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[2022] ZAMPMBHC 51
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S v Janse van Rensburg (CC70/2020) [2022] ZAMPMBHC 51 (21 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
CASE
NO: CC 70/2020
DPP
REF: M23/2020
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES:NO
REVISED:NO
21
June 2022
In
the matter between:
THE
STATE
v
NICHOLAS
HENDRIK JANSE VAN RENSBURG
ACCUSED
JUDGMENT
ON SENTENCE
MOOSAJ
:
[1]
MR NICHOLAS HENDRIK JANSE VAN
RENSBURG ('accused')
has
been
found guilty on Friday, 01 April 2022, on the following charges:
[a]
COUNT 1
:
MURDER
READ WITH THE PROVISIONS OF SECTION 51(1)(a) AND PART 1 OF
SCHEDULE 2 OF ACT 105 OF 1997
IN
THAT
on
or
about
13 October
2019
and
at or near
Mjejane
RDP
next to Walala Wasala Tuck-shop in the district of Komatipoort the
accused did unlawfully and intentionally assault
ZITHA
ANDISWA NANCY,
an adult female by
beating her causing serious injuries as a result whereof the said
ZITHA ANDISWA NANCY
died
on 15 October 2019 in the Tonga Hospital.
[b]
COUNT 2:
RAPE
READ WITH THE PROVISIONS OF SECTION 51(1) OF ACT 105 OF 1997
IN
THAT
on or about the date and at or
near the place mentioned in count 1, the accused did unlawfully
commit an act of sexual penetration
with
ZITHA
ANDISWA
NANCY,
a female person,
by inserting
a wooden spoon into her vagina, more
than once, without her consent.
[2]
The court in imposing
sentence,
must have due regard to the facts of the
case, and in addition thereto, must apply certain well-established
legal principles relating
to the extent and magnitude of punishment.
An awesome responsibility is thereby vested in the Court.
[3]
The acknowledged objects and purpose of
criminal punishment are deterrent, preventive, reformative and
retributive.
[4]
What
must also be considered is the triad consisting of the crime, the
offender and the interests of society.
[1]
I am in respectful agreement with what has been stated in these
cases. The elements of the triad contain an equilibrium
and
a
tension.
A
court
should
when
determining
sentence,
strive
to accomplish and arrive at a judicious counterbalance between these
elements
in order to ensure that one element is not unduly accentuated at the
expense
of
and
to
the exclusion
of
the
others.
This
is
not merely
a
formula, nor a judicial incantation, the mere stating whereof
satisfies the requirements. What is necessary
is
that the court shall consider,
and
try to balance evenly, the
nature
and
circumstances
of
the
offence,
the
characteristics
of
the
offender
and
his
circumstances
and
the
impact
of
the
crime
on
the community, it's welfare and concern. This conception as expounded
by the courts is sound and is incompatible with anything
less.
Therefore all the elements of the triad, although not identical are
in dissociable.
[5]
The nature
of the crime is of
considerable
importance.
It
may
be of such
significance
or so far reaching
that a lengthy period of imprisonment is
the only adequate punishment. In passing sentence the trial court
must take into account
the moral and ethical nature of the crime, and
the gravity of the offence.
It
is
accepted
and is indeed
logical
that
a
more
serious
crime will carry with it a greater moral
blameworthiness than a minor or less serious offence. This involves a
moral and value judgment.
A process of arid intellectualism is
insufficient.
Mere
theorising is insufficient.
What
matters finally is how the court views the crime on its own merits,
and all the relevant proven facts and circumstances must
be carefully
considered and assessed.
[6]
Merely
to
find that a crime by itself is serious without regard to it's setting
and it's factual context, and thereby concluding
that the crime committed by the offender
is therefore
also serious, is not appropriate,
and may result in a serious
misdirection. The court does not and cannot rely on a catalogue of
crimes. To do so would result in
a purely mechanistic approach,
whereby the court, in it's judicial discretion, would fail to pay due
regard to the facts and circumstances
of
the particular crime.
The
sentence
therefore
must
be commensurate
with
the gravity
or
otherwise
of the crime, and is a necessary concomitant of punishment.
[2]
[7]
In
considering the offender, due regard must be had, inter alia, to the
following: his/her age and background; level of education,
attainment, and position
in
society;
family
circumstances,
whether
married
or
not,
and
the
question
of
dependants;
motive
in committing
the
offence,
whether
for
personal gain or for reasons of avarice, or being actuated by some
moral or laudable objective; whether the offender stood to
gain by
the offence; the question of the accused being a first offender; the
effect of punishment on the offender, and more particularly
if a
sentence of imprisonment is imposed; the prospects of reformation and
correction, and becoming a useful member of society;
the presence or
absence of remorse or contrition; whether instead of imprisonment
an
alternative
method
of
punishment
would
not
be
appropriate
in the circumstances; a perceptive understanding of the accused's
human frailties as effected by the circumstances surrounding
the
commission of the offence in question and a balancing of those
frailties against the evil of the offender's deed
[3]
;
influence or encouragement
of
another
[4]
.
[8]
Due weight must be given to the personal
circumstances of the
accused.
As a general principle equal punishment for equal offences is to be
imposed unless the personal characteristics of the
respective accused
make such differentiation necessary.
[9]
The feelings and requirements of the
community, the protection of society against the accused and other
potential offenders must
be considered, as well as the maintenance
of peace and tranquility in the land
needs to be taken into account. Whilst considering the interests of
society as a factor in
determining sentence, the interests of society
should not be over-stressed to the detriment of the personal factors
of the accused.
I
pause to mention that a balance should be maintained between the
different elements of the triad.
[10]
It is noteworthy to mention that this triad has been criticised as
inadequate, as the role of
the victim is not emphasised. This anomaly
has caused
the
courts
to
now
give
serious
consideration
to
the
victim
during
sentencing proceedings. This phenomenon has been termed as the
squaring
of
the triad.
[11]
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.
[5]
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 deciarations, the most
important of which is the UN Declaration of the Basic Principles
of
Justice for Crime and Abuse of Power.
[6]
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.
[7]
The
underlying
philosophy
of
the
Service
Charter
for
Victims
of
Crime
in
South Africa
[8]
(also referred
to
as Victim's
Charter)
is
to give meaningful content to the rights of all citizens, by
reaffirming one of our founding democratic values namely human
dignity.
[9]
[12]
By
accommodating the victim and/or their representative 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 tc sentencing can be achieved. Absent evidence from the
victim and/or their families,
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 and/or
their families 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.
[10]
[13]
The
convictions
in
this
case
relate
to
the
cold
blooded,
callous, heinous, egregious, systematic,
predatory, opportunistic, wretched, despicable and contemptible
conduct on the part of
the accused. His conduct further clearly
displays an absolute flagrant disregard for the sanctity of human
life.
[14]
The Accused has been found guilty of one
count of Murder and Rape read with
Section
51(1)
of
the
Criminal
Law
Amendment
Act
105
of
1997,
which prescribes the imposition of life imprisonment, on each count.
[15]
It is clear from the evidence before
this court, that the conduct of the accused involved a wanton
disregard for his victim; an
element of planning and premeditation,
and a single-minded resolve on his part to commit the crimes, for
which he has been convicted
off. His behaviour and conduct can be
described, and may be likened to a Slubberdegullion. This conclusion
is fortified by the
fact that he set upon the deceased in a vicious,
brutal and unrelenting manner, like a hyena.
[16]
I have duly taken note of the fact that
the accused does not have any previous convictions, and accordingly
stands as a first offender
before this Court.
[17]
The accused testified,
inter alia,
in
mitigation of sentence,
as
follows:
[a]
He was born
on 19 August
1981
and
is currently
40
(forty)
years
old. His highest standard of education is Standard 8 (eight), which
he completed in 1999.
[b]
He is married
and has
one
son
who
is 18 years old,
and
three daughters who are 13, 12 and 6 years old respectively. His son
resides with the accused's
friends
in Mbombela,
whilst
his daughters
are
with his wife in Swaziland.
[c]
He
was
employed
at
Jodie
and
Sons,
Malelane
as
a
boiler
maker, fitter and turner and mechanic, earning a salary of R 15
000,00 (fifteen thousand rand) per month just prior to his
arrest.
Thereafter, his step-father has been sending money to his wife, and
who has been residing with her brother in Swaziland.
[d]
He
was
responsible
for
the
maintenance
and
support
of
his
family prior to his arrest, as he was the sole breadwinner. His wife
is unemployed,
as
she has been diagnosed with leukemia.
[e]
He
has
been
in
custody
since
October
2020,
pending
the
finalisation of his trial.
[f]
He requested that this Court deviates in
the imposition of the prescribed minimum sentence, as he needs to
raise and support his
children.
That
in essence concluded the evidence of the accused in mitigation of
sentence.
[18]
Mr Manzini made the following
submissions,
inter
a/ia,
on behalf
of the accused in mitigation of
sentence:
[a]
Submitting
that
the
personal
circumstances
of
the
accused together with the mitigating
factors can be cumulatively regarded as substantial and compelling
circumstances, and which
would cause this court to deviate from the
imposition of the prescribed minimum
sentence.
[b]
Further,
that
the
Court
take
into
account
the
time
spent by
the accused, whilst awaiting the
finalisation of his trial.
That
in essence concluded the submissions on behalf of the accused.
[19]
Anton
Zitha
('Zitha'),
the
deceased's
uncle
testified,
inter
alia,
in aggravation of sentence as
follows:
[a]
The deceased is his late brother's
daughter, and he took the deceased in when her father passed on. He
resided with her from the
time when she was 13 (thirteen)
years old, until she turned 15
(fifteen). The deceased thereafter went to live with his aunt.
However, he was responsible for the
deceased's maintenance.
[b]
The
deceased
was unemployed
and
she
took
care
of her
aunt
who was 80 (eighty) years old.
[c]
He
is
very
heartbroken
at
the
death
of
the
deceased,
and
her
untimely death has really affected him.
That
is essence concluded the evidence of this witness, in aggravation of
sentence.
[20]
Ms
Bekwa
submitted
that
this
Court
take
into
account
the
following factors in aggravation of
sentence:
[a]
The accused have been convicted of very
serious crimes, and the nature thereof is nothing but heinous.
[b]
The accused has not shown any remorse
for his conduct.
[c]
The Court take into account that this is
a gender based violence case, and that during 2020 the President of
the Republic of South
Africa declared
that
gender
based
violence
is
now
becoming
a
pandemic in South Africa.
[d]
Further,
that
the
court
take
into
account
that
there
are
no
substantial
and
compelling circumstances that could cause this court to deviate in
the imposition of the prescribed minimum sentence, where
applicable.
That
in essence concluded the submissions of the State in aggravation of
sentence.
[21]
The crime of rape, which the accused has
been convicted
off.,
is extremely serious, and in addition thereto it is settled that
these crimes are extremely prevalent and are becoming
a rampant scourge and the order of the
day.
Majiedt
JA
in
S
v
SMM
2013
(2)
SACR
(292)
(SCA)
at
297
f
-
298
B (paragraph 14)
stated as follows:
"our
country is plainly facing a crisis of epidemic proportions in respect
of rape, particularly of young children. The rape
statistics induce a
sense of shock and disbelief. The concomitant violence in many rape
incidents engenders resentment, anger and
outrage. Government has
introduced various programmes to stem the tide, but the sexual abuse
of particularly women and children
continues unabated.
In S v RO and another
2010 (2) SACR 248
SCA, I referred to this extremely worrying social malaise, to the
latest statistics at that time in respect of sexual abuse of
children
and also to the disturbingly increasing phenomenon of sexual abuse
within the family context. If anything, the picture
looks even
gloomier now, three years down the line. The public is rightly
outraged by this rampant scourge. There is consequently
increasing
pressure on our courts to impose harsher sentences primarily, as far
as the public is concerned, to exact retribution
and to deter further
criminal conduct. It is trite that retribution is but one of the
objectives of sentencing. It is also trite
that in certain cases
retribution will play a more prominent role than the other sentencing
objectives. But one cannot only sentence
to satisfy public demand for
revenge - the other sentencing objectives, including rehabilitation,
can never be discarded altogether,
in order to attain a balanced,
effective
sentence."
[22]
Our
courts
have repeatedly
pronounced
on the
devastating
effects
of
the abuse
of
woman
and
children
and
the
approach
to
be
adopted
by
the
courts. In
S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA);
[1997}
3 All SA
277
(A),
a
decision preceding
the
enactment
of Act 105
of 1997,
Mohamed
CJ
said: '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
civilization.
Women
in
this country are entitled to the protection
of these rights. They have a legitimate
claim to walk peacefully on the streets, to enjoy their shopping and
their entertainment,
to go and come from work, and to enjoy the peace
and tranquility of their homes without the fear, the apprehension and
the insecurity,
which constantly diminishes the quality
and
enjoyment
of
their
lives. The appellant
showed
no
respect
for
their
rights.
He
prowled
the
street
and
shopping
malls
and
in
a
short period
of one
week
he
raped
three young
women,
who
were
unknown
to
him. He deceptively
pretended
to care for them
by giving them lifts and then proceeded
to rape them callously
and
brutally,
after
threatening them with a knife. At no stage, did he show the slightest
remorse. The Courts are under a duty to send a clear
message to the
accused, to other potential rapists and to the community: We are
determined to protect the equality, dignity and
freedom of all women,
and we shall show no mercy to those who seek to invade those rights.'
[23]
In
OPP, North Gauteng v Thabethe
2011 (2) SACR 567 (SCA) 577g-i
the
court stated:
'Rape
of women and young children has become cancerous in our society. It
is a crime which threatens the very foundation of our
recent
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
the 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.'
[24]
In
Mashigo
and another v The State
(20108/2014)
[2015]
ZASCA 65
(14 May 2015)
Bosie\o JA
remarked at para 31:
"It
is sad and a bad reflection on our society that 21 years into our
nascent democracy underpinned by a Bill of Rights, which
places a
premium on the right to equality (s 9) and the right to human dignity
(s 10), we are still grappling with what has now
morphed into a
scourge to our nation... Needless to state that courts across the
country are dealing with instances of... abuse
of women and children
on a daily basis. Our media in general is replete with gruesome
stories of ... women and child abuse on a
daily basis."
[25]
On 15 June 2017, the Constitutional
Court in
Nd\ovu v S (CCT174/16)
[2017] ZACC 19
(15 June 2017)
in
relation to the responsibilities of prosecutors and courts said al
para 53:
"Mr
Ndlovu's crime is just one instance of one of the most harrowing and
malignant crimes confronting South Africa today -
rape. Rape is
perhaps the most horrific and dehumanising violation that a person
can live through and is a crime that not only
violates the mind and
body of a complainant, but also one that vexes the soul. This crime
is an inescapable and seemingly ever-present
reality and scourge on
the nation and the collective conscience of the people of South
Africa."
[26]
In
N v T
1994 (1) SA 862
Cat
864G
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
Nesche
[2005] ZAGPHC 21
;
2005
(2) SACR 386
(WLD) at 395 g -
j
the
court stated as follows: "Rape is an appalling and utterly
outrageous crime, gaining nothing of any worth for the perpetrator
and inflicting terrible and horrific suffering and outrage on the
victim and her family. It threatens every woman, and particularly
the
poor and vulnerable. In our country, it occurs far too frequently and
is currently aggravated by the grave risk of the transmission
of
Aids. 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 expect our courts to punish rapists very
severely.''
[27]
In
Kearns
v The State
2009
(2) SACR
684
GSJ
[also
reported
al
[2009] JOL 24205
(GSJ) at 690 Jajbhay J,
inter
a/ia,
remarked that: "A rapist
not only violates the victim's privacy and personal integrity, but
inevitably causes serious psychological
as well as physical harm in
the process. Rape is not merely a physical assault it is often
destructive of the whole personality
of the victim. A murderer
destroys the physical body of his victim. The physical scar may heal
up, but the mental scar will always
remain. When a woman is ravished,
what is inflicted is not merely physical injury but the deep sense of
some deathless shame. It
is violation with violence of the private
person of a woman. This constitutes an outrage by all means. By the
very nature of the
offence it is an obnoxious act of the highest
order."
[28]
In the case of
AM
v S
[2017] JOL 39064
(GP) 11
the
following was said: "Rape is a repulsive crime. It is an
invasion of the privacy, the dignity and the person of a woman/child;
truly a violation of any woman and/or child's privacy and dignity and
is bound to have adverse psychological impact on any rape
victim.
Whilst this court may not presume that the appellant's conduct
inclines towards a strong prospect against rehabilitation
the
appropriate sentence in this case should bring home to the appellant
and likeminded people that:
(i)
Rape is a serious
offence that will not be tolerated in
our society;
(ii)
Women
have
the
right
to
bodily
integrity
and
the
law
will
bear heavily on those who violate their
rights;
(iii)
The
molestation
and
abuse
of
children
likewise,
will
never
be tolerated."
[29]
In
the seminal judgment of
S
v Malgas
[11]
at paragraphs 7 and 8, the following was said per Marais JA regarding
the provisions of the Minimum Sentence legislation: "The
very
fact that this amending legislation has been enacted indicates that
parliament was not content with that and that it was no
longer to be
"business as usual" when sentencing for the commission of
the specified crimes".
"In
what respects was it no longer to be business as usual? First, a
court was not to be given a clean slate on which to inscribe
whatever
sentence it thought fit. Instead, it was required to approach that
question conscious of the fact that the legislature
has ordained life
imprisonment or the particular prescribed period of imprisonment as
the sentence which should ordinarily be imposed
for the commission of
the listed crimes in the specified circumstances. In short, the
legislature aimed at ensuring a severe, standardised,
and consistent
response from the courts to the commission of such crimes unless
there were, and could be seen to be, truly convincing
reasons for a
different response. When considering sentence the emphasis was to be
shifted to the objective gravity of the type
of crime and the
public's need for effective sanctions against it. But that did not
mean that all other considerations were to
be ignored. The residual
discretion to decline to pass the sentence which the commission of
such an offence would ordinarily attract
plainly was given to the
courts in recognition of the easily foreseeable injustices which
could result from obliging them to pass
the specified sentences come
what may".
"Secondly,
a court was required to spell out and enter on the record the
circumstances which it considered justified a refusal
to impose the
specified sentence Moreover, those circumstances had to be
substantial and compelling. Whatever nuances of
meaning may lurk in
those words, their central thrust seems obvious. The specified
sentences were not to be departed from lightly
and for ftimsy reasons
which could not withstand scrutiny. Speculative hypotheses favourable
to the offender, maudlin sympathy,
aversion to imprisoning first
offenders, personal doubts as to the efficacy of the policy implicit
in the amending legislation,
and like considerations were equally
obviously not intended to qualify as substantial and compelling
circumstances.
Nor
were marginal differences in the personal circumstances or degrees of
participation of co offenders which, but for the
provisions,
might have justified differentiating between them. But for the rest I
can see no warrant for deducing that the legislature
intended a court
to exclude from consideration, ante omnia as it were, any or all of
the many factors traditionally and rightly
taken into account by
courts when sentencing offenders. The use of the epithets
"substantial" and "compelling"
cannot be
interpreted as excluding even from consideration any of those
factors. They are neither notionally nor linguistically
appropriate
to achieve that. What they are apt to convey, is that the ultimate
cumulative impact of those circumstances must be
such as to justify a
departure.
It
is axiomatic in the normal process of sentencing that, while each of
a number of mitigating factors when viewed in isolation
may have
little persuasive force, their combined impact may be considerable.
Parliament cannot have been ignorant of that. There
is no indication
in the language it has employed that it intended the enquiry into the
possible existence of substantial and compelling
circumstances
justifying a departure, to proceed in a radically different way,
namely, by eliminating at the very threshold of
the enquiry one or
more factors traditionally and rightly taken into consideration when
assessing sentence. None of those factors
have been singled out
either expressly or impliedly for exclusion from consideration".
[30]
In
S
v Malgas
supra,
S
v Dodo
[12]
and
S
v Vilakazi
[13]
regarding
the imposition of an appropriate and proportional sentence in the
context of the prescribed minimum sentence of life imprisonment
and
the "determination" for when the prescribed sentence may be
departed from. The following extract from
Vilakazi,
paragraph
3 is apposite: "... the Constitutional Court reminded us in S v
Dodo that punishment must always be proportionate
to the deserts of
the particular offender -
no
less but also no more -
for
all human beings ought to be treated as ends in themselves, never
merely as means to an end".
[31]
Mercy
is regarded as a concomitant of justice. In
S
v Rabie
[14]
at 861 D et seq, Holmes JA stated: "Then there is the approach
of mercy or compassion or plain humanity. It has nothing in
common
with maudlin sympathy for the accused. While recognising that fair
punishment may sometimes have to be robust, mercy is
a balanced and
humane quality of thought which tempers one's approach when
considering the basic factors of letting the punishment
fit the
criminal, as well as the crime, and being fair to society".
[32]
It
is trite that sentencing is generally a matter of discretion left in
the hands of the court-passing sentence. The discretion,
however, may
not be exercised arbitrarily, but reasonably and judicially within
the parameters of legislative
prescription.
Given
the
current
levels
of
violence
and
serious
crimes in this country, it seems proper that, in sentencing
especially such crimes, the emphasis should be on retribution
and
deterrence.
[15]
Retribution
may even be decisive.
[16]
[33]
What
appears from the aforementioned cases is that 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 is not required 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
[17]
[34]
Accordingly,
the
need for a strong
emphasis
to
deter violent crime in our society
is
an
absolute
necessity
that
should
not
be
compromised
or
subjected to any further scrutiny. The State is therefore enjoined,
and indeed compelled, to be resolute in protecting human
life against
violation by others who are found wayward. The level of crime in our
society has reached dangerously
alarming
proportions.
It
is the duty
of
this Court in as much as it is
the
duty of the courts of the land elsewhere
to
deal with violent crime firmly as far as the letter of the law can
stretch
[18]
[35]
We are no closer now than we were in
1998 when the Criminal Law Amendment
Act
105 of 1997
was
enacted
as
a short term measure
to deal with the rampant crime wave
which engulfed our country. The minimum sentences mandated by the
Legislature have become a
permanent feature on our statute books with
no deterrent effect.
The
remarks by Ponnan JA in S v
Matyityi
are apposite:
'Despite
certain limited successes there has been no real let-up in the crime
pandemic that engulfs our country. The situation continues
to be
alarming. It follows that, to borrow from
Ma/gas,
it still is
'no longer business as usual'. And yet one notices all too frequently
a willingness on the part of sentencing courts
to deviate from the
minimum sentences prescribed by the legislature for the flimsiest of
reasons - reasons, as here, that do not
survive scrutiny. As Ma/gas
makes plain courts have a duty, despite any personal doubts about the
efficacy of the policy or personal
aversion to it, to implement those
sentences. Our courts derive their power from the Constitution and
like other arms of state
owe their fealty to it. Our constitutional
order can hardly survive if courts fail to properly patrol the
boundaries of their own
power by showing due deference to the
legitimate domains of power of the other arms of state. Here
parliament has spoken. It 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 such as 'relative youthfulness' or
other equally vague 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,
is foundational to the rule of law which lies at
the heart of our constitutional order.'
[36]
In
S
v
Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC) the
Court reiterated at para 8 that: "A sentence of imprisonment for
life, irrespective of the policies and procedures
to which such
sentence may be subjected by the Department of Correctional Services,
must be regarded by the Court imposing it as
having the potential
consequence, at the very least, that the accused so sentenced will
indeed be incarcerated until his death.
It is an extreme sentence. It
is the most severe sentence, which may lawfully be imposed on an
accused such as the one now before
Court. It is a sentence which, in
the ordinary course, requires a meticulous weighing of all relevant
factors before a decision
to impose it can be justified.'
[37]
It is equally important
to remind ourselves
that sentencing should always be
considered and passed dispassionately, objectively and upon a
consideration of all relevant factors.
Public sentiment cannot be
ignored, but it can never
be
permitted
to
displace
the
careful
judgment
and fine
balancing that is involved at arriving
at an appropriate sentence. Courts must therefore always
strive
to
arrive
at a
sentence,
which
is just and fair to both the victim and
the perpetrator,
has regard
to
the
nature
of
the crime
and
takes
account of the interests of society.
[38]
Sentencing
involves a very high degree of responsibility, which should be
carried out with equanimity. I am reminded of the comments
of Corbett
JA in
S
V
Rabie
[19]
"
a judicial officer should not approach punishment in a spirit of
anger, because, being human, that will make it difficult
for him to
achieve that delicate balance between the crime, criminal and the
interest of society which his task and the objects
of punishment
demand of him. Nor should he strive alter severity; nor, on the other
hand, surrender himself to misplaced pity.
While not flinching from
firmness, where firmness is called for, he should approach his task
with a humane and compassionate understanding
of human frailties and
the pressures of society which contribute to criminality".
[39]
It
is necessary to reiterate a self-evident reality. Rape is undeniably
a degrading, humiliating
and
brutal invasion of a person's most intimate, private space.
[20]
The very act itself, even absent any accompanying violent assault
inflicted by
the
perpetrator,
is
a
violent
and
traumatic
infringement
of
a
person's
fundamental
right
to
be free from all forms
of
violence
and
not to be treated in a cruel, inhumane or degrading way.
[21]
I pause to mention that it is clear from the evidence, that the
accused violently penetrated the deceased with a large wooden spoon
several times, and which caused her to ultimately succumb to the
horrific injuries suffered, as a direct result of his barbaric
conduct.
[40]
In
S
v
Vilakazi,
[22]
Nugent
JA
referred
to
the
study
done
by
Rachel
Jewkes and Naeema Abrahams on the epidemiology
of
rape
[23]
which
concluded on the available evidence that "women's right to give
or withhold consent
to
sexual
intercourse
is
one
of
the
most
commonly
violated
of
all,
human rights in South Africa'.
[41]
I have duly taken cognisance of the
rampant scourge of crimes of violence against women and children that
are being perpetrated
daily. The prevalence
of
these
offences
in
South Africa is seriously
concerning.
According to research conducted by Ullman (2010) sexual violation has
deep and long lasting effects including physical,
psychological and
emotional harm on its victims as a result of being stripped
off their dignity and being violated.
In
my view it surely would be a sad indictment upon this court if it
does not heed the call of government, the cry from civil society
and
the victims of this heinous crime. I am of the view that this
systemic disease needs to be quashed, and the courts have been
enjoined to view such matters in a very serious light.
[42]
It is noteworthy to mention that this
court is duly enjoined to look at the aggravating and mitigating
circumstances and once these
are carefully considered, to determine
as lo whether there are substantial and compelling circumstances
that
will
cause
it
to
deviate
from
the
imposition
of
the prescribed minimum sentence of life
imprisonment.
[43]
The court
will bear
in mind that there is no
onus
placed
on the
accused
to prove the presence
of
substantial
and
compelling circumstances, or on the State to prove the absence of
such substantial and compelling circumstances. However, there
rests a
clear duty on an accused to produce evidence to convince the court
that circumstances exist, which justify the imposition
of a lesser
sentence. It stands to reason that such substantial and compelling
circumstances may also be inferred to be present
in the State's case
or in evidence
presented
by
State
witnesses
or
by the prosecution
itself.
If no factual basis is laid for a finding that substantial and
compelling circumstances exist which justify the imposition
of a
lesser sentence than the prescribed sentence,
it follows
that a
court
will
be
obliged
under
the
statutory
provisions to impose the prescribed
sentence.
[44]
This court is also aware of the various
authorities where it was settled that substantial
and compelling
circumstances
should not be found, based on flimsy
reasons.
S v Malgas
supra.
[45]
In
S v M
2007
(2)
SACR
60
(W)
-
Satchwell
J
remarked
as
follows:
"l
take into account that the accused has no previous convictions and he
is
a man in
his sixties. However, 1 must take into account that there is no
authority for the proposition that the previous clean record
of an
accused convicted of offences in Part 1 of Schedule 2 constitutes in
and of itself, a 'substantial and compelling circumstance'.
At most,
it would be one of the considerations taken into account for
exploring the possibility that, in conjunction with other
factors, it
may persuade the sentencing court to make such a finding."
Consequently,
I have duly applied my mind lo this aspect in respect of the accused.
[46]
I have duly given due cognisance to the
principles that need to be applied when imposing a suitable
punishment upon the accused.
I have carefully looked at the
aggravating as opposed lo the mitigating factors, and have taken all
other circumstances and factors
relevant to sentencing and measured
ii against the composite yardstick ("substantial and
compelling), in order to properly
determine whether the
aforementioned cumulatively justify a departure from the standardised
response that the legislature has ordained.
[47]
After careful consideration of all the
evidence before me, and taking into account
all
the
aggravating
and
mitigating
and
other
factors
that
I
am required to take into account, I am
of the view that as far as the accused is concerned,
no
substantially
compelling
circumstances
exist
to
deviate
from the imposition of the prescribed
minimum sentence, where appropriate.
[48]
Further, I believe that there can simply
be no other suitable sentence to be imposed
in these
circumstances
having
due
regard
to
the
heinous,
wanton and reckless conduct of the
accused. To this end, I have duly taken into consideration
the
following
facts,
and
which
have
impelled
me
to
conclude
that there should not be any deviation in the imposition of the
prescribed minimum sentence upon the accused:
[a]
The repeated penetration of the
deceased's vagina with a large wooden spoon is but nothing short of
barbaric and heinous.
[b]
The magnitude of the injuries suffered
by the deceased, and which ultimately led to her demise.
[c]
The seriousness of the crimes.
[d]
The callousness of the accused's
conduct, and to the extent that it is simply senseless, cold-blooded
and merciless.
[e]
The lack of genuine remorse on the part
of the accused.
[f]
The degree of planning and premeditation
involved in the commission of the crime.
[g]
The level
of
violent
crime
in
our
society
has
reached
dangerously alarming proportions, and more especially the
sexual violence towards women and
children.
[49]
I have duly taken into account and given
credence to the evidence that has been
presented,
having
due
regard
to
the triad
as
espoused
in
S
v
Zinn
supra,
together
with
the
overall
impact
on
the
victim's
family,
when considering
a suitable
sentence
to
be
imposed.
I
have
carefully
considered the mitigating and
aggravating factors present in this case, whilst carefully weighing
and balancing them against each
other. I have taken all the factors
that are necessary,
and
as I
am
required to do, in the determination of a suitable sentence to be
imposed upon the accused.
[50]
In
my
view
the
time
has
come
to
send
out
a
clear,
crisp
and
unambiguous
message
to society that this court will simply not lay supine, when faced
with offenders who make themselves guilty of serious and
violent
crimes. On the contrary, the need has duly arisen to impose robust
sentences upon offenders who conduct themselves in the
manner that
the accused has, and to make it clear that lawlessness, and abuse of
women will simply not be tolerated. Nothing more!
Nothing less!
[51]
Sekwanele!
Enough
is Enough! Genoeg is Genoeg!
[52]
In the result the accused is sentenced
as follows:
[a]
COUNT
1
-
MURDER
READ
WITH THE
PROVISIONS OF SECTION 51(1) OF
ACT 105 OF 1997
LIFE
IMPRISONMENT
[b]
COUNT
2
-
RAPE
READ WITH
THE
PROVISIONS
OF SECTION 51(1) OF ACT 105 OF
1997
LIFE
IMPRISONMENT
[53]
Considering that the prescribed minimum
sentence for the murder on count 1 and the rape on count 2 is life
imprisonment, it is ordered
that the sentence on count 2 will run
concurrently with count 1.
[54]
The accused is effectively sentenced to
life imprisonment.
[55]
The
accused
is
ordered
to
participate
in long
term
psychotherapy, with a focus
on
behaviour,
anger
management,
and
insight-orientated interventions offered
by the Department of Correctional Services; and that he further
participates in other appropriate
programmes/courses offered by the
Department of Correctional Services.
[56]
In terms of
Section 103(1)(g)
of the
Firearms Control Act 60 of 2000
,
the Court makes
no
order. The
accused
is hereby
deemed unfit to possess
a firearm.
[a]
In terms of
Section 103(4)
of Act 60 of
2000, the court issues a search and seizure order for competency
certificates, licences, authorisations and permits,
firearms and
ammunition.
[b]
The Assistant Registrar is ordered to
inform the Registrar:
Central
Firearms Control Register in writing of this order.
[57]
In
terms of Section 299A of the Criminal Procedure Act
[24]
the family of the deceased
be
informed
that
they
have
the
right,
subject
to
the
directives
issued by the Commissioner of Correctional Services under subsection
(4), to make
representations
when
placement
of
the
prisoner
on
parole,
on
day parole
or
under
correctional
supervision
is
considered
or
to
attend
any
relevant meeting of the parole board.
[58]
A copy of the judgment and sentence be
forwarded to the Department of Correctional Services and be reviewed
when considering parole
and/or psychological treatment for the
accused.
[59]
The
particulars of the accused as completed on Form 5 (J736) together
with a set of fingerprints be forwarded to the Registrar of
the
National Register for Sex Offenders, to be registered in terms of
Section 50(2)(a) of the Criminal Law Amendment Act
[25]
C
I MOOSA J
JUDGE
OF THE HIGH COURT
MPUMALANGA
DIVISION, MBOMBELA
TUESDAY,
21 JUNE 2022
Counsel
for State:
Adv TSJ Bekwa
Instructed
by: Director
of Public Prosecutions
Mbombela
Mpumalanga
Counsel
for Accused:
Adv K W Manzini
Instructed
by; Legal
Aid South Africa
Mbombela
Mpumalanga
Date
of hearing: 01
April 2022
Date
of judgment:
21 June 2022
[1]
S v Zinn
1969 (2) SA 537
(A) at 540G; S v Scheepers 1977 (2) SA 154
(A)
[2]
S v Haasbroek 1969 (1) SA 356 (E)
[3]
S v Sigwahla
1967 (4) SA 566
(A) at 571 E-F
[4]
s v Lehnberg en 'n Ander
1975 (4) SA 533
(A)
[5]
Samuels v The State (201OJ ZASCA 113
[6]
Resolution 40/34 Adopted by the General Assembly on 29 November 1985
[7]
SA Law Commission Discussion Paper 7 Sentencing Restorative Justice
(1997)
[8]
Approved by Cabinet on 2 December 2004
[9]
S 7(1) of the Constitution 108 of 1996
[10]
S v Matyityi
2011 (1) SACR 40
(SCA) paragraph 17
[11]
2001 (1) SACR 469
SCA
[12]
2001 (1) SACR 594 (CC)
[13]
2009 (1) SACR 552 (SCA)
[14]
1975 (4) SA (A)
[15]
S v Mhlakaza and Another
1997 (1) SACR 515
(SCA) at 519 d - e
[16]
S v Nkwanyana and Others
[1990] ZASCA 95
;
1990 (4) SA 735
(A) at 749 C - D
[17]
S v Swart 2004 (2) SACR 370 (SCA)
[18]
S v Mashao [2016] JOL 34327 (GJ)
[19]
1975 (4) SA 855
(A) at 866 A-C
[20]
S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) at 344 J-345A is apposite
[21]
Section 12(1)(c) and (e) of the Constitution108 of 1996
[22]
supra
[23]
Rachel Jewkes and Naeema Abrahams ' The Epidemiology of Rape and
Sexual Coercion in South Africa: An Overview, Social Science
and
Medicine Journal 55 (2002) 1231 - 1244
[24]
51of1977
[25]
32 of 2007