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[2016] ZASCA 123
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D v S (89/16) [2016] ZASCA 123 (22 September 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 89/16
Not
reportable
In
the matter between:
M.
D.
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
D
v The State
(89/16)
[2016] ZASCA 123
(22 September 2016)
Coram
:
Maya DP, Tshiqi, Theron and Seriti
JJA and Dlodlo AJA
Heard:
18 August 2016
Delivered:
22 September 2016
Summary:
Criminal Law –
Rape of daughter by biological father on two separate occasions on
the same day – daughter falling pregnant
– charged on two
counts of rape in terms of
section 51
of the
Criminal Law Amendment
Act 105 of 1997
– entered plea of guilty in terms of
section
112(
2) of the
Criminal Procedure Act 51 of 1977
– convicted on
two counts of rape – defect in charge sheet did not render the
proceedings invalid – sentence
of life imprisonment
appropriate.
ORDER
On
appeal from:
KwaZulu-Natal
Division of the High Court, Pietermaritzburg (Nicholson, Bolton and
Koen JJ, sitting as a court of appeal):
The
appeal is dismissed.
JUDGMENT
Dlodlo
AJA (Maya DP, Tshiqi, Theron and Seriti JJA concurring):
[1]
On 22 October 2004 the appellant was charged on two counts of rape in
the Stanger Regional Court. The charge sheet stated
that the
provisions of
section 51
the Criminal Law Amendment Act 105 of 1997
(the Act) were applicable to both counts. It, however, did not state
which provision
of s 51 was applicable. The appellant pleaded guilty
to both charges. He was convicted. The matter was referred to the
KwaZulu-Natal
Local Division, Durban, for sentence in terms of s
52(1)(a) of the Act. The high court, having satisfied itself that the
appellant
was correctly convicted and that the proceedings before the
regional court were in accordance with justice, took count 1 and
count
2 together for purposes of sentence and imposed a sentence of
life imprisonment. On 14 November 2007 the high court granted leave
to appeal against sentence only to the full court, KwaZulu-Natal,
Pietermaritzburg. On 5 November 2009 the appeal was dismissed.
The
appellant now appeals against sentence, with the special leave of
this court.
[2]
In view of the fact that the matter was disposed of on a basis of a
plea of guilty, facts surrounding the commission of these
offences
are understandably scanty. However, as gathered from the statement in
terms of s 112(2) of the Criminal Procedure Act
51 of 1977 (CPA) the
following transpired. The appellant is the biological father of the
complainant. She was then aged 16 years.
On 2 December 2001 the
appellant bought a bottle of wine and went to Stanger beach together
with the complainant in order ‘to
cool ourselves off as it was
very hot on that day.’ The wine bought was consumed at the
beach. The appellant then started
touching and kissing the
complainant who pushed him away. The appellant managed ‘to grab
her by the arms and pressed her
onto the sand, took off her
underwear, opened her legs apart and inserted’ his penis in her
vagina. After he raped her, they
travelled home together in his car.
On arrival, he ‘instructed’ the complainant to come to
his room where he again
undressed her and had sexual intercourse with
her. The appellant stated categorically that the complainant had ‘not
consented
to have sexual intercourse with me but had no choice as I
had threatened her.’ The complainant fell pregnant as a result
of the rape and subsequently gave birth to a child whom the appellant
supports.
[3]
In this Court the sentence was attacked on two grounds. Firstly, that
it was disproportionate to the circumstances of the offence,
the
interests of society and the personal circumstances of the appellant.
Secondly, it was contended that the high court should
have found
substantial and compelling circumstances to have existed justifying
it to deviate from the prescribed sentence. It was
also contended
that the high court misdirected itself by sentencing the appellant to
life imprisonment in terms of section 51(1),
read with Part 1 of
Schedule 2 of the Act, since there were no allegations in the charge
sheet which indicated which particular
provision of s 51 of the Act
was being invoked.
[4]
The purpose of the act is described in
S
v Malgas
[2001]
ZASCA 30
;
2001 (1) SACR 469
(SCA) para 7 as a measure aimed at
dealing with an ‘alarming burgeoning in the commission of
crimes of the kind specified
resulting in the government, the police,
prosecutors and the courts constantly being exhorted to use their
best efforts to stem
the tide of criminality which threatened and
continues to threaten to engulf society’. In
Malgas
it was made clear that the court must
be mindful of the fact that the legislature ordained life
imprisonment or the particular prescribed
period of imprisonment as
the sentence which should be imposed. It was also added that the
approach proposed did not mean that
all other considerations were to
be ignored, but that specified sentences were not to be departed from
lightly and for flimsy reasons.
See also
S
v
Matyityi
[2010] ZASCA 127
;
2011 (1) SACR 40
(SCA) para 23.
[5]
Section 51(1) of the Act reads as follows:
‘
Discretionary
minimum sentences for certain serious offences
(1)
Notwithstanding any other law, but subject to subsections (3) and
(6), a regional court or a High Court shall sentence a person
it has
convicted of an offence referred to in Part I of Schedule 2 to
imprisonment for life.’
Part
I of Schedule 2 of the Act reads as follows:
‘
Rape
as contemplated in section 3 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007 –
(a)
when committed –
(i)
in circumstances where the victim was raped more than once whether by
the accused or by any co-perpetrator or accomplice . .
. ’
[6]
Section 51(1) of the Act read with Part 1 of Schedule 2 prescribes
the imposition of life imprisonment in circumstances where
the
complainant was raped more than once, whether by the accused or by
any co-perpetrator or an accomplice. The offence of rape
does not
fall within Part II of Schedule 2 of the Act. It was common cause
that the complainant was raped more than once by the
appellant. The
question that arises is whether the defect in the charge sheet
rendered the proceedings invalid.
[7]
In
S v Legoa
[2002] ZASCA 122
;
2003 (1) SACR 13
(SCA) Cameron
JA stated that:
‘
[20]
Under the common law it was therefore “desirable” that
the charge-sheet should set out
the facts the State intended to prove
in order to bring the accused within an enhanced sentencing
jurisdiction. It was not, however,
essential. The Constitutional
Court has emphasised that under the new constitutional dispensation,
the criterion for a just criminal
trial is “a concept of
substantive fairness which is not to be equated with what might have
passed muster in our criminal
courts before the Constitution of the
Republic of South Africa Act 108 of 1996 came into force”.
The Bill
of Rights specifies that every accused has a right to a fair trial.
This right, the Constitutional Court has said, is
broader than the
specific rights set out in the sub-sections of the Bill of Rights’
criminal trial provision. One of those
specific rights is “to
be informed of the charge with sufficient detail to answer it”.
What the ability to “answer”
a charge encompasses this
case does not require us to determine. But under the constitutional
dispensation it can certainly be
no less desirable than under the
common law that the facts the State intends to prove to increase
sentencing jurisdiction under
the 1997 statute should be clearly set
out in the charge-sheet.’
[8]
In
S v Ndlovu
[2002] ZASCA 144
;
2003 (1) SACR 331
(SCA) this Court held that where the state intends to rely upon the
sentencing regime created by the Act, a fair trial will generally
demand that its intention be pertinently brought to the attention of
the accused at the outset of the trial, if not in the charge-sheet
then in some other form, so that the accused is placed in a position
to properly appreciate in good time the charge that he or
she faces
as well as its possible consequences. According to this authority
what will at least be required is that the accused
be given
sufficient notice of the state’s intention to enable the
accused to properly conduct his or her defence.
’
[9]
In
S v Kolea
[2012] ZASCA 199
;
2013 (1) SACR 409
(SCA) the
court held at para 18 that:
‘
The
fact that the charge sheet had a defect which was never rectified in
terms of Section 86 (1) . . . did not of its own render
the
proceedings invalid.’
The
Court held further at paras 17 and 18 that the error in the charge
sheet, by referring to Section 51(2) instead of 51(1) of
the Act, did
not render the proceedings invalid as far as the imposition of the
life sentence was concerned. Based on these authorities,
although the
charge sheet did not specifically state that the applicable
provisions were s 51(1) in this matter, that on its own
did not
render the proceedings in the present matter invalid. It sufficed
that a reference to section 51 of the Act appeared on
the charge
sheet. The record of the proceedings also reveals that before the
charges were put to the appellant, the State informed
the court that
it was relying on section 51 read with Part I of Schedule 2 of
the Act. The magistrate enquired from the defence
if the fact that
the State relies on s 51 and schedule 2 of the Act in circumstances
where the victim was raped more than once,
and the fact that the
matter shall be referred to the high court for sentencing, were
explained to the appellant. The defence confirmed
that the appellant
was fully aware of all this as the attorney had explained it to him.
The appellant had been sufficiently warned
of the charges he faced.
This clearly satisfies the required standard of sufficient detail
contained in Section 35(3)(a) of the
Constitution.
[10]
It remains to consider whether substantial and compelling
circumstances were established. It was submitted on behalf of the
appellant that the following factors were not accorded due weight:
(a) The appellant was 40 years old; (b) He was married and was
father
to 5 children; (c) He was a first offender; (d) He drank alcohol
prior to the commission of the offences; (e) He pleaded
guilty.
[11]
In
Malgas
this court pointed out that all factors
traditionally taken into account in sentencing continue to play a
role. The court stated
further that the ultimate impact of all the
circumstances relevant to sentencing must be measured against the
‘composite
yardstick’ (‘substantial and
compelling’) and must be such as cumulatively justify a
departure from the sentence
prescribed. It was explained in para 22
how a court in a particular case, can nevertheless deviate from the
imposition of a prescribed
sentence. Marais JA said:
‘
The
greater the sense of unease a court feels about the imposition of a
prescribed sentence, the greater its anxiety will be that
it may be
perpetrating an injustice. Once a court reaches the point where
unease has hardened into a conviction that an injustice
will be done,
that can only be because it is satisfied that the circumstances of
the particular case render the prescribed sentence
unjust or, as some
might prefer to put it, disproportionate to the crime, the criminal
and the legitimate needs of society. If
that is the result of a
consideration of circumstances the court is entitled to characterise
them as substantial and compelling
and such as to justify the
imposition of a lesser sentence.
’
The
appellant’s personal circumstances do not constitute
substantial and compelling circumstances.
[12]
Having regard to the facts of this matter, there is no substance to
the submission that because the appellant is a first offender
and
that he pleaded guilty, those are factors compelling to the
conclusion that there were substantial and compelling circumstances.
A plea of guilty is not necessarily indicative of remorse. His plea
of guilty could have been motivated by the realisation that
there was
overwhelming evidence against him. That it was him who impregnated
the complainant could easily be proved through DNA
testing. In
Matyityi
this Court dealt with the question of
whether a plea of guilty translates to genuine remorse. It held that
whether the offender
is sincerely remorseful and not simply feeling
sorry for himself at having been caught, is a factual question. This
court stated
that ‘It is to the surrounding actions of the
accused rather than what he says in court that one should rather
look.’
At para 13 the Court explained that in order for the
remorse to be a valid consideration, ‘the penitence must be
sincere
and the accused must take the court fully into his or her
confidence. Until and unless that happens, the genuineness of the
contrition
alleged to exist cannot be determined’.
Matyityi
makes it clear that before a court
can find that an accused person is genuinely remorseful, the court
needs to have a proper appreciation
of what motivated the accused to
commit the deed and what has since provoked his or her change of
heart. And in view of the seriousness
of the offence and the fact
that he raped and impregnated his own daughter, the mere fact that
the appellant is a first offender
does not constitute sufficient
basis to deviate from minimum sentence. The mere fact that an accused
person is a first offender,
does not constitute sufficient basis for
a finding that he is a good candidate for rehabilitation.
[13]
It would be wrong to lose sight of the fact that the appellant failed
to protect the complainant as her father. He turned into
a molester
himself. The offences he committed totally destroyed the natural
father daughter relationship. In fact the family at
large must have
been engulfed in a shadow of shame. The complainant is now shamefully
called mother of a child fathered by her
own biological father. The
psychological and emotional impact are often brought to light by the
probation officer’s report
or any other pre-sentence report.
This is of course lacking in the present matter. But the naked truth
is that being raped and
impregnated by one’s own biological
father hardly needs investigation by probation officers in order to
conclude that it
is reprehensible and serious and must have caused
the complainant psychological and emotional trauma.
[14]
A sentence must be tailored to the seriousness of the crime committed
and one expressing the natural indignation of ordinary
citizens would
compensate for the seriousness of the crime committed. An appropriate
punishment is one which serves to protect
not only appellant’s
female members of the family but other similarly vulnerable members
of society. The fact that the complainant
became pregnant as a direct
result of the rape of which the appellant is guilty, also indicates
that the latter probably did not
even use a condom. This is an
aggravating factor viewed from the perspective of the scourge of the
HIV and Aids pandemic with which
the whole world is grappling
presently.
[15]
Rape committed by close male relatives against victims related to
them is prevalent. See, for an example, cases such as
S v Sikhipha
[2006] ZASCA 73
;
2006 (2) SACR 439
(SCA);
S v Abrahams
2002
(1) SACR 116
(SCA); and
S v PB
2013 (2) SACR 533
(SCA). Courts
are under a duty to punish such that this new tendency is contained.
It is despicable behaviour that fathers totally
turn their backs on
what is their natural duty to ensure the safety of their daughters,
and themselves pose a danger towards their
own vulnerable children.
Dealing with a similar incident in
S v Abrahams
, Cameron JA
stated the following:
[17]
‘
Of
all grievous violations of the family bond the case manifests, this
is the most complex, since a parent, including a father,
is indeed in
a position of authority and command over a daughter. But it is a
position to be exercised with reverence, in a daughter’s
best
interest, and for her flowering as a human being. For a father to
abuse that position to obtain forced sexual access to his
daughter’s
body constitutes a deflowering in the most grievous and brutal
sense.
’
[b]
‘
Second,
rape within the family has its own peculiarly reprehensible features,
none of which subordinate it in the scale of abhorrence
of other
crimes.’
On
the effect of incestuous rape the judge made the following important
observation:
[c]
‘Third and lastly, the fact that family rape generally also
involves incest (I exclude foster and step-parents, and rapists
further removed in family lineage from their victims) grievously
complicates its damaging effects. At common law incest is still
a
crime. Deep social and religious inhibitions surround it and stigma
attends it. What is grievous about incestuous rape is that
it
exploits and perverts the very bonds of love and trust that the
family relation is meant to nurture
.’
See
also in this regard
Kwinda
v The State
case
number 076/14
[2014] ZASCA 136
(25 September 2014);
S
v MDT
[2014] ZASCA
15
;
2014 (2) SACR 630
(SCA). Child rape is a scourge that shames the
nation.
[16]
There is nothing out of the ordinary emanating from the personal
circumstances of the appellant. It is an overstatement
to say
that the appellant was under the influence of alcohol. The appellant
did not disclose this in his statement in terms of
Section 112 (2) of
the CPA. There is simply no evidence that the appellant was
intoxicated or under the influence of alcohol to
such an extent that
it impaired his mental faculties and diminished his moral
blameworthiness. I am not in the least persuaded
that alcohol played
a role at all in the commission of these offences.
[17]
The high court correctly found that there were no substantial and
compelling circumstances that justified a deviation from
the
prescribed sentence. In the circumstances, I would not interfere with
the sentence imposed. The following order is accordingly
made:
The appeal is dismissed.
________________________
D
DLODLO
ACTING
JUDGE OF APPEAL
APPEARANCES:
For
Appellant:
P Marimothu
Instructed
by:
Durban Justice Centre, Durban
Bloemfontein
Justice Centre, Bloemfontein
For
Respondent:
K Essack
Instructed
by:
The Director of Public Prosecutions, Pietermaritzburg
The
Director of Public Prosecutions.
Bloemfontein