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[2010] ZAECPEHC 14
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Ndima v S (CA 49/2009) [2010] ZAECPEHC 14 (3 May 2010)
FORM
A
FILING
SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT
ECJ:
PARTIES
:
MTHUTHUZELIERIC
NDIMA
AND
THE
STATE
Registrar:
CA
49/2009
Magistrate:
High
Court:
EASTERN
CAPE HIGH COURT, GRAHAMSTOWN
DATE
HEARD:
29/03/10
DATE
DELIVERED:
03/05/10
JUDGE(S):
JONES
and EBRAHIM JJ, and MAKAULA AJ
LEGAL
REPRESENTATIVES –
Appearances:
for
the Appellant(s):
ADV:
E Theron
for
the Respondent(s):
ADV:
M Moodley
Instructing
attorneys:
for
the Appellant
(s):
JUSTICE
CENTRE (PORT ELIZABETH)
for
the Respondent(s)
:
DIRECTOR
OF PUBLIC PROSECUTION (PE)
CASE
INFORMATION -
Nature
of proceedings
:
APPEAL
R
eportable
THE
HIGH COURT OF SOUTH AFRICA
In
the Eastern Cape High Court CC 44/2002 SELD
Grahamstown CA
49/2009
In
the matter between
MTHUTHUZELI
ERIC NDIMA Appellant
and
THE
STATE Respondent
Coram
JONES AND EBRAHIM JJ, AND MAKAULA AJ
Summary
Appeal
– rape – sentence – life imprisonment –
whether substantial and compelling circumstances were present
to
justify a lesser sentence in terms of section 51(3) of Act No 105 of
1997 – prescribed sentence unjust because of a striking
disparity between it and an appropriate sentence of 15 years’
imprisonment – sentence altered accordingly on appeal.
JUDGMENT
JONES
J
[1]
On
6
August 2002 the appellant was sentenced to life imprisonment by
Jansen J in the South Eastern Cape Local Division for the rape
of a
girl under the age of 16 years. On 9 December 2008 the court granted
condonation of the appellant’s late noting of an
appeal on
sentence and gave leave to appeal on sentence to the full bench of
this Court. That appeal is now before us.
[2] The
rape was committed near Uitenhage on 24 July 2000. The evidence was
that the appellant, who knew the complainant as a neighbour,
called
at her house and asked her aunt if the complainant could go to the
shop for him to buy bread and paraffin. He was given
permission and
the complainant followed him to his home to get the money. She went
inside. There, the appellant took her into his
bedroom, got
undressed, and had intercourse with her. Afterwards, he gave her
R1-00 and told her that he would kill her if she
told anybody what
had happened. This notwithstanding, she went straight home and
reported the incident to her aunt. She was taken
to the local police
station where a member of the police child unit
was
summoned. She arranged for the child to be examined at the hospital
by the district surgeon. The complainant was 10 years old
at the
time.
[3] In
his reasons for sentence the learned trial judge referred to the
provisions of
section 51(1) and (3) which make a sentence of life imprisonment
compulsory unless the court is able to find the existence of
substantial and compelling circumstances which justify the imposition
of a lesser sentence. He also referred to the then newly decided
authorities dealing with the section,
S
v
Malgas
2001 (1) SACR 469
(SCA) which was confirmed by
S
v
Dodo
[2001] ZACC 16
;
2001
(3) SA 382
(CC) and
S
v
Fatyi
2001
(1) SACR 485
(SCA) 488, and correctly held that in determining
whether the prescribed sentence was in the circumstances appropriate
he should
have regard to the factors traditionally taken account by
the courts, namely the personal circumstances of the offender, the
nature
of the crime and the interests of the community. He stressed
the importance of the appellant’s personal circumstances and
the need for a compassionate understanding of human frailty. He took
into account that the appellant was 47 years old with no previous
convictions, that he had a responsible job which produced a good
income, that he was married with three children, and that he had
given his co-operation to the police in respect of the collection of
specimens for the performance of tests. He remarked on the
lack of
evidence of remorse and said that while remorse can be mitigating, he
did not regard the lack of outward signs of remorse
as aggravating.
He did regard as aggravating the fact that the complainant was only
10 years old and that the appellant inveigled
her away from her home
by telling a lie about wanting to send her to the shop. He took into
account the absence of physical injuries,
but quite properly remarked
that this was probably due to the fact that the child was too small
to offer any resistance. He also
took into account the threat to kill
her and the attempt to buy her off with R1-00. He did not mention
possible adverse psychological
trauma, but there was no evidence of
any emotional after effects. With reference to the interests of the
community, he pointed
out that women and children are precious to
society, that they require protection from being raped and
terrorised, that there is
in this country a high incidence of rape,
and that these considerations
give
rise to a duty on the courts to make it clear that perpetrators of
rape will be shown no mercy. Severe sentences must be imposed
as a
deterrent, and perpetrators must be removed from society. He
concluded from an analysis of the above considerations that
imposition of the prescribed sentence did not lead to injustice.
[4]
The
imposition of sentence is a matter for the discretion of the trial
court. The right of a Court of Appeal to interfere with the
exercise
of that discretion is limited. The principle is re-stated by Scott JA
in
S
v
Kgosimore
1999
(2) SACR 238
(SCA) at 241 para [10]-
It
is trite law that sentence is a matter for the discretion of the
court burdened with the task of imposing the sentence. Various
tests
have been formulated as to when a Court of appeal may interfere.
These include whether the reasoning of the trial court is
vitiated by
misdirection or whether the sentence imposed can be said to be
startlingly inappropriate or to induce a sense of shock
or whether
there is a striking disparity between the sentence imposed and the
sentence the Court of appeal would have imposed.
All
these formulations, however, are aimed at determining the same thing;
viz whether there was a proper and reasonable exercise
of the
discretion bestowed upon the court imposing sentence.
In the ultimate analysis this is the true inquiry. (Compare
S
v
Pieters
1987 (3) SA 717
(A) at 727G - I.) Either the discretion was properly
and reasonably exercised or it was not. If it was, a Court of appeal
has no
power to interfere; if it was not, it is free to do so. (My
emphasis)
See
also
(
S
v
Giannolis
1975
(4) SA 867
(A) 868E). By requiring compulsory sentences for serious
crimes such as rape, the legislature has placed restrictions on the
judicial
discretion relating to sentence, but it has not taken it
away. As was pointed out in the
Malgas
judgment
(
supra
)
and
the many cases which follow and apply it, the court is in every case
required to make a value judgment in its evaluation of
the facts in
order to determine whether the prescribed sentence is proportionate
to the offence, and hence whether it is a just
or unjust sentence,
regard being had to the legitimate interests of society. This
involves the exercise of a judicial discretion.
In this appeal,
therefore, we are entitled to interfere with the learned trial
judge’s sentence only if we are satisfied
that his discretion
was not properly exercised. We may use one or another of the many
tests applied by the courts to come to a
conclusion of the issue,
some of which are enumerated in the
S
v
Kgosimore
judgment
supra.
[5] A
frequent argument in appeals on sentence is that the trial judge did
not exercise a proper discretion by reason of misdirections
of law or
fact. Such an argument was attempted by counsel for the appellant in
this case. But it cannot prevail. In my view the
learned judge gave a
complete and balanced assessment of the facts before him. He did not
omit relevant considerations or overemphasise
or underemphasise
anything. There are no material misdirections. But that does not mean
that his conclusion was correct. As explained
by
Ackermann
J in
S
v
Dzukuda
;
S
v
Tshilo
[2000] ZACC 16
;
2000 (2) SACR 443
(CC) para 23:
Even when exercising the
first function referred to above [the setting aside of the sentence
imposed by the trial court], there
are circumstances when a court of
appeal is obliged, on the bare record, to consider what punishment it
would have imposed in the
case under appeal. This occurs when no
patent misdirection has been demonstrated but the Court of appeal
sets aside a sentence
on the grounds that
'there exists such a
striking disparity between the sentenc(e) . . . passed by the (trial
court) and the sentenc(e) which (the court
of appeal) would have
passed . . . as to warrant interference with the exercise of the
(trial court's) discretion regarding sentence.'
As
part of this evaluative process the Court of appeal has to determine
what sentence it would itself have passed; and this it does
on the
bare record of the trial court. This, of course, does not by itself
establish that such sentencing procedure is consistent
with the right
to a fair trial under our present Constitution. It is in fact a
procedure employed in other democratic countries,
such as England,
Canada, Australia, New Zealand, India, France and Germany.
See
also
Giannoulis
’s
case
supra
at
868E and
S
v
Whitehead
1970 (4) SA 424
(A) at 436C-E.
[6] The
test of a striking disparity between a prescribed sentence and the
sentence which the Court of Appeal would have passed
has been used in
a number of cases in recent appeals against sentence for the crime of
rape. See for example
S
v Vilakazi
2009
(1) SACR 552
(SCA) where the Supreme Court of Appeal substituted a
sentence of 15 years’ imprisonment for a sentence of life
imprisonment
for rape where the only really aggravating feature was
the age of the complainant, of a girl of 14 or 15 years of age.
This
is not to say that the Supreme Court of Appeal underplayed the
seriousness
of the rape of a 15 year old girl. On the contrary, the judgment
makes it clear that all rapes are aggravated offences by
their
very nature, and particularly rapes of girls under the age of 16. But
by 2009 there has been a considerable body of case law
in which the
courts have analysed and debated the various considerations relevant
to an appropriate sentence for rape. I refer,
for example, to
S
v
Mahomotsa
2002 (2) SACR 435
(SCA);
Rammoko
v
Director
of Public Prosecutions
2003 (1) SACR 200
(SCA)
;
S
v
Njikelana
2003
(2) SACR 166
(C
);
and
S
v
Nkomo
2007
(2) SACR 198
(SCA) 205.
Prominent in recent judicial thinking is that while all rape cases
are serious, some are, in the nature of things, more serious
than
others. Different degrees of seriousness can and should give rise to
different sentences. In this regard, the learned trial
judge did not
have the benefit of these decisions when he imposed sentence in this
case, with the result that his sentence does
not demonstrate this
degree of differentiation and, with it, a full appreciation that in
view of the differentiation this case
does not fall into the category
of rape cases which are so serious that they imperatively call for
the ultimate sentence.
[7] The
most serious element of this rape is that the victim was a little
girl of 10 years who had not yet reached the age of puberty.
The
young age of this victim makes it a more serious than, for example,
Vilakazi
’s
case
supra
where
the victim was about 15 years. Like
Vilakazi
’s
case no
weapon was used
and the victim suffered no serious physical injury
other
than that produced by the act of rape
,
and there was no evidence of serious emotional
trauma.
The appellant in
Vilakazi
’s
case was 24 years old and capable of rehabilitation. In this case,
too, the appellant is capable of rehabilitation. He
is, furthermore,
a mature family man of 47 years who has until this offence lived a
blameless life, who made a good living as an
insurance broker, and
who made a contribution to his community. These personal
circumstances, in my view, make him a candidate
for rehabilitation
and are possibly in themselves enough to take this case out of the
worst case category from the point of sentence.
Combined with the
other features to which I have alluded, I have no doubt that that is
so.
[8]
I have used
Vilakazi
’s
case as no more than a point of departure. It should not be forgotten
that no two cases can ever be comparatively on all
fours when it
comes to the
imposition
of sentence for rape, not least because the personality of the victim
and the perpetrator can never be the same in any
two cases. Each case
must be considered in the light of its own facts, and one case can
never be more than a general guide to the
seriousness of another. It
seems to me, however, that if the court
a
quo
had
had the benefit of the judgment in
Vilakazi
’s
case and the cases referred to above when it imposed this sentence in
2002, it would have come to the conclusion that on
these facts a
sentence of life imprisonment is disproportionate to the seriousness
of this crime. In my view a sentence of a long
term of imprisonment,
imprisonment for as long as 15 years, is a proper and just sentence
in relation to this offence. A sentence
of 15 years’
imprisonment brings home to the appellant the gravity of what he did,
it serves as a sufficient deterrent to
others, it meets the
legitimate interests of society in relation to retribution and the
protection of women and children, and it
gives the appellant a
prospect of rehabilitation.
[9] There
is a striking disparity between a sentence of 15 years’
imprisonment and imprisonment for life. In terms of
S
v
Malgas
supra
,
this justifies the imposition of a lesser sentence than the sentence
prescribed by section 51 of the Act.
[10] In
the result, the appeal is allowed. The sentence of life imprisonment
is set aside and will be replaced with a sentence of
15 years’
imprisonment, which is antedated to the date upon sentence was
imposed by the trial court, i.e. 6 August 2002.
RJW
JONES
Judge
of the High Court
12
April 2010
EBRAHIM
J I agree
Y
EBRAHIM
Judge
of the High Court
MAKAULA
AJ I agree
M
MAKAULA
Judge
of the High Court (Acting)