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[2023] ZAECMKHC 120
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S v Ntakatsane - Sentence (26/2023) [2023] ZAECMKHC 120 (27 October 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
NOT
REPORTABLE
Case
no: 26/2023
In the matter between
THE STATE
and
SONWABILE
NTAKATSANE
ACCUSED
SENTENCE
GOVINDJEE, J
Background
[1]
Mr
Ntakatsane was convicted of three counts of rape in contravention of
section 3, read with various sections of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 2007
.
[1]
[2]
The
Director of Public Prosecutions relied on
s 51(1)
, read with
Part I
of Schedule 2 of the Criminal Law Amendment Act, 1997
[2]
(‘the Minimum Sentences Act’) in seeking life
imprisonment for the rape convictions in respect of counts 1 and 2,
on the basis that both rapes involved victims under the age of 16. As
Mr Ntakatsane had no prior convictions at the time, the minimum
prescribed sentence for the count 3 conviction is imprisonment for a
period not less than 10 years. A court that is satisfied that
substantial and compelling circumstances exist to justify the
imposition of a lesser sentence than that prescribed by the Minimum
Sentences Act must impose a lesser sentence, entering the relevant
circumstances on the record of proceedings.
[3]
[3]
Section
276
of the
Criminal Procedure Act, 1977
[4]
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.
[5]
While the
retributive aspect tends to dominate, courts are enjoined to temper
the punishment with a measure of mercy.
[6]
[4]
This
court has often had occasion to remark that a 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.
[7]
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.
[8]
[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,
[9]
and these factors must be applied, in accordance with
S
v Malgas
,
[10]
to consider whether substantial and compelling circumstances exist to
deviate from any prescribed minimum sentence.
[11]
In
S
v Matyityi
,
[12]
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]
Mr Ntakatsane raped both ‘NN’
and ‘AN’, the complainants in counts 1 and 2, aged 14 and
15 at the time respectively,
at his dwelling on 25 August 2018. This
after they had been threatened with a knife and forced to accompany
him to a bridge, where
he inserted his fingers into their vaginas,
and then to his dwelling.
[7]
Mr Ntakatsane pleaded not guilty to those
counts, and guilty to a third count of rape, involving ‘ND’,
an adult woman,
for which he was convicted. On the accepted facts
contained in his statement in terms of
s 112(2)
of the
Criminal
Procedure Act, 1977
, Mr Ntakatsane had been drinking with his brother
and the complainant at a tavern and at his brother’s dwelling
on 27 October
2018. The complainant and the brother slept on the bed
while he slept on a chair in the room. Mr Ntakatsane awoke and
observed
that the complainant’s dress was pulled up and he
observed that she was not wearing a panty. Overcome with sexual
desire,
he proceeded to rape her, while his brother continued
sleeping.
[8]
As
part of consideration of an appropriate sentence, it is also
important to consider the effect of the crimes on the victim,
particularly
in cases of gender-based violence.
[13]
In the case of the complainant in count 1, a psychological assessment
report, dated 7 August 2023 and accepted into evidence, confirms
that
the complainant endured ‘significant emotional effects as well
as psychological distress’ from her rape, requiring
psychiatric
and psychological intervention once her mental state has stabilised.
[9]
The complainant in count 2, who is now 20
years of age, underwent psychological assessment on 5 September 2023.
The clinical psychologist
who examined her confirms that she ‘has
endured significant emotional duress’ from her rape, now
presenting with a
pattern of symptoms that are consistent with the
emotional effects of trauma. That report concludes that she may
benefit from a
psychological intervention in order to assist her to
process the impact of her rape, and to learn adaptive ways of coping.
Mr Ntakatsane’s
circumstances and interests
[10]
Mr Ntakatsane chose not to testify in
mitigation of sentence. His counsel explained that he was 23 years
old at the time of the
commission of the offences. His highest level
of education was grade 9. He had two minor children, aged 8 and 9,
and his girlfriend
was pregnant. Given that it appears as if he does
not have a good relationship with the mother of the children, it may
be accepted
that he is not a feature of their lives. Mr Ntakatsane
survived on contract construction work and he had no permanent
employment
at the time of the offences. The main points advanced in
his favour was that he had no previous convictions at the time of the
commission of the offences, and that he had pleaded guilty in respect
of count 3.
The interests of
society
[11]
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.
[14]
As the court held in
S
v Ncheche
:
[15]
‘
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.’
[12]
In
S
v Vilakazi
,
[16]
the Supreme Court of Appeal 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 is by
its nature one
of the worst kinds of offences imaginable.
[13]
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]
Mr Ntakatsane’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]
Analysis
[14]
Mr
Sojada
emphasised that a sentence of life imprisonment was the ultimate
punishment, and referred to two instances from some 20 years ago
where life imprisonment had not been imposed despite convictions for
rape. For present purposes it may be noted that those cases
are
distinguishable for various reasons. To cite one example, in
S
v Abrahams
[19]
the victim had been the perpetrator’s daughter, and one of the
main reasons for a finding of substantial and compelling
circumstances was the downward spiral that the perpetrator had
experienced following his son’s suicide. The question remains
whether there are substantial and compelling reasons to justify a
lesser sentence than the minimum sentence prescribed.
[15]
This
court is duty bound to consider Mr Ntakatsane’s personal
circumstances. 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.
[20]
The impact of the offences on the lives of the complainants in counts
1 and 2 is a further consideration. They were young and vulnerable
and were subjected to threats with a knife, as well as a prolonged
ordeal as they were forced to accompany Mr Ntakatsane first
to the
bridge and then to his home, where they were raped before managing to
escape while he slept. All the circumstances of the
case must be
considered to determine whether the imposition of a minimum sentence
is proportionate to the particular offence.
[21]
[16]
The factors relied upon by Mr Ntakatsane as
substantial and compelling have been considered in their totality.
The only real factor
in his favour is that he is considered a first
offender for purposes of sentencing. The remainder of his personal
circumstances
carry less weight when given proper consideration. It
is not unusual that he was unemployed and a person with a low level
of education,
or that he had consumed liquor prior to committing the
offences. He has shown no remorse whatsoever, but did plead guilty to
the
offence in count 3, thereby shortening proceedings and avoiding
the need for the complainant to testify. AN was required to testify
and NN was unable to do so.
[17]
What stands out is that the incident
involving counts 1 and 2 was brazen, involving the rape of one child
in the presence of another.
This was followed a mere eight weeks
later with a further instance of rape in arguably even more shameless
circumstances, with
complete disregard of the possibility of Mr
Ntakatsane’s brother waking up while he raped the complainant
in count 3.
[18]
It
is important to consider the various circumstances cumulatively, and
with specific focus on Mr Ntakatsane’s clean record.
I have
also considered the time he may have spent in custody, although not
raised specifically as a feature, and his general socio-economic
background. The legislature has directed that, when imposing a
sentence in respect of rape, an apparent lack of physical injury
to a
complainant cannot constitute substantial and compelling
circumstances justifying the imposition of a lesser sentence.
[22]
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 requires a meticulous weighing of all relevant factors before a
decision to impose it can be justified.
[24]
[19]
The
aggravating features of the matter are undeniably severe. This
includes the very fact that two children were raped, having
been
forced to accompany Mr Ntakatsane, and eventually to submit to him,
under threat of the knife he wielded. 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.
[25]
The reasons for the high premium placed on the rights of children is
apparent from the significant adverse effects experienced
by both
complainants who were children at the time they were raped. This,
together with the brazenness of the commission of the
offences,
including that in count 3, overtakes the various mitigating
considerations, including Mr Ntakatsane’s lack of previous
convictions.
[26]
On its own
this cannot constitute a substantial and compelling circumstance in
context.
[27]
[20]
In
the final analysis, I am obliged to impose the minimum sentence
prescribed by the legislature unless there are truly convincing
reasons for departure.
[28]
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. Courts
will not shirk this responsibility, however agonising it
may be to do
so, and even though the result will have a tremendous impact on the
rest of Mr Ntakatsane’s life.
[29]
In all the circumstances, I must conclude that there is an absence of
substantial and compelling reasons or weighty justification
for a
departure from the prescribed minimum in respect of any of the
counts. The ultimate result is that sentences of life imprisonment
for the offences in counts 1 and 2 are considered to be proportionate
and justified, and, as Ms
Van
Rooyen
argued, the only suitable punishment for what has transpired. I am
constrained to agree with that argument in the circumstances.
Despite
the plea of guilty adding to the factors to be considered in respect
of count 3, there is again no justifiable basis for
deviating from
the prescribed minimum sentence. As a result, a sentence of 10 years
imprisonment is imposed in respect of count
3, to run concurrently
with the sentences of life imprisonment. Given the nature of the
offences, various other consequences emanating
from legislation
follow. These have been included as part of the order to follow.
Order
[21]
The following sentence is imposed:
1.
The accused, Sonwabile Ntakatsane, is
sentenced to life imprisonment in respect of the convictions of rape
in respect of both counts
1 (rape of a 14-year-old girl) and 2 (rape
of a 15-year-old girl).
2.
The accused is sentenced to 10 (ten) years
imprisonment in respect of count 3 (rape of an adult female), to run
concurrently with
the sentences of life imprisonment imposed in
respect of counts 1 and 2.
3.
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.
4.
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.
5.
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:
23
October 2023
Delivered:
27
October 2023
Appearances:
Counsel
for the State:
Adv
M. van Rooyen
Director
of Public Prosecutions
Makhanda
046 602
3000
Attorney
for Accused:
Mr V.
Sojada
Legal
Aid of South Africa
Makhanda
046 622
9350
[1]
Act
32 of 2007 (‘the Act’).
[2]
Act
105 of 1997 (‘the Minimum Sentences Act’).
[3]
S
51(3)(
a
)
of the Minimum Sentences Act.
[4]
Act
51 of 1977 (‘the CPA’).
[5]
S
v Rabie
1975 (4) SA 855 (A).
[6]
Ibid
at 862G-H.
[7]
See
S
v Khulu
1975 (2) SA 518 (N) 521-522.
[8]
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 (2) SACR 539 (CC).
[9]
S
v Zinn
[1969] 3 All SA 57
(A) at 540G-H.
[10]
S
v Malgas
2001
(1) SACR 469
(SCA).
[11]
See
Radebe
v The State
[2019] ZAGPPHC 406 at para 12.
[12]
S
v Matyityi
2011
(1) SACR 40
(SCA) at para 23. Also see
Malgas
above n 10, 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.
[13]
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.
[14]
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.’
[15]
S
v Ncheche
[2005] ZAGPHC 21
;
2005
(2) SACR 386
(WLD) para 35.
[16]
S
v Vilakazi
2009
(1) SACR 552
(SCA) at 555h.
[17]
S
v September
[2014] ZAECGHC 38 para 8.
[18]
S
v PB
2011
(1) SACR 448
(SCA) para 21;
S
v Matyityi
above
n 12 para 23.
[19]
S v
Abrahams
2002 (2) SACR 116 (SCA).
[20]
S
v Genever and Others
[2008] ZAWCHC 7
;
2008 (2) SACR 117
(C) at 122
c-d
.
[21]
S v
Vilakazi
above
n 16 para 15.
[22]
S
51(3)
(a
A
)
(ii)
and (iv) of the Minimum Sentences Act..
[23]
S
v Bull
2001
(2) SACR 681
(SCA) para 21.
[24]
S
v Dodo
2001 (1) SACR 301
(E).
[25]
Ss
28(1)(
d
),
12(1)(
c
)
14 and 10 of the Constitution of the Republic of South Africa, 1996.
[26]
See
S
v Vilakazi
above
n 16 para 58. Also see S
v
Zitha and Others
1999 (2) SACR 404
(WLD): the absence of previous convictions is not
‘substantial and compelling’ for purposes of s 51(3)(
a
).
[27]
Mthimkhulu
v S
[2021]
ZAGPPHC 573 para 49.
[28]
S v
Matyityi
above
n 12 para 23.
[29]
S v
Zitha
above
n 26 at 418
h-i
.