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[2023] ZAKZPHC 58
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Shabalala v S (AR 264/22) [2023] ZAKZPHC 58 (29 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no: AR 264/22
In
the matter between:
SANDILE
ELLEN SHABALALA
APPELLANT
vs
THE
STATE
RESPONDENT
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date for hand down is deemed to be on 29
th
May 2023 at
10:00
ORDER
On
appeal from the Regional Court, Scottburgh:
The
appeal against the sentence of life imprisonment that was imposed on
the appellant by the court a quo is dismissed.
JUDGMENT
ME
Nkosi J (Chetty J Concurring)
Introduction
[1] This is an
appeal by Sandile Ellen Shabalala (‘the appellant’)
against the sentence of life imprisonment that
was imposed on him by
the District Court for the Region of KwaZulu-Natal held at Scottburgh
for the crime of rape of a child under
the age of 12 years. The
appellant pleaded guilty to the charge of rape of the complainant,
and his appeal is against sentence
only by virtue of his automatic
right of appeal in terms of s 309 of the Criminal Procedure Act 51 of
1977 (‘the CPA’)
against the sentence of life
imprisonment.
The crime
[2] The appellant’s
conviction and sentence by the court a quo emanated from the
allegations made the State that on
or about 3 March 2019, and at or
near the Nomakhanzana Area in Hibberdene, KwaZulu-Natal, the
appellant raped the complainant,
‘A’, who was a child
aged 11 years’ old at the time of the commission of the
offence.
The Plea
[3] The appellant
pleaded guilty to the charge of rape and his legal representative
handed a written statement into court
in terms of s 112(2) of the
CPA, in which the appellant set out the facts which he admitted and
on which he pleaded guilty. In
essence, he admitted that on 3 March
2019 he was walking along a certain road at the Nomakanzana area when
he came across the complainant.
He called her to come to him, which
she did. He then instructed her to go with him into a dark place
where he climbed on top of
her and inserted his penis into her
vagina. He admitted that his actions were without the consent of the
complainant.
[4] After his
statement in terms of s 112(2) of the CPA was read into the record by
his legal representative, the appellant
was questioned by the
presiding magistrate to ensure that the statement had been read and
interpreted to him. He confirmed that
it was, which satisfied the
learned magistrate that he admitted all the elements of the offence
of rape, and had no valid defence
to the charge. He also admitted
that the complainant was under the age of 12 years at the time of the
commission of the offence
and, therefore, was legally incapable of
consenting to sexual intercourse. The magistrate found him guilty as
charged.
The evidence
[5] Prior to the
appellant’s conviction, the documentary evidence which the
State had against him was admitted by the
court a quo by consent of
the parties. Such evidence included the appellant’s statement
in terms of s 112(2) of the CPA (Exhibit
‘A’); the
Doctor’s affidavit in terms of s 212(4) of the CPA and the J88
form completed by him of his medico-legal
examination of the
complainant (Exhibit ‘B’); a certified copy of the
complainant’s birth certificate (Exhibit
‘C’); and
the DNA report which linked the appellant to the rape of the
complainant (Exhibit ‘D’).
Grounds of appeal
[6] The appellant’s
appeal against the sentence of life imprisonment for the crime of
rape of the complainant is based
primarily on two grounds. The first
ground is that the trial court misdirected itself in attaching
insufficient weight to the personal
circumstances of the appellant
which, it was submitted, ought to have been accepted by that court as
constituting mitigating factors
in favour of the appellant.
[7] In particular,
the personal circumstances of the appellant that are said to have
been given insufficient weight by the
court a quo are, namely: (a)
that he was 42 years’ old at the time of the commission of the
offence; (b) although he has
a number of previous convictions, they
are not related to the charge of rape which indicates that he is a
candidate for rehabilitation;
and (c) it was apparent from the J88
form that was admitted as evidence marked Exhibit ‘B’
that the complainant did
not suffer serious injuries from being raped
by the appellant.
[8] The second
ground of is that the sentence of life imprisonment that was imposed
on the appellant by the court a quo is,
in the circumstances of this
case, harsh and inappropriate to the extent that it induces a sense
of shock. It is further submitted
that the trial court failed to
exercise its discretion properly and judicially, which warrants this
court to exercise its powers
to interfere with the sentence imposed
by the trial court.
The law
[9] It was held by
the Supreme Court of Appeal (‘SCA’) in S v Malgas
2001
(1) SACR 469
SCA at 478 (d) to (e) that:
‘
A Court exercising
appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the question
of sentence as
if it were the trial court and then substitute the sentence arrived
at by it simply because it prefers it. To do
so would be to usurp the
sentencing discretion of the trial court.’
Therefore, in the present
case, the question is whether there was any material misdirection by
the trial court to justify an interference
by this court with the
sentence of life imprisonment that was imposed upon the appellant.
[10]
In addressing the question posed in the preceding paragraph, one has
to adopt as a starting
point the provisions of s 51(1) of the
Criminal Law Amendment Act 105 of 1997 (‘the CLAA’). In
essence, that section
provides that a regional court or a high court
is required to sentence a person it has convicted of an offence
referred to in Part
I of Schedule 2 to that Act to imprisonment for
life, unless such court is satisfied that substantial and compelling
circumstances
exist which justify the imposition of a lesser sentence
than the sentence of life imprisonment.
[11]
The rape of
a person under the age of 16 years is one of the offences referred to
in Part I of Schedule 2 to the CLAA.
[1]
Therefore, in the present case, the fact that the appellant was
convicted of the crime of rape of an 11-year-old enjoined the court
a
quo to impose the sentence of life imprisonment upon the appellant,
that is, unless it was satisfied that the personal circumstances
of
the appellant constituted substantial and compelling circumstances to
justify a deviation from such sentence.
[12]
In my view, there is nothing in the personal circumstances of the
appellant, whether considered
individually or cumulatively, which
ought to have been regarded by the court a quo as constituting
substantial and compelling circumstances
justifying a deviation from
the minimum sentence of life imprisonment that is prescribed for the
rape of a person under the age
of 16 years. Aged 42 years at the time
of the commission of the offence, the appellant was old enough to be
the complainant’s
father.
[13]
The appellant has three daughters of his own, the youngest of whom is
almost the same age
as the complainant. Under normal circumstances,
one would expect him to be protective of young girls from being
preyed on by sexual
predators like himself. Instead, he was the one
who forced himself upon an 11-year-old girl causing her physical and
psychological
harm that is likely to leave her scarred for the rest
of her life.
[14]
The minimum sentence legislation was purposely promulgated by the
legislature to curb the
prevalence of certain offences which have
become a menace to society. These include offences which are
committed against the most
vulnerable members of the society, such as
children, the elderly and physically disabled persons. The SCA warned
in
S v Malgas
(
supra
) para 25 that:
‘
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 or for flimsy reasons.
Speculative hypothesis 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.’
[15]
I now turn
to the ‘traditional mitigating factors’ of the appellant
set out above. Regarding his age of 42 years at
the time of the
commission of the offence, the appellant was by no means an immature
young person incapable of appreciating the
severity and wrongfulness
of his conduct. He is an adult man whose last-born children are
themselves just two years younger than
the complainant. In my view,
his chronological age cannot operate as a mitigating factor. At best
for him, it was a neutral factor.
[2]
Otherwise, it could have been regarded as an aggravating factor by
the trial court because the complainant was almost the same
age as
his youngest daughter.
[16]
Regarding the contention that the appellant pleaded guilty and that
this was a factor to
be taken into account in mitigation, I am not
persuaded by this argument. The fact of the matter is that the
appellant was faced
with the DNA results which linked him to the
commission of the offence. Therefore, he had no other option but to
plead guilty,
particularly, as the complainant’s age rendered
her incapable of consenting to sexual intercourse. For this reason,
my view
is that the appellant’s guilty plea can hardly be
regarded as a mitigating factor.
[17]
This brings
me to the last submission that the complainant did not suffer
‘serious injury’ as a result of the rape and,
therefore,
this should be regarded as a mitigating factor. In my view, this
argument is without any merit, particularly, when one
has regard to
the fact that the complainant suffered bruising to the region of both
eyes, which is indicative of the fact that
she must have sustained
some level of physical assault. Moreover, in terms of s 51(3)(aA) of
the CLAA certain factors, on their
own
[3]
,
cannot be taken to constitute substantial and compelling
circumstances when sentencing for the crime of rape. Section
51(3)(aA)
states:
(aA) When imposing a
sentence in respect of the offence of rape the following shall not
constitute substantial and compelling circumstances
justifying the
imposition of a lesser sentence:
(i) …………….;
(ii) an apparent lack of
physical injury to the complainant;
………’
[18]
While the
sentence of life imprisonment may be considered harsh for a first
offender for a particular category of offence, that
too is not the
basis for an appeal court to interfere with the imposition of a
sentence by a trial court. This court can interfere
if the sentence
is vitiated by an irregularity, misdirection or is disturbingly
inappropriate.
[4]
[19]
In the case of the appellant, he has no previous convictions for rape
or sexual offences.
However, to the extent that it was submitted that
he is a candidate for rehabilitation, it bears noting that his
criminal record
stretches back to 1998 when he was convicted of
theft, with subsequent convictions relating to housebreaking in 2002,
theft in
2003, theft in 2007 and robbery, which involves an element
of violence, in 2014. In respect of the latter, he was sentenced to
five years’ imprisonment in terms of s 276(1)(i) of the CPA. In
2019 he was sentenced to two years’ imprisonment for
housebreaking.
[20]
Judging by his previous convictions, it is evident that the appellant
has not learnt from
his most recent bout of incarceration, and has
opted for more violent and serious crime. For all intents and
purposes, the criminal
record of the appellant displays a relatively
long history of conflict with the law, which cannot be considered in
his favour.
[21]
In my view,
the court took into account all of the personal circumstances of the
appellant, weighed against the impact of the offence
on the young
complainant, who will have to bear the consequences of his actions
throughout her life. This much is also apparent
from the
complainant’s victim impact statement, in which she expresses
her grief at being betrayed by the only parent she
was reliant on
after her rejection by biological mother’s husband. The gravity
of the offence in these circumstances outweighs
the personal
circumstances of the appellant.
[5]
I am unable to fault the trial court in any manner as to its approach
in arriving at the decision to impose life imprisonment.
There is no
evidence of any misdirection on its part.
Order
[22]
In the circumstances, I recommend that the following order be made:
[23]
The appeal against the sentence of the life imprisonment that was
imposed on the appellant
by the court a quo is dismissed.
ME
NKOSI
JUDGE
OF THE DURBAN HIGH COURT
I
agree,
M
CHETTY
JUDGE
OF THE DURBAN HIGH COURT
Appearances
For
the appellant:
Mr P
Marimuthu
Instructed
by:
Legal
Aid South Africa
Durban
Justice Centre
emmanuelc@legal-aid.co.za
PregasenM@legal-aid.co
For
the respondent:
Mr
Edwards
Director
of Public Prosecutions, Pietermaritzburg
AlexN.A.Khanyile@npa.gov.za
Date
of Hearing:
12
May 2023
Date
of Judgment:
29
May 2023
[1]
Subsequent to the amendment to Part 1, Schedule 2, by s 15 of
Criminal and Related Matters Amendment Act 12 of 2021, which took
effect on 5 August 2022, the age is now 18 years.
[2]
See
S v
Matyityi
2011 (1) SACR 40
(SCA), para 14.
[3]
It is permissible to consider the factors listed in s 51(3)(Aa) of
the Criminal Law Amendment Act 105 of 1997 cumulatively, but
not
individually, to amount to substantial and compelling circumstances.
See
S v
SMM
2013 (2) SACR 292
(SCA), para 26, and
Kruger
Hiemstra’s Criminal Procedure
SI 16 (February 2023) at 28-29.
[4]
See S v
Bogaard
s
2013 (1) SACR 1
(CC);
S
v Ngcobo
2018 (1) SACR 479
(SCA), para 11;
S
v Romer
2011 (2) SACR 153
(SCA), para 22.
[5]
See
Director
of Public Prosecutions, Grahamstown v Peli
2018 (2) SACR 1
(SCA).