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[2022] ZAECMKHC 10
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Ntantiso v S (CA&R198/2021) [2022] ZAECMKHC 10 (10 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO. CA&R 198/2021
In
the matter between:
THEMBELANI
NTANTISO
Appellant
and
THE
STATE
First Respondent
APPEAL
JUDGMENT
RUGUNANAN,
J
[1]
At issue in this
appeal is the sentence of life imprisonment imposed on the appellant
in the regional court, Gqeberha on 17 August
2021 following his
conviction on a charge of rape for contravening
section 3
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007
read with
section 51(1)
of the
Criminal Law Amendment Act 105
of 1997
. The appeal lies in terms of the automatic right conferred by
section 309(1)(a)
of the
Criminal Procedure Act 51 of 1977
.
[2]
Relevant for present purposes,
section
51(1)
of the
Criminal
Law Amendment Act
provides
as
follows:
“
51
Discretionary minimum sentences for certain serious offences
(1)
Notwithstanding any other law, but subject to subsections (3) and
(6), a regional court or a High Court
shall sentence a person it has
convicted of an offence referred to in
Part I
of Schedule 2 to
imprisonment for life.”
[3]
Under the category of “
Rape
as contemplated in
section 3
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007
”
,
Part 1
of Schedule 2
makes provision for conditions:
(a)
…
(b)
where the victim-
(i)
…
(iA)
is an older person as defined in section 1 of the Older Persons Act,
2006 (Act
13 of 2006);
(ii) …
(iii) …
(c)
involving the infliction of grievous bodily harm.
[4]
An older person is defined in
section 1
of
the
Older Persons Act as
a person who, in the case of a male, is 65
years of age or older and, in the case of a female, is 60 years of
age or older.
[5]
The charge against
the appellant alleged that he committed the offence of rape on 27
October 2018 and was predicated on the applicability
of
section
51(1).
In addition, the charge stipulated that it be “
read
with the Older Person
(sic)
Act
13 of 2006”
.
Furthermore, it included an allegation that “
the
rape was accompanied by the infliction of grievous bodily harm and
robbery”
.
[6]
Robbery is not a component of Part 1(c) of
the applicable schedule. In point, a
reading
of section 51(1) together with the relevant part of the applicable
schedule indicates that the mandatory sentence of life
imprisonment
would be competent in circumstances where the rape of the victim
involved the infliction of grievous bodily harm,
and/or where the
victim is an older person.
[7]
The evidence adduced by the state did not
establish that
the
rape of the victim involved the infliction of grievous bodily harm.
To the contrary, it indicated
that
the infliction of grievous bodily harm occurred during the robbery.
Although the condition in Part I(c) of the relevant schedule
was not
proven it was not disputed that the complainant was 62 years of age
at the time of the commission of the offence which
meant that she is
an older person as defined in section 1 of the Older Person’s
Act. The evidence therefore established the
condition in Part I
(b)(iA) of the applicable schedule. On this basis the magistrate
found that section 51(1) was applicable which
rendered the mandatory
sentence of life imprisonment competent, and having determined that
there were no substantial and compelling
circumstances favouring the
appellant, the prescribed sentence ensued.
[8]
On appeal it was contended for the
appellant that:
(i)
His fair-trial right underpinned by section 35(3)(a) of the
Constitution was infringed at the sentencing
stage by the
magistrate’s invocation of Part I
(b)(iA)
where the state’s intention to rely thereon was omitted in the
charge and not pertinently brought to the attention
of the appellant
at the outset of the trial, and
(ii)
The magistrate erred in finding that there were no
substantial and compelling circumstances justifying a
deviation from
the mandatory sentence.
[9]
To
begin with, it is desirable that a charge refers to the relevant
penal provision of the minimum sentence legislation –
but this
is not an absolute rule - and each case must be judged on its
particular facts.
[1]
Applied to
the present context, pertinent reference in the charge to the
provisions of section 51(1) read with Part I (b)(iA) of
Schedule 2 of
the
Criminal
Law Amendment Act
,
although desirable, is not an absolute rule. With reference to the
section itself
,
the question of a breach of an accused’s fair-trial right
involves a fact based enquiry for which any conclusion, as may
be
arrived at, requires a vigilant examination of all the relevant
circumstances.
[2]
[10]
In this case the state’s intention to
rely on and invoke the minimum sentencing provisions was clearly
recited and conveyed
at the outset. The charge expressly recorded
that the appellant was charged with the offence of rape, read
together with the provisions
of
section 51(1)
of the
Criminal
Law Amendment Act
and
the
Older
Persons Act. Moreover
, the possibility of life imprisonment was
brought to the appellant’s attention by the magistrate with the
appellant indicating
that he understood. The appellant pleaded not
guilty to the charge. He fully participated in the trial in which the
complainant
testified as to her age and the circumstances in which
the offence was committed, but maintained his innocence
notwithstanding
the overwhelming forensic evidence against him. I am
satisfied that the appellant, who was legally represented throughout
the trial
proceedings, well knew of the charge he had to meet, that
he comprehended the evidence led by the state, and that he knew that
the state sought reliance on the applicable minimum-sentencing regime
created in the relevant legislation.
[11]
In the circumstances the omission
complained of did not vitiate the proceedings a
quo.
[12]
On sentence, the magistrate considered the
appellant’s personal circumstances. He was 33 years of age at
the time of the trial.
He has a previous conviction for rape, is
unmarried and has no dependant children. He was raised in a poor
environment and resided
with his father. He has a Grade 6 level of
education and was in custody awaiting trial since December 2019.
However, the magistrate
correctly found that there were aggravating
factors, namely; the complaint’s age, that she was alone in the
privacy of her
home, that she was vulnerable and defenceless, and was
hiding in a closet when her house had been broken into.
[13]
She was also threatened with a knife,
assaulted with fists, raped without a condom by the appellant who was
young enough to have
been her own son, and was in a visibly
traumatised state by the time the police had arrived. The magistrate
noted that the appellant
had shown no sign of any remorse and despite
being linked to the commission of the offence through DNA evidence,
his persistence
in maintaining his innocence rendered him unworthy of
rehabilitation.
[14]
For the appellant it was contended that his
personal circumstances (save for his previous conviction) are
favourable in lending
weight to the existence of substantial and
compelling circumstances. There is nothing exceptional about his
personal circumstances.
Cumulatively the aggravating factors far
outweigh the mitigating factors. To hold otherwise to the extent that
a departure from
the prescribed sentence is warranted, would be to do
so for flimsy reasons.
[15]
Cognisant of the current levels of violent
crimes perpetrated against women, the magistrate’s judgment
indicates that he properly
considered all factors in mitigation and
in aggravation before arriving at a just sentence. On the facts, the
sentence imposed
serves to accentuate the elements of retribution and
deterrence as adequately serving the interests of society.
[16]
Accordingly, the magistrate cannot be said
to have misdirected himself in his approach on sentence. Appellate
interference is thus
unwarranted.
[17]
In the circumstances
the appeal against sentence is without merit.
[18]
The following order
will issue:
(i)
The appeal is
dismissed.
(ii)
The sentence
of life imprisonment imposed upon the appellant on 17 August 2021 in
Case Number PERC 48/2020 is confirmed.
S.
RUGUNANAN
JUDGE
OF THE HIGH COURT
I
agree.
R.
W. N. BROOKS
JUDGE
OF THE HIGH COURT
APPEARANCES:
For
the Appellant:
D.
P. Geldenhuys
Instructed
by Legal Aid South Africa
Makhanda
For
the Respondent:
M. M. Van Rooyen
Instructed
by The Office of the National Director of Public
Prosecutions
Makhanda
Date
heard:
04 May 2022
Date
Delivered:
10 May 2022
[1]
S v
MT
2018 (2) SACR 592
(CC) at paragraph [40]
[2]
S v
Ndlovu
2003
(1) SACR 331
(SCA) at paragraph [12] and
S
v Mashinini and Another
2012
(1) SACR 604
(SCA) at paragraph [51]