F B v S (134/2018) [2019] ZAGPJHC 31 (12 February 2019)

85 Reportability
Criminal Law
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Brief Summary

Criminal Law — Rape — Minimum sentencing — Appeal against life imprisonment — Appellant convicted of raping a 12-year-old minor on two occasions — Appellant claimed consent, but evidence established lack of consent and abuse of trust — Court found no substantial and compelling circumstances to deviate from mandatory life sentence as prescribed by the Minimum Sentencing Act — Appeal dismissed.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was an appeal in the High Court of South Africa, Gauteng Local Division, Johannesburg, arising from criminal proceedings in the Magistrates’ Court, Johannesburg in which the appellant (the accused at trial) had been convicted of rape. The respondent was the State.


The appellant had been charged with rape in contravention of section 3 of the Criminal Law Amendment Act (Sexual Offences and Related Matters) 32 of 2008, read with section 51(1) and Part I of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 (the minimum sentencing provisions). On 13 April 2017 the magistrate convicted the appellant as charged and imposed the prescribed sentence of life imprisonment.


The appeal before the High Court proceeded as an automatic right of appeal against sentence only, in terms of section 309(1)(a) of the Criminal Procedure Act 51 of 1977. The appellant sought condonation for the late filing of heads of argument; this was unopposed and was granted. The substantive dispute concerned whether the trial court was correct in finding that no substantial and compelling circumstances existed to justify a departure from the prescribed minimum sentence of life imprisonment.


2. Material Facts


The court relied on the following material factual findings and common-cause features emerging from the record and the magistrate’s sentencing findings.


It was common cause that the complainant was a minor child aged 12 at the relevant time in 2015, and that the appellant was an adult who knew her age. The complainant, her uncle (referred to as F), and the appellant were staying in the same house. The appellant used to transport the complainant to and from school.


The complainant described two incidents in which the appellant had sexual intercourse with her without her consent. In the first, after the appellant fetched her from school and they arrived home when the uncle was not present, the appellant entered her room, undressed her and himself, and had intercourse with her while she resisted and cried. In the second, the complainant was alone watching television when the appellant again touched and undressed her and had intercourse with her.


The complainant did not report the incidents immediately. Some months later she was diagnosed as pregnant. Initially, she told her mother that a person other than the appellant had raped her, due to fear while the appellant was still in the household. She later disclosed to a psychologist that the appellant was the perpetrator, at a stage when the appellant was no longer staying with the family.


The appellant admitted having sexual intercourse with the complainant but contended that she consented, and that he believed she had consented because she allegedly initiated the sexual activity. The sentencing court treated the rape as falling within the minimum sentencing regime, and the High Court proceeded on the basis of the magistrate’s sentencing findings.


In assessing sentence, the magistrate recorded as aggravating features (and the High Court treated these as material) that the rape occurred more than once, that the complainant became pregnant, that DNA evidence identified the appellant as the father of the child, and that the complainant became infected with HIV as a result of the sexual assault. The magistrate also recorded that the appellant was not aware of his HIV status at the time.


The magistrate considered the appellant’s personal circumstances in mitigation, including his age (40 at sentence), family background, education and work history, marriage and children, time spent awaiting trial, and health-related evidence indicating he had suffered a stroke, had chronic health conditions including being HIV positive, and experienced functional limitations. The magistrate also considered evidence and submissions relevant to the appellant’s capacity to function and the availability of treatment while incarcerated.


3. Legal Issues


The central legal question was whether the magistrate misdirected himself, or otherwise erred, in concluding that there were no substantial and compelling circumstances warranting a departure from the prescribed minimum sentence of life imprisonment under section 51(1) of the Criminal Law Amendment Act 105 of 1997, in a matter involving rape of a child under 16 and repeated rape.


The dispute before the High Court was primarily an issue of the application of law to fact within the sentencing framework established by the minimum sentencing legislation. It further implicated the scope of an appeal court’s power to interfere with sentence, which entails an evaluative judgment as to whether the trial court committed a material misdirection or imposed a sentence that is manifestly inappropriate.


4. Court’s Reasoning


The High Court approached the matter from the premise that sentencing lies pre-eminently within the discretion of the trial court. It reiterated that an appeal court does not interfere lightly with a sentence unless it is vitiated by a material misdirection, an irregularity, or is disturbingly inappropriate in the circumstances, referencing established authority on appellate restraint in sentencing.


The court emphasised the sentencing framework under section 51(1) of the minimum sentencing legislation, which prescribes life imprisonment for rape where the victim is under 16 years old and also where rape is committed more than once. Against this statutory background, it considered the appellant’s contention that his ill-health, including the after-effects of a stroke and his HIV-positive status, constituted substantial and compelling circumstances justifying a lesser sentence. The appellant relied on authority dealing with sentencing under the minimum sentence regime and the proper approach to deviation.


The respondent’s submissions, accepted as materially relevant by the court, included that the appellant’s medical condition did not render him incapable of functioning to an unacceptable extent, and that appropriate medical treatment could be provided in the correctional system. The court treated these considerations as bearing on whether the appellant’s health circumstances truly displaced the legislatively ordained sentencing norm.


In evaluating the magistrate’s reasoning, the High Court highlighted that the magistrate had expressly weighed mitigating circumstances against significant aggravating circumstances. The aggravation included the complainant’s age, the repeated nature of the sexual assaults, the abuse of a position of trust (the appellant being treated as an uncle and father figure), and the grave consequences for the complainant, including pregnancy, HIV infection, and severe psychological impact described in her victim-impact evidence.


The High Court endorsed the approach in S v Malgas 2001 (1) SACR 469 (SCA), namely that ordinary mitigating factors must be considered to determine whether substantial and compelling circumstances exist, and that prescribed minimum sentences should not be departed from for flimsy reasons. It further relied on S v Matyityi 2011 (1) SACR 40 (SCA) for the proposition that courts do not have a free hand in minimum sentence matters: the prescribed sentence must be imposed unless there are truly convincing reasons to depart, and vague notions of fairness cannot be used to circumvent legislative direction.


The court also referred to broader principles on appeal, including the Constitutional Court’s caution in Makati v Vodacom (Pty) Ltd 2016 (4) SA 121 (CC) regarding deference to trial courts on factual findings, while noting that appellate correction is warranted if misdirection appears from the record. Applying these principles, the court stated that, having considered the evidence and the magistrate’s reasoning in totality, it could not find a misdirection. In its assessment, the magistrate’s conclusion that there were no substantial and compelling circumstances was consistent with the statutory framework and the weight of the aggravating factors.


5. Outcome and Relief


The High Court granted condonation for the late filing of the appellant’s heads of argument, as the application was unopposed.


On the merits, the appeal against sentence was dismissed, and the sentence of life imprisonment imposed by the magistrate remained in place. The judgment did not record any separate or additional costs order in relation to the appeal.


Cases Cited


Shawn Palmer v The State (599/2016) [2017] ZASCA 107 (13 September 2017).


Tankiso Abel Mokoena v The State A323/2010 [2012] ZAFSHC 12 (9 February 2012).


S v Fraser 1987 (2) SA 859 (A).


S v Kwanape 2014 (1) SACR 405 (SCA).


R v Maphumulo and Others 1920 AD 56.


S v Rabie 1975 (4) SA 855 (A).


S v Romer 2011 (2) SACR 153 (SCA).


S v Malgas 2001 (1) SACR 469 (SCA).


S v Matyityi 2011 (1) SACR 40 (SCA).


Makati v Vodacom (Pty) Ltd 2016 (4) SA 121 (CC).


Legislation Cited


Criminal Law Amendment Act (Sexual Offences and Related Matters) 32 of 2008, section 3.


Criminal Law Amendment Act 105 of 1997, section 51(1) and Part I of Schedule 2.


Criminal Procedure Act 51 of 1977, section 309(1)(a).


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The High Court held that the magistrate did not misdirect himself in concluding that no substantial and compelling circumstances existed to justify a deviation from the prescribed minimum sentence of life imprisonment for the rape of a 12-year-old complainant, where the sexual assaults occurred more than once and resulted in severe consequences including pregnancy and HIV infection. The appeal court found no basis, on the record, to interfere with the magistrate’s sentencing discretion.


Accordingly, the appeal against sentence was dismissed and the sentence of life imprisonment was confirmed.


LEGAL PRINCIPLES


A sentencing court’s discretion is respected on appeal, and an appellate court will not interfere with sentence unless there has been a material misdirection, an irregularity, or the sentence is manifestly inappropriate in the circumstances, as reflected in the authorities cited on appellate restraint in sentencing.


Under the minimum sentencing regime in section 51(1) of the Criminal Law Amendment Act 105 of 1997, a court is obliged to impose the prescribed minimum sentence (including life imprisonment in specified rape cases) unless substantial and compelling circumstances are present. Ordinary mitigating factors must be weighed, but the prescribed sentence should not be departed from for insubstantial reasons, consistent with S v Malgas 2001 (1) SACR 469 (SCA).


Courts are not at liberty to disregard Parliament’s prescribed sentencing scheme; they must impose the legislated sentence unless there are truly convincing reasons to depart, as affirmed in S v Matyityi 2011 (1) SACR 40 (SCA). The presence of personal circumstances such as illness must be evaluated against the gravity of the offence and the statutory norm, and does not automatically constitute substantial and compelling circumstances.


On appeal, while deference is generally afforded to trial courts’ factual and credibility findings, an appellate court is obliged to intervene if a misdirection appears from the record; absent such misdirection, the trial court’s evaluation stands, consistent with the approach articulated in Makati v Vodacom (Pty) Ltd 2016 (4) SA 121 (CC).

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[2019] ZAGPJHC 31
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F B v S (134/2018) [2019] ZAGPJHC 31 (12 February 2019)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
CASE
NUMBER: 134/2018
DPP
REF: 10/2/5/1-2018/124
In
the matter between:
F
B
Appellant
and
THE
STATE
Respondent
J
U D G M E N T
SKIBI
AJ
Introduction
[1]
The appellant who was legally represented stood arraigned in the
Magistrate Court, Johannesburg, wherein he was charged with
rape in
contravention of section 3 of the Criminal Law Amendment Act (Sexual
Offences and Related Matters) 32 of 2008, read with
the provisions of
section 51(1) and Schedule 2 of the Criminal Law Amendment Act 105 of
1997.  (the “Minimum Sentencing
Act”) On 13 April
2017 he was found guilty as charged.  The appellant was
sentenced to life imprisonment.
[2]
The appellant’s appeal is before this court by way of an
automatic right of
appeal
against sentence only in terms of the provisions of
section 309(1)(a)
of the
Criminal Procedure Act 51 of 1977
.
[3]
There is an application for condonation by appellant for the late
filling of heads of argument.  The application is not
opposed by
the respondent.  The application for condonation is granted.
Factual
background
[4]
The complainant, a 12 year old minor child, her uncle, F, and the
appellant were staying in the same house in 2015.  She
was
attending school during that year and the appellant used to transport
her to school in the morning and pick her up in the afternoon.

Around May 2015 after school hours she phoned the appellant to come
and pick her up as usual and the latter came and fetched her.

Upon arrival at home, her uncle, F was not around. She went to her
room and lay on the bed as she was not feeling well.  Shortly

thereafter the appellant entered her room and started to take off her
tights and underwear and he undressed himself by removing
his pants.
The complainant resisted pushing the appellant away but he had sexual
intercourse with her against her will.
She says she was crying
during the rape.  When the appellant finished he said he had
sexual intercourse with her because he
loves her.
[5]
In the other incident the complainant was sitting at F’s room
alone watching TV. The appellant came and started to touch
her, he
undressed her and had sexual intercourse with her without her
consent.
[6]
On both occasion the complainant says that she did not report the
incident because the appellant was staying in the house with
her
family.  After some months the complainant was taken to a doctor
who diagnosed that she was pregnant. When she was asked
as to who
impregnated her, she told the mother she was raped by a person other
than the appellant because of her fear of the appellant.
She
only disclosed that she had been raped by the appellant when she was
consulted by a psychologist.  At this stage the appellant
was no
longer staying with her family.
[7]
The Appellant admitted having sexual intercourse with the complainant
but claimed that she had consented.  He says he believed
that
she consented to have sexual intercourse with him because she
initiated the sexual activity.  The appellant knew that
the
complainant was 12 years old.
[8]
The magistrate convicted the appellant as charged after all the
evidence was led.  The appellant was sentenced to life

imprisonment in terms of
section 51(1)
read with
Part I
of Schedule 2
of the Criminal law Amendment Act
[1]
after making the magistrate’s finding that there were no
substantial and compelling circumstances justifying a departure
from
the imposition of the prescribed minimum sentence.
[9]
The issue to be determined is whether the magistrate erred in finding
that there were no substantial and compelling circumstances
which
justified a deviation from the imposition of the prescribed minimum
sentence of life imprisonment.
Law
[10]
Section 51 (1) of the Minimum Sentencing Act prescribes a sentence of
life imprisonment in cases where the victim of the rape
is a minor
child under 16 years of age or where the rape was committed by the
perpetrator more than once.
[11]
It is trite law that the task of sentencing an accused person falls
with the discretion of the trial court and the court of
appeal may
not lightly interfere with such a direction unless it is vitiated by
irregularity or there is a misdirection of a material
nature.
Submissions
by counsel
[12]
It is submitted on behalf of the appellant that because of his
ill-health, the fact that he suffering from a stroke and is
human
immunodeficiency virus (HIV) positive the magistrate should have
imposed a lesser sentence.  The complainant testified
that the
appellant raped her at a time when he was suffering from the stroke.
The appellant in his testimony said that he
had only had sexual
intercourse with the complainant before and after he suffered from
stroke.  Counsel for the appellant
relied on S
hawn
Palmer v The State
(599/2016)[2017]
ZASCA 107 (13 September 2017) and
Tankiso
Abel Mokoena v The State
[2]
.
[13]
It is submitted on behalf of the respondent that even though the
appellant was negatively affected by ill-health the probation
officer
who gave evidence in mitigation of sentence testified that he is able
to function at an acceptable level.  The respondent’s

submission is that in prison there are health facilities where the
appellant will be appropriately treated for his condition.
[14]
Counsel for the respondent contends that as each case must be decided
on its own peculiar facts and refers the court to the
case of
[3]
S v
Fraser
and
that ‘it is an idle exercise to match the colours of the case
at hand and the colours of other cases with the object of
arriving at
an appropriate sentence’.  There is authority for imposing
life imprisonment for rape of a 12 year old girl
by an HIV positive
man matter was also HIV positive
[4]
S v
Kwanape
.
[15]
The respondent’s contention is that the magistrate correctly
concluded that none of the personal circumstances placed
before court
either considered cumulatively or individually as compared to the
aggravating circumstances which could be regarded
as constituting
substantial and compelling circumstances allowing the court to
deviate from the imposition of the prescribed minimum
sentence.
[16]
Analysis magistrate’s findings:-
16.1 it is common cause
that the complainant was 12 years old at the time of the incident,
16.2 the sexual assault
was perpetrated more than once,
16.3 the complainant
became pregnant as a result of this sexual assault,
16.4 DNA results
positively identified the appellant as the father of the child,
16.5 the complainant
became infected with HIV as a result of this sexual assault,
16.6 the appellant was
not aware of his HIV status at the time.
[17]
The magistrate did weigh the mitigating factors against the
aggravating factors and came to the conclusion that there are no

substantial and compelling circumstances which justify the deviation
from the imposition of the prescribed minimum sentence of
life
imprisonment.
[18]
The magistrate took into consideration the following mitigating
factors:
18.1 The appellant was
born on […] December 1976 and on the date of sentencing was 40
years old,
18.2 His parents
separated when he was 12 years old,
18.3 He was raised by his
grandparents and had a pleasant life, never exposed to abuse,
18.4 He dropped out of
school at grade 10,
18.5 He worked as a
mechanical fitter,
18.6 He is married and is
the father of three children aged 16; 12 and 8 years respectively.
He has separated from his wife and
children,
18.7 He came to
Johannesburg in search of work. He suffered a stroke and is unable
to work.  He is only able to wash himself.
The stroke affected
his left hand side but condition appears to be under control,
18.8 He spent nine months
in prison awaiting trial.
[19]
The following aggravating circumstances were considered by the
magistrate:
19.1 The accused raped
the complainant over a period of time,
19.2 He abused his
position of trust that he had as an uncle and a father figure in the
life of the complainant,
19.2 The complaint was 12
years old at the time of the incident,
19.3 The appellant raped
the complainant without using protection exposing her to serious life
threatening illness and she did in
fact become infected with HIV,
19.4 The complainant
became a mother as 13 years of age,
19.5 The complainant is
seriously affected by what happened to her. She said:-
19.5.1  “
Every day is
hell for me and there is not a day that goes by where I don’t
feel like my life is over, When I was diagnosed
with HIV I couldn’t’
believe it and I am still feel like I’m dreaming.  This
isn’t happening to me.
At my age how was it possible?
I hate life and I hate myself and the suspect.  I also say
things like everything would
be better if I just die.  How would
I look at my child one day?  Such an innocent human being.
I am so angry
.”
19.5.2  “
The suspect
took everything from me.  Waking up in the morning is like being
in hell.  I have to face life, a reality
of my sickness and baby
daily.  Am I ever gonna be a good mother at my age.  I hate
this life.  The suspect must
be punished for what he did.
He took my whole childhood life away from me.  I’m a
mother at this young age.
”
[20]
The magistrate dealt extensively with the issue of remorse and made a
finding that the appellant did not show true remorse
but he regrets
what he had done to the complainant and relied on several cases on
this view.
[21]
It is trite law that the task of sentencing an accused is
pre-eminently a matter which is within the discretion of the trial

court.  The appeal court may not lightly interfere with the
sentence unless there is substantial misdirection as to law or
fact,
or if the sentence is manifestly inappropriate.  See
R
v Maphumulo and Others
[5]
;
S
v Rabie
[6]
;
S v
Romer
[7]
[22]
Tankiso
Abel Mokoena v The State
[8]
,
concerned
a gang rape involving a complainant who left a tavern at about 02h00
and accepted a lift from two men who offered to take
her home.
On the way they asked for a reward in the form of sexual intercourse
with her; she refused.  They took her
to a secluded place where
they took turns raping her.  When they finished they took her
home.  Soon thereafter they were
arrested and charged with
rape.  The court imposed a sentence of life imprisonment but on
appeal the sentence was reduced
to 17 years’ imprisonment.
[23]
In
Shawn
Palmer v The State
[9]
the appellant was convicted of rape read with the provisions of
section 51(1) of the Minimum Sentencing Act and was sentenced to
life
imprisonment.  The trial court found that the appellant had to
establish exceptional circumstances for the court to deviate
from the
imposition of the prescribed minimum sentence.  The appeal court
held that the court erred in finding that the appellant
had to show
the existence of exceptional circumstances.  The court set aside
the sentence and had to consider the sentence
afresh replaced it with
an appropriate one.
[24]
The appellant invaded the dignity and privacy of the complaint.
The complainant’s life has been changed tremendously
by the
incident.   A child of 12 years old was sexually assault by
her relative whom she trusted.
[25]
Rape is a humiliating and traumatic experience which violates the
dignity and privacy of the victim. In
S
v Malgas
[10]
it was found that the usual mitigating factors are to be taken into
account to determine whether there are substantial and compelling

circumstances present and the prescribed sentences should not be
deviated from for flimsy reasons.  Despite the fact that
the
appellant suffers from the stroke and other chronic illness and is
taking medication, he will receive appropriate medical treatment
in
the prison where he is detained which is well equipped with resources
to address his medical condition.
[26]
In
S v
Matyityi
[11]
it was held that courts do not have clean slate upon which they are
free to inscribe whatever sentence they think appropriate when
it
comes to determining the appropriate sentence in terms of the Minimum
Sentencing
Amendment
Act 105 of 1997.  Courts are obliged to impose the prescribed
minimum sentences, unless there are truly convincing
reasons for
departing from them.
… “
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 deference to the legitimate
domains of
power of the arms of State.  Here Parliament has spoken.
It has ordained minimum sentences for certain specified
sentences.
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 hypotheses that appear to fit the
particular sentencing officer’s personal notion
of
fairness
[12]
…”
[27]
In
Makati
v Vodacom (Pty) Ltd
[13]
the Constitutional
Court
,
Jafta
J
said the
Following
regarding the powers and limitations of the appeal court
:
“
[38] In our
system, as in many similar systems of appeal, the cold record placed
before the appeal court does not capture all that
occurred at the
trial.  The disadvantage is that the appeal court is denied the
opportunity of observing witnesses testify
and drawing its own
inferences from their demeanour and body language.  On the
contrary, this is the advantage enjoyed by
the trial court.
Hence an appeal court must defer to the trial court when it comes to
factual findings.
[40] But even in the
appeal the deference afforded to a trial court’s credibility
findings must not be overstated.  If
it emerges from the record
that the trial court misdirected itself on the facts or that it came
to a wrong conclusion, the appellate
court is duty-bound to overrule
factual findings of the trial court so as to do justice to the case.”
[28]
Having considered the evidence in its totality and the reasoning of
the magistrate I am unable to find any misdirection. He
correctly
found that there were no substantial and compelling circumstances
which justify a deviation from the imposition of the
prescribed
sentence of life imprisonment.
Result
[29]
In the result the appeal against sentence stands to be dismissed. It
is apparent from the record that the appellant was correctly

convicted of the rape.
Order
[30]
I propose the following order:
1 The appellant’s
appeal against sentence is dismissed.
_______________________
SKIBI
AJ
ACTING
JUDGE OF TH HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBRUG
I
concur and it is so ordered
__________________
LAMONT
J
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Heard
on

:

12 February 2019
Judgment
delivered
:

12 February 2019
APPEARANCES
For
the Appellant
:

Adv. TD Tshishonga
Instructed by Legal Aid
South Africa
Johannesburg Local Office
JOHANNESBURG
For
the Respondent
:

Adv.    P. Nel
Counsel for the
Respondent
DPP Office
JOHANNESBURG
[1]
105 of 1997
[2]
A323/2010)
[2012] ZAFSHC 12
(9 February 2012)
[3]
S v Fraser
1987 (2) SA 859
(A) at 863C-D
[4]
S v Kwanape 2014 (1) SACR 405 (SCA)
[5]
1920 AD 56
AT 57
[6]
1975 (4) SA 855
(a)
[7]
2011 (2) SACR 153
(SCA) at para [22] and [23]
[8]
Supra
[9]
Supra
[10]
2001 (1) SACR 469 (SCA)
[11]
2011 (1) SACR 40
(SCA) at para [13]
[12]
Matyityi case at para [23]
[13]
2016 (4) SA 121
(CC) at 38

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