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[2023] ZAECBHC 1
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Makeke v S (CA&R 09/2022) [2023] ZAECBHC 1; 2023 (1) SACR 415 (ECB) (31 January 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
CASE
NO. CA&R 09/2022
REPORTABLE
In
the matter between:
MCEBISI
MAKEKE
Appellant
and
THE
STATE
Respondent
JUDGMENT
LAING
J
[1]
This is an appeal against sentence handed down in the Regional Court,
Zwelitsha.
Background
[2]
The appellant was charged with the rape of a ten-year old girl at or
near
Tolofiyeni, in the Eastern Cape. It was alleged that section
51(1) applied, read with Part 1 of Schedule 2 of the Criminal Law
Amendment Act 105 of 1997 (‘the CLAA’), since the
complainant was alleged to have been raped more than once and had
been under the age of 16 years at the time.
[3]
The appellant pleaded not guilty, and the matter went to trial. The
court
a quo
found him guilty and applied the provisions of the
CLAA when handing down a sentence of life imprisonment.
[4]
The appellant has not appealed against his conviction.
Issues
to be decided and approach to be adopted
[5]
The grounds of appeal relied on are that the court
a quo
erred
in finding that there were no substantial and compelling
circumstances to warrant the imposition of a lesser sentence. More
specifically, the appellant argues that: (a) he was a first offender;
and (b) he was 44 years old and capable of rehabilitation.
The
appellant also argues that the court
a quo
over-emphasised the
seriousness of the offence in relation to the appellant’s
personal circumstances.
[6]
A
court of appeal will not interfere lightly with the trial court’s
exercise of its discretion.
[1]
In Du Toit’s well-known commentary,
[2]
the learned authors observe that:
‘
A
court of appeal will not, 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…’
[3]
[7]
Case
law supports the cautious approach to be taken by a court of appeal.
In
S
v Bogaards
,
[4]
Khampepe J held, at [41], that:
‘
It
can only do so [i.e. interfere with the sentence imposed] where there
has been an irregularity that results in the failure of
justice; the
court below misdirected itself to such an extent that its decision on
sentence is vitiated; or the sentence is so
disproportionate or
shocking that no reasonable court could have imposed it.’
[5]
[8]
This
is also apparent from
S
v Hewitt
,
[6]
where Maya DP held that:
‘
It
is a trite principle of our law that the imposition of sentence is
the prerogative of the trial court. An appellate court may
not
interfere with this discretion merely because it would have imposed a
different sentence. In other words, it is not enough
to conclude that
its own choice of penalty would have been an appropriate penalty.
Something more is required; it must conclude
that its own choice of
penalty is the appropriate penalty and that the penalty chosen by the
trial court is not. Thus, the appellate
court must be satisfied that
the trial court committed a misdirection of such a nature, degree and
seriousness that shows it did
not exercise its sentencing discretion
at all or exercised it improperly or unreasonably when imposing it.
So, interference is
justified only where there exists a “striking”
or “startling” or “disturbing” disparity
between
the trial court’s sentence and that which the appellate
court would have imposed. And in such instances the trial court’s
discretion is regarded as having been unreasonably exercised.’
[7]
[9]
Consequently, the court in the present
matter can only interfere with the sentence where the trial court’s
exercise of its
discretion was patently incorrect. The sentence must
otherwise be left undisturbed.
[10]
The above principles must guide the
determination to be made in relation to the appellant’s grounds
of appeal.
Substantial
and compelling circumstances
[11]
There is little in the record that serves
to advance the appellant’s case on appeal. His legal
representative made submissions
that were very limited in nature. In
addition to the fact that the appellant was a first offender and that
he was 44 years old
and capable of rehabilitation, his attorney
mentioned only that there was no indication that the complainant
suffered any serious
physical injury or trauma. No evidence was led.
[12]
Counsel
for the appellant referred to the seminal decision in
S
v Malgas
,
[8]
which remains entirely relevant when deciding whether substantial and
compelling circumstances exist. The pertinent portions thereof
are
repeated below, where Marais JA held as follows:
‘…
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.
…
In
what respects was it no longer 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.
…
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. As was observed in
Flannery
v Halifax Estate Agencies Ltd by the Court of Appeal
,
“a requirement to give reasons concentrates the mind, if it is
fulfilled the resulting decision is much more likely to be
soundly
based- than if it is not”. 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…’
[9]
[13]
The
decision has had a significant impact on the approach to sentencing
after the enactment of the CLAA. Over time, courts have
extended the
borders of its interpretation and application. For example, counsel
for the appellant referred to
S
v GN
,
[10]
where Du Plessis J stated:
‘…
As
I understand the Malgas judgment, the prescribed minimum sentence may
be departed from if, having regard to all the factors that
play a
role in determining a just sentence, the court concludes that the
imposition of the prescribed minimum would in the particular
case
constitute
an
injustice or would be “disproportionate to the crime, the
criminal and the legitimate needs of
society”…’
[11]
[14]
In
the present matter, the fact that the appellant was a first offender
and 44 years old would usually count in his favour.
[12]
Where the CLAA applies, however, these factors are not sufficient on
their own to justify a departure from the imposition of a
minimum
sentence. There must be substantial and compelling reasons to do so.
Proportionality
[15]
The
usual triad of the crime, the offender, and the interests of society,
as enunciated in
S
v Zinn
,
[13]
must be considered. The case at hand entailed the rape, on ‘diverse’
occasions,
[14]
of a
ten-year-old girl. Her mother had left her and two younger siblings
under the indefinite care of an uncle, living in a rural
area. They
slept on sheets of cardboard in a small shack. In the absence of any
meaningful care and attention from the uncle, the
girl was left on
her own to look after her siblings. She cooked for them and changed
the nappies of the youngest but resorted,
ultimately, to begging for
maize, bread, and sugar from neighbours.
[16]
The offences committed by the appellant, in
the circumstances described above, are nothing short of horrendous.
He abused her trust
in him as her uncle, took complete advantage of
her vulnerability, and used her to meet his own needs. Despite the
argument of
the appellant’s attorney that there was no
indication of serious physical injury or trauma, the complainant
clearly testified
that the rapes had been painful. It is likely, too,
that the complainant, at so young an age, will not emerge from the
experience
emotionally unscathed. The effects will probably last a
lifetime.
[17]
The
imposition of life imprisonment is, however, the most severe sanction
available to the court. It is imperative, therefore, that
the court
is satisfied that the sentence is indeed proportionate to the
offence. In
S
v Dodo
,
[15]
Ackermann J remarked as follows:
‘…
The
concept of proportionality goes to the heart of the inquiry as to
whether punishment is cruel, inhuman or degrading, particularly
where, as here, it is almost exclusively the length of time for which
an offender is sentenced that is in issue. This was recognized
in
S
v Makwanyane
. Section 12(1)(a) [of the
Constitution] guarantees, amongst others, the right “not to be
deprived of freedom… without
just cause.” The “cause”
justifying penal incarceration and thus the deprivation of the
offender’s freedom,
is the offence committed. “Offence”,
as used throughout in the present context, consists of all factors
relevant to
the nature and seriousness of the criminal act itself, as
well as all relevant personal and other circumstances relating to the
offender which could have a bearing on the seriousness of the offence
and the culpability of the offender. In order to justify
the
deprivation of an offender’s freedom it must be shown that it
is reasonably necessary to curb the offence and punish
the offender.
Thus the length of punishment must be proportionate to the offence.
…
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 (in the
sense defined in
paragraph 37 above) 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]
[18]
The
principle of proportionality was also addressed in
Vilakazi
v S
,
[17]
where Nugent JA observed that a prescribed sentence cannot be
assumed,
a
priori
,
to be proportionate in a particular case. This was an issue to be
determined upon consideration of the circumstances. The essence
of
Malgas
and
Dodo
,
said Nugent JA, was that disproportionate sentences were not to be
imposed and that courts were not vehicles for injustice.
[18]
Sufficient
information
[19]
Dealing specifically with rape, the court
in
Vilakazi
held as follows:
‘…
The
prosecution of rape presents peculiar difficulties that always call
for the greatest care to be taken, and even more so where
the
complainant is young. From prosecutors it calls for thoughtful
preparation, patient and sensitive presentation of all the available
evidence, and meticulous attention to detail. From judicial officers
who try such cases it calls for accurate understanding and
careful
analysis of all the evidence. For it is in the nature of such cases
that the available evidence is often scant and many
prosecutions fail
for that reason alone. In those circumstances each detail can be
vitally important. From those who are called
upon to sentence
convicted offenders such cases call for considerable reflection.
Custodial sentences are not merely numbers. And
familiarity with the
sentence of life imprisonment must never blunt one to the fact that
its consequences are profound.’
[19]
[20]
The availability of evidence and the
correct analysis and understanding thereof remain just as important
considerations during sentencing
proceedings as the trial itself. The
exercise of formulating and handing down sentence is not simply an
afterthought, added at
the very end of the arduous process of
deciding whether the accused is guilty or not. A court has a
compelling duty to ensure that
the punishment fits the crime (and, of
course, the offender). This relies, to a great extent, on the
quantity and quality of the
information placed before the court.
[21]
In
Ndou
v S
,
[20]
Shongwe JA stated that:
‘…
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…’
[21]
[22]
It is of no assistance to the accused, the
court, or the administration of justice, for practitioners to place a
bare minimum of
information at the disposal of the presiding officer.
There is a time and a place for submissions made from the bar, but
more is
expected when what is at stake is a lifetime of
incarceration.
Discussion
[23]
In the present matter, the submissions made
in mitigation occupied no more than 16 lines of the record. Much of
that was qualified
by the transcriber’s comment that the
submissions were inaudible. In aggravation, the record reflects a
total of 12 lines
of argument. There was no victim impact assessment,
there was no pre-sentencing report. To be frank, there was simply no
information
at all that permitted the court
a
quo
the reflection necessary to ensure
that the prescribed minimum sentence of life imprisonment was indeed
proportional to the offence
in question.
[24]
It
cannot be disputed that, notwithstanding the possibility that
sufficient information could have been made available to the court
a
quo
,
it might well have concluded, nonetheless, that there were simply no
substantial and compelling circumstances to have justified
the
imposition of a lesser sentence. This is clearly apparent from a
consideration of recent case law that deals with similar facts.
[22]
The rape of a ten-year-old girl by her 44-year-old uncle is and
remains a most heinous and shocking offence.
[25]
In
the absence of sufficient information, however, a court of appeal
cannot read into the record, so to speak, the existence or
otherwise
of substantial and compelling circumstances. The Supreme Court of
Appeal addressed the subject in
Rammmoko
v Director of Public Prosecutions
,
[23]
where Mpati JA indicated that:
‘…
Life
imprisonment is the heaviest sentence a person can be legally obliged
to serve. Accordingly, where section 51(1) applies, an
accused must
not be subjected to the risk that substantial and compelling
circumstances are, on inadequate evidence, held to be
absent. At the
same time the community is entitled to expect that an offender will
not escape life imprisonment- which has been
prescribed for a very
specific reason- simply because such circumstances are,
unwarrantedly, held to be present. In the present
matter evidence
relating to the extent to which the complainant has been affected by
the rape and will be affected in future is
relevant, and indeed
important. Such evidence could have been led from the complainant’s
mother, her school teacher or a
psychologist. No attempt was made to
do so.
…
And
the placing of this important information before the sentencing court
is not the responsibility of State counsel alone. The
presiding
officer, who must satisfy himself before imposing the prescribed
sentence that no substantial and compelling circumstances
are
present, also bears some responsibility. Van der Walt J, in
S
v Dlamini
2000 (2) SACR 266
(T),
correctly sums up the position, when he says (at 268d-e):
“
The
Court that imposes sentence in a criminal case plays an active role
in the trial and does not sit by passively when evidence
is led.
Indeed,
section 186
of the
Criminal Procedure Act 51 of 1977
provides
that the court can at any stage of criminal proceedings subpoena or
cause to be subpoenaed any person as a witness at
such proceedings
and the court shall in this manner cause a witness to be subpoenaed
if the evidence of such witness appears to
the court necessary for
the fair adjudication of the case.”
[24]
In
the present case nothing prevented the court
a
quo
from directing, for example, that the complainant be interviewed by a
psychologist or other appropriately qualified or trained
person to
establish the effects of the rape on her, present and future.’
[25]
[26]
The
more active role expected of a court for purposes of sentencing was
reiterated by the Supreme Court of Appeal in
Olivier
v S
,
[26]
where Majiedt JA held:
‘…
It
is trite that during the sentencing phase, formalism takes a back
seat and a more inquisitorial approach, aimed at collating
all
relevant information, is adopted. The object of the exercise is to
place before the court as much information as possible regarding
the
perpetrator, the circumstances of the commission of the offence and
the victim’s circumstances, including the impact
which the
commission of the offence had on the victim. The prosecutor, defence
counsel and the presiding officer all have a duty
to complete the
picture as far as possible at sentencing stage. Material factual
averments made during this phase of the trial
ought, as a general
proposition, to be proved on oath.’
[27]
[27]
At
the very least, the personal circumstances of the accused must
properly be taken into account. Overall, however, the court must
ensure that it has been placed in possession of as much relevant
information as possible before imposing the prescribed minimum
sentence. A life sentence must be reserved for cases devoid of
substantial factors that would otherwise compel the conclusion that
such a sentence was inappropriate and unjust.
[28]
Relief
and order to be made
[28]
The court cannot ignore the sense of shock
and outrage that accompanies a crime such as the one in the present
matter. The rape
of a child remains an anathema and it is in the
interests of society that it continues to be treated as such by the
courts.
[29]
Nevertheless, a presiding officer is
required to ensure that he or she has sufficient information for
deciding whether substantial
and compelling circumstances exist to
justify the imposition of a lesser sentence. The court
a
quo
, here, relied on the most
perfunctory of submissions made by the defence and the state before
handing down a life sentence. From
the record, it is simply not
apparent that enough was known about
the
accused, the situation at the time that the offence was committed, or
the complainant’s circumstances, including the impact
that the
commission of the offence has had on her.
It
cannot be said that the court was in possession of enough information
to have been satisfied that the prescribed minimum sentence
would not
infringe the principle of proportionality.
[30]
Consequently, I am of the respectful view
that the court
a quo
committed a material misdirection in not ensuring that it had been
placed in possession of sufficient information before imposing
the
prescribed minimum sentence. The discretion of the court
a
quo
was exercised unreasonably and
incorrectly.
[31]
The court of appeal, however, is not able
to consider sentence afresh. Instead, the approach adopted in
Rammoko
provides, in my view, the basis upon which the matter can be remitted
to the court
a quo
for reconsideration.
[32]
In the circumstances, the following order
is made:
(a)
the appeal is upheld and the sentence of
the court
a quo
is set aside;
(b)
the matter is remitted to the court
a
quo
for reconsideration of the sentence
to be imposed; and
(c)
the appellant shall remain in custody,
pending the outcome of such reconsideration.
JGA LAING
JUDGE OF THE HIGH
COURT
I agree.
L RUSI
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the appellant: Ms Mtini,
instructed
by the Legal Aid South Africa, King Williams Town.
For
the respondent: Adv Tokota,
instructed
by the Director of Public Prosecutions, Bhisho.
Date
of hearing:
16 September 2022.
Date
of delivery of judgment:
31 January 2023.
[1]
See
S
v Romer
2011 (2) SACR 153
(SCA);
S
v Hewitt
2017 (1) SACR 309
(SCA); and
S
v Livanje
2020 (2) SACR 451 (SCA).
[2]
E
du Toit (et al),
Commentary
on the
Criminal Procedure Act
(Jutastat
, RS 66, 2021), at ch30-p42A.
[3]
See,
too,
S
v Malgas
2001 (1) SACR 469
(SCA);
S
v Fielies
[2014] ZASCA 191
(unreported, SCA case no 851 / 2013, 28 November
2014);
S
v Mathekga and another
2020 (2) SACR 559
(SCA); and
S
v Gebengwana and another
(unreported, ECG case no CA&R 186 / 2015, 21 September 2016.
[4]
2013 (1) SACR 1 (CC).
[5]
At
paragraph [41].
[6]
2017 (1) SACR 309 (SCA).
[7]
At
paragraph [8].
[8]
2001
(1) SACR 469 (SCA).
[9]
At
paragraphs [7] to [9].
[10]
2010
(1) SACR 93 (TPD).
[11]
At
paragraph [6].
[12]
See,
for example,
S
v Ngobeni
1992 (1) SACR 628
(A), at 631i;
S
v Mosemeng
1994 (1) SACR 591
(A), at 595c; and
S
v Kruger
1995 (1) SACR 27
(A), at 29f.
[13]
1969
(2) SA 537
(A), at 540G-H.
[14]
The
term appears in Annexure A to the charge sheet.
[15]
[2001] ZACC 16
;
2001
(5) BCLR 423
(CC).
[16]
At
paragraphs [37] and [38].
[17]
[2008]
4 All SA 396 (SCA).
[18]
At
paragraph [18].
[19]
At
paragraph [21].
[20]
[2012]
JOL 29522 (SCA).
[21]
At
paragraph [14].
[22]
See,
for example,
S
v FM
2016 JDR 1564 (GP);
S
v Mgandela
2016 JDR 1748 (ECM);
S
v Radebe
2019 JDR 1257 (GP); and
S
v Daile
2021 JDR 1879 (GP). The decision of the Supreme Court of Appeal in
Director
of Public Prosecutions, Grahamstown v Mantashe
[2020] JOL 47313
(SCA), to which the court
a
quo
in the present matter referred, is also of relevance (at paragraphs
[11] and [12]).
[23]
[2002]
JOL 10353 (SCA).
[24]
Own
translation.
[25]
At
paragraphs [13] and [14].
[26]
[2010]
JOL 25319 (SCA).
[27]
At
paragraph [8].
[28]
See
the full court decision in
S
v FJH
2015 JDR 0073 (GP), where Southwood J observed that a case marked by
extreme violence and humiliation would usually be regarded
as such
(at paragraph [23]).