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[2019] ZAGPPHC 406
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Radebe v S (A03/2017, 374/04/2016) [2019] ZAGPPHC 406; [2019] 3 All SA 938 (GP); 2019 (2) SACR 381 (GP) (10 July 2019)
N THE HIGH COURTOF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES
(2)
OF
INTEREST TO OTHER JUDGES: YES
(3)
REVISED
CASE NO: A03/2017
Dpp
Ref No: 374/04/2016
In
the matter between:
RADEBE,
MPHO FREDDY
Appellant
And
THE
STATE
Respondent
JUDGMENT
SPlLG
J
INTRODUCTION
1
The appellant pleaded guilty to raping a girl who was only 10 years
old
at the time. He was legally represented at the trial and fully
aware that the State Intended to apply the provisions of s 51(1)
read
with Schedule 2 of the Criminal
Law
Amendment Act 105 of 1997 ("CLAA"). This appears from the
charge sheet that was read out-When he was required to plead.
2.
The
effect of s 51(1) Is that on conviction the court is obliged to
sentence an offender who rapes someone under the age of 16 to
life
imprisonment unless substantial and compelling circumstances are
present.
3.
The-·appellant
was convicted on his s 112 (2) plea of guilty statement
[1]
.
Regional Court Magistrate Willemse could find no substantial and
compelling circumstances to depart from the minimum sentence
for the
rape of an underaged person and sentenced the appellant to life
imprisonment The appellant exercised his right of
automatic appeal
under s10 of the Judicial Matters Amendment Act The appeal is against
sentence only.
GROUNDS
OF APPEAL
4.
The
appellant raises two main grounds of appeal against sentence:
a.
that the trial court misdirected itself
in finding that there were no substantial and compelling
circumstances which would allow
the Imposition of a sentence other
than life imprisonment, and
b.
That
the sentence Induces a sense of shock and is startlingly
Inappropriate.
5.
In
regard to the first ground
Adv Masele
for the appellant submitted that the
following factors amounted to substantial and compelling
circumstances as envisaged by s 51(1);
a.
the
appellant was 26 years of age and therefore relatively young at the
time the offence was committed:
b.
he is a first time offender who has never previously had a brush with
the law,
c.
he pleaded guilty, thereby sparing the
victim more trauma. It was submitted that this also demonstrated that
he was remorseful and
took responsibility for his actions;
d.
there
are prospects for his rehabilitation;
e
the
degree of violence used during the commission of the offence resulted
in the victim
·only'
experiencing trauma with no physical
injuries other than to her anus. It was submitted that this “
does
not amount to the worst kind of rape for which life imprisonment
was
intended',
The
appellant relies on the Judgment of the Supreme Court of Appeal in
S
v Mahomotsa
2002
(2) SACR 435atpara 18 and a number of other cases where, despite a
child of 11 years or younger (in one case as young as 9
years of age)
being raped, the appeal court either reduced the sentence from life
to15 years Imprisonment or confirmed the trial
court's sentence of 15
years.
[2]
f
The appellant had spent nine months in
custody prior to being sentenced
6
The appellant also relies on much the same grounds to support the
argument
that the sentence Imposed induces a sense of shock.
7.
In
S v
Mabaso
(A372/2 014- unreported-a
August 2016) the full court said at para 18:
"An appellant must either
demonstrate that the trial court materially misdirected itself by not
exercising its discretion reasonably
(eg by overemphasising one
element or failing to take into consideration another), In which
case
t
he
appeal
court will consider sentence afresh, or must show that the sentence
fs so substantially and startlingly excessive, or disturbingly
inappropriate when compared with the sentence the appeal court seized
with the matter would have Imposed.
See
S
v Malgas 2001 (1) SACR 469 (SCA) at
para 12.
See
also
S
v
Safzwede1l992(2) SACR 588 (SCA) al para 10
”
[3]
8.
In
order to determine whether the magistrate misdirected herself or
·that the sentence induces a sense of shock it is
advisable first to consider the sentencing framework in cases where s
51 of the CLAA applies.
SENTENCING
9.
The
general purpose of imposing a sentence is said to be fourfold;
retributive -and preventative , rehabilitative (reformative)
and
to act as a general deterrent. See S
v
Rabie
1975 (4) SA 855
(A). The
retributive aspect has a tendency to dominate (S
v
Karg
1961 (1) SA 231(A))
although
courts are enjoined to temper the punishment with some degree of
mercy. In
Rabie
at
862G-H Holmes·J A concluded that. “
Punishment
should fit the criminal
c1s
well
as the crime, be fair
to
society,
and
be
blended
with a measure -of mercy according to
the circumstances".
10.
The extract from
Rabie
recognises
that the imposition of a suitable sentence must have regard to the
nature of the crime, must individualise the offender
by having regard
to his or her personal circumstances and must take Into account the
interests of society. I would respectfully
add that under one of
these heads regard must also be given to the impact of the crime on
the victim and the victim's family. See
S
v Zinn
1969 (2)
SA 537
(AD) and S
v
Matyityi
2011
(1) SACR 40
(SCA)
at paras 16 and 17.
11.
The
prevalence of certain crimes Is responded to by placing more emphasis
on the deterrent and general retributive actors with a
commensurate
reduced concern for individualising the punishment Courts accept this
as a justification for making an example of
the offender. Nonetheless
one should be conscious of the fact that increasing punishment above
the prevailing norm will result
in less Weight being given to the
individual circumstances of the offender.
Provided the basis can be
supported factually and provided the societal objective is rational,
the imposition of a severer sentence
does not appear to be
objectionable . In practice it occurs daily.
12.
In
order to determine whether the magistrate misdirected herself or
imposed a sentence that was strikingly disproportionate It is
advisable to deal with the facts under the three broad
classifications mentioned in
Rabie
and
Zinn
and consider whether substantial and
compelling reasons exist for not imposing the minimum sentence.
Unless this methodology fs
applied, or one which considers the facts by reference to the four
purposes recognised in criminology
when considering punishment
,there
is a risk that sentencing becomes more a reflection of the individual
presiding officer's personal views than a proper examination,
to
paraphrase.
Rabie
(cited earlier)
, of what sentence will fit the crime. the criminal, will have regard
to the imp
a
ct
of the crime on the victim, is fair to society and, to the
extent
appropriate,
is blended with mercy having regard to any applicable minimum
sentence provision contained ln s51 of the CLAA If this
is not done
then pres1dfng officers will have difficulty in discerning the
principles to be applied or in discerning why significantly
divergent
sentences are imposed by higher courts on facts that may otherwise
appear to be similar.
13.
The
methodology applied must nonetheless be informed by and Is subject to
the minimum sentence provisions of s 51 of the CLAA.
In S
v Malgas
2001(1) SAC
469(SCA) the court considered that the minimum sentence provisions
are intended to place greater emphasis on the gravity
of the offence
and the public's need for effective sanctions. It held that courts
cannot depart from the prescribed sentence lightly
but indicated that
it was not possible to catalogue all factors which might result in
the presence of substantial and compelling
circumstances.
The SCA also indicated that
consideration must be given to the cumulative effect of all relevant
circumstances and that as a whole
they may render1he prescribed
sentence disproportionate or otherwise unjust having regard to the
accepted triad of factors. See
generally at paras 8 to 10, 20 and 22.
I have also had regard to the subsequent application of
Malgas
in
S
v Vilakazi
2009 (1) SACR 552
(SCA).
S v
Ktuger2012 (1)
SACR 369(SCA), S
v Dlamini
2012
(2) SACR 1
(SCA) and S
v
Radebe and
another2013 (2) SACR 165 (SCA).
14.
In
accordance with Malgas it is appropriate to consider whether
substantial and compelling reasons exist by reference to the three
broad classifications mentioned earlier.
NATURE
OF THE CRIME
General
15.
In his s 112(2) plea the appellant
admitted to raping the child. II is clear from his statement that she
attempted to resist him.
According to his statement he saw her
playing and asked If he could buy her a yogurt. He then walked with
her and a person he described
as-her friend. Instead of buying a
yogurt he took her to a nearby field where he undressed her and
raped her by Inserting
his penis into her anus. He also “
requested
her to suck
his
penis"
but she bit it. He ran away and was
later arrested. The appellant admitted that his DNA was found in the
aperture of her vagina.
16.
The
State accepted the appellant's statement
The only other evidence Introduced
was the J88 medical examination and the biology report which
confirmed that the DNA swabs taken
from the girl's vestibule and that
taken from the appellant matched. Both reports were admitted into
evidence.
17.
The medical examination recorded on the
J88 also reveals that the child had blood on both legs. The doctor
concluded that the abrasions
to her anus were consistent with
penetration to that region. No other injuries were observed
18.
At
sentencing stage the appellant admitted the contents of the two
probation officers' reports, one which considered his personal
circumstances and the other which was a victim impact report In doing
so and by his legal representative also relying on them in
argument
two more features oi the crime were Introduced into evidence.
[4]
The first is that aside from
penetrating her anally and trying to have her suck his penis he had
also placed his fingers In her
vagina The other is that the
person
who
the appellant admitted was in their company when he raped the child
turned out to be her step-brother. He therefore was compelled
to be
present and witness his sibling being raped.
19.
Numerous
decisions of the SCA have considered the nature of the offence of
rape. In
S
v
Kwanape
2014
(1) SACR 405
(SCA) Petse AJA referred to some of these at para 17:
"' Rape is undeniably a
despicable crime. In N v Tit was described as 'a horrifying crime and
is a cruel2nd selfish act ln
which the aggressor treats with utter
contempt the dignity and feelings of [the] victim'. In S v
Chapman
this court said it is 'a humiliating, degrading and brutal invasion
of the privacy, the dignity and the person of the victim'
Its gravity
in this case is aggravated by the feet that the victim was a 12-
year-old child. In S v Jansen rape of a child was
said to be 'an
appalIng and perverse abuse of male power’.”
20.
It
is trite that society's cohesiveness Is dependent on co-existence; a
collaboration be
tw
een
Individuals based on an acceptance of value based norms which are
intended not only to secure and enrich the society In which
each of
us live but allow each Individual to grow and attain his or her full
potential. These are universal values on which society’s
existence and the individuals within it rely.
[5]
21
The building blocks of a functioning
society are the family unit and in order for it to flourish families
must integrate into communities.
These are symbiotic relationships
that have evolved and continue to
evolve
with changing demographics.
22
There are a number of dearly understood
precepts upon which the fabric of our society and the rationale for
communal based co-existence
is founded. Without these our society's
cohesion is destroyed. One of the most fundamental values within any
society is that we
rear, nurture and protect our young who by
definition are extremely vulnerable; we do not prey on them.
23.
The Constitution places the highest
store upon children and the responsibility of fellow citizens and the
state to provide, as far
as is sustainable, the best possible future
for them. Section 28 of the Constitution sets out in detail the
rights
specifically enjoyed by children over and above the
other rights accorded to all. Among them Is the right
·
to be protected
from
maltreatment,
...
abuse
or degradation.
[6]
24.
Rape directly Impacts on the victim's
right to dignity, equality, bodily integrity, freedom of association
and the entitlement to
choose with whom to share the most intimate
relationship. In the present case the girl would have just reached
puberty at the time
she was violated. Rape erodes the victim's right
to bodily and emotional integrity because the violation cannot be
undone In this
manner the victim's constitutionalr19ht to freedom of
security of person has also been trampled on.
[7]
The right to dignity itself
·compliments
the right to life as the most significant of our constitutional
values (see generally the individual judgments
of the constitutional
court justices in S v Makwanyane 1995(3) SA 391 (CC)). The right
to
dignity encompasses the entitlement to self-respect, not to be
violated or to suffer degradation”.
[8]
25.
Rape therefore is not just the invasion
of a right not to be physically harmed. It significantly diminishes a
large number of the
fundamental bundle of rights which the Bill of
Rights either expressly or implicitly secures for each Individual.
Rape constitutes
a gross violation of a person's physical integrity
and
psyche.
It is likely
to leave indelible emotional and psychological scars
with
sequelae
that
can dramatically impact on the enjoyment of the qualities of life.
The literature referred to by the probation officer who
compiled the
victim assessment report speaks to this. Moreover our body of law has
no difficulty in recognising general damages
In delict for the
sequelae of psychological trauma through1he award of significant
amounts.
26.
Accordingly
to suggest that there are degrees of rape depending on the extent of
the physical assault disregards the fact that rape
per
se equates to the most degrading and
Invasive of assaults on both the physical integrity and the psyche of
!he individual. Just
as a blunt force can fracture bone.so too can
emotional
trauma break a person's spirit. Furthermore at a more
subtle but equally debilitating level, opportunities that present
themselves
for a fulfilling life may be lost due toinordlni3te fear
or apprehension attributable to the consequences of being raped. In
the
case of children emotional trauma is likely to result in
milestones that can be looked forward to in the normal maturation
process
being forfeited or compromised with potentially life long
repercussions.
27.
The appellant however
contends that the facts of this case do “
not
amount to the worst kinds of rape for which life. imprisonment
was
intended”.
He relies on S
v
Mahomotsa
2002
(2) SACR 435
(SCA) at para 18 where the court said:
“
It
perhaps requires to be stressed that what
emerges
clearly from
the
decisions in Malgas
and Dodo is· that it does not follow that simply
because
the circumstances
attending a particular instance of rape result in
11
falling within one
or other of the categories
of
rape delineated in
the Act,
a
uniform
sentence
of either life imprisonment or indeed any other uniform sentence must
or should be imposed. If substantial and compelling
circumstances are
found to-exist, life imprisonment
is
not mandatory nor
is
any other mandatory
sentence'
applicable. What
sentence should be imposed in such circumstances ls within the
sentencing discretion of the trial Court. subject
of course-to the
obligation cast upon it by the Act to take due cognisance of the
Legislature’s desire for firmer punishment
than that which may
have been thought to be appropriate· in the past. Even In
cases falling within the categories delineated
in the Act there are
bound to be differences in the degree of their seriousness. There
should be no misunderstai1ding about this:
they will all be serious
but some will be more serious than others and, subject to the caveat
that follows, it is .only right that
the differences In seriousness
should receive recognition when It comes to the meting out of
punishment. As
this
Court observed in S v Abrahams 2002 (1) SACR 116 (SCA). 'some rapes
are worse than others and the life sentence ordained by
the
Legislature should be reserved for cases devoid of substantial
factors compelling the conclusion that such a sentence is
Inappropriate
and unjust' (para [29]).
28.
There appear to be a number of obstacles
standing in the appellant's way.
The first is that the
submission disregards the scheme of s 51 of the CLAA ln relation to
rape offences and in particular the provision
of s 51(3) (aA) (ii).
Secondly there ls no linear correlation between the degree of
apparent physical injury to the victim, assuming
that one
can
leave aside the physical assault constituted by the rape itself,
and the emotional and psychological trauma or its long term effect
on
the victim's well-being.
Another Is the fact that a
person may submit to rape without being physically attacked because
of grooming, the position of authority
or power enjoyed by the
perpetrator or fear on the
part
of the victim that any
resistance may lead to being severely assaulted or killed.
Interpretation
of s 51 of CLAA in relation to rape offences
29.
It
the appellant is to succeed in submitting that this is not the worst
kind of rape because there were no apparent physical injuries
then,
as with cases where the proximity of the relationship between the
perpetrator and the victim is relied on as a mitigating
factor, the
first hurdle to overcome is whether such a ground can be competently
raised in light of the exclusionary provisions
of s 51(3) (aA).
30.
The
provisions of s 51 relevant to cases of rape are:
Discretionary minimum
sentences tor certain
serious
offences.
-
(1)
Notwithstanding any other law.
but subject/a 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.
(2)
Notwithstanding any
other law but subject to subsections (3) and (6), a regional court
or
a High Court
shall sentence a person who
has
been
convicted of an· offence referred
to
in-
(a)
Part
II
of
Schedule
2, in the-case of-
(i)
a first offender, to
imprisonment for a period not less than 15 years;
(ii) a
second offender
of
any such offence,
lo
imprisonment for a
period not
less
than
20
years:
and
(iii)
a
third
or
subsequent offender
of
any
such offence, to imprisonment for 8 period not
less
then 25
years;
(b)
Part Ill
of
Schedule 2, in the
case
of-
(i)
a first offender.
to
imprisonment for a
period not
less
than
10
years.
(ii) a
second offender
of
any
such
offence to
imprisonment for a period not
less
than 15 years; and
(iii) o third
or subsequent offender of any such offence,
to
imprisonment for
a
period not
less
than 20 years:
(3)
(a)
If
any court referred to in subsection (1) or (2) is satisfied that
substantial and compelling circumstances exist which Justify
the
imposition of a lesserS8ntence than the sentence prescribed in those
subsections, it shall .enter those circumstances on the
record of the
proceedings and must thereupon impose such lesser sentence: Provided
that ff a regional court imposes such a lesser
sentence in respect of
an offence referred to Part 1 of Schedule 2, it shall have
jurisdiction to impose a term of imprisonment
for a period not
exceeding 30 years.
(aA)
When imposing
a
sentence in
respect of the offence of rape the following shall not constitute
substantial and compelling circumstances justifying
the Imposition of
a
lesser
sentence:
(i)
The complainant's previous sexual history;
(ii)
an apparent lack of physical injury to /he complainant;
(iii)
an
accused person's cultural
or
religious beliefs about rape; .or
(iv)
any
relationship between the accused person and the complainant prior to
the offence being committed.
(4)
……
(5)
The operation of
a
minimum sentence imposed in
terms
of this section shall not be
suspended
as
contemplated
in section 297 (4) of the Criminal Procedure Act, 1977 (Act No. 51
of
1977),
Only the following parts of
Schedule 2 are relevant for present purposes:
Schedule 2
(Section 51
)
PART I
Rape as contemplated in section
3 of the Criminal Law (Sexual Offences and Related Matters) Amendment
Act, 2007-
(a)
when committed--
(i)
in circumstances where the victim
was
raped
more than once whether by the accused or by any co-perpetrator or
accomplice;
(ii) by
more than one person, where such persons acted in the execution or
furtherance of a common purpose
or conspiracy;
(iii) by
a
person who ha
sbeen convicted of two or more offences of rape or
compelled rape,
but has not yet been sentenced in respect of such convictions; or
(v)
by
a person, knowing that he
has
the acquired
Immunodeficiency syndrome
or
the human
immunodeficiency virus;
(b)
where the victim-
(i)
Is
a person under the age of 16 years;
(iA) is
an older person as
defined in section 1 of the Older Persons Act, 2006 (Act No. 13 of
2006);
(ii) is
a
physically
disabled person who, due to his or her physical disability,
is
rendered
particularly vulnerable; or
(ii)
is
a person who is mentally disabled as contemplated In
section 1
of the
Criminal Law(Sexual Offences and Related Matters) Amendment Act.
2007
; or
(c)
involving
the infliction of grievous bodily harm.
PART III
Rape or compelled rape
as
contemplated In
section 3 or 4 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act, 2007, respectively In circumstances
other
than those referred to in Part
I.
Sexual exploitation of
a
child or sexual
exploitation or a person who
is
mentally disabled
as
contemplated
in
section 17
or
23
or using a child tor child pornography or using a
person who
Is
mentally disabled
for pornographic purposes,
as
contemplated in
section 20
(
1
) or
26
(1) of the
Criminal Law (Sexual Offences·
and Related Matters) Amendment Act. 200 7
, respectively.
Assault
with intent to do
grievous bodily harm on a child under the age of 16
years:
31.
For present purposes
It ls not lrrelevant1hat a person convicted of compelled rape ls
treated effectively in .the same manner ,
for sentencing purposes, as
a rapist and the same
s 51(3)
exclusions are also applicable In terms
of s 4 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
("Sexual
Offences Act")
a
compelled rape is committed by :
Any person ('A")
who unlawfully and Intentionally compels
a
third person
("C"), without the consent
of
C, to
commit an
act of
sexual
penetration with
a complainant ("B”), without the consent of B
This aspect will be dealt with in
more detail under the sub-heading
"Physical v Emotional
trauma and Psychological degradation"
32.
It is therefore evident that far from
allowing them to constitute substantial and compelling factors, the
provisions of ss·51(3)(aA)(ii)
and (lv) expressly provide that
the apparent absence of physical harm or the existence of a
relationship between the offender and
the victim cannot be regarded
as mitigating factors for purposes of reducing the prescribed
sentence.
33.
The legislature therefore understood
that aside from actual physical injury, or threat of physical Injury
, rape parse is a grievous
assault, constitutes a gross
violation of bodily integrity. degrades, humiliates and
renders the victim vulnerable. The legislature would also have been
aware of the overwhelming body of professional literature on both
the1mmedlate and long term emotional and psychological trauma
and
degradation generally experienced by rape victims. The symptoms the
victim in this case has continued to experience is well
documented in
the literature on the subject as appears later from the references
to the probation officer's report.
34.
In my view there is a consistency in the
manner in which rape offences are dealt
with in s 51.
The legislature has drawn a
line in the sand between those specific situations where the minimum
sentence for the crime of rape
is life Imprisonment event or
a
first offender and a graded sentencing regime in all other situations
depending on whether the perpetrator is a first, second
or third time
offender.
35.
The legislature expressly
amended s 51 to cater for the Implementation of the Sexual Offences
Act.
This Act consolidated sexual
offences into one statute, extended the crime of rape to include all
forms of sexual penetration without
consent, created the crime of
sexual assault for all other forms of sexual violation and repealed
the common law crimes of rape
and indecent assault For present
purposes anal penetration, which previously fell under the common law
crime of indecent assault,
now falls into the category of statutory
rape offences.
[9]
36.
As already mentioned s 51 of the CLAA
itself identified certain circumstances in which the commission of
the crime of rape warrants
severer punishment.
Absent substantial and compelling
circumstances, ordinarily a convicted rapist will receive a minimum
sentence of 10 years imprisonment
for a first offender, 15 years If a
second offender and 20 years if a third or subsequent offender.
This1s in terms of s 51 read
with Schedule 2 Part Ill of the CLM
which provides:
“
Rape
or compelled rape
as
contemplated in
section 3 or 4 of the Criminal Law (Sexual Offences and Related
Mailers) Amendment Act, 2007, respectively in circumstances
other
than
those
referred
to in Part I.”
37.
A
minimum sentence of life imprisonment is to be imposed if the rape or
compelled rape was committed in the circums
ta
nces
mentioned under Part 1 of Schedule 2. For ease of reference it Is
conven1eot to repeat Part 1:
"Rape
as
contemplated in
section 3 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007-
(a)
when committed -
(i)
In
circumstances where the victim
was
raped more than once whether by the
accused or by any co-perpetrator or accomplice;
(ii)
by more than one person, where suet,
persons acted in the execution or furtherance of a common purpose or
conspiracy:
(Iii)
by a person who has been convicted of two or more offences of rape or
compelled rape, but has
not yet been sentenced in respect of such
convictions: or
(iv)
by a person, knowing that he has the acquired immune deficiency
syndrome or the human Immunodeficiency
virus;
(b)
where the victim-
(i)
is a person under the age of 16 years:
(iA)
is an older person
as
defined in
section 1 of the Older Persons Act,
2006
(Act No. 13 of
2006);
(ii)
is a physically disabled person who,
due to his or her physical disability, is
rendered particularly vulnerable; or
(iii)
is a person who
is
mentally disabled as contemplated in
section 1 of the Criminal Law (Sexual Offences and Related
Matters)
Amendment
Act. 2007 : or
(c)
Involving the infliction of
grievous bodily harm.
38.
It is also significant that the infliction of grievous bodily harm to
the victim Is a self-standing
ground, quite distinct from a case
where the victim ls under-age. So too the fact th.at compelled rape
in similar circumstances
also visited with life imprisonment despite
the fact that there Is no apparent physical injury to the victim only
the threat of
harm.
39.
These factors and the clear delineation between what Parliament
considers to be more egregious
instances of rape
albeit that the
victim does not appear to have suffered any physical injury, gives a
clear indication regarding the gravity with
which
the legislature considers that1he rape of a child will impact on his
or her general well-being and development as well as
on the interests
of society and its revulsion towards such a crime.
40.
Unless
a constitutional challenge is raised to these exclusion, and none
has, then the appellant cannot rely on the absence of physical
Injuries (other than to her anus) as constituting substantial and
compelling circumstances.
41.
Insofar as the appellant may have
contended that, aside from1he absence of other injuries, anal
penetration. in comparison to vaginal
penetration, would
per
se
fall short of the so called
‘
worst kind of rape'
it
is necessary to first consider the commentary by Prof Snyman in
Criminal Law
(6
th
ed 2016) at 345.
The author criticised the
Sexual Offences Act for
"obviously”
not having
"given much
recognition to the" principle of fair labelling”, and
lumped together under
one
single heading a number of dissimilar acts which differ substantially
from one another in character".
The
distinction drawn by the a
u
thor
is that there Is good reason for treating non-consensual penile
penetration of a woman's vagina differently to penetrating
her anus
or penetrating the anus of a male based on anatomical differences
between the sexes, the degree to which the vagina is
the most
personal of all parts of a woman and that1he risk of
pregnancy
distinguishes
the violation of a woman's vagina as opposed to her anus The author
adds that;
“
Although
it is not disputed that non-consensual anal Intercourse
ls
traumatic, abhorrent
and demeaning for the woman (as well
as,
for that matter. tor
the male who is penetrated through his anus), non-consensual penile
penetration
of
the vagina violates the most personal of all the parts of a woman' s
body. II infringes her whole being and identity as a woman,
as
opposed to a min.
Accordingly vaginal and
anal penetration deserve to be treated separately. The Constitutional
Court in Masiya v Director of Public
Prosecutions
was
completely
correct in refusing to agree with the decision of the Transvaal Court
in the
same
case(as well
as
with the regional
magistrate who initially heard the case) that the common-law
definition
of
rape
was
unconstitutional.
“
42.
Aside from overlooking that
HIV infection may occur in both situations, the author fails to
contextualise
Masiya
v Director of Public Prosecutions
2007
(2)
SA 435
(CC) The Constitutional Court held fha1the common law
definition of rape was not unconstitutional precisely because it
could be
adapted so as not to fall short of the spirit, purport and
objects oi the Bill of Rights
[10]
.It then expressly
extended, but only prospectively, the common law crime of rape to
Include the penetration
of
a female's anus.
[11]
While the maj9rity of the
court considered that the facts before it did not enable It to
consider expanding the definition beyond
that, two of the Justices
were prepared to extend common law rape to also include male
victims.
[12]
43.
Th e rationale of-the
Constitutional Court's decision extending common law rape Is
consistent with the enormity of such a violation
irrespective of
Whether the anus or vagina was penetrated. Nkabinde J, who delivered
the majority judgment in
Masiya.
When referring
the matter back to the magistrate for sentencing said the following:
“
Having
substituted the conviction of rape with that of indecent assault, it
is necessary to remit the matter to
the regional court to
Impose appropriate punishment. It needs be said that the offence of
Indecent assault is egregious. Mr Masiya
assaulted a nine year old
child. The offence arouses public indignation. The regional court is
obliged, when considering an appropriate
punishment. to apply Ifs
mind to the nature and gravity of the offence of which Mr Masiya has
been convicted and not merely look
at the legal definition thereof.
The fact that he has been convicted of indecent assault does not
automatically mean that the sentence
to be Imposed upon him should be
more lenient than if he had been convicted of rape.”
Physical v Emotional trauma and
Psychological degradation
44.
Vally J in the full court decision of
S
v Masuku
2019 (1) SACR 276
(GJ)
collected together a number of oases where both the SCA and this
court grappled with the notion that the absence of physical
harm
(presumably aside from the assault which constitutes the rape) can as
an objective consideration minimise the impact of a
rape on the·
subjective suffering of the victim and the victim’s family.
They are S
v Matyityi
2011
(1) SACR 40
(SCA) per Ponan JA esp. at para 23; S
V
Nlcunlcuma and Others
2014 (2) SACR
168
(SCA); S
v Bogaards
2013
(1) SACR
1 (CC) at ps 58 - 72;
S
v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) per
Mohamed CJ at Sb -
e; Director of
Public Prosecutions, North Gauteng v Thabethe
2011
(2) SACR 567
(SCA) per Bos1elo JA at para 22; and S
v
GK
2013 (2) SACR 505
(WCC) .
45.
The difficulty of distinguishing,
whether qualitatively or quantitatively, a rape-on the basis of
visible external injuries or otherwise
is expressed by Satchwell J In
S
v M
2007
(2) SACR 60
(W) at paras 99 and 101:
“…
Furthermore,
the responses of rape survivors
are
surely as complex
and multi-layered as
are
the individuals who
experience rape. We must therefore expect the manifestation of the
impact of rape to be varied the very respect.
Some
responses will be
publicly displayed and others privately endured.
Some rape survivors will
collapse while other will bravely soldier on,
…
It would seem that
sentencing courts are expected to view rape
as
“
more
serious” where a rape survivor cannot sleep, fears men and sex,
is unable to concentrate and cannot complete school,
or
has a career or
relationship destroyed. If this
is
so,
then other rape
survivors may question why their rapes ar6 viewed
as
"less
serious"
because they may have been fortunate or privileged enough to receive
professional assistance, be endowed with
different
personalities and psyches, exhibit fewer post-traumatic-effects and
so
on.
The Legislature does not
seem
to have intended
the rapist to be less morally and legally blameworthy because the
rape survivor appears to or actually does survive,
or continues life
with less apparent trauma.”
46.
Leaving aside the
exclusionary provision of s51 (3) (aA), at its most basic level
support for .the proposition that a lack of physical
injuries will
result in a "less
serious·
rape ought to
fail firstly because rape constitutes the invasion of a bundle of
rights impacting on the bodily Integrity and psyche
of the victim and
secondly because the mere ab
s
ence
of physical injury cannot automatically equate with a lesser degree
of degradation or emotional and psychological trauma.
Moreover it would mean that the
yardstick by which society is to determine the appropriate punishment
for rape requires the presence
of some undefined degree of physical
or psychological injury; not that the sanction of life imprisonment
is directed to the rape
of a child under the age of 16 precisely
because it
per
se is such a per se assault on the core values
of a functioning society for the reasons l attempted to outline
earlier.
47.
Even if one were to
argue that some discount should be afforded to the rapist who does
not otherwise physically assault the victim
then it would Ignore the
emotional and psychological damage to the victim Which may include
exhibiting (or being at risk of suffering)
personality disorders or
feelings of worthlessness to the point of displaying suicidal
tendencies.
It also Ignores that
submitting without resistance is m itself an act of desperation or
conditioning based on factors ranging from(ear
to grooming or
positions of authority held by therapist It Is difficult to
appreciate why this should Inure to the benefit of the
perpetrator or
somehow minimises the emotional trauma of the degradation or long
term
sequelae
suffered by the victim, particularly where the
act of submission itself may among other consequences engender or
exacerbate self-loathing,
guilt and feelings of inadequacy.
48.
One
should therefore not draw the conclusion that the absence of
physical
injuries
will mean that the rape victim's suffering will be any lesser or that
the offence, Where the victim is underaged, should
be treated less
seriously for purposes of sentence. Emotional and psychological
trauma and their long term
sequelae
comprise a
self-contained enquiry which
may
or may not be
influenced
by
the presence of physical injury. but is not
ipso
facto
diminished
by the latter's
absence.
49.
Nkabinde J, in the context
of developing the common law of rape, said In
Masiya
at
paras 36 to 39:
“
.
..
historically, rape
has been and continues to
be
a
crime
of
which females are
its
systematic
target. It is the most reprehensible farm
of
sexual assault
constituting
as
it
does a humiliating, degrading and brutal invasion of the dignity and
the person
of
the
survivor. It
is
not
simply an act of sexual gratification, but one of physical
domination. It is an extreme and flagrant form
of
manifesting male supremacy over females.
(para
36)
The Declaration an the
Elimination of Violence against Women specifically enjoins member
states to pursue policies to eliminate
violence against women.
Nan-consensual anal penetration
of
women and young
girls such
as
the complainant
in this case-constitutes
a
form of violence
against them equal
in
intensity and impact to
that
of non-consensual vaginal penetration. The object of the
criminalisation of this act Is to protect the dignity. sexual
autonomy
and privacy of women and young girls as being generally the
most vulnerable -group in line with the values enshrined in the Bill
of Rights
-
a
cornerstone of our democracy
(para
37)
…
One
of the
social
contexts of rape
is the alarming high Incidences of HIV Infection Anal
penetration
also
results in the
spread of HIV.
(para
38)
The consequences caused
by non-consensual anal penetration might be different to
those
caused by
non-consensual penetration of the vagina but the trauma associated
with the former is just as humiliating, degrading and
physically
hurtful
as
that
associated with the latter.
"
(para 39)
50.
An appreciation that rape impacts on the psychological and emotional
well-being of the victim
with potentially life-changing consequences,
even if not immediately apparent, as well as having regard to the
purpose of taking
the rape of under-aged children seriously as the
world community and our own legislature does
, because of its debilitating impact as identified by Nkabinde
J in
Masiya,
renders it
insensitive to grade rape as being more or less serious.
51.
In my respectful view Vally J gave voice
to the concerns regarding how a judicial officer is to deal with the
reliance that defence
practitioners place on the “
degrees
of rape”
passages to be found
in a number of Judgments , while at the same time acknowledging that
each case must be treated on its own merits
I refer to the following
passages in
Masuku:·
“
The
appellant had committed a heinous crime. He raped a minor child. Rape
In general, we know, ranks
as
a very serious
offence. Our courts have repeatedly said this and
so
has our legislature
by enacting
s
51
of the CLAA Courts have a duty to ensure that the offence is
dealtw1/h in a manner that
respects
the rights of rape victims
(at
para 33)
“
I
am mindful of the fact that
s
51 of the CLAA has.
not removed the discretion of the court to Impose
a
sentence it deems
fair and appropriate, and that there
has
been a fair number
of judgments where it has been held that the minimum sentence
preferred by the legislature ought to be departed
from in certain
cases
where
the rape had not resulted in significant physical harm to the victim.
Some
of
those
Judgments
are referred to in the judgment of my colleague Ven der Linde J, but
those
cases.
in
my view, do not
set
a bench mark of what
an appropriate sentence for the rape of a child should be.
”
52.
Vally J at para 39 also referred to the
statement made by Ponan JA, in S
v
Matyityi
2011 (1) SACR 40
(SCA) al
para 23. that Parliament.
“
has ordained
minimum sentences1orcertainspecif,ed offences. Courts are obliged to
impose
those
sentences unless there are truly convincing reasons for departing
from them. Courts are not free to subvert the will of the
legislature
by resort to vague, ill-defined concepts such
as
relative youthfulness or other equally vague
and ill-founded hypotheses that appear to fit the particular
sentencing officer's personal
notion of fairness. Predictable
outcomes. not outcomes based on the whim of an individual Judicial
officer , [are] foundational
to the use of law which lies at the
heart of our constitutional order
."
53.
If substantial and compelling reasons
are present in cases of the rape of an under-aged child then it
cannot be found only in the
absence of physical injury. If regard is
had to the triad of factors (which must also accommodate the impact
on the· victim)
then I would venture that something
sufficiently extraordinary would
have to be demonstrated by an accused in respect of his
reduced moral blameworthiness, other personal circumstances. the
circumstances
surrounding the rape or. as unlikely as it may seem.
possibly even the victim's circumstances in order to displace the
opprobrium
and moral turpitude which Informs the interests of society
to punish in the manner reflected in the legislation in cases
involving
the rape of an under-aged child.
54.
There are two further approaches that
appear to be adopted by some courts which should be addressed.
Effect
of the abolition of the death penalty
55.
There are certain
obiter
views
that in doing away with the
death penalty life imprisonment become s qualitatively a more
egregious sentence. With respect. the
death penalty was abolished
because it is cruel and inhuman and because
we recognise the Inherent fallibility of the system. We
therefore did not downgrade the nature of offences. including rape,
or their impact on society or on the individual when we did away with
the death penalty
Sparse
victim impact reports
56.
Another approach is that unless the
State provides graphic details of the extent of the trauma suffered
by the victim as a consequence
of the rape and its impact on the
family then the apparent lack of post traumatic
sequelae
would in itself be a factor
demonstrating substantial and compelling circumstances sufficient to
Justify a deviation from the minimum
prescribed-sentence.
Firstly one cannot read
that into the CLAA On the contrary the legislation leans towards the
offender having to satisfy the court
that the
sequelae
experienced by a
rape victim were absent in the case before it and cannot reasonably
be expected to surface or be triggered by some
event In the
future.
Such
an approach also fails to take into account the enormous workload of
probation officers, the possible reticence of the victim,
the
difficulty in verbalising to a stranger, the personality of the
victim and how he or she processes trauma. I
believe
that this was adequately addressed by Satchwell J in
S
v M
, as appears
from the extract already cited.
Circumstances
concerning the
offence
in
issue
57.
The
appellant's legal representative admitted the contents of the
probation officer's report. In it the girl gave a far more detailed
account of events than those contained in the s 112 statement which
the State had accepted.
58.
On the day of the incident the appellant
approached her while she was playing in the park with mends. He asked
her and her step-brother
to accompany him to the tuck shop. He
however tool them passed the tuckshop. While the child described the
events far more explicitly,
I believe that it is safe to take the
following into account having regard to the admissions made: The
appellant in fact took them
to two localities. Al the first place he
threatened the child to do his bidding.
At some stage a passed-by
approached them and asked the appellant whose children were with him.
He replied that they were his and
then proceeded to
take
them
to another open area where he continued to sexually molest the. girl.
59.
The
girl did not mention that the appellant had penetrated her anally.
This was however admitted by the appellant in his s 112 statement
as
was her mention of biting his penis when he had put it in her mouth.
The probation officer considered
that
blocking the anal penetration from her memory was not unusual.
The. girl however told the
probation officer that at some stage the appellant started putting
his fingers in her vagina.
60.
From the facts disclosed In the
appellant's s 112 statement and those related by the child to the
probation officer, to the limited
extent that they can be safely
accepted, it is evident that he had formed an intention to prey on
children who frequented the park
and that in order to achieve his
purpose he lured the girl and her step-brother and also deceived a
passer-by who clearly was concerned
by something that w s occurring
between the appellant and the children.
The rape for which the-appellant
was convicted was committed in the open and in the presence of the
victim’s older step-brother.
The offence was therefore planned
and together with the other circumstances I have mentioned all
constitute aggravating factors
in relation to the commission of the
offence.
61
Nor Wall the offence without physical Injury and pain to the victim.
It Is evident from the
J88 medical report that there were anal
abrasions which were consistent with forcible penetration. She
therefore would have been
in pain when he penetrated her Consistent
with these findings is that the girt was also bleeding between her
legs when she came
back home immediately after the incident.
62.
There are therefore no ameliorating
factors in relation to the nature of the offence in question;. rather
there are a number of
aggravating features.
INTERESTS
OF SOCIETY AND THE EFFECT ON THE VICTIM AND HER FAMILY
63.
To interests of society in cases of the
anal rap-e of an underage girl have already been dealt with under the
heading
· General nature of the
offence
and In the several cited
extracts from the judgment of Nkabinde J In Masiya.
64.
With regard to the Impact of the-offence
on the victim, Ms Mbanjwa who is the probation officer completed a
psycho-social -report
on the Impact of the rape on the girl. She
referred to a number of recognised authorities in the field both
local and overseas.
They included EM Furey. Sharon Lewis (An adult's
Guide to Childhood Trauma- Understanding Traumatised Children in
South Africa)
and BO Rothbaum (A prospective examination of
posttraumatic stress disorder in rape victims).
[13]
I have already mentioned that her
report w.as admitted Into evidence.
65.
The
appellant raped the child in April 2016. She was 10 years old at the
time (she was born in July 2005). Ms Mbanjwa Interviewed
her and
family members some eight monthslater1n December . The report reveals
the dramatic effect the rape has had on the girl's
life.
66.
The
girt is the only child born of the relationship between her mother
and father. She lives in Orange Farm with her mother, grandmother
and
older step-brother. Her father's whereabouts are unknown. The family
composition already renders them vulnerable.
67
Prior
to the rape she was sociable, and enjoyed interacting with other
Children.
68
Shorty
after being raped she experienced flashbacks to the Incident and
became emotional as it brought back horrific memories.
69.
Since
the incident she began isolating herself, displays anger and is snort
tempered.
70.
There was an Immediate impact within the
school environment when rumours spread about the incident Even the
class teacher insensitively
told the whole class that since the
incident the girl's performance in mathematics had declined. Although
rumours stopped circulating,
after the girl’s grandmother spoke
to the school directly, she has developed a low self-esteem, no
longer socialises with her
peers and claims to have no friends.
71.
Moreover
the child's overall school performance has dropped. and she failed
not only mathematics but other subjects as well.
72.
She
is afraid of associating with boys and has lost trust in them. She
claimed to be in constant fear for her life and when she
hears about
rape incidents in the media or within the community she ls reminded
of what she had to endure and becomes afraid.
Because of the girl's fear, she
has to be accompanied by her grandmother (since her mother works)
almost everywhere she goes.
In a profound way, therefore. the
girl's freedom of movement and association has also been severely
curtailed as a consequence of
the rape.
73.
Ms Mbanjwa observed that the girl's
responses were also consistent with the observation set out by Lewis
(3200:32)
· who stated that
one must
realise
that
being raped
changes
the
way
a
survivor
sees
herself
and life. She may not simply get over the experience
as
it can never be forgotten”
74.
The
rape also negatively impacted on the girl's mother and grandmother.
The mother blames herself for not being there to protect
her child.
The grandmother was also traumatised by the ordeal of seeing the girl
come home with blood running down her legs.
75.
The
girl received medical assistance and was placed on medication
immediately after the rape.
Both her and her mother attended
counselling and, at the time the report was compiled, they were still
struggling to cope with the
situation. It was envisaged that further
counselling was required
[14]
.
Ms Mbanjwa observed that the girl was still struggling to come to
terms with the ordeal and-that further psychological intervention
would assist in dealing with and managing her emotions. The child
however still lived in constant fear of re-victimisation.
Ms Mbanjwa added that
·”Malsakis
(1996) reflects that whilst the wounds of rape tend to be
psychological wounds rather than physical wounds,
they exert great
power over a person's life"
[15]
It should also be borne in mind
that the appellant was a friend of the child's uncle, and therefore
someone the child and the family
would believe they could trust when
that association was mentioned. Ms Mbanjwa considered that this
factor resulted in the trust
of the child being manipulated and in
the destruction other perception that adults should be respected.
76.
In
the evaluation Ms Mbanjwa confirmed that, “
it
was
not
strange that the victim experienced startling behaviour, isolation
and feeling unsafe".
She
also noted that one cannot Judge a victim based on her stated
responses to violence as,
irrespective
of the replies.
"it
should not
be
assumed she
is
unaffected by the
rape·.
This
echoes the observation of Satchwell J in
S
v
M
(supra} and
reflects the way that-Some victims may attempt to immunise themselves
and supress their emotions.
77.
Magistrate
Wlllemse therefore cannot be faulted in her summing up to the
appellant ·Your deed .. changed the life of little
.. (X)
forever. She
will never be
the
free child. You stole her innocence.”
78.
Accordingly there is no mitigating factor to be found either in the
impact of the rape on the
victim or her family. On the-contrary not
only was a 10 year old deeply traumatised by the sexual molestations
Including the rape
but her step
brother
was compelled to witness what occurred and her mother and grandmother
have also been affected by the events. These are aggravating
factors
as is the likelihood that the presence of her step-brother witnessing
her being raped may exacerbate her sense of degradation
as she
matures.
CIRCUMSTANCES
OF THE OFFENDER
78.
The-appellant is a first time offender.
80.
A pre-sentence report was prepared by Mr Buthelezi who is a probation
officer. His report was
also admitted into evidence.
81.
The appellant is the fourth child of a family of six children. He was
raised in Orange Farm by
his mother as his parents were separated
when he was a child. His father never played an active role in his
life. The appellant
believed that not llving with a father negatively
Impacted on him. He however considers that he was raised In a
positive environment
where good morals and values were instilled in
him. He was never exposed to any form of violence or abuse while
growing up. Prior
to h1s arrest he was still living with his mother
and siblings.
82.
Furthermore at the time of the offence he had been in a relationship
for over a year. According
to his siblings the relationship with his
partner remains a positive one. They and the appellant's mother
describe hi m as responsible
and hardworking. playing a vital role at
home. They expressed shock when hearing of the offence.
83.
The appellant had dropped out of school in 2009 when still in grade
10. He claimed that this was
because he was a slow learner and was
associating with a group who had a negative influence on him. Since
then he never secured
permanent employment but had been working on a
part-time basis since 2005 for various construction companies. Since
2014 until
the arrest he had been working -at a funeral parlour
setting up tents and doing cleaning work. During this period
he
earned R400 a week which he used to support himself and his siblings.
The
appellant's
employer also expressed shock when told of the offence. He regarded
the appellant as a hard worker committed to his
job.
84.
Mr Buthelezl observed that the appellant was able to engage- freely
in discussion and showed no
sign of mental abnormality. The accused
admitted to losing his temper , becoming aggressive and
confrontational when under the
Influence of alcohol.
85.
The appellant informed the probation officer that he was uncertain as
to what led him to act as
he did and sexually molest the girl. He
verbalised remorse and regretted his behaviour. The appellant added
that he deserved to
be punished and could not imagine the impact the
offence has had on the victim or how she would react If she saw him
ln the street.
86
Mr Buthelezi concluded that there
was nothing in the appellant's upbringing which could have
contributed to the commission of the
offence. He appeared to accept
that the accused took responsibility for his actions.
87
It cannot be said that being a
first offender is a factor to be taken into account on its own. It
cannot be, since the CLAA differentiates
the sentence to be imposed
on a first offender in cases involving rape other than In the
specified circumstances set out In Part
II of the Second Schedule, of
which the rape of a minor is one.
88.
Although the probation officer referred to the appellant expressing
contrition the decision is
ultimately that of the court. The
presiding officer did not deal with it specifically in sentencing but
considered that the enormity
of the offence. its Impact on the child
and taking her and her step-brother to two different places to rape
and otherwise-sexually
abuse and maltreat a defenceless child as well
as subjecting her to physically excruciating Injuries required the
court. In the
exercise of its discretion, to impose life
Imprisonment.
89.
The appellant was 26 years of age at the
time of the offence. He was therefore well able to understand the
consequences of his act.
Nothing can turn on his age, nor does the
fact that he had spent 9 months in custody prior to being
sentenced constitute,
in terms of our current case law, a ground
on its own for finding substantial and compelling circumstances.
As appears elsewhere
there are an overwhelming number of aggravating
features.
90.
To the extent that the magistrate did
not deal specifically with the appellant's claim of being remorseful,
it Is-evident that he
failed to disclose all the facts in his s
112 statement He exposed as little of the detail of the events as
possible bearing
in mind that he had little choice but to admit
guilt because of the DNA results.
He failed to disclose that it was
the girl's own step-brother who had witnessed her being raped. He did
not disclose that there
was more than one incident of penetration at
different places. knowing that he did so then his version that he had
lured them to
a tuck shop could not account for how he was able to
force them to the second location. He made no mention oi threatening
anyone.
Moreover he did not explain why he went to the park where
young children were playing nor why he selected the girl bearing In
mind
that her step·brother was with her and as a fact would
accompany her when lured by the appellant.
I therefore do not accept that the
appellant displayed true contrition. Even if he had, it is the act of
a person who was caught
after he had perpetrated a most heinous crime
on a defenceless child.
91.
A court is left with
the distinct concern that had the girt not bitten him tie would have
continued with his predation and was unconcerned
that the
step-brother should witness her being raped. As the magistrate
commented; this was an appalling and perverse abuse of
male power and
she could not run the risk of another child having to go through the
same ordeal.
92.
Finally , this leg
of the enquiry has regard to the offender's moral blameworthiness in
relation to the crime having regard to his
own background.
milestones, redeeming qualities or other features.
In the present case the
appellant's blameworthiness was aggravated because he went to a park
to find a 10 year old girl, with duplicity
and therefore
premeditation lured her and her step-brother away so that he could
rape her. He also would have known that he was
hurting her when he
raped her anally yet he persisted. Furthermore he had no qualms about
her step-brother having16 endure watching
helplessly while someone
closest to him was being degraded and was being forced to suffer and
endure pl
a
n.
93.
The appellant's conduct was
morally reprehensible and devoid of any redeeming qualities: He knew
the girl's uncle and no doubt expected
to talk his way out of any
accusation, but for the-fact that the child bit him and that her
mother and the authorities promptly
ensured that a DNA test was done.
Moreover he was able to gain the children's trust; he preyed on their
vulnerability and then
their fear that he would implement his threat
it she did not submit; he lied to a passer-by that he
was
their parent; and he broke the trust that the community is entitled
to expect of not violating any child.
CONSIDERING
SENTENCE BY REFERENCE TO OBJECTIVES OF PUNISHMENT
94.
If
regard Is had to the personal circumstances of the offender and the
desirability of imposing a sentence that encourages rehabilitation
against the other relevant considerations (being preventative, to act
as a general deterrent and retributive) then, for all the
reasons set
out earlier. the first two considerations are totally overwhelmed by
the others.
APPLYING
THECLAA
95.
Unless substantial
and compelling circumstances.as provided for in section 51(3) (a) of
the CLAA exist which justify the imposition
of a lesser sentence then
In terms of section 51(1) the presiding magistrate was obliged to
impose life imprisonment in respect
of the rape conviction.
96.
In
Mabaso
at para 27 it
was said that
“
It
appears that the quartet of
SCA
cases
post-
Ma/gas requires a court to weigh all mitigating and extenuating
factors and, as suggested in Mqabhi, put a value on the store
we may
place on the particular circumstance which would determine whether
the cumulative Impact justifies a departure from the
prescribed
minimum sentence.”.
[16]
The quartet of cases are those
mentioned earlier of
Vilakazi,
Kruger Dlamlni
and
Radebe.
97.
In
applying the test as laid down by our case law, the magistrate was
correct to find that having regard lo all relevant circumstances
there were no substantial and compelling circumstances justifying a
departure from the prescribed minimum sentence for the rape
of such a
young girl. There was therefore no misdirection nor does the sentence
imposed induce a sense of shocker is otherwise
disproportionate.
OBSERVATION
ON A SECTION 112 PLEA IN RAPE CASES
98.
This case highlights the conundrum faced by prosecutors and presiding
officers.
99.
With a heavy workload it Is difficult to resist an accused offering a
plea bargain albeit that
some facts that would amount to aggravating
factors are omitted. More
so
where It is uncertain how witnesses will fare-when testifying or
because they have demonstrated a reluctance or inability to
relive
the ordeal. Only the prosecutor knows how strong a case can be made
before a court and even then there are always inherent
risks.
100. The
presiding officer is obviously
p
recluded
from knowing the contents of witness statements or the strength of
the State case. Ss 112 (1) and (2) of the CPA are there
principally
to protect the accused from admitting to an offence when the facts
might not support a conviction.
Accordingly the enquiries which a
court ls entitled to make concern obtaining clarification as to
whether the accused understood
what he was admitting to.
101.
It is for the prosecutor to therefore
decide what facts contained in the s 112 plea should not be accepted.
Once accepted they constitute
the admitted facts which it is unlikely
can be contradicted bearing in mind the risk of Jeopardising the
accused's fair trial rights
[17]
.
102.
However this does not mean that where
there are gaps they cannot be filled in by evidence presented to
the court at the stage
of sentencing.
This is apparent from the right
the prosecutor has under s 112(3) to present evidence an sentencing
in cases where a plea has been
accepted.
103
Moreover s 274(1) entitles a court "
before
passing sentence,
to receive such evidence
as
II
thinks fit in
order to inform itself
as
lo
tile
proper
sentence
to be
passed.”
This allows the
court to adopt a more inquisitorial role in order to ensure that the
objectives of sentencing can be attained provided
it Is done so
obje
c
tively,
fairly and impartially. See generally Terblanche (3
rd
ed 2016) Cap 3 at pp 96 to 98 and the cases cited.
10.4 The
seriousness with which rape is viewed. its prevalence. The need to
protect
society
and the risk of repetition of the crime Imposes a greater
responsibility on prosecutors and the courts to establish the
circumstances in which the offence was committed so that a proper
sentence can be imposed.
ORDER
105.
In the result the appeal is dismissed.
SPILG, J
We
agree
RAUTENBACH,
AJ
MDALANA
MAYISELA, AJ
DATE
OFHEARING:
13 December 2018
DATE
OF JUDGMENT:
10 July 2019
FOR
APPELLANTS:
Adv. E MMP Masete
Pretoria Justice Centre
FOR
THE STATE.
Adv JMB Rangaka
Office of the Director of Public Prosecutions
[1]
Section 112(2)
of the
Criminal Procedure Act 51 of 1977
.
[2]
See:
S v Mugdridge
2013 JDR 06S8(SCA). In this case the Supreme
Court of Appeal did not upset the trial court’s sentence of 15
years imprisonment
where a pastor had, over a period, sexually
groomed and then raped his adopted child.
S v Mayisela
2013 JDR 0753 (GNP), where a mentally retarded
child of 9 years was raped by a 46 year old man;
S v Ganga
2016(1) SACR 600 (WCC) where the appellant had been
found guilty of three offences involving young girls, including the
rape
of an 11 year old
[3]
In
Malgas
Marais JA noted at pars 12:
'Where
material misdirection by the trial court vitiates its
exercise of that discretion, an appellate Court is of course
entitles 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. As it is said,
an appellate Court is at large. However, even in the absence of the
material misdirection, an appellate Court is at large. However, 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’.
It must be emphasised
that in the latter situation it may not substitute the sentence
which it thinks appropriate merely because
it does not accord with
the sentence imposed by the trial court or because it prefers it to
that sentence. It may do so only
where the difference is so
substantial that it attracts epithets of the kind I have mentioned.
No such limitation exists in the
former situation.’
[4]
'A distinction is to be drawn between self-serving statements made
to a probation officer which carrv little or no weight and
those
which amount to statements against interest and which therefore have
probative value if admitted as having been correctly
recorded.
[5]
In
S v Makwanyane
1995(3) SA 391 (CC) Langa J (at the time)
when describing ubuntu said at para 224 that:
"The concept is of some relevance to the values we need to
uphold. It is a culture which places some emphasis on communality
and on the interdependence of the members of a community. It
recognises a person's status as a human being, entitled to
unconditional
respect, dignity, value and acceptance from the
members of the community such person happens to be part of. It also
entails the converse, however,
the
person has a
overspending duty to
give the same respect, dignity, value
and acceptance to each member of that community. More importantly,
it regulates the exercise
of rights by all. It is perhaps best
illustrated in the following remarks in the judgment of the high
Court of Appeal of the
Republic of Tanzania in DPP v Pete,6
'The second important principle or characteristics to be borne in
mind when interpreting our Constitution is a corollary of the
reality of co-existence of the individual and society, and also the
reality of co-existence of rights and duties of the Individual
on
the one hand, and the collective of communitarian rights and duties
of society on the other. In effect this co existence means
that the
rights and duties of the Individual are limited by the rights and
duties of society, and vice versa.”
In the
same case at para· 307MokgoroJ said in regard to ubuntu:
"While it envelops the
key
values of group
solidarity, compassion, respect, human dignity, conformity
to
basic norms and collective unity, in its fundamental sense
it
denotes humanity and morality. Its
spirit emphasises
respect for :human dignity, marking a shift from confrontation to
conciliation.”
See
also Madala J at para 117 and Mohamed J at para. 262
[6]
S 28(1)(d)
[7]
Section 12(2) of the Constitution
[8]
In
-S v H
(2014) ZAGPJHC 214 at para 71
[9]
In terms of the Act sexual penetration ‘ includes any act
which causes penetration to any extent whatsoever-
(a) The genital organs of one person into or beyond the
genital organs, anus, or mouth of another person;
(b) any other part of the body of one person or, any
object, including any part of the body of an animal, into or
beyond
the genital organs or anus of another person; or
(c) the genital organs of an animal, into or beyond the
mouth of another person.
[10]
Masiya
at paras 27, 30-32 and 70
[11]
Ib
at paras 61 and 70
[12]
Ib
at paras 29 and 93
[13]
(2005)
Journal of Traumatic Stress.
[14]
Citing Furey, (1994) she noted that: ‘
It is widely
acknowledges that a;; people who experience sexual violence are
affected and do require counselling even if they
are non verbal”
[15]
A Matsakis (1996)
I can’t get over it: A handbook for
trauma survivors
(2
nd
ed)
[16]
S v Mqabhi 2015
(1)SACR 508 (GJ)
[17]
This would mean that defence counsel must ensure that they take care
with regard to what portions of a probation officer’s
report
they are prepared to admit or what
vive voce
evidence can be
received.