About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Grahamstown
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Grahamstown
>>
2022
>>
[2022] ZAECGHC 20
|
|
S v Hendricks (27/2021) [2022] ZAECGHC 20 (24 February 2022)
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, GRAHAMSTOWN)
Case
no: 27/2021
NOT
REPORTABLE
In
the matter between
THE
STATE
and
NICHOLAS
HENDRICKS
JUDGMENT
GOVINDJEE,
J
Background
[1]
Nicholas Hendricks (‘Hendricks’) was convicted
on 1
February 2022 of the crimes of attempted murder and rape in
contravention of
section 3
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007
,
[1]
involving the infliction of grievous bodily harm.
[2]
On the charge of attempted murder, it was found that Hendricks
unlawfully
and intentionally attempted to kill M.. M… (‘the
complainant’) by unlawfully and intentionally hitting, kicking
and stabbing her with a knife and fork all over her body repeatedly
during the period 13 to 17 September 2020 in Alexandria. On
the
charge of rape, it was found that Hendricks unlawfully and
intentionally committed an act of sexual penetration with the
complainant,
who was 18 years of age at the time, by inserting the
handle of a mop into her vagina without her consent and against her
will.
The Director of Public Prosecutions relied on
s 51(1)
, read
with
Part I
of Schedule 2 of the
Criminal Law Amendment Act, 1997
2
in seeking life imprisonment for the rape conviction, on the basis
that the rape involved the infliction of grievous bodily harm.
A
court that is satisfied that substantial and compelling circumstances
exist to justify the imposition of a lesser sentence than
that
prescribed by the Minimum Sentences Act must impose a lesser
sentence, entering the relevant circumstances on the record of
proceedings.
3
[3]
Section 276
of the
Criminal Procedure Act, 1977
4
provides
for the sentences which courts can impose. The imposition of sentence
is pre-eminently a matter for the discretion of
the trial court,
which is free to impose whatever sentence it deems appropriate
provided it exercises its discretion judicially
and properly.
Attempting to do so remains an unenviable task. The general purpose
of imposing a sentence is fourfold: retributive,
preventative,
rehabilitative (reformative) and to act as a general deterrent.
5
While the retributive aspect tends to dominate, courts are enjoined
to temper the punishment with a measure of mercy.
6
[4]
In this regard, the sentencing court must attempt to achieve a
balance
in its sentence, and not approach its task in a spirit of
anger, but in one of equity. Hastiness, the striving after severity
and
misplaced pity are out of place, as are so-called exemplary
sentences designed to use the crime to set an example for others in
society.
7
Still, more serious cases clearly require
severity, with a certain moderation of generosity, for the
appropriate balance to be
struck. The object of sentencing is not to
satisfy public opinion, but to serve the public interest.
8
[5]
In the final analysis, the well-known triad of factors to be
considered
consists of the crime, the offender and the interests of
society,
9
and these factors must be applied, in accordance
with
S v Malgas
,
10
to consider whether substantial
and compelling circumstances exist to deviate from any prescribed
minimum sentence.
11
In
S v Matyityi
,
12
Ponnan JA held that Parliament:
‘…
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. Courts are not free to subvert the
will of the legislature by resort to vague, ill-
defined concepts…and
ill-founded hypotheses that appear to fit the particular sentencing
officer’s personal notion
of fairness. Predictable outcomes,
not outcomes based on the whim of an individual judicial officer,
[are] foundational to the
rule of law which lies at the heart of our
constitutional order’.
[6]
In terms of
s 280(1)
of the CPA, sentencing courts have the
jurisdiction to impose a separate sentence for each conviction, as it
would have done if
all the offences had been tried separately, before
considering the cumulative effect of multiple sentences and the
appropriateness
thereof.
13
In practice, a court should:
14
a.
determine the appropriate sentence for each individual offence;
15
b. determine
what an appropriate total punishment would be for the totality of the
criminal behaviour; and
c. take
such measure or measures as are required for the sentence determined
in (b)
above to become the effective sentence.
Nature of the crimes and
surrounding circumstances
[7]
The facts of this matter, set out in some detail in the judgment,
sketch
a picture of abhorrent behaviour by Hendricks, including the
rape described. In
S v Vilakazi
,
16
the Supreme
Court of Appeal confirmed that rape is a repulsive crime. In this
case, as in case such as
S v Mofokeng
,
17
the rape
was accompanied by an ‘inhumane infliction of pain causing her
to suffer…’. Hendricks, on the basis
of flimsy rumours
of the complainant’s infidelity, repeatedly hit, kicked,
tramped, stabbed, cut and pierced her body over
the course of a few
days, so that a medical practitioner confirmed that she suffered from
Crush Syndrome and would have passed
away if not taken to hospital.
The complainant’s degradation included having the word ‘POES’
carved into her
forehead by a person she loved. When Hendricks became
concerned that the complainant had informed her landlady about the
identity
of her assailant, he again hit her and stabbed her in the
head with a fork, tied her hands, threatened to rape her and then
proceeded
to do so with a broken mop handle, by inserting this object
into her vagina, taking it out and repeating this twice.
[8]
This accepted evidence clearly constitutes rape involving the
infliction
of grievous bodily harm.
18
The court in
S v
Thole
19
noted that one of the dictionary meanings of
the word ‘involved’ is: ‘to include something as a
necessary part
of an activity, event or situation’. In
S v
Rabako
, Musi J equated ‘grievous’ with ‘actually
serious’, as follows:
20
‘
In essence then,
if the injury inflicted by the accused on the body of the rape
survivor is serious, then it involves the infliction
of grievous
bodily harm. A serious injury at one extreme may mean an injury so
serious as to endanger life, necessitate hospitalization
or result in
permanent loss of bodily or mental faculty; at the other, it may
include a wound that heals rapidly. It should not
be a trivial or
insignificant injury…Whether an injury is serious will depend
on the facts and circumstances of every case’.
[9]
As such, the rape is of the kind detailed in
Part I
of Schedule 2 of
the Minimum Sentences Act, so that a minimum sentence of life
imprisonment is applicable unless the court is satisfied
that there
are substantial and compelling circumstances for a lesser sentence.
21
[10]
As part of consideration of an appropriate sentence, it is also
important to consider
the effect of the crimes on the victim. In this
case the evidence was that the complainant remained in hospital for
approximately
two weeks and underwent an operation. She is unable to
stand for long periods of time, which affects her ability to work,
and also
experiences shortness of breath. The scars from her stabbing
remain visible, which has affected her emotionally, so that it was
a
long time before she was comfortable being seen in public. She
required the assistance of a psychologist for three to four months,
and took sleep- and stress-related medication. The complainant
testified that she no longer has any interest in men or relationships
as a result of her ordeal. She understandably became emotional at
times during her testimony, notably when recollecting the word
carved
on her forehead and the way she was raped.
Hendricks’
circumstances and interests
[11]
Hendricks testified in mitigation of sentence. He is 27 years of age,
married with
two boys aged four and six. His highest education level
is grade 11. He was living with his wife and one of his sons prior to
his
arrest (on 17 September 2020) and was the owner of a hair salon,
earning approximately R3500 per month.
[12]
Hendricks’ parents passed away in traumatic circumstances when
he was two years
of age: his father shot his mother, aunt and then
himself, while he was in his mother’s arms and he had never
received counselling
for this. He had no previous convictions or
pending matters and had pleaded guilty to the attempted murder
charge, also conveying
an apology to the complainant via his counsel
during her cross-examination. He maintained his innocence in respect
of his rape
conviction. When asked how he felt about what had
occurred, he indicated that he was ‘heartbroken’ without
elaborating
or demonstrating real remorse. Mr Charles argued, on
Hendricks’ behalf, that consideration should be given to the
medical
assistance he had provided to the complainant, and that the
cumulative effect of his circumstances justified the imposition of a
lesser sentence than the prescribed minimum.
The interests of society
[13]
Courts have repeatedly reflected on the horrific nature of the
offence of rape, given
that it constitutes a humiliating, degrading
and brutal invasion of the privacy, dignity and person of the victim.
As such, it
has been accepted that the crime deserves severe
punishment.
22
As the court held in
S v Ncheche
:
23
‘A woman’s body is sacrosanct and anyone who
violates it does so at his peril and our Legislature, and the
community
at large, correctly expects of our courts to punish rapists
severely.’
[14]
Society expects that the scourge of gender-based violence must be
addressed and must
cease. This applies also in cases of domestic
relationship.
24
The
Domestic Violence Act, 1998
, for
example, recognises that domestic violence is a serious social evil,
that there is a high incidence of domestic violence within
South
African society and that victims of domestic violence are among the
most vulnerable members of society.
25
[15]
Society’s opprobrium has translated into the Minimum Sentences
Act, which by
way of a prescribed, albeit discretionary minimum
sentence regime, has drastically impacted upon the exercise of a
court’s
discretion in imposing sentence.
26
Hendricks’ conduct has been found to fall within the purview of
this Act. A court should not for ‘flimsy reasons’
and
‘speculative hypotheses favourable to the offender’
deviate from the minimum sentence prescribed or apply their
personal
notion of fairness.
27
The question remains whether there
are substantial and compelling reasons to justify a lesser sentence
than the minimum sentence
prescribed.
Analysis
[16]
This court is duty bound to consider Hendricks’ personal
circumstances, as
well as that of the complainant, who was 18 years
of age at the time of the incident. The nature of the crimes must
also be considered,
together with the interests of society, seasoned
with a measure of mercy and bearing in mind the various purposes of
punishment,
including prevention, retribution, rehabilitation and
deterrence.
28
It behoves a court to consider all the
circumstances of the case to determine whether the imposition of a
minimum sentence is proportionate
to the particular offence.
29
[17]
The factors relied upon by Hendricks as substantial and compelling
have been considered
in their totality. The main factors in his
favour are that he is a first offender and has young children. The
other factors cited
carry less weight when given proper
consideration. He has, for example, suffered the trauma of coming to
know of the circumstances
surrounding the passing of his parents and
aunt, but this was some 25 years ago and he could have taken steps to
obtain help if
this still weighed heavily upon him. There is no
suggestion that he did so.
[18]
Hendricks has been in custody since his arrest in 2020. While he
pleaded guilty to
attempted murder, this was in the face of
overwhelming evidence of his guilt, and his testimony offered a
watered-down version
of events. It has correctly been held that a
guilty plea in these circumstances is a neutral factor in the final
analysis.
30
[19]
Hendricks’ approach during the time of the sustained attack was
to utilise
his relationship with the complainant to cover his own
back. He had ample opportunity to come forward at that time and to
express
remorse about his conduct and inability to control his rage.
Instead, his violent behaviour continued, demonstrating a complete
disregard for the complainant, with whom he was involved in a love
relationship. This prolonged infliction of pain diminishes,
in my
view, Hendricks’ limited attempts to assist the complainant
with medical care following his attacks. Rather than focus
on her
well-being, his focus was on perpetuating the tale about the robbery
and limiting her interaction with people who might
discover the
truth. It is for this reason that he offered to take her to hospital
himself, instead of allowing her to travel by
ambulance, and
instructed her to advise hospital staff that she did not require
their attention. The evidence demonstrates that
his small acts of
kindness occurred mainly in the presence of his friend or the
friend’s mother. In fact, his rage was simmering
without
dissipation and culminated in the grotesque events of 16 and 17
September 2020.
[20]
While conveying an apology to the complainant during her testimony,
this apology
can only be described as half-baked, as he continues to
deny the rape. Despite being educated up to grade 11, a business
owner
and able to express himself clearly, Hendricks could only offer
the single suggestion of being ‘heartbroken’ when pressed
as to how he felt about what had occurred. This, in my view, is
something well short of genuine remorse. As Ponnan JA held in
S v
Matyity
i:
31
‘
There is,
moreover, a chasm between regret and remorse. Many accused persons
might well regret their conduct, but that does not
without more
translate to genuine remorse. Remorse is a gnawing pain of conscience
for the plight of another. Thus genuine contrition
can only come from
an appreciation and acknowledgement of the extent of one’s
error. Whether the offender is sincerely remorseful,
and not simply
feeling sorry for himself or herself at having been caught, is a
factual question. It is to the surrounding actions
of the accused,
rather than what he says in court, that one should rather look. In
order for the remorse to be a valid consideration,
the penitence must
be sincere and the accused must take the court fully into his or her
confidence.’
[21]
While it may have been conveyed that Hendricks had been upset by his
suspicions of
the complainant’s infidelity, there is no
explanation of what has provoked his supposed change of heart or
sense that he
possesses a true appreciation of the consequences of
his actions. These are matters peculiarly within his knowledge.
[22]
It is important to consider the various circumstances cumulatively,
and with specific
focus on Hendricks’ clean record and young
family. The legislature has directed that, when imposing a sentence
in respect
of rape, an apparent lack of physical injury to the
complainant and the relationship between Hendricks and the
complainant prior
to the offence being committed cannot constitute
substantial and compelling circumstances justifying the imposition of
a lesser
sentence.
32
I am also cognisant that a finding of
an absence of substantial and compelling circumstances will result in
the gravest of sentences
being passed and that the consequences of
this are profound.
33
It requires a meticulous weighing of
all relevant factors before a decision to impose it can be
justified.
34
[23]
The aggravating features of the matter are undeniably severe and
overtake the various
mitigating considerations, including his lack of
previous convictions.
35
The complainant was made to suffer
and was sadistically hit and stabbed in the head, where she had
already suffered several injuries,
immediately prior to being raped
with the mop handle. The effect of this on the complainant, who was
only 18 years of age at the
time, has already been described.
[24]
The remarks of the Supreme Court of Appeal in
S v Kaywood
,
where the complainant had suffered a dozen stab wounds, amongst other
injuries, appear to be apposite:
36
‘
The appellant’s
personal circumstances pale against the abhorrent nature and level of
cruelty with which he committed the
crimes under consideration. Any
lesser sentence would not be justified. I have already set out the
injuries sustained by the appellant
and the impact thereof on her.
The offences committed by the appellant were particularly abhorrent.
First, he inflicted untold
pain on the complainant, and then when she
must have been writing in pain, soiled with dirt and blood, he
performed one of the
most degrading acts on her. As a result of his
exceedingly cruel conduct, the complainant was left permanently,
physically and
emotionally scarred…a departure from the
minimum prescribed sentence would be nothing short of maudlin
sympathy.’
[25]
In this instance, that degrading act was performed by way of the
repeated insertion
of a broken mop handle into her vagina. In the
final analysis, I am obliged to impose the minimum sentence
prescribed by the legislature
unless there truly convincing reasons
for departure.
37
In all the circumstances, I must conclude
that there is an absence of substantial and compelling reasons,
justifying a sentence
of life imprisonment on count two, and that
this sentence is proportionate to the crime. A sentence of twenty
years’ imprisonment
is imposed for the count of attempted
murder, considering the severity of the circumstances surrounding the
prolonged attack, and
excluding any consideration of the rape as an
aggravating factor. In terms of s 39(2)(
a
)(i) of the
Correctional Services Act, 1998
,
38
this sentence must run
concurrently with the life sentence.
39
Order
[26]
The following sentence is imposed:
a. The accused, Nicholas
Hendricks, is sentenced to life imprisonment in respect of the
conviction of rape involving the infliction
of grievous bodily harm
and twenty years’ imprisonment in respect of the conviction of
attempted murder.
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
1
Act 32
of 2007 (‘the Act’).
2
Act 105 of 1997 (‘the Minimum Sentences Act’).
3
S 51(3)(
a
) of the Minimum Sentences Act.
4
Act 51
of
1977 (‘the CPA’).
5
S v Rabie
1975 (4) SA 855
(A).
6
Rabie
at 862G-H.
7
See
S v Khulu
1975 (2) SA 518
(N) 521-522.
8
S v Mhlakhaza and Another
[1997] 2 All SA 185
(A) at 189.
Also see
S v M
(Centre for Child Law as
amicus curiae
)
[2007] ZACC 18
;
2007 (2) SACR 539
(CC).
9
S v Zinn
[1969] 3 All SA 57
(A) at 540G-H.
10
2001 (1) SACR 469
(SCA).
11
See
Radebe v The State
[2019] ZAGPPHC 406 at para 12.
12
2011 (1) SACR 40
(SCA) at para 23. Also see
Malgas supra
, in
respect of the prescribed period of imprisonment in the Minimum
Sentences Act ordinarily being imposed for the commission
of the
listed crimes in the specified circumstances, in the absence of
weighty justification, as quoted in
Otto v S
[2017] ZASCA 114
at para 21.
13
S 280(1) provides, in part, that ‘When a person is at any
trial convicted of two or more offences…the court may
sentence him to such several punishments for such offences…’
14
SS Terblanche
A guide to sentencing in South Africa
(3
rd
Ed) (LexisNexis) (2016) 199.
15
In doing so, the established principles in respect of multiple
crimes sharing aggravating features, and the avoidance of a double
consideration of aggravation, must be considered: Terblanche
supra
204-205.
16
2009 (1) SACR 552
(SCA) at 555h.
17
2016 JDR 1591 (FB).
18
See the factors considered by the majority of the court to establish
serious injury in
S v Rabako
2010 (1) SACR 310
paras 10 and
14. These include the actual injuries sustained, the instrument or
object used, the number of the wounds –
if any –
inflicted, their nature, their position on the body, their
seriousness and the results which flowed from their
infliction. As
Molemela AJA held in
Director of Public Prosecutions, Gauteng
Division, Pretoria v Moabi
2017 (2) SACR 384
(SCA) para 15, the
question is ‘…whether, as a matter of fact, the victim…
sustained grievous bodily harm’.
19
2012 (2) SACR 306
(FB).
20
Supra
para 7.
21
Cf Thole supra
para 9, where the only evidence before the
court indicated that the appellant had stabbed the deceased
after
he had raped her, and that the rape had already been concluded
by the time that he stabbed her, so that it was held that the
infliction
of grievous bodily harm was not
involved
in the
rape of the deceased. In
S v Tuswa
2013 (2) SACR 269
(KZP)
para 22, Stretch AJ (as she then was) considered it unnecessary to
establish intention to conclude that the rape involved
the
infliction of grievous bodily harm. In
Vilakazi supra
para
13, Nugent JA noted the absence of any gradation between imposition
of ten years’ imprisonment for rape and life imprisonment
in
instances where the Minimum Sentences Act found application.
22
S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 5B. When imposing a
sentence in respect of the offence of rape, an apparent lack of
physical injury to the complainant
and any relationship between the
complainant and accused prior to the offence being committed are
not, on their own, considered
to be substantial and compelling
circumstances justifying the imposition of a lesser sentence:
section 51(3)(
a
A) of the Minimum Sentences Act.
Radebe
supra
para 34. In
Vilakazi supra
para 54, Nugent JA noted
that ‘there comes a stage at which the maximum sentence is
proportionate to an offence and the
fact that the same sentence will
be attracted by an even greater horror means only that the law can
offer nothing more.’
23
[2005] ZAGPHC 21
;
2005 (2) SACR 386
(WLD) para 35.
24
The Domestic Violence Act, 1998 (Act 116 of 1998) defines a
‘domestic relationship’ to include a relationship
between
people engaged in an intimate or sexual relationship of any
duration, and who share or recently shared the same residence: s 1.
The Preamble of this Act reflects that the State is committed to the
elimination of domestic violence, which is defined in s
1 to include
physical abuse, sexual abuse and any other controlling or abusive
behaviour towards a complainant.
25
Preamble to the
Domestic Violence Act, 1998
.
26
S v September
[2014] ZAECGHC 38 para 8.
27
S v PB
2011 (1) SACR 448
(SCA) para 21;
Matyityi supra
para 23.
28
S v Genever and Others
[2008] ZAWCHC 7
;
2008 (2) SACR 117
(C) at 122
c-d
.
29
Vilakazi supra
para 15.
30
S v Barnard
2004 (1) SACR 191
(SCA) at 197;
Matyityi supra
para 13.
31
Supra
para 13 (footnotes omitted).
32
S 51(3)
(a
A
)
(ii) and (iv) of the Minimum Sentences Act. The
gynaecological examination of the complainant, five days after her
rape, revealed
nothing abnormal: para 28 of the judgment.
33
S v Bull
2001 (2) SACR 681
(SCA) para 21.
34
S v Dodo
2001 (1) SACR 301
(E).
35
See
Vilakazi supra
para 58.
36
2016 JDR 2203 (SCA) paras 15, 16.
37
Matyityi supra
para 23.
38
Act 111
of 1998.
39
See
S v Ziqhu
2014 (1) SASV 247 (VB).