S v N (469/2007) [2008] ZASCA 30; [2008] 3 All SA 170 (SCA) ; 2008 (2) SACR 135 (SCA) (28 March 2008)

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[2008] ZASCA 30
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S v N (469/2007) [2008] ZASCA 30; [2008] 3 All SA 170 (SCA) ; 2008 (2) SACR 135 (SCA) (28 March 2008)

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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
CASE NO 469/2007
In the matter between
W.N. Appellant
and
THE STATE Respondent
Coram: Cameron, Maya et Cachalia JJA
Heard: 19 FEBRUARY 2008
Delivered: 28 MARCH 2008
Summary: Sentence – appeal against effective sentence
of six years’ imprisonment imposed on 17 year-old boy on conviction
of
rape of fellow pupil – correctional supervision not appropriate
in the circumstances – majority finding custodial sentence under
s
276(1)(
i
) of Act 51 of
1977 appropriate – appeal allowed – order in para [46].
Neutral citation: This judgment may be referred to as
N.
v
The State
(469/2007)
[2008] ZASCA 30
(28 March 2008)
___________________________________________________________
JUDGMENT
___________________________________________________________
MAYA JA /
MAYA JA:
[1] The appellant was convicted of rape in the Regional
Court, East London (Mr IJC Kitching) and sentenced to undergo ten
years’
imprisonment of which four years were conditionally
suspended. An appeal against both the conviction and sentence was
dismissed
by the Grahamstown High Court (Froneman J, Mathee AJ
concurring). With the leave of that court he appeals further but only
against
sentence.
[2] The essence of the appellant’s attack on the
sentence in this court is that the magistrate’s rejection of
correctional supervision
without a full investigation of the
practical circumstances relating to such possible option was a
vitiating, material misdirection
and that the sentence is so
excessive that it induces a sense of shock.
[3] The events giving rise to the charge are these. The
appellant and the complainant, both aged 17 years, attended the same
high
school and were friends. They lived in the same neighbourhood,
about 300m apart, and occasionally walked together from school.
Sometimes the appellant visited the complainant at her home where she
lived with her mother and a younger sister. The complainant
had
previously suffered serious psychological problems seemingly arising
from her parents’ divorce and her mother’s liaison
with another
man. She had even attempted suicide and consequently received
treatment for depression, a fact which she had confided
in the
appellant.
[4] The appellant, on the other hand, was a highly
popular and confident pupil held in high esteem for his prowess at
sport and
hard work at his studies by teachers and fellow scholars
alike at his school. His mother had, in 2003, left the country to
pursue
a nursing career in the United Kingdom leaving the appellant
and his siblings in their father’s care. A decision was,
thereafter,
taken to relocate the entire family to the United
Kingdom. The appellant’s father had recently joined his wife there,
leaving
the children with their grandfather, to follow in due course,
when the rape occurred.
[5] Shortly before 20h00 during the evening of 5 July
2004, the complainant was visiting a girlfriend’s home when she
received
a message from the appellant on her cellular phone asking
her to come to his house as he ‘needed to talk’. Against the
advice
of her friend and her mother, who did not consider it safe to
go out so late, she went to see him. Her mother had relented but
requested her to return home by 22h00. It is during that visit that
the appellant assaulted the complainant into submission and
raped her
in his room despite her protestations. Thereafter he drove her home
in his parents’ motor vehicle. Afraid to disclose
her ordeal to her
mother for fear of censure, the complainant merely called out to her
that she was home. She washed her bloodied
underwear and pants. The
appellant sent her another message telling her that she should not
get excited as there was nothing in
it for her and that he did it to
make her happy. Overwhelmed by these events, she cut her wrist with a
razor and took an overdose
of pills but, fortunately, suffered no
serious harm.
[6] She reported the incident to her friend on the
following morning. She was distraught and, at the friend’s urging,
she told
her mother that afternoon that she had been raped. A
subsequent medical examination revealed that in addition to neck
bruises,
her hymen was freshly torn and that she had sustained
injuries to her genital organs which were consistent with forced
penetration.
The matter was reported to the police and the appellant
was then arrested.
[7] Upon his conviction, two pre-sentence reports were
obtained in respect of the appellant from a probation officer and a
correctional
officer. Both social workers reported that the appellant
showed no remorse for his action as he denied guilt. In the
correctional
officer’s opinion, the appellant seemed to have no
‘insight into the extent of harm he has inflicted on the victim’
and she
concluded that he would not benefit from correctional
supervision. According to the probation officer’s report the
appellant
refused to cooperate with her stating that ‘he has
already informed the court [and] refused to repeat the same thing’.
Her
recommendation was that a sentence of imprisonment would be
appropriate because of the seriousness of the crime but that the
appellant
could be ‘referred to correctional supervision for
assessment’ if the court was so minded.
[8] The magistrate rejected the option of correctional
supervision and the suspended sentence requested by the appellant’s
representative.
He concluded that a term of direct imprisonment,
which would have been higher than the one he imposed but for the
appellant’s
young age, was the only suitable sentence in the
circumstances.
[9] The basis of the appeal against this conclusion in
the court below was that the magistrate erred in accepting the
recommendations
against correctional supervision in the pre-sentence
reports which were premised on the appellant’s refusal to admit his
guilt
even after conviction. Whilst the contention found favour with
the court below, the court nonetheless found that the magistrate
had
given ‘proper, serious and anxious consideration’ to the
appellant’s personal circumstances and held that there were
present
in the matter, other factors which justified the sentence imposed by
the magistrate, including the possibility of the appellant
continuing
to live in close proximity to the complainant which would be
intolerable to her, the seriousness of the offence, the
appellant’s
lack of remorse and the apparent lack of suitable persons to oversee
a correctional supervision program in view of
his family’s
relocation.
[10] In this court, it was contended that the reasons
cited by the court below for upholding the magistrate’s decision
did not
warrant the rejection of correctional supervision,
particularly as the practicalities of such a sentence were never
investigated,
and that the sentence imposed by the magistrate was, in
any event, excessive. It was further argued that the magistrate had
materially
misdirected himself in the exercise of his sentencing
discretion by concluding, first, that the social workers found the
appellant
to be an unsuitable candidate for correctional supervision
when the correctional officer had, in fact, not ruled out the
possibility
of an exploration of this option and then blindly
following that recommendation without exercising his own discretion
by considering
whether or not the option of correctional supervision
was viable. It was urged upon us that any custodial sentence would be
inappropriate
and that only correctional supervision in terms of s
276(1)(h) of the Criminal Procedure Act 51 of 1977 (the Act) would be
the
suitable sentence for the appellant.
[11] The well-established test for
interference with a sentence on appeal was restated by this court in
S v Malgas
1
where Marais JA said:
‘
A Court exercising appellate jurisdiction cannot, in
the absence of material misdirection by the trial court, approach the
question
of sentence as if it were the trial court and then
substitute the sentence arrived at by it simply because it prefers
it. To do
so would be to usurp the sentencing discretion of the trial
court. Where material misdirection by the trial court vitiates its
exercise of that discretion, an appellate Court is of course entitled
to consider the question of sentence afresh … 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
… 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’.
[12] It should be said at the outset that
although the magistrate clearly gave due consideration to the
findings set out in the
pre-sentence reports relating to the
appellant’s personal circumstances, he misconceived the import of
the probation officer’s
recommendation. Whilst the probation
officer obviously had misgivings about the appellant’s attitude
towards the offence, she
nevertheless did not reject correctional
supervision as a sentencing option. Furthermore, as the court below
pointed out, the magistrate’s
seemingly unquestioning reliance on a
negative recommendation in the reports based on the appellant’s
persistent denial of his
guilt was another misdirection on his part.
I would add that the reference by the court below to the absence of
the appellant’s
family from the country (and hence a lack of
supervision) as a further reason for doubting the propriety of a
non-custodial sentence
was, in my view, wrong. Evidence showed that
he had been left in the care of family friends and his grandfather
and remained close
with his family despite the distance.
[13] That said, however, it must be borne
in mind that an error committed by a court in determining or applying
the facts for assessing
the appropriate sentence does not necessarily
spell the end of the enquiry. A mere misdirection is not by itself
sufficient to
entitle the appeal court to interfere; it must be of
such a nature, degree or seriousness that it shows directly or
inferentially,
that the court did not exercise its discretion at all
or exercised it improperly or unreasonably such as to vitiate its
decision
on sentence.
2
Assuming, without deciding, that the misdirections are not of a
vitiating nature when proper regard is had to all the relevant

factors, it must nonetheless be considered whether the sentence was
appropriate in the circumstances of the case.
[14] The submissions advanced on the
appellant’s behalf for a non-custodial punishment were based on a
principle prescribed by
various relevant international instruments
dealing with the administration of child justice
3
and the provisions of s 28(1)(g) of the Constitution
4
which a court sentencing a child is enjoined to consider in addition
to the traditional aims and elements of sentencing.
Further
to these legal instruments is the Child Justice Bill on juvenile
justice drafted by the South African Law Commission Project
Committee
on Juvenile Justice (Project 106).
5
[15] The fundamental principle in these
instruments is that a child
6
offender should not be deprived of his or her liberty except as a
measure of last resort, for the shortest appropriate period
7
and where detention is unavoidable, it must be individualised with
the focus on the child’s rehabilitation. In addition to these

guiding standards, the sentencing court must take into account the
child’s best interests in accordance with s 28(2) of the
Constitution.
8
Notably, regardless of the requirement of limited use of deprivation
of liberty, the trite principle of proportionality, which
is now
required by the Constitution itself, namely that the sentence imposed
must fit the nature and seriousness of the offence
of which the
accused was found guilty and must be fair to both the offender and
society, is also applicable to child offenders.
9
[16] In
DPP,
KwaZulu-Natal v P
10
this court, determining an appropriate
sentence in respect of a 12 year-old girl convicted of murdering her
grandmother, highlighted
the fact that the Constitution and the
international instruments do envisage imprisonment of children who
have been convicted of
serious and violent offences. Mthiyane JA
said:
‘
It must be remembered that the Constitution and the
international instruments do not forbid incarceration of children in
certain
circumstances. All that it requires is that the ‘child be
detained only for the shortest period of time’ and that the child

be ‘kept separately from detained persons over the age of 18
years’. It is not inconceivable that some of the courts may be

confronted with cases which require detention. It happened in the
United Kingdom not so long ago in the case of
R v Secretary of
State for the Home Department, Ex Parte Venables; R v Secretary of
State for the Home Department, Ex Parte Thompson
[1997] 3 All ER
97
(HL) where two boys aged ten were convicted of the murder of a
two-year-old boy in appalling circumstances [and] they were sentenced

to ten years.’
[17] With that background in mind, I must
determine what an appropriate sentence is, in this particular case of
rape, for an industrious
17 year-old youth with a clean record,
raised in a stable, religious and relatively privileged family
environment.
[18] Precisely what does correctional
supervision entail and is it an appropriate sentence in the
circumstances of this case? Section
1 of the Act defines this form of
sentencing as ‘a community-based punishment’ which has been
interpreted to mean a form of
punishment executed within the
community and in co-operation with and/or to the benefit of the
community.
11
It encompasses a wide range of measures executed within the community
such as house arrest, community service, monitoring, rehabilitation

programmes etc.
12
Its value lies mainly in that it is lighter than direct imprisonment
and offers an offender an opportunity of remaining within
the
community without the negative influences of prison whilst serving a
substantial punishment. These features render it especially
useful in
the case of child offenders as it emphasizes the rehabilitation of
the offender and allows for an individualised punishment.
[19] Section 276A sets out the procedure to
be followed by a court imposing correctional supervision. The
relevant provisions thereof
read:
‘
(1) Punishment shall only be imposed under section
276(1)(
h
) –
after a report of a probation officer or a correctional
official has been placed before the court; and
for a fixed period not exceeding three years…
(2) Punishment shall only be imposed under section
276(1)(
i
) –
(a) if the court is of the opinion that the offence
justifies the imposing of imprisonment, with or without the option of
a fine,
for a period not exceeding five years; and
(b) for a fixed period not exceeding five years.
(3) …
(4) …’.
[20] Correctional supervision
under s 276(1)(
h
) is,
therefore, an appropriate sentencing alternative in cases where
direct imprisonment of more than three years is not necessary.
13
In
S v Ingram
14
this court said:
‘
As correctional supervision under s 276(1)(
h
)
can … only be imposed for a period not exceeding three years, it is
not a sentence that readily lends itself to the very serious
category
of crimes (which would normally call for higher sentences) and should
therefore not be too lightly imposed in such cases.’
[21] The more stringent option in terms s
276(1)(
i
) provides for
imprisonment from which the prisoner can be released on correctional
supervision by the Commissioner or parole board
without the court’s
further involvement. As regards its nature and effect, the comments
of this court in
S v Scheepers
,
15
dealing with sentence in a matter involving two counts of theft of
R130 and R1 000, are apposite. This court said:
‘
[Section] 276(1)(
i
) … permits the
discretionary conversion of the prison sentence into correctional
supervision. The particular advantage of s 276(1)(
i
) should
always be in the foreground when the sentencer considers that a
custodial sentence is essential, but
the nature of the offence
suggests that an extended period of incarceration is inappropriate
.
In
such cases, s 276(1)(
i
) achieves the
object of a sentence unavoidably entailing imprisonment, but
mitigates it substantially by creating the prospect
of early release
on appropriate conditions under a correctional supervision
programme.’
(Emphasis added.)
[22] It must be pointed out that in that
case the trial court did not consider the nature of the offence to
warrant imprisonment;
the custodial sentence was necessitated by the
accused’s previous convictions.
[23] Despite the apparent advantages, it
has often been cautioned by the courts that the imposition of
correctional supervision
should be exercised with care, to maintain
its credibility,
16
and certainly not where the crime is too serious. In
S
v Blank
17
E M Grosskopf JA stated:
‘
The Legislature set limits of three and five years
respectively in the case of sentences [of correctional supervision]
under paras
(
h
) and (
i
). These cut-off points are
significant. They give an idea of the seriousness of the crimes for
which these sentencing options would
be appropriate. But in the same
way as the Appellate Division emphasised in
Van Vuuren’s
case
[1992 (1) SACR 127
(A)] that the options constituted by those
paragraphs should be used in appropriate cases, so a court should not
be seduced by
the availability of these new options to impose a
sentence which would be unbalanced and inappropriate when proper
regard is had
to the (often competing) purposes of judicial
punishment. In serious crimes, including crimes of the nature
considered in
Van Vuuren’s
case [theft of money],
imprisonment also falls to be considered as an option and the more
serious the crimes, the greater the possibility
that imprisonment
will be the only suitable sentence.’
18
[24] Expressing the same views in a case
involving the offences of murder, attempted murder and public
violence,
S v Ningi
19
Scott JA held:
‘
The question is, therefore, whether in all the
circumstances a sentence of correctional supervision would be
appropriate. It is
unnecessary to repeat what has been said before of
the advantages of correctional supervision. They are well known. What
I think
must be acknowledged, however, is that insofar as a first
offender in particular is concerned and leaving aside for the moment
the practicalities of administering a non-custodial sentence, whether
correctional supervision as opposed to direct imprisonment
is to be
imposed must depend ultimately on the seriousness of the offence and
the particular circumstances in which it was committed.
This is so
because, whatever its advantages, correctional supervision remains a
lighter sentence than direct imprisonment. Any
contention to the
contrary I think would be unrealistic.’
[25] There are serious aggravating features
present in the matter, which must be weighed against the factors
favourable to the appellant.
As regards the effect of the rape on the
complainant who was a virgin at the material time, her drastic
reaction – the attempt
to kill herself, her relapse into
depression, her inability to sleep and fear to sleep alone, the
nightmares and the consequent
fear of males – dispenses with the
need to articulate the devastation wreaked by the excruciating rape
she described, perpetrated
by a trusted friend and confidant upon
her.
[26] Although lack of remorse may not be
taken as an aggravating factor, the appellant’s conduct and
attitude towards the incident
and the proceedings that followed must
certainly be considered in determining a proper sentence. It begins
with the message he
sent to the complainant after the rape which, in
the circumstances, can only mean that he believed that he had somehow
done her
a favour. He did not stop at his ill-conceived attempt to
escape criminal liability by denying any wrongdoing, but persistently

exhibited an arrogant and unrepentant attitude which pervades the
record and which his own counsel was constrained to concede –
in
the manner he responded to questioning during the trial, his blatant
disdain for the pre-sentence investigation evidenced by
his refusal
to cooperate with the probation officer and his boorish conduct
towards the complainant who testified, without challenge,
that a few
days before sentencing in the trial the appellant and his friends
whistled and pointed at her in the street.
[27] To my mind, this shows clearly that
the enormity of his deplorable deed and its horrible effect on the
complainant simply never
dawned on the appellant. It is, in my view,
an extremely disturbing feature which inexorably draws one to
question the mindset
towards sexual violence in the home, the
community and indeed the greater society from which the appellant
comes.
[28] In addition to these aggravating
factors is the nature of rape. In
S v Chapman
20
this court described the offence as follows:
‘
Rape is a very serious offence, constituting as it
does a humiliating, degrading and brutal invasion of the privacy, the
dignity
and the person of the victim. The rights to dignity, to
privacy and the integrity of every person are basic to the ethos of
the
Constitution and to any defensible civilisation.’
Women in this country are entitled to the protection of
these rights … The courts are under a duty to send a clear message
to
the accused, to other potential rapists and to the community: We
are determined to protect the equality, dignity and freedom of
all
women, and we shall show no mercy to those who seek to invade those
rights.’
[29] In
S v Swart
21
Nugent JA qualified these comments by observing that the court no
doubt did not intend to suggest that the quality of mercy, an

intrinsic element of civilised justice, should be altogether
overlooked, but rather meant to emphasise that retribution and
deterrence
will come to the fore (and that the rehabilitation of the
offender will play a smaller role) in relation to such serious
crimes.
22
I agree with this qualification.
[30] Bearing in mind that a sentence does more than deal
with a particular offender in respect of the crime of which he has
been
convicted – it constitutes a message to the society in which
the offence occurred
23
– the interests of society must thus also be taken into account.
The sense of outrage justifiably roused by the offence of rape
in the
right thinking members of a South African society in which sexual
violence is so endemic and hardly shows any sign of abating,
must, in
my view, be a critical factor in the imposition of a suitable
sentence here.
[31] Having said that, it is well to bear in mind that
too harsh a punishment serves neither the interests of justice nor
those
of society. Neither does one that is too lenient. Courts should
therefore strive for a proper balance that has due regard to all
the
objects of sentencing. A proper balance of those objects in this case
informs me that the interests of society – these include
the
interests of the complainant, herself a child when violently
introduced into womanhood by the appellant, which very nearly
ended
her life, who must now pick up the pieces and contend with the
adverse and obviously long-term psychological and emotional

consequences of the rape – and the nature and gravity of the
offence demand that the elements of retribution and deterrence must

take precedence over the appellant’s interests, including his young
age. An extended custodial sentence is, without doubt, the
only
appropriate punishment.
[32] As to the suitability of correctional supervision,
it appears clearly from the authorities dealing with correctional
supervision
set out above, regardless of the fact that none of them
dealt with the offence of rape committed by a child offender,
24
that correctional supervision is woefully inadequate in this case. It
lacks the appropriate punitive impact demanded by the gravity
of the
offence and does not carry the requisite strong deterrent message to
other would-be rapists in the community that rape is
repugnant and
shall be severely punished no matter who commits it. This, in my
judgement, includes the option under 276(1)(i) which,
as indicated
above, although also aimed at serious crimes, excludes very serious
crimes, which rape is, by its limit in duration.
25
[33] I am satisfied, taking all relevant considerations
into account, that whilst undoubtedly a robust punishment, the
effective
sentence of six years’ imprisonment imposed by the
magistrate is fitting in the circumstances of the case and will not
deny the
appellant the possibility of rehabilitation. The appeal
should, therefore, fail.
_________________
MML MAYA
JUDGE OF APPEAL
CAMERON JA:
[34] My colleague Maya JA has set out the facts and her
reasoning with fair-mindedness and care, for which I am grateful to
her.
Only after hesitation do I differ from her conclusion that the
appeal against the six-year effective sentence must fail.
[35] As Maya JA indicates (para 12), there are
cognisable errors in the regional magistrate’s approach to
sentencing the appellant.
Principal is that he thought both
pre-sentence reports shut the door on correctional supervision, when
only one did. This attenuation
of the options he conceived as
available to him in my view entitled the high court to intervene,
should it have been minded to;
and now entitle this court to do so.
But the high court considered despite the magistrate’s mistake that
six years’ imprisonment
was right for what the appellant did, and
Maya JA agrees. With deference to the care with which my colleagues
in each instance
have come to that conclusion, I cannot share their
view.
[36] The appellant’s crime was horrible. Maya JA’s
exposition (paras 25ff) if anything grants him the benefit of
understatement.
He preyed on his school-friend, a vulnerable young
girl with a history of instability, who had drawn close to him and
looked to
him for the respect and support she was entitled to seek in
friendship. Instead, he took by force from her ultimate sexual
intimacy
after she refused to grant it. He did so in a wilful act of
domination and bodily intrusion that left her physically bruised and

psychically shaken. And some of his actions afterwards displayed a
bare arrogance that makes it hard to warm to him as a sentencing

subject.
[37] But that it is hard to say anything in his favour
does not mean that there is nothing. His crime was unplanned. It
seems
to have stemmed from a terrible, but impulsive, error of
judgment. The magistrate rightly observed in his judgment:
‘
Here I can state that your initial intentions perhaps
were not to rape this young girl, but to create an opportunity in
your room
where you could make some romantic advances to her, … to
test the air so to speak. But alas, to your disappointment and
surprise,
she was totally unprepared and unwilling …’
And in the High Court Froneman J said:
‘
[W]hat appears to have been a budding and sensitive
friendship went awfully awry during the evening of 5 July 2004’.
[38] And then, connected intricately with the ‘awful
awryness’ and impulsivity of the crime, there is his youth. Three
months
before the rape, on 5 April 2004, he turned seventeen.
Constitutionally, he was still a child.
26
What does this mean for sentence? Youth gives us no warrant to
sentimentalise him or any other child. He was a fit and able
young
man, with the capacities of choice, who had earned the admiration of
his peers and teachers through his achievements at school,
but who on
this occasion grossly violated another.
[39] But the clear constitutional injunction is that we
must weigh in the mix the fact that he was only seventeen. Prison
must
therefore be a ‘last resort’.
27
This bears not only on whether we choose prison as a sentencing
option, but on the sort of prison sentence we impose, if we must.
So
if there is a legitimate option other than prison, we must choose it;
but if prison is unavoidable its form and duration should
also be
tempered. Every day he spends in prison should be because there is
no alternative.
[40] Together with the magistrate, the judges in the
High Court and Maya JA, I do not think that prison can be avoided.
We were
urged to send the matter back for the regional court to
impose correctional supervision under s 276(1)(h) of the Criminal
Procedure
Act, 51 of 1977 (the Act). That would avoid prison
altogether, and place the appellant (on good behaviour and under the
threat
of a suspended sentence) on a supervised community-related
work scheme. I do not think we can. Every rape sentence sends a
public
message. This option would be so soft that its message would
be misunderstood. It would enable the courts’ seriousness in
seeking
to punish and deter rapes to be called into question.
[41] To this extent, the appellant must bear the brand
and carry the burden of these times, in which rape is a mass
circumstance
– more than 50 000 were reported in 2004/5, the year
of his crime (over 7 000 in the Eastern Cape).
28
The face of public policy, from the executive, the legislature and
the courts, must be set unmistakably against its perpetration.
Even
for a child offender over 16 but not yet 18, where this court has
held that the sentencing court ‘starts with a clean slate’,
it
must nevertheless take into account the weighting effect
29
of the statutorily prescribed minimum sentences (ten years for rape
by a first offender).
30
Pure correctional supervision cannot be.
[42] A prison sentence is therefore unavoidable. But
what sort of prison sentence? Maya JA considers that six years,
while robust,
is fitting. I respectfully disagree. To me, that
sentence disregards the youthfulness of the appellant when he
committed the
crime. It treats him too much like the adult he was
not when he raped his victim. It may set him up for ruin, while
foreclosing
the possibility, embodied in his youth, that he will
still benefit from resocialisation and re-education.
31
It fails to individualise the sentence with the emphasis on
preparing him, as a child offender, for his return to society.
32
I would rephrase that: for his first entry into society, for a
seventeen year old schoolboy in grade 11 has hardly entered society.
[43] In my respectful view, a five-year prison sentence
imposed under s 276(1)(i) of the Act comes closer to doing justice.
33
It ensures that the appellant goes to jail. But the term he serves
is variable, depending on his behaviour. He is incarcerated
for a
minimum one-sixth of the time imposed (ten months). Thereafter, he
becomes eligible for the Commissioner of Correctional
Services to
place him out on correctional supervision. If his arrogant behaviour
continues, he risks forfeiting that option, and
serving his entire
sentence. The sentence takes the matter out of the hands of the
courts, and places it in his, and in the Commissioner’s.
[44] Is this too soft? I cannot say No with any
assurance. But I am less unsure that it may be too soft than I am
sure that an
undifferentiated sentence of direct imprisonment is too
harsh. And if we are to risk erring at all, the Constitution
requires
us to err by recognising the possibility of promise that may
still flower from his youth, rather than fixing on the destruction

that was immanent in his crime.
[45] It is true that if the rape had been committed just
nine months later, the appellant would have been eighteen, and would
not
have had the benefit of any extra mercy. But it is at least
equally true that if he had been just nine months older, he might not

have made the awful error that led to his crime. That is the premise
on which the Constitution differentiates him from older offenders.

We distinguish child offenders from adults because we recognise that
their crimes may stem from immature judgment, from as yet
unformed
character, from youthful vulnerability to error and to impulse. We
recognise that imposing full moral responsibility
for a misdeed might
be too harsh. In that we allow them some leeway of hope and
possibility. That is not maudlin or sentimental,
but necessary if we
are to have any belief in our future.
[46] In my view the appeal must succeed. The judgment
of the High Court is set aside and in its place substituted an order
allowing
the appeal against the magistrate’s sentence, and in its
stead imposing the following sentence:
‘
Five years’ imprisonment in terms of
s 276(1)(i)
of
the
Criminal Procedure Act, 51 of 1977
.’
___________________
E CAMERON
JUDGE OF APPEAL
CONCUR:
CACHALIA JA
1
2001 (2) SA 1222
(SCA) para 12.
2
S v Pillay
1977
(4) SA 531
(A) at 535E-G;
S v Siebert
1998 (1) SACR 554
(A).
3
The United Nations
Convention on the Rights of the Child
(1989) ratified by South Africa on 16 July 1995; The United Nations
Guidelines for the Prevention of Juvenile Delinquency
(1990)
(The Riyadh Guidelines); The United Nations
Standard Minimum
Rules for the Administration of Juvenile Justice
(1985) (The
Beijing Rules); The United Nations
Rules for the Protection of
Juveniles Deprived of their Liberty
(1990) and the
African
Charter on the Rights and Welfare
of the Child
ratified
by South Africa on 7 January 2000.
4
In terms of s 28(1)(g) ‘[e]very child has the right not to be
detained except as a measure of last resort, in which case …
the
child may be detained only for the shortest appropriate period of
time’.
5
This Bill was released in the National Assembly
in August 2000 and its explanatory summary published in Government
Gazette No
23728 of 8 August 2002. Its recommendations have not yet
been adopted by Parliament.
6
A ‘child’ is defined in s 28(3) of the Constitution as ‘a
person under the age of 18 years’.
7
What ‘the shortest possible period’ can be decided only on a
case by case basis having regard to the requirement of an

individualised, tailor-made sentence for each offender.
8
Section 28(2) of the Constitution decrees that
‘[a] child’s best interests are of paramount importance in every
matter concerning
the child.’
9
See
S v Kwalase
2000 (2) SACR 135
(C) at 139e-f;
S v
Brandt
2006 (1) SACR 311
(SCA);
DPP,
KwaZulu-Natal v P
2006 (1) SACR 243
(SCA) para 16.
10
2006 (1) SACR 243
(SCA) para 19.
11
SS Terblanche
A
Guide to Sentencing in South Africa
2
ed p 281.
12
S v R
1993 (1)
SACR 209
(A) at 220h.
13
See, for example,
S v Nel
1995 (2) SACR 362
(W) at 366H per
Streicher J.
14
1995 (1) SACR 1
(A) at p 9e-f.
15
2006 (1) SACR 72
(SCA) paras 9-10.
16
See
S v Sinden
1995 (2) SACR 704
(A) at 708c-i
; S v Farmer
2001 (2) SACR 103
(SCA) para 11;
S v Schutte
1995 (1)
SACR 344
(C).
17
1995 (1) SACR 62
(A) at p 76d-e.
18
See also
S v Volkwyn
1995 (1) SACR 286
(A) at 289d-e; SS
Terblanche
A Guide to Sentencing in South Africa
2 ed pp
290-291.
19
2000 (2) SACR 511
(A) para 8.
20
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 5a-e.
21
2004 (2) SACR 370
(SCA) at para 17.
22
See also
R v Karg
1961 (1) SA 231
(A) at 236A-C;
S v Williams
[1995] ZACC 6
;
1995 (3) SA 632
(CC) para
87;
S v Mhlakaza
1997
(1) SACR 515
(SCA) at p 519d-e.
23
S v Sinden
supra at 709b-c.
24
In
Kwalase
,
the High Court substituted a sentence
of twelve months’ correctional supervision under (i) for one of
three years’ imprisonment
with 18 months thereof conditionally
suspended imposed by a magistrate on a boy aged 15 years, 11 months
with a previous conviction
of housebreaking and theft, who expressed
remorse and pleaded guilty to the offence of robbery of goods which
were immediately
recovered by the police. In
Brandt
this court substituted a sentence of
18 years’ imprisonment for life imprisonment imposed on a young
offender for the murder
of an elderly woman he had committed at the
age of 17 years, seven months. In
DPP
,
KZN v P
–
the facts are discussed at para [16] – this court expressed a
strong view contrary to that of the High Court, which had
imposed a
sentence of 36 months’ correctional supervision under (
h
),
that the murder warranted a prison term for the 14 year-old girl but
because it was too late to impose it in the circumstances
of the
case, substituted the sentence imposed by the High Court with a
conditionally suspended seven year-term of imprisonment
and 36
months’ correctional supervision under (
h
).
25
According to
SS Terblanche
A
Guide to Sentencing in South Africa
2
ed pp 252-253, this form of sentencing
is appropriate where
correctional supervision is considered insufficient punishment, but
imprisonment of longer than five years
is unnecessary
.
26
Bill of Rights s 28(3): a child ‘means a person under the age of
18 years’.
27
Bill of Rights s 28(1)(g): every child has the right ‘not to be
detained except as a measure of last resort’.
28
Statistics for April 2004 to March 2005 accessed on 26 March 2008
from
http://www.saps.gov.za/statistics/reports/crimestats/2005/crime_stats.htm
.
29
S v B
2006 (1) SACR 311
(SCA) para 11, per Ponnan AJA for the
court.
30
Criminal Law Amendment Act 105 of 1997
s 51(2)(b)
, read with
Part
III
of Schedule 2.
31
S v B
2006 (1) SACR 311
(SCA) para 15.
32
S v B
2006 (1) SACR 311
(SCA) para 19.
33
Compare
S v Scheepers
2006 (1) SACR 72
(SCA).