative test posited
in
S
v Malgas
2001 (1) SACR 469
(SCA)
(2001
(2) SA 1222
;
[2001] 3 All SA 220
that had saved the minimum sentence
regime when it was scrutinised for constitutional compatibility in
S
v Dodo
supra.
[7]
[16]
Malgas
is
the seminal judgment in our jurisprudence concerning the approach
that courts are enjoined to adopt in respect of the prescribed

minimum sentence regime.  It was endorsed by the Constitutional
Court in
S v Dodo
supra.  The judgment in
Malgas
held that the proper approach to the application of the prescribed
sentence regime was to apply what the Constitutional Court labelled

as the ‘determinative test’.  The judgment
articulated the substance of that test as follows: ‘
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.
’
[8]
[17]
The Constitutional Court emphasised in
Dodo
[9]
that the effect of applying the determinative test was ‘
that
the power of the court to impose a lesser sentence than that
prescribed can be exercised well before the disproportionality

between the mandated sentence and the nature of the offence becomes
so great that it can be typified as gross
’.
[10]
The result, as noted in
S v Vilakazi
[2008] ZASCA 87
;
[2008] 4 All SA 396
(SCA);
2009 (1) SACR 552
;
2012
(6) SA 353
, is that it might well be that the prescribed minimum
sentence in respect to some offences is ‘
seldom
proportionate to the offence
’.
[11]
[18]
In expressing its approval of the approach
stated in
Malgas
at para. 25, the Constitutional Court described it ‘an
overarching guideline’, one that ‘
will
no doubt be refined and particularised on a case by case basis, as
the need arises. It steers an appropriate path, which the
legislature
doubtless intended, respecting the legislature’s decision to
ensure that consistently heavier sentences are imposed
in relation to
the serious crimes covered by
section 51
and at the same time
promoting “the spirit, purport and objects of the Bill of
Rights.”
’  The
judgment in
Vilakazi
is a well-respected exegesis on the jurisprudence in
Malgas
and
Dodo
.
It represents an important beacon in the process of refinement that
the Constitutional Court contemplated would follow its
judgment in
Dodo
.
Importantly, it debunked the thesis that the effect of the judgment
in
Malgas
was that the prescribed minimum sentence must be imposed as the norm,
and only departed from as an exception.
[19]
In paragraph 16 of his judgment in
Vilakazi
Nugent JA held that the judgment in
Malgas
did
not say:
…
that the prescribed
sentences ‘should ordinarily be imposed’. What it said is
that a court must approach the matter
‘
conscious
of the fact that the Legislature has ordained
[the prescribed sentence] as the sentence which should
ordinarily
and in the absence
of weighty justification
be imposed for the listed crimes in the specified circumstances’24
(the emphasis in bold is [Nugent JA’s]). In the
context of the
judgment as a whole, and in particular the ‘determinative test’
that I referred to earlier, it is clear
that the effect of those
qualifications is that any circumstances that would render the
prescribed sentence disproportionate to
the offence would constitute
the requisite ‘weighty justification’ for the imposition
of a lesser sentence.
That
the prescribed sentence is evidently disproportionate in a given case
is therefore indicative of the existence of weighty justification
to
depart from it.
[20]
The judgment in
Vilakazi
also emphasised that
Malgas
did not hold ‘
that the various
[prescribed]
sentences
are indeed proportionate to the particular crimes – and thus to
be imposed as the norm
’.  It
pointed out that the court in
Malgas
had
not pertinently considered sentence regimes prescribed in the Act for
the various offences in any particularity, and concluded
‘
To
say that a court must regard the sentence as being proportionate a
priori and apply it other than in an exceptional case runs
altogether
counter to both
Malgas
and
Dodo
’.
[12]
[21]
The point was very recently reiterated by
the Supreme Court of Appeal in
S v De
Beer
[2017] ZASCA 183
;
2018 (1) SACR
229
(SCA), in which reference was made with approval to the
‘insightful’ majority judgment in this court in
S
v GK
2013 (2) SACR 505
(WCC) (per
Rogers J, Gamble J concurring; Matthee AJ dissenting).
In
De Beer
,
Ploos van Amstel AJA writing for a unanimous five-judge bench
stated: ‘
The minimum sentencing
legislation (the
Criminal Law Amendment Act 105 of 1997
) has had a
far reaching effect on sentences imposed in respect of the offences
listed in the Act. This court has pointed out on
many occasions that
injustices may occur if the prescribed minimum sentences are imposed
without a proper consideration of the
existence of substantial and
compelling circumstances, including the question whether the
prescribed sentence will be disproportionate
to the offence, in the
wide sense, in other words, including all the circumstances of not
only the offence itself, but also the
circumstances of the parties
involved. … it is therefore important, in every case, to guard
against an injustice being perpetrated
by adhering slavishly to the
prescribed minimum sentences
’.
[13]
In that connection the court underscored the observation by Marais JA
in
Malgas
that ‘
While speaking of injustice,
it is necessary to add that the imposition of the prescribed sentence
need not amount to a shocking
injustice (“n skokkende onreg”
as it has been put in some of the cases in the High Court) before a
departure is justified.
That it would be an injustice is enough. One
does not calibrate injustices in a court of law and take note only of
those which
are shocking
’.
[14]
[22]
In
Makumbane
and Others v S
[2014] ZASCA 116
,
Wallis JA highlighted the pertinence as a point of departure in
any determination of a proportionate sentence that it be
consciously
appreciated that a sentence of life imprisonment is the most
stringent sentence that our courts can impose.  The
learned
judge proceeded: ‘
Then there must
be an overall assessment of whether on the facts of
[the]
case a sentence of life imprisonment is
proportionate to the offence committed by the applicants.  In
making that latter assessment
the court will always be conscious of
other cases in which it has had to consider the appropriate sentence
to be imposed for serious
crimes, and the assessment in those cases
of which crimes are truly the most heinous and warrant the heaviest
sentence. I see no
point in reciting those cases as they all turn on
their own facts, but they inevitably form a backdrop to the
sentencing process
in terms of the legislation prescribing certain
minimum sentences for serious crimes.
’
[23]
In this regard I was especially conscious
when preparing for the hearing of this appeal that I had in that very
week imposed a sentence
of 20 years’ imprisonment in a gang
murder case in which the accused had with deliberate intention killed
the unarmed and
defenceless deceased by firing at least 12 bullets
into his body from close range.
[15]
In considering the sentences imposed in comparable cases for the
purpose of imposing sentence in that case I had discovered,
somewhat
to my surprise, that 20 years’ imprisonment was in the upper
range of comparable sentences.
[24]
I am mindful that the prescribed minimum
sentence for murder (even with actual intent) - an offence with the
most extreme effect
on the victim - is 15 years’ imprisonment,
and not for life as it is for the offence of which the appellant was
convicted.
As remarked upon in
Vilakazi
,
[16]
such incongruities in the legislation are amongst its characteristics
that have been the subject of strident criticism.  It
is the
requirement that courts are obliged to impose proportionate
sentences, and in that regard - as mentioned in the passage
from
Makumbane
quoted in the preceding paragraph - imposes a duty on judges to be
conscious of the sentences that are imposed in other serious
cases
across the spectrum, that ameliorates the effect of the anomalous
distinctions for sentence purposes in the
Criminal Law Amendment Act
between
various types of serious crime.  Such amelioration is
necessary, in my view, if coherent expression is to be given to the
requirement that sentences must not be disproportionate.  A
broader cross-category perspective is necessary for a
constitutionally
compatible application of the legislation.
[25]
Bearing all the aforegoing principles in
mind, it is my respectful opinion that the proper approach to be
adopted by this court
sitting on appeal was appositely summed up in
para. 14 of the majority judgment in
S v
GK
supra, where Rogers J, dealing
with an appeal against a sentence of life imprisonment for rape,
stated:
I thus must not approach the present
appeal with a mind that a life sentence is a priori a just punishment
for the appellant. Instead,
I must examine all the circumstances of
the case and then ask myself whether I am not merely uneasy at the
imposition of a life
sentence but have a conviction that such a
sentence would be unjust, ie disproportionate to the crime, the
offence, and the legitimate
needs of the community. Inevitably that
entails forming a view as to what a just sentence would be in all the
circumstances of
the case, bearing in mind however that even
discretionary sentences for crimes dealt with in the Act (ie once
substantial and compelling
circumstances have been found to be
present) can be expected to be more severe than before. In this
regard Cameron JA stated in
Abrahams
supra [
2002 (1) SACR 116
(SCA)]
that the Act ‘creates a
legislative standard that weighs upon the exercise of the sentencing
court’s discretion’
(para 25). If the just sentence,
approached in this manner, falls materially below the prescribed
sentence there will be substantial
and compelling circumstances to
depart from the prescribed sentence. As was held in
Malgas
(para 23), substantial and compelling circumstances are not confined
to circumstances where the prescribed sentence would, in relation
to
the sentence the court would have imposed, be ‘disturbingly’
inappropriate or ‘induce a sense of shock’.
In other
words, a discrepancy falling short of the latter test (which applies
when an appellate court considers whether it may
interfere with a
trial court’s discretionary sentence) may justify a finding
that substantial and compelling circumstances
exist to depart from
the sentence prescribed by the Act.
[26]
The exercise posited by Rogers J has
to be undertaken mindful of the provisions of
s 51(3)(aA)
of the
Criminal Law Amendment Act.  That
provides that when imposing a
sentence in respect of rape, the following will not constitute
substantial and compelling circumstances
justifying the imposition of
a lesser sentence: (i) the complainant’s previous sexual
history; (ii) an apparent lack of physical
injury to the complainant;
(iii) an accused person’s cultural or religious beliefs about
rape; or (iv) any relationship between
the accused person and the
complainant prior to the offence being committed.  Taken
literally, the provision would substantially
thwart a court’s
ability to apply the determinative test, which, as rehearsed in the
preceding part of this judgment, was
the feature manifesting the
retention of judicial discretion that saved the prescribed minimum
sentence regime in terms of the
statute from being held by the Court
in
S v Dodo
to be constitutionally incompatible.  It is trite, however, that
legislation should, insofar as its language reasonably permits,
be
construed in a manner that renders a constitutionally congruent
meaning in preference to one that would result in constitutional

incompatibility.
[17]
Section 51(3)(aA)
was interpreted in that manner in
S
v Nkawu
[2009] ZAECGHC 21;
2009 2 SACR
402
(ECG), in which Plasket J held that it should be understood
to mean that any one of the stipulated factors ‘
on
their own may not be regarded as a substantial and compelling
circumstance justifying a departure from the prescribed sentence
but
that each one of them may be considered along with other factors
cumulatively to amount to substantial and compelling
circumstances
’.
[18]
The learned judge’s construction of the provision was referred
to with approval by the appeal court in
S
v Mudau
supra, at para. 26.
[27]
While on the topic of questions of relevant
principle it is pertinent to remember that in treating of appeals in
cases in which
the sentence is subject to the prescribed minimum
sentence regime a finding by the trial court that there is an absence
of special
and compelling circumstances to depart from the prescribed
sentence does not entail the exercise of a true or narrow discretion,

and the appellate court is therefore entitled to substitute its
decision in that respect if it disagrees with the finding of the

court a quo.  It is not a prerequisite that there have been a
misdirection by the trial court in the exercise of its discretion.

Rogers J called attention to this important consideration in
S
v GK
supra, at para. 3-7.
See also
S v Homareda
1999 (2) SACR 319
(W);
[1999] 4 All SA 549
, at 326c-d (SACR) (per
Cloete J and Robinson AJ), and my own review of the
position (Riley AJ concurring) in
S
v Tafeni
[2015] ZAWCHC 150
;
2016 (2)
SACR 720
(WCC), at para. 2-8.  Consider also the dictum of
Bosielo JA in
Bailey v S
[2012] ZASCA 154
; also reported
sub nom
.
S v PB
2013 (2) SACR 533
(SCA), at para 20:
What then is the correct approach by an appellate court
on appeal against a sentence imposed in terms of the Act? Can the
appellate
court interfere with such a sentence imposed by the trial
court after exercising its discretion properly simply because it is
not
the sentence which it would have imposed or that it finds it
shocking? The approach to an appeal on sentence imposed in terms of

the Act, should in my view, be different to an approach to other
sentences imposed under the ordinary sentencing regime. This in
my
view is so because the minimum sentences to be imposed are ordained
by the Act. They cannot be departed from lightly or for
flimsy
reasons. It follows therefore that a proper enquiry on appeal is
whether the facts which were considered by the sentencing
court are
substantial and compelling or not.
[28]
Sentencing under the minimum sentence
regime in rape cases is a hotly contentious issue.  The glaring
inconsistency in sentences
for rape in terms of the prescribed
minimum sentence regime has been remarked upon in SS Terblanche,
The
Guide to Sentencing in South Africa
3
rd
ed. (LexisNexis, 2016), at §3.5.4.6 and 3.5.5.  The
observation is indeed borne out by the jurisprudence.
[19]
As I have myself remarked in an earlier judgment
(albeit concerning robbery, not rape), ‘
It
is evident from …
[a]
review of the pertinent jurisprudence of
the top-tier courts that the constitutionally compatible
administration of the minimum
sentence legislation is reliant on
judicial nuance.  That is hardly desirable, as indeed certain
passages in
Vilikazi
clearly imply.  It is a position that is bound in practice to
result in approaches to sentence that are difficult to reconcile
and
appear to be discordant
’.
[20]
[29]
Professor Terblanche has noted ‘
Sentencing
for rape has now reached the point where judicial officers who take a
hard line in their sentencing impose life imprisonment
and take their
authority from
Matyityi
,
[
[21]
]
while those of a more moderate
persuasion follow
Vilakazi
.
’
[22]
Whilst there might well be a sound foundation for that observation, I
think it is important to remember, however, that the
judgment in
Matyityi
did not purport to express a departure from
Vilakaz
i.
The dicta in
Matyityi
were uttered in the context of a criticism of an unjustified
departure from the prescribed sentences in a matter in which the
crimes involved had been committed with extreme violence and
savagery.  In my view the judgment does not presage ‘a
hard line’, but serves rather as a trenchant and pertinent
reminder that the legislation cannot be disregarded and must be

applied in a principled manner.
[30]
As with other crimes that all have
devastating impacts on the victims such as robbery with aggravating
circumstances and even murder,
some instances of rape are worse than
others.  This much has been expressly acknowledged more than
once by the appeal court;
see S
v
Abrahams
2002 (1) SACR 116
(SCA), at
para. 29,
S v Mahomotsa
2002 (2) SACR 435
(SCA) at para. 17-19 and
S
v Mudau
supra, at para. 17-18.  A
proportionate approach entails that in general the most severe
sentence is appropriate in cases
that fall into the category of the
worst instances of the commission of the crime.  I make that
statement acknowledging that
life imprisonment might well be an
appropriate and proportionate sentence in a case falling short of the
most egregious example
imaginable of the crime.  But if the
principles that I have sought to rehearse are not accepted, then we
have learned nothing
from the exposition in
S
v Vilakazi
.
[31]
The rape involved in the current matter
does not in my opinion fall into the category of the worst instances
of the crime.
The appellant showed the complainant a knife with
the threat that he would use it if she did not submit, but no actual
violence
was involved beyond the act of forced sexual intercourse
itself.  On the second occasion when the complainant was
bleeding
from her vagina, which might well have been menstrual, the
appellant ceased his assault as soon as he became aware of it.

Moreover, this was a case in which, according to the appellant’s
previous conviction, there had been a history of prior consensual

intercourse with the complainant, who was 13 years and nine months
old at the time.  (I referred earlier to the complainant’s

evidence in this respect that was not properly explored at the
trial.)
[32]
It is true that the appellant showed no
remorse and persisted in his denial of the complainant’s
allegations, but there is
no evidence to support a conclusion that he
represents a threat to society and women in particular.  The
history suggests
that his fixation has been with the complainant, and
no-one else.  There is no reason to believe that he would
continue to
represent a threat to the complainant upon release from a
lengthy period of imprisonment.  Life is likely to have moved on

for both of them by then.  His only other previous conviction
was in respect of an offence in terms of s 36 of the General
Law
Amendment Act 62 of 1955 (‘failure to give a satisfactory
account of possession of goods’) committed in 2010, and
for
which he received a fine that was wholly suspended.
[33]
A victim impact report prepared by a social
worker was handed in as documentary evidence at the trial.  It
reported that the
complainant was experiencing adverse psychological
consequences as a result of her experiences at the hands of the
appellant.
That, sadly, is only to be expected in crimes of
this nature, as indeed the academic source material cited in the
social worker’s
report apparently confirms.  It would be a
rare case in which a forced invasion of a person’s dignity,
physical integrity
and most intimate physical privacy would not have
a materially adverse effect on their sense of security, well-being
and self-esteem.
These virtually invariable consequences for
the victims are what in large part inform society’s revulsion
against rape as
amongst the most serious of offences that can be
perpetrated.  The victim impact report related that the
complainant was benefitting
from ongoing therapy and recorded that
the support that she was receiving from her mother was having a
positive impact on her healing
process.
[34]
Of concern, however, is the extent and
nature of discrepancy between the content of the victim impact
report’s description
of the factual background and the evidence
adduced at the trial.  The social worker (who recorded that she
had interviewed
the complainant on six occasions and the
complainant’s mother on one occasion) does not appear to have
been aware of the
nature of the appellant’s previous
conviction, or of the fact that when the complainant was discovered
to have gone to stay
at her grandfather’s house instead of
attending a school camp, as she had represented, her mother suspected
that it was because
she was having an affair with a boy - and that
the boy in question was the appellant.  The social worker’s
description
of how the appellant was reported to have used the knife
to subdue and restrain the complainant also conflicted with the
evidence
that the complainant had given at the trial.  There
were other inconsistencies that I find unnecessary to particularise.

It is of concern in the circumstances that no-one at the trial
thought it necessary that the social worker should have been required

to give oral evidence.  The defence attorney’s statement
that the ‘content and correctness’ of the report
were
admitted was puzzling to say the least in the circumstances.
The manner in which the victim impact report was allowed
in by the
court without interrogation recalls to mind the pertinent
observations by Nugent JA in
Vilakazi
regarding the all too frequent superficiality with which this type of
case, which, as the learned judge of appeal remarked, is
requiring of
‘
of the greatest care to be taken
’
and of ‘
meticulous attention to
detail
’ is treated, and
illustrates how short of those standards the conduct of the trial in
the current matter fell.  It is
apparent from the magistrate’s
sentence judgment that the social worker’s report played a very
influential role in
the determination of the sentence that was
imposed.
[35]
The magistrate’s misdirected
treatment of the appellant’s previous conviction for statutory
rape persisted in her reasoning
in the sentence judgment.  She
referred to the appellant having stolen the complainant’s
childhood not only once, but
on four occasions.  The reference
to four occasions plainly included the matter in which the appellant
had been convicted
of statutory rape.  The magistrate also
remarked in the sentence judgment:
Not only was she [the complainant] raped …(inaudible)
the injuries that she incurred from the first time you raped her and

unfortunately it wasn’t dealt with in that matter by the Court
of by the state as the magistrate would not have known of
those facts
had it not been brought before him or her.
This was evident from the doctor who testified in this
matter that there were old injuries and then once again new injuries
that
you inflicted on her.
I believe that this Act [the
Criminal Law Amendment Act
105 of 1997
] was designed exactly for this type of case.
This
passage not only highlights the persistent effect of the magistrate’s
treatment of the appellant’s previous convictions,
it also
demonstrates a misconceived understanding by the magistrate of the
import of the medical evidence that was adduced at the
trial.
No injuries were identified in the medical evidence.  What was
found was that the complainant had three sores
in the
fossa
navicularis
.  The doctor was unable to state with certainty
what would have caused the sores and speculated that they might be
indicative
of a sexually transmitted disease such as herpes.
The only other signs of ‘injury’ were bumps and clefts in
the
hymenal opening that were indicative of prior sexual
penetration.  It was evident from the medical evidence that such
bumps
and clefts might be expected irrespective of whether the prior
sexual penetration had been consensual or forced.
[36]
The magistrate made no reference to
proportionality in her sentence judgment.  She also gave no
indication whatsoever of having
followed the cautious approach
advocated in the jurisprudence to which I referred above.  She
made no reference to sentences
imposed in comparable cases and showed
no appreciation of the need to appreciate that there is a gradation
of severity in rape
case that needs to be reflected in the
proportionality of punishment.  On the contrary, her judgment
reflects that she adopted
an à priori and inflexible approach
that the imposition of a sentence of life imprisonment in the case of
the rape of any
girl under 16 should be the norm.  This approach
was plainly articulated in her statement: ‘
There
are no shades of grey when it comes to raping a child
’.
[37]
The shortcomings in the trial to which I
have referred above are by themselves enough to justify a critical,
if not sceptical, re-examination
of the appropriateness of the
sentence imposed by the trial court, even without the significant
unease that I felt in any event
about its proportionality.
[38]
My unease hardened into a certainty that
the magistrate was wrong to impose the ultimate sentence when I
considered the markedly
lesser sentences that were imposed in a
number of previous cases in comparable or materially worse instances
of rape.  I say
this mindful of the inconsistency in sentencing
remarked upon by the commentators to which I referred earlier, and
also of the
fact that the cogency of any comparative analysis is to
some extent inevitably undermined by the uniqueness of the character
of
individual cases.  Comparable cases nonetheless indubitably
serve as a guide, hence their well-established use by judicial

officers as a sentencing tool.  They certainly provide the most
obvious framework by which to test whether a sentence is
proportionate or not.  The judgments in comparable matters are
unfortunately legion.  A comprehensive survey is beyond
my time
and resources, but the examples given below suffice to make my point.
[39]
In
Gcaza v S
[2017] ZASCA 92
; 2016 JDR 1896 (SCA), the appeal court dismissed a
cross-appeal by the state against the imposition of an effective
sentence of
23 years’ imprisonment on a 23 year old offender
who had been convicted of the murder and anal rape of a six year old
boy.
The offender was accepted to have been under the influence
of alcohol narcotic drugs (methamphetamine, commonly known as
‘tik’).
There was, however, also evidence that he
was psychopath who presented a danger to society, and that he was a
doubtful candidate
for rehabilitation.  In declining to
interfere with the sentence on appeal the court was mindful that the
crimes were ‘
gross and inhumane
’
and that ‘t]
he enormity of th
[e]
crime was aggravated by the fact that it
was committed against an unsuspecting young boy
’.
[40]
In
S v Calvin
2014 JDR 2020 (SCA), the Supreme Court of Appeal substituted the
sentence of life imprisonment imposed on a 20 year old offender
for
the rape of six year old girl with a sentence of 20 years’
imprisonment.  The appellant had denied committing the
offence
and pleaded not guilty to the charge at his trial.  In upholding
the appeal against sentence the court took into account
the
appellant’s relative youthfulness, the fact that he had been
incarcerated for seven months awaiting trial and that there
‘
was
no gratuitous violence in addition to the rape
’.
Acknowledging that ‘[t]
he rape of
a girl of six years is always a very serious crime
’,
the court, quoting from the some of the passages in the judgment in
Vilakazi
to which I have referred above, concluded that a sentence of life
imprisonment was nevertheless disproportionate in the circumstances.
[41]
In
S v AR
2013 JDR 2186 (SCA),
[23]
the Supreme Court of Appeal set aside a sentence of life imprisonment
imposed on a 19 year old offender for raping a 13 year old
girl and
substituted a sentence of 8 years and 10 months’ imprisonment
antedated to the date on which the life sentence had
been imposed.
The appellant had pleaded guilty at his trial, showed remorse and was
a first offender.  It was held that
the trial court had been
materially misdirected in proceeding to sentence the appellant
without ensuring that it had adequate information
before it to
consider whether there were substantial and compelling circumstances
to deviate from the prescribed minimum sentence.
This appears
to have been a less serious case than the current one, but when it
comes to assessing proportionality the disparity
between a sentence
of less than nine years’ imprisonment and a life sentence is
particularly striking.
[42]
In
S v Makhang
2017 JDR 0540 (ECG); [2017] ZAECGHC 42, the court set aside a life
sentence imposed on a 24 year old offender with two previous

convictions for assault with intent to do grievous bodily harm who
had been convicted of raping an adult woman vaginally and anally

(which resulted in a sentence of life imprisonment being prescribed
in terms of the
Criminal Law Amendment Act).  A
knife had been
wielded to subdue her and frighten off persons who had tried to come
to the complainant’s assistance.
The appellant had denied
having committed the offences and had appealed unsuccessfully against
his conviction.  With reference
to
S
v Mudau
supra, the appellate court held
that the trial court had misdirected itself by failing to weigh
whether the life sentence that
it imposed was proportionate.
The appellate court substituted the sentence of life imprisonment
with one of 15 years’
imprisonment.
[43]
In
S v Thunzi
2014 JDR 0765 (WCC) this court (per Samela J, Baartman J
concurring) set aside a sentence of 18 years’ imprisonment

imposed on an offender who at age 21 had raped a 10 year old girl.
A social worker’s report in the case had advised
that the
complainant ‘
has nightmares, has
difficulty trusting male persons, and is experiencing personality
problems. Furthermore, that she is also severely,
emotionally and
traumatized
’ and ‘…
needs
counselling to cope with the present condition and future challenges
in her life
’. The appellant had
denied his guilt and had appealed unsuccessfully against his
conviction.  He had therefore shown
no remorse.  The court
had regard to the fact that the appellant was a first offender and
had spent over three years in prison
awaiting trial.  It held
that the sentence imposed by the trial court was ‘
shockingly
inappropriate
’ and substituted a
sentence of 15 years’ imprisonment.
[44]
I consider, having regard to the nature of
offence, the personal characteristics of the appellant and the
interests of society,
that a sentence of 20 years’ imprisonment
would meet the justice of the current case.  By contrast, a
sentence of life
imprisonment in the circumstances is
disproportionate and unjust.  I would therefore have upheld the
appeal against sentence,
set aside the sentence imposed by the trial
court and substituted it with a sentence of 20 years’
imprisonment antedated
to 29 January 2016.
A.G. BINNS-WARD
Judge of the High Court
NUKU
J:
[45]
The appellant was convicted in the Regional
Court, Somerset West (“
the
trial Court
”),
on 29 January 2016 on three counts of rape in contravention of
section 3 of the Criminal Law (Sexual Offences and Related
Matters)
Amendment Act, 32 of 2007 (“
the
Sexual Offences Act
”).  The
charges against him were that on 30 September 2014, 1 October 2014
and during October 2014 and at or near an
open field near Onverwacht
and Nomzamo, in the regional division of the Western Cape, he
unlawfully and intentionally committed
acts of sexual penetration
with the complainant, who was a 13 year old girl at the time, by
inserting his genital organ into her
genital organ and thereby had
sexual intercourse with the complainant without her consent.  He
was sentenced on 22 February
2016 in terms of section 51 (1) of the
Criminal Law Amendment Act 105 of 1997 (“
the
Criminal Law Amendment Act
>
”), to
imprisonment for life.  The trial Court took all three counts of
rape together for purposes of sentence.
Leave to appeal is not
required as the appellant was sentenced by a regional court in terms
of
section 51
(1) of the
Criminal Law Amendment Act. The
appeal is in
respect of both conviction and sentence. The appellant was legally
represented throughout the proceedings in the trial
Court.
[46]
The appellant prepared his notice of appeal
without legal representation.  In his notice of appeal he raises
the following
grounds of appeal in respect of conviction:
1. That the trial Court erred and misdirected itself in finding that
the State had proved beyond a reasonable doubt that he was
guilty of
rape, especially in light of the fact that it was only the
complainant’s statement that placed him on the scene,
and that
no further corroborating evidence was presented by the State;
2. That the trial Court erred and misdirected itself when it refused
to accept evidence tendered by the defence or a history of
the
complainant who has a motive to frame and/or falsely implicate him,
more especially in light of the fact that the complainant
failed to
report the incident on the same day it occurred so that the State
could be able to find his DNA for testing.
3. That the trial Court erred and misdirected itself in rejecting his
evidence as not being reasonably possibly true, and attached
too much
weight to immaterial discrepancies in his evidence;
4. That the trial Court erred and misdirected itself in not taking
cognisance of the fact that his evidence was not contradictory
and in
disregarding the cautionary rule with regard to the evidence of a
single witness in the absence of the independent corroborating

evidence;
5. That the trial Court erred and misdirected itself in accepting the
evidence of the State witnesses, which lacked credibility
and
reliability in all material respects and in rejecting his evidence
and by attaching too much weight to immaterial discrepancies
in his
evidence.
6. That the trial Court erred and misdirected itself by not taking
into account, or giving sufficient weight to the following:
(i) The complainant’s previous sexual history;
(ii) The lack of tangible evidence and/or forensic evidence, that is,
no DNA found, or presented by the State.
(iii) An apparent lack of physical injury to the complainant; and
(iv) Failure by the complainant to report the alleged rape timeously.
[47]
Ms
Levendal
from Legal Aid South Africa, Cape Town Justice Centre, appeared for
the appellant and Ms
Ajam
appeared for the State. In her written submissions Ms Levendal raised
the following grounds of appeal in respect of conviction:
1. That the trial Court failed to properly apply the cautionary rule
as is required when dealing with the evidence of a single
witness
and/or a child witness;
2. That the evidence of the complainant was not satisfactory in all
material respects;
3. That the complainant’s evidence was not credible; and
4. That the medical evidence does not corroborate the complainant’s
evidence.
[48]
Ms
Ajam
,
on the other hand, contended that the trial Court properly applied
the cautionary rule and correctly found the evidence of the

complainant to be credible. She further submitted that contradictions
in the State’s case were immaterial and that the medical

evidence supported the complainant’s version.
[49]
A brief review of the facts is necessary.
At about 15h00 during the afternoon of 30 September 2014 the
complainant was playing
with her friends when their ball got lost and
she went looking for it.  While she was looking for their ball,
she saw the
appellant. The appellant approached her, grabbed her by
her arm and uttered words to the following effect: “
Yes
your
(sic)
bitch
I found you can you see the police has released me from jail
”.
The appellant also told the complainant that he knew where she and
her family lived.  The appellant took a knife
out of his pocket
and told the complainant that they should go to a place behind the
informal settlement. When they got to this
place, the appellant
lowered the complainant’s pants and her underwear to her
ankles. He instructed her to lie on her back.
He lowered his pants to
his ankles and thereafter proceeded to have sexual intercourse with
the complainant, without her consent.
He thereafter uttered words to
the following effect: “
I am
finished you must do it on a regular basis because the police have
released me.
”  He also
threatened to kill the complainant and her family if she reported the
matter. The complainant went home and
did not report the matter.
[50]
The following day, on 1 October 2014, the
complainant was on her way to school when she met the appellant next
to an informal settlement.
She tried to run away but the appellant
caught up with her. He pulled her by her arm and took her to the same
place as the previous
day. When they got to this place he first
instructed the complaint to pull her tracksuit pants down whereafter
he proceeded to
pull the complainant’s tracksuit pants down to
her ankles. He lowered his pants to his ankles and proceeded to have
sexual
intercourse with the complainant without her consent. In the
process the complainant started bleeding from her genital organ and

upon this the appellant stopped. Once again the appellant threatened
to kill the complainant if she reported the matter. Thereafter
they
parted ways and the complainant went to her grandmother’s
place. As on the previous day, the complainant did not report
the
matter.
[51]
The complainant could not remember the
exact date of the third occasion. This was still during early part of
October 2014 and closer
to the end of the school term before the
September/October school holidays. The complainant was on her way to
school when she met
the appellant. The appellant took her to the same
place as in the two previous occasions. As on previous occasions,
upon their
arrival at the place, he also proceeded to have sexual
intercourse with her without her consent. Thereafter he told the
complainant
that she should come back to the same place on a regular
basis. This presumably so that the appellant could have sexual
intercourse
with her. The complainant went home thereafter.
[52]
At home the complainant made up a story
about her school going to a school camp for the September/October
school holidays. She requested
and got her mother’s permission
to go to the school camp.  Under the pretext that she was going
to the school camp,
she went to stay with her paternal grandfather.
Her explanation for lying to her mother about the school camp was
that she wanted
to get away from the appellant. She returned home
close to the end of the September/ October school holidays.
[53]
When the complainant went back home, her
mother already knew that she had lied about the school camp and that
she had been with
her paternal grandfather. She was not happy about
this and she also suspected that the complainant was involved with
boys. She,
together with the complainant’s aunt, N T (“
N
”)
confronted the complainant about this but she would not divulge
anything.  It was only after N had inspected the complainant’s

genital organ that she reported having been raped by the appellant on
three occasions. The complainant was taken to the police
station a
day later. She was also examined by a doctor and the appellant was
subsequently arrested.
[54]
The complainant’s mother gave
evidence as to the age of the complainant, namely that she was born
on [...] 2001. She also
confirmed the evidence of the complainant
regarding the circumstances under which the complainant reported
having been raped by
the appellant. Her evidence differed to that of
the complainant regarding the sequence of events leading up to the
complainant
reporting having been raped. Her evidence was that the
complainant reported having been raped before she was inspected by N
whereas
the complainant’s evidence was that she only reported
after the inspection carried out by N.
[55]
N also gave evidence that she was requested
by the complainant’s mother to speak to the complainant. This
because the complainant’s
mother was concerned with the
complainant’s behaviour. The complainant told her that the
appellant had raped her on three
occasions. Thereafter she inspected
the complainant’s genital organ and found that it had been
tampered with.
[56]
Dr Vermeulen also gave evidence that she
examined the complainant. Upon examination she noted that the
complainant’s genitalia
was tender and had some bruises. In her
opinion this was consistent with recent penetration with a blunt
object.
[57]
The appellant testified in his defence and
called no witnesses. He denied having raped the complainant. He also
denied any knowledge
of the complainant. When he was confronted about
a matter in which he had pleaded guilty to statutory rape on this
basis that he
had had consensual sex with the complainant, he blamed
this on his legal representative.
[58]
The trial Court was faced with two mutually
destructive versions, namely; that of complainant alleging rape, and
that of the complainant
denying rape. In order to come to factual
findings the trial Court made credibility findings. After having
applied the necessary
caution, the trial Court found that the
complainant was a credible witness and accepted her version. It
further rejected the version
of the appellant as not being reasonably
possibly true.
[59]
The approach to be adopted by a court of
appeal when dealing with the factual findings of a trial Court is
trite. A court of appeal
will not disturb the factual findings of a
trial Court unless the trial Court has committed a material
misdirection or where it
is convinced that the trial Court is wrong.
(See
R v Dhlumayo and Another
1948 (2) SA 677
(A) at 705-706.
[60]
The evidence of the complainant was not
seriously challenged and was clear. The only aspect of her evidence
which was contradicted
by the evidence of her mother and N relates to
the sequence of events between her reporting the rape and her
inspection by N.
[61]
In the trial Court, as in this Court, the
complainant’s credibility was attacked on the basis that she
had lied to her mother
about going to a school camp when in fact she
went to stay with her paternal grandfather during the
September/October school holidays.
It is the complainant who told the
trial Court that she lied about the school camp. Her explanation for
lying was that she wanted
to get away from the appellant.  The
complainant’s explanation is understandable when viewed in
light of the appellant’s
threats to her and the fact that the
appellant had instructed her to come back to the same place where he
had raped her. Thus,
there is no merit on this attack.
[62]
The complainant was also criticised for the
delay and her reluctance to report the rape. The complainant
testified that the appellant
threatened to kill her and her family if
she were to report him. The complainant’s evidence was also
that the appellant had
boasted about the fact that the police would
not do anything to him. Taking into account the fact that the
appellant had just come
back from incarceration in respect of a
matter involving the complainant it is understandable that the
complainant would believe
that the police would not do anything to
the appellant. The complainant found herself helpless under the
circumstances as her reporting
the matter would put her life and that
of her family in danger.
[63]
The further aspect of the State’s
case that was criticised was the contradiction between the
complainant’s evidence
on the one hand and that of her mother
and N on the other hand. The complainant testified that she was first
examined whereafter
she reported whereas her mother and N testified
that she first reported before being examined. This is the only
aspect where there
is contradiction which could not be explained.
This contradiction, in my view is not material as it does not relate
to the
aspect that proves or disproves the appellant’s guilt
and can be attributed to the fallibility of human memory in recalling

events of the past.
[64]
There are, however, some aspects that
require mentioning. The conduct of the regional magistrate deserves
some attention. Firstly,
her level of interference with the leading
of the witnesses as well as the cross examination bordered on
descending on to the arena.
As the prosecutor was leading the witness
she would at times interfere and take over some part of the leading
of the witness. She
also interrupted the cross examination by the
appellant’s legal representative. Whilst the judicial officers
are not expected
to adopt a supine attitude in respect of matters
they are presiding over there is a limit as to how much they can get
involved
in the management of the trial. There is also a thin
dividing line between managing a trial and getting involved in the
fray and
it is expected of judicial officers to maintain a balancing
act so as not to cross the dividing line as the consequences thereof

may be dire and may at times result in the proceedings being found to
be irregular. The interference by the regional magistrate,
although
concerning, was not such as to render the proceedings irregular and
that point was also not taken in this court.
[65]
The second issue relates to a matter in
which the appellant had pleaded guilty to statutory rape on the basis
that he had had consensual
sex with the complainant. Judging from her
questions and comments during the proceedings, she appeared not to
accept that the appellant
could have had consensual sex with the
complainant. This was despite the fact that there was no evidence
presented by the State
to challenge the correctness of the finding of
the court that convicted the appellant of statutory rape.  Court
proceedings
are presumed to be correct and in the absence of evidence
seeking to prove otherwise, judicial officers are bound to accept the

correctness thereof as failure to do so may, under certain
circumstances and depending on the impact thereof on the said
proceedings,
be adjudged as a misdirection. There is no evidence in
this matter that the attitude of the regional magistrate had an
impact on
the proceedings and as such there is no basis to find that
there was misdirection.
[66]
Taking into account the criticism levelled
at the evidence of the complainant as well as the conduct of the
magistrate as stated
above, I am not persuaded that the trial Court
misdirected itself or was wrong and as such there is no reason to
disturb its findings.
[67]
The complainant was indeed not only a
single witness but also a child witness and the trial Court
appreciated this fact. The trial
Court proceeded to consider the
complainant’s evidence with the necessary caution and came to
the conclusion that it could
convict on the basis of the said
evidence. As stated above, the complainant’s evidence was
clear, not challenged and was
not contradictory. Thus, there can be
no merit in the submission that the trial Court failed to properly
apply the cautionary rule.
The result is that the appeal against
conviction must fail. The evidence of the complainant was that the
appellant had sexual intercourse
with her without her consent.
The findings by Dr Vermeulen were consistent with recent history of
penetration with a blunt
object. This is an independent fact which
confirms that the complainant was penetrated sexually. Taking the
evidence of the complainant
as discussed above as well as the
findings by Dr Vermeulen I am satisfied that the State proved the
guilt of the appellant beyond
reasonable doubt and that the trial
Court correctly convicted him. It follows that the appeal against of
conviction must fail.
[68]
Upon conviction the trial Court sentenced
the appellant, in terms of
section 51
(1) of the
Criminal Law
Amendment Act, to
imprisonment for life, this being the prescribed
minimum sentence. This was after the trial Court took the three
counts of rape
as one for the purposes of sentence. Counsel for the
appellant submitted that the trial Court, under-emphasised the
interests of
the appellant;  did not properly take into account
the nature of the offence as the rape, in this instance, was not as
serious
or as violent, and did not place enough weight on
rehabilitation of the appellant.
[69]
The question to consider in this appeal is
the presence or otherwise of the substantial and compelling
circumstances to warrant
the deviation from the prescribed minimum
sentence of life imprisonment. There is no closed list of what
constitutes substantial
and compelling circumstances and each case
must be considered on its own merits. This of course taking into
account all the traditional
factors that play a role in sentencing.
[70]
In sentencing the appellant the trial Court
took into account the personal circumstances of the appellant, the
nature of the offence
and the interests of society. The factors that
must weigh in favour of the appellant is the fact that he is 29 years
old and as
such he is relatively young and the fact that the
complainant did not sustain physical injuries apart from those
associated with
sexual penetration.
[71]
There are a number of factors which I
consider to be aggravating circumstances. Firstly, the appellant did
not show any remorse.
He pleaded not guilty to the charges pretending
not to know the very complainant he had previously claimed to have
had a consensual
sexual intercourse with. Secondly, the appellant
must have known that the age of the complainant in order for him to
have previously
pleaded guilty to statutory rape. The fact that the
complainant was 13 years of age at the time of rape is in itself one
of the
factors that trigger the application of the minimum sentence
under the
Criminal Law Amendment Act. Thirdly
, the appellant raped
the complainant on three separate occasions. This, also on its own is
a factor that triggers the application
of the minimum sentence under
the
Criminal Law Amendment Act. The
evidence further suggests that
the appellant would have continued to terrorise the complainant as he
had instructed her to come
back to the same place where he had raped
her. Fourthly, the appellant has a relevant previous conviction. He
was convicted in
August 2014 on the charge of statutory rape which
had occurred during 2013. He was given a wholly suspended sentence.
He was in
custody in that matter until the matter was finalised in
August 2014 when he was released. Upon his release, the very next
month
he raped the complainant repeatedly. To make matters worse he
boasted to the complainant that there is nothing that the police
would do to him. Fifthly, the appellant threatened to kill the
complainant and her family. Lastly, a victim impact report which
was
handed in suggests that the complainant became suicidal and that she
requires long term therapy.  It is clear thus that
the
complainant continues to suffer from the consequences associated with
the rape by the appellant.
[72]
The legitimate interests of society demand
that the appellant is removed from society for a lengthy period of
time. Rape in itself
is a heinous crime and repulsive crime. In
sentencing the appellant the regional magistrate commented that
“
there is no difference between
the punishment which notionally I would have imposed on (sic) the
exercise of my discretion and the
prescribed sentence in respect of
these offences
” and I agree fully
with this comment. The sentence which was imposed by the trial Court
fits the appellant, the crime and
serves the legitimate interests of
society. I cannot find any substantial and compelling circumstances
that warrant any other punishment
than the sentence of imprisonment
for life. In my view the appeal against sentence must also fail.
[73]
In the circumstances the following order is
made;
The appeal against both conviction and sentence is dismissed.
L.G. NUKU
Judge of the High Court
PAPIER J (concurring in the judgment of NUKU J):
[74] I was added as
a third judge to hear the appeal, in terms of
Section 14(3)
of the
Superior Courts Act No 10 of 2013
[24]
.
[75] I had the
privilege and benefit of perusing and considering the detailed
judgments of my brothers, Binns-Ward J and Nuku J
in this appeal.
They both agree that the convictions are correct and should be
confirmed, but differ on sentence.
[76] I align myself
entirely with my brothers Binns-Ward J and Nuku J, in their
respective findings with regard to the conviction
of the accused, and
am satisfied that the accused had been correctly convicted in the
court a quo.
[77] The facts and
circumstances of the matter are summarised and well documented by
Binns-Ward J and Nuku J in both of their respective
judgements, and I
will therefore not repeat it.
[78] The magistrate
in the court a quo, after taking all the facts and circumstances into
account, imposed a sentence of life imprisonment
on the appellant.
[79] I am required
to decide whether or not the trial court exercised its discretion,
judicially and properly when sentencing the
appellant
[25]
.
Binns-Ward J, proposed setting the judgment on sentence aside, and
substituting the sentence with one of 20 (twenty) years imprisonment.

Nuku J, proposed that the sentence of life imprisonment imposed by
the Magistrate in the court a quo, be confirmed. I am required
to
decide whether or not I agree with Binns-Ward J; Nuku J, or whether
to propose any other sentence in the circumstances.
[80]
I considered the following facts, relating to and briefly
summarised as follows:
1. The personal circumstances of the appellant, as recorded in the
record.
2. The circumstances of the complainant who was a thirteen year old
girl at the time, when she was raped thrice by the appellant,
in
circumstances where he had previously been charged and convicted of
statutory rape in respect of the same complainant.
3. The appellant showed no remorse for what he had done, boasted to
the complainant that there is nothing the police could do to
him, and
threatened to kill the complainant and her family if she were to
report the incident.
4. The complainant had become suicidal, and required long term
therapy, and continued to suffer from the consequences associated

with the rape by the appellant.
[81]
In deciding this question, I had regard to
the decisions referred to by my learned brothers in their respective
judgements, as well
as the decisions of:
1.
S v Malgas
2001(2) SA 1222 (SCA), where Marais JA noted the
following in paragraph 8 and 9 of the judgment – pages 1230 and
1231respectively:
“
First,
a court was not to be given a clean slate on which to inscribe
whatever sentence it saw fit.  Indeed, it was required
to
approach the question conscious of the fact that the Legislature has
ordained life imprisonment or the particular prescribe
period of
imprisonment as the sentence which should ordinarily be imposed for
the commission of listed crimes in the specified
circumstances.
In short, the Legislature aimed at ensuring a severe, standardised,
and consistent response from the courts
to the commission of such
crimes unless there were, and could be seen to be, truly convincing
reasons for a different response.
…
The
specified sentences were not to be departed from lightly and for
flimsy reasons which could not withstand scrutiny.  Speculative

hypothesis favourable to the offender, maudlin sympathy, aversion to
imprisoning first offenders, personal doubt as to the efficacy
of the
policy implicit in the amending Legislation, and like considerations
were equally obviously not intended to qualify as substantial
and
compelling circumstances …  What they are apt to convey
is that the ultimate cumulative impact of those circumstances
must be
such as to justify a departure
”
.
In this matter, I could find no “
truly convincing reasons
”
to justify a departure.
2. In
S v Kwanape
2014(1) SACR 405 (SA) Petse JA, found that a
twelve year old girl who was abducted whilst playing with friends and
held overnight,
who suffered devastating consequences as a result of
the rape, received a sentence of life imprisonment, even though the
appellant
in that case was young and a first offender.  In
coming to this decision, the court of appeal had regard to
S v
Fraser
1987(2) SA 859(A) (in paragraph 16 – 22, on pages
410 – 412, of the judgment)  – where the following
was
stated:
“
it
is an idle exercise to match the colours of the case at hand and the
colours of other cases with the object at arriving at the
appropriate
sentence.  Ultimately each case must be decided in the light of
its peculiar facts
”.
Rape
is undeniably a despicable crime.  In
N
v T
1994(1) SA 862 (C) it was
described as “horrifying crime and is a cruel and selfish act
in which the aggressor treats with
utter contempt the dignity and
feeling of [v] “victim”.
3. In
S v Chapman
1997(2) SACR 3 (SCA)
[1997] ZASCA 45
;
(1997) (3) SA 341
the
court said it is “
a humiliating and degrading and brutal
invasion of the privacy, the dignity and the person of the victim
”.
Its gravity in this case is aggravated by the fact that the victim
was a twelve year old child.
4. In
S v Janson
1999(2) SACR 368(C) rape of a child was said
to be an appalling “
an appalling and perverse abuse of male
power
”.  The court went on to say:
“
It
is sadly to be expected that the young complainant in this case,
already burdened by a most unfortunate background … and
who
had, notwithstanding these misfortunes, performed reasonably well at
school, will now suffer the added psychological trauma
which resulted
in a marked change of attitude and of school performance.  The
community is entitled to demand that those who
perform such perverse
acts of terror, be adequately punished and that the punishment
reflect the social censure
.”
It
is utterly terrifying that we live in a society  where children
cannot play in the street in any safety; where children
are unable to
grow up in the kind of climate which they should be able to demand in
any decent society, namely in freedom and without
fear.  In
short, our children must be able to develop their lives in an
atmosphere  which behoves any society expires
to be an open and
democratic one based on freedom, dignity and equality, the very
touchstone of our Constitution.  Petse JA
went on to say in
paragraph 18:  “I holy align myself with these
sentiments.
4. In a similar vein
S v D
1995(1) SACR 259(A) underscored the
vulnerability of children and went on to say:
“
Children
are vulnerable to abuse, and the younger they are, the more
vulnerable they are.  They are usually abused by those
who think
they can get away with it, and all too often do. …
”
Appellant’s
conduct in my view was sufficiently reprehensible to fall within
the category of offences calling for a
sentence both reflecting the
courts disapproval and hopefully acting as a deterrent to others
minded to satisfy their carnal desires
with helpless children
.”
5. Petse JA, cited with approval, the decision of
S v De Beer
paragraph 18 – SCA Case No: 121/2004, 12 November 2004, where
the court said the following:
“
Rape
is a topic that abounds with myth and misconceptions.  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 victims the process of
investigation and prosecution is almost as dramatic
as the rape
itself
.”
It
was further submitted on behalf of the appellant that this was not
the worse rape imaginable.  Thus, concluded the argument,
that
consideration, viewed with other mitigating factors, justifies a
lesser sentence.  I do not agree.
5. In
S v Mahomotsa
2002(2) SACR 435 (SCA) [2002](3 ALL SA
534) at note 7 at paragraph 19 the court made plain that the fact
that more serious cases
than the one under consideration are
imaginable, is not decisive.  Mpati JA said:
“
Of
course, one must guard against the notion that because still more
serious cases than the one under consideration are imaginable,
it
must follow inexorably that something must be kept in reserve for
such cases and therefore that the sentence imposed in the
case at
hand should be correspondingly lighter than the severe sentences that
such hypothetical cases would merit.  There
is always an upper
limit in all sentencing jurisdictions, be it death, life or some
lengthy term of imprisonment, and there will
always be cases which,
although differing in their respective degrees of seriousness, none
the less all call for a maximum penalty
imposable. The fact that the
crimes under consideration are not all equally horrendous may not
matter if the least horrendous of
them is horrendous enough to
justify the imposition of the maximum penalty.
”
6. In
S v Matyityi
2011(1) SACR 40 (SCA) Ponnan JA at page 45
paragraph 10 stated the following:
“
But
with respect, to restrict the enquiry to permanent physical injuries,
as the learned judge appeared to have done, is to fundamentally

misconstrue the act of rape itself and its profound psychological,
emotional and symbolic significance for the victim.
”
At page 50 paragraph 19 the court went on to say:
“
I
cannot discern why the trial judge displayed such a marked reticent
to impose the prescribed minimum sentences.  The two
incidents
were five days apart. Sufficient time, one would have thought, for
pause and reflection.  Each was breathtakingly
brazen and
executed with a callous brutality.
”
At page 53 paragraph 23 the following was stated:
“
Despite
certain limited successes there has been no real let-up in the crime
pandemic that engulfed our country.  The situation
continues to
be alarming.  It follows that, to borrow Malgas, it still is “no
longer business as usual”.
And yet one notes all too
frequently a willing on the part of sentencing courts to deviate from
the minimum sentences prescribed
by the Legislature for the flimsiest
of reasons – reasons, as here, that do not survive scrutiny.
As Malgas makes claim,
courts have a duty, despite any personal
doubts about the efficacy of the policy or personal aversion to it,
to implement those
sentences.  Our courts derive their power
from the Constitution, and like other arms of state, owe their fealty
to it.
Our Constitutional order can hardly survive if courts
fail to properly patrol the boundaries of their own power by showing
due
difference to the legitimate domains of power of the other arms
of state.  Here Parliament has spoken.  It has ordained

minimum sentences for certain specified offences.  Courts are
obliged to impose those sentences unless there are truly convincing

reasons for departing from them.  Courts are not free to subvert
the will of the Legislature by resort to vague, ill- defined
concepts
such as “relative youthfulness” or other equally vague
and ill-founded hypothesis that appear to fit the particular

sentencing officers personal notion of fairness.  Predictable
outcomes, not outcomes based on the whim of an individual Judicial

Officer, is foundational to the rule of law which lies at the heart
of our constitutional order.
”
7.
The Director of Public Prosecutions,
Grahamstown v Peli
2018(2) SACR 1 SCA Hughes  AJA at page 5 paragraph 11 cited
with approval the decision in Hewitt (para 9 at 313 f-314, a) where

the court stated the following:
“
This
court pronounced that rape of a child was usually committed by those
perpetrators who believe that they can get away with it.
The
complainant in this instance is an innocent, defenceless and
vulnerable victim of the respondent’s despicable and cruel
act.
The respondent even in addition threatened and assaulted the
complainant to achieve his purpose.  The complainant will
have
to live with the emotional scars and stigma of having been humiliated
and violated for the rest of her life.  The curse
in our society
of rape, is considered by the courts, and society alike, as deserving
of severe punishment.  The rape of young
children is considered
as being a very serious offence, especially so if the child is under
the age of sixteen. …
I fail to comprehend the High
Court’s characterisation of the rape of the six year old child
as not being severe so as to
induce a sense of shock. …
The court said that the rape of a child is more horrendous than other
forms of rape.
In conclusion, the High Court committed a
serious misdirection when it unjustifiably decided that the general
or neutral factors
advanced in mitigation constituted substantial and
compelling circumstances sufficient to impose a lesser sentence than
the prescribed
sentence.
”
[82]
I am of the respectful view, that
magistrate exercised his discretion properly and judicially.
Furthermore, the sentence of life,
imposed by the magistrate, does
not amount to a shocking injustice, warranting a departure from the
prescribed sentence.
[83]
For these reasons I concur in the order
made by Nuku J dismissing the appeal against conviction and sentence.
T.D. PAPIER
Judge of the High Court
[1]
When the defence attorney during her address on
sentence referred to the appellant’s previous conviction for
statutory rape,
the magistrate interrupted with the comment:
‘
Yes, that’s the problem that I
have here, it is the very same complainant and very clear from the
history that it was a
case of a prosecutor not having done his or
her work properly
’.  (My
translation from the Afrikaans original.)
[2]
Compare, for example, the Supreme Court of Appeal’s
description of the sentences of seven years’ imprisonment for

each count of rape imposed in
S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA), at para 3, as ‘
undoubtedly
severe
’.  It was noted in
S
v Vilakazi
[2008]
ZASCA 87
;
[2008] 4 All SA 396
(SCA);
2009 (1) SACR 552
;
2012 (6) SA
353
, at para. 51, that Parliament was
advised before the
Criminal Law Amendment Act 105 of 1997
was
adopted that ‘
for rape “generally
a sentence of three or four years would be imposed, or six to ten
years in very serious cases”
’.
[3]
S v Vilakazi
supra, at para. 21, and see
also
S v Mudau
(Reported in the SACR
sub
nom.
S
v SMM
)
[2013]
ZASCA 56
;
2013 (2) SACR 292
(SCA), at para. 19.
[4]
Cf.
S
v Mudau
supra, at
para. 14.
[5]
S v Vilakazi
supra, at para. 9-11.
[6]
S v Vilakazi
supra, at para. 12-13.
[7]
S v Vilakazi
supra, at para 14-19.
[8]
S v Malgas
supra at para. 25.
[9]
At para. 40.
[10]
The SCA has not consistently
acknowledged that an injustice may be visited on an accused by the
imposition of a prescribed sentence
that is merely disproportionate
rather than ‘grossly disproportionate’; see e.g.
Ngcobo v S
2018
ZASCA 06
(23 February 2018), at para. 20.
[11]
At
para. 18.
[12]
At para. 17.
[13]
De Beer v S
supra, at para. 17-19.
[14]
S v Malgas
supra, at para. 23.
[15]
In
S
v Jordaan and Others
[2018] ZAWCHC 10
(7 February 2018).
[16]
At para. 13.
[17]
See
Investigating
Directorate: Serious Economic Offences and others v Hyundai Motor
Distributors (Pty) Ltd and others: In re Hyundai
Motor Distributors
(Pty) Ltd and others v Smit NO and others
[2000] ZACC 12
;
2001 (1) SA 545
(CC), at para. 22.
[18]
At para. 16.
[19]
Compare, for example, the majority
and minority judgments in
S
v Nkomo
[2007] 3
All SA 596
(SCA); S
v
Opperman and Another
2010 (2) SACR 248
(SCA);
[2010] 4 All SA 267
; and in
S
v Monageng
[2009]
1 All SA 237
(SCA).  See also the examples provided in
S
v Mabaso
2014 (1)
SACR 299
(KZP), at para 13 ff.
[20]
S v Fortune
2014
2 SACR 178
(WCC), at para. 7.
[21]
S v Matyityi
[2010] ZASCA 127;
2011
(1) SACR 40 (SCA).
[22]
Op. cit. at
§
3.5.4.6
(4) (p.82).
[23]
Also published on SAFLII as
Rasirubu
v S
[2013] ZASCA 140.
[24]
Sec 14(3)
–
Except
where it is in terms of any law required or permitted to be
otherwise constituted, a court of a Division must be constituted

before two judges for the hearing of any civil or criminal appeal:
Provided that the Judge President or, in the absence of both
the
Judge President and the Deputy Judge President, the senior available
judge, may in the event of the judges hearing such appeal
not being
in agreement, at any time before a judgement is handed down in such
appeal, direct that a third judge be added to hear
that appeal
.
[25]
See
S
v Pillay
[1977] 4
All SA 713
(A) 717;
1977 (4) SA 531
(A) 535E-G, where the court said
the following with regard to an appeal against sentence:
“
As
the essential enquiry in an appeal against sentence, however, is not
whether the sentence was right or wrong, but whether the
Court in
imposing it exercised its discretion properly or judicially, a mere
misdirection is not by itself sufficient to entitle
the Appeal Court
to interfere with the sentence; it must be of such a nature, degree
or seriousness that it shows directly or
inferentially, that the
Court did not exercise its discretion at all or exercised it
improperly or unreasonably. Such a misdirection
is usually and
conveniently termed one that vitiates the Court’s decision on
sentence.
”
See also
S v Rabie
[1975] 4 All SA 723
(A) 724;
1975 (1) SA 855
(A) 857E-F I this
regard.