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[2022] ZAECGHC 12
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S v B (61/2021) [2022] ZAECGHC 12 (25 February 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GRAHAMSTOWN)
Case
no:61/2021
Date
heard: 16 February 2022
Date
delivered: 25 February 2022
NOT
REPORTABLE
In
the matter between
THE
STATE
and
[…………..]
B
ACCUSED
SENTENCE
GOVINDJEE,
J
Background
[1]
B
was convicted of rape in contravention of section 3, read with
various sections of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act, 2007
.
[1]
[2]
B
was found to have unlawfully and intentionally committed an act of
sexual penetration with the complainant, who was five years
old at
the time, by having sexual intercourse with her
per
vaginam
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 a victim under the age of 16. 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. 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’.
Nature
of the crime and surrounding circumstances
[6]
The
complainant and a three-year-old friend decided to visit the
accused’s house. He knew them well and would join them in
their
play, being a distant relative of the complainant’s friend. At
some point he experienced sexual urges, which he decided
to act upon.
He removed the complainant’s trousers and panty, placed her on
his bed and raped her painfully.
[7]
As
the victim was under the age of 16 years, the rape is of the kind
detailed in
Part I
of Schedule 2 of the Minimum Sentences Act. The
legislature has prescribed 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.
[13]
[8]
As
part of consideration of an appropriate sentence, it is also
important to consider the effect of the crimes on the victim,
particularly
in cases of gender-based violence.
[14]
The medico-legal report submitted into evidence confirms that the
complainant cried during her examination and suffered from pain.
While there were no general physical injuries observed, there were
tears on the labia minora and the vaginal opening and redness
caused
by the forceful penetration. The complainant’s mother indicated
that the incident has also been difficult for her
to deal with.
[15]
B’s
circumstances and interests
[9]
B
chose not to testify in mitigation of sentence. His counsel explained
that he was 43 years of age and single, residing at Scenery
Park,
East London. He had completed grade nine at school but had then been
forced to drop out in 2003 because of his socio-economic
circumstances and pressure to work to earn an income. He had since
been self-employed, repairing shoes and earning up to R150 per
day.
This money had been used to support himself and his mother, prior to
her passing. He had no previous convictions or pending
matters and
had been in custody since 16 December 2020.
[10]
Counsel
highlighted that B had assisted the court by shortening proceedings
during his defence. It was argued that B’s circumstances,
viewed cumulatively, warranted a deviation from the prescribed
minimum sentence.
The
interests of society
[11]
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.
[16]
As the court held in
S
v Ncheche
:
[17]
‘
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.’
[12]
In
S
v Vilakazi
,
[18]
the Supreme Court of Appeal confirmed that rape is a repulsive crime.
Society expects that the scourge of gender-based violence
must be
addressed and must cease. In addition, children’s rights are
constitutionally protected, and rape of a child, particularly
one as
young as five years of age, is by its nature one of the worst kinds
of offences imaginable.
[13]
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 a sentence.
[19]
Blom’s 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.
[20]
The question remains whether there are substantial and compelling
reasons to justify a lesser sentence than the minimum sentence
prescribed.
Analysis
[14]
This
court is duty bound to consider B’s personal circumstances, as
well as that of the young complainant. The nature of the
crime 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.
[21]
All the circumstances of the case must be considered to determine
whether the imposition of a minimum sentence is proportionate
to the
particular offence.
[22]
[15]
The
factors relied upon by B as substantial and compelling have been
considered in their totality. The main factor in his favour
is that
he is a first offender. The other factors cited carry less weight
when given proper consideration. While his socio-economic
background
and low income are unfortunate, this remains a reality for millions
of South Africans and provides no excuse for his
conduct in violating
the trust of his young friend. He admitted to some aspects of his
conduct during his testimony at the trial,
but stopped short of
pleading guilty or demonstrating any remorse whatsoever for the
plight of the raped complainant, or indeed
her younger friend who was
in the vicinity at the time of the rape and observed his conduct.
[16]
It is
important to consider the various circumstances cumulatively, and
with specific focus on B’s clean record, time spent
in custody
and socio-economic background. 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 B and
the complainant prior to the offence being committed
cannot
constitute substantial and compelling circumstances justifying the
imposition of a lesser sentence.
[23]
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,
effectively removing an individual from society.
[24]
It requires a meticulous weighing of all relevant factors before a
decision to impose it can be justified.
[25]
[17]
The
aggravating features of the matter are undeniably severe. Attacks
on vulnerable victims such as extremely young children
have always
been an aggravating feature of rape. Every child is meant to enjoy
the constitutional rights to be protected from maltreatment,
abuse
and degradation, to freedom and security, which includes the right to
be free from all forms of violence and to have their
privacy and
dignity respected and protected.
[26]
This overtakes the various mitigating considerations, including B’s
lack of previous convictions.
[27]
The pre-sentence period has also been considered but does not, on its
own, constitute a substantial and compelling circumstance.
[28]
The complainant was a young child who visited somebody she considered
to be a friend. She entered his home assuming it would be
a safe
space for her and her friend. In return she was violated despicably
and suffered pain as a result. The rape was brazen,
being perpetrated
in front of the complainant’s younger friend, a three-year-old,
by a person who knew that such conduct
was unconscionable. The
complainant has since had to be questioned by a clinical psychologist
for purposes of ascertaining her
ability to testify, given her tender
age, and was then required to do so.
[18]
In
the final analysis, I am obliged to impose the minimum sentence
prescribed by the legislature unless there are truly convincing
reasons for departure.
[29]
In
S
v Zitha
,
Goldstein J commented on the need to punish perpetrators of child
rape as heavily and severely as the law allowed in the absence
of
substantial and compelling circumstances dictating otherwise. Courts
will not shirk this responsibility, however agonising it
may be to do
so.
[30]
In all the circumstances, I must conclude that there is an absence of
substantial and compelling reasons or weighty justification
for a
departure from the prescribed minimum. The result is that a sentence
of life imprisonment is proportionate and justified,
and I consider
this to be the only appropriate sentence for this crime. Given the
nature of the offence, various other consequences
emanating from
legislation follow. These have been included as part of the order to
follow.
Order
[19]
The
following sentence is imposed:
a.
The
accused, B, is sentenced to life imprisonment in respect of the
conviction of rape involving a five-year-old child.
b.
In
terms of
section 50(2)
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
, the particulars of the
accused, as a convicted sexual offender, must be included in the
National Register for Sex Offenders.
c.
In
terms of
section 120(4)
of the Children’s Act 38 of 2005 and
section 41
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
, the accused is declared to be unsuitable to
work with children, and it is directed that his particulars be
entered in Part B of
the National Child Protection Register.
d.
In
terms of
section 103(1)
of the
Firearms Control Act 60 of 2000
, the
accused is declared unfit to possess a firearm.
_______________
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
Appearances:
Counsel for the State:
Adv S. Mgenge
Director of Public Prosecutions
Makhanda
046 602 3000
Attorney
for the Accused:
Mr H. Charles
Legal Aid South Africa
Makhanda
046 622 9350
[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 (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 51(1) of the
Minimum Sentences Act read with section 51(3)(
a
).
[14]
See A Spies ‘The
judicial relevance and impact of victim impact statements in the
sentencing of rape offenders’
(2018)
SACJ
212
at 231 as cited in
S
v Dyonase
[2020] ZAWCHC 137
para 21.
[15]
On the deleterious
effect of rape on victims’ relations, see
Dyonase
supra
para 32.
[16]
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
S
v Vilakazi
[2008]
ZASCA 87
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.’
[17]
[2005] ZAGPHC 21
;
2005 (2) SACR 386
(WLD) para 35.
[18]
2009 (1) SACR 552
(SCA) at 555h.
[19]
S v September
[2014] ZAECGHC 38 para 8.
[20]
S v PB
2011
(1) SACR 448
(SCA) para 21;
Matyityi
supra
para 23.
[21]
S v Genever and
Others
[2008] ZAWCHC 7
;
2008 (2) SACR 117
(C) at 122
c-d
.
[22]
Vilakazi supra
para 15.
[23]
S 51(3)
(a
A
)
(ii)
and (iv) of the Minimum Sentences Act..
[24]
S v Bull
2001 (2) SACR 681
(SCA) para 21.
[25]
S v Dodo
2001 (1) SACR 301 (E).
[26]
Ss 28(1)(
d
),
12(1)(
c
)
14 and 10 of the Constitution of the Republic of South Africa, 1996.
[27]
See
Vilakazi
supra
para 58. Also see S
v
Zitha and Others
1999 (2) SACR 404
(WLD): the absence of previous convictions is not
‘substantial and compelling’ for purposes of s 51(3)(
a
).
[28]
Mthimkhulu v S
[2021] ZAGPPHC 573
para 49.
[29]
Matyityi supra
para 23.
[30]
Zitha supra
at 418
h-i
.