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[2012] ZASCA 148
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Ndou v S (93/12) [2012] ZASCA 148; 2014 (1) SACR 198 (SCA) (28 September 2012)
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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case no: 93/12
In the matter between:
EDSON NDOU
..................................................................................................
Appellant
and
THE STATE
..................................................................................................
Respondent
Neutral citation:
Ndou
v S
(93/12)
[2012] ZASCA 148
(28 September 2012)
Coram: MPATI P, LEWIS,
VAN HEERDEN and SHONGWE JJA and ERASMUS AJA
Heard: 11 September
2012
Delivered: 28
September 2012
Summary:
Sentence
– rape of girl under the age of 16 years – imposition of
life imprisonment in terms of
s 51(1)
of the
Criminal Law Amendment
Act 105 of 1997
– whether misdirection exists – no
substantial and compelling circumstances found by high court –
whether appeal
court can interfere.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
Limpopo High Court (Thohoyandou) (Hetisani J sitting as court of
first instance):
1 The appeal is upheld.
2 The sentence of the
court below is set aside and replaced with the following:
‘
The
accused is sentenced to 15 years’ imprisonment’. This
sentence is antedated to 5 May 2004.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
SHONGWE JA (…
concurring)
[1] This is an appeal
against sentence only. The appellant was convicted by the regional
court in Sebasa (Limpopo) of raping a 15
year-old girl. In terms of s
52 of the Criminal Law Amendment Act 105 of 1997 (the Act), the
matter was referred to the Limpopo
High Court, Thohoyandou, for the
imposition of sentence. (Section 52 has since been repealed.) The
matter came before Hetisani
J who sentenced the appellant to life
imprisonment in terms of s 51(1) of the Act. The appeal is with the
leave of this court.
[2] In brief the
appellant contends that life imprisonment is grossly inappropriate
and induces a sense of shock. The court below
found no substantial
and compelling circumstances that warranted the imposition of a
lesser sentence. The appellant argues that
the court should have
found substantial and compelling circumstances and therefore that it
erred. It is contended that the appellant
did not use any violence or
weapon to force the complainant to submit to having sexual
intercourse with him; instead, the argument
continues, she accepted
money and gifts from the appellant. It was further argued that there
was no evidence of ‘post-traumatic
stress suffered by the
complainant’.
[3] The State, on the
other hand, argues that sentencing is pre-eminently a matter for the
discretion of the sentencing court and
that such discretion should
not be lightly interfered with by a court of appeal. It may only
interfere if it finds that the sentencing
court misdirected itself on
the law or facts. The State further contends that rape of a 15
year-old girl falls within the ambit
of Part 1 of Schedule 2 to the
Act and therefore a court of appeal may not lightly deviate from a
prescribed minimum sentence and
for flimsy reasons. That the
appellant is the stepfather of the complainant and occupied a
position of trust and authority over
her, the State argues, is an
aggravating factor. The State also contends that any sentence less
than life imprisonment would undermine
the objectives of the Act and
would make a mockery of justice.
[4] It is not necessary
to deal in any detail with the evidence on the merits. However, one
needs to have a brief backdrop in order
to appreciate the ultimate
sentence. The complainant testified that she was asleep in one of the
bedrooms together with her two
younger sisters. In the middle of the
night the appellant entered the bedroom laid down next to her and
inserted his penis into
her vagina from behind. She did not scream or
cry – she intended to tell her mother, who was asleep in one of
the other rooms,
in the morning. She also stated that it was not the
first time he had done this.
[5] Her mother testified
that the appellant came back from drinking and took off all his
clothes and slept next to her. In the middle
of the night she
discovered that he was no longer sleeping next to her. She woke up
and went to the children’s bedroom. She
found the appellant
having sexual intercourse with the complainant. She enquired what he
was doing and he said that he was waking
up the children so that they
could go and urinate; she then went back to their room. Later on that
day she reported the matter
to the police and the appellant was
arrested. The complainant was taken to the hospital for medical
examination. The mother’s
evidence in this regard differs from
that of the complainant who testified that when her mother came into
the bedroom the appellant
had finished having intercourse with her
and that he was fast asleep next to her as he was drunk. Other
witnesses testified but
their evidence did not take the matter any
further.
[6] The State did not
lead the evidence of the doctor who examined the complainant because
the doctor had returned to his/her home
country. However, the State
and the defence agreed that the contents of the medical report (the
J88 form) be read into the record.
The clinical findings were, inter
alia, that ‘she has evidence of previous penetration with a
hymen which broke long ago
but evidence of recent coitus – a
discharge and small tears of the posterior fourchette’. In
terms of s 212(4)
(a)
of the Criminal Procedure Act 51 of
1997, the medical report was admitted as evidence. That concluded the
State’s case. The
appellant unsuccessfully applied for his
discharge in terms of s 174 of the Criminal Procedure Act. He
closed his case without
testifying or calling witnesses.
[7] It is significant to
record that the complainant testified that it was not for the first
time that the appellant had sexual
intercourse with her. On the
previous occasion the appellant had bought her sandals, panties and
had also given her some money.
He had threatened to kill her if she
divulged the rape. He also told her not to inform her mother about
what had happened; indeed
she did not inform her mother. On the
occasion which forms the subject of the present rape charge, it would
appear that there were
no threats of violence by the appellant.
[8] When the matter came
before the court below for sentencing, Hetisani J found that the
conviction was in accordance with justice
and confirmed it. In
considering an appropriate sentence, the court below correctly
pointed out that sexual assault on children
is prevalent in that
area. The court went on to consider the triad of factors relevant to
sentence, namely the personal circumstances
of the appellant, the
seriousness of the offence and the interests of society (
S v Zinn
1969 (2) SA 537
(A) at 540G-H). It was suggested by defence
counsel that because the complainant’s mother had moved on with
her life, and
had left the family to stay with another man, and
because the complainant is now married, leaving the appellant alone
to take care
of the other three children, there were substantial and
compelling circumstances to justify a lesser sentence. The court
below
did not agree with this submission and found that substantial
and compelling circumstances did not exist.
[9] The question which
arises on appeal is whether, in the circumstances of this case, life
imprisonment is an appropriate sentence.
The
appellant denied having had sexual intercourse with the complainant.
His conduct,
as it was proved,
attracted
a sentence of life imprisonment unless the court was satisfied that
substantial and compelling circumstances that justify
a lesser
sentence exist.
[10] The court below
asked itself the following question.
‘In this case that
we are dealing with, the court must ask itself, is there anything
that makes it different from any other
case where an adult male
person has raped a minor female person? More so when one looks at the
fact that the rape was continuous
when it was done, the day that it
was discovered was not the first day, there had been previous
occasions when this abuse had been
going on’.
The formulation of the
question is questionable, in my view, because it assumes and suggests
that the complainant was raped continuously
and that there had been
previous occasions
on which she was raped. This
conclusion is clearly incorrect and
constitutes a
misdirection. The appellant was charged and convicted of one count of
rape only. The evidence of the complainant was
that it was not for
the first time that the appellant had had sexual intercourse with her
and she testified under cross-examination
about one previous
occasion.
She said that it happened when her
mother was away and came back the following day. This suggests that
when the appellant was apprehended
it was the second time. It is
therefore incorrect, as the court below found, that the ‘rape
was continuous’ and that
there had been ‘previous
occasions’ on which the appellant sexually abused the
complainant.
It was this reasoning that led to
the misdirection that entitles this court to consider the sentence
afresh (see
S v Malgas
2001
(1) SACR 469
(SCA) para 12).
[11] The court below also
reasoned that ‘(i)t is not this court’s discretion to
impose a life sentence, it is the discretion
of the community via the
legislator that these types of things should please stop …’.
The impression created is that
the minimum sentence of life
imprisonment had to be imposed regardless of the circumstances. In
Malgas
(para 25) this
court said:
‘
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 ….’
It is indeed the
sentencing court that is empowered to exercise a discretion to depart
from the prescribed sentences. The ‘determinative
test’
for departure from the prescribed sentence was articulated in
S
v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC) para 40 where
the Constitutional court, referring with approval to
Malgas
said:
‘
On the
construction that
Malgas
places on
the concept “substantial and compelling circumstances” in
s 51(3), which is undoubtedly correct, s 51 does
not require the High
Court to impose a sentence of life imprisonment in circumstances
where it would be inconsistent with the offender’s
right
guaranteed by s 12(1)
(e)
of
the Constitution. The whole approach enunciated in
Malgas
,
and in particular the determinative test articulated in paragraph
I
of the
summary, namely:
“
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.”’
The above approach was
also endorsed and followed in
S
v Vilakazi
2009
(1) SACR 552
(SCA) paras 14 – 15
.
[12] It is trite that
rape is a very serious offence (see
S
v Chapman
[1997] ZASCA 45
;
1997
(3) SA 341
(SCA) at 344I-J where it was described as ‘a
humiliating, degrading and brutal invasion of the privacy, the
dignity and the
person of the victim’). In the present case a
15 year-old girl who was the victim regarded the appellant as a
father figure
from whom she expected protection,
but
he had abused that position. No evidence was led on the effect the
rape had on her.
The
lack of such evidence should not and cannot be construed as absence
of post-traumatic stress at all. It would be unrealistic
to think
there was none.
[13] On the other hand
the complainant did not suffer any serious physical injuries. She
submitted to the sexual intercourse on
the occasion in question
without any threat of violence. The fact that she had accepted gifts
and money from the appellant must
have played a role in her
submitting to the sexual intercourse. When she was asked whether she
had screamed for help, she said
that she had not resisted or screamed
but simply waited for the appellant to finish what he was doing. She
also confirmed that
the appellant was drunk and fell asleep next to
her after the rape. Thus the degree of the trauma suffered by her
cannot be quantified.
All these factors must be taken into account in
considering whether in this case the ultimate sentence of
imprisonment for life
is proportionate to the crime committed by the
appellant. A balance must be struck on all the factors to avoid
an unjust sentence.
In my view the sentence imposed is
disproportionate to the crime committed and the legitimate interests
of society.
[14] Trial courts take
months, and in some instances years, dealing with evidence and
principles of law to establish the guilt or
innocence of an accused
person. However, my observation is that when it comes to the
sentencing stage, that process usually happens
very quickly and often
immediately after conviction. Sentencing is the most difficult stage
of a criminal trial, in my view. Courts
should take care to elicit
the necessary information to put them in a position to exercise their
sentencing discretion properly.
In rape cases, for instance, where a
minor is a victim, more information on the mental effect of the rape
on the victim should
be required, perhaps in the form of calling for
a report from a social worker. This is especially so in cases where
it is clear
that life imprisonment is being considered to be an
appropriate sentence. Life imprisonment is the ultimate and most
severe sentence
that our courts may impose; therefore a sentencing
court should be seen to have sufficient information before it to
justify that
sentence. In
S v Siebert
1998 (1) SACR 554
(A)
Olivier JA at 558i - 559a said:
‘
Sentencing
is a judicial function sui generis. It should not be governed by
considerations based on notions akin to onus of proof.
In this field
of law, public interest requires the court to play a more active,
inquisitorial role. The accused should not be sentenced
unless and
until all the facts and circumstances necessary for the responsible
exercise of such discretion have been placed before
the court.’
(See also
S
v Dodo
supra para 37 and
S
v Matyityi
2011 (1) SACR 40
(SCA) paras 15 –
17.)
[15] In
S
v Dodo
supra para 38 Ackerman J said:
‘
To attempt
to justify any period of penal incarceration, let alone imprisonment
for life as in the present case, without inquiring
into the
proportionality between the offence and the period of imprisonment,
is to ignore, if not to deny, that which lies at the
very heart of
human dignity. Human beings are not commodities to which a price can
be attached; they are creatures with inherent
and infinite worth;
they ought to be treated as ends in themselves, never merely as means
to an end. Where the length of a sentence,
which has been imposed
because of its general deterrent effect on others, bears no relation
to the gravity of the offence …
the offender is being used
essentially as a means to another end and the offender’s
dignity assailed. So too where the reformative
effect of the
punishment is predominant and the offender sentenced to lengthy
imprisonment, principally because he cannot be reformed
in a shorter
period, but the length of imprisonment bears no relationship to what
the committed offence merits. Even in the absence
of such features,
mere disproportionality between the offence and the period of
imprisonment would also tend to treat the offender
as a means to an
end, thereby denying the offender’s humanity.’
[16] I have already
mentioned that rape is a very serious offence, especially when
perpetrated against a minor. It deserves severe
punishment. However,
the circumstances under which it took place are relevant in the
consideration of an appropriate sentence.
There is no doubt that
there is a public outcry to stop the scourge of rape. The appellant
was 46 years of age when he committed
this offence. He is the step
father of the complainant. He is a first offender and self-employed.
In my view the circumstances
in this case are such that a sentence of
life imprisonment is disproportionate to the crime. I therefore find
that there are substantial
and compelling circumstances justifying a
lesser sentence than the one prescribed.
[17] In the result,
having considered all the relevant factors and the purpose of
punishment I consider 15 years’ imprisonment
to be an
appropriate sentence.
[18] I make the following
order:
1 The appeal is upheld
2 The sentence of the
court below is set aside and replaced with the following:
‘
The
accused is sentenced to 15 years’ imprisonment’. This
sentence is antedated to 5 May 2004.
________________________
J B Z SHONGWE
JUDGE OF APPEAL
APPEARANCES
FOR APPELLANT: M J
Manwadu
Instructed by:
Justice Centre,
Thohoyandou;
Justice Centre,
Bloemfontein.
FOR RESPONDENT: R J
Makhera
Instructed by:
Director of Public
Prosecutions, Thohoyandou;
Director of Public
Prosecutions, Bloemfontein.