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[2022] ZAECGHC 14
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Magoda v S (CA&R 153/2021) [2022] ZAECGHC 14 (23 February 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, GRAHAMSTOWN
CASE
NO. CA&R 153/2021\
S.
MAGODA
Appellant
and
THE
STATE
Respondent
JUDGMENT
NQUMSE
AJ:
Introduction
[1]
The
appellant was convicted in the Regional Court of East London of two
counts of rape in terms of section 3 of the Criminal Law
(Sexual
Offences and Related Matters) Amendment Act 32 of 2007 (SORMA) and
one count of Sexual Assault in terms of the section
5 of the SORMA.
On 9 December 2020 he was sentenced to life imprisonment for each of
the rape counts and 5 years imprisonment for
the count of sexual
assault.
[2]
The
first rape count and the count of Sexual Assault were committed on a
12 year old girl SK, and the second rape count was perpetrated
on a 5
year old girl UK. Because the victims were both under the age of 16
years, the provisions of section 51(1) of the Criminal
Law Amendment
Act 105 (CLAA) finds application. This section provides that a person
who has been convicted of an offence referred
to in Part I of
Schedule 2 of the Act shall be sentenced to life imprisonment unless
there exist substantial and compelling circumstances
justifying a
lesser sentence. Part I of Schedule 2 in terms refers to rape as
contemplated in section 3 of the CLAA where
inter
alia
,
the victim is under the age of 16 years old.
Facts
[3]
The
background facts are briefly that the appellant who is married to the
mother of the two victims referred to above as SK and
UK, lived
together in a one room shack in the informal settlements of East
London. From time to time the mother of the two girls
would leave
them alone to sleep with the appellant in the same bed whilst she
pays overnight visits in a nearby township.
[4]
It
appears that the two girls had been subjected to a continuous sexual
abuse by the appellant largely due to their mother’s
absence,
though at times the sexual abuse according to the victims, would
happen even when she was present. The specific incidents
that led to
the conviction of the appellant were presented in the testimony of
the victims as follows.
[5]
During
January 2018 to 24 March 2018 the appellant sexually abused SK who
was 10 years old at the time by penetrating her per vaginum.
SK
testified that on 24 March 2018 following a string of similar abuse,
the appellant with whom she was sleeping with, together
with her
younger sister UK, undressed her pantie and ordered her to hold and
play with his penis. Thereafter penetrated her vaginally
on three
occasions during the same night. Due to the unbearable pain she was
enduring, she cried thereby attracted the attention
of the
neighbours’/community members who came to their rescue and who
at the same time summonsed their mother and the police
to whom they
reported these incident. After they reported the rape to the members
of the community they were taken by the police
to hospital for
examination and thereafter were removed from their parents to live at
a place of safety.
[6]
The
child, UK who was 5 years old at the time of the incident confirmed
what had happened to her sibling on the night of the 24
March 2018.
She also said it was not the first time for her to witness what was
done to her sister by the appellant.
[7]
She
further testified that at the night in question the appellant
undressed her, placed her on top of him and inserted his penis
into
her vagina. Further, the appellant had done this to her previously
but did not report it to her mother owing to threats that
were made
by the appellant, that if she were to report him, he would kill her.
[8]
The
medical evidence that was introduced through a forensic nurse
confirmed that both victims had been sexually molested and rape
cannot be excluded.
[9]
The
appellant confirmed in his evidence that both children belong to his
wife and that he played a role of a father in their lives.
He denied
the allegations against him and surprised as to why the children with
whom he conducted good relations would falsely
implicate him.
[10]
It
is on the bases of the facts above that the court rejected the
appellant’s version and found him guilty on all the three
counts.
Grounds
of Appeal
[11]
The
grounds of appeal as they appears in the notice of appeal which form
the bases of the argument on sentence and further substantiated
is in
the heads of argument can be summarised as follows:
11.1.
the
trial court failed to properly consider the personal circumstances of
the appellant which accumulatively constitute substantial
and
compelling circumstances which warrant a deviation from the
prescribed minimum sentence.
11.2.
the
trial court erred by not heeding the relevant authorities that
support the imposition of a lesser sentence and as result of
such
failure the sentence imposed on the appellant is grossly
disproportion to the crime;
11.3.
the
trial court erred by not taking into account the fact that there was
no form of violence or physical assault and consequential
injuries
suffered by the complainants.
11.4.
the
court erred in not taking into account the period of two years which
the appellant spent awaiting trial.
11.5.
the
trial court erred in failing to consider the youthfulness of the
complainant(s) who were very young with a chance to overcome
their
ordered.
11.6.
the
trial court failed to take into account the possible rehabilitation
of the appellant since he was a first offender in respect
of sexual
offences and the court erred in failing to order that the sentences
should run concurrently.
Discussion
[12]
The
law is settled on when an appellate court may interfere with the
sentence imposed by a lower court. In
S
v Rabie
[1]
Holmes
JA enunciated the principle as follows:
“
in
every appeal against sentence, whether imposed by a Magistrate or a
Judge, the court hearing the appea
l
–
(a)
Should
be guided by the principle that punishment is “pre-eminently a
matter for the discretion of the trial court”;
and
(b)
Should
be careful not to erode such discretion; hence the further principle
that the sentence should only be altered if the discretion
has not
been judicially and properly exercised. The test under (b) is whether
the sentence is vitiated by irregularity or misdirection
or is
disturbingly inappropriate.”
[13]
In
S
v Malgas
[2]
,
Marais JA, dealing with the same principle under the minimum sentence
legislation stated thus:
“
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”.
[14]
However,
it is also trite that an appellate court can interfere with a
sentence even where there has been no misdirection but the
sentence
is disproportionate to the crime (see
Sadler
2000 (1) SACR 331
(SCA) at 334d – 335g
).
[15]
The
minimum sentences prescribed by the CLAA have been ordained to be
sentences that must ordinarily be imposed unless the court
acting in
terms of section 51 (3) of the CLAA finds substantial and compelling
circumstances which justify a departure from imposing
the prescribed
sentence.
[3]
[16]
Before
us, counsel for the appellant submitted that he has nothing further
to add to his heads of argument. Similarly counsel for
the state
submitted that he stands by the submissions made in his heads of
argument. It is therefore necessary to assess whether
the trial court
misdirected itself in finding that there were no substantial and
compelling circumstances that warrant a lesser
sentence than that
prescribed.
[17]
In
Malgas
[4]
the court set out how a court should conduct an enquiry as to the
presence or otherwise of substantial and compelling circumstances
as
follows:
“
[18]
Here lies the rub. Somewhere between these two extremes the intention
of the legislature is located and must
be found. The absence of any
pertinent guidance from the legislature by way of definition or
otherwise as to what circumstances
should rank as substantial and
compelling or what should not, does not make the task any easier.
That it has refrained from giving
such guidance as was done in
Minnesota from whence the concept “substantial and compelling
circumstances” was derived
is significant. It signals that it
has deliberately and advisedly left it to the courts to decide in the
final analysis whether
the circumstances of any particular case call
for a departure from the prescribed sentence. In doing
so, they are required
to regard the prescribed sentence as being
generally appropriate for crimes of the kind specified and enjoined
not to depart from
them unless they are satisfied that there is
weighty justification for doing so. A departure must be
justified by reference
to circumstances which may be seen to be
substantial and compelling as contrasted with circumstances of little
significance or
of debatable validity or which reflect a purely
personal preference unlikely to be shared by many”
.
[18]
I
now turn to consider the personal circumstances of the appellant
which were submitted in the trial court through his legal
representative
that the appellant was 46 years old, married to the
mother of the two victims. He went to school up to standard 6. At the
time
of his arrest he was gainfully employed earning an amount of
R3600 per month. He has no previous convictions.
[19]
In
aggravation the prosecution presented the victim impact statements in
respect of both the victims. Both children during their
interview
opted to express their feelings and the impact the ordeal has had on
them by a sketch of drawings. The child SK, further
wrote the
following “
before
the incident I liked nice food like meat, banana, liked paying ball
with other children. Like watching television at home
together with
my mother. We would be happy and loved. After the incident I am a
child who likes crying. I do not trust men. A child
who is always
sad, who likes to isolate herself and be alone and not play with
other children. I always think about what happened
to me which was
done to me by Sapholwakhe and I would feel like crying, scream and
cry. Thinking that I was also victimised by
my mother from Nakendi
”
(
sic
)
[20]
The
second child UK drew a sun and wrote next to it in Isixhosa “
Ilanga
”
she also drew a person with tears on her face and wrote next to the
picture of the crying person “
I
am still crying and I am angry
”.
Contrary to any doubt one may have on the impact the incident has had
on the victims, their drawings and statements is
undeniable evidence
that they are emotionally scared as a result of the rape.
[21]
It
appears clearly from the record that the learned magistrate was alive
to the factors he should take into account before imposing
the
sentence. The learned magistrate expressed himself pointedly that he
took into account the marital status of the appellant
who is a first
offender and who has been in custody awaiting trial since his arrest.
On the other hand he took into account the
aggravating circumstances
which include the seriousness of the offence which was perpetrated by
someone who was in a position of
trust.
[22]
He
also took into account the age of the victims and the impact of the
crime on them. In keeping with the triad as propounded in
S
v Zinn
[5]
,
he took into account the interest of society. In expanding on this
element, he expressed himself in the following manner “
There
is no doubt that the members of our society expect protection from
our courts, especially protection of children
”.
[23]
Following
his value judgment the learned magistrate found that the appellant
did not succeed in showing substantial and compelling
circumstances
that would warrant him to deviate from the prescribed minimum
sentence and thus imposed imprisonment for life in
respect of each of
the two counts of rape.
[24]
In
S
v Jansen
[6]
rape was said to be “
an
appalling and perverse abuse of male power”
.
The
court went on to say “[i]t is sadly to be expected that the
young complainant in this case already burdened by a most
unfortunate
background and who had, notwithstanding these misfortunes, performed
reasonably well at school, will now suffer added
psychological trauma
which resulted in a marked change of attitude and of school
performance. The community is entitled to demand
that those who
perform such perverse act of terror be adequately punished and that
the punishment reflect the societal censure.
It is utterly terrifying
that we live in a society whose 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 touchstone of our
Constitution”
[25]
Since
the lament in the judgment cited above and many other similar
comments made in various judgments that followed thereafter,
the
situation of abuse of young children has not changed but instead it
is a debilitating situation with no end in sight. Not only
are young
children at risk and a prey when they are playing in the streets or
outside their homes. Sadly, they are made to suffer
the worst forms
of violence including sexual violence at the hands of people who are
not only close or mere relatives to them,
but from those who are
entrusted with the responsibility of parenthood and who are supposed
to protect them.
[26]
In
this matter the appellant fulfilled that role of being a parent
albeit a stepfather. What makes his conduct even more reprehensible
is the repeated times he sexually abused his victims. His denial of
guilt in the face of overwhelming evidence against him, subjecting
the children to a secondary abuse of having to testify and relive
their experience is indicative of someone who does not take
responsibility for his actions and therefore shows no remorse.
Counsel for the appellant sought to suggest that owing to the absence
of physical injuries this is not the most form of rape, I disagree.
That the rape happened over a period of time and repeatedly;
The
invisible scars that are demonstrated in the drawings of the victim
impact statements and the explanations accompanying such
drawings all
point to one conclusion, that the hurt that is not visible to the
naked eye and the anger that is harbored by the
children indicates
the seriousness of the violation of their human dignity. In
S
v C
[7]
it was stated that: “
A
rapist does not murder his victim. He murders herself respect and
destroys her feeling of physical and mental integrity and security.
His
monstrous
deed often haunts his victims and subjects her to mental torment for
the rest of her life, a fate worse than loss of life
”
[27]
In
N
v T
[8]
rape was described as a horrifying crime and a cruel and selfish act
in which the aggressor treats with utter contempt the dignity
and
feelings of the victim. In
S
v Chapman
[9]
The court said it is a humiliating, degrading and brutal invasion of
the privacy, the dignity and the person of the victim.
[28]
It
is my view that it is in circumstances of this type of crime that the
expression in
S
v Swart
[10]
is apposite where the court said “
in
our law retribution and deterrence are proper purposes of punishment
and they must be accorded due weight in any sentence that
is imposed.
Each of the elements of punishment does not require to be accorded
equal weight but instead proper weight must be accorded
to each
according to the circumstances. Serious crimes will usually require
that retribution and deterrence should come to the
fore and that the
rehabilitation of the offender will consequently play a relatively
smaller role”.
[29]
I
now turn to deal with the failure of the learned magistrate to order
the sentences to run concurrently.
[30]
A
good starting point is the provisions of section 280 (1) of the
Criminal Procedure Act
[11]
which provides:
“
when
a person is at any trial convicted of two or more offences or when a
person under sentence or undergoing sentence is convicted
of another
offence, the court may sentence him to such several punishments for
such offences or, as the case may be, to the punishment
for such
other offence, as the court is competent to impose”
[31]
In
terms of section 39 (2) (a) (1) of the Correctional Services Act
[12]
provides:
“
`Subject
to the provisions of paragraph (b), a person who receives more than
one sentence of incarceration or receives additional
sentences while
serving a term of incarceration, must serve each such sentence, the
one after the expiration, setting aside or
remission of the other, in
such order as the National Commissioner may determine, unless the
court specifically directs otherwise,
or unless the court directs
that such sentences shall run concurrently but –
(i)
Any
determinate sentence of incarceration to be served by any person runs
concurrently with a life sentence or with sentence of
incarceration
to be served by such person in consequence of being declared a
dangerous criminal;
(ii)
One
or more life sentences and one or more sentences to be served in
consequence of a person being declared a dangerous criminal
also run
concurrently.
[32]
It
therefore follows that any determinate sentence of incarceration in
addition to life imprisonment is subsumed by the latter.
Accordingly,
the sentence in Count 2 and Count 3 are automatically subsumed by the
sentence of life imprisonment imposed in Count
1.
(see generally S v
Nkosi and others
2003 (1) SACR 91
para 7-9)
[33]
In
the result I find no misdirection in the sentences imposed by the
learned magistrate nor do I falter him in not ordering the
sentences
to run concurrently. Accordingly the appeal must fail.
Order
[34]
In
the result the following order is made:
The
appeal is dismissed and the conviction and sentences imposed are
confirmed.
_________________________
M.V.
NQUMSE
ACTING
JUDGE OF THE HIGH COURT
I
agree.
________________________________
M.J.
LOWE
JUDGE
OF THE HIGH COURT
APPEARANCES
Counsel
for the appellant
:
Adv. Sojada instructed by
the Legal Aid
Board,
Grahamstown.
Counsel
for the respondent
:
Adv Soga,
instructed by the Director of
Public
Prosecution, Grahamstown.
Date
of hearing
: 23 February 2022
Date
of delivery of judgment
:
23 February 2022
[1]
1975 (4) SA 855
(A) at 857 D - F
[2]
200 (1) SACR 469
(SCA) at paragraph 12
[3]
S v Malgas fn2
[4]
Ibid paragraph 18
[5]
S v Zinn
1969 (2) SA 537
(A) and S v Rabbie 1975
(4) SA 855 (A)
[6]
1999 (2) SACR 368
(C) at 378 a – 379a
[7]
1996 (2) SACR 181
at 186
[8]
1994 (1) SA 862
(C) at 864 g
[9]
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA);
1997 (3) SA 341
at 345A – B [1997] 3
ALL SA 277 (SCA)
[10]
2004 (2) SACR 370
(SCA) at 378B - C
[11]
Act 57 of 1977
[12]
Act 111 of 1998