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[2017] ZAGPJHC 203
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Naidoo v S (A195/2016) [2017] ZAGPJHC 203 (3 August 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: A195/2016
Not
reportable
Not
of interest to other judges
In
the appeal of:
NAIDOO,
NIVIAN
Appellant
and
THE
STATE
Respondent
Coram:
WEPENER J et VUMA AJ
Heard:
3 August 2017
Delivered:
3 August 2017
Summary:
Appeal: Sentence. The test on appeal regarding the imposition of
sentence. A court of appeal will not lightly interfere
sentence
imposed by a court of first instance and so avoid eroding the
discretion exercised by the court of first instance.
JUDGMENT
WEPENER
J:
[1]
The appellant petitioned for leave to appeal against his conviction
and sentence on a charge of contravening s 3 of the Criminal
Law
Sexual Offences and Related Matters Amendment Act
[1]
for raping the complainant, a fifteen year old person. Due to the
latter fact, the provisions of s 51(1) of the Criminal Law Amendment
Act 105 of 1997 (the Minimum Sentence Regime Act0 became applicable.
Upon conviction the appellant stood to receive life imprisonment
unless the court found substantial and compelling circumstances to
exist which could allow for a deviation from the minimum sentence
of
life imprisonment. This, the court a quo did find to exist and
imposed a lesser sentence of fifteen years imprisonment.
[2]
The appellant was granted leave to appeal the sentence imposed by the
regional magistrate pursuant to a petition in terms of
s 309C of the
Criminal Procedure Act.
[2]
Leave
to appeal his conviction was refused, both by the High Court pursuant
to the petition and the Supreme Court of Appeal, pursuant
to an
application for special leave to appeal.
[3]
Thus, the only issue before this court is the question of sentence
imposed on the appellant. Much is said in the heads of argument
about
the age of the complainant ie that the appellant was unaware that she
was under the age of sixteen years. But this is not
an issue before
this court. The appellant has been convicted of the rape of the
complainant, who at the time, was under the age
of sixteen years.
That factual finding forms part of the conviction of the appellant
and triggers the imposition of a minimum sentence,
save if
substantial and compelling circumstances are found to have existed.
The argument surrounding the appellant’s knowledge
of the age
of the complainant can consequently only be canvassed during
proceedings regarding conviction, the latter which includes
the fact
that the complainant was under sixteen years of age. In the
circumstances, the argument that the State did not prove that
the
appellant was aware that the complainant was under the age of sixteen
years is misplaced in proceedings regarding sentence.
[4]
There is no cross-appeal in this matter and I can see no reason to
disturb the magistrate’s finding that substantial and
compelling reasons existed regarding the imposition of sentence. No
argument against that finding was advanced. The submission
by counsel
for the appellant that the complainant’s previous sexual
relationship is relevant in support of the argument that
the
appellant believed that she was older, must also fail for the same
reason. In any event, s 51(3)(aA)(i) of the Minimum Sentence
Regime
Act
[3]
specifically excludes
previous sexual history as a substantial and compelling circumstance
justifying a lesser sentence. The gravamen
of the appellant’s
argument is the fact that he did not have knowledge of her being
under the age of sixteen. This fact,
as I have indicated, cannot be
raised in proceedings regarding sentence when the conviction is based
on the very fact that the
complainant was indeed under that age of
sixteen years. It must, consequently, be accepted that the conviction
stands and that
the appellant’s knowledge of the age of the
complainant is implicit in the conviction. In these circumstances
reliance on
the absence of knowledge for purposes of sentence is an
anomaly that cannot be countenanced.
[5]
The only question then is whether, by imposing a sentence of fifteen
years imprisonment having found the existence of substantial
and
compelling reasons in order not to impose imprisonment for
life, the learned magistrate’s decision is open to attack.
[6]
The enquiry regarding the imposition of sentence on appeal is not
whether the sentence was right or wrong but whether the court
acted
reasonably or properly in the exercise of its discretion.
[4]
Whether the trial court exercised its discretion reasonably depends
on whether considering all the circumstances of the case the
trial
court could have reasonably imposed the sentence, which it did.
[5]
[7]
In addition, a court of appeal will interfere with a sentence of a
trial court in a case where the sentence imposed was disturbingly
inappropriate or when the court, when imposing the sentence,
committed a misdirection.
[6]
Since
S
v Rabie
[7]
it has consistently been held that the discretion to impose a
sentence is pre-eminently that of the court imposing the sentence
and
that an appeal court should be careful not to erode such a
discretion. The test then, is whether the sentence is vitiated by
irregularity or misdirection or is disturbingly inappropriate.
[8]
[9]
In
S v
Salzwedel
[9]
the Supreme Court of
Appeal held that an appeal court can only interfere with a sentence
of a trial court in a case where the sentence
is disturbingly
inappropriate or totally out of proportion to the gravity or
magnitude of the offence, or sufficiently disparate,
or vitiated by
misdirection of a nature which shows that the trial court did not
exercise its discretion reasonably.
[10]
Save for the question of the age of the complainant, which relates to
the conviction, the appellant advanced one other ground
on appeal.
Counsel for the appellant submitted that the trial court
overemphasised the fact that the appellant showed no remorse.
However, I am of the view that the magistrate evenly balanced all the
factors referred to by him and that the question of the absence
of
remorse was not overemphasised at all. Indeed, the question of
remorse could only play a proper role if the appellant had, but
which
he had not, shown remorse for his conduct. In this regard it was held
in
S v
Matyityi
[10]
by Ponnan JA as follows:
‘
Remorse is a gnawing pain of
conscience for the plight of another. Thus genuine contrition can
only be come from an appreciation
and acknowledgement of the extent
of one’s error. Whether the offender is sincerely remorseful,
and not simply feeling sorry
for himself at having been caught, is a
factual question. It is to the surrounding actions of the accused,
rather than what he
says in court, that one should rather look. 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.’
[11]
I am of the view that the appellant failed to show that the regional
magistrate misdirected himself or that any irregularity
occurred or
that the sentence is disturbingly inappropriate. In
S
v Chapman
[11]
,
Mahomed CJ remarked as follows:
‘
Rape is a very serious offence,
constituting as it does a humiliating, degrading and brutal invasion
of the privacy, the dignity
and the person of the victim.
The rights to dignity, to privacy and
the integrity of every person are basic to the ethos of the
Constitution and to any defensible
civilisation.
Women in this country are entitled to
the protection of these rights. They 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
tranquillity of their homes
without the fear, the apprehension and
the insecurity which constantly diminishes the quality and enjoyment
of their lives.’
In
S v
Kearns,
[12]
Jajbhay
J said as follows:
‘
A rapist not only violates the
victim’s privacy and personal integrity, but inevitably causes
serious psychological as well
as physical harm in the process. Rape
is not merely a physical assault, it is often destructive of the
whole personality of the
victim. A murderer destroys the physical
body of his victim; a rapist degrades the very soul of the helpless
female. The physical
scar may heal, but the mental scar will always
remain. When a woman is ravished, what is not merely physical injury,
but the deep
sense of some deathless shame. It is violation with
violence of the private person of a woman. This constitutes an
outrage by all
means. By the very nature of the offence it is an
obnoxious act of the highest order.’
In
S v
Chuir and Another,
[13]
Mudau AJ (as he then was)
remarked as follows:
‘
However, the seriousness of the
offences and in particular the prevalence of rape perpetrated against
women and children are a scourge
in our country, which warrants a
long term of imprisonment. Not only is rape a serious offence, its
seriousness is exacerbated
by its alarming incidence. This country is
reported to have some of the highest incidents of alarming incidence.
This country is
reported to have some of the highest incidents of
rape in the world.’
In
S v
Jackson,
[14]
Olivier
JA remarked as follows about rape:
‘
Few things may be more
difficult and humiliating for a woman than to cry rape; she is often,
within certain communities, considered
to have lost her credibility;
she may be seen as unchaste and unworthy of respect; her community
may turn their back on her; she
has to undergo the most harrowing
cross-examination in court, where the intimate details of the crime
are traversed ad nauseam;
she (but not the accused) may be required
to reveal her previous sexual history; she may disqualify herself in
the marriage market,
and many husbands turn their backs on a
“soiled” wife.’
In
S v
Swartz and Another,
[15]
Davis J (as he then was)
remarked as follows:
‘
The sentence of this court
should shout to the community at large that rape is unacceptable and
that there is no basis upon which
a first offender gets a “free”
rape (by virtue of a light sentence) and that only recidivists can
expect an appropriately
heavy sentence. In summary, the sentence must
take full account of the nature of the offence. It must look
carefully at the
moral blameworthiness, while confirming the
community values of dignity, equality and freedom in our society; in
this way the Courts
can contribute to ensuring that women should
benefit equally from a society based on those values. This latter
promise is particularly
important in a society in which male power
and the abuse thereof has so perverted our communal life and
threatens to make a mockery
of our promise of gender equality.’
In
S v
Ncheche
,
[16]
Goldstein J remarked as follows:
‘
Rape is an appalling and
utterly outrageous crime, gaining nothing of any worth for the
perpetrator and inflicting and horrific
suffering and outrage on the
victim and her family. It threatens every woman, and particularly the
poor and vulnerable. In our
country, it occurs far too frequently and
is currently aggravated by the grave risk of the transmission of the
Aids. A woman’s
body is sacrosanct and anyone who violates it
does so at his peril and our Legislature, and the community at large,
correctly expect
our courts to punish rapists severely.’
In
S v
Seedat
,
[17]
Mavundla J said:
‘
Rape is undoubtedly a serious
crime which violates the dignity, security, freedom and wellbeing of
the victim. The wave of rape
cases is not abating but on the
increase. It is a crime which calls for long imprisonment.’
[12]
These passages taken into proper consideration underline the fact
that the regional magistrate exercised his discretion properly
when
considering the appropriate sentence and I am of the view that a
sentence of fifteen years imprisonment is in accordance with
the
reasoning in the passages referred to.
[13]
In all the circumstances, I am of the view that the appellant has
failed to show that the magistrate exercised his discretion
in a
manner which warrants interference by this court.
[14]
In all the circumstances the appeal is dismissed.
__________
Wepener
J
I
agree.
__________
Vuma
AJ
Counsel
for Appellant: GL Trent
Attorneys
for Appellant: JH Van Heerden & Cohen Atorneys
Counsel
for Respondent: BS Masedi
[1]
Act 32 2007.
[2]
Act 51 of 1977.
[3]
Supra.
[4]
S v Obisi
2005
(2) SACR 350
(W) para 8.
[5]
S v Obisi
para
7.
[6]
S v Salzwedel and Another
1999 (2) SACR 585
(SCA) para 10.
[7]
1975 (4) SA 855
(A) at 865B-C.
[8]
S v Rabie
at
857D-F.
[9]
Salzwedel
at 591g.
[10]
2011 (1) SACR 40
(SCA) at 47a-d.
[11]
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 5a-c.
[12]
2009 (2) SACR 684
(GSJ) at 690g-h.
[13]
2012 (2) SACR 391
(GSJ) 394a-b.
[14]
1998 (1) SACR 470
(SCA) at 475f.
[15]
1999 (2) SACR 380
(C) at 387h-j.
[16]
[2005] ZAGPHC 21
;
2005 (2) SACR 386
(W) at 395h-i.
[17]
2015 (2) SACR 612
(GP) at 625a.