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[2023] ZAECMHC 3
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S v Pepping (sentencing) (CC03/2021) [2023] ZAECMHC 3 (3 February 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
Reportable
Case
no:CC03/2021
Date
of conviction:27/01/2023
Date
heard:03/02/2023
Date
delivered: 03/02/2023
In
the matter between:
THE
STATE
and
LOUIS
PEPPING
ACCUSED
JUDGMENT:
SENTENCING
Notyesi
AJ
Introduction
[1]
Sentencing
should always be considered and passed dispassionately, objectively
and upon a careful consideration of all relevant
facts. Public
sentiment cannot be ignored, but it can never be permitted to
displace the careful judgment and fine balancing that
is involved at
arriving at an appropriate sentence. Courts must therefore always
strive to arrive at a sentence which is just and
fair to both the
victim and the perpetrator, has regard to the nature of the crime and
takes account of the interests of society.
Sentencing involves a very
high degree of responsibility which should be carried out with
equanimity.
[1]
[2]
On 27 January 2023, this Court convicted the accused on a charge of
rape
in contravention of section 3 read with sections 1, 56(1), 58,
59 and 60 of the Criminal Law Sexual Offences and Related Matters
Amendment Act 32 of 2007. The conviction followed a finding of this
Court that the accused is guilty of raping a six year old girl
of
N[...] A[...] A[...], near M[...], L[...] on 1 September 2019.
[3]
At the
commencement of the trial proceedings, the State invoked the
provisions of sections 51(1) and (2), respectively of the
Criminal
Law Amendment Act 105 of 1997
.
[2]
To that end, the State seeks for the imposition of the minimum
sentence of life imprisonment.
[4]
Prior to leading of evidence and the tendering of the plea by the
accused,
this Court advised the accused about the minimum sentence
legislation and he confirmed that he understood the relevant
provisions
of the minimum sentence. Similarly, the accused’s
counsel,
Mr Kekana
, did confirm to have informed the accused
about the minimum sentence legislation and that the responses given
by the accused to
this Court were in accordance with his
instructions.
[5]
I do point out that the minimum sentence legislation, requires the
accused
to show the existence of substantial and compelling
circumstances, in order for the court to deviate from the provisions
of the
Act regarding the sentence to be imposed in cases of this
nature. In circumstances where the accused is unable to show the
existence
of the substantial and compelling circumstances, the court
will impose the sentence which has been ordained by the statute,
unless,
if it is of the view that having regard to the nature of the
offence, the personal circumstances of the accused and the interest
of society, it would be disproportionate and unjust to do so.
[6]
When the
court is imposing a sentence, even when a prescribed minimum sentence
applies, it is required to weigh and balance a variety
of factors to
determine a measure of the moral, as opposed to legal,
blameworthiness of an accused – and thus to determine
a
sentence that is proportionate. This is achieved by consideration of,
and an appropriate balancing of, what the well-known case
of
S
v Zinn
[3]
described as a ‘triad consisting of the crime, the offender and
the interest of society’.
[4]
[7]
In
circumstances where sentences are prescribed by legislation, courts
have been reminded to approach the imposition of sentences
conscious
that the legislation has ordained the particular prescribed period of
imprisonment as the sentence that should ordinarily
and in the
absence of weighty justification be imposed for the listed crimes in
the specified circumstances, unless there are and
can be seen to be,
truly convincing reasons for a different response, the crimes in
question are therefore required to elicit a
severe, standardised and
consistent response from the courts.
[5]
[8]
In
S
v Malgas
[6]
it was held:
‘
What
stands out quite clearly is that the courts are a good deal freer to
depart from the prescribed sentences that has been supposed
in some
of the previously decided cases and that it is they who are to judge
whether or not the circumstances of any particular
case are such as
to justify a departure. However, in doing so, they are to respect,
and not merely pay lip service to, the Legislature’s
view that
the prescribed period of imprisonment are to be taken to be
ordinarily appropriate when crimes of the specified kind
are
committed.’
[9]
In
S
v Vilakazi
[7]
the court explained that particular factors, whether aggravating or
mitigating, should not be taken individually and in isolation
as
substantial or compelling circumstances. Ultimately, in deciding
whether substantial and compelling circumstances exist, one
must look
at traditional mitigating and aggravating factors and consider the
cumulative effect thereof. When sentencing, a court
takes into
account the personal circumstances of an accused. However, only some
of these carry sufficient weight to tip the scales
in favour of the
accused to impact on the sentence to be imposed.
[10]
The task of
imposing an appropriate sentence is at the discretion of the court
[8]
even where legislation has prescribed sentences, for the reason that
the discretion of the court has not been taken away, though,
the
court must be reminded that the particular offence has been singled
out for severe punishment and that the sentence to be imposed
should
be assessed, paying due regard to the benchmark which the legislature
has provided.
[9]
[11]
In
Opperman
v S
[10]
it was held:
‘
Sentencing
is about achieving the right balance (or, in more high-flown terms,
proportionality). The elements at play are the crime,
the offender
and the interests of society or, with difference nuance, prevention,
retribution, reformation and deterrence. Invariably,
there are
overlaps that render the process unscientific; even a proper exercise
of the judicial function allows reasonable people
to arrive at
different conclusions. This seems to be a case in point.’
[12]
In order to
determine the existence of substantial and compelling circumstances,
the court would have to consider the facts of the
case, the
mitigating factors, aggravating factors and all such other factors
that bear relevance to the imposition of an appropriate
sentence.
Notwithstanding the mentioned factors to be taken into account by the
sentencing court, ‘[t]he specified sentences
in the legislation
are not to be departed from likely and for flimsy reasons.
Speculative hypotheses favourable to the offender,
undue sympathy,
aversion to imprisoning first offenders, personal doubts as to the
efficacy of the policy underlying the legislation,
and marginal
differences in personal circumstances or degree of participation
between co-offenders are to be excluded’.
[11]
[13]
For this case, in order to determine an appropriate sentence in
respect of the offence
of rape of a six year old, the starting point
is that the legislature has prescribed life imprisonment as a
sentence to be imposed,
however, this Court is obliged to consider
the ‘triad’ principles of sentencing, for the reasons
that the right balance
of all factors must be achieved. On a proper
construction of the ‘triad’ of
Zinn
, sentencing
must involve an element of mercy, though, interest of society and the
nature of the crime, must be accentuated in considering
a departure
from the minimum sentence and determining proportionality of the
sentence. The reason is that the legislature has expressed
its
attitude and preferences regarding sentences to be imposed in respect
of certain crimes, that was in response to the ever escalating
rate
of crimes involving violence, especially against women and children
in society at large.
The
personal circumstances of the accused
[14]
The accused is a 58-year-old, which suggests that he is at an
advanced stage of his life.
He is educated. He is a first offender.
This offence was committed when he was 56 years old. He held a senior
position in the D[...]
o[...] E[...] where he was a s[...] a[...].
Prior to being a s[...] a[...], he was an assistant teacher and later
worked for the
S[...], R[...], A[...] and C[...]. He testified that
he has four children of which one of them is from his estranged wife.
He could
not remember the mothers of the two of his alleged children,
neither could he remember the names of those two children. He
testified
that all the children are not his dependents. He used to
support the youngest child who is now 14 years old, though he does
not
know his name. He stopped supporting this child after he was
dismissed by the D[...] o[...] E[...]. His testimony was that he has
since been dismissed by the D[...] o[...] E[...]. Therefore, he is
unemployed.
[15]
I have no doubt in my mind that he has achieved measurable career
progression in his life.
He was an assistant teacher and thereafter
employed by Arts and Culture and ultimately, a s[...] a[...]. It is
easy for this Court
to infer that, as an advisor in the D[...] o[...]
E[...], he has immensely contributed to the development and
transformation of
the educational system. He was useful to the
society and enjoyed a position of trust until the offence was
committed.
[16]
He complained that he is on chronic medication. He had some
psychological sickness. He
had a fractured knee. He confirmed that he
does not have medical records relating to the fractured knee. He also
had no psychological
report for the confirmation of any psychological
sickness. He did not disclose the details of the chronic illness for
which he
is allegedly taking medication.
[17]
I was not impressed by the evidence of the accused in his mitigation.
I cannot imagine
a parent who does not know the names of his children
nor their mothers. A child is the biggest moment in a person’s
life.
In respect of the alleged fourteen year old, of which he claims
to have been paying maintenance, at least, the Court expected
production
of the salary advice or bank statement since, according to
him, deductions were made from his salary. He did not even know the
name of this fourteen year old. This Court does not accept the
evidence about children. In any event, the accused testified that
they are not dependent on him. The evidence about medical sickness is
also rejected on the basis that there were no medical records
in this
regard.
The
offence
[18]
Rape is a serious offence for reasons that it offends against the
victim’s rights
to personal freedoms, dignity, privacy and
humanity. It is a disgusting, horrible and despicable crime as it
does not only undermine
the person of the victim, but does take away
the dignity and self-esteem as well of the victim. The crime of rape
is undoubtedly
and indubitably serious. In our case law, the act of
rape has been described as obnoxious, despicable and disgraceful.
There is
an abundance of case law condemning this type of offence.
The offence becomes more aggravated when it is committed against
defenceless
and innocent young children and women, as is the case
here.
[19]
In
Director
of Public Prosecutions v Thabethe
,
[12]
it was held:
‘
Rape
of women and young children has become cancerous in our society. It
is a crime which threatens the very foundation of our nascent
democracy, which is founded on protection and promotion of the values
of human dignity, equality and the advancement of human right
and
freedoms. It is such a serious crime that it evokes strong feelings
of revulsion and outrage amongst all right-thinking and
self-respecting members of society. Our courts have an obligation to
impose sentences for such a crime, particularly where it involves
young, innocent, defenceless and vulnerable girls, of the kind of
which reflect the natural outrage and revulsion felt by the
law-abiding members of society. A failure to do so would regrettably
have the effect of eroding the public confidence in the criminal
justice system.’
[20]
In
Mudau
v State
[13]
the effect of rape was described by Majiedt J as follows:
‘
It
is necessary to reiterate a few self-evident realities. First, rape
is undeniably a degrading, humiliating and brutal invasion
of a
person’s most intimate, private space. The very act itself,
even absent any accompanying violent assault inflicted by
the
perpetrator, is a violent and traumatic infringement of a person’s
fundamental right to be free from all forms of violence
and not to be
treated in a cruel, inhumane or degrading way. In
S v Vilakazi
,
Nugent JA referred to the study done by Rachel Jewkes and Neema
Abrahams on the epidemiology of rape which concluded on the available
evidence that ‘women’s right to give or withhold to
consent to sexual intercourse is one of the most commonly violated
of
all, human rights in South Africa.’ (Footnotes omitted.)
[21]
The offence of rape in this case was committed against a six year old
child. The accused
promised the complainant food and money when
committing the crime. This is the hallmark of arrogance and a show of
power over an
innocent and defenceless child. In my view, that
conduct of the accused had rendered this offence more serious.
Aggravating
factors
[22]
The accused has preyed upon an innocent and vulnerable six year old
to quench his covetousness
and selfish needs. The accused has given
no explanation for his obnoxious conduct. There is a prevalence of
rape of women and children.
The complainant sustained injuries as a
result of rape and had to be admitted in hospital for a number of
days. The J88 reflects
a painful experience for the complainant. It
is recorded in the J88 that there was a forced penetration that
caused her to suffer
injuries. She was bleeding at the time when she
met the witnesses. The bleedings was also observed during her
examination by the
nurses. I have no doubt in my mind that this must
have been an excruciating pain that the complainant had endured.
[23]
The social worker report records that the sexual assault has caused
the complainant and
her family to live in extreme fear. This Court is
unable to speculate how long the trauma will last. The complainant is
reported
to have stress symptoms, such as sadness and sleep
disturbances. She is reported to have lost trust and felt betrayed by
the accused.
Undeniably, the family and the complainant were
extremely hurt and traumatised as a result of the unthinkable conduct
by the accused.
The accused has not tendered any apology for this
monstrous crime. The mother of the complainant, N[...] S[...], also
testified
regarding the impact of the rape on the family and the
complainant.
[24]
The fact that the offence was committed against an innocent
defenceless six year old girl,
is aggravating the offence.
Interest
of society
[25]
All right
thinking members of the society are, with no doubt, sick and tired of
the seemingly ever present reality and scourge of
rape of women and
children. However, a court must not overemphasize one factor, but
should strike a balance of all the factors
which are the personal
circumstances of the accused, the nature of the offence and the
interest of the society. In
S
v Kruger
[14]
it was remarked:
‘
Punishing
a convicted person should not be likened to taking revenge’.
[26]
In
S
v Scott-Crossley
[15]
it was said:
‘
Plainly
any sentence imposed must have deterrent and retributive force. But
of course one must not sacrifice an accused person on
the altar of
deterrence. Whilst deterrence and retribution are legitimate elements
of punishments, they are not the only ones,
or for that matter, even
the overriding ones.’
[27]
This Court will approach the sentencing of the accused on the basis
that it is in the interest
of justice that crime should be punished
and that such punishment should be proportionate since excessive
punishment does not serve
the interest of justice nor those of
society. The interest of justice or public interest, is not
synonymous of public opinions
about what a sentence ought to be.
Sentence must serve public interest rather than public opinions.
[28]
In
S
v Pillay
,
[16]
the court referred to
S
v Makwanyane & Another
[17]
where it was said:
‘
.
. . public opinion may have some relevance to the enquiry, but, in
itself, it is no substitute for the duty vested in the court;
the
court cannot allow itself to be diverted from its duty to act as an
independent arbiter by making choices on the basis that
they will
find favour with the public. . . “righteous anger should not
becloud judgment”.’
[29]
The rape of children has been singled out by the legislature as one
of the serious offences
that warrants a minimum sentence of
imprisonment. This demonstrates the extent to which this type of
offence is viewed by the society.
By now, it must be axiomatic that
in the face of such grievous offences, the interest of society should
weigh more heavily than
the interest of the accused, unless
substantial and compelling reasons exist for justification. The
community, in general, must
be protected against sexual predators
such as the accused in this case. The rape of a six year old by
a 56 year old educated
man, who must be aware of the impact of sexual
violence, cannot be imagined or tolerated in a right minded society.
As far as this
Court can understand, the legislature has enacted
legislation that proposes severe sentences, awareness campaigns about
gender
based violence has been launched, notwithstanding those, the
gender based violence, rape of children and women, remains prevalent
in society.
[30]
In these circumstances, the society, justifiably, demands for the
imposition of sentences
that will have deterrent effect, whilst
allowing for the effective rehabilitation of the accused person.
[31]
In consideration of an appropriate sentence, I do take into account
the fact that the accused
is an educated person and he should have
known better. It is common knowledge that there are public awareness
campaigns regarding
gender based violence. The accused ought to know
that his conduct was unlawful. The consideration of this fact demands
for the
court to consider imposing a sentence that will serve as a
deterrent, not only to the accused, but also to other would-be
offenders.
[32]
In
Opperman
v S
[18]
Majiedt AJA (as he then was) writing the minority judgment, held–
‘
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 is so much more pronounced in the instances of the
rape of very young children as is the case here.
The court below
correctly took into account the fact that the complainant was an
innocent, defenceless and vulnerable victim.’
[33]
I agree with the above observation. The statement is more apposite to
the present case.
Remorse
[34]
The accused has shown no remorse for the horrendous rape of the six
year old girl. The
conduct of the accused was a callous one. The
accused did not care that the complainant was ‘his child’
or he was her
possible ‘grandfather’, as in African
culture, where children are parented and raised by the community as a
whole,
that culture is consistent with the concept of ‘UBUNTU’.
The accused has betrayed and breached ‘UBUNTU’.
The rape
of a six year old cannot be justified. Even during these proceedings,
the accused showed no remorse, he was laughing,
smiling and making
some gestures, in which he showed the middle finger to this Court.
Whatever is the meaning of that gesture,
is unknown to this Court.
The conduct of the accused, considered in the conspectus of this
case, shows a heartless person who has
no respect for the rule of law
and the rights of others. During the main trial, the evidence was
heard that the accused on the
day of this incident, had consumed
liquor. There is no suggestion that such consumption of liquor had an
impact on him. This Court
will not consider as a mitigation the fact
that the accused had consumed liquor. What is left, is that this
Court is still in the
dark on the reasons or explanation why the
accused committed this heinous crime against an innocent six year old
child. In such
circumstances, this Court is unable to measure the
moral blameworthiness of the accused.
Findings
[35]
The personal circumstances of the accused, including the fact that he
is at an advanced
age, are far outweighed by the seriousness of the
offence and the interest of justice. The interest of justice demands
that the
sentence prescribed by legislation must be imposed. The
accused failed dismally to show the existence of substantial and
compelling
reasons for deviation from the minimum sentence. I take
into account the following factors, which aggravates the offence:
(a)
The complainant was only six years old;
(b)
The victim assessment report shows that the complainant was
traumatised
and that she is still experiencing issues of trust;
(c)
The complainant was admitted for many days at the hospital after the
rape;
(d)
The complainant sustained injuries which came about as a result of
forced
penetration;
(e)
The accused has shown no remorse for the offence;
(f)
The total conspectus of the impact of this rape to the complainant
and her family, as clearly set out in the social worker’s
report, which was unchallenged; and
(g)
That the accused is an educated person who is aware of the society’s
disgust on crimes of violence against women and children. I do
consider the fact that the accused held a position of trust at the
time.
[36]
I agree
with the concession by
Mr
Kekana
,
counsel for the defence that the personal circumstances of the
accused, in this case, did not establish substantial and compelling
reasons for deviation from the minimum sentence. My view about the
personal circumstances of the accused, as raised by the accused
in
his evidence and
Mr
Kekana
during his argument, is that they must yield to consideration of
deterrence. The conduct of the accused was callously brutal and
it
was appalling. In these circumstances, it is safe to remember the
warning expressed in
S
v Vilakazi
:
[19]
‘
In
cases of serious crime, the personal circumstances of the offender,
by themselves, will necessarily recede into the background.
Once it
become clear that the crime deserving of a substantial period of
imprisonment, the question whether the accused is married
or single,
whether he has two children or three, whether or not he is in an
employment, are in themselves largely immaterial to
what that period
should be, and those seem to me to be the kind of flimsy grounds that
Malgas said should be avoided.’
[37]
When I look
at the circumstances of this case, the interest of society, the
interest of the complainant and the aggravating nature
of the
offence, I am of the view that the aggravating factors outweigh the
mitigating factors. In
S
v Malgas
,
[20]
the court held:
‘
The
specified sentences are not to be departed from lightly and for
flimsy reasons. Speculative hypotheses favourable to the offender,
undue sympathy, aversion to imprisoning first offenders, personal
doubts as to the efficacy of the policy underlying the legislation,
and marginal differences in personal circumstances or degrees of
participation between co offenders are to be excluded.’
Conclusion
[38]
For all the
reasons stated above, I conclude that there are no substantial and
compelling circumstances justifying this court to
deviate from the
prescribed sentence of life imprisonment as prescribed by the
legislation. This Court will pass a sentence that
would give
recognition to the justifiable abhorrence invoked by the callousness
of rampant crime of rape, especially for innocent,
defenceless and
vulnerable children. In this Court’s view, the sentence will
not destroy the accused, though it will serve
as a general
deterrence. That would give the accused sufficient time to be
rehabilitated for his reintegration into society as
a responsible
citizen. In
S
v Kearns
[21]
the Court stated that rape is not merely a physical assault, it is
often destructive of the whole personality of the victim. A
murderer
destroys the physical body of his victim; a rapist degrades the very
soul of the helpless female. The physical scare may
heal, but the
mental scar will always remain. When a women is ravished, what is
inflicted is not merely physical, but the deep
sense of some
deathless shame… By the very nature of the offence, it is an
obnoxious of the highest order.
[39]
In the result, the accused is sentenced as follows:
(1)
For the crime of rape in contravention of section 3 read with
sections 1, 56(1), 58, 59
and 60 of the Criminal Law Sexual Offences
and Related Matters Amendment Act 32 of 2007, the accused is
sentenced to undergo life
imprisonment.
M
NOTYESI
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the State
:
Adv
Nyendwana
:
The DPP
Mthatha
Counsel
for the Accused
:
Adv
Kekana
Attorneys
for the Accused
:
Legal
Aid
Mthatha
[1]
Mudau v
The State
[2013] ZASCA 56
;
2013 (2) SACR 292
(SCA) para 13.
[2]
Hereinafter referred to as 'the Act’.
[3]
S v
Zinn
1969 (2) SA 537
(A) at 540G-H (‘
Zinn
’).
[4]
S
v Boshoff
,
unreported judgment of the Eastern Cape High Court, Makhanda, Case
No CA&R390/2012 (27 September 2013) para 19.
[5]
S
v Malgas
[2001]
ZASCA 30
;
[2001] 3 All SA 220
(A) (‘
Malgas
’).
[6]
Ibid
para
25.
[7]
S
v Vilakazi
2009
(1) SACR 552
(SCA) (‘
Vilakazi
’).
See
also
S
v Pillay
,
Case No: CCD48/2017.
[8]
S
v Singh
2016
(2) SACR 443
para 23.
[9]
Malgas
fn 5
para 25.
[10]
Opperman
v S
[2010] 4 All SA 267
(SCA) at 278 para 30 (‘
Opperman
’).
[11]
Malgas
fn 5
para 25.
[12]
Director
of Public Prosecutions v Thabethe
[2011]
ZASCA 186
;
2011 (2) SACR 567
(SCA) at 577G I.
[13]
Mudau
v S
[2013]
ZASCA 56
;
2013 (2) SACR 292
(SCA) para 17.
[14]
S
v Kruger
[2011]
ZASCA 219
;
2012 (1) SACR 369
(SCA) para 11.
[15]
S v
Scott-Crossley
[2007] ZASCA 127
;
2008 (1) SA 404
(SCA);
2008 (1) SACR 223
(SCA)
para 35.
[16]
S v
Pillay
,
unreported judgment of the KwaZulu Natal High Court, Durban,
Case No CCD 48/17 (7 May 2018).
[17]
S v
Makwanyane and Another
[1995] ZACC 3
;
1995 (6) BCLR 665
;
1995 (3) SA 391
paras 87-89.
[18]
Opperman
fn 10
at para 15.
[19]
Vilakazi
fn 7
para 58.
[20]
Malgas
fn 5
para 25.
[21]
S v
Kearns
2009 (2) SACR 684
(GSJ)