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[2011] ZASCA 186
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Director of Public Prosecutions v Thabethe (619/10) [2011] ZASCA 186; 2011 (2) SACR 567 (SCA) (30 September 2011)

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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 619/10
In the
matter between:
DIRECTOR OF PUBLIC PROSECUTIONS
…...........................................................
Appellant
and
PAULOS
KAM THABETHE
…...............................................................................
Respondent
Neutral citation:
DPP v Thabethe
(619/10)
[2011] ZASCA 186
(30 September 2011)
Coram:
Mthiyane, Bosielo and Shongwe JJA
Heard: 15 September 2011
Delivered: 30 September 2011
Summary:
Appeal by the State – Sentence – respondent convicted of
rape and sentenced to ten years’ imprisonment
which was wholly
suspended for five years on certain conditions –
appropriateness of sentence based on restorative justice
–
sentence found to be inappropriate – set aside and replaced
with an effective term of imprisonment of ten years.
ORDER
On appeal from
: North Gauteng High Court, Pretoria
(Bertelsmann J sitting as court of first instance):
(a) The appeal against sentence is upheld.
(b) The sentence imposed by the court below is set aside and replaced
with 10 years’ imprisonment.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
BOSIELO JA (Mthiyane and Shongwe JJA concurring)
[1] The respondent was convicted pursuant to a plea of guilty of rape
read with the provisions of s 51(2) of the Criminal Law Amendment
Act
105 of 1997 (the Act) in a Regional Court, Secunda. The alleged rape
involved having unlawful sexual intercourse with a girl
below the age
of 16 years. The respondent was then committed to the North Gauteng
High Court, Pretoria for sentence in terms of
s 52
(a)
of the
Act.
[2] The court (Bertelsman J) imposed the following sentence:
‘
In the
light of the extraordinary circumstances of this case the court
imposed the following sentence:
(1) Ten years imprisonment,
suspended for five years on condition that:
The accused is not convicted,
during the period of suspension, of a crime involving violence or a
sexual element or both;
That he remain in the
employment of Mr Roussow unless he is laid off [through no fault of
his own];
In such event, he must
immediately do everything necessary to find alternative employment;
From his income, at least 80%
must be devoted to the support of the victim and her family. In
particular the accused must accept
responsibility for the victim’s
schooling and, if applicable, for her tertiary education;
Such support for the family is
to continue even if his relationship with the victim’s mother
is terminated for whatever
reason;
The accused must report on one
day each weekend (subject to his work program, which normally
entails working one day each weekend)
to the probation officer at
Delmas and participate in any program that such officer might
prescribe;
Such programs must include a
Sexual Offender’s Program to be attended at the accused’s
cost;
The accused is to perform 800
hours of community service of a nature to be determined by the
probation officer during the period
of suspension. (This represents
the maximum number of hours the accused can serve as he is only
available on one day of every
weekend.)’
[3] It is this sentence that the appellant is appealing against in
terms of s 316B of the Criminal Procedure Act 51 of 1977 (the
Criminal Procedure Act). The
appeal is with the leave of the court
below.
[4] The appeal turns on whether the sentence imposed on the
respondent is appropriate. The appellant argues that, given the
nature
and gravity of the offence, and the fact that the Legislature
has prescribed life imprisonment as the minimum sentence for this

offence, the sentence imposed by the court below is startlingly or
disturbingly inappropriate. To this may be added the fact that
the
appellant submits that the sentence imposed is incompetent, given the
provisions of
s 51(5)(a)
which prohibits the suspension of the
operation of the minimum sentence provisions in respect of this type
of offence. On the other
hand, the respondent asserts that the court
below exercised its sentencing discretion properly in finding that
there are substantial
and compelling circumstances which justified
the sentence.
[5] The salient facts of the case are as follows: The respondent was
a live-in lover of the complainant’s mother. At the
time of the
incident the complainant was 15 years and 10 months old. The
complainant, her mother and the respondent all stayed
together in one
house, together with the complainant’s other siblings. On this
fateful day the complainant had apparently
left home without her
mother’s or the respondent’s knowledge or consent. It
appears that she was away for such a long
time that her mother and
the respondent started getting worried about her. Both the respondent
and the complainant’s mother
launched a frantic but
unsuccessful search for her. Later in the day the respondent found
her at a home suspected to be that of
her boyfriend. On their way
back home, the complainant expressed the fear that her mother might
punish her for her misdemeanour.
She then implored the respondent not
to tell her mother where she had been. Presumably sensing her
vulnerability and desperation,
the respondent inveigled her to have
sexual intercourse with him in return for an undertaking not to tell
her mother where the
complainant had been. The next day there was
some unexplained altercation between the respondent and the
complainant which culminated
in the respondent going to report the
sexual intercourse to the police and voluntarily handing himself
over.
[6] The complainant and her mother testified on sentence. In an
attempt to obtain more evidence regarding the appropriate sentence
to
be imposed, the court below heard the evidence of a probation
officer, Ms Nyundu (Nyundu). At the time she testified the
complainant
was already 17 years old and in Grade 9. The essence of
her evidence was that the complainant has outgrown this incident. She
has
forgiven and reconciled with the respondent. She is no longer
angry with or even afraid of him. She and the respondent have in fact

repaired and mended their relationship. Importantly, she stated
unequivocally that she does not wish the appellant to be sent to

jail. According to her, the respondent is playing a useful role in
maintaining her and her family and she would like him to continue
to
support them.
[7] On the other hand, the complainant’s mother was resolute
that the respondent had to be sent to jail for what he did.
She
appeared to be tormented by the fact that the respondent could have
sexual intercourse with her daughter and her as well. She
conceded,
however, that the respondent and the complainant appear to have
mended their relationship and were friendly with each
other.
Importantly, she admitted that life without the respondent would be
difficult as he was the mainstay of the family. As a
domestic worker
she was earning a paltry R40 per day. The family would not be able to
survive without him.
[8] Nyundu, a principal social worker interviewed the complainant,
her mother and the respondent. Furthermore, she arranged a
victim-offender conference to afford the complainant and the
respondent an opportunity to engage each other. Her evidence is to

the effect that the complainant and the respondent have reconciled.
The respondent has also rejoined the family, urging it to stay

together as before the incident. She testified that the respondent
expressed remorse for what happened. She described the complainant’s

mother as being ambivalent. Having considered all the relevant facts
Nyundu recommended that the respondent be sentenced to correctional

supervision in terms of
s 276(1)(i)
of the
Criminal Procedure Act.
[9
] The court below also had the benefit of a psycho-social report on
the impact of the offence on the complainant. It is clear from
the
report that this incident has had serious adverse effects on the
psycho-emotional well-being of the complainant. Her academic

performance at school deteriorated to such an extent that she did not
even write her final examination for Grade 8. She emphasised
the fact
that the complainant was hurt by the fact that the respondent had
betrayed her trust in him as a father-figure.
[10] The approach of the court below to sentencing the respondent is
set out as follows in the judgment.
‘
In the
light of these facts, the court was of the view that this case was
the one rape case – certainly the first this court
has dealt
with – in which restorative justice could be applied in full
measure in order to ensure that the offender continued
to acknowledge
his responsibility and guilt; that he apologised to the victim and
cooperated in establishing conditions through
which she may find
closure; that he recompensed the victim and society by further
supporting the former and rendering community
service to the latter;
and that he continued to maintain his family.’
The judgment of the court below has been reported as
S
v Tabethe
2009 (2) SACR 62
(T).
[11] Against the backdrop set out above, the court below found the
following facts to be substantial and compelling enough to justify
a
departure from a minimum sentence of imprisonment prescribed by the
Act. As required by s 51(3)
(a)
the court below recorded those
facts as follows:
‘
After
establishing the accused’s disposable monthly income and the
fact that the victim was still at school in grade 10, the
court found
that there were a number of substantial and compelling circumstances
that, individually and collectively, justified
the imposition of a
lesser sentence than the minimum sentence of life imprisonment
prescribed by Act 105 of 1997 in Part 1 of Schedule
2 thereto read
with section 51 of the Act. The substantial and compelling
circumstances are the following;
The accused is a first
offender;
The accused exhibited remorse
throughout and
Pleaded guilty at both stages
of the trial;
Genuine remorse should be taken
into account,
S v Genever and Others
[2008] ZAWCHC 7
;
2008 (2) SACR 117
(C);
Although the victim was under
sixteen when the offence was committed, she reached that age within
a few days of that date;
The rape was not preceded by
grooming of the victim but occurred on the spur of the moment;
Although rape is always a
heinous crime, particularly if it occurs within the family,
S v
Abrahams
2002 (1) SACR 116
(SCA), and ought to attract a severe
sentence,
S v M
2007 (2) SACR 60
(W), it is not irrelevant
that the victim was not injured physically;
The rape was therefore not one
of the worst kind of rapes,
S v Nkomo
2007 (2) SACR 198
(SCA);
The accused had remained
involved in the family of which he and the victim were part;
The accused continued to
support the family, including the victim, throughout the period from
the commission of the offence to
the end of the trial;
The accused and the victim’s
mother resumed their cohabitation during the trial and another child
was born from this union
before the sentencing process was
concluded;
The family was entirely
dependent upon the accused;
The victim was fully aware of
this fact and came to the conclusion that it would not be in the
family’s interest that the
accused be incarcerated;
This conclusion was reached in
spite of the fact that the victim was suffering obvious emotional
trauma as a result of the invasion
of her physical, emotional and
psychological integrity to which she had been subjected;
This conclusion was reached by
the victim independently and without obvious outside influence;
The accused and the victim
participated in a successful victim/offender program;
The accused maintained his
employment and fulfilled his obligations in that regard throughout
the trial;
If the accused were to be
sentenced to imprisonment, he would lose his employment and income
and the family would lose its only
source of support;
This might lead to the loss of
the family home;
It was clearly not in the
family’s interest to remove the accused out of their lives;
It was also not in the
interests of society to create secondary victims by the imposition
of punishment upon the accused that
would leave at least five
indigent person[s] dependent upon social grants;
The accused represents no
threat to the community or society at large, as it is highly
unlikely that he will re-offend;
The accused is a good candidate
for rehabilitative therapy and is able to render community service
at a suitable facility that
is available;
He spent four years on bail
while the trial was in progress, attended every single court date
and observed his bail conditions.’
[12] In argument before us, counsel for the appellant launched a
three-pronged attack against the sentence. First, he submitted
that a
sentence based on restorative justice is not appropriate for such an
offence as it failed to reflect the gravity and seriousness
of rape,
particularly the rape of a 15 year old girl. He contented further
that the fact that the respondent stood in a father-daughter

relationship which invariably involved trust made this offence even
more serious. According to him the sentence imposed by the
court
below has the effect of trivialising the offence.
[13] Second, counsel argued further that the court below erred in
overemphasising the personal circumstances of the respondent
at the
expense of the seriousness of the offence and the interests of
society. It was submitted that the sentence is not balanced
as it
does not show that the other two legs of the triad ie the seriousness
and gravity of the offence as well as the interests
of society were
ever considered and weighed against the respondent’s personal
circumstances. Third, he contended that the
court below erred in
suspending the sentence imposed as this is expressly prohibited by s
51(5) of the Act.
[14] On the other hand, counsel for the respondent contented that the
peculiar circumstances of this matter are so exceptional
that they
justified a departure from the minimum prescribed sentence and the
imposition of a sentence based on restorative justice.
He contended
that this sentence has enabled the family of the complainant to
reunite with the respondent, thus achieving reparation
and
reconciliation. In the process, the respondent has apologised to the
complainant who accepted the apology and forgave him.
He contended
that this has resulted in the wound which was inflicted on the
complainant and the family being healed. He concluded
by contending
that the family has shown the willingness to forgive and reconcile
with the appellant, pick up the pieces of their
once-shattered family
life and to go on with their ordinary lives. This was said to be the
resounding victory of restorative justice.
[15] The court had admitted Mrs Skelton, to intervene as amicus
curiae. Her main interest in the case was to assist the court to

understand the theoretical and jurisprudential basis of restorative
justice as an alternative form of punishment in our criminal
justice
system. She conceded correctly, in my view, that rape is very serious
and endemic in our society. Notwithstanding this,
she asserted that
restorative justice heralds a new trend in the sentencing philosophy
where, unlike in the past, the victim’s
voice deserves not only
to be heard but to be accorded appropriate weight in the
determination of a suitable sentence. Relying
on a Canadian case of
R
v Gabriel
1999 CanLII 15050 (ON SC)
she cautioned however against
allowing the victim to become too involved in the sentencing process
as the ultimate responsibility
remains with the court which has to
decide on an appropriate sentence and not the victim.
[16] As far back as 1997, the late Mohammed CJ described rape in
S
v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 5b as follows:
‘
Rape
is a very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity
and the
person of the victim.
The rights to dignity, to
privacy and the integrity of every person are basic to the ethos of
the Constitution and to any defensible
civilisation.’
It is regrettable that notwithstanding this observation the rate of
rape in the country has reached pandemic proportions. It is
no
exaggeration to say that rape has become a scourge or a cancer that
threatens to destroy both the moral and social fabric of
our society.
[17] What is even more disturbing is the emergence of a trend of
rapes involving young children which is becoming endemic. A day

hardly passes without a report of such egregious incidents. Public
demonstrations by concerned members of the society condemning
such
acts have become a common feature of our everyday news through the
media. In many instances such young, defenceless and vulnerable
girls
are raped by close relatives, like in this case, a person whom she
looked upon as a father. Cameron JA describes this kind
of a rape as
follows in
S v Abrahams
2002 (1) SACR 116
(SCA) para 17 as
follows:
‘…
Of
all the grievous violations of the family bond the case manifests,
this is the most complex, since a parent, including a father,
is
indeed in a position of authority and command over a daughter. But it
is a position to be exercised with reverence, in a daughter’s

best interests, and for her flowering as a human being. For a father
to abuse that position to obtain forced sexual access to his

daughter’s body constitutes a deflowering in the most grievous
and brutal sense. That is what occurred here, and it constituted
an
egregious and aggravating feature of the accused’s attack upon
his daughter…’.
[18] There are disturbing features in this case. It is common cause
that although the respondent was not the complainant’s

biological father, he had assumed the role of her father and she
regarded him as such. That he exercised parental authority over
her
is shown by the fact that on the ill-fated day of the rape, he had
gone looking for her. In all likelihood, when he found her
at her
boyfriend’s place, he must have suspected her of some
unbecoming behaviour as she was in an adolescent stage at the
time.
Fearing that he mother might punish her, she implored him to keep
this fact a secret and not to tell her mother. This is
eloquent
testimony of her trust in him which subsequent events proved to have
been misplaced. The respondent took undue advantage
of her and had
unlawful sexual intercourse with her. There is no evidence that she
was sexually active at the time. Such a sexual
assault by someone she
trusted must have caused her serious trauma. Although there is no
evidence of any notable physical injuries,
it is clear that she
suffered serious psycho-emotional harm to a point where her studies
suffered. The court below failed to take
these aggravating features
into account in considering sentence. Evidently this is a
misdirection.
[19] Both counsel for the appellant and respondent were agreed that
this case had serious mitigating factors which qualified as

substantial and compelling enough to justify a departure from the
prescribed minimum sentence. Importantly, both counsel were agreed

that a sentence based on restorative justice can, in suitable
circumstances be a viable sentencing option to be applied in our

criminal justice system. I agree. However, as stated already they
differed on whether such a sentence is appropriate for this type
of
crime, given its prevalence, seriousness and its deleterious effect
on society.
[20] Although restorative justice received a somewhat lukewarm
reception by the judiciary starting tentatively in
S v Shilubane
2008 (1) SACR 295
(T) it has in the last few years grown in its
stature and impact that it has even received the approval of the
Constitutional Court
in
Dikoko v Mokhatla
2006
(b)
SA
235 (CC),
S v M
(Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2008 (3) SA 232
(CC),
The Citizen 1978 (Pty) Ltd v McBride
(Johannesburg and others, Amici Curiae)
2011 (4) SA 191
(CC).
Restorative justice as a viable sentencing alternative has been
accorded statutory imprimatur in the
Child Justice Act 75 of 2008
, in
particular
s 73
thereof. I have no doubt about the advantages of
restorative justice as a viable alternative sentencing option
provided it is applied
in appropriate cases. Without attempting to
lay down a general rule I feel obliged to caution seriously against
the use of restorative
justice as a sentence for serious offences
which evoke profound feelings of outrage and revulsion amongst
law-abiding and right-thinking
members of society. An ill-considered
application of restorative justice to an inappropriate case is likely
to debase it and make
it lose its credibility as a viable sentencing
option. Sentencing officers should be careful not to allow some
over-zealousness
to lead them to impose restorative justice even in
cases where it is patently unsuitable. It is trite that one of the
essential
ingredients of a balanced sentence is that it must reflect
the seriousness of the offence and the natural indignation and
outrage
of the public. This is aptly captured in the trite dictum by
Schreiner JA in
R v Karg
1961 (1) SA 231
(A) at 236A-C where
he stated:
‘
While
the deterrent effect of punishment has remained as important as ever,
it is, I think, correct to say that the retributive
aspect has tended
to yield ground to the aspects of prevention and correction. That is
no doubt a good thing. But the element of
retribution, historically
important, is by no means absent from the modern approach. It is not
wrong that the natural indignation
of interested persons and of the
community at large should receive some recognition in the sentences
that Courts impose, and it
is not irrelevant to bear in mind that if
sentences for serious crimes are too lenient, the administration of
justice may fall
into disrepute and injured persons may incline to
take the law into their own hands. Naturally, righteous anger should
not becloud
judgment. SNYMAN AJ, was bringing home to the appellant
and other persons the seriousness of the offence and the need for a
severe
punishment, and I can find nothing in his remarks to show that
he gave undue weight to the retributive aspect.’
See also
S v Nkambule
1993 (1) SACR 136
(A) at 147c-e;
S v
Mhlakaza
1997 (1) SACR 515
(SCA) at 519d-e; and
S v Di Blasi
1996 (1) SACR 1
(A) at 10f-g.
[21] A controversial if not intractable question remains: do the
views of the victim of a crime have a role to play in the
determination
of an appropriate sentence? If so what weight is to be
attached thereto? That the victim’s voice deserves to be heard
admits
of no doubt. Afterall it is the victim who bears the real
brunt of the offence committed against him or her. It is only fair
that
he/she be heard on amongst other things, how the crime has
affected him/her. This does not mean however that his/her views are
decisive. Whilst grappling with this problem, Ponnan JA enunciated
the following principle in
S v Matyityi
2011 (1) SACR 40
(SCA)
paras 16-17:
‘
An
enlightened and just penal policy requires consideration of a broad
range of sentencing options, from which an appropriate option
can be
selected that best fits the unique circumstances of the case before
court. To that should be added, it also needs to be
victim-centred.
Internationally the concerns of victims have been recognised and
sought to be addressed through a number of declarations,
the most
important of which is the UN Declaration of the Basic Principles of
Justice for Victims of Crime and Abuse of Power. The
declaration is
based on the philosophy that adequate recognition should be given to
victims, and that they should be treated with
respect in the criminal
justice system. In South Africa victim empowerment is based on
restorative justice. Restorative justice
seeks to emphasise that a
crime is more than the breaking of the law or offending against the
State - it is an injury or wrong
done to another person. The Service
Charter for Victims of Crime in South Africa seeks to accommodate
victims more effectively
in the criminal justice system. As in any
true participatory democracy its underlying philosophy is to give
meaningful content
to the rights of all citizens, particularly
victims of sexual abuse, by reaffirming one of our founding
democratic values, namely
human dignity. It enables us, as well, to
vindicate our collective sense of humanity and humanness. The charter
seeks to give to
victims the right to participate in and proffer
information
during the sentencing phase. The victim is thus afforded a more
prominent role in the sentencing process by providing
the court with
a description of the physical and psychological harm suffered, as
also the social and economic effect that the crime
had and, in
future, is likely to have. By giving the victim a voice the court
will have an opportunity to truly recognise the wrong
done to the
individual victim.
(See
generally Karen Muller & Annette van der Merwe 'Recognising the
Victim in the Sentencing Phase: The Use of Victim Impact
Statements
in Court'.)
By accommodating the victim
during the sentencing process the court will be better informed
before sentencing about the after-effects
of the crime. The court
will thus have at its disposal information pertaining to both the
accused and victim, and in that way hopefully
a more balanced
approach to sentencing can be achieved. Absent evidence from the
victim, the court will only have half of the information
necessary to
properly exercise its sentencing discretion. It is thus important
that information pertaining not just to the objective
gravity of the
offence, but also the impact of the crime on the victim, be placed
before the court. That in turn will contribute
to the achievement of
the right sense of balance and in the ultimate analysis will enhance
proportionality, rather than harshness.
Furthermore, courts generally
do not have the necessary experience to generalise or draw
conclusions about the effects and consequences
of a rape for a rape
victim…’.
[22] I agree that this case presents a panoply of facts which qualify
as substantial and compelling to justify a departure from
the
prescribed minimum sentence. However, I am not persuaded that such
facts justified a wholly suspended sentence, or one based
on
restorative justice. It is trite that in addition to deterring an
accused person from committing the same offence in the future,
a
sentence must also have the effect of deterring like-minded people.
Rape of women and young children has become cancerous in
our society.
It is a crime which threatens the very foundation of our nascent
democracy which is founded on protection and promotion
of the values
of human dignity, equality and the advancement of human rights and
freedoms. It is such a serious crime that it evokes
strong feelings
of revulsion and outrage amongst all right-thinking and self
respecting members of society. Our courts have an
obligation in
imposing sentences for such a crime, particularly where it involves
young, innocent, defenceless and vulnerable girls,
to impose the kind
of sentences which reflect the natural outrage and revulsion felt by
law-abiding members of society. A failure
to do so would regrettably
have the effect of eroding the public confidence in the criminal
justice system. Regrettably, the court
below omitted to pay attention
to these important considerations. In fact it is clear to me that the
court below accorded undue
weight to the respondent’s personal
circumstances and paid scant regard to the seriousness of the offence
and the broader
interests of society. It appears to me that the
learned judge in the court below inadvertently allowed maudlin
sympathy for the
respondent to cloud his better judgment. The result
is a sentence which is disturbingly disproportionate to the
seriousness of
the offence. Any crime that threatens the well-being
of society deserves a severe punishment.
[23] It is true that
s 51(5)(a)
precludes a sentencing court from
suspending a sentence imposed in terms of this Act. It follows that
the court below erred in
having the sentence wholly suspended.
[24] There is yet another aspect of this case which deserves some
attention. Whilst the complainant was testifying under oath,
the
presiding judge interrupted her and asked her as follows:
‘
Are
you very certain that the accused has not molested you since the
first char
ge
was laid against him? ― Yes
.
You
have sworn to tell me the truth? ― Yes
.
Then it is in your own best
interest
to do so. Would you like to see me alone? ― No
.
Okay. I am going to see the
witness in chambers.’
[25] It is common cause that, notwithstanding the fact that the
complainant responded clearly that she did not wish to see the

presiding judge in his chambers, the presiding judge proceeded to see
her in the company of his registrar in chambers. Neither
the
complainant’s mother nor the two counsel were invited to be
present. The presiding judge had a private conversation with
the
complainant who was still under oath in his chambers.
[26] Section 35(3)(c) of the Constitution provides that every accused
person has a right to a fair trial which includes the right
to a
public trial before an ordinary court. Furthermore, it is an
established practice in our criminal justice system that unless
there
are exceptional circumstances, all trials must be held in open
courts. This is in line with the hallowed principle of open
justice.
The benefit of holding trials in open courts is to afford the public
the opportunity to attend and observe how our courts
function. This
also resonates with the constitutional principles of openness,
transparency and accountability. Judges should never
be seen to be
conducting the affairs of the courts in secrecy unless in exceptional
circumstances where both sides have been consulted.
Such conduct will
undermine the public confidence in our justice system.
[27] Importantly it is crucial that judges be seen to be independent
and impartial. It is equally important that witnesses who
testify in
our courts testify freely and without any undue influence. It is
trite that once a witness has taken the witness-stand
that nobody
should be allowed to consult with such a witness, as there might be a
reasonable fear that he/she might be influenced
to change his/her
evidence. It follows that it was inappropriate for the presiding
judge to speak to the complainant secretly in
his chambers in the
absence of other interested parties. I hasten to add that I do not
intend to attribute any malice or mala-fides
to the presiding judge.
It might well be that he was motivated by the interests of the
complainant. But still that does not make
his intervention free of
adverse reasonable perception of impropriety.
[28] One other aspect which merits special attention is the
conditions imposed on the sentence to be served by the appellant.
Both counsel were agreed that some of the conditions were impractical
to implement. Some are so over-broad and onerous that they
are
patently unfair to the respondent. I agree. It is an established
principle that conditions for the suspension of a sentence
must be
crafted in such a clear manner that it is easy for the accused to
know what they entail and to be so practical that an
accused will be
able to comply with them without being exposed to undue hardship.
[29] In conclusion s 51(2) read with Part III of Schedule 2 of the
Act provides for a prescribed minimum sentence of not less than
10
years for a first offender unless the court finds substantial and
compelling circumstances to justify a lesser sentence. As
a first
offender this is the sentence for which the respondent ordinarily
qualified. In terms of s 51(5)(a) of the Act such a sentence
cannot
be suspended as contemplated in
s 297(4)
of the
Criminal Procedure
Act.
[30
] Having weighed all the circumstances of this case against the
legislative benchmark explicitly set by the Act and endorsed in
S
v Malgas
2001 (1) SACR 469
(SCA), I am of the view that the
appropriate sentence for the respondent is a term of imprisonment of
10 years.
[31] In the result, I make the following order:
(a) The appeal against sentence is upheld.
(b) The sentence imposed by the court below is set aside and replaced
with 10 years’ imprisonment.
____________
L O Bosielo
Judge of Appeal
APPEARANCES:
For
Appellant: FC Roberts SC
Instructed
by:
Legal Aid
South Africa, Pretoria
Legal Aid
South Africa, Bloemfontein
For
Respondent: Mr HF Alberts
Instructed
by:
Director
of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein