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[2022] ZAECMHC 29
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Rode v S (CA&R 89/21) [2022] ZAECMHC 29 (16 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
Case
No: CA&R 89/21
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
In
the matter between:
VUYOLWETHU
SDLAKELA RODE
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
NQUMSE
AJ
:
[1]
The appellant was convicted and sentenced to life imprisonment in the
Regional Court,
Mount Frere on one count of rape in contravention of
Section 3 read with Section 1, 56(1), 57, 58, 59 and 61 of Act 32 of
2007,
also read with
Section 256
and
261
of the
Criminal Procedure
Act 51 of 1977
, read with Section 51(1) of the Criminal Law Amendment
Act 105 of 1977 (CLAA) as amended.
[2]
According to the evidence, the complainant, a 14-year-old girl, was
coming from the
shop when she encountered the accused who, after he
had tripped her and she had fallen, undressed her and raped her per
vaginum.
[3]
The medical evidence in the form of a J88 Medico-legal report was
handed into evidence
by agreement. DNA results from the swabs taken
from the victim which matched the DNA results from the samples taken
from the accused
were also handed into court by agreement.
[4]
In its evaluation of the evidence, the court rejected the version of
the appellant,
that he was in a love relationship with the victim at
the time of the sexual encounter. Consequently, the accused was
convicted
and sentenced as indicated above.
[5]
Aggrieved by the sentence imposed the appellant launched this appeal
against sentence
only.
[6]
I now turn to deal with the issue of the sentence that was imposed.
This court can
only interfere with a sentence imposed by the trial
court where it is vitiated by a material misdirection or where the
disparity
between the sentence of the trial court and the sentence
that the appellate court would have imposed, had it been the trial
court,
is so marked that it can be described as ‘shocking’,
‘startling’, or disturbingly inappropriate (
See
Sv Malgas
2001(1)
SACR 469 (SCA). In S v Rabie
[1]
,
Holmes JA enunciated the principle as follows:
‘
In
every appeal against sentence, whether imposed by a magistrate or a
judge, the court hearing the appeal –
(a)
Should be guided by the principle that punishment is pre-eminently a
matter for the discretion of the trial
court and
(b)
Should be careful not to erode such discretion…’
[7]
The personal circumstances of the appellant were submitted from the
bar as the following.
He is 20 years old and an orphan since both his
parents are deceased. He is unmarried with a two-year-old child who
resides with
her mother. He was a 19-year-old scholar doing grade 11
at the time of the commission of the offence. He has two siblings,
one
of whom supports him financially.
[8]
During argument before us, Mr Njisane for the appellant emphasized
the fact that the
appellant was 19 years old when he committed the
offence and therefore his youthfulness makes him a candidate for
rehabilitation.
He referred us to
S
v Nkomo
[2]
where the following was stated:
‘
But
it is for the court imposing sentence to decide whether the
particular circumstances call for the imposition of a lesser
sentence.
Such circumstances may include those factors traditionally
taken into account in sentencing - mitigating factors - that lessen
an accused’s moral guilt. These might include the age of an
accused or whether or not he or she has previous convictions.
Of
course these must be weighed together with aggravating factors. But
none of these need be exceptional. The court below did not
consider
the mitigating factors adduced by the appellant to constitute
substantial and compelling circumstances. In that respect
it erred.’
He
further took issue with the fact that the learned magistrate appears
to have placed more emphasis on the trauma that may have
been
suffered by the victim, in the absence of a victim impact report,
thereby disregarding other factors that play a role in the
sentencing
regime.
[9]
On the other hand, Ms Trietsch, counsel for the respondent, submitted
that the appellant
has failed to show substantial and compelling
circumstances that warrant a deviation from the prescribed minimum
sentence of life
imprisonment. She referred to the victim’s
long lasting trauma scars, and she bemoaned the appellant’s
lack of remorse
as further support for the contention that the
appellant is deserving of the ultimate sentence of life imprisonment.
[10]
According to s 51(1) of the Criminal Law Amendment Act mentioned
above, the accused is liable
to a discretionary minimum sentence of
life imprisonment, since the victim was under the age of 16 years
when she was raped. However,
if the court is of the view that an
appropriate sentence to impose is a sentence less than that which has
been prescribed, it is
entitled to do so only if it is satisfied that
substantial and compelling circumstances exist which justify the
departure from
imposing the minimum sentence
[3]
.
A question that always confronts the court in dealing with sentence
under the prescribed minimum sentence legislation is whether
substantial and compelling circumstances exist.
[11]
An instructive approach in the application of the provisions of the
CLAA in relation to the mandatory
minimum sentencing regime was
formulated in
Malgas
supra
by Marais JA wherein the learned judge stated that the court’s
discretion in imposing sentence has been limited and not eliminated.
The usual factors that a trial court would take into account when
sentencing are still applicable, such as proportionality of the
sentence to the crime, balancing the various competing interests, and
the nature of the offence.
[4]
The approach in
Malgas
finds expression in
S
v Vilakazi
[5]
and
S
v Matyityi
[6]
. In
Vilakazi
the court explained that particular factors, whether aggravating or
mitigating, should not be taken individually and in isolation
as
substantial and compelling circumstances, but ought to be viewed
cumulatively. In paragraph 14 Nugent JA set out the criteria
on how a
court should approach the imposition of sentence when minimum
sentence legislation applies as follows:
‘
It
is clear from the terms in which the text was framed in
Malgas
and endorsed in
Dodo
that it is incumbent upon a court in every case, before it imposes a
prescribed sentence, to assess, upon a consideration of all
the
circumstances of the particular case, whether the prescribed sentence
is indeed proportionate to the particular offence. The
Constitutional
Court made it clear that what is meant by the “offence”
in that context … consists of all factors
relevant to the
nature and seriousness of the criminal act itself, as well as all
relevant personal and other circumstances relating
to the offender
which could have a bearing on the seriousness of the offence and the
culpability of the offender.’
[12]
The court below found no substantial and compelling circumstances to
deviate from the prescribed
minimum sentence of life imprisonment.
Whilst the learned magistrate referred to
S
v Zinn
[7]
as his point of departure in determining an appropriate sentence, a
careful reading of his reasoning according to the record reveals
that
he was more inclined to consider and to emphasize the effect and the
impact the crime has had on the victim and paid little
regard if any,
on the personal circumstances of the accused. Any factor relating to
the accused appears to have been viewed with
scepticism. By way of
example, when reference was made to the schooling of the accused at
the time of the commission of the offence,
the learned magistrate
expressed himself as follows:
‘
Afterall
if the fact that you are school for instance raping the complainant,
a 14-year-old is not part of the school programme.
It is not part of
the school curriculum so you cannot justify (sic). She is not part of
a school project so it cannot then be used
as a bargaining tool as a
factor that the Court should look into.’
Regarding the accused’s
youthfulness, the learned magistrate had this to say:
‘
That
is then your conduct in general then as this aspect, then when you
invoke your youthfulness then that youthfulness originates
to
nothingness. Quite frankly I doubt that you are the age that you have
mentioned. You look quite older than age that you have
mentioned.
Your conduct also serves to also strengthen this Court’s view
that you have lowered your age for your own personal
reason (sic). A
young person does not behave in the manner that you do.’
[13]
Undoubtedly, rape is a very serious offence. In
S
v Chapman
[8]
it was described as ‘a humiliating, degrading and brutal
invasion of the privacy, the dignity and the person of the victim’.
Our courts are very much alive to the devastating effect that rape
may have on a victim. In S v C
[9]
it was described thus:
“
A
rapist does not murder his victim - he murders her self-respect and
destroys her feeling of physical and mental integrity and
security.
His monstrous deed often haunts his victim and subjects her to mental
torment for the rest of her life - a fate often
worse than loss of
life.’
[14]
The magistrate was heavily criticised by the appellant for, in the
absence of a victim impact
report, having placed much reliance on the
post-traumatic stress that the victim was bound to suffer. In my view
this criticism
is not entirely justified if regard is had to what was
said in
Notou
v S
[10]
where the following comment is made:
‘…
No
evidence was led on the effect the rape had on her. The lack of such
evidence should not and cannot be construed as absence of
post-traumatic stress at all. It would be unrealistic to think there
was none.’
[11]
[15]
It is by no means suggested that it is not of critical importance for
the court to be favoured
with a victim impact report. It is always
useful and helpful where available for proper evaluation of the
impact the crime has
had on the victim and it should be encouraged.
However, its absence does not mean that the court cannot take
cognisance of the
impact the crime has had on the victim.
[16]
As mentioned above, a careful consideration of the factors enunciated
in
Zinn,
namely
the offender, the crime and the interest of society, epitomises the
very essence of a balanced, effective sentence which
meets all the
sentencing objectives.
[12]
In
the present matter both the victim and the accused were attending the
same school. The accused was a young adult of 19 years
when he
committed the offence. He has not brushed with the law in the past
and is therefore a first offender.
[15]
It appears that the accused did not have an ideal family background
since he was orphaned at
an early age. There was unfortunately no
further investigation around his upbringing and his present living
circumstances, except
that he was financially dependent on one of his
brothers. Nor does it appear that there had been any attempt to
establish the school
progress of the accused at the time of his
arrest, something that could have edified the court as to the type of
learner he was.
Whilst we are at a disadvantage due to lack of
information that could have assisted this court, it is my view that
the appellant’s
personal circumstances do make out a case for
the existence of substantial and compelling circumstances warranting
a deviation
from the prescribed minimum sentence of life
imprisonment. This then brings me to a determination of an
appropriate sentence.
[16]
The accused has been convicted of a serious crime. Rape is a crisis
of epidemic proportions particularly
on young children. Our courts
have also accepted that the public is rightfully outraged by this
rampant scourge
[13]
. However,
sight must never be lost of the role which the judicial officer ought
to play, described by Corbett JA in
S
v Rabie
[14]
in the following terms:
‘
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, the criminal and the
interests of society which his task and the objects of
punishment
demand of him. Nor should he strive after severity; nor, on the other
hand, surrender 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.’
[15]
[17]
In
S
v Phulwane and others
[16]
,
the appellants were aged 20 years, 22 years and 18 years
respectively. They were all sentenced to direct terms of three years’
imprisonment. Although the appellants were convicted of a much lesser
crime of housebreaking as opposed to the appellant in this
matter,
the following comments expressed by the appeal court are of relevance
to the matter before us:
‘
When
a youth or juvenile strays from the path of rectitude to criminal
conduct, it is the responsibility of judicial officers invested
with
the task of sentencing such a youth to ensure that she or he receives
all relevant information pertaining to such a juvenile
to enable him
or her to structure a sentence that will best suit the needs and
interest of the particular youth. It is after all,
a salutary
principle of sentencing that sentence must be individualised. I
venture to suggest that every judicial officer who has
to sentence a
youthful offender must ensure that whatsoever sentence he or she
decides to impose will promote rehabilitation of
that particular
youth and have, as its priority, the reintegration of the youthful
offender back into his or her family and, of
course, the community.’
[18]
Obviously the offence that was committed by the accused is serious
and deserving of a custodial
sentence. However, having weighed the
mitigating factors against the aggravating ones as already alluded to
earlier, the statutorily
prescribed minimum sentence falls to be set
aside. As a result, this court is at large to impose sentence afresh.
The offence is
nonetheless, deserving of severe punishment so as to
recognise the gravity of the offence and reflect appreciation for
society’s
abhorrence thereof.
[19]
In the circumstances, I am of the view that a sentence of 18 years’
imprisonment is appropriate
and would meet the objectives of
sentencing in this particular matter. According to the record, the
appellant has been serving
his sentence since he was sentenced in the
court below on 5 September 2018. The sentence should consequently be
antedated accordingly.
[20]
In the result the following order is made:
1.
The appeal against the sentence of life imprisonment is upheld.
2.
The sentence of the court below (dated 5 September 2018), is set
aside and replaced with the following:
‘
The
accused is sentenced to 18 years’ imprisonment’.
V.
M. Nqumse
Acting
Judge of the High Court
I
agree:
I.T.
Stretch
Judge
of the High Court
For
the Appellant
: S. Njisane
Instructed
by
: Legal Aid South Africa
For
the Respondent
:
D. Trietsch
Instructed
by
: The Director of Public Prosecutions, Mthatha
Heard
on
: 15 June 2022
Judgment
handed down on : 16 August
2022
[1]
1975
(4) SA 855 (AD)
[2]
2007(2)
SACR 98 (SCA) paras 3 and 4
[3]
Section
51(3)
of the
Criminal Law Amendment Act 105 of 1997
[4]
Paragraph
25
[5]
2009(1)
SACR 552 (SCA) at para 15
[6]
2011(1)
SACR 40 (SCA)
[7]
1969
(2) SA 537 (A)
[8]
[1997] ZASCA 45
;
1997
(3) SA 341
(SCA) at 344 I-J
[9]
1996(2)
SACR 181 at 186d
[10]
2014(1)
SACR 198 (SCA)
[11]
Ibid
paragraph 12
[12]
2013
(2) SACR 292 (SCA)
[13]
S
v RO
2010 (2) SACR 248
(SCA) para 1
[14]
1975
(4) SA 855 (AD)
[15]
Ibid
866A-B
[16]
2003(1)
SACR 631 (TPD) 634h-j