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[2019] ZANCHC 32
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Leeuw v S (CA&R40/2018) [2019] ZANCHC 32 (8 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)'
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Case No: CA&R40/2018
Heard on: 06/05/2019
Delivered:
08/08/2019
In
the matter between
DONALD
TSHEPANG LEEUW
Appellant
V
THE
STATE
Respondent
Coram: Phatshoane J
et Pakati J
JUDGMENT
ON APPEAL
PAKATI
J
[1]
This is an appeal against a sentence of life imprisonment in terms of
section 309 (1) (a) of the Criminal
Procedure Act (“the CPA”)
[1]
. The appellant, Mr Donald
Tshepang Leeuw, a 35 year old male person, appeared before the
Regional Magistrate Pieterse in Barkley
West on two charges of rape
of an eight year old girl. In Count 1 it was alleged that he raped
her vaginally using his penis and
in the second count by inserting
his finger into her anus.
[2]
The appellant pleaded not guilty to the charges but was nevertheless
convicted on both counts on 16 March
2018 and was sentenced to life
imprisonment in respect of each count. On 06 July 2018 he filed a
notice of intention to appeal
his convictions and sentences. Mr Van
Tonder, for the appellant, conceded that he was unable to formulate
any convincing argument
in respect of both the convictions and the
sentence imposed on Count 1. The appellant now appeals against the
sentence of life
imprisonment in respect of Count 2.
[3]
The appellant contended that the sentence of life imprisonment is
shockingly inappropriate. He contended further
that the court
a
quo
should have imposed a lesser sentence taking into account the
facts of the case and his personal circumstances. He argued that it
overemphasised the interests of society and the deterrent effect of
sentence.
[4]
On or about 24 March 2013 between 19h00 to 20h00 at or near Haak and
Steek, Matalang, Barkley West, Ms AR,
the complainant’s mother,
was on her way to hand over an amount of R30-00 to another lady
called Nono. She was in the company
of the complainant who was eight
years at the time. She then gave the complainant a R2 coin to buy
some simba chips at a nearby
tuck shop about 20 metres away. Ms AR
proceeded to Nono’s house and waited there for her. She noticed
that the complainant
was taking long to return. She estimated an
hour. She became anxious and went out to look for her. She searched
for her at her
mother’s place and everywhere. The complainant’s
father arrived and joined the search. They went to her mother’s
place again and found her there. The complainant reported to them
that she had been raped by someone who she would be able to identify.
The matter was reported to the police.
[5]
Ms AR observed that the complainant’s clothing was blood
stained. She also had blood in and around her
private parts. She was
crying. She was hospitalised in Kimberley Hospital for three weeks.
[6]
The day of the incident the police took the complainant to the
mountain where the rape took place and took
photos. About a month
later the complainant was playing outside her home with her friends
and returned running. She told her mother
that she had seen the
appellant and pointed him out as the person who raped her. When Ms AR
drew closer she realised that it was
someone she knew prior to the
incident. Police were called and he was apprehended.
[7]
The complainant corroborated the evidence of her mother, Ms AR. She
added that on her way to the tuckshop
someone grabbed her from
behind, held her ‘
like a baby
using his left hand and
covered her mouth with his right one. He asked her who her parents
were to which she proffered no response.
The appellant proceeded to
the veld with her. In the veld he undressed her of her clothes. At
that stage she requested to go and
relieve herself, which she did. As
she was busy relieving herself she looked around with the intention
of fleeing but the appellant
had a big rock in his hand and
threatened to injure her with it. He grabbed her and put her on top
of a rock. He pulled his pants
down, climbed on top of her and
inserted his penis into her vagina thereby having sexual intercourse
with her. After that he turned
her around and penetrated her anus
using his finger. After satisfying himself he asked her to dress up.
He put his penis inside
her mouth and ordered her to suck it, which
she did. She testified that she sucked it until she felt something
coming out of it.
He then ordered her to get dressed again and told
her to go to a jazz club with him to have sexual intercourse again.
However,
she picked up her shoes and fled the scene. She testified
that it was dark when the incident took place but the moon had given
some light. It was also raining. The appellant was wearing a Kaizer
Chiefs’ hat.
[8]
At home the complainant informed her grandmother of her ordeal. At
that stage her parents arrived and she
also informed them about the
rape incident. Thereafter they proceeded to the police station and a
case was registered. She confirmed
her mother’s evidence that
the police took her to the scene where photos were taken.
[9]
In hospital the complainant was operated twice and hospitalised for
three weeks as Ms AR testified.
[10] About a
month later, on a Saturday the complainant was playing with her
friends outside the yard when she recognised
the appellant as the
person who raped her. She ran home to alert her mother and police
were called. She and the police went inside
a tavern called Makeha to
identify the appellant, which she did. He was then apprehended. He
was still wearing the same hat he
had on the day of the incident. She
testified that the hat was not the only thing she identified him
with. She also recognised
him as he looked him straight in his eyes
when he raped her. She disputed that she told Ernest Paulus, a
constable in the South
African Police Services, that the appellant
had dreadlocks.
[11] A forensic
analyst in Cape Town laboratory, Mr NL Tiya, confirmed that the
appellant’s DNA was found on the panty
of the complainant and
could also be read into the mixture of the DNA found on the rectal
swab. It was also found on the complainant’s
pair of jeans,
hence the concession regarding the convictions and the life sentence
in respect of Count 1.
[12] When the
court
a quo
sentenced the appellant it took into account his
personal circumstances thus:
12.1
He was 37 years old, unmarried but living with his common law wife
for the last ten years;
12.2
He had four children, two of them aged 14 years, 5 years and 3 years.
Two of these children are his common law wife’s.
He paid
maintenance for his children in the amount of R600-00 per month;
12.3
He completed Grade 8 at school, Standard 6 in today’s terms;
12.4
His common law wife was unemployed and she and the children depended
on him for support;
12.5
He was working for Kelm Transport for the last seven years as a
foreman or supervisor earning R4 500-00 per month; and
12.6
Most importantly, he was a first offender.
[13] The court
a
quo
also took into account that the complainant was eight years
old and raped more than once. It remarked that the appellant could
consider himself fortunate that he was not charged with three counts
of rape and said:
‘
Nadat
u haar vaginaal verkrag het en die skeure en die beserings wat die
dokter opgemerk het, moes sy gebloei het maar dit het nie
vir u
gestuit om voort te gaan om haar anaal en weer oral te verkrag nie.
So u het vir haar geen genade gehad nie.’
[14] Mr Van
Tonder argued that regarding Count 2 the appellant penetrated the
complainant by inserting a finger in her anus.
It was therefore not
an act of rape deserving of life imprisonment and requested that it
be replaced with a suitable sentence.
Mr Makhaga, for the respondent,
submitted that the sentence of life imprisonment did not induce a
sense of shock.
[15] In
S
v MATYITYI
the Supreme Court of Appeal, following
MALGAS
[2]
had this to say:
‘
[23]
Despite certain limited successes there has been no real let-up in
the crime pandemic that engulfs our country. The situation
continues
to be alarming. It follows that, to borrow from Malgas, it still is
‘no longer business as usual’. And yet
one notices all
too frequently a willingness on the part of sentencing courts to
deviate from the minimum sentences prescribed
by the legislature for
the flimsiest of reasons - reasons, as here, that do not survive
scrutiny. As Malgas makes plain, courts
have a duty, despite any
personal doubts about the efficacy of the policy or personal aversion
to it, to implement those sentences.
Our courts derive their power
from the Constitution and, like other arms of State, owe their fealty
to it. Our constitutional order
can hardly survive if courts fail to
properly patrol the boundaries of their own power by showing due
deference to the legitimate
domains of power of the other arms of
State. Here Parliament has spoken. It has ordained minimum sentences
for certain specified
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, is foundational to the rule
of law which lies at the heart of our constitutional order.
[24]
… In my view there were no substantial and compelling
circumstances present that warranted a departure from the prescribed
statutory norm. ... Having regard to all of the circumstances
encountered here, the minimum sentences is a manifestly fair and
just
one. To my mind, this is precisely the type of matter that the
legislature had in mind when it enacted the minimum sentencing
legislation.’
[16] Nugent JA in
S v
VILAKAZI
[3]
held:
‘
It
is clear from the terms in which the test was framed in Malgas
[2000] ZASCA 156
;
[2001]
(1) SA 1222
;
2001 (1) SACR 469
(SCA) and endorsed in Dodo
[2001] ZACC 16
;
[2001 (3)
SA 382
;
2001 (1) SACR 594
(CC)] that it is incumbent upon a court in
every case, before it imposes a prescribed sentence, to assess, upon
a consideration
of all the circumstances of the particular case,
whether the prescribed sentence is indeed proportionate to the
particular offence.’
[17] Mr Van
Tonder submitted that although the personal circumstances of the
appellant were favourable, ‘
nothing stands out to such an
extent that it could be described as substantial and compelling
.’
I agree. The offences with which the appellant was convicted of are
very serious in nature and prevalent in this area of
jurisdiction.
What aggravates this case is the following:
17.1
The complainant was eight years old when the incident took place;
17.2
The appellant threatened to injure her with a stone if she did not
co-operate with him;
17.3
She was abducted in the night after just parting ways with her mother
on her way to the tuck shop;
17.4
After having been subjected to rape vaginally and anally she was
forced to suck the appellant’s penis, the most disgusting
thing
a child can be subjected to do;
17.5
She sustained serious injuries to her vagina and anus;
17.6
She had to undergo two operations and was hospitalised for three
weeks; and
17.7
She was traumatised by the ordeal.
[18] Holmes JA in
S v De
JAGER
[4]
stated:
‘
It
would not appear to be sufficiently recognised that a Court of appeal
does not have a general discretion to ameliorate the sentences
of
trial Courts. The matter is governed by principle. It is the trial
Court which has the discretion, and a Court of appeal cannot
interfere unless the discretion was not judicially exercised, that is
to say unless the sentence is vitiated by irregularity
or
misdirection or is so severe that no reasonable court could have
imposed it. In this latter regard an accepted test is whether
the
sentence induces a sense of shock that is to say if there is a
striking disparity between the sentence passed and that which
the
Court of appeal would have imposed. It should therefore be recognised
that appellate jurisdiction to interfere with punishment is
not
discretionary but, on the contrary, is very limited.
[19] The court
a
quo
found no substantial and compelling circumstances in the personal
circumstances of the appellant, correctly in my view. The Legislature
has ordained the sentence of life imprisonment as prescribed in the
Criminal Law Amendment Act
[5]
.
There are no substantial and compelling circumstances in the personal
circumstances of the appellant justifying a departure from
the
imposition of the prescribed sentences.
[20] In my view,
the sentence of life imprisonment does not induce a sense of shock
and is not disproportionate to the crime,
the criminal and the
interests of society. The court
a
quo
did not misdirect itself when it sentenced the appellant to life
imprisonment. The two life sentences run concurrently in terms
of
section 39 (2) (a) (ii) of the Correctional Services Act.
[6]
For the afore-going reasons the appeal must fail.
ORDER
The
appeal against the sentence of life imprisonment in respect of Count
2 is dismissed
.
B PAKATI J
PHATSHOANE
J
[21] I have had
the privilege of reading the separate judgment of my colleague Pakati
J and find it unnecessary to regurgitate
the factual milieu because I
agree largely with her line of reasoning and the conclusion reach.
However, I wish to amplify briefly
certain aspects for my
concurrence.
[22] The
complainant suffered untold anguish both mentally and physically
regard being had to her state of vulnerability and
her
under-developed anatomical makeup. She was in tears when she reported
the incident to her parents. Her mother says that her
abdomen was
covered in blood. She must have been haemorrhaging profusely because
the complainant says her father’s clothes
were also covered in
blood as he carried her to the scene and to the hospital.
[23] In terms of
the victim’s impact report, compiled by Ms Vanessa Botha, the
offences committed by the appellant had
a long lasting impact on the
complainant’s dignity. Although this did not significantly
affect her scholastic activities
it certainly destroyed her outlook
on life. She was still traumatized when Ms Botha interviewed her. Ms
Botha explained that it
will take long for the complainant’s
emotional scars to heal, if ever. I must add that the complainant
also broke down in
tears when testifying in Court.
[24] This was a
barbaric type of rape. The penetration by a finger into the
complainant’s anus must have been vicious.
I say this because
Doctor Esme Olivier, who examined the complainant following the
incident, found four circumferential tears on
her anus. The fact that
on Count 2 the appellant inserted his finger into the complainant’s
anus does not, in my view, ameliorate
the gravity of the offence. To
fortify my conclusion I can do no more than to refer to this remark
in
S v
Mahomotsa
[7]
:
‘…
(T)here
will always be cases which, although differing in their respective
degrees of seriousness, nonetheless all call for the
maximum penalty
imposable. The fact that the crimes under consideration are not all
equally horrendous may not matter if the least
horrendous of them is
horrendous enough to justify the imposition of the maximum penalty’
[25] The
appellant’s personal and mitigating circumstances as correctly
conceded to by his counsel and found by my Sister
Pakati J are
nothing out of the ordinary. He clearly did not show any contrition.
Our little girls and the community at large need
protection from the
Courts against the likes of the appellant who prowl the streets at
night to abduct defenseless victims and
callously raping them. A
conspectus of the mitigating circumstances weighed up against the
aggravating features does not lead,
in my view, to the conclusion
that the sentence imposed on Count 2 was unjust. There can be no
question that justice was served.
The ineluctable conclusion is that
the appeal must fail and it is so ordered.
MV Phatshoane J
On
behalf of the Applicant:
Adv A Van Tonder
Instructed
by:
Legal Aid South Africa, Kimberley
On
behalf of the Respondent: Adv RR
Makhaga
Instructed
by:
OFFICE
OF DIRECTOR OF PUBLIC PROSECUTIONS
[1]
Act 51 of 1977; Section 309 (1) (a) provides that all persons
sentenced to life imprisonment by a regional court under
section 51
(1) of the
Criminal Law Amendment Act, 105 of 1997
, may note an
appeal without having to apply for leave to appeal in terms of
section 309B.
[2]
2001 (1) SACR 469
(SCA) at paras [23] & [24]
[3]
2012 (6) SA 353
;
2009 (1) SACR 552
(SCA) at para 15
[4]
1965 (2) SA 616
(AD) at 628H –629A
[5]
Act 105 of 1997
[6]
Act 111 of 1998
[7]
2002 (2) SACR 435
(SCA)