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[2021] ZAGPJHC 676
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Duma v S (A038/2020) [2021] ZAGPJHC 676 (16 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A038/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
In
the matter between:
DUMA,
NHLANHLA
ELLIOT
Appellant
And
THE
STATE
Respondent
Coram:
Malindi J et Graf AJ
Date
of hearing:
12
August 2021- In a ‘virtual hearing’ during a
videoconference on Microsoft Teams digital platform.
Date
of Judgment:
16 August 2021
This
judgment is deemed to have been handed down electronically by
circulation to the parties representatives via email and uploaded
to
caselines.
JUDGMENT
GRAF
AJ
INTRODUCTION
[1]
The appellant appeals against the sentence imposed upon him by the
Regional Magistrate,
Protea. The appeal is pursuant to leave having
been granted by the trial court.
[2]
The appellant was charged with sexual assault in contravention of
section 5(1) of
the Criminal Law Amendment Act 32 of 2007 (Sexual
offences and Related Matters Act) (“the Act”) (count 1)
and rape
as contemplated in section 3 of the Act (count 2).
[3]
The appellant was legally
represented. He pleaded not guilty. After hearing the evidence
of the
complainant and other state witnesses, and that of the appellant, the
trial court convicted him of both counts. The two
counts were taken
as one for purpose of sentencing and the appellant was sentenced to
twenty (20) years imprisonment.
BACKGROUND
[4]
The facts giving rise to the
convictions and sentence are as follows: The complainant (hereinafter
referred to as ‘N’) testified that when she was eleven
(11) years old she lived with her mother and stepfather in a
house
that also operated as a tavern. The appellant was one of the patrons
who frequented the tavern. On a certain day in June
2017 the
appellant and N were in the dining room while the appellant was
having his beer. At that moment N’s mother was at
church and
her stepfather and other patrons were outside the house.
[5]
The appellant started referring to N as “sweetie” and
“lovey”
and he told her that she was his wife. At some
stage the appellant, seemingly deliberately, dropped the cover of his
cell phone
and it fell under the sofa. He requested N to pick it up,
stating that he was too old to do so himself. When N bent down to
pick
up the phone cover, the appellant lifted her skirt, and he
kissed her buttocks. N was startled and managed to get away from him
and go outside as she was not comfortable with his conduct.
[6]
A few days later while the
appellant was at the tavern he told N’s mother that he
had meat
at home that he wanted to share with them. The appellant suggested
that N accompany him to fetch the meat. This was after
he had
dismissed N’s stepfather’s offer to fetch the meat. The
appellant and N went to his place of residence. The
appellant closed
the door and latched it after they had entered the house.
[7]
After having made some suggestive utterings to her, which she
testified she did not
understand and was confused thereby, he pulled
N to his bedroom and pushed her onto the bed facedown. Although she
was crying,
her cry was muffled by the contact between her face and
the bedding. He lifted her skirt, pulled her underwear down and
inserted
his penis into her vagina. The appellant stopped when N’s
stepfather knocked on the door. He straightened her skirt and pulled
her underwear up. N’s stepfather enquired what the delay was
and the appellant replied that the meat was frozen and was in
the
process of defrosting in the microwave. After the meat was handed
over, N accompanied her stepfather home.
[8]
She did not report these incidents to anyone until, approximately one
year later,
when she told her teacher. The appellant was subsequently
arrested and detained.
[9]
The appellant testified in his own defence. His evidence was rejected
as false.
EVIDENCE
IN MITIGATION OF SENTENCE
[10]
The appellant did not testify in mitigation of
sentence. His personal circumstances were placed before the
trial
court by way of a pre-sentence report compiled by Andile Buthelezi, a
probation officer employed by the Department of Social
Development.
From the information contained in the report and confirmed by the
appellant’s legal representative, it was established
that the
appellant was 57 years old at the time of sentencing. He was married
and the father of four (4) adult children. At the
time of his arrest
he was employed as a builder and earning an income of R2300-00 per
fortnight. He was the breadwinner and supported
some of the children
who were unemployed. He had no history of offending behaviour and
stood before the court as a first offender.
He spent approximately
one (1) year in custody awaiting trial.
[11]
The Regional Magistrate concluded that there were
substantial and compelling circumstances present that
allowed her to
depart from the minimum sentence of life imprisonment that was
applicable to the rape charge.
[12]
Before us, counsel for the appellant contended
that the trial court over-emphasized the seriousness of the
offence
and the interest of society and without giving the necessary
consideration to the personal circumstances of the appellant.
It was
submitted that a sentence of 15 years imprisonment would have been
more appropriate under the circumstances.
CONSIDERATIONS
ON APPEAL
[13]
In
S
v Romer
[1]
the principles applicable to an appeal court’s power to
interfere with a sentence imposed by a trial court were discussed
as
follows:
‘
[22]
It has been held in a long line of cases that the imposition of
sentence is pre-eminently within the discretion of the trial
court.
The appellate court will be entitled to interfere with the sentence
imposed by the trial court only if one or more of the
recognised
grounds justifying interference on appeal has been shown to exist.
Only then will the appellate court be justified in
interfering. These
grounds are that the sentence is '(a) disturbingly inappropriate; (b)
so totally out of proportion to the magnitude
of the offence; (c)
sufficiently disparate; (d) vitiated by misdirections showing that
the trial court exercised its discretion
unreasonably; and (e) is
otherwise such that no reasonable court would have imposed it.'
[23]
In
S v Matlala
it was held that in an appeal against sentence
the fact that the sentence imposed by the trial court is wrong is not
the test.
The test is whether the trial court in imposing it
exercised its discretion properly or not. Consequently, the
circumstances in
which an appellate court will interfere with the
exercise of such discretion are circumscribed. In S
v Sadler
Marais JA, writing for a unanimous court, had occasion to
re-state them when he said the following:
'The approach to be
adopted in an appeal such as this is reflected in the following
passage in the judgment of Nicholas AJA in
S v Shapiro
1994
(1) SACR 112
(A) at 119j-120c:
"It may well be that
this Court would have imposed on the accused a heavier sentence than
that imposed by the trial Judge.
But even if that be assumed to be
the fact, that would not in itself justify interference with the
sentence. The principle is clear:
it is encapsulated in the statement
by Holmes JA in S
v Rabie
1975 (4) SA 855
(A) at 8570-F:
"1. 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: hence the further principle that the
sentence should only be altered if the
discretion has not been
'judicially and properly exercised'.
2. The test under (b) is
whether the sentence is vitiated by irregularity or misdirection or
is disturbingly inappropriate".'
(Footnotes omitted).
[14]
The cases above highlight the limits imposed on a court of appeal in
reviewing the sentence imposed
by a trial court. The trial court
exercises a discretion after hearing all the evidence, including the
evidence in mitigation and
aggravation. That discretion can only be
interfered with if it was not exercised judicially and properly. As
to what that means
S v Rabie
says that there must be a
presence of irregularity or misdirection in the exercise of the
discretion, or that the sentence must
be disturbingly inappropriate.
As to the last element of the test, it has also been said that the
sentence must induce a sense
of shock.
[15]
The legislature has prescribed a minimum sentence
of life imprisonment for the rape of a child under the
age of 16 in
terms of the
Criminal Law Amendment Act 105 of 1997
. In assessing
whether the Regional Magistrate exercised her sentencing discretion
judicially and properly when she imposed a sentence
of twenty years
imprisonment, instead of the prescribed minimum sentence, this court
is guided by the approach laid down in
S
v Malgas
[2]
where Marais JA stated that:
‘
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.’
[16]
Therefore in the process of considering whether a
deviation from the prescribed sentence is warranted, all
aggravating
and mitigating factors must be weighed up cumulatively to determine
whether the prescribed sentence is indeed proportionate
to the
offence and whether compelling and substantial circumstances exist.
It must however be borne in mind that the prescribed
sentences should
not be departed from for ‘
flimsy
reasons’
and that the particular offence has been ‘
singled
out for severe
punishment
and the sentence to be imposed in lieu of the prescribed sentences
should be assessed paying due regard to the benchmark
which the
legislature has provided
’
[3]
.
The words “compelling and substantial circumstances”
require an identification of circumstances that constitute ‘
weighty
justification’
[4]
in order to depart from the prescribed sentence. It is in this light
that the court has to consider the current appeal against
sentence.
[17]
In our view the Regional Magistrate properly
considered the appellant’s favourable personal circumstances
and carefully balanced them against the gravity of the offences and
the interest of society. It was mainly the appellant’s
advanced
age and his clean record, coupled with the time that he spent in
custody, that led to the substantial reduction of the
mandatory
minimum sentence.
[5]
[18]
The Regional Magistrate also had regard to the
devastating effect of the rape on N.
[6]
From the victim impact report compiled by Ms Mbanjwa, a probation
officer, it is clear that N’s schoolwork suffered as a
result
of the offences. She went from being a top ten learner to a child who
failed numerous subjects. She had difficulty to sleep
at night, which
resulted in loss of concentration during the daytime. N was extremely
perturbed about the fact that the loss of
her virginity at such a
young age prohibited her from participating in a traditional coming
of age ceremony for women, known as
‘umemulo’. N started
isolating herself and she did not have any friends. She told Ms
Mbanjwa that she felt dirty, stupid
and useless and that she feared
that people in the community would judge her because of what had
happened. She developed suicidal
thoughts and had doubts about her
sexual identity. According to N’s teacher N used to be bold and
dynamic in her opinion,
but after the incident she avoided eye
contact and seemed to have given up on life.
[19]
The seriousness of the offences can hardly be
over-emphasised. In
S
v Ncheche
[7]
Goldstein J stated the following:
‘
Rape
is an appalling and utterly outrages 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 everyone 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.’
[20]
In
S
v C
[8]
it was said that:
‘
Rape
is regarded by society as one of the most heinous of crimes, and
rightly so. 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 is victim
and
subjects her to mental torment for the rest of her life- a fate often
worse than loss of life.’
[21]
Due to the high incidence of sexual offences against women and
children in our society the legislature
saw it fit to prescribe
certain sentences for identified crimes so that is may serve as a
deterrence to would be offenders. It
deemed it crucial to send out a
clear message that such behaviour will not be tolerated. The courts
can convey that message effectively
only in the sentences that they
impose in cases of this nature. Such sentences are to take due regard
to the prescripts of the
law and only deviate therefrom in cases
where substantial and compelling circumstances exist. ‘
Speculative
hypotheses favourable to the offender
’
and ‘
personal
doubts as to the efficacy of the policy underlying the legislation
’
do not play any role in this exercise.
[9]
Counsel for the appellant sought such speculation to be drawn from
the fact that the appellant is of advanced age and might die
in
prison if he were to serve the imposed sentence. There is no evidence
to support this.
[22]
The Regional Magistrate considered all the principles relevant to
sentencing the appellant and
it cannot be said that she failed to
exercise her discretion judicially, or that it was exercised
improperly. No misdirections
on her part have been identified. The
sentence that she imposed does not induce a sense of shock, nor is it
disturbingly inappropriate.
The cumulative assessment of the
mitigating factors is far outweighed by the harm that the appellant
has caused. Any sentence that
is less than the one imposed by the
Regional Magistrate would not be just.
[23]
I am satisfied that there is no legal basis to interfere with the
sentence. In the circumstances
I propose the following order:
23.1 The appeal against
sentence is dismissed.
A.
GRAF
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree and it is so ordered.
G.
MALINDI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
[1]
2011
(2) SACR 153
(SCA) at [22] and [23]
[2]
2001 (1) SACR 469
(SCA) at [25]
[3]
Malgas
(
supra
)
at [25]
[4]
Ibid
[5]
Record
p. 247 - 249
[6]
Record
p. 247 - 249
[7]
[2005] ZAGPHC 21
;
2005
(2) SACR 386
(W) at
[35]
[8]
1996
(2) SACR 181C
at 186E -F
[9]
Malgas
at [25]