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[2013] ZASCA 122
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S v Nkunkuma and Others (101/2013) [2013] ZASCA 122; 2014 (2) SACR 168 (SCA) (23 September 2013)
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SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE NO: 101/2013
Reportable
In the matter between:
THE STATE
.....................................................................................................
APPELLANT
and
PHAKAMANI A NKUNKUMA
...........................................................
FIRST
RESPONDENT
BULELANI MAKALENI
...............................................................
SECOND
RESPONDENT
AVUYILE MASETI
............................................................................
THIRD
RESPONDENT
Neutral citation:
The State v Nkunkuma &
others
(101/13)
[2013] ZASCA 122
(23 September 2013).
Coram:
Ponnan, Bosielo,
Theron, Wallis et Pillay JJA
Heard:
19 September 2013
Delivered:
23 September
2013
Summary:
Appeal
- In terms of s 316(B) of
Criminal Procedure Act 51 of 1977
against
sentences - prescribed minimum sentences – imposition of in
terms of
Criminal Law Amendment Act 105 of 1997
– correct
approach – restated and applied – courts too frequently
deviating from sentences prescribed by legislature
for flimsiest of
reasons – courts have a duty to implement these provisions and
impose those sentences unless truly convincing
reasons exist for
departing from them.
ORDER
On appeal from:
Eastern Cape Circuit Local
Division, East London (Kemp AJ sitting as court of first instance):
1. The appeal by the State is upheld.
2. The sentences imposed by the court a quo on the
respondents are set aside and replaced with the following:
‘
(a) Accused numbers one and three are sentenced
as follows:
(i) In respect of count 1, the housebreaking with intent
to rob, the accused are sentenced to two years’ imprisonment;
(ii) In respect of count 2, the robbery with aggravating
circumstances, the accused are sentenced to fifteen years’
imprisonment;
(iii) In respect of count 3, the rape, the accused are
sentenced to life imprisonment.
(b) Accused number two is sentenced as follows:
(i) In respect of count 1, the housebreaking with intent
to rob, the accused is sentenced to two years’ imprisonment;
(ii) In respect of count 2, the robbery with aggravating
circumstances, the accused is sentenced to twelve years’
imprisonment;
(iii) The sentence imposed on count 1 is ordered to run
concurrently with that imposed on count 2.’
JUDGMENT
Pillay JA (Ponnan, Bosielo, Theron et Wallis JJA
concurring):
[1] During 2011 TB, a 38-year old woman, lived together
with her mother BB, and 3 year-old son, on a smallholding near Beacon
Bay,
just outside East London. During the course of the early evening
of 20 April 2011 TB went out. Shortly after going to bed with her
grandson at about 10 pm, BB awoke to find three intruders in their
home. Two of them were armed with knives. They demanded money
from
her whilst also searching the house for valuables. When BB asked if
she could switch on the television so as to calm her grandson,
the
one who appeared to be the leader threatened to electrocute him if
she did not do as she was told. At that stage the youngest
of the
three intruders sought to reassure her that nothing would happen to
them.
[2] During the course of the burglary TB returned. She
was accompanied by a male friend. The three intruders, it would
appear, then
fled. Having been informed of the incident, TB’s
male friend left to get help. In his absence, the three robbers
returned.
The leader asked TB for money and when she said she did not
have any, he assaulted her. The three robbers then packed their loot
into bags.
[3] When the robbers left with the loot, the leader
pulled TB along with them. She was made to traverse rugged terrain in
the dark.
After a short distance, they stopped and the three robbers
engaged in a private discussion. She was then told to undress and lie
on the ground. She co-operated out of fear and took off her jeans and
boots and lay on her back near a clump of trees. She was
then told to
turn onto her belly and when she complied, she was raped anally by
one of them while the leader held a knife to her
throat. The leader
then raped her vaginally as did one of the others thereafter. She was
then told to collect her clothes and flee
or she would be killed. She
managed to make her way back home in the dark.
[4] During the rape, TB’s diamond ring and
bracelet were taken from her by the perpetrators. A number of other
items were
also taken during the robbery. These included a cellular
phone, a camera, a silver chain, a watch, five bracelets, three other
rings, five necklaces and two brooches. The total value of all of the
stolen items was estimated at R7 000.
[5] The three respondents, Phakamani Allan Nkunkuma,
Bulelani Makaleni and Avuyile Maseti, were arrested two or three days
later
in possession of some of the items which were stolen from the
complainants. They were indicted in the High Court (East London Local
Circuit Division) before Kemp AJ, on charges of housebreaking with
intent to rob (count 1), robbery with aggravating circumstances
as
defined in
s 1
of Act 51 of 1977 (count 2) and rape in contravention
of the provisions of the Criminal Law (Sexual Offences and Related
Matters)
Amendment Act 32 of 2007 (count 3). The second respondent
was not indicted on count 3. Before pleading to the charges, they
were
alerted to the prospect that in the event of a conviction, the
State intended to invoke the provisions of s 51 of the Criminal Law
Amendment Act 105 of 1997 (the Act) which prescribes minimum
sentences for certain scheduled offences. Both robbery and rape are
included in the Schedules of the Act. In addition to the fact that
they were found in possession of the stolen items upon their
arrest a
few days later, the State also relied on DNA evidence that linked the
first and third appellants to the rape and an incriminating
statement
from the second respondent to a police captain that placed him at the
scene. Notwithstanding their pleas of not guilty,
they were all
convicted as charged.
[6]
They were sentenced as follows:
‘
(a) Accused number one:
In respect of count one –
two years’ imprisonment;
In respect of count two –
ten years’ imprisonment;
In respect of count three –
fifteen years’ imprisonment
The sentences in respect of
counts one and two are ordered to run concurrently with each other;
Two years of the sentence in
respect of count two is ordered to run concurrently with the
sentence imposed in count three;
The effective term of
imprisonment is thus eighteen years.
1
(b) Accused number two:
(i) In respect of count one –
one year’s imprisonment;
(ii) In respect of count two –
eight years’ imprisonment;
(iii) The sentences in respect
of counts one and two are ordered to run
concurrently with each other;
(iv) Five years of the sentence
in respect of count two is suspended for
five years on condition that the
accused is not convicted of robbery
committed during the term of
suspension.
(v) The effective term of
imprisonment is thus three years.
(c) Accused number three:
(i) In respect of count one –
two years’ imprisonment;
(ii) In respect of count two –
ten years’ imprisonment;
(iii) In respect of count three
– fifteen years’ imprisonment;
(iv) The sentences in respect of
counts one and two are ordered to run
concurrently with each other;
(vi) Five years of the sentence
in respect of count two is ordered to run concurrently with the
sentence imposed in count three.
(vii) Five years in respect of
count three is suspended for five years on condition that the
accused is not convicted of rape committed
during the term of
suspension.
(viii) The effective term of
imprisonment is thus fifteen years.’
[7] In arriving at these sentences, the court below
found that substantial and compelling circumstances as envisaged in s
51(3)
of the Act existed in respect of each respondent in regard to
count 2 and in respect of first and third respondents on count 3.
Aggrieved by this finding, the appellant (State) applied to the court
below for leave to appeal against the sentences in terms
of
s 316(B)
of the
Criminal Procedure Act 51 of 1977
. Leave was granted to appeal
to this court.
[8] The relevant parts of s 51 of the Act read as
follows:
‘
(1) Notwithstanding any
other law, but subject to subsections (3) and (6), a regional court
or a High Court shall sentence a
person it has convicted of an offence referred to in Part I
of Schedule 2 to imprisonment
for life.
(2) Notwithstanding any other
law but subject to subsections (3) and (6), a regional court
or a High Court shall sentence a
person who has been convicted of an offence referred to
in –
Part II of Schedule 2, in the
case of –
a first offender, to
imprisonment for a period not less than 15 years;
a second offender of any such
offence, to imprisonment for a period not less than 20 years; and
a third or subsequent offender
of any such offence, to imprisonment for a period not less than 25
years;
Part III of Schedule 2, in the
case of –
a first offender, to
imprisonment for a period not less than 10 years;
. . .
. . .
. . .
(3)(
a
) 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 those subsections, it
shall enter those circumstances on the
record of the proceedings and
must thereupon impose such lesser sentence: Provided that if a
regional court imposes such a lesser
sentence in respect of an
offence referred to Part 1 of Schedule 2, it shall have jurisdiction
to impose a term of imprisonment
for a period not exceeding 30 years.
(
aA
) When imposing a
sentence in respect of the offence of rape the following shall not
constitute substantial and compelling circumstances
justifying the
imposition of a lesser sentence:
The complainant’s
previous sexual history;
an apparent lack of physical
injury to the complainant;
an accused person’s
cultural or religious beliefs about rape; or
any relationship between the
accused person and the complainant prior to the offence being
committed.’
[9] In
S v Malgas
,
2
the correct approach to establishing whether or not
substantial and compelling circumstances exist was set out as
follows:
‘
[7] . . . The very fact
that this amending legislation has been enacted indicates that
Parliament was not content with that and
that it was no longer to be
“business as usual” when sentencing for the commission of
the specified crimes.
[8] In what respects was it no
longer to be business as usual? First, a court was not to be given a
clean slate on which to inscribe
whatever sentence it thought fit.
Instead, it was required to approach that question conscious of the
fact that the legislature
has ordained life imprisonment or the
particular prescribed period of imprisonment as the sentence which
should
ordinarily
be imposed for the commission of the listed
crimes in the specified circumstances. In short, the Legislature
aimed at ensuring
a severe, standardised, and consistent response
from the courts to the commission of such crimes unless there were,
and could be
seen to be, truly convincing reasons for a different
response. When considering sentence the emphasis was to be shifted to
the
objective gravity of the type of crime and the public’s
need for effective sanctions against it. But that did not mean that
all other considerations were to be ignored. The residual discretion
to decline to pass the sentence which the commission of such
an
offence would ordinarily attract plainly was given to the courts in
recognition of the easily foreseeable injustices which could
result
from obliging them to pass the specified sentences come what may.
[9] Secondly, a court was
required to spell out and enter on the record the circumstances which
it considered justified a refusal
to impose the specified sentence.
As was observed in
Flannery
v Halifax Estate Agencies Ltd
by
the Court of Appeal, “a requirement to give reasons
concentrates the mind, if it is fulfilled the resulting decision is
much more likely to be soundly based -
than
if it is not”. Moreover,
those circumstances had to be substantial and compelling. Whatever
nuances of meaning may lurk in
those words, their central thrust
seems obvious. The specified sentences were not to be departed from
lightly and for flimsy reasons
which could not withstand scrutiny.
Speculative hypotheses favourable to the offender, maudlin sympathy,
aversion to imprisoning
first time offenders, personal doubts as to
the efficacy of the policy implicit in the amending legislation, and
like considerations
were equally obviously not intended to qualify as
substantial and compelling circumstances. Nor were marginal
differences in the
personal circumstances or degrees of participation
of co-offenders which, but for the provisions, might have justified
differentiating
between them. But for the rest I can see no warrant
for deducing that the legislature intended a court to exclude from
consideration,
ante
omnia
as it were, any
or all of the many factors traditionally and rightly taken into
account by courts when sentencing offenders.’
(See
also
Director of Public Prosecutions,
KwaZulu-Natal v Ngcobo & others
2009 (2)
SACR 361
(SCA);
S v Fatyi
2001
(1) SACR 485
(SCA).)
[10] In arriving at his conclusion that a departure from
the minimum sentence was warranted, the learned Judge stated:
'[u]nder
all the circumstances, and bearing in mind the “predictable
outcomes” mentioned in Matyityi, I am satisfied that the
prescribed minimum sentences would be so disproportionate to the
sentences which would normally be imposed that it constitutes
substantial and compelling circumstances permitting me to impose a
lesser sentence.' It is however unclear what exactly the learned
judge intended to convey by that statement. The phrase ‘predictable
outcomes’ does not appear in
Matyityi
.
3
Apart from that, if he intended to follow
Matyityi
,
its import militates against the conclusion arrived at by the court
below. The court below was clearly alive to the provisions
of the
Act, but instead of starting its enquiry with the Act, as it ought
to, it sought guidance in a range of disparate cases.
4
Those cases were however decided on their own peculiar
facts. The starting point in a matter such as this is the prescribed
minimum
sentences ordained by the legislature. To have approached the
matter as if the sentencing yardstick was the sentences imposed in
those cases and to then ask whether the applicable minimum sentences
could be considered too severe against that benchmark constituted
a
misdirection. This court is thus at large to consider the question
afresh.
[11] Prior to sentencing the respondents, a
pre-sentencing report was placed before the court below. Ms Nel, a
social worker, investigated
the position of the respondents and
reported on each as follows:
(a) The first respondent was 21 years old at the time of
the commission of the offences. He is the older of two children and
was
raised by a single parent but nonetheless enjoyed the care and
guidance of members of his extended family. His father played a
lesser role. He grew up in a religious home with established positive
norms and values. His financial needs were always met but
with the
passing of his mother and then his grandparents, it became difficult
with only his father maintaining them. He did not
complete his
secondary education and was unemployed. He had one previous
conviction for housebreaking with intent to steal and
theft committed
on 30 July 2009. He received a totally suspended sentence for the
offence (when he was about 19 years old). He
denied participating in
the events which led to his convictions and maintained that he was
not guilty.
(b) The second respondent celebrated his nineteenth
birthday just two weeks before the commission of these offences. He
is reported
to have grown up with both his parents and is the older
of two children. However, his mother was an alcoholic and had a
wayward
lifestyle which, in turn, had a negative impact on him. This
seemed to have been countered somewhat by the efforts of his
wheelchair-bound
father who was a church minister. He was devastated
by the passing of his father and consequently left school in grade 9.
He managed
to obtain employment and helped his grandmother care for
the family. He participated in sport. He had no previous convictions.
He continued to deny his guilt and maintained that he did not know
anything about the crimes.
(c) The third respondent was 22 years and three months
old when the offences were committed. He was reported to have grown
up in
a stable home and for which his father provided well. His
parents instilled positive norms and values in him. After the death
of
his father, life took a turn for the worse and his mother
struggled to fend for the family. This resulted in the respondent
leaving
school before completing his secondary education. He gained
income from casual employment. He had a girlfriend with whom he has
a
child. He has two previous convictions. The first was for robbery for
which he received a totally suspended sentence in November
2005 (when
he was 15 years old). The second was for housebreaking with intent to
steal and theft (when he was about 16 years old).
He received a
non-custodial sentence in respect of this offence also. He too denied
any guilt and maintained that he had nothing
to do with the
commission of these crimes.
[12] In so far as TB is concerned, it is common cause
that as a result of her ordeal, she sustained a number of injuries
which included
a laceration to her inner lip, multiple bruises to her
buttocks, abrasions and scratches to her legs. None of these physical
injuries
were described as serious. However, the psychological impact
still remained devastating. She lived in close proximity to her
immediate
family in a pleasant country environment. She worked in
East London. She found this an enjoyable life. After the rape she
felt
insecure, violated and developed a low self-esteem. This caused
her to abandon her employment and home and to relocate with her
son
to Johannesburg.
[13] It is unclear which factors were actually held by
the court below to constitute substantial and compelling
circumstances. The
learned judge held:
'All three pleaded alibi
defences in the face of overwhelming evidence against them and it is
thus difficult to avoid the conclusion
that they are unremorseful and
do not appreciate what society demands of them. However, I would be
failing in my duties as a sentencing
officer if I did not bear in
mind their actual youthfulness and the relative gravity of the
crimes. Their not guilty pleas were
clearly misguided and may not
have been so much proof of their lack of remorse as proof of their
immaturity.'
[14] Those factors do not without more constitute
substantial and compelling circumstances for as Ponnan JA pointed out
in
S v Matyityi
:
5
‘
[13] . . . There is,
moreover, a chasm between regret and remorse. Many accused persons
might well regret their conduct, but that
does not without more
translate to genuine remorse. Remorse is a gnawing pain of conscience
for the plight of another. Thus genuine
contrition can only 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 or herself 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.
After
all, before a court can find that an accused person is genuinely
remorseful, it needs to have a proper appreciation of, inter
alia:
what motivated the accused to commit the deed; what has since
provoked his or her change of heart; and whether he or she
does
indeed have a true appreciation of the consequences of those actions.
There is no indication that any of this, all of which
was peculiarly
within the respondent's knowledge, was explored in this case.
[14] Turning to the respondent’s
age: what exactly about the respondent's age tipped the scales in his
favour, was not elaborated
upon by the learned judge. During the
course of the judgment reference was made to the respondent's
‘relative youthfulness’,
without any attempt at defining
what exactly that meant in respect of this particular individual. It
is trite that a teenager is
prima facie to be regarded as immature
and that the youthfulness of an offender will invariably be a
mitigating factor, unless
it appears that the viciousness of his or
her deeds rule out immaturity. Although the exact extent of the
mitigation will depend
on all of the circumstances of the case, in
general a court will not punish an immature young person as severely
as it would an
adult. It is well established that, the younger the
offender, the clearer the evidence needs to be about his or her
background,
education, level of intelligence and mental capacity, in
order to enable a court to determine the level of maturity and
therefore
moral blameworthiness. The question, in the final analysis,
is whether the offender’s immaturity, lack of experience,
indiscretion
and susceptibility to being influenced by others reduce
his blameworthiness. Thus, whilst someone under the age of 18 years
is
to be regarded as naturally immature, the same does not hold true
for an adult. In my view a person of 20 years or more must show
by
acceptable evidence that he was immature to such an extent that his
immaturity can operate as a mitigating factor. At the age
of 27 the
respondent could hardly be described as a callow youth. At best for
him, his chronological age was a neutral factor.
Nothing in it
served, without more, to reduce his moral blameworthiness. He chose
not to go into the box, and we have been told
nothing about his level
of immaturity or any other influence that may have been brought to
bear on him, to have caused him to act
in the manner in which he
did.’
[15]
Here the three respondents
breached the sanctity of their victims’ home. Having made good
their escape when TB returned, they
came back first to rob her as
well and then to force her into the veld where she was raped more
than once by first and third respondents.
It must have been a
terrifying ordeal for all of the victims. TB testified that she felt
forced to co-operate with her attackers
as she thought that they were
planning to kill her.
[16]
Rape and robbery have become
serious social problems. It is not difficult to take judicial notice
of this phenomenon in the light
of the number of such cases dealt
with by the regional courts, the High Courts and those which
eventually come to this court. The
shocking statistics regarding rape
(albeit some eight years old),
dealt
with
in
S v De Beer
6
and referred to in
Matyityi
,
are set out in the following quote:
‘
It is widely accepted
that the statistics of reported rape reflect only a small percentage
of actual offences. NICRO estimates that
only 1 out of every 20 rapes
is reported, whilst the South African Police Service puts the figure
at 1 out of 35. For the first
six months of 1998, 23 374 rapes
were reported nationally. As an annual indicator of rape employing
the lower 1 out of 20
estimate, the figure was a staggering 934 960.
Research at the Sexual Offences Court in the Western Cape, for the
same period,
reveals that of the reported rape cases: 56.62% were
referred to court; 18.67% were prosecuted; and, only 10.84% received
guilty
verdicts.’
[17]
Rape must rank as the worst
invasive and dehumanising violation of human rights. It is an
intrusion of the most private rights of
a human being, in particular
a woman, and any such breach is a violation of a person’s
dignity which is one of the pillars
of our Constitution. There does
not seem to be any significant decline in the incidence of rape since
the publication of the statistics
referred to above. The same can be
said of robbery. No matter how they are viewed, society has called,
on more than one occasion,
for the courts to deal with offenders of
such crimes sternly and decisively.
[18]
In the cases of first
respondent,
who was identified as the leader, and
the third respondent, who also played a significant role in the
events of the night, there
are no substantial and compelling
circumstances which justify a departure from the prescribed minimum
sentences. Had the high court
considered the triad of the offence,
offender and the interests of society and sought to properly balance
those against each other,
the prescribed minimum sentences should
have been imposed on first and third respondents.
[19] The position of second respondent is different. His
role appears to have been substantially less than the others. There
is
no evidence that he actively assisted in taking TB out of the
house. He also attempted to re-assure BB, when her grandson was
threatened
with electrocution. He was barely 19 years old at the
material time and has a clean record. He was affected by his mother’s
wayward lifestyle though this was somewhat balanced by his father’s
teachings. He also tried to assist in caring for what
was left of the
family after his father died by obtaining employment. He spent eleven
months in custody awaiting his trial. These
factors cumulatively
constitute substantial and compelling circumstances.
[20] However, the sentence of an effective three years’
of imprisonment is woefully inappropriate and is shockingly lenient
in the light of the seriousness of the crimes and the manner in which
they were committed. The prescribed minimum sentence of 15
years’
imprisonment remains the starting point. In my view, taking all the
factors into consideration a reduction of 3 years
would be justified
in his case.
[21] In the result:
The appeal by the State is upheld.
The sentences imposed by the court a quo on the
respondents are set aside and replaced with the following:
‘
(a) Accused numbers one and three are sentenced
as follows:
In respect of count 1, the housebreaking with intent to
rob, the accused are sentenced to two years’ imprisonment;
In respect of count 2, the robbery with aggravating
circumstances, the accused are sentenced to fifteen years’
imprisonment;
In respect of count 3, the rape, the accused are
sentenced to life imprisonment.
Accused number two is sentenced as follows:
In respect of count 1, the housebreaking with intent to
rob, the accused is sentenced to two years’ imprisonment;
In respect of count 2, the robbery with aggravating
circumstances, the accused is sentenced to twelve years’
imprisonment;
The sentence imposed on count 1 is ordered to run
concurrently with that imposed on count 2.’
R. PILLAY
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: Adv N C Turner
Instructed by:
Director of Public Prosecutions, Grahamstown
Director of Public Prosecutions, Bloemfontein
FOR RESPONDENTS: Adv E Crouse
Instructed by:
Legal Aid South Africa, King William’s Town
Legal Aid South Africa, Bloemfontein
1
The
computation of the effective sentence is incorrect and should
actually have read twenty-three years.
2
S
v Malgas
2001 (1) SACR 469
(SCA) paras
7-9.
3
S
v Matyityi
2011 (1) SACR 40
(SCA).
4
Inter
alia,
Mahomotsa
2002
(2) SACR 435
(SCA);
S v Nkomo
2007 (2) SACR 198
(SCA);
S
v Sikhipa
2006 (2) SACR 439
(SCA);
Sekgobela v The State
(A/244/2006)
[2008] ZAGPHC 89
(14 March 2008)
TPD;
S v Mabuza
and
others
(174/01)
[2007] ZASCA 110.
5
Paras
13-14.
6
S
v De Beer
2005 JDR 0004 (SCA) para 19.