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[2021] ZAWCHC 108
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Phaliso v S (A89/2021) [2021] ZAWCHC 108 (2 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case number:
A89/2021
In
the matter between:
LUVO
PHALISO
Appellant
and
THE
STATE
Respondent
JUDGMENT
(Delivered
by email to the parties’ legal representatives and by release
to SAFLII.
The judgment shall be deemed to
have been handed down at 10h00 on 2 June 2021)
NEL
AJ:
1.
On 7 September 2020 the appellant, who
pleaded not guilty, was convicted as charged in the Strand regional
court on one count each
of rape and kidnapping. He was
sentenced on 23 November 2020 to life imprisonment in respect of the
count of rape and 10
years imprisonment, to run concurrently with the
aforementioned life sentence, in respect of the count of kidnapping.
2.
Given that the appellant was sentenced to
imprisonment for life by the trial court under section 51(1) of the
Criminal Law Amendment
Act 105 of 1997 (“the Act”), the
appellant noted this appeal against his conviction and sentence
without having to
apply for leave to do so, as he was entitled to do
in terms of section 309(1)(a) of the Criminal Procedure Act 51 of
1977 (“the
CPA”).
3.
The appellant however abandoned his appeal
in respect of his conviction and only pursues the appeal against his
sentence.
4.
On 30 April 2017 the complainant had left
Umtata tavern in Lwandela, where she was with her friends, and went
to a Somalian shop
in order to purchase chewing gum. There she
encountered the appellant who grabbed her on her wrist with one hand
and also
pulled her by the front of her clothing with the other
hand. A struggle ensued and the appellant dragged the
complainant
away from the street towards a passage which was
approximately 10 to 12 metres away. During this struggle the
appellant slapped
the complainant three or four times in her face.
She unsuccessfully attempted to escape from him. He told her to
undress
herself and when she refused to do so, the appellant took a
knife out of his pants pocket and stabbed her on her lower left arm.
The struggle continued and the appellant then drew a firearm and
placed it on the complainant’s forehead. He thereafter
hit her on the forehead with the firearm and proceeded to undress
her, took off her underwear and told her to bend forward and
he raped
her, without a condom, by placing his penis into her vagina from
behind. The accused thereafter got dressed and
told the
complainant to dress herself. He instructed her to go with him
to a friend’s house, approximately 5 metres
away, in order for
her to wash off. The friend was however not at home. The
appellant then told the complainant that he was
going to kill her as
he was afraid that she would speak out about the rape and he did not
want to find himself in prison.
The complainant then begged and
pleaded with the appellant and they walked to a street where she saw
a friend outside of a house.
She ran into the house and
informed them to call the police. The brutality of this rape
was also confirmed by Dr. Adelle
Sterley who examined the complainant
at Somerset West Hospital. She confirmed that the complainant
had a 2cm x 2cm abrasion
on her forehead, a swollen left cheek, a
swollen bottom lip, and her left arm had two jagged lacerations one
of 0.5cm and another
of 1cm. The complainant moreover had
various vaginal tears.
5.
Regarding sentence, in the present matter
the provisions of sections 51(1) read with 51(3) of the the Act are
applicable.
In terms of Schedule 2 Part 1 to the Act the rape
count attracts the minimum sentence of life imprisonment as it was
committed
whilst involving the infliction of grievous bodily harm as
set out above. The court may deviate from such sentence
if it finds that substantial and compelling circumstances exist which
justify the imposition of a lesser sentence.
6.
In the present matter, after considering
the evidence submitted in mitigation, the trial court found that
there were no substantial
and compelling circumstances present
justifying a deviation from the prescribed minimum sentence and
imposed a term of life imprisonment
in respect of the charge of rape.
7.
In
S v Malgas
2001 (1) SACR 469
(SCA) at para [22] to [25] the court set out the
approach to be taken in assessing the existence of substantial and
compelling
circumstances for the purposes of section 51 of the Act.
The judgment 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
individualized response to sentencing a particular offender
has not
been dispensed with by the Act. Accordingly, if a court is
satisfied for objectively convincing reasons that the
circumstances
of a particular case render the prescribed sentence unjust, that is
disproportionate to the crime, the offender and
the legitimate needs
of society, it is entitled to characterize them as substantial and
compelling. This has subsequently
been referred to as the
“determinative test”.
8.
The Constitutional Court in
S
v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC) at para
[40]
approved the approach set out in Malgas as “undoubtedly
correct”.
9.
In
S v
Vilakazi
2009 (1) SACR 552
(SCA) the
court at para [18] stated:
It is plain from the
determinative test laid down by Malgas, consistent with what was said
throughout the judgment, and consistent
with what was said by the
Constitutional Court in Dodo, that a prescribed sentence cannot be
assumed a priori to be proportionate
in a particular case.
It cannot even be assumed a priori that the sentence is
constitutionally permitted. Whether
the prescribed sentence is
indeed proportionate, and thus capable of being imposed, is a matter
to be determined upon a consideration
of the circumstances of the
particular case. It ought to be apparent that when the matter
is approached in that way it might
turn out that the prescribed
sentence is seldom imposed in cases that fall within the specified
category. If that occurs,
it will be because the prescribed
sentence is seldom proportionate to the offence. For the
essence of Malgas and Dodo is
that disproportionate sentences are not
to be imposed and that courts are not vehicles for injustice.
10.
The court emphasized that rape is a
repulsive crime, humiliating, degrading and brutally invasive of the
privacy, dignity and person
of the victim, but continued to say at
para [3]:
But the Constitutional Court
reminded us in S v Dodo 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”.
11.
The appeal court’s judgment in
S
v SMM
2013 (2) SACR 292
(SCA) is also
instructive. I thus quote extensively from that judgment as
follows:
[14]
Our country is plainly facing a crisis of epidemic proportions
in
respect of rape, particularly of young children. The rape statistics
induce a sense of shock and disbelief. The concomitant
violence in
many rape incidents engenders resentment, anger and outrage.
Government has introduced various programmes to stem the
tide, but
the sexual abuse of particularly women and children continue
unabated. In S v RO, I referred to this extremely worrying
social malaise, to the latest statistics at that time in respect of
the sexual abuse of children and also to the disturbingly increasing
phenomenon of sexual abuse within a family context.
If
anything, the picture looks even gloomier now, three years down the
line. The public is rightly outraged by this rampant scourge.
There
is consequently increasing pressure on our courts to impose harsher
sentences primarily, as far as the public is concerned,
to exact
retribution and to deter further criminal conduct. It is trite that
retribution is but one of the objectives of sentencing.
It is also
trite that in certain cases retribution will play a more prominent
role than the other sentencing objectives. But one
cannot only
sentence to satisfy public demand for revenge – the other
sentencing objectives, including rehabilitation, can
never be
discarded altogether, in order to attain a balanced, effective
sentence. The much quoted Zinn dictum remains
the leading
authority on the topic. Rumpff JA’s well-known reference to the
triad of factors warranting consideration in
sentencing, namely the
offender, the crime and the interests of society, epitomises the very
essence of a balanced, effective sentence
which meets all the
sentencing objectives…
[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 inflicted 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 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 of 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.
[19]
Life imprisonment is the most severe sentence which a court can
impose. It endures for
the length of the natural life of the
offender, although release is nonetheless provided for in the
Correctional Services Act 111 of 1998
. Whether it is an
appropriate sentence, particularly in respect of its proportionality
to the particular circumstances of
a case, requires careful
consideration. A minimum sentence prescribed by law which, in
the circumstances of a particular
case, would be unjustly
disproportionate to the offence, to the offender and the interests of
society, would justify the imposition
of a lesser sentence than the
one prescribed by law. As I will presently show, the instant
case falls into this category.
This is evident from the
approach adopted by this court to sentencing in cases of this kind.
12.
In
S v Calvin
2014 JDR 2020 (SCA) the appellant, a 20 year old first offender who
had been in custody awaiting trial for seven months, was convicted
of
the rape of a six year old girl. He offered her sweets and
chips when she was on her way from school. After she
refused
them, the appellant grabbed her and dragged her into a nearby orchard
where he undressed and raped her. Her cries
were overheard by a
young man and when the appellant saw him he stopped raping the
complainant and left. He handed himself
over to the police the
next day when he heard that they were looking for him. He was
sentenced to life imprisonment.
13.
The appeal court, in setting aside the life
imprisonment and replacing it with one of 20 years imprisonment,
stated:
[17]
The rape of a girl of six years is always a very serious crime…
It is fortuitous
that the rape was interrupted otherwise her injuries
might have been much more serious and the psychological harm might
have had
a more severe impact if the attack was prolonged…
[20]
The appellant is considered to be a first offender and was in custody
for seven months before
being sentenced. There was no gratuitous
violence in addition to the rape. The aggravating factors that
are taken into account
are the age of the complainant, the fact that
the appellant tried to entice her by offering her sweets and chips
and when that
did not work, he grabbed and dragged her into the
orchard whereupon he raped her. It must have been a terrifying
experience
as is evident from her screams and the fact that the
complainant distrusted the appellant even before he raped her.
The appellant
violated a young innocent girl and invaded her person
without regard to her privacy, dignity and bodily integrity.
[21]
However, it should be remembered that “…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”.
I am of the view that a severe
sentence is appropriate, taking into consideration all of the
circumstances of the offence. But
the youthfulness of the appellant
as a first offender, the time he has spent in custody prior to being
sentenced and the possibility
of rehabilitation are of paramount
importance in assessing the proportionality of the sentence to the
offence.
[22]
Life imprisonment in my view would be disproportionately harsh in the
circumstances.
14.
Before
returning to the facts of the present matter, I am in agreement with
the remarks expressed by Cloete J in an unreported judgment,
delivered by a full bench in this division,
[1]
that it cannot be sufficiently underscored that rape is a
reprehensible crime which shows no sign of abating in this country.
Its seriousness and the total disregard displayed by perpetrators for
the constitutionally entrenched rights of their victims must
be given
their full weight in every sentencing procedure.
15.
However, in
S
v Motloung
2016 (2) SACR 243
(SCA)
Victor AJA held at para [7] and [8] that an appellate court may
interfere with the exercise by the sentencing court of its
discretion, even in the absence of a material misdirection, if the
sentence is disproportionate to the crime.
16.
In the present matter, one witness was
called by the State during sentencing and that was Mr. Smith, who was
the probation officer.
No witnesses were called on behalf of
the appellant.
17.
Mr. Smith’s evidence was that the
appellant had admitted raping the complainant on two occasions.
This was conceded
by the appellant’s legal representative
during argument. Mr. Smith’s evidence was further
that the appellant
showed no remorse and interacted with him in a
nonchalant manner. Mr. Smith also testified that the incident has had
a major impact
on the complainant who had stated that she was
contemplating suicide “if the system failed her”.
18.
The mitigating factors presented on behalf
of the appellant are that he is the father of two minor children,
although both reside
with each of their biological mothers, he is a
first offender, and was only 21 years of age at the time that the
offence was committed,
and he had been in custody for approximately 3
years when sentencing was argued.
19.
The aggravating factors on the other hand
are the appellant’s lack of remorse, that he was not gainfully
employed at the time
of his arrest, although he is a first offender,
he openly gave evidence about his unlawful possession of a firearm on
the day in
question albeit that he was not charged with such an
offence. Furthermore, the appellant had kidnapped the
complainant prior
to raping her and made use of extraneous violence
whilst committing the offences. The trial court therefore correctly
found that
this was a brutal rape. It has also had a
significant negative impact on the complainant in that she is now
fearful of men
and has stated that she would contemplate suicide “if
the system failed her”. The appellant, moreover, despite
later admitting to Mr. Smith that he had raped the complainant, put
her through the unnecessary secondary trauma of a trial in
which she
was portrayed as being a liar.
20.
However, when considering an appropriate
sentence one cannot lose sight of the fact that the appellant was
only 21 years of age
at the time that he committed the offence, he is
first offender, and a father of two minors. Despite not showing
remorse,
he did eventually admit to raping the complainant.
Moreover, he had spent almost 3 years in prison at the time of his
sentencing.
It is trite that it is appropriate to bring the
period of imprisonment spent awaiting trial into account in imposing
a custodial
sentence. See in this regard the matter of
Radebe
and Director of Public Prosecutions North Gauteng, Pretoria v Gcwala
and Others
2014 (2) SACR 337
(SCA) at
para [15] to [19] and
S v Ngcobo
2018 (1) SACR (SCA) 479 at para [21]. The appellant, given his
relative youthfulness, is capable of being rehabilitated back
into
society.
21.
Having regard to the decisions of the
Constitutional Court and Supreme Court of Appeal to which I have
referred (and by which we
are, of course, bound) it is my view that
these mitigating factors constitute substantial and compelling
circumstances to permit
a deviation from the prescribed minimum
sentence.
22.
A substantial sentence of 25 years
imprisonment seems to me to be sufficient to bring home the gravity
of his offence and to exact
sufficient retribution for his crime.
To make him pay for it with the remainder of his life would seem to
me to be grossly
disproportionate.
23.
In the result, I propose the following
order:
i.
The appeal against the sentence of life
imprisonment in respect of count 1 is upheld.
ii.
The sentence imposed upon the appellant on
23 November 2020 in respect of count 1 is set aside and replaced with
the following:
“
The
accused is sentenced to 25 years imprisonment in respect of count 1,
antedated, in terms of
section 282
of the
Criminal Procedure Act, to
23 November 2020
”.
NEL AJ
HENNEY
J:
I
agree and it is so ordered.
HENNEY J
[1]
See
Mtotywa
v The State
(WCHC, case no: A423/2016) Cloete J (Bozalek and Binns-Ward JJ
concurring) delivered on 8 August 2017 at para [35].