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[2022] ZAECBHC 37
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Xamntwana v S (CA&R 12/2022) [2022] ZAECBHC 37 (8 November 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, BHISHO)
CASE NO.: CA&R
12/2022
Regional Court Case
No.: RCP 65/12
Matter heard on: 4
November 2022
Judgement delivered
on: 8 November 2022
In the matter between:
MANDLENKOSI
XAMNTWANA
APPELLANT
and
STATE
RESPONDENT
APPEAL JUDGMENT
CHITHI
AJ:
[1]
The
appellant
was
charged in the Zwelitsha
Regional
Court
with
two counts of rape in contravention of sections 1, 56 (1), 57, 58,
59, 60 and 61 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act
[1]
read
with section 51 (1) and Schedule 2 of the Criminal Law Amendment
Act
[2]
(‘CLAA’).
[2]
The rape incidents took place in December
2011 at or near Mgababo Locality, Peddie. The state alleged that the
appellant raped
two minor children
in the
presence of each other.
They were both eight years old
at the time.
[3]
The
appellant
was
found guilty as charged on both counts of rape on 18 October 2013.
On the same day, he was sentenced to undergo life imprisonment
with
both counts of rape taken as one for the purposes of sentence.
The appeal is only against the sentence. Section 309(1)
of the
Criminal Procedure Act
[3]
accords the appellant an automatic right of appeal.
[4]
The appeal is premised on the grounds that the trial court
erred in imposing an effective term of life imprisonment and as such
the sentence is shockingly inappropriate for the following reasons:
4.1
It disregarded the fact that no
viva
voce
medical evidence was led,
detailing the nature, extent and severity of physical injuries
inflicted on the victims;
4.2
It disregarded the fact that there was no
expert psychological assessment of the impact of the crime on the
lives of the victims,
as well as the prospects of their psychological
recovery;
4.3
It disregarded the fact that the appellant
was a first offender;
4.4
It over-emphasised the seriousness of the
offence over and above the personal circumstances of the appellant;
and
4.5
It erred in finding that there were no
substantial and compelling circumstances justifying the imposition of
a lesser sentence as
the rapes were not the worst types.
[5]
The appellant’s grounds of appeal
were further buttressed in the appellant’s heads of argument as
follows:
5.1
It was the duty of the sentencing court to
consider all the factors before imposing a sentence;
5.2
It was the duty of the sentencing court to
ensure that the prescribed sentence was proportionate to a particular
offence, having
taken into consideration all the circumstances;
5.3
The appellant did not have any previous
convictions when he was convicted; and
5.4
At the time of his conviction, the
appellant had been in custody for one year and ten months, awaiting
his trial.
[6]
All these factors, considered cumulatively,
should have led the trial court to conclude that there were
substantial and compelling
circumstances justifying the court to
depart from the prescribed minimum sentence of life imprisonment, or
so the appellant’s
counsel argued. He argued further that
a sentence of 18 years imprisonment, backdated to the date of his
sentence, would
be appropriate.
[7]
Mr Giyose, for the state, on the other
hand, contends that the trial court was correct in concluding that
there were no substantial
and compelling circumstances justifying a
departure from the prescribed minimum sentence of life imprisonment.
[8]
It is trite
that sentencing resides pre-eminently within the discretion of the
trial court. In
S
v Malgas,
[4]
Marais JA enunciated the test for interference by an appeal court as
follows:
“
A court exercising
appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the question
of sentence as
if it were the trial court and then substitute the sentence arrived
at by it simply because it prefers it.
To do so would be to
usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates
its exercise of
that discretion, an appellate Court is of course entitled to consider
the question of sentence afresh. In doing
so, it assesses sentence as
if it were a court of first instance and the sentence imposed by the
trial court has no relevance.
As it is said, an appellate Court
is at large. However, even in the absence of material
misdirection, the appellate court
may yet be justified in interfering
with the sentence imposed by the trial court. It may do so when the
disparity between the sentence
of the trial court and the sentence
which the appellate Court would have imposed had it been the trial
court is so marked that
it can properly be described as ‘shocking’,
‘startling’ or ‘disturbingly inappropriate’.”
[9]
The
Supreme Court of Appeal in
Malgas
was restating a test which always formed part of our law for many
years.
In
S v
Anderson
[5]
,
Rumpff
JA captured the essence of the duty and power of a court on appeal
concisely as follows:
Over the years our Courts
of appeal have attempted to set out various principles by which they
seek to be guided when they are asked
to alter a sentence imposed by
the trial court. These include the following: the sentence will not
be altered unless it is held
that no reasonable man ought to have
imposed such a sentence, or that the sentence is out of all
proportion to the gravity or magnitude
of the offence, or that the
sentence induces a sense of shock or outrage, or that the sentence is
grossly excessive or inadequate,
or that there was an improper
exercise of his discretion by the trial Judge, or that the interests
of justice require it. Some
of the cases in which these principles
are mentioned are referred to in the judgment of SELKE, J., in Rex v
Zulu and Others,
1951 (1) SA 489
(N) at p. 490.
A Court that interferes
with a sentence imposed by a lower court, itself exercises a
discretion when it imposes a new sentence and
there cannot,
therefore, be a ready-made test in the strict sense of the word. Nor
is it advisable to attempt to lay down a general
rule as to when the
Court's discretion to alter a sentence will be exercised, see Rex v
Sandig,
1937 AD 296
and Rex v Ramanka,
1949 (1) SA 417
(AD). The
decisions clearly indicate that a Court of appeal will not alter a
determination arrived at by the exercise of a discretionary
power
merely because it would have exercised that discretion differently.
There must be more than that. The Court of appeal, after
careful
consideration of all the relevant circumstances as to the nature of
the offence committed and the person of the accused,
will determine
what it thinks the proper sentence ought to be, and if the difference
between that sentence and the sentence actually
imposed is so great
that the inference can be made that the trial court acted
unreasonably, and therefore improperly, the Court
of appeal will
alter the sentence. If there is not that degree of difference the
sentence will not be interfered with.”
[10]
Once
again it is necessary to have regard to
what
was said
Malgas,
[6]
namely
that the enactment of the minimum sentencing legislation was an
indication that it was no longer ‘business as usual.’
A court no longer has a clean slate to inscribe whatever sentence it
thinks fit for specified crimes. It has to approach
the
question of sentencing conscious of the fact that the Legislature has
ordained life imprisonment as the sentence which should
ordinarily be
imposed, unless substantial and compelling circumstances were found
to be present.
[11]
The appellant testified in mitigation of his sentence.
He stated that he was 45 years old. He was previously married
and has two children, who were nine and seven years, respectively.
However, he had since separated from his wife, who left
with his
children. Immediately before his arrest on 6 January 2012, he
was unemployed. He attended school up to standard
10 or Grade
12. He suffered from an ailment which he was unwilling to
disclose to the court. Despite having been found
guilty of the
offences he continued to protest his innocence.
[12]
It is common cause that the appellant had been in custody ever
since his arrest on 6 January 2012. At the time of his
sentencing,
he was in custody awaiting his trial for a period of one
year and nine months.
[13]
Mr Dlamkile, who appeared on behalf of the appellant, during
the trial, found himself unable to address the court on the question
of whether there were substantial and compelling circumstances which
justified the court to deviate fromthe prescribed sentence
of life
imprisonment. He nevertheless urged the court to deviate from the
prescribed minimum sentence
[14]
It is a well-established principle that a
court should not deviate from the prescribed minimum sentence for
flimsy reasons and speculative
hypothesis favourable to the
offender. The question which one must ask is whether there were
any reasons which warranted
the learned regional magistrate to
deviate from the prescribed minimum sentence of life imprisonment. In
my view there was none.
[15]
On
the question of the lack of permanent physical injuries to the two
minor children, the provisions of Section 51(3) (aA)(ii) of
the CLAA
come to mind. They provide that w
hen
imposing a sentence in respect of rape, an apparent lack of physical
injury to the complainant shall not constitute substantial
and
compelling circumstances justifying the imposition of a lesser
sentence. Moreover, in
S
v Radebe
[7]
the
Court enunciated that the absence of physical injuries in a sexual
offence complaint does not mitigate against the seriousness
of the
crime.
[16]
In
interpreting the provisions of
Section
51(3) (aA) of the CLAA
our courts are consonant that while none of those circumstances may
on their own be regarded as substantial and compelling circumstances
justifying a departure from the prescribed sentence, but that each
one of them may be considered along with other factors cumulatively
could amount to substantial and compelling circumstances.
[8]
[17]
With that said, in my view the court a
quo
was correct that
there were no substantial and compelling circumstances justifying a
departure from the prescribed sentence.
[18]
Rape is one
of the most serious and brutal violations of the victim’s right
to privacy and bodily integrity. The Supreme Court
of Appeal
unequivocally expressed itself on this issue in
S
v SMM
[9]
thus:
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
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.
[19]
The remarks as set out above are apt in the instant matter.
What I consider as having
been most disturbing and aggravating in
this matter is the fact that the appellant raped the complainants one
in front of the other.
Therefore, not only did these minor
children experience the primary victimisation in the hands of the
appellant when he sexually
assaulted them, but they also suffered
secondary victimisation when they each had to watch the other being
sexually assaulted by
the appellant. The appellant had a knife
nearby which he used to threaten the children. They were threatened
to submit to
his demands and also to never disclose his name to
anyone including law enforcement agencies. This was a
calculated move
on the part of the appellant. The appellant
must have known that if he allowed one of his victims to leave, she
would have
raised the alarm and he would most likely have been caught
in the act.
[20]
The appellant was not even deterred by the fact that he had children
who were almost of
the same ages as the complainants. The young
faces of these complainants did not bring to mind the images of his
children.
[21]
The fact
that the appellant had spent some time in incarceration awaiting
trial, could not by itself impel the magistrate to impose
a lighter
sentence. Pre-sentence detention is but a factor to be considered
along with other factors, cumulatively, for it to amount
to
substantial and compelling circumstances.
[10]
[22]
The failure on the part of all role players in this matter, including
the prosecution,
defence, and the presiding judicial officer to
ensure that all relevant information was placed before court
regarding the appellant,
the circumstances surrounding the commission
of the offences, the victims’ circumstances including the
impact which the commission
of the offence had on the victims, is
regrettable in my view. However, to consider that fact on its
own as being favourable
to the appellant would be highly speculative
and undesirable considering the peculiar circumstances of this case
especially those,
I have highlighted in paragraphs 22 to 24 above.
I must therefore decline to interfere with what is an appropriate
sentence
merely on that basis.
[23]
Having regard to the appellant’s personal circumstances, the
severity of the crimes
and the interests of society, I am of the view
that the sentence of life imprisonment imposed on the appellant is
not disproportionate
and does not amount to an injustice. I can
therefore not find any misdirection on the part of the trial court
and we are consequently
not at liberty to interfere with the
sentence. It, therefore, follows that the appeal against sentence
must fail.
[24]
In the result, following order issues:
The appeal against the
sentence of life imprisonment is dismissed.
M. M. CHITHI
ACTING JUDGE OF THE
HIGH COURT
I
concur.
J. E. SMITH
JUDGE OF THE HIGH
COURT
APPEARANCES:
Counsel
for the Appellant :
Ms N. Dyantyi
Instructed
by
: Legal Aid, South
Africa
King Williamstown Justice
Centre
2
nd
Floor, Old
Mutual Building
Cnr Carthcart and Maclean
Street
King Williamstown
REF.: N. Dyantyi
Counsel
for Respondent :
Adv. Chumani Giyose
Office of the Director:
Public Prosecutions, Eastern Cape
5 Tourism House
Palo Avenue
Bhisho
Tel.: 065 913 7067
Email:
CGiyose@npa.gov.za
[1]
32
of 2007.
[2]
105
of 1997.
[3]
51
of 1977.
[4]
2001
(2) SA 1222
(SCA) para 12.
[5]
1964
(3) SA 494
(A) at 495.
[6]
Note
4 above paras 7 and 8.
[7]
2019
(2) SACR 381
(GP) at 396i - 397a.
[8]
S
v Nkawu
2009 (2) SACR 402
(ECG) para 17; S v SMM
2013 (2) SACR 292
(SCA) para 26.
[9]
Note 8 above
para
17.
[10]
S
v Mqabhi
2015 (1) SACR 508
(GJ) para 38.