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[2022] ZAGPPHC 637
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National Director of Public Prosecution v L and Another (CC6/2021) [2022] ZAGPPHC 637 (4 August 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
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: CC6/2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
4
August 2022
In
the matter between:-
NATIONAL
DIRECTOR OF PUBLIC PROSECUTION
THE
STATE
And
W[....]
L[....]
ACCUSED
1
J[....]
L[....]
ACCUSED
2
JUDGMENT
- SENTENCE
MOKOENA
A.J
[1]
The Accused were convicted by this Court
on Charges of contravention of Section 305 of Act 38 of 2005; assault
common and contravention
of Section 9(1) read with Sections 1; 4 and
31(1)(a) of Act 51 of 1992. Accused Nr. 2 was further convicted for
contravention of
Section 4(1) of the Prevention and Combating of
Trafficking in Persons Act, Act 7 of 2013.
[2]
Both
the
State
and
the
Defence
have
addressed
this
Court
in
respect
of
mitigating
. and
aggravating
circumstances
for
purposes
of
sentencing.
Pre-sentencing
reports
were
also
handed
in
by
the
Defence for both Accused without any objection or challenge from the
State.
[3]
This Court is now required to determine
the appropriate sentence for the offences committed by these Accused
persons. Although Courts
have a discretion to make such a
determination, the extend of that discretion is limited by the
applicable legislations in particular
Section 51(1)
of Act 105 of 1977 read together
with Section
276(1)
of
Act
51 of
1977.
[4]
The applicable minimum sentence
prescribed for contravention of Section 4(1) of the Prevention and
Combating of Trafficking in Persons
Act, Act 7 of 2013 is life
imprisonment; unless the Accused person succeed to convince the Court
that there are substantial and
compelling circumstances which justify
a deviation from the
prescribed
minimum sentence
[See: Section 51(1)
of Act 105 of 1997].
[5]
A prescribed sentence for contravention
of Section 305 of Act 38 of 2005
is
a
fine or
imprisonment
for
a period not
exceeding
10 years, or to both a fine and such
imprisonment
[See: Section 305(3)
read with Subsection
6
of
Act
38
of
2005].
[6]
Section 31(l)(a) of Birth and Death
Registration Act, Act 51 of 1992 states the following in respect of
sentencing for contravention
of Section 9(1):-
"Any
person who-
(a)
Without reasonable cause fails to
furnish any notice, information, statement
or certificate required by
this Act;
shall
be guilty of an offence and on conviction liable to a fine or to
imprisonment for a period not exceeding 5 years or to both
such fine
and such imprisonment."
[7]
One cannot deny the fact that it is so
outrageous, inhuman of the worst kind for parents to give birth to a
child; assault and abuse
that child especially when he cannot speak
and protect himself against such an abuser. The traumatic state
appearing on the face
of such a poor child when he sees his parents
who are his abusers, is easily imaginable.
[8]
The radiant smile often observed on the
face of babies when they see one of their parents or both of them,
disappears on the face
of an abused child. What worsen the situation,
is when such a traumatised child is sold to unknown persons for a
mere R500.00.
This is the kind of behaviour that cannot be tolerated
by civilised societies.
[9]
It
is
therefore
no
surprise that
the legislature
has
promulgated
a piece of legislation which prescribe a
minimum sentence for these type of crimes as an expression of the
Society's abhorrence
and discontent with the barbaric nature of these
crimes.
[10]
In as much as the legislature has
prescribed a minimum sentence for these types of crimes, Courts still
possess the discretionary
powers to determine a fair and just
sentence after considering the
circumstances of a particular case. This
finds expression in
Dodo v The
State
[2001] ZACC 16
;
2001
(3)
SA
382
(CC).
The
Constitutional
Court
said:-
'[26]
The legislature's powers are decidedly not unlimited. Legislation is
by its nature general. It cannot provide for each individually

determined case. Accordingly such power ought not, on general
constitutional principle, wholly to exclude the important function

and power of a court to apply and adapt a general principle to the
individual case. This power must be appropriately balanced with
that
of the Judiciary.'
[11]
The particular circumstances under which
the Accused committed the offences
they
were
convicted
for,
were
placed
on
record
during
the
trial of this matter
as
an abuse
of
drugs and alcohol and
the
poverty under
which
the
Accused
find
themselves
and
lived.
These
are
some of the personal circumstances this
Court must evaluate to determine whether as a whole they constitute
substantial and compelling
circumstances to justify a deviation from
the prescribed minimum sentence.
[12]
In the pre-sentencing report compiled on
behalf of Accused Nr. 2, it is stated
that
she
experienced
a
challenging
upbringing.
The
report
states
that
Accused
Nr.
2
started
to
abuse
drugs
at
the
very
young age
of between
fifteen
and
sixteen
years,
and
she
used
to
visit
Pubs
and Clubs at that age in the
company
of her father. During her life journey
she
met
Accused
Nr.
1
who
encouraged
and
supported
her life style of alcohol and drugs
abuse.
[13]
It
is
on
record
that
Accused
Nr.
1
was
a
drug
addict
who
was
on
·a drug rehabilitation programme and both himself and
Accused'·Nr'. '2 abused
alcohol
and
drugs
at
the
time
of
their
arrest.
Accused
Nr.
2 was also employed at a Pub and alcohol
was as a result easily
accessible
to
her.
[14]
The position of our law on the role of
drugs in child abuse and neglect depends to the larger extent on the
expert opinion evidence
[See:
Commentary
on
the
Criminal
Procedure
Act, Service
52,
2014 28-6B].
[15]
In this matter, that opinion is
expressed in Accused Nr. 2's pre­ sentencing
report
where
the
author
quoted
a
passage
from
a
literature which reads:-
'Parental
substance abuse interrupts a child's normal development, which places
these youngsters at higher risk for emotional; physical
and mental
health problems. Because parents who abuse alcohol or other drugs are
more likely to be involved with domestic violence,
divorce,
unemployment, mental illness and legal problems, their ability to
parent effectively is severely compromised. There is
a higher
prevalence of depression, anxiety, eating disorders and suicide
attempts among children of substance abusers than among
their peers.'
[16]
The effect and the role of the toxic
relationship Accused Nr. 2 had with Accused Nr. 1 is explained in her
pre-sentencing report,
as
follows:-
'The
accused's relationship with W[....] shows the same characteristics as
her relationship with her father. He did not act in the
best interest
of the accused or his children. Their relationship was rife with
physical and emotional abuse, with no emotional
or financial support
from him. The accused's relationship with W[....] left her in a
hopeless and abusive situation, but the accused
chose to stay in the
relationship even though her family tried to assist her. Her
addiction to illegal substances probably played
a role in her choice
to stay in the relationship with W[....].'
[17]
It is clear from the reading of that report as a whole that the
ability of Accused Nr. 2 to parent effectively
was indeed compromised
by substance abuse and the type of the relationship she had with her
father and Accused Nr.1.
[18]
Despite these facts, the State maintains
that life imprisonment is an appropriate sentence in the
circumstances; relying exclusively
on the aggravating circumstances
without reference to any of the mitigating factors mentioned in the
pre-sentencing report.
[19]
In response
to the
State's
submissions,
I am
tempted
to,
quote certain passages in the Constitutional Court judgment of
Dodo
supra.
They read as follows:
-
'[35]
.........
In
the phrase "cruel, inhuman or degrading" the three
adjectival concepts are employed disjunctively and it follows that
a
limitation
of
the
right
occurs
if
a
punishment
has
any
one
of
these three
characteristics.........
While
it
is
not
easy
to
distinguish
between the
three
concepts
"cruel"
,
"inhuman"
and
"degrading':
the impairment
of
human
dignity,
in
some
form
and
to
some
degree, must be involved
in all
three. One should
not
lose sight
of the fact that the right
relates,
in
part at least, to
freedom.
[36]
It should also be emphasised, as
was pointed out by the Canadian Supreme Court in Smith, that the
effect of a sentence imposed must
be measured and that such effect is
often a composite of many factors; it is not limited to the length of
the sentence but includes
its nature and the conditions under which
it is served.:..
one
is concerned
chiefly
with
the effect of
the duration
of a sentence of life
imprisonment.
Consequently
the
freedom
aspect
of
the
right
in question and its relation to
human dignity looms large.
[37]
The concept of proportionality goes to the heart of the
inquiry as to whether punishment is cruel, inhuman, or degrading,
particularly
where, ...... it is almost exclusively the length of
time for which an offender is sentenced that is in issue...... In
order to
Justify the deprivation of an offender's freedom it must be
shown that it is reasonably necessary to curb the offence and punish

the offender. Thus the length of punishment must be proportionate to
the offence.
[38]
To attempt to
Justify any period of penal
incarceration, let alone imprisonment for life......without inquiring
into the proportionality between
the offence and the period of
imprisonment, is to ignore, if not deny, that which lies at
the
very heart of human dignity.'
[20]
The notion proportionality is best
defined by some authors in the following
statement:
'one
ought
not
to
use a sledgehammer
to
crack a nut'
[See:
Cora Hoexter, Administrative Law in South Africa,
2nd Edi. 344].
This
definition if applied in the present case simply means that this
Court may impose a less drastic punishment prescribed
by
law
if
that
punishment
has
the
effect
to
curb
the offence and punish the offender.
[21]
One must however, not to lose sight or
ignore what is said in
S v Malgas
[2001]
3
All
SA
220
at
232
which
substantively emphasises this notion of
proportionality. The relevant passages
read: -
'D
The
specific
sentences
are
not
to
be
departed
from
lightly
and
for flimsy
reasons.
Speculative
hypothesis
favourable
to
the
offender, undue sympathy,
aversion
to
imprisoning
first
offenders,
personal doubts as to the
efficacy of the policy underlying the legislation, and marginal
differences in personal circumstances
or degrees of participation
between
co-offenders
are to
be excluded.
E
The legislature has however
deliberately left it to the courts to decide whether the
circumstances of any particular case call for
a departure from the
prescribed sentence. While the emphasis has shifted to the objective
gravity of the type of crime and the
need for
effective sanctions against it,
this does not
mean that all other
considerations are to be ignored.
F
All
factors
(........ )
traditionally
taken
into
account
in
sentencing (whether
or
not
they
diminish
moral
guilt)
thus
continue
to
play
a role;
none
is
excluded
at
the
outset
from
consideration
in
the sentencing
process.'
[22]
In
S v
V
1972 (3) SA 611
AD at
614C-E
Homes
J.A said: -
·"
"Punishment
should fit the criminal as well as the crime, be fair to the accused
and
to
society,
and
be
blended
with
a
measure
of mercy;....The
element
of
mercy,
a
hallmark
of
civilised
and
enlightened
administration,
should
not
be
overlooked,
lest
the
Court be
in
danger
of
reducing
itself
to
the
plane
of
the
criminal;
True mercy
has
nothing
in
common
with
soft
weakness,
or
maudlin sympathy
for
the
criminal,
or
permissive
tolerance.
It
is
an
element of justice itself."
[23]
I am of the view that there must be
objective facts upon which Courts must rely for showing some mercy to
the offender. Those facts
in the present case are set out in the
pre-sentencing report compiled for Accused Nr. 2. For this Court to
ignore them would imply
that it is detached from the realities of
Accused Nr. 2's challenges in her upbringing
and the
abuse she was exposed
to
throughout
her life journey during her teen years.
Those are not flimsy or speculative hypothesis.
[24]
The Probation Officer noted in the
pre-sentencing report that
whatever
that Accused Nr. 2 said regarding her upbringing, was corroborated by
her mother.
[25]
Her
pre-sentencing
report
further
recorded
that
Accused
Nr.
·2
is
a first
offender
of
31 years
of
age,
and
she
has
a
good
support
system in
place
who
are
her
mother
and
sister
who
are
willing
and able to assist her in the completion
of any sentence. This conclusion by the Probation Officer strongly
suggest that Accused
Nr.2 can be reformed and
mend
her
ways
after
completion
of
a
period
in
jail.
[26]
This
brings
me
to
the
question
of
what
would
be
an
appropriate period in jail after taking
into consideration Accused Nr. 2's personal circumstances
and
the
serious
nature
of
the
offence
of
contravention of Section 4(1) of the
Prevention and Combating
of
Trafficking in Persons Act 7 of
2013
in particular.
[27]
This question becomes relevant should
this Court comes to the conclusion
that
there
are
substantial
and
compelling
circumstances for it to deviate from the
prescribe minimum sentence of life imprisonment.
[28]
I
answer
this
question
by
reference
to
what
Holmes
J.A
said
S
v
V,
supra
at 614F-H. He said the following:-
'...a
long period of imprisonment, involving properly directed discipline
and training, might well result in reformation. In the
meantime,
society would be adequately protected.
The
law operates to protect women
('and
children')
against outrage.
As to that, if there be any who doubt whether a massive sentence;of
imprisonment for 20 years will not be a sufficient
expiation for the
gravely evil misdeeds
...,
let
them cast their minds back in their own lives over that period, and
consider how much has happened to them in those two decades,
and how
long ago it has seemed, although enlivened by domestic happiness and
the free pursuit of their avocations. No such ameliorations
attend
the slow tread of years when you are locked up.' (emphasis added).
[29]
Jansen J.A in the same judgement at 62
1A said the following:-
'The
consideration that upon his release at the expiration of his
sentence, or sooner by an error of judgement on the part of the

authorities concerned, an accused would still constitute a danger to
the public, rests upon the assumption that a sentence of
imprisonment, however long, would fail to have any corrective
effect.'
[30]
Courts do not decide matters on
assumptions or speculations. There must be facts upon which they
arrive at a decision and to state
the reasons for
their decisions.
[31]
The State has placed on record the
medical report of baby
X
which
is dated
1
April
2020.
It
generally
reflected
that
the
baby
X
is
growing and
developing
well
with
some
medical
conditions
which
the
Doctor said his healing will depend much
on how he respond to medical treatment.
Currently
baby
X
is
at
the
place
of
safety.
[32]
Having
considered
all these factors, I
am satisfied
that Accused Nr. 2 has succeeded to
convince this Court that there are substantial and compelling
circumstances
which
justify
a
deviation
from
the
prescribed
minimum
sentence
of
a
life
imprisonment
in
respect
of Count 1 which is the contravention of
Prevention and Combating of Trafficking
in Persons Act.
[33]
I now turn to deal with the personal
circumstances of Accused Nr. 1. I must
state
from
the
outset
that
his
pre-sentencing
report
paints
a
picture
of
someone
who
is dishonest
and
unreliable.
[34]
The
report
mentioned
that
Accused
Nr.
1 said:-
'he
changed his version during cross examination to that he assumed the
victim (baby
X)
had
fallen from the couch
-
his
intend was·to protect accused Nr.
2.'
It
is
further stated in that report he admitted the responsibility for
failing to register the birth of baby
X
with Home Affairs.
[35]
Accused Nr. 1 went further to inform the
Probation Officer that his mother is responsible for his bad
upbringing and want this Court
to believe that such a bad upbringing
played a role in his current life situation.
Interestingly,
the Probation
Officer
mentioned
in
the
report that his mother disowned him. She
said she had nothing to do with Accused Nr. 1 thus she refused to
corroborate what Accused
Nr. 1 said about
his upbringing.
[36]
I
must
mention
also
that
Accused
Nr.
1
abused
and
neglected
baby
X
because
he
had
no
love
for
him.
There
Is
evidence
before
this
Court that he at some stage he
threatened to kill baby
X
and
referred to him as a bastard. There is further evidence that he
consumed the baby
X's
formula
meant to feed baby
X
and
instead fed him a drink commonly known as
cool-eight (a sugar powder mixed with
water and consumed as a cold drink).
[37]
Despite this overwhelming
evidence against Accused Nr. 1,
he.
refused
to
accept
liability
for
abusing
and
neglecting
baby
X.
He
is
therefore not
remorseful
for
what
he did
to
baby
X.
Based
on
these
facts, I
find it difficult for this Court to show
mercy to someone who was not merciful to his own child and still
fails to be remorseful.
[38]
It
is
quite disturbing to note further from the report that Accused Nr. 1
informed the Probation Officer that there is a lot
of drugs in prison and he still smokes
weed
(dagga)
on
a regular basis. This compels me.to quote from the Constitutional
judgement of
S v Makwanyane and
Another
1995(6)
BCLR
665(CC)
at
715F,
the
then
Chief
Justice Chaskalson said the
following:-
"The
greatest deterrent to crime is likelihood that offenders: will be
apprehended, convicted and punished. It
is that which
presently
lacking in our criminal
justice system; and it is at this level and through addressing
the
causes
of
crime
that
the
State
must
seek
to combat lawlessness”
[39]
In this matter drug abuse played a major
role in the abuse of baby X. It is quite worrying to this Court to
hear that the very same
drugs are accessible to Accused Nr. 1. This
is an indictment to the State and Prison authorities. If this
situation is not addressed
in earnest, will most definitely defeat
the purpose of sending offenders to jail.
After
considering
all
these
factors
this
Court
is
of
the
view
that
the
Accused
should
be sentenced as follows:-
1.
For
contravention
of
Prevention
and
Combating
of
Trafficking
in Persons
Act,
Accused
Nr.
1
is
sentenced
to
20 years
imprisonment.
2.
For contravention of Section 305(3) of
Act 32
of
2005 which is neglect and abuse of baby X, both Accused are sentenced
to 10 years imprisonment.
3.
In respect of assault common both
Accused are sentenced to a period
of
three (3)
months
imprisonment
without
an
option
of
a fine.
4.
For
contravention
of Section
9(1)
of
Act
51
of 1992,
that is the failure to register the
birth of baby X with Home Affairs, both the Accused are sentenced to
five (5) years imprisonment
without an option of a fine.
5.
All
the
sentences to
be
served
concurrently
in
terms.:of·the relevant
legislation
and
must
take
into
account
the
time both Accused spend in jail during
their trial proceedings.
M.B
MOKOENA
ACTNG
JUDGE OF THE HIGH
COURT
Date
of Hearing:                 From
28 July
2022 to 29 July 2022
Judgment
Delivered:          04
August 2022
APPEARANCES
For
The State:                    Adv.

A. Roos
Instructed
By:                     NATIONAL

DIRECTOR OF PUBLIC PROSECUTION
For
Accused Nr.1:
Adv. M. Moloi
Instructed
By:
THE
PRETORIA JUSTICE CENTRE
LEGAL
AID SA
317
FRANCIS BAARD STREET
4TH
FLOOR LOCARNO HOUSE
PRETORIA
For
Accused Nr.2:
Adv. P. Mtsweni
Instructed
By:
THE
PRETORIA JUSTICE CENTRE
LEGAL
AID SA
317
FRANCIS BAARD STREET
4
TH FLOOR LOCARNO HOUSE
PRETORIA