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[2010] ZASCA 127
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S v Matyityi (695/09) [2010] ZASCA 127; 2011 (1) SACR 40 (SCA) ; [2010] 2 All SA 424 (SCA) (30 September 2010)

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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 695/09
THE
STATE
.
................................................................................
Appellant
and
VUYISILE
MATYITYI
..................................................................
Respondent
____________________________________________________________
Neutral
citation:
State v Matyityi
(695/09)
[2010] ZASCA 127
(30 September 2010)
BENCH:
NAVSA and PONNAN JJA and K PILLAY AJA
HEARD:
14 SEPTEMBER 2010
DELIVERED:
30 SEPTEMBER 2010
SUMMARY:
Criminal Law Amendment Act 51 of 1997
–
s 51
- sentence – murder and rape - minimum sentence –
life imprisonment - remorse and relative youthfulness found by high

court to constitute substantial and compelling circumstances –
on appeal – held – no such circumstances –

sentenced altered to life imprisonment.
____________________________________________________________
______________________________________________________________________
ORDER
______________________________________________________________________
On appeal from
:
Eastern Cape High Court
(East London) (Matiwana AJ sitting as court of first instance).
1 The appeal by the State against sentence succeeds.
2 The sentence imposed by the court below in respect of the murder
and rape is set aside and in its stead is substituted the following:
‘
a In respect of count 2, the murder, the
accused is sentenced to imprisonment for life.
b In respect of count 3, the rape, the accused is sentenced to
imprisonment for life.’
______________________________________________________________________
JUDGMENT
______________________________________________________________________
PONNAN JA ( JA and JA concurring):
[1] At approximately 6pm on 16 April 2008, 45-year old Anthony Cannon
was seated alone in his motor vehicle enjoying a beer at
Leaches Bay,
East London when he glimpsed, out of the corner of his eye, someone
in close proximity to his vehicle. Before he could
react his car
window was smashed and he was struck in the face. He was robbed by
three assailants of his Nokia cell phone, cash
to the tune of R500
and a bank card. A hood was placed over his head and his Honda
Ballade vehicle, with him in the back seat,
was driven to a secluded
spot, where his hands were bound and he was secured to a tree.
[2] To buy himself some time, he deliberately furnished his attackers
with a false automated teller machine (ATM) pin code. They
set off in
his Honda Ballade in search of an ATM. In their absence he managed to
remove his hood by working his head against the
tree but was
otherwise unable to free himself. His assailants returned annoyed at
not having been able to access his bank account
with the pin number
that had been furnished. He was told that they had heard him scream
but that he was wasting his time because
there was ‘not a soul
in sight who could assist him’. Realising that his ploy had
failed he divulged the correct pin
code. Once again they left in his
Honda Ballade. After they had left he eventually managed, not without
a struggle, to free himself
from the tree and with his hands still
tied behind his back made good his escape. Being familiar with the
area he made his way
on foot to the nearby home of his uncle where he
sought assistance.
[3] Five days later, on 21 April 2008, Mr Cannon was informed that
his Honda Ballade had been recovered by the police. Upon inspecting

it he noticed, aside from other damage that it is not necessary to
detail, that a JVC CD player had been removed. Later that very
day
the trio struck once again. This time the victims were Ms KD and her
boyfriend Mr MF. Ms KD a 31-year old divorcee and mother
of four
children had fetched her boyfriend Mr MF from his place of employment
and at approximately 5 pm they made their way in
her BMW motor
vehicle to the tidal pool in the vicinity of Leaches Beach called
Water World in East London. She was initially apprehensive
about
their safety but being reassured by Mr MF she parked the car in a
secluded spot.
[4] After they had engaged in some intimacy Mr MF alighted from the
motor vehicle. When Ms KD, who was seated in the driver's seat,

became concerned that he was taking too long to return to the
vehicle, she glanced over her shoulder and observed what she
described
as two men wrestling with Mr MF. She reached for her car
keys that were lying in the console of the motor vehicle but before
she
could insert the key into the ignition, a third person, whom she
described as Rasta, smashed the driver's window and the key was

snatched out of her hand. When she looked back once again she saw Mr
MF running followed closely by two men. She observed Mr MF
fall but
being pre-occupied with Rasta could not tell what caused him to do
so. She was then ushered by Rasta onto the back seat
of the motor
vehicle and whilst doing so she saw Mr MF, with blood trickling down
his face, fall to his knees and beg his attackers
not to harm her. On
the back seat Rasta began to fondle her breasts and touch her
inappropriately. When she tried to push him away,
he told her to
co-operate or he would kill her. Mr MF, who by then was bleeding
quite profusely, had been forced into the boot
of the motor vehicle.
The rear exterior of the motor vehicle was then washed to remove any
trace of his blood and with Ms KD wedged
between two of the three in
the back seat, the vehicle was driven by the third for what seemed
like 15 minutes to a more secluded
area.
[5] Once the vehicle had come to a halt the driver removed a set of
JVC speakers from the rear of the vehicle and placed it in
his back
pack. Thereafter each took Ms KD into the surrounding bushes where
she was raped. After being raped in turn by each the
boot of the
motor vehicle was opened and after a long struggle Mr MF, who was by
that stage unconscious and soaked in blood from
head to feet, was
removed and placed on the back seat. The vehicle was then driven back
in the direction from whence they had come.
After ascertaining if she
was familiar with their whereabouts and receiving an affirmative
response, the vehicle was stopped and
the three men alighted. Ms KD
then drove to the Frere Hospital but by the time that she got there
it was already much too late
for Mr MF who was pronounced dead on
arrival.
[6] On 23 April 2008 acting on information received, the
investigating officer, Captain Alexander, visited an informal
settlement
in Fort Grey, East London, where the respondent, Vuyisile
Matyityi, allegedly lived with his girlfriend. A search of the
premises
in his absence yielded the JVC speakers that had been
removed from Ms KD's BMW and the JVC CD player that was missing from
Mr Canon's
Honda Ballade when it was recovered. During the early
hours of the next morning the other two alleged perpetrators were
arrested.
A visit to the home of the respondent then followed. Upon
gaining forcible entry to his home the police discovered that the
respondent
had fled. That evening, however, the respondent handed
himself over to the police.
[7] All three were indicted in the Eastern Cape High Court (East
London) on one charge each of murder and rape and two charges
of
robbery. At the commencement of the trial the respondent, unlike his
co-accused, expressed a willingness to tender a plea of
guilty to all
of the charges and after the trials were separated he was convicted
as charged by Matiwana AJ on his guilty plea.
He was sentenced to 25
years' imprisonment on each of the murder and rape charges. And in
respect of each of the robbery counts
to 13 years' imprisonment. The
sentences were ordered to run concurrently. He was thus sentenced to
an effective term of 25 years'
imprisonment.
[8] Aggrieved by the sentences imposed in respect of the murder and
rape that were regarded as being too lenient, the appellant,
the
Director of Public Prosecutions (Eastern Cape), appealed in terms of
s 316B of the Criminal Procedure Act with the leave of
the court
below. The sentence imposed in respect of the robbery is not before
us. But it matters not, for, were the appeal to succeed
the sentence
imposed in respect of it will naturally be subsumed by that imposed
in respect of the murder and rape.
[9] The nature of the offences brought the matter within the purview
of
s 51
of the
Criminal Law Amendment Act 105 of 1997
which
prescribes minimum sentences, namely life imprisonment for each of
the murder and rape convictions unless substantial and
compelling
circumstances were found to be present. Matiwana AJ identified the
issue thus:
'The question, therefore, that I am faced with, is
whether there are any compelling circumstances in this case, which,
if present,
would justify a departure from the prescribed sentences
laid down by the legislature.'
Accepting that by the epithet 'compelling' he meant 'substantial and
compelling' that is a correct identification of the issue.
He
answered that question as follows:
'As I have stated, in my mind, the
court should not impose the prescribed minimum sentence in [this]
case, in view of the accused's
age, and in the light of the remorse
displayed by him during the trial here.'
On a thorough reading of the record I could find no other factors
that could be relied on as constituting substantial and compelling

circumstances within the meaning of that expression. Nor was counsel
able to suggest any in argument before us.
[10] Aside from whether the trial judge was
justified in his conclusion that a departure from the prescribed
minimum sentences was
warranted in this case, there appear to be at
least two other respects in which he appears to have misdirected
himself. First,
although the respondent had a previous conviction, it
was not taken into consideration against him on the basis that it ‘is

not much related to the offences of which he has been found guilty’.
Why that was thought so is not entirely clear to me.
The SAP 69 shows
him to have been convicted during 2005 of being in possession of an
unlicensed firearm in contravention of the
Arms and Ammunitions Act.
1
He was sentenced to a fine of R1500 or 12 months’
imprisonment. He evidently appears to have spurned the mercy shown
him by
the court then. Second, the trial judge appears to have
accepted that Ms KD sustained no injuries. To the extent that he may
have
been referring to permanent physical injuries one can hardly
quarrel with that conclusion. But, with respect, to restrict the
enquiry
to permanent physical injuries, as the learned judge appears
to have done, is to fundamentally misconstrue the act of rape itself

and its profound psychological, emotional and symbolic significance
for the victim. As it was put by this court in
De
Beer v S
:
2
‘
Rape is a topic that abounds
with myths and misconceptions.
3
It is a serious social problem
about which, fortunately, we are at last becoming concerned. The
increasing attention given to it
has raised our national
consciousness about what is always and foremost an aggressive act. It
is a violation that is invasive and
dehumanising. The consequences
for the rape victim are severe and permanent. For many rape victims
the process of investigation
and prosecution is almost as traumatic
as the rape itself.’
[11] I turn now to the central issue in the
appeal, namely whether, given the facts of this case, the trial court
was correct in
its conclusion that substantial and compelling
circumstances as contemplated by that expression were indeed present.
S v
Malgas
4
is where one must start. It, according to Navsa
JA, is ‘not only a good starting point but the principles
stated therein are
enduring and uncomplicated' (
DPP
KZN v Ngcobo
).
5
Malgas
, which has
since been followed in a long line of cases, set out how the minimum
sentencing regime should be approached and in particular
how the
enquiry into substantial and compelling circumstances is to be
conducted by a court. To paraphrase from
Malgas
:
6
The fact that Parliament had enacted the minimum
sentencing legislation was an indication that it was no longer
'business as usual'.
A court no longer had a clean slate to inscribe
whatever sentence it thought fit for the specified crimes. It had to
approach the
question of sentencing conscious of the fact that the
minimum sentence had been ordained as the sentence which ordinarily
should
be imposed unless substantial and compelling circumstances
were found to be present.
[12] The respondent elected not to testify. Nor was any evidence led
on his behalf in mitigation. From the bar it was placed on
record
that he was 27 years of age at the time of the commission of the
offences. He was married with three children, the oldest
of whom was
10 years and the youngest one month. His highest level of education
was Std 7 (Grade 9). As I have already indicated
the only
circumstances entered on the record of the proceedings as substantial
and compelling by the trial judge were the remorse
displayed by the
respondent and his age.
[13] Remorse was said to be manifested in him
pleading guilty and apologising, through his counsel (who did so on
his behalf from
the bar) to both Ms KD and Mr Cannon. It has been
held, quite correctly, that a plea of guilty in the face of an open
and shut
case against an accused person is a neutral factor.
7
The evidence linking the respondent to the crimes
was overwhelming. In addition to the stolen items found at the home
of his girlfriend,
there was DNA evidence linking him to the crime
scene, pointings-out made by him and his positive identification at
an identification
parade. There is, moreover, a chasm between regret
and remorse.
8
Many accused persons might well regret their
conduct but that does not without more translate to genuine remorse.
9
Remorse is a gnawing pain of conscience for the
plight of another. Thus genuine contrition can only come from an
appreciation and
acknowledgement of the extent of one’s error.
10
Whether the offender is sincerely remorseful and
not simply feeling sorry for himself or herself at having been caught
is a factual
question. It is to the surrounding actions of the
accused rather than what he says in court that one should rather
look.
11
In order for the remorse to be a valid
consideration, the penitence must be sincere and the accused must
take the court fully into
his or her confidence.
12
Until and unless that happens the genuineness of
the contrition alleged to exist cannot be determined. After all,
before a court
can find that an accused person is genuinely
remorseful, it needs to have a proper appreciation of inter alia:
what motivated the
accused to commit the deed; what has since
provoked his or her change of heart; and whether he or she does
indeed have a true appreciation
of the consequences of those actions.
There is no indication that any of this, all of which was peculiarly
within the respondent's
knowledge, was explored in this case.
[14] Turning to the respondent’s age: What
exactly about the respondent's age tipped the scales in his favour
was not elaborated
upon by the learned judge. During the course of
the judgment reference was made to the respondent's ‘relative
youthfulness’
without any attempt at defining what exactly that
meant in respect of this particular individual. It is trite that a
teenager is
prima facie to be regarded as immature
13
and that the youthfulness of an offender will
invariably be a mitigating factor,
14
unless it appears that the viciousness of his or
her deeds rule out immaturity.
15
Although the exact extent of the mitigation will
depend on all of the circumstances of the case, in general a court
will not punish
an immature young person as severely as it would an
adult.
16
It is well established that the younger the
offender the clearer the evidence needs to be about his or her
background, education,
level of intelligence and mental capacity in
order to enable a court to determine the level of maturity and
therefore moral blameworthiness.
17
The question, in the final analysis, is whether
the offender’s immaturity, lack of experience, indiscretion and
susceptibility
to being influenced by others reduces his
blameworthiness.
18
Thus whilst someone under the age of 18 years is
to be regarded as naturally immature
19
the same does not hold true for an adult. In my
view a person of 20 years or more must show by acceptable evidence
that he was immature
to such an extent that his immaturity can
operate as a mitigating factor.
20
At the age of 27 the respondent could hardly be
described as a callow youth. At best for him his chronological age
was a neutral
factor. Nothing in it served, without more, to reduce
his moral blameworthiness. He chose not to go into the box and we
have been
told nothing about his level of immaturity or any other
influence that may have been brought to bear on him to have caused
him
to act in the manner in which he did.
[15]
In
Dlamini
21
Nicholas AJA made the following observation:
‘whereas criminal trials in both England and South Africa are
conducted up to
the stage of conviction with scrupulous,
time-consuming care, the procedure at the sentencing stage is almost
perfunctory.' That
by and large continues to be the position. This
matter was conducted somewhat differently. Notwithstanding the
respondent's guilty
plea, evidence ostensibly in proof of aggravation
was led by the state. Much of it though went to guilt not sentence.
We thus know
little, if anything, about Mr MF. Was he a breadwinner?
Were others dependent on him? If so, how many? What were his
scholastic
or other achievements? What type of work did he do? What
was the effect of his death on his family, employer and community? I
hazard
that the value of the sum of his life must have been far
greater than the silent crime statistic that he has come to represent
in death. It surely would therefore be safe to infer that in some way
or the other his death must have had devastating consequences
for
others. Although she testified, we know as little about the harm done
to Ms KD by the respondent's deeds. All of those questions

regrettably remain unanswered in respect of her as well.
[16] An enlightened and just penal policy requires
consideration of a broad range of sentencing options from which an
appropriate
option can be selected that best fits the unique
circumstances of the case before court.
22
To that should be added, it also needs to be
victim-centred. Internationally the concerns of victims have been
recognised and sought
to be addressed through a number of
declarations the most important of which is the UN Declaration of the
Basic Principles of Justice
for Victims of Crime and Abuse of Power.
23
The Declaration is based on the philosophy that
adequate recognition should be given to victims and that they should
be treated
with respect in the criminal justice system. In South
Africa victim empowerment is based on restorative justice.
Restorative justice
seeks to emphasise that a crime is more than the
breaking of the law or offending against the state – it is an
injury or
wrong done to another person.
24
The Service Charter for Victims of Crime in South
Africa
25
seeks to accommodate victims more effectively in
the criminal justice system. As in any true participatory democracy
its underlying
philosophy is to give meaningful content to the rights
of all citizens, particularly victims of sexual abuse, by reaffirming
one
of our founding democratic values namely human dignity.
26
It enables us as well to vindicate our collective
sense of humanity and humanness. The Charter seeks to give to victims
the right
to participate in and proffer information during the
sentencing phase. The victim is thus afforded a more prominent role
in the
sentencing process by providing the court with a description
of the physical and psychological harm suffered, as also the social

and economic effect that the crime had and in future is likely to
have. By giving the victim a voice the court will have an opportunity

to truly recognise the wrong done to the individual victim. (See
generally Karen Müller and Annette van der Merwe 'Recognising

the Victim in the Sentencing Phase: The Use of Victim Impact
Statements in Court'.)
27
[17] By accommodating the victim during the
sentencing process the court will be better informed before
sentencing about the after
effects of the crime. The court will thus
have at its disposal information pertaining to both the accused and
victim and in that
way hopefully a more balanced approach to
sentencing can be achieved. Absent evidence from the victim the court
will only have
half of the information necessary to properly exercise
its sentencing discretion. It is thus important that information
pertaining
not just to the objective gravity of the offence but also
the impact of the crime on the victim be placed before the court.
That
in turn will contribute to the achievement of the right sense of
balance and in the ultimate analysis will enhance proportionality

rather than harshness. Furthermore, courts generally do not have the
necessary experience to generalise or draw conclusions about
the
effects and consequences of a rape for a rape victim.
28
As Müller and Van der Merwe put it:
'It is extremely difficult for any
individual, even a highly trained person such as a magistrate or a
judge, to comprehend fully
the range of emotions and suffering a
particular victim of sexual violence may have experienced. Each
individual brings with himself
or herself a different background, a
different support system and, therefore, a different manner of coping
with the trauma flowing
from the abuse.'
29
[18] The trial judge appeared not to fully
appreciate that the starting point in respect of each of the murder
and rape convictions
was not a clean slate upon which he was free to
inscribe whatever sentence he thought appropriate, but imprisonment
for life. As
Malgas
emphasised:
'[A] court was not 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.'
30
. . .
'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.'
31
[19] I cannot discern why the trial judge displayed such a marked
reticence to impose the prescribed minimum sentences. The two

incidents were five days apart. Sufficient time one would have
thought for pause and reflection. Each was breathtakingly brazen
and
executed with a callous brutality. One shudders to think of what
would have become of Mr Canon had he not succeeded in making
good his
escape. In each instance the material spoils were small. Hardly worth
the substantial loss and destruction left in its
wake. On both days
the respondent played a prominent role in the commission of the
offences. Mr Cannon described him as the ringleader.
On each occasion
he drove the motor vehicle, the subject of the robbery. According to
Mr Cannon when the respondent and his accomplices
returned after
their first failed venture to the ATM, he was the most aggressive.
According to Ms KD it was he who: was armed with
a knife during the
attack on the deceased; shouted at the deceased to get into the boot
of the BMW; directed her to tell the deceased
to enter the boot when
he refused to do so; handed the deceased’s wallet, which must
have been removed from the deceased’s
person earlier, to Rasta;
and removed the speakers from Ms KD's BMW. And it was at the home of
his girlfriend that the more valuable
stolen items were found.
Moreover, whilst in Ms KD’s company he insisted on kissing her,
professing his love for her and
treating her as one would a
love-interest. When driving he turned off the tarred road when he
noticed a car behind them. It was
he who supplied Ms KD with toilet
paper to clean herself after having had non-consensual sexual
intercourse with her. Before leaving
her motor vehicle he first
cleaned the steering wheel and door handles to remove evidence of his
fingerprints. That reflected an
awareness, presence of mind and
sophistication that his co-perpetrators did not manifest.
[20] The offences in question were heinous.
According to Dr Zondi, who performed the post mortem examination, the
deceased had sustained
four incised wounds. The fatal stab had been
inflicted with considerable force from behind causing the deceased's
left lung to
collapse. He would have been in considerable pain for
all of the 30 to 40 minutes that it would have taken for him to die
after
its infliction. He therefore, as Dr Zondi explained, would have
suffered a slow and agonising death. Given the fact that he was

bleeding profusely, it could hardly have escaped unnoticed that he
had sustained life-threatening injuries. And yet he was forced
into
the boot of the car. By the time the boot was re-opened his body was
limp and his clothes were blood-soaked. In the intervening
period his
female companion was frog-marched on three different occasions into
the adjoining bushes to be raped. None of her rapists
used condoms.
Each ejaculated. Although not properly explored during her evidence
it is obvious that her ordeal must have been
a horrific one. She had
to submit to the brutal and naked invasion of her person in the
knowledge that her boyfriend may have been
mortally wounded. What we
do know is that the trauma she suffered was so severe that by the
time of the trial, approximately one
year after the incident, she was
still receiving counselling. According to her, the experience had
made her deeply afraid and had
even impacted negatively on her
relationship with her family. As this court has previously sought to
make clear, women in this
country ‘have a legitimate claim to
walk peacefully on the streets, to enjoy their shopping and their
entertainment, to go
and come from work, and to enjoy the peace and
tranquillity of their homes without the fear, the apprehension and
the insecurity
which constantly diminishes the quality and enjoyment
of their lives' (
S v Chapman
).
32
[21] What we have not been told by the appellant
is why it was necessary for the deceased to have been killed or Ms KD
raped. We
know from Ms KD’s evidence that the deceased was
attempting to flee. And we know from Dr Zondi’s evidence that
the
fatal blow was inflicted from behind. For the rest there are
significant gaps. The one person who could have filled those gaps was

the respondent. He chose not to. That was his right.
33
But it is not without its consequence, for, as the
Constitutional Court has endeavoured to stress (
S
v Jaipal)
:
34
'The right of an accused to a fair trial requires
fairness to the accused, as well as fairness to the public as
represented by the
State. It has to instil confidence in the criminal
justice system with the public, including those close to the accused,
as well
as those distressed by the audacity and horror of crime.'
His silence thus leads irresistibly to the conclusion that there was
nothing to be said in his favour. But even if one were to
be
charitable and infer in his favour that the robbery had been
motivated by stark economic deprivation, that hardly explains the

violence meted out to both Mr MF and Ms KD, which was unnecessary to
achieve that end and therefore plainly gratuitous. Nothing
in the
manner in which the offences were committed could thus have served to
lessen the moral blameworthiness of the respondent
and his cohorts.
It was therefore to the personal circumstances of the respondent that
the judge looked. In it he appears to have
found two reasons for
departing from the sentences prescribed by the legislature. Neither,
as I have sought to show, are truly
convincing. Each lacked any
factual foundation and was thus more illusory than real. Moreover, to
have viewed those two factors
(whether individually or cumulatively)
in isolation as the judge did, was to ignore the objective gravity of
those offences, its
prevalence in this country and the legislature’s
quest for severe and standardised responses by the courts. It is thus
hard
to resist the conclusion that the judge was motivated by maudlin
sympathy for the respondent. Being so motivated, it would seem
that
he overemphasised the interests of the respondent at the expense of
the public interest in a just and proportionally balanced
sentence.
[22] Despite our particularly strong commitment to
the promotion of the rights of victims of sexual crimes, particularly
rape, we
still do not have a clear strategy for dealing inclusively
with it either at a primary preventative or secondary protective
level.
35
The result is that as alarmed as we may be by the
reported incidence of rape the true extent of the scourge appears far
more widespread.
In
De Beer
it
was put thus:
‘
It is widely accepted that the
statistics of reported rape reflect only a small percentage of actual
offences. NICRO estimates that
only 1 out of every 20 rapes is
reported, whilst the South African Police Service puts the figure at
1 out of 35. For the first
six months of 1998, 23 374 rapes were
reported nationally. As an annual indicator of rape employing the
lower 1 out of 20 estimate,
the figure was a staggering 934 960.
Research at the Sexual Offences Court in the Western Cape, for the
same period, reveals that
of the reported rape cases: 56.62% were
referred to court; 18.67% were prosecuted; and, only 10.84% received
guilty verdicts.'
36
Those statistics although somewhat dated offer a more accurate
indicator of the extent of the incidence of rape in this country.
The
reason, in part, is the introduction of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007
. The sexual
assaults covered by this new Act extend beyond phenomena previously
covered by the definition of rape to include male
rape and sexual
penetration of a whole range of orifices. It also covers human
trafficking, pornography and prostitution (including
charges against
clients of sex workers).
[23] Despite certain limited successes there has been no real let-up
in the crime pandemic that engulfs our country. The situation

continues to be alarming. It follows that, to borrow from
Malgas,
it still is ‘no longer business as usual’. And yet one
notices all too frequently a willingness on the part of sentencing

courts to deviate from the minimum sentences prescribed by the
legislature for the flimsiest of reasons – reasons, as here,

that do not survive scrutiny. As
Malgas
makes plain courts
have a duty, despite any personal doubts about the efficacy of the
policy or personal aversion to it, to implement
those sentences. Our
courts derive their power from the Constitution and like other arms
of state owe their fealty to it. Our constitutional
order can hardly
survive if courts fail to properly patrol the boundaries of their own
power by showing due deference to the legitimate
domains of power of
the other arms of state. Here parliament has spoken. It 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 such as
‘relative youthfulness’
or other equally vague 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, is
foundational to the rule
of law which lies at the heart of our
constitutional order.
[24] In this case the respondent and his cohorts conducted themselves
with a flagrant disregard for the sanctity of human life
or
individual physical integrity. All three of them acted in a manner
that is unacceptable in any civilised society, particularly
one that
ought to be committed to the protection of the rights of all persons
including women. Had more relevant evidence been
placed before the
court as to: the prevalence of these types of offences; the public
desire for protection from the kind of wanton
criminality encountered
here; the public interest in suitably fair, just and balanced
punishment; and the harm suffered by Ms KD
and those who survive Mr
MF, the traditional triad of the crime, the criminal and the
interests of society would have been better
served. Instead the trial
court emphasised the personal interests of the individual respondent
above all else. In doing so it failed
to strike the appropriate
balance. It thus imposed a sentence that was disproportionate to the
crime and the interests of society.
In my view there were no
substantial and compelling circumstances present that warranted a
departure from the prescribed statutory
norm. It follows that the
contrary conclusion reached by the high court cannot stand. Having
regard to all of the circumstances
encountered here the minimum
sentence is a manifestly fair and just one. To my mind this is
precisely the type of matter that the
legislature had in mind when it
enacted the minimum sentencing legislation.
In the result:
1 The appeal by the State against sentence succeeds.
2 The sentence imposed by the court below in respect of the murder
and rape is set aside and in its stead is substituted the following:
‘
a In respect of count 2, the murder, the
accused is sentenced to imprisonment for life.
b In respect of count 3, the rape, the accused is sentenced to
imprisonment for life.’
_________________
V M PONNAN
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: G G Turner
Instructed
by:
The
Director of Public Prosecutions
Grahamstown
The
Director of Public Prosecutions
Bloemfontein
For
Respondent: E Crouse (Ms)
Instructed
by:
Legal
Aid Board
King
William's Town
Legal
Aid Board
Bloemfontein
1
75
of 1969.
2
Stephen
Bryan de Beer v The State
(121/04) (Delivered on 12 November
2004) (Unreported judgment of the Supreme Court of Appeal) p
ara
18.
3
A
Nicholas Groth
Men Who Rape
– The Psychology of the Offender
(1979).
4
2001
(1) SACR 469
(SCA).
5
2009
(2) SACR 361
(SCA) para 12.
6
Paras
7 and 8.
7
S
v Barnard
2004 (1) SACR 191
(SCA) at 197.
8
S
v Martin
1996 (2) SACR 378
(W) at
383g-i.
9
S
v
Mokoena
2009
(2) SACR 309
(SCA) para 9.
10
S
v D
1995 (1) SACR 259
(A) at 261a-c.
11
SS
Terblanche
A Guide to Sentencing in
South Africa
2 ed (2007) p 203-4;
S
v Volkwyn
1995 (1) SACR 286 (A).
12
S
v Seegers
1970 (2) SA 506
(A).
13
S
v Ngoma
[1984] ZASCA 59
;
1984 (3) SA 666
(A) at 674E-F.
14
Terblanche
p 196.
15
S
v Dlamini
1991 (2) SACR 655
(A) at
666b-f.
16
S
v Mohlobane
1969 (1) SA 561
(A) at
565C-E.
17
S
v Lehnberg
1975 (4) SA 553
(A) at 561A-C.
18
S
v Van Rooi & andere
1976(2) SA 580
(A).
19
S
v Machasa & andere
1991 (2) SACR
308
(A).
20
Dlamini
at 666e.
21
At
666i-667a.
22
Samuels
v The State
(262/03)
[2010] ZASCA 113
(22
September 2010).
23
Resolution
40/34 Adopted by the General Assembly on 29 November 1985.
24
SA
Law Commission Discussion Paper 7 Sentencing Restorative Justice
(Compensation for Victims of Crime and Victim Empowerment)
(1997).
25
Approved
by Cabinet on 2 December 2004.
26
S
7(1) of our Constitution.
27
(2006)
22
SAJHR
647
p 650.
28
S
v Gerber
2001 (1) SACR 621
(W);
S
v R
1993 (1) SACR 209
(A).
29
Pages
253-254.
30
Para
8.
31
Para
9.
32
[1997] ZASCA 45
;
1997
(3) SA 341
(SCA).
33
S
v Dzukuda & others; S v Tshilo
2000
(4) SA 1078
(CC) para 40.
34
[2005] ZACC 1
;
2005
(4) SA 581
(CC) para 29.
35
SA
Law Commission Project 107 Discussion Paper 102.
36
Para
19.