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[2010] ZAECPEHC 66
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Ntobela v S [2010] ZAECPEHC 66 (10 November 2010)
NOT
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
In the matter between:
Case No: CA & R 80/2010
KHUMBULANI NTOBELA
…...........................................................................
Appellant
And
THE STATE
…..............................................................................................
Respondent
Coram:
Chetty, Revelas JJ and
Conjwa AJ
Date Heard:
8 November 2010
Date Delivered:
10 November 2010
Summary:
Appeal
– Murder – Sentence – Minimum Sentence – Life
imprisonment – Complainant young girl aged five
–
Appellant’s conduct premeditated – Psychological trauma –
No basis for interference with sentence –
Appeal dismissed
________________________________________________________________
JUDGMENT
________________________________________________________________
Chetty, J
[1] This is an appeal against a
sentence of life imprisonment imposed upon the appellant by the court
below (Pickering J) following
his conviction on a charge of raping a
five year old female child. The principal submission advanced on
behalf of the appellant
before us was that the sentence imposed was
unduly harsh in the sense that it was so disproportionate to the
offence that appellate
interference is warranted.
[2] The sentencing regime ushered in
by the
Criminal Law
Amendment Act
1
has, since its inception triggered a
veritable avalanche of legal discourse and the law reports themselves
abound with learned judgments
on the issue. As far back as 2001
however the determinative test for departure from the ordained
sentence was articulated by Marais
JA, in
S
v Malgas
2
as:-
“
[25]
What stands out quite clearly is that the courts are a good deal
freer to depart from the prescribed sentences than has been
imposed
in some of the previously decided cases and that it is they who are
to judge whether or not the circumstances of any particular
case are
such as to justify a departure. However, in doing so, they are to
respect, and not merely pay lip service to, the Legislature's
view
that the prescribed periods of imprisonment are to be taken to be
ordinarily appropriate when crimes of the specified kind
are
committed. In summary -
A. Section 51 has
limited but not eliminated the courts' discretion in imposing
sentence in respect of offences referred to in Part
I of Schedule 2
(or imprisonment for other specified periods for offences listed in
other parts of Schedule 2).
B. Courts are
required to approach the imposition of sentence conscious that the
Legislature has ordained life imprisonment (or
the particular
prescribed period of imprisonment) as the sentence that should
ordinarily
and in the
absence of weighty justification be
imposed for the listed crimes in the specified
circumstances.
C. Unless there
are, and can be seen to be, truly convincing reasons for a different
response, the crimes in question are therefore
required to elicit a
severe, standardised and consistent response from the courts.
D. The specified
sentences are not to be departed from lightly and for flimsy reasons.
Speculative hypotheses favourable to the
offender, undue sympathy,
aversion to imprisoning first offenders, personal doubts as to the
efficacy of the policy underlying
the legislation, and marginal
differences in personal circumstances or degrees of participation
between co-offenders are to be
excluded.
E. The Legislature
has however deliberately left it to the courts to decide whether the
circumstances of any particular case call
for a departure from the
prescribed sentence. While the emphasis has shifted to the objective
gravity of the type of crime and
the need for effective sanctions
against it, this does not mean that all other considerations are to
be ignored.
F. All factors
(other than those set out in D above) traditionally taken into
account in sentencing (whether or not they diminish
moral guilt) thus
continue to play a role; none is excluded at the outset from
consideration in the sentencing process.
G. The ultimate
impact of all the circumstances relevant to sentencing must be
measured against the composite yardstick ('substantial
and
compelling') and must be such as cumulatively justify a departure
from he standardised response that the Legislature has ordained.
H. In applying the
statutory provisions, it is inappropriately constricting to use the
concepts developed in dealing with appeals
against sentence as the
sole criterion.
I. 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.
J. In so doing,
account must be taken of the fact that crime of that
particular kind has been singled out for severe
punishment and that the sentence to be imposed in lieu of the
prescribed sentence
should be assessed paying due regard to the bench
mark which the Legislature has provided.”
The judgment has consistently been
followed and adopted for the past decade but for some unfathomable
reason, notwithstanding its
clarity of reasoning, it is often
misunderstood. This is unfortunately one of those cases.
[3] The court below’s judgment
on sentence is thorough and well reasoned. It commenced by according
recognition to the guiding
principles enunciated in
Malgas
and lamented upon the endemicity of crimes of rape against women and
children. The law reports themselves bear silent witness to
the
scourge of such crimes. Although no
viva voce
evidence, either
in mitigation or aggravation of sentence, was adduced prior to the
imposition of sentence, the learned judge had
the benefit of hearing
the evidence of the complainant and members of her family concerning
the actual rape and addition, the testimony
of the district surgeon
who examined the complainant, albeit two days after the rape. During
the sentencing stage, two further
reports, the first, a pre-sentence
report and the second, a psychological assessment of the complainant
was handed in by consent
of the parties.
[4] The court below’s finding
that the rape was premeditated is fully supported by the evidence.
The circumstances under which
the complainant came to be in the
appellant’s home was narrated by a young boy whose evidence was
summarized in the judgment
as follows:-
“
It
appears from his evidence that he lived at number 775, a house
situated in the same yard as the accused’s house number
776.
Xhanti knew the accused well and would on occasion together with the
siblings sleep over at the accused’s house. He
state that on a
particular Saturday the accused called him to his house and told him
that he must call the complainant for him.
He went to look for the
complainant but discovered that she had gone to fetch wood. When he
reported this to the accused the accused
told him that he must wait
for her to return. He did so, he eventually found the complainant at
her home with her twin sister.
He told the complainant that Boetie
Khumbulani namely the accused was calling her. He accompanied the
complainant to the accused’s
house. The accused was present,
the accused gave him R10, 00 and told him to go and buy sweets.
Xhanti accordingly left and proceeded
to the shop which was far away.
When he came back with the sweets he found the accused sitting on the
bed and the complainant standing
near the door. They were both fully
dressed. The accused gave him and the complainant sweets and then
sent him to go and buy tobacco.”
[5] The medical evidence established
that the complainant suffered physical injury and although these were
in themselves of a serious
nature considering the tender age of the
complainant, it paled into relative insignificance given the extent
of the psychological
trauma the rape occasioned. The learned judge
summarized the clinical psychologist, Ms Sakaza’s evidence as
follows:-
“
It
is clear from the report that there has been significant changes in
the complainant’s behaviour since the incident. Complainant
is
now irritable, tearful and cries easily. She has become forgetful and
sometimes confused. Her attention span has been adversely
affected.
She has become clingy and dependent on her mother and sister.
Episodes of tearfulness and temper tantrums mark her response
to be
left alone even for a short while. She could not sleep or eat
properly for two weeks after the incident although this has
apparently now improved. Miss Sakaza concludes that complainant has
been significantly affected by the rape. The trauma thereof
has
affected the psychological and social domains of her development and
functioning. This will further adversely affect her ability
to form
and maintain good relationships. In short therefore the accused has
not only taken from complainant her childhood innocence
he has also
severely compromised her future. Her life will never be the same
again.”
[6] The appellant’s personal
circumstances were fully ventilated in the pre-sentence report and
the absence of any remorse
for his conduct, a feature of his case.
What is particularly disturbing is the evidence of the young boy that
before he left the
appellant’s home with the complainant, the
appellant had ordered him to bring another young girl to his room.
Does this indicate
a predilection for sexual gratification from young
girls? Given the immediately preceding incident involving the
complainant, such
an inference may, in my view, legitimately be
drawn. However, in determining whether a proper basis has been
established for interference
with the sentence imposed, it is
unnecessary to pronounce thereon. This is precisely a case where the
sentence imposed is entirely
proportionate to the crime. Unjust, it
certainly is not.
[7] In the result the following order
will issue:-
The appeal is dismissed.
_________________________
D. CHETTY
JUDGE OF THE HIGH COURT
Revelas, J
I agree.
__________________________
E. REVELAS
JUDGE OF THE HIGH COURT
Conjwa, AJ
I agree.
________________________
N. CONJWA
ACTING JUDGE OF THE HIGH COURT
On behalf of the Appellant: Mr Solani
Instructed by Grahamstown Justice
Centre
69 High Street
Grahamstown
Tel: (046) 622 9350
Fax: (046) 622 8873
Ref: Mr Solani
On behalf of the Respondent: Adv
Zantsi
Instructed by the Director of Public
Prosecutions
High Street
Grahamstown
Ref: Adv Zantsi
Tel: (046) 602 3000
1
Act
No 105 of 1997
2
2001
(2) SA 1222
(SCA)