• Law Reports
  • S v Ncube (Sentence) (SS26/2023) [2023] ZAGPJHC 1034 …

S v Ncube (Sentence) (SS26/2023) [2023] ZAGPJHC 1034 (15 September 2023)

85 Reportability
Criminal Law
View PDF SAFLII Source
Share WhatsApp LinkedIn X Email

Brief Summary

Criminal Law — Sentencing — Trafficking in persons and sexual offences — Accused found guilty of multiple counts including human trafficking, rape, sexual assault, and impersonating a police officer — Personal circumstances considered, including being a first offender and family responsibilities — Seriousness of offences highlighted by targeting vulnerable young boys for sexual exploitation — Lack of remorse and danger to the community emphasized — Court imposed life imprisonment as prescribed by law, finding no substantial and compelling circumstances to deviate from the minimum sentence.

Comprehensive Summary

Summary of Judgment


1. Introduction


This judgment concerned sentencing proceedings in the Gauteng Local Division, Johannesburg, following the accused’s conviction on multiple serious offences involving child trafficking for sexual exploitation, rape, sexual assault, assault, kidnapping, and impersonation of a police official.


The parties were the State as prosecutor and Michael Ncube as the accused.


Procedurally, the matter had progressed to the sentencing stage after the accused had been found guilty on several counts. The court’s task in this judgment was to determine appropriate sentences, including whether the statutorily prescribed sentences—most notably life imprisonment under the minimum sentencing regime—should be imposed, and whether any legally recognised basis existed to justify a lesser sentence.


The dispute’s general subject matter concerned the sentencing response to offences committed against young male victims who were recruited, transported, and harboured for sexual exploitation, in circumstances where the accused exploited perceived authority associated with being (or pretending to be) a police officer, and where the offences attracted prescribed minimum sentences.


2. Material Facts


The court treated as materially established that the accused deliberately targeted young boys whom he regarded as vulnerable and exploitable. The offences involved the recruitment, transportation, and harbouring of child victims for sexual exploitation, including conduct constituting rape and sexual assault. The court accepted that the victims were moved away from their familiar surroundings into unfamiliar environments, thereby increasing their vulnerability.


A further material feature was the accused’s use of power and intimidation. In some instances, the accused induced fear by pointing a firearm at a victim, and the court accepted that at least one victim was afraid to open a case because the accused was perceived as a policeman who could enlist other police officers to threaten him. The court also accepted that the accused used another person (identified as S) to recruit other boys and threatened S with violence against his only living relative if he did not comply, and that deception was used in the recruitment process.


The court accepted that the accused offered victims financial or hardship relief, exploiting the reality that poverty and lack of income can function as a “push factor” for internal child trafficking. The court further treated as material that the victims did not necessarily recognise themselves as having been trafficked, but were in fact victims of trafficking for sexual exploitation.


Victim impact reports were placed before the court and were treated as materially relevant to sentence. The court accepted that the offences caused substantial psychological, emotional, and social harm, including shame, fear, anger, impaired schooling, and ongoing trauma. The court considered the seriousness of rapes and sexual assaults against young boys as involving emasculation, physical and psychological scarring, and likely lasting effects on future relationships.


On the accused’s personal circumstances, the court accepted that he was 38 years old, had two children (aged 16 and 20), had been earning income through transporting schoolchildren and adults, and was a first offender. The court also accepted that the accused had been in custody since April 2022 prior to sentencing.


The judgment records that the accused showed no remorse, persisted in a stance of innocence despite conviction, and did not assist the court in understanding what triggered his offending conduct, which the court treated as relevant to risk and sentence.


3. Legal Issues


The central legal question was whether, given the convictions on offences attracting the minimum sentencing regime, the court was obliged to impose life imprisonment on the relevant rape counts and, relatedly, whether “substantial and compelling circumstances” existed under section 51(3) of the Criminal Law Amendment Act 105 of 1997 to justify a lesser sentence than that prescribed.


A further issue concerned the proper approach to the accused’s pre-sentence detention as a sentencing consideration, including whether it could affect proportionality and justify a departure from prescribed sentences.


The sentencing enquiry required the court primarily to apply legal principles to established facts, involving both an evaluative assessment (proportionality, seriousness, societal interests) and the exercise of sentencing discretion where permitted, particularly in relation to concurrency and additional statutory consequences such as registration and firearm unfitness.


4. Court’s Reasoning


The court approached sentencing by considering the customary triad of the personal circumstances of the accused, the seriousness of the offences, and the interests of the community. It emphasised the exceptional seriousness of offences involving trafficking of children for sexual exploitation and sexual violence against young boys.


On seriousness, the court reasoned that the trafficking counts demonstrated deliberate predation on vulnerable children, including exploitation of their age, social circumstances, and economic circumstances. It treated the accused’s conduct as aggravating because it involved moving victims away from their homes into unfamiliar environments, thereby heightening vulnerability, and because coercion and threats were used in the trafficking process, including threats involving a firearm. The court also considered the abuse of perceived police authority as particularly serious, because children associate police with protection rather than exploitation.


The court relied on the statutory framework indicating the legislature’s view of trafficking and rape as grave offences warranting severe punishment. It specifically noted that section 51(1) of the Criminal Law Amendment Act 105 of 1997 required life imprisonment for offences in Part 1 of Schedule 2 (as applicable to the rape counts before it), subject only to a finding of substantial and compelling circumstances.


In evaluating whether a departure from prescribed life imprisonment was justified, the court applied the approach described in S v Malgas 2001 (1) SACR 469 (SCA), namely that a lesser sentence may be imposed only if the prescribed sentence would be unjust because it would be disproportionate to the crime, the criminal, and the needs of society. The court treated the accused’s reliance on being a first offender, having dependants, being 38 years old, and being a breadwinner as insufficient to constitute substantial and compelling circumstances warranting deviation. The court acknowledged potential hardship to the accused’s child but considered that alternative care arrangements existed and that the impact on dependants could not, in the circumstances, justify avoiding custodial punishment where the offences were of extreme gravity.


The court considered the accused’s lack of remorse as materially aggravating. It reasoned that the absence of remorse hindered insight into triggers for the offending and suggested the accused posed an ongoing danger, supporting removal from society through a long-term custodial sentence.


As to the period of pre-sentence incarceration, the court applied DPP v Gcwala (295/13) [2014] ZASCA 44 (31 March 2014), treating pre-sentence detention as a factor to be weighed in proportionality, but not as a stand-alone substantial and compelling circumstance. Considering all circumstances, the court held that life imprisonment on the rape counts remained just and proportionate.


Finally, the court exercised sentencing discretion regarding the structure of the sentence by ordering concurrency, and it gave effect to statutory consequences by directing registration on the sexual offenders register and declaring the accused unfit to possess a firearm.


5. Outcome and Relief


The court imposed life imprisonment on the rape convictions and imposed determinate terms of imprisonment on the remaining counts, with an order that all the sentences run concurrently with the life sentence imposed on count 5. The court further ordered that the accused’s name be entered into the register of sexual offenders in terms of section 50 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, and declared the accused unfit to possess a firearm in terms of section 103(1)(g) of the Firearms Control Act 60 of 2000.


No costs order was made (as is typical in criminal sentencing matters, and none is recorded in the judgment).


The sentences imposed were as follows:


| Count | Sentence |
|---|---|
| 1 | 10 years’ imprisonment |
| 2 | 5 years’ imprisonment |
| 3 | 5 years’ imprisonment |
| 4 | 2 years’ imprisonment |
| 5 | Life imprisonment |
| 7 | 5 years’ imprisonment |
| 8 | 10 years’ imprisonment |
| 9 | Life imprisonment |
| 11 | Life imprisonment |
| 12 | 2 years’ imprisonment |
| 13 | 2 years’ imprisonment |
| 14 | 2 years’ imprisonment |
| 15 | 10 years’ imprisonment |
| 16 | 5 years’ imprisonment |
| 17 | 2 years’ imprisonment |
| 18 | 10 years’ imprisonment |
| 19 | Life imprisonment |
| 20 | 2 years’ imprisonment |
| 21 | 10 years’ imprisonment |
| 22 | Life imprisonment |
| 23 | 2 years’ imprisonment |
| 25 | 5 years’ imprisonment |
| 27 | 5 years’ imprisonment |


The court ordered that the sentences on counts 1, 2, 3, 4, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25 and 27 run concurrently with the sentence of life imprisonment imposed on count 5.


Cases Cited


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


DPP v Gcwala (295/13) [2014] ZASCA 44 (31 March 2014).


Legislation Cited


Prevention and Combatting of Trafficking in Persons Act 7 of 2013.


Criminal Procedure Act 51 of 1977.


Criminal Law Amendment Act 105 of 1997.


Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.


South African Police Services Act 68 of 1995.


Firearms Control Act 60 of 2000.


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The High Court held that, given the accused’s convictions on multiple counts including rape attracting the minimum sentence of life imprisonment, no substantial and compelling circumstances were present to justify a departure from the prescribed sentence. The accused’s reliance on being a first offender, being 38 years old, having dependants, and being a breadwinner was not regarded as sufficient to render life imprisonment disproportionate in light of the gravity of the offences.


The court further held that pre-sentence detention was a factor to consider in the overall proportionality enquiry but did not, on the facts, make life imprisonment unjust. It accordingly imposed life imprisonment on the relevant rape counts, imposed additional determinate sentences on the remaining counts, structured concurrency so that the effective sentence remained life imprisonment, ordered registration on the sexual offenders register, and declared the accused unfit to possess a firearm.


LEGAL PRINCIPLES


The judgment applied the principle that where an offence falls under the minimum sentencing regime in section 51 of the Criminal Law Amendment Act 105 of 1997, the prescribed sentence (including life imprisonment) must be imposed unless the court is satisfied that substantial and compelling circumstances exist that render the prescribed sentence unjust because it would be disproportionate to the crime, the offender, and the interests of society, consistent with S v Malgas 2001 (1) SACR 469 (SCA).


It further applied the principle that pre-sentence detention is a relevant sentencing consideration, but it is not assessed in isolation; it is weighed as one factor in determining whether the effective sentence is proportionate and just in all the circumstances, consistent with DPP v Gcwala (295/13) [2014] ZASCA 44 (31 March 2014).


The judgment also reflects the sentencing principle that offences involving sexual violence against children and trafficking for sexual exploitation are treated as exceptionally serious, with victim impact and the abuse of vulnerability and power materially aggravating sentence, and that lack of remorse may be treated as relevant to rehabilitation prospects and risk to the community.


Finally, the judgment applied statutory consequences accompanying sexual offences and violent conduct, including the requirement to consider entry into the register for sexual offenders under section 50 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 and a declaration of unfitness to possess a firearm under section 103(1)(g) of the Firearms Control Act 60 of 2000.

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2023
>>
[2023] ZAGPJHC 1034
|

|

S v Ncube (Sentence) (SS26/2023) [2023] ZAGPJHC 1034 (15 September 2023)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NUMBER:
SS26/2023
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
15.09.23
In the matter between:
THE
STATE
And
NCUBE
MICHAEL
Accused
SENTENCE
DOSIO J:
Introduction
[1]  The accused was
found guilty on the following counts:
(a) five counts of
contravening section 4(1) read with sections 1, 2, 3, 11, 13(a), 14,
29, 30 and 48 of the Prevention and Combatting
of Trafficking in
Persons Act 7 of 2013 (‘Act 7 of 2013’) and read with
sections 94, 256, 257, 261A(1) and (2) and
270 of the Criminal
Procedure Act 51 of 1977 (‘Act 51 of 1977’) and read with
the provisions of section 51(1) of schedule
2 of the Criminal Law
Amendment Act 105 of 1997 (‘Act 105 of 1997’) as amended,
these are counts 1, 8, 15, 18 and 21.
Section 13(a) of Act 7 of 2013
states that s4(1) of this Act is subject to s51 of Act 105 of 1997
and it states that a person convicted
of such an offence is liable to
a fine not exceeding R100 million or imprisonment, including
imprisonment for life.
(b) Five counts of rape
as contemplated in section 3 read with sections 1, 55, 58, 59 and 60
of the Criminal Law (Sexual Offences
and Related Matters) Amendment
Act 32 of 2007 (‘Act 32 of 2007’) read with sections 92,
94, 256, 257, 261 and 281 of
Act 51 of 1977 and further read with
section 51 (1) of Act 105 of 1997 on counts 5, 9, 11, 19 and 22.
Section 51 of Act 105 of
1997 states that a High Court shall sentence
a person to life imprisonment.
(c) Six counts of sexual
assault as contemplated in section 5(1) read with sections 1, 55, 58,
59 and 60 and 94 of Act 32 of 2007
read with
sections 92
,
94
,
256
,
257
,
261
and
281
of the
Criminal Procedure Act 51 of 1977
on counts
2, 3, 7, 16, 25 and 27;
(d) One count of assault
with the intent to cause grievous bodily harm in count 12;
(e) One count of assault
on count 23;
(f) One count of
kidnapping on count 13;
(g) Four counts of
contravening
s68(1)
read with the provisions of sections 1, 5(2) and
29 of the South African Police Services Act No 68 of 1995 in respect
to impersonating
a member of the South African Police service on
counts 4, 14, 17 and 20.
[2]  For purposes of
sentence, this Court has taken into consideration the personal
circumstances of the accused, the seriousness
of the offences for
which he has been found guilty and the interests of the community.
The personal
circumstances of the accused
[3]  The accused is
38 years old and has two children aged 16 and 20 years old
respectively. The accused was the breadwinner
at home in that he was
transporting school children earning R2600 per month and also
transported adults earning R9000 per month.
He is a first offender.
The seriousness of
the offences
[4]  As regards the
human trafficking counts, it is clear that the accused deliberately
targeted these young boys who he believed
he could easily exploit.
The accused abused their vulnerability. Children believe a police man
is there to protect them, not to
sexually exploit them. He took
advantage of the vulnerabilities of these boys due to their young
age, social circumstances or economic
circumstances.
[5]  The accused
mobilized these young boys by moving them away from their homes and
familiar environment into an unfamiliar
environment thereby
increasing their vulnerability. This mobilisation included the act of
recruitment for sexual exploitation.
In certain of the
instances, in order to secure their vulnerability, the accused
through the abuse of power induced further fear
into these boys by
pointing a firearm at them. O.2 was afraid to open up a case against
the accused as he was afraid the accused
would come with his police
friends to threaten him.
[6]  It is clear
that traffickers, like in this instance, target boys which have few
economic opportunities, food or money.
The accused in the matter
in
casu
offered them financial and hardship relief.
[7]  Research
indicates that poverty or the lack of income is a significant push
factor in internal child trafficking in South
Africa. Often victims
of trafficking are not even aware that they have been trafficked and
that they have the right to be seen
and treated as victims. The high
sentences imposed for trafficking is indicative that the trafficking
of children in South Africa
is rife and that the legislature has
identified the necessity to create high sentences for this type of
crime.
[8]
O.1 S, T.1 M, B B, S N, O.2 C and T.2 M were recruited, transported
and harboured by the accused for the sole purpose
of sexual
exploitation. They did not realise that they were victims of
trafficking. These children were all very young. Apart from

recruiting boys himself, the accused also used S to recruit boys and
threatened him that if he did not do as he was told he would
kill his
only living relative, namely his grandfather.
The
accused instructed S to recruit B by means of deception.
[9]  Almost half of
identified cases of child trafficking begin with some family member
involvement. The role of people who
were considered friends by the
victim is also important in the initial phases of trafficking of
children. During the trafficking
process, as in the matter
in
casu
, the children reported they were coerced through
psychological abuse.  What makes this case serious is that the
accused trafficked
these children for his own sexual pleasure.
[10]  Victim impact
reports were handed in for O.1 S(counts 1-7) (exhibit ‘BB’),
T.1 M (counts 8-14) (exhibit ‘CC’),
B B (counts 15-17)
(exhibit ‘DD’), S N (counts 18-20) (exhibit ‘EE’),
O.2 C (counts 21-23) (exhibit ‘FF’),
T.2 M (count 25)
(exhibit ‘GG’), and K M (count 27) (exhibit ‘HH’).
[11]  As regards O.1
S he stated in the victim impact report that during all the
oppression he felt like he was losing himself,
he was embarrassed of
being a boy who was forced to sleep and have sex with another man. He
developed anger towards other men and
cut out all his male friends as
he was upset with the male human species. He is still experiencing
difficulties to talk about this
to anyone close to him and has not
completely healed from this experience. He blames the accused for a
lot of changes in his life
including his hatred for other men.
[12]  As regards T.1
M he stated in the victim impact report that during this ordeal he
was always afraid to open up a case
against the accused as he was a
policeman. These incidents started to damage his thoughts and ability
to think which led to him
not returning to school. He requested that
the accused pay for the damages he did to his body.
[13]  As regards B B
he stated in the victim impact report that the day this incident
happened to him he feared everyone who
came close to him and it felt
as if it was the end of the world. His relationship with his friends
came to an end as he felt embarrassed
by what had happened to him. He
stated that as a result of his penis being slapped by the accused, he
developed pain in his testicles.
[14]  As regards S
he stated in the victim impact report that after the incidents he
felt as if he was useless as he had not
protected his body from this
sexual abuse. The incidents have affected him in that he has
sleepless nights always thinking about
what happened to him. He fears
that the accused is always in the room where he is sleeping and that
he will do it again. When he
is with his friends he feels embarrassed
as he feels they may know what happened to him. He stated that the
pain he feels inside
in unbearable.
[15]  In respect to
O.2 C he stated in the victim impact report that after these sexual
incidents occurred he felt embarrassed
as his friends at school would
look at him as if they knew something was wrong and this affected him
immensely. He as a result
has no more friends. The behaviour of the
accused shocked him as he thought the accused was a police officer
who should be there
to love and help his community, not to do what he
did.
[16]  In respect to
T.2 M he stated in the victim impact report that he felt embarrassed
and ashamed as his friends started
to spread stories about him that
he had been raped which was not the case. As a result, he started
staying indoors and avoided
his friends.
[17]  The offence of
rape of young boys is extremely serious in that it emasculates them
leaving serious physical and psychological
scars. These boys will
experience difficulties in their future sexual relationships. Sexual
assault equally will have an impact
on these boys. Their age is
crucial in that they were all very young when these sexual acts were
committed to them and because
they were at their initial stages of
development into adults, naturally the inability to consent to
natural sexual acts, as in
the matter
in casu
, will affect
them as adults.
[18]  The offence of
falsely representing to people that one is a police officer is
equally serious. A contravention of s68(1)
of the South African
Police Services Act 68 of 1995 states that in instances where false
representations are made that one is a
police officer such a person
will be liable to imprisonment not exceeding two years imprisonment.
Interests of the
community
[19] In respect to the
interests of the community, this court has taken note of the fact
that the community observes the sentences
that courts impose and the
community expect that the criminal law be enforced and that offenders
be punished. The community must
receive some recognition in the
sentences the courts impose, otherwise the community will take the
law into their own hands. If
a proper sentence is imposed, it may
deter others from committing these crimes.
[20]  Section 51(1)
of Act 105 of 1997 dictates that if an accused has been convicted of
an offence referred to in part 1 of
schedule 2 he shall be sentenced
to life imprisonment.
[21]  Section 51(3)
of Act 105 of 1997 states that if any court referred to in subsection
(1) or (2) is satisfied that substantial
and compelling circumstances
exist which justify the imposition of a lesser sentence than the
sentence prescribed in these subsections,
it shall enter those
circumstances on the record of the proceedings and must thereupon
impose such lesser sentence.
[22]
As stated in the case of
S
v Malgas
,
[1]
the Supreme Court of Appeal held that:
‘
if
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would
be done by imposing that sentence, it is entitled to impose a lesser
sentence.’
[2]
[23]  The accused
has not shown any remorse in this matter. He decided to plead not
guilty, which although it is his constitutional
right, he had the
choice to come to the witness bench and plead mercy knowing that he
had been found guilty of destroying the lives
of these young boys,
yet he persists with his belief that he is innocent. Due to the lack
of remorse, this Court is unable to determine
what the triggers were
that made this accused prey on young boys. As a result, he is a
danger to the community and he must be removed
from the community.
The defence counsel has asked that this court find that the following
are compelling and substantial circumstances
to depart from the
minimum prescribed sentence, namely:
(a)
that the accused is a first offender;
(b)
that he is 38 years old and has two children aged
16 and 20 years respectively;
(c)
that he was the breadwinner.
[24] This Court does not
find the above mentioned factors and compelling or substantial to
depart from the minimum prescribed sentence
of life imprisonment on
5, 9, 11, 19 and 22. This Court is aware of the hardship that a
sentence of imprisonment will have on the
accused’s son,
however, he will be looked after by the child’s aunt. The fact
that the accused’s son will be
deprived of the breadwinner,
namely the accused, is not a reason to give the accused a
non-custodial sentence.
[25]
The accused has been in custody since April 2022, but as stated in
the matter of
DPP
v Gcwala,
[3]
the Supreme Court of Appeal held that the period in detention
pre-sentencing is but one of the factors that should be taken into

account in determining whether the effective period of imprisonment
to be imposed is justified and whether it is proportionate
to the
crimes committed. It was further stated in this case that the test is
not whether on its own that period of detention constitutes
a
substantial and compelling circumstance, but whether the effective
sentence proposed is proportionate to the crimes and whether
the
sentence in all the circumstances, including the period spent in
detention prior to conviction and sentence is a just one.
This Court
finds the sentence of life imprisonment in respect to the rape counts
is a just sentence in the circumstances of this
case.
Findings
[26]    In the
result, the accused is sentenced as follows:
Count 1 ten years
imprisonment
Count 2 five years
imprisonment
Count 3 five years
imprisonment
Count 4 two years
imprisonment
Count 5 life imprisonment
Count 7 five years
imprisonment
Count 8 ten years
imprisonment
Count 9 life imprisonment
Count 11 life
imprisonment
Count 12 two years
imprisonment
Count 13 two years
imprisonment
Count 14 two years
imprisonment
Count 15 ten years
imprisonment
Count 16 five years
imprisonment
Count 17 two years
imprisonment
Count 18 ten years
imprisonment
Count 19 life
imprisonment
Count 20 two years
imprisonment
Count 21 ten years
imprisonment
Count 22 life
imprisonment
Count 23 two years
imprisonment
Count 25 five years
imprisonment
Count 27 five years
imprisonment
The court orders that the
sentences imposed on counts 1, 2, 3, 4, 7, 8, 9, 11, 12, 13, 14, 15,
16, 17, 18, 19, 20, 21, 22, 23, 25
and 27 will run concurrently with
the sentence of life imprisonment imposed on count 5. In terms of s50
of the Sexual Offences
and Related Matters Amendment Act 32 of 2007
the accused’s name is to be entered into the register of sexual
offenders. In
terms of
s103(1)(g)
of the
Firearms Control Act 60 of
2000
the accused is declared unfit to possess a firearm.
D DOSIO
JUDGE
OF THE HIGH COURT
JOHANNESBURG
Date Heard:   15
September 2023
Judgment handed down:
15 September 2023
Appearances:
On behalf of the
State:
Adv C. Ryan
On behalf of the
Accused:
Adv L. Mqongozi
[1]
S
v Malgas
2001
(1) SACR 469
SCA.
[2]
Ibid para i.
[3]
DPP
v Gcwala
(295/13)
[2014] ZASCA 44
(31 March 2014).

Back to Law Reports