About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2023
>>
[2023] ZAECMHC 17
|
|
Maxhegwana v S (CA&R 67/2023) [2023] ZAECMHC 17 (18 April 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
CASE NO. CA&R
67/2023
In
the matter between:
XOLISA
VOTI
MAXHEGWANA
Appellant
and
THE
STATE
Respondent
JUDGMENT
Rugunanan
J
[1]
The appellant appeared in the regional
court, Bizana on a single count of rape in contravention of
section 3
of the
Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007
read with the provisions of
section 51(1)
and
Part I
of Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
in that
the complainant was 6 years of age at the time of the commission of
the offence. The offence was alleged to have been committed
on 19
February 2019. At the time of the trial the complainant was 9 years
of age.
[2]
Following his conviction the appellant was
sentenced to life imprisonment. Exercising his automatic right in
terms of section 309(1)
(a)
of the Criminal Procedure Act 51 of 1977 (the Act) read with sections
10, 11 and 43(2) of the Judicial Matters Amendment Act 42
of 2013,
his appeal to this court is against his conviction and sentence.
[3]
The appellant’s conviction flowed
essentially from the trial court’s acceptance of the
complainant’s direct testimony
that the appellant had raped
her, with corroboration for such evidence being found in the
testimony of the complainant’s
aunt and in the medical
evidence.
[4]
The complainant testified through an
intermediary and both the complainant and the intermediary were
seated in a separate chamber
aided by a closed circuit camera.
[5]
It is common cause that the complainant did
not testify under oath as is required by section 162(1) of the Act.
[6]
The appellant argues that she was in
consequence not a competent witness whose evidence was reliable.
[7]
The criticism directed at the magistrate
with regard to the complainant’s testimony is that the
magistrate received her evidence
without conducting an investigation
or making a finding as to whether she understood the nature and
import of the oath or affirmation
– and upon admonishing her in
terms of section 164 of the Act, he did not pertinently convey to her
the consequences of not
telling the truth.
[8]
Section
162 of the Act provides that subject to the exceptions contained in
sections 163
[1]
and 164
[2]
,
no person shall be examined as a witness in criminal proceedings
unless he is under oath. In terms of section 163 a person who
objects
to taking the oath or who does not consider the oath in the
prescribed form to be binding on his conscience or who informs
the
presiding judicial officer that he has no religious belief or that
the taking of the oath is contrary to his religious belief,
shall
make the affirmation prescribed by the section.
[9]
Section 164(1) provides as follows –
‘
(1) Any person,
who from ignorance arising from youth, defective education or other
cause, is found not to understand the nature
and import of the oath
or the affirmation, may be admitted to give evidence in criminal
proceedings without taking the oath or
making the affirmation:
Provided that such person shall, in lieu of the oath or affirmation,
be admonished by the presiding judge
or judicial officer to speak the
truth.’
[10]
The
testimony of a witness who has not been properly placed under oath,
has not made a proper affirmation, or has not been properly
admonished to speak the truth renders inadmissible the status and
character of their evidence
[3]
.
[11]
The
rationale for giving evidence under oath in terms of section 162, or
affirmation in terms of section 163, or admonishment in
terms of
section 164 of the Act is to ensure that the evidence given is
reliable.
[4]
[12]
It
is settled law that though preferred, a court need not always conduct
a formal enquiry for determining whether or not a witness
understood
the nature and import of the oath or affirmation before making the
finding required by section 164. The mere youthfulness
of the witness
may justify such a finding
[5]
.
[13]
It
is, however, always necessary to establish whether or not a witness
is capable of appreciating the distinction between truth
and lies.
The significance of truthfulness is covered by an enquiry satisfying
the court that the child witness understands the
distinction. The
evidence by a child witness who does not understand what it means to
tell the truth is not reliable.
[6]
[14]
The
magistrate was cognisant that he was dealing with the complainant as
a child witness who was 9 years of age at the time of the
trial.
Eliminating repetition, the transcript reflects the following
discourse between the magistrate and the complainant IF
[7]
:
‘
Court:
Mr Vinindwa may we
introduce the name of the witness?
Prosecutor: The witness
I’m calling, your worship is IF.
Court:
May the witness state her names. If the mike can be put closer to the
mouth, her mike. If she may state names again please?
Interpreter: IF though
the volume is too low …
Court:
I did not hear the witness.
…
Witness:
IF.
Court:
All right, how old are you?
Witness:
I am 9 years old.
…
Court:
Where are you schooling?
Witness:
At S[...] T[...]’s school.
…
Court:
All right, where did she say she was schooling?
Witness:
At S[...] T[...]’s school, your worship.
…
Court:
All right, in what grade are you?
Witness:
I am doing grade 4, your worship.
Court:
Do you know your class teacher is?
Witness:
Mem Ra – Mrs R[...], your worship.
Court:
I need to test if you, you, you do understand stuff. You, you
–
for instance I – if someone were to say that the top that you
are wearing or the shirt or T-shirt that you wearing
is red, what
would your response be.
Witness:
That would be a lie.
Court:
Okay, what is the colour of your T-shirt?
Witness:
It is blue.
Court:
Right, I can confirm that it is indeed sky-blue, and if someone
were
to say that you wearing a, you wearing white shorts, what, what would
your comment be?
Witness:
That would be a lie.
Court:
What is the colour of your shorts?
Witness:
It is navy.
Court:
I also can confirm that the shorts can, the shorts are navy. The
court wishes to warn you to tell the truth like you have done with
describing your attire, because it is the truth that you are
wearing
a, a sky – blue T-shirt with navy shorts. Can you do that?
Witness:
Yes I will.
IF admonished.
Court:
Right. Mr Vinindwa, your witness.’
[15]
It will be gleaned from the aforegoing that
what the magistrate omitted to do was to either conduct an
investigation or make a finding
on the question whether or not the
complainant understood the nature and import of the oath or
affirmation due to ignorance arising
from youth, defective education
or other cause as prescribed by section 164(1) of the Act.
[16]
It
is settled that the investigation and finding thereanant, though
preferred, are not required. This was the view expressed by
the
Supreme Court of Appeal in
S
v B
[8]
and applied with approval by a full court of this division in
S
v Williams
[9]
.
Indubitably, the doctrine of
stare
decisis
applies
[10]
.
[17]
The fact that the magistrate after having
established the age of the complainant proceeded to inquire whether
she understood the
difference between truth and lies offers, in my
view, a clear indication that the complainant due to her youthfulness
did not understand
the nature and import of the oath.
[18]
At the conclusion of the discourse between
the magistrate and the complainant, the record indicates ‘IF
admonished’.
Whether this was a declaration by the magistrate
in direct speech or whether it is a retrospective inclusion inserted
in the process
of transcribing the record, is indeterminate. The
transcriber’s certificate included in the record certifies the
correctness
of the transcript ‘so far as it is audible’.
Speculatively, it may well have been inserted retrospectively though
no
conclusive finding is made in that regard.
[19]
Having acceded to the view that it is not
always required of a court to conduct a formal enquiry for
determining whether or not
a witness understood the nature and import
of the oath or affirmation before making the finding required by
section 164, the question
that arises is whether there is evidence
indicating that the complainant was ‘admonished’.
[20]
In
S
v Mali
[11]
,
Malusi J considered the meaning of the word ‘admonished’
prior to the amendment of section 164(1) by
section 68
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 2 of
2007
. He determined –
‘
The
Oxford Dictionary states that to admonish means “reprimand
firmly; earnestly or warn’.
[21]
Nothing
precludes this court from having regard to the meaning ascribed to
the word in the predecessor legislation
[12]
.
[22]
Applying that yardstick, it emerges from
the discourse that the magistrate did ‘warn’ the
complainant to tell the truth.
[23]
She was therefore admonished.
[24]
Hence, there was compliance by the
magistrate with a peremptory requirement in section 164(1) of the
Act.
[25]
At
this juncture an excursus is considered necessary for the purpose of
quoting observations articulated in the judgment of the
Constitutional Court in
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development and Others
[13]
to which reference is made in the appellant’s heads of
argument. It is edifying to quote the insightful sentiments by Ngcobo
J at length before clarifying the point sought to be made in argument
on behalf of the state.
‘
[165]
The practice followed in courts is for the judicial officer to
question the child in order to determine whether the child
understands what it means to speak the truth. As pointed out above,
some of these questions are very theoretical and seek to determine
the child’s understanding of the abstract concepts of truth and
falsehood. The questioning may at times be very confusing
and even
terrifying for a child. The result is that the judicial officer may
be left with the impression that the child does not
understand what
it means to speak the truth and then disqualify the child from giving
evidence. Yet with skilful questioning, that
child may be able to
convey in his or her own child language, to the presiding officer
that he or she understands what it means
to speak the truth. What
[section 164(1)] requires is not the knowledge of abstract concepts
of truth and falsehood. What the proviso
requires is that the child
will speak the truth. As the High Court observed, the child may not
know the intellectual concepts of
truth or falsehood, but will
understand what it means to be required to relate what happened and
nothing else.
[26]
The learned judge goes on to say:
‘
[167]
When a child, in the court’s words, cannot convey the
appreciation of the abstract concepts of truth and falsehood to
the
court, the solution does not lie in allowing every child to testify
in court. The solution lies in the proper questioning of
children; in
particular, younger children. The purpose of questioning a child is
not to get the child to demonstrate knowledge
of the abstract
concepts of truth and falsehood. The purpose is to determine whether
the child understands what it means to speak
the truth. Here the
manner in which the child is questioned is crucial to the enquiry. It
is here where the role of an intermediary
becomes vital. The
intermediary will ensure that questions by the court to the child are
conveyed in a manner that the child can
comprehend and that the
answers given by the child are conveyed in a manner that the court
will understand.
[27]
Emphasising the importance of using
intermediaries Ngcobo J proceeds to state further as follows:
‘
[168]
As pointed out earlier, questioning a child requires a special skill.
Not many judicial officers have this skill, although
there are some
who, over the years and because of the constant contact with child
witnesses, have developed a particular skill
in questioning children.
This illustrates the importance of using intermediaries where young
children are called upon to testify.
They have particular skills in
questioning and communicating with children. Counsel for the Centre
for Child Law and Childline
was quite correct when, in her reply, she
submitted that everything seems to turn upon the need for
intermediaries when young children
testify in court. Properly trained
intermediaries are key to ensuring the fairness of the trial. Their
integrity and skill will
be vital in ensuring both that innocent
people are not wrongly convicted and guilty people are properly held
to account.’
[28]
In argument it was correctly submitted for
the state that nothing contained in the above dicta supports the
proposition contended
for by the appellant that the magistrate ought
to have warned the complainant of the consequences of a failure to
tell the truth.
It is indeed correct that the depth of questioning
employed when determining whether a child witness understands what it
means
to speak the truth will to a large extent depend on the
experience of the judicial officer and the role played by trained
intermediaries.
Nothing can be fathomed from the dicta suggesting
that a child witness be warned of consequences. To elevate this into
the status
of a mandatory requirement, would be imposing a legal
requirement where there is none.
[29]
In summing up, it cannot in my respectful
view be concluded that the evidence by the complainant is
inadmissible. Nor does it pass
muster for the appellant to argue that
the magistrate’s failure to convey to the complainant the
consequences of not telling
the truth is fatal to the admissibility
of her evidence. To uphold the appellant’s contention would be
to read into the section
aforementioned something which is not
expressly mentioned by the legislature.
[30]
In the circumstances it cannot be concluded
that there was an irregularity in the proceedings before the
magistrate.
The conviction
[31]
The merits were not at all addressed in the
appellant’s heads of argument, and although it was conceded
that there was a
prima facie
case against the appellant, it was submitted that the state’s
evidence was insufficient to have discharged the onus of proving
his
guilt.
[32]
It
is trite that a court of appeal will not readily interfere with the
factual findings of a trial court unless they are wrong.
In the
absence of a misdirection on fact by the trial court the presumption
is that its conclusion is correct, and if the appellate
court is
merely left in doubt as to the correctness of the conclusion, then it
will uphold it
[14]
. The
findings of fact and credibility by a trial court are presumed to be
correct because it is that court and not the court of
appeal which
has had the advantage of seeing and hearing the witnesses and is in
the best position to determine where the truth
lies
[15]
.
[33]
The evidence indicates that the complainant
lives with her mother, N[...], and an aunt in an RDP house. The house
has four rooms.
The complainant shares a room with her mother. The
aunt, S[...], occupies her own room. Another room is occupied by a
female lodger
named P[...]. The fourth room though unoccupied, is
unusable because it is unfinished.
[34]
It is common cause that the appellant
visited the house, that he and N[...] went out the night and visited
a tavern whereafter they
returned to the house. He spent the night
with N[...] in her bedroom. It is also not in dispute that the
appellant and N[...] were
present the following morning when S[...]
accused him of having raped the complainant.
[35]
The form J88 medical report dated 19
February 2019 pertaining to an examination of the complainant was
admitted into evidence by
agreement. The gynaecological examination
documents the presence of ‘
Petechiae
redness on the labia minora. Abrasions on the labia majora (R) side’
.
Mild swelling of the hymen was also noted. The report concludes that
a sexual assault cannot be ruled out.
[36]
The appellant was legally represented and
pleaded not guilty to the charge. In explanation of his plea he
stated that he visited
the house intending to cavort with S[...].
Because she had a male companion, he resorted to her sister N[...].
Both he and N[...]
went out for drinks at a tavern. Upon their return
to the house he spent the night with N[...] and had sexual
intercourse with
her. He stated that the complainant was not there.
The following morning he was confronted by the allegation of rape.
[37]
The complainant stated that she was born on
8 July 2012. She testified that the appellant visited their home in
2019. He requested
her mother to accompany him and they went to a
tavern. Her mother returned later that night when she had already
been asleep in
the bed shared with her mother. At some point she
realised that her pyjama pants and panty were at thigh level and that
the accused
was raping her. Her cries and shouts drew the attention
of her aunt – her mother did not respond. When the aunt entered
the
room, the appellant immediately stood up. The aunt took her away.
She spent the night in her aunt’s room. The following morning
the aunt called a neighbour and the complainant was taken to hospital
where she was medically examined.
[38]
The complainant disputed the appellant’s
version that she was not at home when he initially visited and upon
his return with
her mother. She also maintained that the appellant
was the perpetrator because he was the only male person in the house
at the
time of the incident.
[39]
S[...] denied that she had a male companion
when the appellant arrived at the house. She testified that the
appellant and her sister
had gone to a tavern for drinks. When the
appellant and her sister had left the house, the complainant was in
her mother’s
room where she was asleep. The complainant
remained in the room all night.
[40]
Upon returning from the tavern, her sister
was drunk and in the company of the appellant. The pair proceeded to
her sister’s
room, without locking the door to the main
entrance of the house. S[...] stated that she locked the main door
and kept the key
with her. At the time there was no other male person
in the house. At about midnight she heard the complainant crying out.
She
proceeded to her sister’s room where she found the
complainant, her sister and the appellant on the bed. The
complainant’s
lower body was unclad. Her sister appeared to
have passed out and for that reason could not hear the complainant
crying. The complainant
and the appellant were awake. She took the
complainant to her room. In the course of the night she heard the
appellant and her
sister having sexual intercourse – her
explanation being that the rooms have no ceilings. She realised at
some stage that
the complainant did not sleep and was terrified. The
complainant told her what the appellant had done. She explained that
he inserted
his penis into her private parts. The next morning she
called a neighbour. They inspected the child and observed that her
private
parts had lesions and were red. The complainant was taken to
hospital.
[41]
N[...] testified that she and the appellant
had been drinking at the tavern. Before having left the house, the
complainant had taken
a bath and proceeded to the room to sleep. They
did not consume liquor in the house. When they left the house the
complainant was
there. She could not recall the time when she
returned with the appellant. She conceded that she was heavily
intoxicated and having
passed out in her room she did not hear the
complainant’s cries and screams. The following morning, she
woke up. She noticed
that she was not wearing her panty. She then
learnt that the appellant raped the complainant. For her part, she
then and there
denied that he would have done this. It emerged during
her testimony that on the morning on which the allegation was made
against
the appellant, he called her aside and threatened that he
would harm her and her child if she supported S[...]’s
allegation
against him. Although his threat convinced her that he was
not innocent, she conceded that she put up the denial because she
wanted
to protect her child from harm. She confirmed that no other
male person had been in the house, neither at the time of the
appellant’s
initial visit nor upon their return from the
tavern. She denied the suggestion to the contrary as put to her in
cross-examination.
[42]
The appellant’s version comes down to
S[...] being jealous because he had sex with N[...]. For that reason
he believed that
the rape allegation was manufactured. S[...]
testified that she and the appellant merely had a casual liaison at
some prior stage,
hence she would not have had a reason to be jealous
of him when he slept with her sister.
[43]
The appellant testified that he visited the
house that day to cavort with S[...] but she was busy with another
man. The appellant
met her sister N[...]. They had drinks in her
room. The complainant was not present. He propositioned N[...] for
sex. They left
the house and had drinks at a tavern. They returned to
N[...]’s room. The complainant was not in the room because the
bed
was far too tiny to be occupied by three people. He woke up the
following morning in N[...]’s room. Her sister enquired from
him why did he sleep over. She also alleged that he raped the
complainant. He denied this, maintaining that he had been drinking
in
N[...]’s room while they were in the company of another male
person named B[...]. He stated that S[...] would not have
seen this
because she was in another room. The version of B[...] being present
was never put to N[...].
[44]
The magistrate’s judgment indicates
that he undertook a holistic assessment of the evidence, and that he
took into consideration
the inherent strengths and weaknesses
including the probabilities and improbabilities of the parties’
versions. He was also
acutely aware that the complainant was a single
witness. Her evidence was reliable and he found her to be an
impressive witness.
She was violated by the person whom she
identified as the appellant and her version that she was raped found
corroboration in the
medical report. The medical examination was
conducted the following day – the time frame excluded the
possibility of a concocted
scenario.
[45]
On the magistrate’s assessment he
found S[...]’s denial of being jealous of the appellant,
credible; and although not
stated in identical terms, he found her to
be a fair witness. As for the complainant’s mother N[...], she
was an honest witness.
Her version, supported by S[...], placed the
complainant in her room and excluded the proposition by the appellant
that the child
was not present in the house. The magistrate noted
that she was candid enough to admit to her drunken state and that she
readily
conceded that she denied the allegation against the appellant
because she tried to protect her child from harm.
[46]
As for the appellant, the magistrate was
not persuaded that his version could be said to be reasonably
possibly true. There were
no ill-feelings between any of the parties
and the proposition that S[...] had framed him was insupportable on
the probabilities.
[47]
In my view a compelling factor on the
probabilities is that the evidence clearly indicates that no other
male person was in the
house, neither when the appellant initially
arrived nor at the time when he returned from the tavern together
with the complainant’s
mother. The main door of the house was
locked and this excluded the possibility that a male person may have
entered (or left) the
house during the course of the night.
Furthermore, the version by S[...] indicates that the complainant
remained at all times in
the house. When the appellant had left with
her sister, the complainant retreated to her mother’s room.
This is consistent
with N[...]’s evidence that the complainant
had gone to the room to sleep where she remained throughout.
[48]
Applying the principles set out
hereinabove, the evidence tendered is in my view sufficient to enable
the state to have discharged
the onus of proof, and as I am not
persuaded that the magistrate erred or misdirected himself, the
appellant’s conviction
is not open to interference.
On sentence
[49]
A
court of appeal does not have a blanket discretion to ameliorate the
sentence imposed by a trial court. The trial court enjoys
a wide
discretion
(a)
in deciding which factors should be allowed to influence it in
determining a suitable punishment; and,
(b)
in determining the value to be attached to each factor.
[16]
An appeal court may only interfere with a sentence imposed by a trial
court where,
(a)
an irregularity occurred;
(b)
the trial court materially misdirected itself on the question of
sentence; or,
(c)
the sentence could be described as so disturbing that it induces a
sense of shock.
[50]
In
his notice of appeal the appellant’s sentence is assailed on
the grounds of shock and misdirection – his personal
circumstances were not accorded proper weight; the result being that
the sentence imposed is disproportionate with the basic triad
of
factors espoused in
S
v Zinn
.
[17]
The point is taken that the magistrate failed to accord recognition
to prospects for rehabilitation as also the fact that the appellant
has minor children and aged parents as dependants – such
factors not having been accorded proper recognition by the magistrate
in assessing the cumulative effect of all considerations in the
scheme of the triad.
[51]
The record indicates that the parties
presented evidence in mitigation and aggravation by addressing the
magistrate from the bar.
Gauging from their submissions on sentence,
it appeared that it was common cause that the complainant required
psychological counselling
due to the trauma of the rape. The effects
of the rape and its seriousness were correctly and fairly
acknowledged by appellant’s
legal representative.
[52]
Consequent
to the address by the parties, the magistrate’s judgment on
sentence was delivered
ex
tempore
.
Thus, it does not necessarily follow that because something has not
been mentioned it has not been considered.
[18]
[53]
The appellant’s personal
circumstances are that he was aged 27 at the time of sentencing; he
is unmarried, has minor children
attending school, has elderly
parents, and is the sole breadwinner earning an income of R6 000
per month as a bus conductor.
[54]
The appellant did not testify in
mitigation. That was his choice but the consequence is that there is
no evidence indicating his
level of insight into the commission of
the offence in order to assess his prospects of rehabilitation. A
reading of his testimony
indicates that he is a deceitful person. At
no stage after his conviction did he express any sentiment of
remorse. Remorse must
precede rehabilitation. It can justifiably be
said that the submission about his prospects of rehabilitation is
fanciful.
[55]
In
summary, the appellant’s personal circumstances even if viewed
cumulatively (which accords with the approach of the magistrate),
do
not outweigh the other two component considerations in the
Zinn
triad.
[19]
This is indicative,
to my way of thinking, of the absence of substantial and compelling
circumstances.
[56]
Absent such circumstances, this court must
uphold the prescribed minimum sentence.
[57]
In
the aggregate, the magistrate correctly found that substantial and
compelling circumstances were non-existent and that the appellant’s
personal circumstances were outweighed by the nature and seriousness
of the offence and the interests of society and those of the
complainant. A finding that the appellant’s personal
circumstances on their own amount to substantial and compelling
circumstances
would be unduly sympathetic and would amount to a
departure from the specified sentence, ‘lightly and for flimsy
reasons’
[20]
.
[58]
In
imposing sentence, it was at all times the magistrate’s
prerogative to
(a)
decide which factors should be allowed to influence him in
determining a suitable punishment; and,
(b)
in determining the value to be attached to each factor.
[21]
Absent any demonstrable indication that particular facts were
over-emphasised at the expense of others, there is no basis for
interfering with the imposed sentence.
The order
1.
The appeal against conviction and sentence
is dismissed.
2.
The conviction and sentence imposed by the
court a quo are confirmed.
S. RUGUNANAN
JUDGE OF THE HIGH
COURT
I agree.
D. POTGIETER
JUDGE OF THE HIGH
COURT
APPEARANCES:
For the Appellant:
Z. Nomlala
Instructed by
Legal Aid South
Africa
Mthatha
For the Respondent:
S. Mfihlo
Instructed by
The Office of the
National Director of Public Prosecutions
Mthatha
Tel:
047-501 2697 / 083 515 9280
Date
heard:
15
February 2023.
Date
delivered:
18
April 2023.
[1]
i.e. persons giving evidence on affirmation in lieu of the
prescribed oath.
[2]
i.e. persons who are admonished to speak the truth without taking
the oath or making the affirmation.
[3]
S
v Matshiva
2014
(1) 29 SACR (SCA) para 10.
[4]
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development and Others
2009 (2) SACR 130
(CC) at 279F.
[5]
S v
Mali
2017 (2) SACR 378
(ECG) at 381
a;
Director of Public Prosecutions, Kwa-Zulu Natal v Mekka
2003 (2) SACR 1
(SCA) at 3
g
[6]
S
v Matshiva
2014
(1) SACR 29
(SCA) para 14.
[7]
Initials used in substitution of her full names.
[8]
2003 (1) SACR 52
(SCA) para 15.
[9]
2010 (1) SACR 493
(ECG) at 496f-497f
[10]
Contract
Forwarding (Pty) Ltd and Others
2003 (2) SA 253
(SCA) para 9.
[11]
S
v Mali
s
upra
at 382
b
.
[12]
S v
Theron
[1984] ZASCA 1
;
1984 (2) SA 868
(AD) at 877F-H.
[13]
2009 (4) SA 222
(CC) paras 165-167.
[14]
R
v Dhlumayo and Another
1948
(2) SA 677
(A) at 677-678.
[15]
S
v Leve
2011
(1) SACR 87
(ECG) para 8.
[16]
S v
Kibido
1998
(2) SACR 213
(SCA) at 216
g-h;
S v Petkar
1998 (3) SA 571
(AD) at 574C.
[17]
1969 (2) SA 537
(AD) at 540F-H. However daunting the exercise of
balancing these factors to formulate an appropriate sentence may be,
the courts
are enjoined to avoid an over - or underemphasis of any
one of them. See
DPP
Transkei v Dubo
2011 (1) SACR 191
(ECM) para 9.
[18]
R v
Dhlumayo and Another supra
at 678.
[19]
Stated otherwise, the appellant’s personal circumstances are
outweighed by the objective gravity of the offence for which
a
severe punishment must be imposed. See
Director
of Public Prosecutions, North Gauteng, Pretoria v Thusi and Others
2012 (1) SACR 423
(SCA) para 18.
[20]
S v
Malgas supra
at 477d.
[21]
S v
Kibido
1998
(2) SACR 213
(SCA) at 216 g-h
;
S v Petkar
1998 (3) SA 571
(AD) at 574C.