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[2022] ZAKZPHC 30
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Khoza v S (AR60/2020) [2022] ZAKZPHC 30 (20 July 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR 60/2020
In
the matter between:
PATRICK
THEMBA KHOZA
APPELLANT
and
THE
STATE
RESPONDENT
Coram:
Mossop J and Reddi AJ
Heard:
20 July 2022
Handed
Down:
20
July 2022
ORDER
1
The appeal against the sentence is dismissed.
JUDGMENT
REDDI
AJ (MOSSOP J concurring)
Introduction
[1]
This is an appeal by Patrick Themba Khoza, brought under s 10 of the
Judicial Matters Amendment Act 42 of 2013, against sentence
only.
[2]
On 22 November 2019, the appellant, almost 60 years old at the time,
was convicted in the Regional Magistrates' Court, Ladysmith,
on one
count of rape of a ten-year-old girl. The conviction brought into
play the minimum sentence provisions of s 51(1), read
with Schedule 2
of the Criminal Law Amendment Act 105 of 1997 (‘the Act’).
The effect of s 51(1) is that on conviction,
the court is obliged to
sentence an accused who rapes someone under the age of 16 to life
imprisonment unless substantial and compelling
circumstances are
present to justify a deviation from the prescribed penalty.
[3]
In this case, the trial court did not find any substantial and
compelling circumstances and sentenced the appellant to imprisonment
for life.
The
charge and plea
[4]
The allegation was that on or about 25 November 2018, the appellant
had raped the complainant at his home. The girl had been
sent by her
uncle to the appellant's house to fetch a borrowed container.
[5]
The appellant gave the complainant the container but asked her to
return to his house once she had returned the item to her
uncle.
After running the errand, the girl, accompanied by a four-year-old
female playmate, returned to the appellant's home, where
a sick woman
living in the house asked her to go to a shop to buy pain medication.
When the complainant was about to set off to
the shop, the appellant
gave her some money to buy herself and her small friend a treat.
[6]
Upon returning from the shop, the girl handed the sick woman her
medication and told the appellant they were leaving. He, however,
asked the girl and her playmate not to leave. The appellant then took
the children into the dining room, gave them a cell phone
to play
with, later took off the complainant's panties, fetched a blanket
from the bedroom, threatened the girl not to scream,
and raped her in
the presence of her young friend.
[7]
The complainant did not report the rape to anyone at that time.
Several months later, the incident came to light when the playmate
related the details of the rape to her mother, who then informed the
complainant's mother of the incident.
[8]
The complainant was medically examined by a doctor whose report
recorded that the girl's hymen was not intact.
[9]
The appellant was charged with rape and pleaded not guilty.
The
conviction and sentence
[10]
In its assessment of the evidence before it, the trial court found
the appellant a liar and dismissed his version as false.
Not so with
the complainant, who, despite her tender age, the court found to be
an impressive witness who gave a clear and coherent
account of the
details surrounding the rape. The evidence of one of the defence
witnesses also corroborated material aspects of
the complainant's
testimony. The court convicted the appellant of rape and sentenced
him to imprisonment for life.
[11]
Although the provisions of s 10 of the Judicial Matters Amendment Act
entitle the appellant to appeal against both conviction
and sentence,
his appeal lies against the sentence only.
Appellant's
submission on appeal against sentence
[12]
The main thrust of the appeal is that the trial court had erred in
not finding substantial and compelling circumstances present
to merit
the imposition of a lesser sentence than the minimum prescribed by
the Act. In support of this contention, counsel for
the appellant, Ms
Hulley
, made two core submissions:- In sentencing the
appellant, the trial court (i) had not given due consideration to the
appellant's
personal circumstances; and (ii) had not taken into
account differences in the degree of seriousness in rapes which in
this case
was reflected by the fact that the appellant had not
inflicted additional violence on the complaint. Ms
Hulley
contended further that as a consequence of these lapses, the
sentence pronounced upon the appellant was so grossly inappropriate
as to induce a sense of shock. Moreover, the element of mercy was
absent in the imposed sentence.
[13]
Concerning the first ground, Ms
Hulley
advanced the following
as factors which the sentencing court ought to have considered as
constituting substantial and compelling
circumstances as envisaged by
s 51(1) of the Act:
(a)
The appellant was a mature person aged 60 at the time
of sentencing.
(b)
He was a first offender.
(c)
He was married with adult children.
(d)
He had sustained leg and head injuries from an accident
on 13
December 2017.
(e)
He was unemployed and received a monthly government grant
of R1 700,
which he used to support his family.
(f)
The trial court had not considered the elements
of deterrence,
retribution and rehabilitation.
(g)
The appellant had had this case looming over his head
for 20 years
before it was finalised.
[14]
Before proceeding further, I must point out the incorrectness of the
last statement that this case had been looming over the
appellant for
20 years before finalisation. It is common cause that the rape
occurred on or about 25 November 2018, for which the
appellant was
convicted and sentenced on 22 November 2019. The case took a year to
finalise and an additional two-and-a-half years
to reach this appeal
court. Clearly, counsel's submission of a total of 20 years is wrong
and points to a regrettable level of
inattention in the drafting of
the appellant's heads of argument.
[15]
I move now to the second ground of Ms
Hulley's
submission that
based on the authority of
Rammoko v Director of Public
Prosecutions
2003 (1) SACR 200
(SCA), in rape matters,
differences in the degree of seriousness must be given consideration
when deciding on an appropriate sentence.
The obvious implication of
this submission is that since the appellant had not inflicted on the
complainant additional violence
to that inherent in the act of rape,
the less odious nature of his conduct deserved a lesser sentence than
the prescribed minimum.
Assessment
of the arguments
[16]
That this court has the power to alter a sentence on appeal is
undisputed. However, this is not an unfettered power.
[1]
The gold standard set in
S
v Malgas
2001 (1) SACR 469
(SCA) para 12, now commonplace, is that an
appellate court may only alter a sentence if that which the trial
court imposed was
shockingly severe, or inappropriate, or where it
had materially misdirected itself in carrying out its sentencing
function. This
principle was reiterated by Maya DP in
S
v Hewitt
2017 (1) SACR 309
(SCA) para 8, that before an appellate court can
interfere with the sentencing discretion of the court
a
quo
, it
'must be satisfied that the trial court committed a misdirection of
such a nature, degree and seriousness that shows that it
did not
exercise its sentencing discretion at all or exercised it improperly
or unreasonably…'
[17]
In instances where there is a basis for a sentencing court to find
the presence of substantial and compelling circumstances
justifying a
deviation from the prescribed sentence, but it fails to so conclude,
this failure would constitute a material misdirection
deserving of
the appeal court's interference.
[18]
Accordingly, before this court can interfere with the trial court's
sentence in this matter, it would first have to be satisfied
that the
appellant's personal circumstances conjoined with the fact that he
had not inflicted additional violence on the complainant
amounted to
substantial and compelling circumstances. Should this court find
substantial and compelling circumstances to be present,
then
evidently, the sentencing court had misdirected itself in not
considering these factors when it sentenced the appellant to
life
imprisonment.
[19]
However, as was held in
S v PB
2013 (2) SACR 533
(SCA) para
20, an appellate court is not confined to interfering only if it
identifies a material misdirection or failure of justice.
Instead,
the focus on appeal is whether the facts that the sentencing court
had considered are substantial and compelling.
[20]
Appropriately, there has been no uniform definition or interpretation
of the term 'substantial and compelling circumstances.'
The peculiar
conditions of each case play a pivotal role in determining if
substantial and compelling circumstances are present.
Therefore,
courts are not fettered in determining what factors constitute such
substantial and compelling circumstances.
[21]
Nor are they bound by precedent when determining an appropriate
sentence with regard to minimum sentences, especially in cases
of
child rape. This was the strongly expressed sentiment of the Supreme
Court of Appeal in
S v PB
para 16, where Bosielo JA stated
that if a court were to follow precedent slavishly, notwithstanding
of a similar case, it would
be acting inappropriately and failing in
its duty to use its discretion to consider sentencing untrammelled by
the sentences imposed
by another court. To reinforce its stance, the
appeal court, at para 17, cited with approval Van den Heever JA's
dictum in
S v D
1995 (1) SACR 259
(A) at 260
e
, that
‘decided cases on sentence provide guidelines not
straightjackets.’
[22]
I turn now to the assessment of whether the factors raised by the
appellant could conceivably be regarded as amounting to substantial
and compelling circumstances to justify deviating from the minimum
sentence of life imprisonment. The appellant's age has been
cited as
a mitigating factor, as have his head and leg injuries sustained a
year prior to the rape incident. In my view, neither
factor is
defensible. At 60 years of age, the appellant would have been
perceived as an elder in his community. This is reflected
in the
manner of address by the complainant, who referred to him as
Mkhulu,
meaning grandfather. Society's expectation of such an elder is that
he would promote the wellbeing of the children and others in
the
community and take a strictly paternal interest in girls of the
complainant's age, who was ten at the time. Instead of displaying
protective decorum towards the girl, the appellant preyed on the
child and saw her as nothing more than a sexual vessel. That the
appellant's actions have irrevocably damaged the child's life and
future is evident from her victim-impact statement. Therefore,
in the
context of this case, the appellant's age is nothing less than an
aggravating factor. Moreover, the leg and head injuries
he sustained
a year before the rape did not make him so infirm as to be incapable
of raping the complainant. Nor has any evidence
been tendered to show
how or why these non-debilitating injuries are relevant in assessing
whether substantial and compelling circumstances
were present. Apart
from a possible attempt to tug at the court's heartstrings, I fail to
understand the relevance of this information
to the issue of
substantial and compelling circumstances.
[23]
The appellant's status as a husband and father of adult children was
also proffered in support of deviating from the prescribed
minimum
sentence. Likewise, the fact that he was unemployed and supported his
family from the government grant he received monthly.
None of these
factors is mitigatory. The appellant's children are adults and,
therefore, not entitled to his financial support.
Moreover, the fact
that the appellant is a married family man does not, in any way,
ameliorate the situation as the expectation
of a person in his
position is exemplary behaviour and not the despicable conduct he
exhibited in raping a child.
[24]
The appellant is a first offender. While this is a mitigating fact,
its influence on the sentence can only be determined later
on, when
the conspectus of all relevant factors are weighed in assessing if
substantial and compelling circumstances are present.
[25]
I now turn to the appellant's second submission that the rape was not
the worst kind as he had not inflicted additional violence
on the
complainant. The argument is that the lack of additional violence is
a substantial and compelling circumstance which justifies
a deviation
from the prescribed minimum sentence. There are several hurdles that
the appellant must overcome to succeed with this
argument. First, the
submission that there are degrees of rape ignores that rape in itself
is a most heinous act that equates with
the most debasing and
invasive attacks on a person's bodily integrity and mental wellbeing.
Worst still with child rape. The emotional
devastation and trauma
wreaked on the survivors of child rape risk the loss of a fulfilling
life for these children owing to the
long-term consequences of
rape.
[2]
That child rape is a
special species of crime deserving of the strongest possible censure
finds support in Davis J's statement
in
S
v Jansen
1999 (2) SACR 368
(C) paras 378G – 379A that:
'Rape
of a child is an appalling and perverse abuse of male power. It
strikes a blow at the very core of our claim to be a civilised
society…The community is entitled to demand that those who
perform such perverse acts of terror be adequately punished and
that
the punishment reflect the societal censure. It is utterly terrifying
that we live in a society where children cannot play
in the streets
in any safety; where children are unable to grow up in the kind of
climate which they should be able to demand in
any decent society,
namely, in freedom and without fear. In short, our children must be
able to develop their lives in an atmosphere
which behoves any
society which aspires to be an open and democratic one based on
freedom, dignity and equality, the very touchstones
of our
Constitution.'
[26]
Legislative acknowledgement that rape per se deserves the imposition
of the most severe punishment possible is reflected in
the rape
offences provisions of s 51 of the Act, more especially in s
51(3)(
a
A)(ii). This provision rules out an apparent lack of
physical injury to the victim as a basis for concluding that
substantial and
compelling circumstances are present. According to
Spilg J in
S v Radebe
2019 (2) SACR 381
(GP) para 33, the
provision indicates that:
'The
legislature…understood that, aside from actual physical
injury, or threat of physical injury, rape per se is a grievous
assault, constitutes a gross violation of bodily integrity, and
degrades, humiliates and renders the victim vulnerable. The
legislature
would also have been aware of the overwhelming body of
professional literature on both the immediate and long-term emotional
and
psychological trauma and degradation generally experienced by
rape victims.'
[27]
The minimum punishment of life imprisonment prescribed for child
rape, regardless of the infliction of additional violence,
makes
clear that Parliament deems this offence a most egregious instance of
rape. It also serves as an unequivocal confirmation
of 'the gravity
with which the legislature considers how the rape of a child will
impact on his or her general wellbeing and development,
as well as on
the interests of society, and its revulsion towards such a crime.'
[3]
[28]
In my assessment of all relevant aspects in this case, several
aggravating factors outweigh the sole mitigatory fact –
that
the appellant is a first offender. In brief, the aggravating factors
are that the appellant acted with singular premeditation
when he
planned to rape the complainant; he raped a ten-year-old child; he
did so in the presence of a four-year-old girl who,
evidently, was so
affected by what she saw that she recalled and related the incident
to her mother several months later; and the
appellant showed no
remorse for his actions or compunction for subjecting the complainant
to the trauma of having to testify to
her rape in court.
[4]
[29]
The appellant's submission that the court should look at him
favourably because he did not inflict additional violence on the
complainant is without merit for the reasons already mentioned above.
Based on these reasons, I can find no justifiable basis to
deviate
from the provisions of s 51(3)(
a
A)(ii) of the Act. Unless a
constitutional challenge is raised to the exclusions listed in the
provisions of s 51(3)(
a
A), and none has, the appellant does
not have a basis to rely on the absence of the infliction of
additional violence as constituting
substantial and compelling
circumstances.
[30]
The obligation that courts bear to respect the legislature's will is
reflected in Ponnan J's statement in
S v Matyityi
2011 (1)
SACR 40
(SCA) para 23, that:
'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.'
[31]
In the circumstances of this case, I cannot find any 'truly
convincing reasons' for departing from the prescribed minimum
sentence of life imprisonment. In my view, the sentencing court was
correct in finding that no substantial and compelling circumstances
were present to justify a deviation from the imposition on the
appellant of a sentence of life imprisonment.
Order
[32]
The appeal against the sentence is dismissed.
REDDI
AJ
I
agree and it is so ordered.
MOSSOP
J
[1]
S v
Rabie
1975 (4) SA 855 (A).
[2]
See also
S
v Masuku
2019 (1) SACR 276
(GJ) para 30.
[3]
S v
Radebe
para 39.
[4]
Compare for instance
S
v JN
2020 (2) SACR 412
(FB), where the appellant had been under the
influence when he raped the complainant and he showed remorse by
pleading guilty.
The court in this case substituted the sentence of
life imprisonment with 10 years’ imprisonment.