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[2023] ZAECMKHC 52
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S v Botha (Sentence) (22/2022) [2023] ZAECMKHC 52 (28 April 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
NOT
REPORTABLE
Case
no: 22/2022
In
the matter between:
THE
STATE
And
PHILANI
AIDEN BOTHA ACCUSED
JUDGMENT
ON SENTENCE
Govindjee
J
Background
[1]
Mr Botha was convicted of a charge of rape.
He unlawfully and intentionally committed an act of sexual
penetration with a seven-year-old
female complainant by inserting his
penis into her vagina without her consent during 2020.
[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 was raped by Mr Botha, a
relative, after she had been sent by her grandmother to him to repair
a phone. The rape
was painful, causing the complainant to cry. Mr
Botha had placed a hand over her mouth and covered her eyes during
the incident,
and threatened to kill her if she spoke about her
ordeal.
[7]
It
is also important to consider the effect of the crimes on the victim,
particularly in cases of gender-based violence.
[11]
The child was extremely young at the time she was raped, and was
compelled to experience something completely unfitting for a child
her age. Her innocence has been stolen. I accept the argument
advanced by the state that it is extremely difficult for anybody,
including a presiding judge, to fully comprehend and appreciate the
likely effect of the rape on the rest of her life. A clinical
psychologist report, accepted into evidence by consent, confirms the
significant changes that have been observed in respect of
the
behaviour of the complainant as a result of her rape. She has become
withdrawn and frequently displays a sad mood, expressing
feelings of
isolation, helplessness, shame and lack of trust. She is now wary of
male figures and experiences sleep disturbance
and nightmares. She is
also absent-minded, mentally drifting off and dwelling on the
incident. The clinical psychologist report
concludes that the child
has suffered significantly from the rape, which has impacted her life
negatively. Psychotherapy has been
strongly recommended to assist her
to come to terms with what happened to her.
[8]
It
must be noted that the complainant was made to relive her ordeal in
court. According to the SCA, this factor should not be
overlooked.
[12]
Mr
Botha’s circumstances and interests
[9]
Mr Mgangatho
placed
Mr Botha’s personal circumstances before court. He would have
been approximately 20 years of age at the time of the
incident and is
a first offender, with no other cases pending. His level of education
is grade 11. He is unmarried and was previously
employed as a general
worker earning R3800 per month. He supported his only child, who was
born during August last year and did
not reside with him, with R700
per month, and also contributed R600 to the household where he
resided. Mr Botha lived with his
father, step-mother and two cousins,
and was raised by his father once his maternal great-grandmother
passed away. He has no relationship
with his mother, who lives in
Gauteng. A pre-sentence psychological report accepted into the record
confirms that Mr Botha does
not accept any responsibility for the
rape.
The
interests of society
[10]
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.’
[11]
In
S
v Vilakazi
,
[15]
the SCA 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 seven
years of age, is by its nature one of the worst kinds of offences
imaginable. The SCA has recently stated that courts
cannot ignore the
reality that South Africa is facing a pandemic of sexual violence
against women and children.
[16]
[12]
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.
[17]
Regrettably, that legislation seems to have achieved little in
respect of stemming the shocking number of child rape cases that
are
set down for hearing by this court each year. Society’s
patience, understandably, is wearing thin, and sentences imposed
in
child rape cases are rightly scrutinised.
[13]
Mr
Botha’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.
[18]
The
fact that Mr Botha is a first offender does not, on its own,
necessarily warrant a lesser sentence. The question remains whether
there are substantial and compelling reasons, on the whole, to
justify a lesser sentence than the minimum sentence prescribed.
Analysis
[14]
This
court is duty bound to consider Mr Botha’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.
[19]
All the circumstances of the case must be considered to determine
whether the imposition of a minimum life sentence is proportionate
to
the particular offence.
[20]
[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. As
Ms
Van Rooyen
argued,
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.
[21]
The 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. This
court has previously noted that it will not shirk this
responsibility,
however agonising it may be to do so.
[22]
[16]
It
is important to consider the various circumstances cumulatively, and
with specific focus on Mr Botha’s clean record and
relative
youthfulness at the time. 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 has been noted
previously that this 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 Botha as substantial and compelling have
been considered in their totality. The main factors in his
favour are
that he is a youthful first offender. Other factors, including that
the rape was carried out seemingly spontaneously
and
opportunistically on a single occasion, carry less weight when given
proper consideration. His level of education, although
low, is not
unusual and there is no basis for suggesting any remorse. On the
whole, however, I consider the circumstances to be
weighty enough so
as to warrant departure from the prescribed minimum. The fact that a
prescribed sentence is considered disproportionate
is itself a basis
to find that there are substantial and compelling circumstances to
warrant a departure from a prescribed sentence.
[25]
As Goosen J, as he then was, held in
S
v Weideman
:
[26]
‘
Life
imprisonment is the most severe sentence that can be imposed by a
court. For this reason it is, generally speaking, reserved
for the
most serious and egregious criminal acts. It is also reserved for
those instances where the criminal poses a clear and
present danger
to the society and where there is little or no prospect of
rehabilitation of the criminal and reintegration of that
individual
into society. This does not however mean that a court should keep
something in reserve on the basis that some more serious
manifestation of the crime can be imagined. It means only that the
sentence of life imprisonment must be proportionate to the nature
of
crime for which it is imposed.’
[18]
Life
sentences are undoubtedly appropriate sentences, in general terms, to
impose upon criminals who rape children. The question
remains whether
it is the appropriate sentence in this instance. It would, in my
view, be unjust and disproportionate to impose
a life sentence on Mr
Botha given his clean record and age, and these circumstances are
entered into the record as substantial
and compelling on the facts of
this case.
[27]
[19]
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. It goes without saying that the task is a complex and
onerous one, involving various competing considerations. The
requirement of proportionality applies equally in relation to cases
where sentences have been prescribed by legislation.
[28]
It
cannot be ignored that 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
[29]
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.’
[20]
Given
the circumstances, a lengthy sentence of direct imprisonment is
unquestionably warranted.
[30]
But each situation is different and the nuances of the various
considerations must be weighed. In coming to a decision, I have
accepted, based on the pre-sentencing psychological assessment report
received, that Mr Botha is a normal young man who committed
a
despicable single act, for which he has expressed no remorse.
[31]
He has never previously fallen foul of the law. The offence he
committed is by its nature extremely serious and involved
gender-based
violence. While Mr Botha was a family relative, it
cannot be said that he held a position of trust similar to cases that
have considered
this as an aggravating feature.
[32]
I have also considered that the incident occurred away from the
child’s home. Leaving aside the physical injuries, the
psychological
impact is likely to be long-lasting. Regrettably, no
imposition of punishment on the offender will restore the childhood
that has
been stripped from the victim. I have noted that one of the
consequences of the rape has been a reported family breakdown. It is
to be hoped that the damage to family relations brought about by Mr
Botha’s criminal conduct may, over time, be repaired.
[21]
Balancing the various considerations in the
light of all the circumstances, I consider a sentence of 18 years’
imprisonment
to be appropriate, giving Mr Botha some opportunity to
rehabilitate while punishing him heavily for his conduct and the harm
he
has caused to his victim and to society. 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, Philani Aiden Botha, is
sentenced to 18 years’ imprisonment in respect of the
conviction of rape involving a
seven-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
:
13-16,17 June 2022 and
17-18,21
October 2022 and April 2023
Delivered
:
28 April 2023
Appearances:
Counsel
for the State: Adv
M van Rooyen
Director of Public
Prosecutions
Makhanda
046 602
3000
Attorney
for the Accused: Mr Mgangatho
Mgangatho Attorneys
100
High Street
Makhanda
046 622
3062
[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] ZACC 18
;
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]
The
Director of Public Prosecutions, Grahamstown v T M
2020
JDR 0652 (SCA) para 15.
[17]
S
v September
[2014] ZAECGHC 38 para 8.
[18]
S
v PB
2011
(1) SACR 448
(SCA) para 21;
Matyityi
supra
para 23.
[19]
S
v Genever and Others
[2008] ZAWCHC 7
;
2008 (2) SACR 117
(C) at 122
c-d
.
[20]
Vilakazi
supra
para 15.
[21]
Ss
28(1)(
d
),
12(1)(
c
)
14 and 10 of the Constitution of the Republic of South Africa, 1996.
[22]
S v
Zitha
1999
(2) SACR 404
(WLD) at 418
h-I
,
as quoted in
S
v B
[2022] ZAECGHC 12 para 18.
[23]
S
v Bull
2001
(2) SACR 681
(SCA) para 21.
[24]
S
v Dodo
2001 (1) SACR 301 (E).
[25]
See
S
v Weideman
[2014]
ZAECPEHC 62 para 7.
[26]
Ibid
para 14.
[27]
Cf
TM
op
cit fn para 12.
[28]
S
v Fatyi
2001
(1) SACR 485
(SCA) at 488
f-g
.
[29]
S
v Ro and Another
2010
(2) SACR 248
(SCA) para 15.
[30]
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.
[31]
See
Weideman
op cit para 13.
[32]
M v The
State
[2022] ZASCA 3
para 53.