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[2020] ZAGPJHC 330
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Mthembu v S (A46/2020) [2020] ZAGPJHC 330 (21 August 2020)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
APPEAL
NO: A46/2020
Heard
on: 17 August 2020
Judgment
delivered on: 21 August 2020
In
the appeal of:
MTHEMBU
SIZWE
NATION APPELLANT
and
THE
STATE RESPONDENT
JUDGMENT
VUMA AJ
INTRODUCTION
[1]
The appellant was convicted by the regional court in Vosloorus on one
count that he contravened the provisions of
section 3
of the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act No. 32 of
2007
, read with the provisions of
section 51
and Schedule 2 OF Part 1
of
Criminal Law Amendment Act 105 of 1997
in that on or about 6
November 2016 in Vosloorus he committed an act of sexual penetration
with the “complainant”,
an 8 year old girl, by inserting
his penis into her vagina without her consent.
[2]
The appellant was legally represented throughout his trial.
[3]
The appellant pleaded not guilty to the above charge on 28 January
2019.
[4] On 24 May 2019 the
appellant was convicted and on 15 July 2019 he was sentenced to life
imprisonment. It was further ordered
that:
4.1 in
terms of
section 50(2)(a)
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
, the appellant’s name
be listed in a national Register of Sex Offenders;
4.2 in
terms of
section 120(4)(a)
of the Children’s Act 38 of 2005,
the appellant is declared unfit to work with children;
4.3 in
terms of
section 103(1)(g)
of the
Firearms Control Act 60 of 2000
,
the appellant is declared unfit to possess a firearm;
4.4 in
terms of
section 103(4)
of the
Firearms Control Act 60 of 2000
that a
search and seizure of any firearms, permits and authorization the
appellant may have in his possession be conducted.
[5]
The appellant has an automatic leave to appeal in terms of
section
309
of the
Criminal Procedure Act 51 of 1977
.
[6] The appellant now
approaches this court on appeal against both his conviction and
sentence.
POINT
IN LIMINE
[7] The appellant was
required to file Heads of Argument on 17 June 2020. No Heads of
Argument were forthcoming and the respondent
subsequently, on 2 July
2020, filed a Notice of intention to strike the matter off the roll.
In opposing the aforesaid application
and applying for condonation of
the late filing of the appellant’s Heads of Argument, counsel
for the appellant stated in
her opposing affidavit that she was not
timeously placed in possession of the record in this matter and only
received same on 3
July 2020. On the basis of the reasons stated by
the appellant in his opposing papers, the respondent stated that he
would therefore
not oppose the appellant’s condonation
application.
[8] In the result, the
appellant’s application for the condonation of the late filing
of his Heads of Argument is granted.
APPELLANT’S
GROUNDS OF APPEAL AD CONVICTION
[9] The appellant submits
that the trial court erred in convicting him for the following
reasons:
9.1 In
finding that the state has proved its case beyond a reasonable doubt;
9.2 In
finding that the contradictions in the state’s case were not
material;
9.3 In
finding that the evidence of the complainant, a single witness, was
satisfactory in every material respect;
9.4 In
rejecting the accused’s version as false;
9.5 In
finding that the appellant’s version was riddled with
improbabilities and contradictions.
AD CONVICTION
[10] The following facts
are common cause and not in dispute:
10.1 that
on 6 November 2016 the complainant was 8 years of age;
10.2 that
on 6 November 2016 the complainant and the appellant were both at the
same time in the yard the appellant resides in;
10.3 that
the appellant is also known as Alaska;
10.4 that
complainant was taken to the police station on 6 November 2016 and
thereafter to the Kids’ clinic to be for a medical
examination;
and
10.5 that
from the medical records, the
labia
majora
indicates a
bruise of 1cm x 1cm at 9o’clock and changes in the
vulva
area show there was
friction over the area but no penetration beyond the hymen.
[11]
The following admissions in terms of
section 220
of the
Criminal
Procedure Act 51 of 1977
were made by the appellant:
11.1 that
he (the appellant) is indeed referred to as “Alaska”.
11.2 that
he saw the complainant at some stage during the course of the day on
which the incident occurred, namely 6 November 2016.
[12] A report by a
medical practitioner, Dr Thabang Ndlela, which was handed in and read
into record with the appellant’s
consent indicates the
following:
12.1 that
Dr Ndlela examined the complainant on 6 November 2016 at 15h45. Her
date of birth is 15 December 2007.
12.2 that
he made the following observations:
12.2.1
the complainant was wearing blue jeans with soiled stains;
12.2.2
the panty was taken off by force;
12.2.3
the clitoris, frenulum of clitoris, para-urethral folds, labia minora
and posterior fourchette were red in colour. The urethral
orifice was
red in colour and painful. There were no injuries to the mons pubis.
12.2.4
the labia majora showed a bruise of 1cm x 1cm at 9 o’clock.
12.2.5
changes in the vulva area show there were frictions over the areas
but no penetration beyond the hymen.
THE EVIDENCE
[13]
To prove its case the state called two witnesses, namely
Mr
V M
(“M”)
and the “complainant”. M testified that he is the
grandfather of the complainant who was born on
15 December 2007. On 6
November 2016 he was at home when he heard a knock on his door. Upon
opening the door, he saw the complainant
who was in the company of
his neighbour named Sandile. He noticed that the blue jeans the
complainant was wearing were “upside
down” and that she
was crying. He then enquired from Sandile about what transpired.
Sandile informed him that he saw the
complainant coming from his
neigbour’s yard. They then left to the police station from
where they were sent to the hospital
where the complainant was
examined and the doctor then informed him that she was raped.
[14]
They then returned to their house and the complainant subsequently
informed him that whilst playing at the park she was called
by the
appellant who is known as Alaska. He took her to his house and put
her on his bed and undressed her. She asked to go and
urinate and
then ran away to Sandile’s house. That was then that Sandile
saw her.
[15]
Alaska is known to him, that is M, as they were staying in the same
neighbourhood. He has known the appellant for more than
15 years ever
since he moved to that area. The appellant was Sandile’s
neighbour and there was only an empty stand between
the property of
the appellant and Sandile’s house. He also knew Sandile but
only by sight. M indicated that the appellant
is Alaska who stayed 10
houses away from his house.
[16]
The appellant was arrested with the help of M’s neighbour who
is a police officer. M gave him the name of the appellant
and it
appeared that he was known to the said police officer. M testified
that prior the complainant was a playful child but has
since the
incident stayed at home. She received counselling.
[17]
The complainant
was the second and last witness who testified through an intermediary
and by way of a close circuit television. She testified that
on the
day of the incident they were coming back from church and she, Bokang
and Bokang’s siblings were sent by Bokang’s
grandfather
to go fetch porridge at Bokang’s father. They left the house
and proceeded to the park where they found Busisiwe’s
siblings
and other boys. They then sent Busisiwe’s siblings to ask for
peaches at one of the house houses and they continued
to play in the
park after they left.
[18]
A man who was passing by and who was holding a phone waved at her. At
that stage the man was not known to her. She was seated
on top of a
wood and then went to the man who was calling her. This man was on
the phone and he said: ‘
Ntanga,
there is a child here. I just want to go buy KFC for her’
.
They walked and passed a corner where she saw girls sitting and a man
washing a car and at another corner they entered a yard
and from
there went into this man’s room. He then locked the door.
Inside the room, he then proceeded to charge his phone.
He asked her
what her name was and how old she was and she told him that she was 8
years old. She then went to the door and unlocked
it but it wouldn’t
open. The appellant said she must come back but she told him she
wanted to leave.
[19]
They then went to the corner of the room where a bed was and he
instructed her to undress. She refused and he undressed her.
Thereafter he took off the long pants he was wearing and his
underwear. He pulled her pants down and tore her panties and moved
it
to the side. He then instructed her to open her legs. Whilst lying on
the bed and after opening her legs, he inserted his penis
into her
vagina and ‘bumped’ on top of her whilst lying on top of
her. She afterwards told him that she wants to urinate
and he then
threatened her that he would fetch the knife in the wardrobe. He told
her to urinate in the corner of the room. She
took her pants, panties
and shoes and when he did not look at her, she opened the door and
ran away. The man followed her.
[20]
There were girls seated at the corner and also a man washing his car
and two boys sitting at the neighbour’s. She then
called out
saying the appellant was raping her. The girls sitting at the corner
said: “
Sies
Alaska
”. She
then ran to the man who was washing the car and he told her to get
into the car which as when they left. The man asked
her to tell him
what had happened and she told him what Alaska did to her. He drove
her home from where she was taken by her grandfather
and her aunt to
the Police Station where she made a statement. The state closed its
case.
[21]
The
appellant
took the witness and testified in his own defence. He denied that he
raped the complainant and testified as follows:
21.1 That
whilst busy locking the door of his place of residence, he saw the
complainant knocking at the door of the main house.
He approached her
to establish what she wanted and she told him that she was looking
for Amor. Amor is niece. He asked her what
her name is and where she
was residing and she told him Seemi street.
21.2 He
then asked her if she is not afraid she might be stolen or raped
because he knows all of Amor’s friends but she is
not known to
him. She then ran away and he followed her to see where she was
heading to. He noticed that she was running towards
a guy by the name
of Sandile who was washing a car and they got into the car.
21.3
Sandile told him that that the complainant informed him that the
appellant had raped her and that the police were on their
way. At the
time of his arrest he was no longer residing at his home because he
had been receiving death threats. He denied that
that the four ladies
sitting by the tree called his name ‘Alaska’. He
testified that the complainant only screamed
rape only because he
scolded her because she was walking alone.
SUBMISSIONS ON BEHALF
OF THE APPELLANT
[22]
It is submitted on behalf of the appellant that the state failed to
prove its case beyond a reasonable and thus the trail court
erred in
convicting the appellant as charged. It is disputed that the evidence
proved beyond a reasonable doubt that the appellant
took the
complainant to his room and had sexual intercourse with her. The
appellant argues that the state’s evidence rests
mainly on the
evidence of the complainant who was 8 years old at the time of the
incident, which in essence makes her to be a child
witness. Its
submitted further that on this basis it is trite that when dealing
with child witness cautionary rules have to be
applied.
[23] The appellant
further submits that the complainant’s evidence is not
satisfactory in the following respects:
23.1 If
indeed there were people within the vicinity leading to the
appellant’s house who saw the complainant going to the
yard
with the appellant, them they ought to have seen the appellant and
the complainant walking either into the yard or to the
appellant’s
room.
23.2 Why,
the complainant being only 8 years old, did not bleed from the sexual
intercourse. The appellant casts doubt as to how
the complainant got
the keys from to unlock the room given her evidence that upon
entering the room the appellant locked the door.
23.3 It
is improbable that the appellant could have allowed the complainant
to leave the room naked and to also allow her to leave
with all her
clothes. The complainant was never coerced by the appellant to follow
him nor to leave her friends at the park without
telling them where
she was going.
23.4 The
word rape as was screamed out by the complainant upon fleeing from
the appellant’s house is rather way too matured
a vocabulary
for an 8 year old child and that instead the appellant’s
version is more probable that he is the one who brought
it up on
cautioning the complainant about the risk of either being kidnapped
or raped.
23.5
The reaction of all the people allegedly within the vicinity of the
appellant’s house at the time the complainant was
‘screaming
rape’ is rather strange, considering how even the said four
ladies did not offer the complainant any help
nor even confronted the
appellant at all, other than to just saying ‘sies Alaska’.
Even worse, it is submitted, is
the fact that no one knows what could
have actually happened to the complainant at the time Sandile was
driving her home. The appellant
further raises questions regarding
failure to testify at court by the alleged witnesses to the
complainant’s escape from
the appellant’s house,
especially considering that the complainant mentioned some of them by
name; and
23.6
The appellant’s counsel decries the fact that the complainant
narrated the incident to the grandfather only after they
had reported
the incident to the police.
23.7
The contradiction between the grandfather’s evidence that the
complainant was wearing jeans ‘upside down’
whereas she
had testified that she was wearing black trousers. The appellant
bemoans how an 8 year old could have forgotten what
pants she was
wearing on the day of the incident given the fact that she could
still vividly remember that she wore her clothes
inside out on
fleeing from the appellant.
[24]
It is further submitted that in light of the fact the complainant was
a single witness and that her evidence ought to be satisfactory
in
all material respects, that the complainant’s evidence was not
satisfactory and that the state has failed to prove the
guilt of the
appellant beyond a reasonable doubt.
SUBMISSIONS ON BEHALF
OF THE RESPONDENT
[25] The respondent
submits that the state has proved its case beyond reasonable and that
the appellant’s appeal against both
conviction and sentence
lacks substance and therefore stands to be dismissed. It submits
further that based on the common cause
facts the only issue in
dispute is whether the appellant took the complainant to his room
where he committed an act of sexual penetration
with the complainant
by putting his penis into her vagina.
[26] The respondent
submits that the evidence of the complainant is corroborated by the
following:
26.1
By
M
her
grandfather, that after the incident she was brought home by a person
who was washing his car, later to be known as Sandile;
26.2
By M that when he saw the complainant when she was brought home by
Sandile, her clothes were worn ‘upside down’.
26.3
By the appellant
himself
who in his
evidence confirmed that the complainant indeed screamed and said that
they are raping her and that he saw her getting
into the car with
Sandile;
26.4
The appellant further testified that he indeed has a room in a yard
next to Sandile’s as indicated by the complainant;
26.5
By Dr Ndlela
’s
medical report which confirms that he panty was torn and that there
was sexual penetration although the penetration did
not go beyond the
hymen.
[27] With regard to the
appellant’s version, the respondent submits that it is
improbable that the complainant would have
screamed rape just on the
basis of the appellant scolding her for walking alone except if the
appellant had indeed raped her as
she had testified.
LEGAL PRINCIPLES AD
CONVICTION
[28]
Section 1
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007
defines sexual penetration as:
“
any
act which causes penetration to any extent whatsoever by-
(a)
the
genital organs of one person into or beyond the genital organs, anus,
or mouth of another person;
(b)
any
other part of the body of one person or, any object, including any
part of the body of an animal, into or beyond the genital
organs or
anus of another person; or
(c)
the
genital organs of an animal, into or beyond the mouth of another
person
”
.
[29]
It is trite that a court of appeal will not interfere with or temper
with the trial court’s judgment or decision regarding
either
conviction or sentence unless the court of appeal finds that the
trial court misdirected itself regarding its findings of
fact or the
law (See
R v
Dhlumayo and Another
1948 (2) SA 677
(A)
.
[30] In
S v Trainor
2003 (1) SACR 35
(SCA)
, it was held that:
“
a
conspectus of all the evidence was required. Evidence that was
reliable should be weighed alongside such evidence as may be found
to
be false. Independently verifiable evidence, if any, should be
weighed to see if it supported any of the evidence tendered.
In
considering whether evidence was reliable, the quality of that
evidence of necessity had to be evaluated, as had to be corroborative
evidence, if any.
Evidence,
of course, had to be evaluated against the onus on any particular
issue or in respect of the case in its entirety.”
[31] In the matter of
S
v ML
2016 (2) SACR 160
(SCA)
, the Court held the
following at paragraph 7:
“
In
the present case where the complainant is a very young child and the
only witness implicating the appellant, her evidence must
not only be
treated with caution, but a degree of corroboration is required to
reduce the danger of relying solely upon her evidence
to convict the
appellant.
”
[32]
In the matter of
S
v Mahlangu and Another 2011(2) SACR 164 (SCA)
,
the Court held the following at paragraph 21:
“
[21]
Section 208
of the
Criminal Procedure Act 51 of 1977
provides that:
‘An accused may be convicted of any offence on the single
evidence of any competent witness.’
The
court can base its finding on the evidence of a single witness, as
long as such evidence is substantially satisfactory in every
material
respect, or if there is corroboration
……
.”
[33] In
S v
Sauls and Others
1981 (3) SA 172
(A)
it was
held that ‘
caution in the context means applying common
sense to assess whether the truth has been told and the evidence is
trustworthy and
that caution cannot displace common sense.
Credibility must be assessed ‘in light of all the evidence’
’.
ANALYSIS AD CONVICTION
[34]
Section 208
of the
Criminal Procedure Act 51 of 1977
permits a
conviction on the evidence of a single witness. Such evidence should
however be substantially satisfactory in every material
respect or
there should be corroboration. Regarding the actual act of rape or
sexual penetration, it is common cause that the complainant
is a
single witness.
[35] The nub of the
appellant’s grounds of appeal turns on the alleged
inconsistences and contradictions between the state’s
witnesses
and the improbabilities on the version of the complainant. The
appellant particularly highlights the contradiction regarding
the
pants the complainant was wearing on the relevant date in that her
grandfather testified that she was wearing jeans whereas
she
testified that she was wearing black trousers. It is common cause
that Dr Dlela’s report corroborates the grandfather’s
evidence in that it states that the complainant was wearing jeans
inside out. However, in my view the kind of pants the complainant
was
wearing is neither here nor there nor material. What I find to be
material is the fact that all the state witnesses corroborate
one
another regarding the fact that the complainant was wearing her pants
inside out following her escape from the appellant’s
room.
[36]
Other than the above-mentioned contradiction which is immaterial, I
find no other contradiction nor inconsistencies as alleged
on behalf
of the appellant. It is common cause that Dr Dlela’s medical
report corroborates the complainant’s evidence
in all material
and relevant respects, being
inter
alia
, her state of
mind, that she had been sexually penetrated and suffered injuries
resultantly and that her panties were torn and
of course the fact
that she wore her ‘jeans’ inside out.
[37]
The appellant on the other hand in her Heads of argument raises what
she calls improbabilities which I find to be nothing more
than a red
herring. It is my view that the complainant cannot be faulted nor be
expected to speculate or explain as to why the
identified individuals
who witnessed her fleeing from the appellant’s place did not
come to her assistance, although the
record shows that they did to a
point where Sandile drove her to her home and even warning the
appellant that the police were coming
to arrest him. This is after
the complainant had screamed rape against the appellant to the
complainant’s witnesses’
hearing shot. Much of the
improbabilities highlighted on behalf of the appellant do not take
the appellant’s case any further.
For a subtle suggestion to
even be made on behalf of the appellant that Sandile could have been
the person who in fact raped her
is preposterous to say the least.
[38]
In my view, the appellant’s version is not reasonably possibly
true considering how impossible it is for any 8 year girl,
as alleged
by the appellant, who just on being warned of the possibility of her
being raped and kidnapped by strangers, she flees
from her alleged
attacker’s house, in broad day light, half naked and holding
her clothes in her hands. It is my view that
the trial court
correctly rejected the appellant’s version as false.
[39]
On the other hand, the fact that an 8 year old girl flee from the
home of the appellant half naked and screaming that the appellant
was
raping her, her whole account regarding how they met and what
transpired inside the appellant’s room and the consistency
of
her pointing out the appellant who was chasing after her upon her
fleeing from his place all prove only one thing, namely, that
the
appellant is the person who raped the complainant. Furthermore, when
regard is had to her evidence as corroborated by that
of
grandfather’s, including Dr Dlela’s medical findings, and
comparing same to the appellant’s version, the one
result one
arrives at is that the complainant was a credible and reliable
witness.
[40]
It is on the basis of the above that I find no evidence of any
misdirection on the part of the trial court’s finding
that the
state has proved its case beyond a reasonable doubt and the
appellant’s subsequent conviction. From the record,
I am
satisfied that the trial court was aware of the dangers of accepting
the evidence of a single witness who is also a child
witness and that
it accordingly applied the necessary cautionary rules. It is my
further view that the trial court correctly considered
the applicable
legal principles, that is
section 208
of the
Criminal Procedure Act
51 of 1977
and the relevant decisions. The trial court properly
cautioned itself regarding the assessment of the evidence of a young
child
and in weighing her evidence, thus satisfying itself that it
could be accepted as trustworthy and reliable. As stated above, the
complainant had provided an in-depth detail of the rape and her
testimony remained consistent throughout, without contradictions
which in itself, is corroboration.
[41] Given the conspectus
of facts herein, I am satisfied that the trial court correctly
convicted the appellant as charged. In
the result, the appellant’s
version is highly improbable and all his grounds of appeal
ad
conviction stand to be dismissed.
AD SENTENCE
GROUNDS OF APPEAL
AGAINST SENTENCE
[42] The appellant
submits that the life sentence imposed by the trial court is
shockingly inappropriate for the following reasons:
1. The
appellant is a first offender;
2. The
appellant is capable of rehabilitation;
3. The
appellant has a minor child.
[43] The respondent
submits that the sentence imposed by the trial court is neither
severe nor inappropriate and the appeal against
sentence should
therefore be dismissed.
LEGAL PRINCIPLES ON
SENTENCE
[44]
The enquiry regarding the imposition of sentence on appeal is not
whether the sentence is right or wrong but whether the court
acted
reasonably or properly in the exercise of its discretion, as was held
in
S v Obisi
2005
(2) SACR 350
(W)
para
8
.
[45]
In addition to the above, a court of appeal will interfere with a
sentence of a trial court in a matter where the sentence
imposed was
disturbingly inappropriate or when the court, when imposing the
sentence, committed a misdirection (see
S
v Salzwedel and Another
1999 (2) SACR 685
(SCA)
para 10
).
[46] Since
S v
Rabie
1975 (4) SA 855
(A) at 865B-C
, the
courts have consistently 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
an
irregularity or misdirection or is disturbingly inappropriate (see
Rabie
above at 857D-F).
[47]
In
Salzwedel
above at 591G 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.
[48]
According to the triad formulated by the Appellate Division in
S
v Zinn 1969
(2) SA 537 (A)
537A-541B
,
the
personal circumstances of the criminal and the interests of the
community are the relevant factors determinative of an appropriate
sentence.
[49]
In
S v Malgas
2001 (1) SACR 469
(SCA) at para 25
the
court held that ‘
all
factors …..traditionally taken into account in sentencing
(
whether
or not they diminish moral guilt) continue to play a role’ when
considering the question whether substantial and compelling
circumstances as contemplated in
section 51(3)
exist
’.
[50]
In
S v Abrahams
2002 (1) (6) SA 353
(SCA)
,
the court held 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
’.
[51] In
S v
Vilakazi
2012 (6) SA 353
(SCA),
Nugent JA
held that “
One should guard against the danger of heaping
‘excessive punishment…..in the despairing hope of that
it will arrest
the scourge”.
APPELLANT’S
PERSONAL CIRCUMSTANCES
[52] The appellant’s
personal circumstances are the following:
a. He
was 28 years old at the time of sentencing.
b. He is
a single father of a then 3 year old.
c. He
went to school until Grade 10.
d. He
was gainfully employed at the time of his arrest as a contractor and
he supported his child.
e. He
abused drugs.
f. He
suffers from epilepsy and at the time of sentencing, he was not
receiving treatment for his illness.
g. He
was in custody for almost a year and a half awaiting finalization of
the trial.
h. He is
a first offender.
SUBMISSIONS ON BEHALF
OF THE APPELLANT
[53] It is submitted that
this court sets aside the trial court’s sentence and substitute
it with a prison term of 20 years’
imprisonment and or/ a just
sentence, which will still be harsh and further punish the appellant
and also serve as a deterrent.
It further submitted that the
appellant is a first offender and can still be rehabilitated.
ANALYSIS
[54]
It is common cause that the imposition of sentence falls within the
discretion of the trial court and the Court of appeal can
only
interfere when the discretion was not properly exercised.
[55] It is further common
cause that the society is appalled by the unabated sexual assaults on
women, no less on children, hence
the introduction of the minimum
sentence regime to,
inter alia
, address and reduce this
scourge. The complainant in this matter was only 8 years old when she
was sexually attacked by the appellant.
Her grandfather’s
evidence is that she has since become withdrawn following her
despicable ordeal. Her innocence has been
abruptly taken away and
there is nothing to mitigate that. From Dr Dlela’s medical
report, the complainant’s physical
injuries are stated as
follows:
‘
1
.
The clitoris, frenulum
of clitoris, para-urethral folds, labia minora and posterior
fourchette were red in colour. The urethral
orifice was red in colour
and painful. There were no injuries to the mons pubis.
2. The
labia majora showed a bruise of 1cm x 1cm at 9 o’clock.
3.
Changes in the vulva area show there were frictions over the areas
but no penetration beyond the hymen’
.
[56]
It is common cause that the appellant was sentenced in terms of the
minimum sentence regime which provides for a sentence of
life
imprisonment except where it is found that substantial and compelling
circumstances exist. In imposing the sentence of life
imprisonment,
the trial court found that no substantial and compelling
circumstances exist for it to deviate from imposing the
sentence as
it did.
[57]
It is common cause that the seriousness of the offence which the
appellant has been convicted of can never be overemphasized.
It is
further common cause that the appellant pleaded not guilty,
protesting his innocence until the end. The appellant’s
personal circumstances speak for themselves as they appear in
paragraph 50 above.
[58] From Dr Dlela’s
medical report I am of the view that comparatively speaking, the
complainant’s physical injuries
were not severe and that this
factor should by itself have swayed the trial court to reconsider the
question relating to the existence
of substantial and compelling
circumstances in order to justify his deviation from imposing a
sentence life imprisonment. I premise
this view primarily on what the
SCA held in
Abrahams
above 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
’.
[59]
I am of the further view that the cumulative effect of the
appellant’s age at the time of the commission of the offence,
him being a first offender and accordingly the minimal extent in
respect of the physical injuries suffered by the complainant
constitute substantial and compelling circumstances and that the
trial court should have so found. It is for this reason that I
find
that the trial misdirected itself in finding that no substantial and
compelling circumstances exist for it to impose a lesser
sentence. In
my view, the trial court failed to take into account what was held in
Malgas
above that ‘
all
factors …..traditionally taken into account in sentencing
(
whether
or not they diminish moral guilt) continue to play a role’ when
considering the question whether substantial and compelling
circumstances as contemplated in
section 51(3)
exist
’.
[60]
It appears that the trial court overemphasized the interests of the
community or the seriousness of the offence and the deterrence
aspect
of a sentence at the expense of the rehabilitative aspect a sentence
is supposed to carry. In my view, the facts in
casu
do not justify the overemphasis of any of the factors relevant for
sentencing purposes head and shoulders above the others, which
is
what the trial court did. In my further view, the imposition of life
imprisonment sentence in
casu
appears to have negated to balance the main three factors relevant in
sentencing, namely, the personal circumstances of an accused,
the
interests of the community and the offence in question. Given the
accused’s personal factors, it is my view that he can
rehabilitated.
[61]
It may well be so that one factor relating to the appellant’s
personal circumstances, as a stand-alone, does not constitute
a
substantial and compelling circumstances
per
se
. However, I am of
the view that ‘the substantial and compelling circumstances’
test should be approached by considering
all the relevant facts
cumulatively in order to achieve justice.
[62]
As was cautioned against by Nugent JA in
S
v Vilakazi
2012 (6) SA 353
(SCA),
“
One
should guard against the danger of heaping ‘excessive
punishment…..in the despairing hope of that it will arrest
the
scourge”.
The
importance of assessing each case on its own peculiar facts and
circumstances can never be overemphasized. This approach effectively
calls for the importance of assessing each case on its own peculiar
facts and circumstances.
[63]
On the basis of the above I am of the view that the trial court’s
misdirection vitiates its resultant shockingly inappropriate
sentence
which then calls for this court’s interference. I am of the
view that the substitute sentence by this court will
still carry both
the desired retributive and deterrent effect in it and satisfy the
societal interest while also guarding against
what has been cautioned
against by Nugent JA (as he then was), being ‘
the
danger of heaping ‘excessive punishment…..in the
despairing hope of that it will arrest the scourge’
.
[64] In the result I make
the following order.
ORDER
1.
The
appeal on conviction does not succeed and is dismissed.
2.
The
appeal on sentence succeeds and is substituted with the following:
‘
Order
on Sentence
:
2.1
The
accused is sentenced to
20
(twenty) years imprisonment backdated to 15 July 2019.
2.2
In
terms of
section 50(2)(a)
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
, the appellant’s name
be listed in a national Register of Sex Offenders;
2.3
In
terms of
section 120(4)(a)
of the Children’s Act 38 of 2005,
the appellant is declared unfit to work with children;
2.4
In
terms of
section 103(1)(g)
of the
Firearms Control Act 60 of 2000
,
the appellant is declared unfit to possess a firearm’
.
___________
L.
VUMA
Acting
Judge of the High Court
I
agree
__________________
F.
DIPENNAAR
Judge
of the High Court
Heard
on
: 17 August
2020
Judgment
delivered on
: 24
August 2020
Appearances:
For appellant: Ms. M.
Leoto
Instructed by: Legal Aid
Board, Johannesburg
For Respondent: Adv. M.
Van Heerden
Instructed by: Office of
the DPP (GLD, Johannesburg)