Merile v S [2021] ZAECBHC 7 (11 May 2021)

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[2021] ZAECBHC 7
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Merile v S [2021] ZAECBHC 7 (11 May 2021)

IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, BHISHO)
Case
No: CA & R 12/2020
In
the matter between:
THEMBA
MERILE
Appellant
and
THE
STATE
Respondent
JUDGMENT
TOKOTA
J:
[1]
The appellant stood trial in the regional court, Zwelitsha, on four
counts of rape.
Count 1 was that on or about June 2010 and at or near
Mgxotyeni location in the Regional Division of the Eastern Cape the
accused
did unlawfully and intentionally sexually violate the
complainant, a 15 year old female person, by inserting his tongue
into the
mouth of the complainant without her consent in
contravention of sections 5(1) r/w
section 1
,
56
(1),
57
,
58
,
59
,
60
and
68
(2) of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 32 of 2007
;
Count
2. on or about June 2010 and at or near Mgxotyeni Location in the
Regional Division of the Eastern Cape the accused did unlawfully
and
intentionally commit an act of sexual penetration with the
complainant, a 15 year old female person, by penetrating his male
organ, penis, into the vagina of the complainant without her consent
in contravention of
sections 3
r/w 1, 56(1), 57,58,59,60 and 68(2) of
the
Criminal Law (Sexual Offences and Related Matters) Amendment Act
, 32 of 2007;
Count 3. on or about 1
September 2012 and at or near Mgxotyeni Location in the Regional
Division of the Eastern Cape the accused did
unlawfully and
intentionally commit an act of sexual penetration with the
complainant, a 17 year old female person, by penetrating
his male
organ, penis, into the vagina of the complainant without her consent
in contravention of
section 3
r/w
section 1
,
56
(1),
57
,
58
,
59
,
60
and
68
(2) of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 32 of 2007
.
Count 4 was that of on or
about 1 September 2012 and at or near Mgxotyeni location in the
Regional Division of the Eastern Cape the
accused did unlawfully and
intentionally sexually violate the complainant, a 15 year old female
person, by inserting his tongue into
the mouth of the complainant
without her consent in contravention of
sections 5(1)
r/w section 1,
56(1), 57,58,59,60 and 68(2) of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 32 of 2007 (the
Act);
The appellant pleaded not
guilty to all counts but was convicted as charged and sentenced as
follows:
Count 1:
To undergo 3 (Three) years imprisonment
Count2.
To undergo 22 (twenty two) years imprisonment
Count 3:
To undergo 10 (ten) years imprisonment’
Count 4:
To undergo 3 (three) years imprisonment.
Sentences were ordered to
run concurrently.
With
leave of the magistrate the appeal is against sentence only.
[2]
The facts giving rise to the conviction can be summarised as follows:
The
appellant is the biological father of the complainant. On or about
June 2010 the complainant was washing dishes in the kitchen.
Appellant got in the kitchen to fetch water and on his way out kissed
her by inserting his tongue into the complainant’s mouth.
Complainant resisted and pushed his father away. After telling him
that she did not like what he was doing appellant stopped.
[3]
During or about the same period in June 2010 the complainant was busy
undressing herself
after coming from school. She was alone in the
house. Appellant arrived and instructed her to take off her skirt.
She refused but
the appellant went closer to her pushed her on to a
bed. He was wearing short pants and was busy undressing himself.
Complainant
tried to run away but appellant grabbed her tight on to
the bed. He inserted his penis into her vagina and had sex with her
without
her consent.
[4]
Once again on 1 September 2012 on a Saturday when her mother had
attended a funeral,
the complainant was left at home with her sister
and a brother of 5 and 14 years respectively. After cleaning the
house the complainant
went to rest in her room. Whilst she was
sleeping there she noticed her father carrying a sword. He instructed
her to stand up and
when she screamed he threatened to stab her. He
instructed her to take off her clothes. She obeyed. The appellant
undressed himself
and got on top of the complainant on the bed and
inserted his penis into her vagina and had sex with her without her
consent. After
the sexual act he instructed her to wipe herself off
with a handkerchief.  She used her own handkerchief. Appellant
kept the
handkerchief under lock and key.
[5]
On 5 September 2012, the police embarked on what they called a
campaign in various schools
including that of the complainant. They
were informing learners on how they were performing their duties.
Emphasis was placed on
the prevention of domestic violence and rape
cases. After the presentation the learners were given opportunity to
ask questions.
The complainant was sitting in front. She raised her
hand but when she was asked to speak she cried. She reported the rape
to the
police and informed them that she never reported this to her
mother because her father had threatened to kill her if she reported
the incidents.
[6]
After hearing the presentation complainant went home to fetch her
handkerchief from
her father under the pretext that she wanted to
wash it. She wanted to hand over the same to the police for purposes
of DNA tests.
The handkerchief was kept in a separate room. Appellant
told her to go and get it in another room. When she got to that room
appellant
was inside and it was dark. He locked the door. He grabbed
the complainant and kissed her by inserting his tongue into her
mouth.
[7]
Appellant initially denied having had sexual intercourse with his
daughter to the police.
The DNA test results linked him to the rape.
In court he admitted having had sexual intercourse with the
complainant in September
2012 but stated that it was with her
consent. It seems to me that the admission of sexual intercourse,
albeit alleged with complainant’s
consent, was prompted by the
linkage to the rape by DNA results. He denied the rest of the
charges. As mentioned hereinbefore appellant
was found guilty as
charged on all counts. There is no appeal against the conviction.
[8]
In sentencing the appellant the magistrate took into account the
following:
The
appellant is an elderly person getting an old age grant. He was 66
years old at the time. He did not accept the responsibility
for his
actions by persisting that he was seduced by his daughter. He did not
show any remorse. He subjected his daughter to cross-examination
knowing full well that he raped her. He found that there were no
substantial and compelling circumstances justifying a lesser sentence
than that prescribed the Act. He found however that on the authority
of
S
v Malgas 2001(1) SACR 469 (SCA)
even if there are no substantial and compelling circumstances if the
imposition of a minimum sentence would result in an injustice
the
court is free to deviate from the minimum sentence. He thereupon
deviated from the minimum sentence prescribed by the Act without
recording the reasons therefor.
[9]
As alluded to above the magistrate found, correctly so in my view,
that there were no
substantial and compelling circumstances
justifying a lesser sentence on count 2. This then called for a
minimum sentence of life
imprisonment. However the magistrate without
giving any reasons imposed a sentence of 22 years imprisonment on
this count. In my
opinion in doing so he misdirected himself. This
court is therefore at large to reconsider the sentence afresh.
[1]
In this regard we gave notice to the parties that they should file
supplementary heads of argument addressing us as to why, in the
event
of the appeal failing, the sentence should not be increased. Both
parties have duly complied with our request and we are truly
indebted
to them for their helpful submissions.
[10]
Mr
Giqwa
for the appellant submitted that because of the advanced age of the
appellant and the fact that he was a well known pastor and supporting
his children he deserves a lenient sentence. He submitted that the
appellant is a first offender and therefore a sentence of 15 years
imprisonment would be appropriate. Relying on the cases of
S
v Malgas
2001 (1) SACR 469
(SCA)
and S
v
De Beer
2018 (1) SACR 229
(SCA) ([2017] ZASCA 183)
Mr
Giqwa
submitted
that the sentence imposed by the magistrate was disproportionate to
the crime committed. He conceded, however, that there
were no
substantial and compelling circumstances justifying a lesser sentence
than that prescribed by the Act but submitted that
in terms of the
De
Beers’
case if the sentence would be disproportionate to the offence a
lesser sentence may be imposed.
[10]
Ms
Tokota
who
appeared for the State submitted that the case of
De
Beers
is distinguishable from the present matter. In that case the rape
committed was what used to be common law indecent assault before
the
promulgation of the Act. Accordingly, so the argument ran, there must
be substantial and compelling circumstances justifying
a lesser
sentence before a court can deviate. In this case the rape was
perpetrated on a minor child by her biological father. In
this regard
she referred us to the case of
S
v PB
2013 (2) SACR 533
(SCA) ([2012] ZASCA 154); and S v
Abrahams
2002 (1) SACR 116
(SCA)
[11]
In my view reliance on Malgas for not imposing the minimum sentence
was a misdirection on the part of
the magistrate. As I understand the
case it is not correct that even though there are no substantial and
compelling circumstances
the judicial officer is free to impose any
sentence. The discretion to impose any other sentence arises once it
is found that there
are no substantial and compelling circumstances
justifying such lesser sentence than that prescribed by the statute.
In my view,
the nub of the
Malgas’
case is that when
considering the presence of substantial and compelling circumstances
the court must consider whether or not the
imposition of the minimum
sentence would be disproportionate to the offence.  Since
sentencing on these specified offences is
no longer ‘business as
usual’ the minimum sentence may not be departed from lightly and on
‘flimsy reasons’. The learned
Judge of appeal expressed himself
as follows:
“
The
greater the sense of unease a court feels about the imposition of a
prescribed sentence, the greater its anxiety will be that
it may be
perpetrating an injustice. Once a court reaches the point where
unease has hardened into a conviction that an injustice
will be done,
that can only be because it is satisfied that the circumstances of
the particular case render the prescribed sentence
unjust or, as some
might prefer to put it, disproportionate to the crime, the criminal
and the legitimate needs of society.
If
that is the result of a consideration of the
circumstances
the court is entitled to
characterise
them as substantial and compelling
and such as to justify the imposition of a lesser sentence.”
(Emphasis
added)
[12]
In my view the feeling of uneasiness alluded to in the quoted
paragraph signifies the presence of substantial
and compelling
circumstances justifying a lesser sentence. It could never have been
the intention of the Learned Judge to permit
deviation from the
mandatory provision in the absence of substantial and compelling
circumstances. To interpret his judgment in that
way would be going
back to ‘business as usual’ where the court would simply exercise
its discretion on sentence.
[13]
Furthermore, as I understand the
Malgas’
case even if there
are no substantial and compelling circumstances the court is not
bound to impose the minimum sentence only. Depending
on the nature
and gravity of the offence and other relevant factors the court still
has a discretion to impose a greater sentence
than the minimum
sentence prescribed by the legislation. The discretion to impose a
sentence less than the minimum one arises if
there are substantial
and compelling circumstances. In the matter of
De Beers,
the
Learned Judge of Appeal said
“
This
court has pointed out on many occasions that injustices may occur if
the prescribed minimum sentences are imposed without a proper
consideration
of
the existence of substantial and compelling circumstances, including
the question whether the prescribed sentence will be disproportionate
to the offence, in the wide sense, in other words, including all the
circumstances of not only the offence itself, but also the
circumstances
of the parties involved”.
[2]
(My
underlining)
[14]
On the question of advanced age Ms
Tokota
submitted
that the appellant abused his position of trust in his daughter. She
referred to the case of
S
v JA 2017(2) SACR 143 (NCK)
where the appellant who was 59 years of age was sentenced to life
imprisonment for the rape of his 12-year-old daughter. I agree
with
Ms
Tokota
that
the issue of the advanced age can only be relevant in the event it is
taken as contributing to substantial and compelling circumstances
justifying a lesser sentence. In my view, once it is found, as was
found in this case, that there are no substantial and compelling
circumstances justifying a departure from the minimum sentence the
age of the appellant becomes irrelevant.
[3]
Furthermore the fact that the appellant is a pastor in church is a
factor which militates against him.
[15]
The advancement of age as such is not in itself a compelling
circumstance for deviation. ‘
A
sentence of life imprisonment must, from the viewpoint of the
courts, be seen as exactly that — imprisonment for the
rest of the
natural life of the offender’.
[4]
A sentence of life imprisonment therefore authorises the State
to keep the person sentenced in prison for the rest of his life.
[5]
That must also be assumed to have been the intention of the
legislature in enacting section 51(1) of the Act.  Accordingly
there
is also no merit in Mr
Giqwa’s
argument.
[16]
In
S
v
Heller
1971 (2) SA 29
(A) at 55C – D. and S v Munyai and Others
1993
(1) SACR 252
(A)
the advanced age of the accused was considered as a mitigating
factor.   None of these cases concerned a prescribed
minimum
sentence of life imprisonment, and the issue was therefore
not whether the fact, that an accused of advanced age might spend the
rest of his or her life behind bars if life imprisonment is imposed,
could be a mitigating factor which could constitute substantial
and
compelling circumstances justifying a lesser and determinate
sentence.
[17]
The Supreme Court of Appeal in the
Abrahams
’
case
[6]
, where the prescribed
sentence of life imprisonment was applicable, held that the age of
the appellant (53 years old at the time
of the rape and 54 years old
at the time of sentence) was not a mitigating factor when it came to
the issue of substantial and compelling
circumstances.
[18]
It is by now well established in a long line of cases that rape is
one of the most despicable, heinous
crimes infringing, as it does,
the rights entrenched in the Constitution which include the right to
inherent dignity, privacy, and
the right to security and protection
thereof. Stiff sentences such as life imprisonment have not yielded
any positive results thus
far. The country continues to be plagued
with this kind of criminal behaviour. The only option open to courts
is to continue to apply
the law relating to rape cases in a
standardised form as required by the legislature.
[19]
Rape committed by a relative, not to mention a biological father, is
a serious threat to a safe environment
of children. The interests of
society demand that such criminals deserve to be kept away from the
community.
[20]
In
S v D
1995 (1) SACR 259
(A)
the SCA said the following
at 260f – i with reference to the vulnerability of young children:
'Children
are vulnerable to abuse, and the younger they are, the more
vulnerable they are. They are usually abused by those who think
they
can get away with it, and all too often do. . . . Appellant's conduct
in   my view was sufficiently reprehensible
to fall within
the category of offences calling for a sentence both reflecting the
Court's strong disapproval and hopefully acting
as a deterrent to
others minded to satisfy their carnal desires with helpless
children.'
These
sentiments are apposite in the present matter.
[21]
The prevalence of this kind of offence in this division cannot be
over-emphasized. During the week in
which we were hearing appeals,
out of six appeals two of them, including this one, concerned rape of
the girls under 16 years by
their biological fathers. Courts must be
vigilant and send a strong message to the public at large that in
their performance of duty
they will do the best they can to ensure
the protection of women’s right to dignity and privacy. The
intention of the Legislature
in prescribing the minimum sentences of
life imprisonment on certain offences was to make sure that the
criminals are kept in prison
for the rest of their lives
.
The
duty to do so is placed in the judiciary.
[22]
I am mindful of the fact that sentence is a matter which is
pre-eminently within the discretion of the
trial court. The court of
appeal will be very slow in interfering with that discretion. It will
only interfere where the discretion
has not been judicially
exercised. Interference is called for where the sentence -
(a)
is vitiated by irregularity or misdirection; or
(b)
is disturbingly inappropriate.
[7]
The fact that the appeal court may not have imposed the same sentence
is not enough.
[23]
In
S v Shaik
[2007] ZACC 19
;
2008 (2) SA 208
(CC)
para.72 the
Constitutional court said:
“
The
function of any court adjudicating an appeal against a sentence must
be kept in mind, for it is relevant to whether there are
prospects of
success. It has been stated repeatedly by courts that an appeal court
will not easily interfere with a sentence imposed
by a trial court
exercising its discretion. The question is not which sentence the
appeal court would have imposed, but rather whether
the sentence is
shockingly inappropriate, or whether an irregularity or misdirection
occurred.”
[8]
[24]
In my view, the sentence imposed by the magistrate on count 2 was
incompetent and vitiated by a misdirection.
Counsel for both parties
conceded that this court is, in terms of
section 309(3)
of the
Criminal Procedure Act 51 of 1977
, empowered to set aside a sentence
and impose a more severe one. Before the hearing of the matter, we
invited the parties to give
us reasons, by way of supplementary heads
of argument, why this should not be done in the present case. The
State has argued that
we should increase the sentence to life
imprisonment and the defence has argued that we should not do so. I
am not persuaded that
we should either reduce or leave the sentence
as it is. The intention of the Legislature must be given effect to.
[25]
It has been held that with the advent of the enactment of the
legislation prescribing minimum sentences
‘
society
is clamant for retribution and deterrence must also play a major role
in the sentences imposed. The personal circumstances
of the appellant
must recede into the background’.
[9]
[26]
For the above reasons, I am of the view that the appeal must fail
instead the sentence imposed by the
magistrate on count 2 must be set
aside and substituted by an appropriate sentence.
[27]
In the result I make the following order.
1.
The appeal is dismissed.
2.
The sentence imposed by the magistrate on count 2 on 9 May 2014 is
set aside and
replaced with “on count 2 the accused is sentenced to
life imprisonment.”
The
sentence on count 2 is to run concurrently with sentences on counts
1, 3 and 4.
___________________________
B RTOKOTA
JUDGE
OF THE HIGH COURT
I
AGREE
__________________
N NONGOGO
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
For the appellant:

Mr A Giqwa
Instructed by Legal Aid
SA
For the respondent:

Adv N Tokota
Instructed by DPP
Date of Hearing

7 May 2021
Date
delivered:
11 May 2021
[1]
S
v Malgas
2001 (1) SACR 469
(SCA) para. 33; S v Mathekga
2020
(2) SACR 559
(SCA) para.23
[2]
Para.17
[3]
S
v JA
2017 (2) SACR 143
(NCK) paras 31-37
[4]
C/F S v Mhlakaza
1997
(1) SACR 515
(SCA) at521d-e
[5]
S
v T
1997 (1) SACR 496
(SCA) at 498
[6]
S
v Abrahams
2002 (1) SACR 116
(SCA) para 27.
[7]
S
v Rabie
1975 (4) SA 855
(A) at 857D - G.
[8]
S v Kibido
1998 (2) SACR
213
(SCA) at 216g - j; S v Brand
1998 (1) SACR 296
(C) at 303c - e;
S v Pillay
1977 (4) SA 531
(A) at 535A - G; S v Rabie
1975
(4) SA 855
(A) at 857C - F; S v Sibiya
1973 (2) SA 51
(A) at
56A - B and 57B - C; S v Berliner
1967 (2) SA 193
(A) at 200G;
S v Fazzie and Others
1964 (4) SA 673
(A) at 683A and 684A - C;
S v Anderson
1964 (3) SA 494
(A) at 495C - H; R v Zulu and
Others
1951 (1) SA 489
(N) at 494A - G and 497A - D; R v Reece
1939 TPD 242
at 243 - 244; R v Taljaard
1924 TPD 581
at 582 and 583;
R v Mapumulo and Others
1920 AD 56
at 57.
[9]
S
v Mokoena
2009 (2) SACR 309
(SCA) para.11