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[2019] ZAWCHC 39
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Komanisi v S (A22/19) [2019] ZAWCHC 39 (22 March 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
Republic
of South Africa
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case Number: [High
Court]: A22/19
Case Number [Lower
Court]: SSB 156/16
In
the matter between:
XOLISA
KOMANISI
Appellant
and
THE
STATE
Respondent
Coram
:
Ndita J
et
De Waal AJ
Hearing:
8 March 2019
Judgment:
22 March 2019
JUDGMENT
De Waal AJ:
[1]
The Appellant in this matter was convicted
in the Regional Court, Stellenbosch (per Mr FD Tonisi) of
three offences, namely
(1) housebreaking with intent to rape and
rape; (2) rape of the victim at knifepoint; and (3) another count of
rape.
[2]
On 7 June 2018, the Regional
Court sentenced the Appellant to life imprisonment with reference to
the minimum sentencing
regime contained in
s 51(1)
of the
Criminal Law Amendment Act 105 of 1997
.
[3]
The Appellant noted an appeal in terms of
s 309(1)(a) of the Criminal Procedure Act 51 of 1977 (“
the
CPA
”) against the life sentence.
[4]
The grounds of appeal are as follows:
4.1.
The Court
a
quo
erred by not giving proper
consideration to the Appellant’s personal circumstances,
specifically his chances of rehabilitation.
4.2.
The Court
a
quo
erred by not giving enough weight
to the fact that the Appellant was a first offender.
4.3.
Life imprisonment is shockingly
inappropriate and out of proportion with the totality of the accepted
facts in mitigation.
4.4.
The Court
a
quo
erred by overemphasising the
interests of the community and the seriousness of the crime.
4.5.
The Court
a
quo
erred by not giving due
consideration to the element of mercy to be afforded to the Appellant
and gave the element of retribution
too much weight.
4.6.
In finding that the sentence would serve as
a deterrent, the Court
a quo
erred by failing to take into account that the rape that the
Appellant was found guilty of does not fall in the category of the
worst cases of rape (“
some rapes
are worse than others
”).
4.7.
The Court
a
quo
placed too much emphasis on the
lack of remorse by Appellant.
4.8.
Another Court would have found substantial
and compelling circumstances to divert from the minimum sentence of
life imprisonment
and would have given the Appellant a lesser
sentence.
[5]
In her heads of argument, Ms Kuun, an
attorney of Legal-Aid South Africa, who appeared for the Appellant,
suggested that even
though the notice of appeal was directed at the
sentence only, this Court should also consider whether the
convictions are in accordance
with justice. In this regard,
reliance was placed on ss 304(2) and 304(4) of the CPA.
She contended that the conviction
on a count of housebreaking should
be set aside because there was no evidence that the complainant told
the Appellant that he was
not allowed to enter her home.
[6]
Ms Mbewana, who
appeared for the State, contended that a conviction need not be
considered if an appellant elects under s 309
of the CPA not to
appeal against it.
[7]
On reflection, Ms Kuun’s
submission is correct in respect of the law but wrong regarding the
application thereof to the
facts.
[8]
When a convicted person notes an appeal in
terms of s 309(1)(a) of the CPA, the automatic review procedure
provided in s 302
is suspended by virtue of s 302(1)(b)(i).
But s 304(4) of the CPA is not suspended. That
subsection provides
as follows (my underlining):
“
If
in any criminal case
in which a
magistrate's court has imposed a sentence which is not subject to
review in the ordinary course in terms of section
302
or
in which a regional court has imposed any sentence
,
it is brought to the notice of the
provincial or local division having jurisdiction
or any judge thereof that the
proceedings
in which the sentence was imposed were not in accordance with
justice, such court or judge shall have the same powers
in respect of
such proceedings as if the record thereof had been laid before such
court or judge in terms of section 303 or this
section
.”
[9]
Thus, even though the appeal was against
sentence only, this Court has to consider whether the conviction on
housebreaking was in
accordance with justice, now that the alleged
incorrectness of that conviction “
has
been brought to the Court’s notice
”.
[10]
What does the phrase “
in
accordance with justice
” mean?
In
S v Taljaard
2005
(1) SACR 370
(C), a Full Bench of this division held as follows at
373J-374B:
“
the
words 'in accordance with justice' provide the court with some form
of review power (see in this regard S v Williams (unreported
decision
of the CPD SS127/01)). However, were the phrase 'in
accordance with justice' … to be given the meaning
of
compliance with legal rules of procedure only, it would mean that a
Court would have to accept as its own judgment that of another
court
with which it might have serious qualms in respect of the merits of
the conviction. That can never be in accordance with
justice because
the express confirmation of such a judgment as that of the High Court
would so profoundly conflict with the presiding
Judge's own
conception of justice as to make a mockery of the very word itself.
This was pointed out in S v Swartz and Another
(supra in para [8]):
'It is self-evident that a Court can never form an opinion that
proceedings are in accordance with justice
if the evidence is
insufficient for a conviction to withstand scrutiny …”.
[11]
Not only the procedure followed but also
the merits of a conviction fall to be considered when determining
whether that conviction
is in accordance with justice.
[12]
No issue with the procedure followed by the
Court
a quo
was raised. As to the merits, the complainant testified that
when the Appellant called on her to open her door, she replied
that
she could not do so because she had lost the key. The Appellant
then went to go and fetch a key which could open her
lock as it was a
“
Somalian lock
”
and that “
one key can open the
other lock
”. The Appellant
was accordingly never given permission to enter the complainant’s
shack nor was it his version
that he believed this to be the case.
[13]
Flowing from the above, it cannot be said
that the conviction for housebreaking was not in accordance with
justice. That said,
I proceed to consider the sentence.
Sentence
[14]
Before I deal with the reasoning of the
Court
a quo
regarding sentence and the arguments of the parties in this regard, I
set out the provisions of the minimum sentencing regime which
apply
to a conviction in the present circumstances as well as some
important qualifications introduced by the Supreme Court of
Appeal
(“
SCA
”)
and the Constitutional Court (“
CC
”)
regarding the application of the regime.
[15]
The
Criminal Law Amendment Act introduced
a
set of discretionary minimum sentences for certain serious offences.
For present purposes, the relevant provisions of this
regime
are the following (my underlining and irrelevant parts omitted):
“
51
Discretionary minimum sentences for certain serious offences
(1)
Notwithstanding any other law, but subject
to 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.
(3) (a) If any court
referred to in subsection (1) … is satisfied that
substantial and compelling circumstances exist
which justify the
imposition of a lesser sentence 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 ….
(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 the
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.
Schedule 2,
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 such 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 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.”
[16]
Save for two developments, to which I shall
revert below, the legislative history and the jurisprudence regarding
the constitutional
validity of this section are comprehensively
described in
S v Vilakazi
2012 (6) SA 353
(SCA). The issues which were highlighted in
this judgment are the following:
16.1.
The
minimum sentencing regime was introduced in 1998 in response to an
upsurge in serious crime and was initially described as “
drastic
but temporary
”
measure. It was envisaged that the regime would have a life
span of two years but it has been consistently extended
and has
become entrenched.
[1]
16.2.
The
maximum sentence that our law allows (a life sentence) applies once
any of the aggravating features is present; irrespective
of how many
of those features are present; irrespective of the degree to which
the feature is present; and irrespective of whether
the convicted
person is a first or repeat offender.
[2]
16.3.
The
regime was saved from unconstitutionality by the “
determinative
test
”
which was developed by the SCA in
S
v Malgas
2001 (2) SA 1222
(SCA) in terms of which if “
the
sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice would be
done
by imposing that sentence, it is entitled to impose a lesser
sentence
.”
[3]
[
The
test in
Malgas
must be employed in order to determine when
s 51(3)(a)
can
legitimately be invoked by a sentencing Court to pass a lesser
sentence than that prescribed by
s 51(1).
To this one must
add the test of “
gross
disproportionality
”
developed by the Constitutional Court in
S
v Dodo
[2001] ZACC 16
;
2001 (3) SA 382
(CC) which, in terms of paragraph 40 of that
judgment must be applied in order to determine whether a sentence
mandated by
law is inconsistent with the offender’s s 12(1)(e)
constitutional right not to be punished in a cruel, inhuman and
degrading
way.]
16.4.
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.
[4]
16.5.
Whilst
a Court must approach the matter conscious of the fact that the
Legislature has ordained the prescribed sentence as the sentence
that
should ordinarily and in the absence of weighty justification be
imposed for the listed crimes in the specified circumstances,
any
circumstances that would render the prescribed sentence
disproportionate to the offence would constitute the requisite
“
weighty
justification
”
for the imposition of a lesser sentence.
[5]
16.6.
Whether
the prescribed sentence is indeed proportionate, and thus capable of
being imposed, is a matter to be determined upon a
consideration of
the circumstances of the particular case.
[6]
16.7.
A
prescribed sentence need not be “
shockingly
unjust
”
before it is departed from for “
(o)ne
does not calibrate injustices in a court of law
”.
It is enough for the sentence to be departed from if it would be
unjust to impose it.
[7]
[17]
The
offence which was the subject of the
Vilakazi
Judgment was committed on 17 September 1999.
[8]
Subsequently,
s 52
of the
Criminal Law Amendment Act, which
required the Regional Court if it has convicted an accused person of
an offence for which life imprisonment is prescribed, to stop
the
proceedings and commit the accused for sentence by a High Court, has
been repealed.
[18]
Furthermore,
s 51(3)(a)
was introduced
through the
Criminal Law (Sentencing) Amendment Act 38 of 2007
with
effect from 31 December 2007. That section now
precludes a Court from having regard to four sets of factors
when
considering whether there are substantial and compelling
circumstances justifying deviation from the life sentence in a case
such as the present one. For present purposes, it is relevant
that a Court is precluded to find that an apparent lack of
physical
injury to the complainant constitutes such substantial and compelling
circumstances.
[19]
I now turn to deal with the facts of the
present matter.
[20]
The complainant testified that on the
weekend of 28/29 May 2016 and at […] E. Township,
she went drinking traditional
beer at her younger sister’s
place for five or six hours and then returned to her shack in the
same township to sleep.
Sometime afterwards, she was awakened
by a knock on her door and someone calling her by her clan name,
Manausa. She realised
that the person calling her was the
Appellant because he was in a relationship with her […].
The complainant further
testified that Appellant wanted her to open
the door. She replied that she could not do so because she had
lost the key.
The Appellant then went to go and fetch a key,
opened the door and raped her three or four times over a period of
three hours.
She further testified that she was screaming.
Appellant held a knife to her throat. Afterwards, someone from
the community
put her on his or her back and took her to a police
van.
[21]
Appellant’s version was that he found
the complainant at a spaza shop at about 18h00 whilst on his way to
buy two beers from
a shebeen. The complainant asked him to
accompany her to her shack in order for her to give him R20.00 to buy
her a beer
and ten cigarettes. He did so. On his return,
he gave her the beer and cigarettes, lit an oil lamp in her shack and
spent some time with the complainant drinking the beer.
Thereafter he went to his sister’s place. Appellant
denied ever having sex with the complainant.
[22]
The main reason why the Appellant’s
version did not hold water is that the State presented evidence at
the trial that the
Appellant’s DNA was found inside the
complainant’s vagina. The analysis was done based on
swabs taken as part
of the medical examination of the complainant
performed on Sunday, 29 May 2016. The forensic
evidence obviously
destroyed Appellant’s version of the
events. In response, it appears, the Appellant introduced a
preposterous explanation
for the presence of his DNA at the trial,
which was that some 2 – 4 weeks before the incident he, his
girlfriend (the complainant’s
[…]) and the complainant
fell asleep together after another drinking session. When he
woke up, the complainant was
sitting on top of him and there was
wetness on his thighs. Needless to say, this evidence could
obviously not explain why
Appellant’s DNA was found 2 – 4
weeks later “
inside
”
the complainant’s vagina. This removed any doubt
regarding the accused’s guilt on the rape charge.
[23]
The
minimum sentence of life dictated by
s 51(1)
of the
Criminal Law
Amendment Act was
triggered in the present matter by two factors
regarding the commission of the offence of rape:
23.1.
The
Court a quo found that the complainant was raped at least three
times; and
23.2.
The
Court
a
quo
found that the complainant was a disabled person.
[24]
In
respect of the first aspect, the complainant testified that she was
rapes 3-4 times by the Appellant. In respect of the
first, she
testified that she suffered a stroke and that as a result, she is
limping and that the whole left side of her body is
paralysed.
She also stated that it affects the way she speaks. She
receives a SASSA grant. Appellant agreed that
the complainant
was disabled but claimed that he did not know the nature of her
disability or where she got injured or how.
His evidence was
that he noticed that she could not walk properly. He knew about
this before he committed the offence.
[25]
Turning to the question of how the Court
a
quo
went about sentencing the
Appellant, the Court
a quo
recorded both mitigating and aggravating factors and found that there
were no substantial and compelling circumstances justifying
a
departure from the ordained life sentence of imprisonment in respect
of the rape. It however, did not record its reasons
for finding
that the life sentence would not be disproportionate in the
circumstances of the present matter, as required by the
Vilakazi
dictum
.
[26]
The Court
a
quo
recorded that:
26.1.
The Appellant at the time of sentencing was
thirty years old;
26.2.
The Appellant left school after passing
Grade 11 and worked for Group Five Construction and earned about
R3 000.00 per
month;
26.3.
He had four children, three of whom are
living with their mothers in the Eastern Cape;
26.4.
He lived with his mother and contributed
about R1 000.00 to the household per month. He further
contributed to his brother’s
schooling.
26.5.
The Appellant had a medical condition due
to an injury with a screwdriver in 2003 which required an open-heart
operation. He also
gave evidence to the effect that he still suffered
pains when cold at night. However, the Court
a
quo
wrongly found that the Appellant’s
health situation was not a serious issue because it already happened
in 2003 and the accused
appeared healthy to the Court;
26.6.
The Appellant was a first offender but the
Court
a quo
held that the
Criminal Law Amendment Act prescribes
a minimum
sentence even for a first offender;
26.7.
The Appellant had been in custody since
12 August 2016 to the date of sentencing (7 June 2018)
but the Court
a quo
held
that was not substantial and compelling.
[27]
The Court
a
quo
found the fact that the Appellant
followed the complainant to her house where she was sleeping and
broke into her place of refuge
as aggravating.
[28]
The Court
a
quo
further correctly found that the
complainant was a vulnerable person as defined in the Act, because
she was woman and a disabled
person. It is also so that the
fact that the Appellant came into the complainant’s home with a
knife, took advantage
of her disability, put her down and raped her
three times is aggravating in the extreme.
[29]
Although the Court
a
quo
analysed the approach adopted by
the Courts in circumstances such as the present, and referred to a
series of judgments it did not
sufficiently engage with test set out
in
Dodo
and
Vilakazi
.
[30]
More particularly, there was no engagement
with the central question of whether the prescribed minimum sentence
of life was disproportionate
in the circumstances of the case.
It is to that question that I now turn.
[31]
The approach to minimum sentences ordained by the legislature as set
out in
S v Malgas
2001(1) SACR 469 SCA is that the specified
sentences are not to be departed from lightly of for ‘
flimsy
reasons’
, and that matters such as ‘
undue
sympathy’
or ‘
aversion to imprisonment of
offenders’
are to be excluded. That said, the Supreme
Court of Appeal explained this comment in
S v Swart
2004 (2)
SACR 370
(SCA) at paragraph 17 by stating that the Court did not
intend to suggest that the quality of mercy, an intrinsic element of
civilised justice, should be altogether overlooked, but rather meant
to emphasize that retribution and deterrence will come to
the fore in
relation to such crimes. It of course does not follow that
simply because the circumstances attending a particular
offence
result in it falling within one or the other of the categories
delineated in the
Criminal Law Amendment Act, a
uniform sentence must
or should be imposed. (See
S v Mahomotsa
2002 (2) SACR
435
SCA). The Court
a quo
was enjoined to consider
whether substantial and compelling circumstances exist which justify
a departure from the prescribed minimum
sentence of life
imprisonment.
[32]
It is clear from the evidence that the offences of which the accused
has been convicted are indeed serious offences, both in
their very
nature and by virtue of the policy indications which are set out in
s 51
of the
Criminal Law Amendment Act, to
which the Court
should have regard. In
S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(A),
the Court recognised that rape is a very serious offence, is
humiliating, degrading and a brutal invasion of privacy, dignity
and
person of the victim. Mahomed CJ said at 345A-B that:
“
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. They have a legitimate
claim to walk peacefully on the streets,
to enjoy their shopping and
entertainment, to go and come from work, and enjoy the peace and
tranquillity of their homes without
the feat, the apprehension and
the insecurity which constantly diminishes the quality and enjoyment
of their lives.”
[33]
The
Appellant violated those rights. His
conduct is exacerbated by the fact that he knew that the complainant
would offer very
little resistance as she partially paralysed. He
entered her home without her consent and raped her, not once, but
thrice
whilst threatening her with a knife. Moreover, the
complainant in her evidence was aggravated by the fact that the
Appellant
was her […]’s boyfriend and was younger than
her (the complainant). His conduct was grave and callous.
[34]
Whilst the gravity and callousness of the offences with which the
Appellant has been convicted cannot and should not be understated,
it
remains to be said that justice is always blended with a measure of
mercy. According to the record, this was the Appellant’s
very first brush with the law. Prior to his incarceration, he
was employed and was contributing towards the maintenance of
his
children and family. Although there is very little information
concerning his heart condition, it remains to be said
that he does
have a health issue. He is relatively young and had spent a
considerable period spent in custody awaiting trial.
The period
spent in custody by a prisoner is a factor to be taken into account
in determining that circumstances exist such
that a minimum sentence
may be departed from. There is no rule as to how to determine
what weight is to be given to that
period. Each case must be
decided having regard to all circumstances that justify a lesser
sentence. (See
DPP v Gcwala
(295/13)
[2014] ZASCA 44
(31 March 2014).
[35]
I find that the Appellant’s personal circumstances should have
persuaded the Court
a quo
to find that there are substantial
and compelling circumstances and as such the sentence of life
imprisonment imposed on him is
therefore disproportionate. In
my view, the Appellant ought to be sentenced to a lengthy term of
imprisonment. As such,
I propose that the Appellant’s
appeal be upheld and his sentence set aside and be replaced with a
sentence of twenty years
imprisonment.
[36]
In the result, the
Appellant’s appeal against sentence is upheld. The
sentence imposed by the Court
a
quo
on
7 June 2018 is set aside and replaced as follows:
(a)
The Appellant
is sentenced to 20 years imprisonment.
(b)
The sentence
is antedated to 7 June 2018.
______________
H J DE WAAL AJ
Acting
Judge of the High Court
Cape
Town
22
March 2019
I
concur.
______________
NDITA J
Judge
of the High Court
Cape
Town
22
March 2019
APPEARANCES
Appellant’s
counsel: Ms S Kuun
Appellant’s
attorneys: Legal-Aid South Africa
Respondent’s
counsel: N Mbewana
Respondent’s
attorneys: Office of the Director of
Public
Prosecution: Western Cape
[1]
Vilakazi
at paras 9-10
[2]
Vilakazi
at para 13
[3]
Vilakazi
at para 14;
Malgas
at
para 25
[4]
Vilakazi
at para 15
[5]
Vilakazi
at para 16
[6]
Vilakazi
at para 18
[7]
Vilakazi
at para 20
[8]
Vilakazi
at fn31