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[2024] ZAECBHC 5
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Runqu v S (CA&R31/2021) [2024] ZAECBHC 5 (16 April 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION – BHISHO)
CASE
NO.: CA&R31/2021
Matter
heard on: 27 March 2024
Judgment
delivered on: 16 April 2024
In
the matter between:
Z[...]
R[...]
Appellant
and
THE
STATE
Respondent
JUDGMENT
Dunywa
AJ
[1]
The
appellant in this case was convicted by a Regional Magistrate sitting
in the Magistrate’s Court, Zwelitsha, for the Regional
Division
of the Eastern Cape. The appellant is a 59-year-old male, the foster
parent of the victims, convicted of rape and attempted
rape in
respect of two different minors.
[2]
He
was sentenced to life imprisonment for rape and 6 years for attempted
rape on 12 December 2012. Both sentences automatically
run
concurrently in terms of the legislation
[1]
.
[3]
The
two victims and complainants were under the foster care of the
appellant and his wife. The complainants were 15 and 14 years
respectively at the time of the incidents. The court
a quo
accepted that the eldest child was raped by the appellant since
March 2007. The incidents would occur when their mother was away.
She
was raped many times, and the last incident took place in September
2011 and she bled from her private parts.
[4]
The
second victim was sexually assaulted by the appellant since 2009. The
appellant attempted to rape her in March 2011. On this
occasion the
appellant had already undressed her panty and placed her on the bed.
The appellant had climbed on top of her when
she screamed and
struggled. The appellant stopped and dressed up when a person came
and stood next to the window.
[5]
The
appeal is directed against the sentence of life imprisonment only.
The appellant has an automatic right to appeal from the Regional
Court to High Court in terms of the proviso to section 309 (1) (a) of
the Criminal Procedure Act 51 of 1977 (‘the CPA’).
Grounds
of appeal
[6]
The
grounds on which the appellant is appealing the sentence are as
follows:
6.1.
The
effect of life imprisonment is strikingly inappropriate in that it is
not proportionate to the totality of the accepted facts
in
mitigation.
6.2.
The
court erred in finding that the only suitable sentence is that of
life imprisonment.
6.3.
The
court erred in over-emphasising the following factors:
6.3.1.
The
seriousness of the offence.
6.3.2.
The
interest of society.
6.3.3.
The
deterrent effect of the sentence.
[7]
In
mitigation of sentence in the court
a quo
the appellant’s
argument was that he was 59 years old, married and unemployed, with a
previous conviction for attempted murder.
He passed grade 4 at
school and has one child. The two victims were placed by the social
workers under foster care of the
appellant and his wife. He was
assigned parental care of the children. He assumed the position of
trust which he broke.
[8]
In
the court
a quo
it was argued by the respondent on sentence
that the appellant was not remorseful. He cannot be rehabilitated
considering his age.
The defence conceded that there were no
substantial and compelling circumstances for the court to deviate
from the prescribed minimum
sentence before the court
a quo
but that mindset has since been reconsidered before this court.
[9]
On
appeal the appellant argues that his age should be regarded as a
substantial and compelling circumstance for the court to deviate
from
the prescribed minimum sentence of life imprisonment. The respondent
is opposing the appeal in that there are no substantial
and
compelling circumstances and the sentence is fair and just.
[10]
The
issue in this appeal is whether the court
a
quo
exercised its discretion
correctly by finding there are no substantial and compelling
circumstances for the court to deviate from
the prescribed minimum
sentence of life imprisonment as ordained by section 51(1) of the
Criminal Law Amendment Act 105 of 1997
(‘the CLA’), Part
1 of Schedule 2. The appellant was convicted of rape in circumstances
where the victim was a person
under the prescribed age at the time of
the offence, so that a prescribed minimum sentence of life
imprisonment was applicable.
[11]
It
is trite law that sentencing is a matter for the discretion
of the trial court. Various tests have been formulated
as to
when a court of appeal may interfere. These
include, where the reasoning of the trial court is
vitiated
by misdirection or whether the sentence imposed can be said
to be startlingly inappropriate or to induce a sense
of shock or
where there is a striking disparity between the sentence imposed and
the sentence the court of appeal would have imposed.
All these
formulations, however, are aimed at determining the same
question;
viz
whether
there was a proper and reasonable exercise of the discretion bestowed
upon the court imposing sentence.
In the ultimate
analysis this is the true inquiry. Either the discretion was properly
and reasonably exercised or it was not. If
it was,
a court of appeal has no power to
interfere; if it was not, it is free to do so
[2]
.
[12]
In
S
v Monyane and Others
[3]
it was held that;
“
It
has not been suggested that the sentence was vitiated by any
misdirection. The argument advanced on behalf of the appellants
is
that the degree of disparity between the sentence imposed and that
which this court would have imposed is such that interference
is
competent and required. The crucial factor which allows for the
applicability of that approach is the appellate court's being
able to
arrive at a definite view as to what sentence it would have imposed,
(
S v Matlala
2003
(1) SACR 80
(SCA) in para 10). In the
present matter, such a view, I believe, can be formed”.
[13]
The
approach to applying the discretion as to imposition of the
prescribed minimum sentence is guided by various principles emanating
from case law, including:
(1)
The
starting point is that a prescribed sentence must be imposed;
(2)
Only
if the court is satisfied that substantial and compelling
circumstances exist which justify the imposition of a lesser sentence
may it do so;
(3)
Deciding
whether substantial and compelling circumstances exist, each case
must be decided on its own facts and the Court is required
to look at
all factors and consider them cumulatively;
(4)
If
the Court concludes in a particular case that a minimum prescribed
sentence is so disproportionate to the sentence which would
have been
appropriate, it is entitled to impose a lesser sentence
[4]
.
[14]
The
minimum-sentencing legislation has had a far-reaching effect on
sentences imposed in respect of the offences listed in the Act.
Courts have pointed out on many occasions that injustices may occur
if the prescribed minimum sentences are imposed without a proper
consideration of the existence of substantial and compelling
circumstances, including the question whether the prescribed sentence
will be disproportionate to the offence, in the wide sense, in other
words, including all the circumstances of not only the offence
itself, but also the circumstances of the parties involved. The duty
is on the courts to avoid injustice
[5]
.
[15]
Notwithstanding
the above the courts have warned that courts should not for 'flimsy
reasons’ and 'speculative hypotheses favourable
to the
offender’ deviate from the minimum sentence prescribed
[6]
.
Instead, ‘…
courts
are duty-bound to implement the prescribed sentences and that vague
and ill-founded hypotheses that appear to fit the particular
sentencing officer’s personal notion of fairness ought to be
eschewed’
[7]
.
[16]
The
appellant contends that his age of 59 years at the time of sentencing
must be regarded as a substantial and compelling circumstance
in this
case for the court to deviate from the prescribed minimum sentence of
life imprisonment. The Constitutional Court
has referred to a
58-year-old offender as having reached an 'advanced age’
[8]
. But
other factors must also be considered.
[17]
The
appellant’s age is not such that, on its own, this warrants
deviation from the prescribed minimum sentence. Typically,
the
advanced age can play a meaningful role in the consideration as
substantial and compelling circumstances if it is accompanied
by
other factors such as the accused ill-health etc
[9]
.
In
S
v JA
[10]
,
for example, a full bench had the opportunity to deal with the
argument that the sentencing court should, as a mitigating
factor and
for purposes of minimum sentence legislation, have considered that
the accused was a relatively old offender. The appellant
in that
matter had been convicted of raping his 12-year-old daughter on at
least three occasions over a period of some thirty months.
He was
'approximately’ 56 years old at the time of the offences but 59
when sentencing procedures commenced. This age was
described as
'relatively advanced’. The sentencing court concluded that
there were no substantial and compelling circumstances
justifying a
lesser sentence than a sentence of life imprisonment.
[18]
It
must be accepted that at the time when sentence had to be considered,
there were no other mitigating factors, such as ill-health,
physical
infirmity or mental incapacity, to be considered in combination with
the appellant’s age. Furthermore, he had committed
the rapes
over a period of time during which he had sufficient opportunity to
reconsider his actions and 'come to his senses’
[11]
.
The appellant had also acted in a 'calculated’ manner in that
he had created opportunities to be alone with the child so
that he
could rape her
[12]
.
[19]
Considering
the circumstances in their entirety,
[13]
the advanced age of the appellant was not and could not be a factor
that precluded the imposition of the sentence of life imprisonment
as
prescribed. In the case of
S
v JA
,
Olivier J concluded that the 'relatively advanced age’ of the
appellant was 'not a mitigating factor in the context of a
prescribed
sentence of life imprisonment and in considering whether there were
substantial and compelling circumstances justifying
a lesser
sentence
[14]
.
[20]
The
age of the appellant in this case, the rape of a minor child who was
in a domestic relationship with the appellant, over a long
period in
a calculated manner are the common similarities between this case and
S v JA.
[21]
The
accused in
S
v MDT
[15]
had
raped his 14-year-old daughter. The court found that the seriousness
of the offences and the severe psychological impact
on the victim
were factors negating any mitigatory effect that the accused’s
personal circumstances might have had life imprisonment
was imposed.
There were no substantial and compelling circumstances justifying a
deviation from the prescribed sentence.
[22]
In
this case the psychologist has compiled the victim impact statement
which has the following conclusion:
·
The
abuse has damaged the complainant with irreversible negative
long-term consequences.
·
She
experienced Sexual Abuse Accommodation Syndrome (SAAS) while she was
being sexually abused. This Syndrome was formulated to
describe the
process of the child enduring sexual abuse and why children do not
report the abuse. The abuser entraps the minor
through bribes,
through the secrecy of the abuse, and through the helplessness,
powerlessness, and the shame felt by the minor
in the abuse. The
minor has no alternative but to learn to live with the abuse. This
syndrome explains why the abuse is not reported
and why the child may
deny the abuse when confronted.
·
The
sexual abuse of her took place during critical stages of her growth
and development. The psychological process that she was
forced to
endure over these years has had a profound psychologically
constricting and traumatising effect on her psychology. It
has
restricted her functioning and general psychological growth. She has
failed to flourish according to her natural potential.
Instead, she
has the following behavioural problems:
§
Chronic
bed-wetting: this is a typical and robust indicator of the presence
of psychological trauma.
§
Sexual
acting-out behaviour in the form of promiscuity: this is typical of
the impact of chronic sexual abuse.
§
Substance
use and abuse: She uses and abuses alcohol from time to time which is
typical of the impact of sexual abuse in her age
range.
§
Personality
problems: she has permanent emotional damages in that she is rigidly
distanced from her feelings. She has symptoms of
Conduct Disorder in
that she has a blatant disregard for rules. She behaves deceitfully.
She has no empathy for the impact of her
behaviour on other people.
She has a pseudo-maturity which is inappropriate for her age. This is
an indicator of personality problems.
·
At the age of 15 emotional and
personality dynamics are well on their way to being permanently
established. Her current problematic
emotional and personality
dynamics are a direct consequence of the impact of the sexual abuse.
·
Psychological
treatment of her significant behavioural problems has a poor
prognosis. Research and literature indicate that 8 out
of 10 women
who present with psychiatric complaints in adulthood have sexual
abuse in their childhood histories. It is a certainty
that she will
have psychiatric difficulties in adulthood as a direct consequence of
the chronic sexual abuse she suffered at the
hands of the accused in
this case. The complainant in the rape charge is an emotional wreck,
whose life was being destroyed by
the accused trust.
[23]
The
sentiments shared by the psychologist in this case have been regarded
as aggravating circumstances by our courts. In
S
v SQ
[16]
Pickering
J held that the trial court had not misdirected itself in taking the
view that a rape became progressively more serious
the younger the
victims
[17]
. it was also noted
that whilst the injuries suffered by the victim to her private parts
were relatively minor, the psychological
impact of the rape upon her
had clearly been devastating. Medical evidence was to the effect that
‘the rape would leave a
lifelong, indelible imprint on [the
victim’s] psyche, negatively affecting her emotional growth,
personality formation and
psychosexual development’
[18]
.
[24]
The
seriousness of the offences, including the prevalence of rape
perpetrated against women and children which are a scourge in
our
country, warrants a long term of imprisonment. Not only is rape a
serious offence, its seriousness is exacerbated by its alarming
incidence. This country is reported to have some of the highest
incidents of rape in the world
[19]
.
The victims were almost four times younger than the appellant
respective age. This is not to suggest that the appellant’s
sentence was appropriate in order to set an example to others.
[25]
In
S
v DT
[20]
the appellant’s appeal against his life imprisonment for the
rape of his 14-year-old daughter failed despite the fact that
the
daughter had suffered no physical injuries. The SCA held that ‘in
imposing punishment for rape relative to the circumstances
one is
evaluating degrees of heinousness’. The court found that there
were no substantial and compelling circumstances and
the appeal was
dismissed.
[26]
In the
recent case of
Maila v
S
[21]
the
court dealt with the onslaught of rape cases by stating as follows:
“
Considering
Jansen
[22]
,
Malgas
[23]
,
Matyityi
[24]
,
Vilakazi
[25]
and
a plethora of judgments which follow thereafter as well as regional
and international protocols which bind South Africa
to respond
effectively to gender-based violence, courts should not shy away from
imposing the ultimate sentence in appropriate
circumstances, such as
in this case. With the onslaught of rape on children, destroying
their lives forever, it cannot be ‘business
as usual’.
Courts should, through consistent sentencing of offenders who commit
gender-based violence against women and children,
not retreat when
duty calls to impose appropriate sentences, including prescribed
minimum sentences. Reasons such as lack of physical
injury, the
inability of the perpetrator to control his sexual urges, the
complainant (a child) was spared some of the horrors
associated with
oral rape, which amount to the acceptance of the real rape myth, the
accused was drunk and fell asleep after the
rape, the complainant
accepted gifts (in this case, sweets) are an affront to what the
victims of gender-based violence, in particular
rape, endure short
and long term. And perpetuate the abuse of women and children by
courts. When the Legislature has dealt some
of the misogynistic myths
a blow, courts should not be seen to resuscitate them by deviating
from the prescribed sentences based
on personal preferences of what
is substantial and compelling and what is not. This will curb, if not
ultimately eradicate, gender-based
violence against women and
children and promote what Thomas Stoddard calls ‘culture
shifting change”.
[27]
Rape
of a child is an appalling and perverse abuse of male power. It
strikes
a blow at the very core of our claim to be a civilised society.
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
[26]
.
[28]
This
court is of the view that the court
a quo
has not misdirected
itself in finding that there were no substantial and compelling
circumstances for the court to deviate from
the prescribed minimum
sentence of life imprisonment. The appellants age alone is not enough
to be regarded as a substantial and
compelling circumstance in the
present instance. There is no basis to depart from the overall
approach of the trial court. Bearing
in mind the established
approaches to appeals against imposition of a prescribed minimum
sentence, the conclusion is that the appeal
must, for the reasons
described, be dismissed.
[29]
As
result, the following order is issued that;
1.
The
late filing of the leave to appeal is condoned.
2.
The
appeal is dismissed.
S
DUNYWA
ACTING
JUDGE OF THE HIGH COURT
I
agree
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the Appellant
:
Adv. Mthini
:
Legal Aid South Africa
Office 2
nd
Floor Old Mutual Building
KING WILLIAM’S TOWN
(Ref.: Adv. NP)
Counsel
for the Respondent :
Adv. Giyose
:
The Director of Public Prosecution
BHISHO
[1]
Section
39(2) of Act 111 of 1998.
[2]
Kgosimore v
S
[1999]
ZASCA 63
;
1999
(2) SACR 238
(SCA).
[3]
2008
(1) SACR 543
(SCA
)
[23]
[4]
S
v Homareda
1999 (2) SACR 319 (W).
[5]
S
v De Beer
2018(1)
SACR 229 (SCA).
[6]
S
v Malgas
2001
(1) SACR 469
(SCA). See also S v Cwele & another 2013(1)
SACR 478 (SCA) at [29].
[7]
S
v Kwanape
2014
(1) SACR 405
(SCA) at [15].
[8]
S
v Klaas
2018
(1) SACR 643
(CC) at paras [37] and [46].
[9]
S
v Delport & others
2020
(2) SACR 179
FB (the offender was 68 years old) and in
S
v Horn
2020
(2) SACR 280
ECG (where the appellant was 60 years of age).
[10]
2017 (2) SACR 143
(NCK).
[11]
S
v JA
supra
at para
[45].
[12]
Supra
at para [46].
[13]
Supra
at paras
[47]–
[49]).
[14]
Supra
at para [41]
[15]
2014 (2) SACR 630
at
para [16]).
[16]
2013 (1) SACR 70
(ECG)
[17]
S v SQ
supra
at 74g)
[18]
S v SQ
supra at (73f).
[19]
S v
Chuir & another
2012 (2) SACR 391
(GSJ) at [10]:
[20]
2014 (2) SACR 630
(SCA)
at
para [8].
[21]
[2023]
ZASCA 3
delivered on (23 January 2023).
[22]
1999 (2) SACR 368
(C) at 378 G to 379 B.
[23]
2001 (1) SACR 469 (SCA).
[24]
2011(1) SACR 40 (SCA)
[25]
2009 (1) SACR (1) SACR 552 (SCA).
[26]
S v
Jansen
supra.