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[2012] ZASCA 168
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S v Kwanape (422/12) [2012] ZASCA 168; 2014 (1) SACR 405 (SCA) (26 November 2012)
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THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 422/12
Not reportable
In the matter between:
PIET KWANAPE
.........................................................................................
APPELLANT
and
THE STATE
.............................................................................................
RESPONDENT
Neutral citation:
Kwanape v
The State
(422/12)
[2012] ZASCA 168
(26 November 2012).
Coram:
Nugent and Petse JJA
and Erasmus AJA
Heard:
14 November 2012
Delivered: 26 November 2012
Summary: Sentence ─
prescribed sentences ─ minimum sentence ─ imposition of
in terms of
Criminal Law Amendment Act 105 of 1997
read with
Part 1
of Schedule 2 ─ whether ‘substantial and compelling
circumstances’ as contemplated in
s 51(3)(a)
existed.
Life imprisonment on a charge of
rape ─ complainant 12 years of age.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
North Gauteng
High Court, Pretoria (Legodi J sitting as court of first instance):
The appeal against the sentence of
imprisonment for life is dismissed.
________________________________________________________________
JUDGMENT
________________________________________________________________
PETSE JA (Nugent JA and Erasmus AJA
concurring):
[1] The appellant was arraigned before
a regional magistrate in Modimole, Limpopo on a charge of rape read
with ss 51(1) or 51(2)
of the Criminal Law Amendment Act 105 of 1997
(the Act). Consequent upon his conviction he was committed to the
Northern Circuit
District of the North Gauteng High Court sitting at
Polokwane for sentence in terms of s 52 of the Act.
[2] Section 52
1
as it then stood required a regional
court, when it has convicted an accused person of an offence for
which life imprisonment is
the prescribed sentence, to stop the
proceedings and commit the accused for sentence by a high court. The
high court (Legodi J),
having concluded that the appellant’s
conviction was supportable on the evidence, proceeded to consider
whether substantial
and compelling circumstances as intended in s
51(3)(a) of the Act existed. It found that none existed and therefore
imposed a sentence
of imprisonment for life. The high court
subsequently granted the appellant leave to appeal against the
sentence to this court.
[3] In granting leave to appeal the
high court alluded to two factors: first, it stated that this was not
the worst rape imaginable;
and second, it said that there was no
evidence suggesting that the complainant had suffered serious
physical injury as a consequence
of the rape. I shall revert to these
later.
[4] Before considering the merits of
this appeal it is necessary to say something about the disturbing
features emerging from the
record. The appellant was sentenced on 20
September 2007. On 27 November 2008 he filed, without legal
assistance, an application
for leave to appeal against his conviction
and sentence with the registry clerk at the magistrate’s court,
Polokwane which
was accompanied by an application for condonation of
the late filing of such application.
[5] In May 2009, disgruntled at the
lack of progress, the appellant wrote to the Minister of Justice and
Constitutional Development
and the Chief Legal Officer in the
minister’s office wrote to the Registrar of the North Gauteng
High Court requesting the
registrar to investigate what had become of
the appellant’s application for leave to appeal. Similarly the
Head of the Prison
in which the appellant was incarcerated addressed
an enquiry to the registrar. Ultimately, these interventions bore
fruit and on
15 October 2010 the application for leave to appeal was
heard by Legodi J, which by then was confined to the sentence only.
[6] Once leave to appeal against the
sentence had been granted, further delays in prosecuting the appeal
occurred. The record of
appeal was filed with this court only in June
2012. It appears from the appellant’s affidavit in support of
his application
for condonation of the late filing of the record that
the delay was in part attributable to the Registrar of the North
Gauteng
High Court who seemingly had remained supine until he was
prompted by the appellant’s legal representatives to prepare
the
record.
Section 316(7)(a)
of the
Criminal Procedure Act 51 of
1977
imposes a duty on the registrar of the court, granting leave to
appeal, to cause a notice to be given to the registrar of this court
without delay and to cause to be transmitted to this court a
certified copy of the record. That statutory injunction is also
echoed
in rule 52(1) of the Uniform Rules of Court.
[7] In the result the determination of
this appeal has taken longer than would have been the case had the
matter been dealt with
expeditiously.
[8] It goes without saying that the
delays experienced in this matter are entirely unacceptable for
obvious reasons. In terms of
s 35(3)(o) of the Constitution
2
the appellant has a right to a fair
trial which includes the right of appeal to a higher court.
Consequently the delays experienced
in this case undermined or
compromised those rights in circumstances where there can be no
justification therefor in an open and
democratic society.
[9] I now turn to the merits of the
appeal. The crucial issue before this court is whether the high court
should have found that
substantial and compelling circumstances
existed, justifying a departure from the mandatory minimum sentence
of life imprisonment.
This is a factual enquiry.
[10] The facts of this case are
relatively straightforward. On 1 January 2004 the complainant, K, a
12 year-old girl, was playing
in the street with her friends when the
appellant, who was well-known to her, emerged. Having asked them what
they were doing the
appellant grabbed the complainant and dragged her
to a bush. One of K’s friends tried to intervene and enquired
of the appellant
as to what the latter was doing. The appellant
instead pelted the two friends with stones causing them to run away.
[11] When K tried to scream, the
appellant closed her mouth with his hand. He pushed her to the
ground, undressed her, and after
undressing himself, he raped her
three times albeit at different spots. K said that she felt pain as
the appellant was raping her.
The appellant subsequently took her to
his home where she slept with the appellant’s sister. The next
day, whilst returning
home, K met her father enroute. She then
reported the incident to him and upon reaching home she made a report
to her mother. She
was taken to Tabazimbi Hospital where she was
examined by Dr Schreuder who described the complainant’s
vaginal examination
as having been painful. The doctor also recorded
that the complainant sustained, inter alia, scratch marks on her
knees and elbows
and a small tear at the posterior angle of her
vestibule.
[12] The gravamen of the appellant’s
submissions in this court is that the cumulative effect of the
mitigating factors weighed
against the aggravating features, of which
the court below should have taken cognisance, constituted substantial
and compelling
circumstances. Consequently, concluded the
submissions, the court below should have found that it was free to
depart from the prescribed
minimum sentence of life imprisonment
under s 51(3) of the Act. These factors were that the appellant was:
(a) a first offender;
(b) 24 years of age when the rape was
perpetrated;
(c) gainfully employed and earning
R500 fortnightly;
(d) had attended school up to grade 5;
(e) HIV positive;
(f) a primary care giver;
(g) running a tuck-shop from which he
generated R400 per month;
(h) capable of being rehabilitated.
[13] The circumstances in which an
Appellate Court will interfere with a sentence imposed by a court of
first instance are trite.
They were restated by this court in
S
v Sadler
2000 (1) SACR 331
(SCA).
3
But as the appellant was sentenced in
terms of s 51(1) of the Act it is important to keep the objectives of
the Act uppermost in
one’s mind. These were described by Marais
JA in
S v Malgas
2001 (1) SACR 469
(SCA)
4
as a measure aimed at responding to:
‘
[A]n
alarming burgeoning in the commission of crimes of the kind specified
resulting in the government, the police, prosecutors
and the courts
constantly being exhorted to use their best efforts to stem the tide
of criminality which threatened and continues
to threaten to engulf
society.’
[14] As to the approach that must be
adopted in a case such as the present
Malgas
is instructive. There Marais JA stated
the following:
5
‘
It
was of course open to the High Courts even prior to the enactment of
the amending legislation to impose life imprisonment in
the free
exercise of their discretion. 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.
.
. .
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 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.’
[15] Recently this court reiterated in
S v Matyityi
2011
(1) SACR 40
(SCA)
6
that ‘the crime pandemic that
engulfs our country’ has not abated. Thus courts are duty-bound
to implement the sentences
prescribed in terms of the Act and that
‘ill-defined concepts such as relative youthfulness or other
equally vague and ill-founded
hypotheses that appear to fit the
particular sentencing officer’s personal notion of fairness’
ought to be eschewed.
[14] Before us counsel for the
appellant placed much store in some decisions of this court in
support of his contention that the
sentence imposed by the court
below was out of kilter with sentences imposed in those decisions.
7
Discussing the value of decided cases
on sentence in
Malgas
Marais JA stated at 480h-481a:
‘
[21]
It would be foolish of course, to refuse to acknowledge that there is
an abiding reality which cannot be wished away, namely,
an
understandable tendency for a court to use, even if only as a
starting point, past sentencing patterns as a provisional standard
for comparison when deciding whether a prescribed sentence should be
regarded as unjust. To attempt to deny a court the right to
have any
regard whatsoever to past sentencing patterns when deciding whether a
prescribed sentence is in the circumstances of a
particular case
manifestly unjust is tantamount to expecting someone who has not been
allowed to see the colour blue to appreciate
and gauge the extent to
which the colour dark blue differs from it. As long as it is
appreciated that the mere existence of
some
discrepancy
between them cannot be the sole criterion and that something more
than that is needed to justify departure, no great
harm will be
done.’
But as this court made plain in
S
v Fraser
1987 (2) SA 859
(A)
8
‘
it is an idle exercise to match
the colour of the case at hand and the colours of other cases with
the object of arriving at an
appropriate sentence’. Ultimately
each case must be decided in the light of its peculiar facts.
[15] Rape is undeniably a despicable
crime. In
N v T
1994 (1) SA 862
(C)
9
it was described as ‘a
horrifying crime and . . . a cruel and selfish act in which the
aggressor treats with utter contempt
the dignity and feelings of
[the] victim’. In
S v
Chapman
10
this court said it is ‘a
humiliating, degrading and brutal invasion of the privacy, the
dignity and the person of the victim’.
Its gravity in this case
is aggravated by the fact that the victim was a 12 year-old child. In
S v Jansen
11
rape of a child was said to be ‘an
appalling and perverse abuse of male power’. The court there
went on to say:
[I]t
is sadly to be expected that the young complainant in this case,
already burdened by a most unfortunate background . . . and
who had,
notwithstanding these misfortunes, performed reasonably well at
school, will now suffer the added psychological trauma
which resulted
in a marked change of attitude and of school performance. The
community is entitled to demand that those who perform
such perverse
acts of terror be adequately punished and that the punishment reflect
the societal censure. It is utterly terrifying
that we live in a
society where children cannot play in the streets in any safety;
where children are unable to grow up in the
kind of climate which
they should be able to demand in any decent society, namely in
freedom and without fear. In short, our children
must be able to
develop their lives in an atmosphere which behoves any society which
aspires to be an open and democratic one based
on freedom, dignity
and equality, the very touchstones of our Constitution.’
I wholeheartedly align myself with
these sentiments.
[16] In similar vein
S
v D
12
underscored the vulnerability of
children and went on to say:
‘
Children
are vulnerable to abuse, and the younger they are, the more
vulnerable they are. They are usually abused by those who think
they
can get away with it, and too often do.
.
. .
Appellant’s
conduct in my view was sufficiently reprehensible to fall within the
category of offences calling for a sentence
both reflecting the
Court’s strong disapproval and hopefully acting as a deterrent
to others minded to satisfy their carnal
desires with helpless
children.’
Pretty much the same situation obtains
in his case.
[17] Accordingly, it is in the light
of the foregoing backdrop that this appeal must be considered. The
court below did not consider
the appellant’s mitigating factors
to constitute substantial and compelling circumstances. Those
mitigating factors must
of course be weighed against the aggravating
circumstances of the case. The following may be mentioned. The
appellant steadfastly
maintained that he was innocent even in the
face of overwhelming evidence against him. He brazenly abducted the
complainant in
the presence of her friends to satisfy his sexual
desires without using a condom. He subjected the complainant to the
agony, pain
and indignity of rape. The age of the complainant when
she was raped, coupled with her immaturity and anatomical
under-development
render this rape a dreadful one. The complainant
was effectively held hostage the whole night thus exacerbating her
anguish.
[18] The Victim Impact Report handed
in by consent in the court below also reflects a sad account of the
devastation suffered by
the complainant and her family. The
complainant was forced to drop out from school, compelling her mother
to give up employment
to offer her emotional support. The complainant
has been driven to becoming a recluse to avoid being ridiculed by her
peers, thus
exacerbating the consequential emotional and
psychological trauma she suffered.
[19] Counsel for the appellant argued
that the complainant did not sustain any permanent physical injuries
and even advanced a speculative
contention that the period that has
elapsed since the rape was perpetrated was long enough for the
complainant to emotionally heal.
To my mind this submission manifests
a misconception about the psychological and emotional consequences of
rape for the victim.
In
S v
De Beer
13
this court said the following:
‘
Rape
is a topic that abounds with myths and misconceptions. It is a
serious social problem about which, fortunately, we are at least
becoming concerned. The increasing attention given to it has raised
our national consciousness about what is always and foremost
an
aggressive act. It is a violation that is invasive and dehumanising.
The consequences for the rape victim are severe and permanent.
For
many rape victims the process of investigation and prosecution is
almost as traumatic as the rape itself.’
[20] It was further submitted on
behalf of the appellant that this was not the worst rape imaginable.
Thus, concluded the argument,
that consideration, viewed with other
mitigating factors, justifies a lesser sentence. I do not agree. In
S
v Mahomotsa
14
this court made plain that the fact
that more serious cases than the one under consideration are
imaginable is not decisive. Mpati
JA said:
‘
[19]
Of course, one must guard against the notion that because still more
serious cases than the one under consideration are imaginable,
it
must follow inexorably that something should be kept in reserve for
such cases and therefore that the sentence imposed in the
case at
hand should be correspondingly lighter than the severer sentences
that such hypothetical cases would merit there is always
an upper
limit in all sentencing jurisdictions, be it death, life or some
lengthy term of imprisonment, and there will be cases
which, although
differing in their respective degrees of seriousness, nonetheless all
call for the maximum penalty imposable. The
fact that the crimes
under consideration are not all equally horrendous may not matter if
the least horrendous of them is horrendous
enough to justify the
imposition of the maximum penalty.’
Accordingly this case, on its facts,
is indeed horrendous enough to justify the imposition of the maximum
penalty.
[21] In
S
v Vilakazi
2009 (1) SACR
552
(SCA), Nugent JA put it thus:
‘
[I]
should not be understood to mean that the absence of any one or more
of the various aggravating features specified in the Act
necessarily
justifies a departure from the prescribed sentence for that would
suggest that the maximum sentence is reserved for
only extreme cases.
That was not so prior to the Act and is not the case now.
There
comes a stage at which the maximum sentence is appropriate 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
.
Whether, and if so to what extent, the absence of other aggravating
circumstances might diminish the offender’s culpability
will
naturally depend upon the particular circumstances.’
15
(My
underlining.)
[22] This brings me to the final
argument advanced on behalf of the appellant, namely, that he was a
primary care giver to his minor
son born out of wedlock on 22 August
2003 whose mother is deceased. It appears from the record that the
minor child was previously
in the care of its deceased mother’s
family who cared for it. The appellant took over the care of the
child after his family
had paid the customary damages. When this
occurred is, however, not apparent from the record. The appellant has
been in incarceration
since 20 September 2007. It is now more than
five years since the appellant was separated from his minor son.
[23] In
S
v M
16
the Constitutional Court made plain
that whilst the sentencing court must ensure ‘that the form of
punishment imposed is the
one that is least damaging to the interests
of the children,
given the
legitimate range of choices in the circumstances available to the
sentencing court
’
,
this obligation does not avail parents who invoke it ‘as a
pretext for escaping the otherwise just consequences of their
own
misconduct’. (My emphasis.) In the context of this case the
court below did not enjoy any legitimate range of choices
in regard
to the sentence given that the prescribed period of imprisonment for
life was the sentence ordinarily to be imposed.
Moreover the little
information apparent from the record suggests that the incarceration
of the appellant could not have left his
minor child destitute.
[24] Whilst persisting in his argument
in this regard counsel for the appellant nevertheless accepted that
long term imprisonment
is called for on the facts of this case. In
dealing with a similar argument in
Vilakazi
this court said:
‘
[O]nce
it becomes clear that the crime is deserving of a substantial period
of imprisonment the questions whether the accused is
married or
single, whether he has two children or three, whether or not he is in
employment, are in themselves largely immaterial
to what that period
should be, and those seem to me to be the kind of ‘flimsy’
grounds that
Malgas
said
should be avoided.’
17
Thus the appellant’s argument on
this score cannot be upheld.
[25] For all the foregoing reasons I
am not persuaded that the court below erred in its conclusion that
substantial and compelling
circumstances were absent. To come to a
contrary decision in this case would constitute a failure to heed the
caution in
Malgas
that the ‘specified sentences
are not to be departed from lightly or for flimsy reasons’ and
that ‘speculative
hypotheses favourable to the offender, undue
sympathy, aversion to imprisoning first offenders . . . are to be
excluded’.
18
Although the court below did not say
so in terms, it is evident from the tenor of its judgment that before
it imposed the prescribed
sentence, it had assessed, upon a
consideration of all the circumstances of this case, whether the
prescribed sentence was indeed
proportionate to the offence charged
(see eg
S v Vilakazi
2009 (1) SACR 552
(SCA) para 15).
[26] In the result the appeal against
the sentence of imprisonment for life is dismissed.
_________________
X M PETSE
JUDGE OF APPEAL
Appearances:
Appellant: M P Legodi
Instructed by:
Legal Aid, Polokwane
Legal Aid, Bloemfontein
Respondent: P Vorster
Instructed by:
The Director of Public Prosecutions,
Pretoria
The Director of Public Prosecutions,
Bloemfontein
1
Repealed
by s 52 of Act 38 of 2007.
2
Constitution
of the Republic of South Africa Act 108 of 1996.
3
At
334d-335g.
4
S
v Malgas
2001 (1) SACR 469
(SCA); (SA 1222;
[2001] 3 All SA 220)
para 7.
5
At
476e-477f.
6
At
53c-g.
7
S
v Mahomotsa
2002 (2) SACR 435
(SCA);
S v Sikhipha
2006
(2) SACR 439
(SCA);
S v Nkomo
2007 (2) SACR 198
(SCA).
8
At
863C-D.
9
At
864G.
10
S
v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 5a-d
[1997] ZASCA 45
;
(1997 (3) SA 341)
(at
345A-B).
11
1999
(2) SACR 368
(C) at 378h-379a.
12
S
v D
1995 (1) SACR 259
(A) at 260f-i.
13
At
para 18 (unreported judgment, SCA case no 121/2004).
14
S
v Mahomotsa
2002 (2) SACR 435
(SCA) para 19.
15
Para
54.
16
S
v M (Centre for Child Law as amicus curiae)
[2007] ZACC 18
;
2007
(2) SACR 539
(CC) paras 33-35.
17
At
574d-e.
18
At
481j-482a.