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[2022] ZAECQBHC 32
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S v Nkewu (42/2021) [2022] ZAECQBHC 32 (22 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
NOT
REPORTABLE
Case
no: 42/2021
In
the matter between:
THE
STATE
And
XOLANI
NKEWU
ACCUSED
SENTENCE
Govindjee
J
Background
[1]
Mr Nkewu was convicted of a charge of rape. He unlawfully and
intentionally
committed an act of sexual penetration with a
nine-year-old female complainant by inserting his penis into her
genital organs without
consent.
[2]
As the
victim was under the age of 16, the offence falls within Part I of
Schedule 2 of the
Criminal Law Amendment Act, 1997
,
[1]
attracting a minimum sentence of life imprisonment unless substantial
and compelling circumstances exist to justify the imposition
of a
lesser sentence.
[3]
Section 276
of the
Criminal Procedure Act, 1977
[2]
provides for the sentences which courts can impose. The imposition of
sentence is pre-eminently a matter for the discretion of
the trial
court, which is free to impose whatever sentence it deems appropriate
provided it exercises its discretion judicially
and properly. The
general purpose of imposing a sentence is fourfold: retributive,
preventative, rehabilitative (reformative) and
to act as a general
deterrent.
[3]
While the
retributive aspect tends to dominate, courts are enjoined to temper
the punishment with a measure of mercy.
[4]
[4]
The
sentencing court must attempt to achieve a balance in its sentence,
and not approach its task in a spirit of anger, but in one
of equity.
Hastiness, the striving after severity and misplaced pity are out of
place, as are so-called exemplary sentences designed
to use the crime
to set an example for others in society.
[5]
Still, more serious cases clearly require severity, with a certain
moderation of generosity, for the appropriate balance to be
struck.
The object of sentencing is not to satisfy public opinion, but to
serve the public interest.
[6]
[5]
In the
final analysis, the well-known triad of factors to be considered
consists of the crime, the offender and the interests of
society,
[7]
and these factors must be applied, in accordance with
S
v Malgas
,
[8]
to consider whether substantial and compelling circumstances exist to
deviate from any prescribed minimum sentence.
[9]
In
S v
Matyityi
,
[10]
Ponnan JA held that Parliament:
‘…
has
ordained minimum sentences for certain specified offences. Courts are
obliged to impose those sentences unless there are truly
convincing
reasons for departing from them. Courts are not free to subvert the
will of the legislature by resort to vague, ill-defined
concepts…and
ill-founded hypotheses that appear to fit the particular sentencing
officer’s personal notion of fairness.
Predictable outcomes,
not outcomes based on the whim of an individual judicial officer,
[are] foundational to the rule of law which
lies at the heart of our
constitutional order’.
Nature
of the crime and surrounding circumstances
[6]
The complainant suffered pain in the area of her genital organs when
Mr
Nkewu pulled her on top of him. His penis caused a small cut or
tear on the posterior fourchette and bruises that were sensitive
to
the touch on parts of the genital organs, as he forcibly moved her up
and down. When she was examined a few hours after the
rape, the cut
was not bleeding. The complainant’s hymen was intact and her
vaginal opening had not been penetrated.
[7]
It is also
important to consider the effect of the crimes on the victim,
particularly in cases of gender-based violence.
[11]
A social worker report, accepted into evidence by consent, confirms
the aspects of severe trauma suffered by the complainant as
a result
of her rape. This encompasses traumatic sexualisation, powerlessness,
betrayal and stigmatization. The complainant now
requires long-term
psychological support to address the various expected negative
consequences, such as feelings of guilt and inability
to trust. In
addition, she was made to relive her ordeal in court. According to
the SCA, this factor should not be overlooked.
[12]
Mr
Nkewu’s circumstances and interests
[8]
Ms L Ngwendu, the older sister of Mr Nkewu, testified that he was a
loving
person who had played a major role in her life after the
siblings had lost their father. Mr Nkewu is non-violent and a
pleasure
to be with, also playing a positive role in the life of his
nephews. The family had suffered anguish as a result of Mr Nkewu’s
conviction and found it difficult to believe that he could have
performed such an act. It was accepted, however, that his actions
would have caused tremendous hurt to the complainant and her family.
[9]
Mr Minnie
, counsel for Mr Nkewu, placed his personal
circumstances before court. He is unemployed, unmarried and is
treated as a first offender.
He has two daughters, aged 11 and 17,
who live with their respective mothers. He maintains his eldest
daughter by renting his property
and contributing R1000 to the
child’s mother as maintenance. Those obligations will now be
performed by his sister.
[10]
Mr Nkewu has completed schooling and is 40 years of age. Prior to the
incident, he had
a good relationship with the complainant. He would
cook with her and brought her gifts on occasion, having been in a
relationship
with the child’s mother. It was accepted that Mr
Nkewu was drunk at the time he committed the rape. The accepted
context
was that he had fallen asleep on the couch and, at some
point, woken and gone to the room that the complainant’s mother
typically
slept in. The rape had then occurred. Although
Mr Minnie
suggested that this may have been a case of mistaken identity, there
was no factual basis laid for this when evidence was led.
The
interests of society
[11]
Courts have
repeatedly reflected on the horrific nature of the offence of rape,
given that it constitutes a humiliating, degrading
and brutal
invasion of the privacy, dignity and person of the victim. As such,
it has been accepted that the crime deserves severe
punishment.
[13]
As the court held in
S
v Ncheche
:
[14]
‘
A
woman’s body is sacrosanct and anyone who violates it does so
at his peril and our Legislature, and the community at large,
correctly expects of our courts to punish rapists severely.’
[12]
In
S
v Vilakazi
,
[15]
the Supreme Court of Appeal confirmed that rape is a repulsive crime.
Society expects that the scourge of gender-based violence
must be
addressed and must cease. In addition, children’s rights are
constitutionally protected, and rape of a child, particularly
one as
young as nine years of age, is by its nature one of the worst kinds
of offences imaginable.
[13]
Society’s
opprobrium has translated into the Minimum Sentences Act, which by
way of a prescribed, albeit discretionary minimum
sentence regime,
has drastically impacted upon the exercise of a court’s
discretion in imposing a sentence.
[16]
Mr Nkewu’s conduct has been found to fall within the purview of
this Act. A court should not for ‘flimsy reasons’
and
‘speculative hypotheses favourable to the offender’
deviate from the minimum sentence prescribed, or apply their
personal
notion of fairness.
[17]
The
question remains whether there are substantial and compelling reasons
to justify a lesser sentence than the minimum sentence
prescribed.
Analysis
[14]
This court
is duty bound to consider Mr Nkewu’s personal circumstances, as
well as that of the young complainant. The nature
of the crime must
also be considered, together with the interests of society, seasoned
with a measure of mercy and bearing in mind
the various purposes of
punishment, including prevention, retribution, rehabilitation and
deterrence.
[18]
All the
circumstances of the case must be considered to determine whether the
imposition of a minimum sentence is proportionate
to the particular
offence.
[19]
[15]
The
aggravating features of the matter are undeniably severe. The rape of
vulnerable victims, such as extremely young children,
have always
been an aggravating feature of rape. Every child is meant to enjoy
the constitutional rights to be protected from maltreatment,
abuse
and degradation, to freedom and security, which includes the right to
be free from all forms of violence and to have their
privacy and
dignity respected and protected.
[20]
The long-lasting effect on the complainant has already been
described. In
S
v Zitha
,
Goldstein J commented on the need to punish perpetrators of child
rape as heavily and severely as the law allowed in the absence
of
substantial and compelling circumstances dictating otherwise. Courts
will not shirk this responsibility, however agonising it
may be to do
so.
[21]
[16]
The
legislature has directed that, when imposing a sentence in respect of
rape, an apparent lack of physical injury to the complainant
and the
relationship between Mr Nkewu and the complainant prior to the
offence being committed cannot constitute substantial and
compelling
circumstances justifying the imposition of a lesser sentence.
[22]
Still, it is important to consider the various circumstances
cumulatively, and with specific focus on Mr Nkewu’s clean
record
and state of intoxication. I am also cognisant that a finding
of an absence of substantial and compelling circumstances will result
in the gravest of sentences being passed and that the consequences of
this are profound, effectively removing an individual from
society.
[23]
It requires a
meticulous weighing of all relevant factors before a decision to
impose it can be justified.
[24]
[17]
The factors relied upon by Mr Nkewu as substantial and compelling
have been considered
in their totality. The main factors in his
favour are that he is a first offender and that it may be accepted
that he committed
a despicable act, out of character, as a result of
his state of intoxication. The other factors cited carry less weight
when given
proper consideration. His level of education is normal
and, in the absence of any testimony on his part, there is no real
basis
for considering that he is truly remorseful. On the whole,
however, I consider the circumstances to be weighty enough so as to
warrant departure from the prescribed minimum. It would, in my view,
be unjust and disproportionate to impose a life sentence on
Mr Nkewu
given his clean record and the circumstances in which the rape was
perpetrated, including his level of intoxication.
[18]
T
he
court is now enjoined to consider an appropriate sentence and must
exercise a reasoned discretion in evaluating the various relevant
factors highlighted above in order to arrive at a proportionate
outcome.
Society
demands that stern sentences be meted out in cases where a child is
raped in the sanctity of her home. Gender-based violence,
including
child rape, continues to devastate lives and negatively impact upon
families and communities. Sadly, many women, including
children, live
in constant fear of precisely this type of occurrence. The remarks of
the court in
S
v Ro and Another
[25]
are apposite:
‘
The
moral reprehensibility of rape and society’s abhorrence of this
rampant scourge are unquestioned. The most cursory scrutiny
of our
law reports bears testimony to the fact that our courts have, rightly
so, visited this offence with severe penalties. This
reprehensibility
and abhorrence are so much more pronounced in the instances of the
rape of very young children, as is the case
here. … [T]he
complainant was an innocent, defenceless and vulnerable victim.’
[19]
Given the
circumstances, a lengthy sentence of direct imprisonment is
unquestionably warranted.
[26]
The offence is by its nature extremely serious and involved
gender-based violence. The physical injuries suffered were less
serious
than what might have been the case, but the psychological
impact is likely to be long-lasting. The consumption of alcohol, and
its effect on reducing inhibitions, and impairing good judgment,
looms large as a possible explanation for what occurred. To some
extent it must be accepted that this has reduced the blameworthiness
of Mr Nkewi, who previously had a good relationship with the
complainant. In all the circumstances, I consider a sentence of 17
years’ imprisonment to be appropriate, also giving Mr
Nkewu the
opportunity to rehabilitate. Given the nature of the offence, various
other consequences emanating from legislation follow.
These have been
included as part of the order.
Order
[20]
The following sentence is imposed:
1.
The accused, Xolani Nkewu, is sentenced to 17 years’
imprisonment in respect
of the conviction of rape involving a
nine-year-old child.
2.
In terms of section 50(2) of the Criminal Law (Sexual Offences and
Related Matters)
Amendment Act 32 of 2007, the particulars of the
accused, as a convicted sexual offender, must be included in the
National Register
for Sex Offenders.
3.
In terms of section 120(4) of the Children’s Act 38 of 2005 and
section 41
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
, the accused is declared to be unsuitable to
work with children, and it is directed that his particulars be
entered in Part B of
the National Child Protection Register.
4.
In terms of
section 103(1)
of the
Firearms Control Act 60 of 2000
,
the accused is declared unfit to possess a firearm.
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
Heard
:10
August 2022
Delivered
:22
September 2022
Appearances:
Counsel
for the State:
Adv S. Grootboom
Director
of Public Prosecutions
041 502
1400
Gqeberha
Attorney
for the Accused: Mr W. Minnie
Legal
Aid South Africa
041 408
2800
Gqeberha
[1]
Act
105 of 1997 (‘the Minimum Sentences Act’).
[2]
Act 51 of 1977 (‘the CPA’).
[3]
S v
Rabie
1975 (4) SA 855 (A).
[4]
Rabie
at 862G-H.
[5]
See
S v
Khulu
1975 (2) SA 518 (N) 521-522.
[6]
S v
Mhlakhaza and Another
[1997] 2 All SA 185
(A) at 189. Also see
S
v M
(Centre
for Child Law as
amicus
curiae
)
2007 (2) SACR 539 (CC).
[7]
S v
Zinn
[1969] 3 All SA 57
(A) at 540G-H.
[8]
2001 (1) SACR 469 (SCA).
[9]
See
Radebe
v The State
[2019] ZAGPPHC 406 at para 12.
[10]
2011 (1) SACR 40
(SCA) at para 23. Also see
Malgas
supra
,
in respect of the prescribed period of imprisonment in the Minimum
Sentences Act ordinarily being imposed for the commission
of the
listed crimes in the specified circumstances, in the absence of
weighty justification, as quoted in
Otto
v S
[2017]
ZASCA 114
at para 21.
[11]
See
A Spies ‘The judicial relevance and impact of victim impact
statements in the sentencing of rape offenders’ (2018)
SACJ
212 at 231 as cited in
S
v Dyonase
[2020] ZAWCHC 137
para 21.
[12]
MDT
v S
[2014]
ZASCA 15
;
2014 (2) SACR 630
(SCA) para 2.
[13]
S v
Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 5B. When imposing a sentence in respect of
the offence of rape, an apparent lack of physical injury to the
complainant
and any relationship between the complainant and accused
prior to the offence being committed are not, on their own,
considered
to be substantial and compelling circumstances justifying
the imposition of a lesser sentence: section 51(3)(
a
A)
of the Minimum Sentences Act.
Radebe
supra
para 34. In
S
v Vilakazi
[2008]
ZASCA 87
para 54
,
Nugent JA noted that ‘there comes a stage at which the maximum
sentence is proportionate to an offence and the fact that
the same
sentence will be attracted by an even greater horror means only that
the law can offer nothing more.’
[14]
[2005] ZAGPHC 21
;
2005 (2) SACR 386
(WLD) para 35.
[15]
2009 (1) SACR 552
(SCA) at 555h.
[16]
S v
September
[2014] ZAECGHC 38 para 8.
[17]
S v PB
2011
(1) SACR 448
(SCA) para 21;
Matyityi
supra
para 23.
[18]
S v
Genever and Others
[2008] ZAWCHC 7
;
2008 (2) SACR 117
(C) at 122
c-d
.
[19]
Vilakazi
supra
para 15.
[20]
Ss
28(1)(
d
),
12(1)(
c
)
14 and 10 of the Constitution of the Republic of South Africa, 1996.
[21]
Zitha
supra
at
418
h-i
.
[22]
S 51(3)
(a
A
)
(ii)
and (iv) of the Minimum Sentences Act..
[23]
S v
Bull
2001 (2) SACR 681
(SCA) para 21.
[24]
S v
Dodo
2001 (1) SACR 301
(E).
[25]
S
v Ro and Another
2010
(2) SACR 248
(SCA) para 15.
[26]
See
Seedat
v S
[2016]
ZASCA 153
para 38
et
seq
,
on the efficacy of restorative justice as an inappropriate
sentencing option in cases involving serious offences.