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[2021] ZAGPPHC 179
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I.H.M v S (A226/2020) [2021] ZAGPPHC 179 (23 March 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No.
A226/2020
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter
between
I[…]
H[…] M[…]
APPELLANT
AND
STATE
RESPONDENT
CORAM:
BAM J and MUNZHELELE AJ
Date
heard: 9 March 2021
Date
delivered: 23 March
2021
JUDGMENT
Munzhelele
AJ
Introduction
[1]
The
appellant,
l[…] H[…]
M[…]
appeared
at
Benoni
Regional
Court before
Regional
Magistrate
E.Schute,
who
found
him
guilty
of raping
a
10 years
old
child
in
contravention of
section
3
of
the
Criminal
Law
(Sexual
Offences and
Related
matters)
Amendment
Act.32
of
2007
read
with
the
provisions
of
section
51 and
schedule
2
of the
Criminal
Law
Amendment
Act
105
of
1997
.
Appellant was sentenced to life imprisonment.
He appeals against this sentence only.
Background
Facts
[2]
The facts appear from the statement in terms of
section 112(2)
of
Criminal Procedure Act 51 of 1977
of the appellant. On the 15
th
of
October
2017 the appellant
met
the
complainant
along
the
road
walking
alone
to
the
shops
at Lindelani. The appellant joined
in to walk with the complainant.
Appellant was moderately
under the
influence
of alcohol
but
could
still be able to
distinguish the right from the wrong. They walked
until
they
were next to his shack. Then appellant invited the complainant to his
shack. While complainant still shocked
and
confused
by
such
invitation
from the appellant, he then dragged
her
inside
the shack.
While she was inside, appellant raped her.
Issues
[3]
Attorney
Masete
argued
on
behalf
of
the
appellant
that
the
sentence
was
shocking and inappropriate.
She
further argued that the court
a quo
misdirected itself by not finding that there
were substantial and compelling circumstances to deviate
from
life
imprisonment
sentence.
Further
that
the cumulative
effect
of appellant's
personal
circumstances should have been regard as
constituting substantial and compelling
circumstances.
[4]
She further argued that the appellant was not properly
informed
about
the applicability
of
the
minimum
sentence
as
well
as
the
gravity
of the
sentence
which will be imposed when accused is found guilty of raping a
child below the age of
16.
[5]
She
argued
that
this
was
not
the
most
severe
form
of
rape
on
a
child because
the
complainant
was not
injured
or
infected
by
deceases
and
that
she
did not suffer any trauma.
[6]
Advocate S
Mahomed
for
the
respondent argued
that
the
appellant
was
informed
of the applicability
of
the min
i
mum sentence on the
17 October 2017
as
per the record
and
had a legal representative
as
a
result
there was no infringement of the appellant's rights. Further that
there were no substantial and compelling circumstances
available
instead the commission of this offence only
shows
aggravated rape in
that an
unsuspecting
child of
10
years
old
was pounced
by
an
adult person
of 33 years
old
and
traumatised
until
she realised that she should even leave the
comfort of her own home and migrated to another province to leave
with her paternal
relatives
.
[7]
He argues further that grading rape cases is a
nefarious practices that countermands the very essence of
the constitution
and
further infringe
the
dignity of
the vict
i
m
and is
unbefitting
of
an
institution that
is
the
moral
compass of the society
.
Applicable
law
[8]
Section 51(1)
of the
Criminal Law Amendment Act 105 of 1997
1s
applicable to this case and it provides that:
'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 1
of
Schedule
2
to imprison
m
ent
for life.'
Part
I
of Schedule 2 provides that where the offence of rape in
contravention
of section 3 of
the Sexual Offences
and
Related Matters
Amendment
Act 32/2007
was
committed
aga
i
nst
the victim
who
is a person
under
the age of
16 and
the perpetrator is
convicted
the sentence shall be life imprisonment.
[9]
In S
v Malgas
2001 (
1) SACR 469
(SCA) at para8 Marais
JA said:
'A
court exercising appellate jurisdiction
cannot, in the
absence
of material
misdirection by
the trial court, approach the question of sentence as if it were
the
trial court
and then substitute the
sentence
arrived at
by
it simply because it
prefers
it. To do so would
be
to usurp the sentencing discretion
of
the
trial
court.
Where
material misdirection by
the
trial court vitiates its
exercise
of
that
discretio
n
,
an appellate Court is of course entitled to
consider the question of
sentence
afresh. In
doing so, it
assesses sentence as if it were a court of first
instance and the
sentence
imposed by
the
trial
court
has no
relevance. Howeve
r
,
even in the
absence
of
material misdirection,
an appellate court may
yet
be justified
in interfering
with the sentence imposed by the trial court. It
may do so when the disparity between the sentence
of the trial court and the sentence which the appellate Court would
have imposed
had it been the trial court is so marked that it can
properly be described as 'shocking', 'startling' or
'disturbingly
inappropriate'.
see
S
v
Rabie
1975
(4)
SA
855
(A)
857
para D-E.
Discussion
[10]
Firstly,
It has
been
argued
that
the
cumulative
effects
of the
appellant's
personal
circumstances
should
amount
to
substantial
and
compelling
circumstances.
In
S
v Malgas
2001
(1) SACR 469
(SCA) at C-D Marais JA said
that:
'C.
Unless
there
are, and can be seen to be, truly convincing reasons for a different
response, the crimes in question are therefore
required
to elicit a severe,
standardised
and consistent
response from the courts.
D.
The specified sentences are not to be departed from lightly and for
flimsy reasons.
Speculative
hypotheses favourable to the offender, undue sympathy, aversion to
imprisoning first offenders, personal doubts as to
the efficacy of
the policy underlying the legislation, and marginal differences in
personal circumstances or degrees of participation
between
co-offenders are to be excluded.'
Jn
S
v Matyily
i
2011
(1)
SACR
40
(SCA) the
court
referred
to
the
fact
that
such
deviations
must be based on conv
i
ncing
reasons.
[11]
Personal circumstances
of
the appellant
are that he is
33 years old, with no
previous
convictions.
He
is not
married
but
has
two
children
and
the
children
stay with their
mothe
r
.
He ma
i
ntains
the children
with the money
that he earns
from his odd
jobs
.
He
had passed
grade
10.
He
has hearing problem
s
.
He was
in
custody awaiting trial for 9 months with no bail.
[12]
In
S v
Vilakazi
2009 (1) SACR 552
(SCA) at para 58
Nugent
JA
said:
In
cases of serious crime the personal
circumstances
of the offender, by themselves,
will
necessarily
recede into the
background. Once it becomes clear that the crime is
deserving of a substantial period of i
m
pr
i
sonment
the questions whether the accused
is
married or single, whether he has two children or three, whether or
not he is in
employment are
in themselves largely immaterial to what that period should be, and
those seem to be the kind of flimsy grounds that
Sv Malgas case
said
should be
avoided. But they
are nonet
h
eless relevant in
another respect. A material
consideration
is
whether the accused can be expected to offend again.
While that can never be confidently predicted his
or her circumstances
might
assist in making at least
some
assessment.
[13]
Jn
S
v
Matyityi
2011
(1) SACR 40
(SCA) at para
14
Ponnam
said:
'Turning
to the respondent's age: ............Thus, whilst
someone under the age of
I 8
years is to be regarded
as
naturally immature, the same does not hold true for an
adult.
In
my view a
person of
20
years
or more
must
show
by
acceptable
evidence
that
he
was immature to such
an
extent
that
his immaturity
can
operate as a mitigating
factor.
At the
age
of
27
the
respondent
could hardly be
described as
a
callow
youth.'
[14]
Consider
i
ng the
case of Malgas,
Vilakazi and
Matyityi above it is clear
that
the fact that one is 37 years , with two childre
n
,
doing odd
jobs
as a first
offender
are regarded as flimsy reasons. We also regard the cumulative effects
of the appellant's personal circ
u
mstances
as not substantial and compelling
circumstances
that warrants a deviation from the minimum sentence imposed by the
trail court. The trial court has correctly found
that there were no
substantial and compelling circumstances. Un
d
ue
sympathy for the offender should be
excluded.
We have not found any misdirection
regarding the sentence imposed
to the appellant.
[15]
Secondly,
it has been argued that the life
imprison
m
ent sentence was
shockingly inappropriate.
We
find that this sentence is not shocking taking into consideration
that this type of offence attracts the sentence
of life imprisonment if the offender is found gui
l
ty
in terms of section 51(1) of the Criminal Law
Amendment
Act
105
of
1997
read with Part I of
Schedule 2 as stated above.
In
this
regard
the
trial
court
did
not
misdirect
itself
when imposing
the
life
i
m
prisonment
because
it
is enacted
by
the parliament
as
it
is.
For
the co
u
rt
to
deviate
there should have been found substantial
and
compelling circumstances
.
In
S v Malgas
2001 (1)
SACR
469
(SCA) at para 7-8 Marais
JA
'The
very fact that this amending legislation has been enacted indicates
that
Parliament
was not content with that (continuers commission of schedule 2
offences) and that it was no longer to be
'business as usual'
when
sentencing for the commission of the specified crimes.
[8]
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 inscr
i
be
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.'
[16]
So, therefore,
having
found
no
substantial
and
compelling
circumstances
existing which justifies
the
imposition
of a lesser
sentence, it wiII no longer be business
as
usual
the
sentence prescribed
shall be
imposed. The sentence imposed is
not
shockingly inappropriate. The
trail
court
did not misdirect
herself in this regard.
[17]
Thirdly, Section 51 (3)(a) provides that where a
person
is to be sentenced for
rape,
the
fact
that
there
are
no apparent
physical
injury to the
complainant
shall not constitute substan
t
ial
and
compelling
circumstances
justifying
the
imposition
of
a
lesser
sentence.
Therefore
there
can
never
be
a rape
which
is
regarded as not the most severe form of rape on a
child because the complainant was not
injured
or infected
by
deceases and that she did not suffer any trauma. In
S
v Chapman
1997
(3) SA 341 (SCA) @ 345 C-D Mohamed
CJ said:
'Rape
is regarded
as a
serious
offence:
"
constituting
as
it
does
a humiliatin
g
,
degra
d
ing
and brutal invasion of
the
privacy,
the
dignity and the person
of
the
victim."
"Women
have
a
legitimate
claim
to
walk
peacefully on
the
streets,
to
enjoy
their
shopping and their entertainment, to go and come
to work and to enjoy the peace and
tranquility
of
their
homes
without
fear,
the
apprehension
and
the
insecurity
which constantly diminishes the quality and
enjoyment of their lives"
"
The
courts are under a
d
uty to
send a clear message to the accused, to other potential rapists and
to the community: We are determined
to
protect
the equality,
d
ignity
and
freedom of all wome
n
,
and we shall show no mercy to those who seek to invade those
rights."
[18]
The appellant
has
been
sentenced
for
life
imprisonment
as
per
the
prescribed
legislation
which he was informed
of as
per the annexure
"
A"
on the
17
th
October
2017
by
Regional Magistrate
Mrs
Sathekge.
Therefore
the
argument
that the trial
court
did
not appraise the appellant
of
the provisions
of section
51
(1) of
Act
105
/1997
is
not
correct
as
such
the
trial
court
did
not
misdirect
herself in this regard
.
[19]
Lastl
y
, the issue of being
in custody pending the
finalisation
of
the trial is of importance
because
the accused
's case should
be finalised
without
delay.
In
the
is
case
the
accused
knew
that
he
did
not
have
a
defence
to
the
offence
committed as
such
he
should
have
pleaded
guilty
from
the
onset.
He
was
arrested
on the
15 October
2017
and was brought
to
court on
the
17 October
2017.
He
pleaded
guilty
on
the
31
April
2018.
This
was
a
self-made
delay.
Therefore,
the
time
spent
in
custody
cannot
be
regarded
as
substantial
and
compelling
circumstance.
The trail court
did not misdirect
herself
even on this issue.
[20]
Therefore, the following order is made.
1.
The
appeal
against sentence is
d
ismisse
d
.
M.
Munzhelele.
Acting
Judge of the High Court
Pretoria
I
agree and it is ordered.
A.
J Bam
Judge
of the high court
Pretoria
Appearances:
For
the applicants
:M.M.P Masete
Instructed
by
:Pretoria Justice Centre
For
the respondents
:S.
Mohamed
Instructed
by
: Director of Public Prosecution. Pretoria
Heard
on the
:17 March 2021
Delivered
on
:23 March 2021