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[2018] ZAGPPHC 533
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Manzini v S (A446 /2016) [2018] ZAGPPHC 533 (2 March 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE
NO: A446 /2016
2/3/2018
In
the matter between :
STANLEY
THEMBA
MANZINI
Appellant
and
THE
STATE
Respondent
DATE
OF HEARING
:
28 NOVEMBER 2017
DATE
OF JUDGMENT
:
02 MARCH 2018
JUDGMENT
MANAMELA,
AJ
Introduction
[1]
The appellant is a 34-year-old man, currently serving a sentence of
life imprisonment,
after his conviction by the Regional Court for the
Regional Division of Mpumalanga, Nelspruit (Mbombela) (the Trial
Court) on 18
September 2014. He was convicted on two counts of rape,
involving two complainants. The two counts were taken as one for
purposes
of his sentencing by the Trial Court.
[2]
The appellant exercised his automatic
right of appeal in bringing this appeal before us, on 28 November
2017 , whereat Ms MMP Masete,
appeared on behalf of the appellant,
and Mr Molatudi, appeared for the State or respondent.
[3]
The appellant submits that the Trial
Court erred on a number of grounds, in respect of both his conviction
and sentence. The appeal
is opposed by the State, which supports both
the conviction and sentence of the Trial Court. Before the Trial
Court, the appellant
entered a plea of not guilty to both counts of
rape and contended that both complainants consented to the sexual
intercourse. He
testified in his own defence and had the benefit of
legal representation during the trial. The Trial Court, after finding
no existence
of substantial and compelling circumstances, imposed the
prescribed minimum life imprisonment in terms of section 51(I) of the
Criminal Law Amendment Act 105 of 1997 (the Minimum Sentences Act).
Grounds
of appeal (in summary)
[4]
As already stated, the appellant
challenges both his conviction and sentence on a number of grounds .
I deal with the conviction
under separate sub-headings
per
complainant and issues relating to
sentencing under one sub-heading , next.
Conviction
on Count 1 (Ms N)
[5]
The appellant submits that the evidence
of Ms P S N, the complainant in the first rape committed on or about
30 August 2009, was
not treated with the necessary caution, as she
was a single witness. Her evidence was not satisfactory in material
respect and
the Trial Court erred in finding her a reliable witness,
when there were discrepancies between her testimony and contents of
her
statement made to the police, shortly after the rape. Her
evidence is contradicted by her sister's evidence, N T, particularly
with regard to the latter witnessing the rape, the submission
concludes.
Conviction
on Count 2 (Ms N)
[6]
Ms B N, was raped on or about 01 January
2011. The same contentions, as in count 1 , regarding Ms Ngcongwane
being a single witness,
are repeated under this count. It is also
submitted that she was an unsatisfactory witness, as her evidence was
full of improbabilities;
said she was threatened with a knife, when
she did not see any; falsely denied consumption of alcohol in the
company of the appellant;
failed to scream, when she was raped,
despite the presence of several people at the tavern.
[7]
The appellant's version is basically
that both complainants were his girlfriends and sexual intercourse,
with both, was consensual.
Sentence
(both Counts 1 and 2)
[8]
Regarding sentence, the appellant makes
the following contentions. The Trial Court overemphasised the
seriousness of the offences
and the interests of the society over his
personal circumstances. As a result, it imposed a sentence which is
harsh , induces a
sense of shock and is strikingly disproportionate
to the offences committed. The Trial Court failed to individualise
the sentence
and show some mercy on the appellant. The rapes, for
which the appellant was convicted, may not be classified the worst
cases of
rape, as the complainants did not suffer serious physical
harm, as a result.
[9]
It
is further submitted that the Trial Court erred in the following
respects: by not investigating existence of substantial and
compelling circumstances before imposing sentence it did, and not
considering the cumulative effect of the appellant's personal
circumstances to constitute substantial and compelling circumstances
. The appellant was 30 years old at the time of his sentencing
on 18
September 2014; a first offender on a charge of rape,
[1]
and had spent 3 years and 8 months in custody, awaiting trial. It is,
therefore, submitted that he had increased prospects of
rehabilitation.
[10]
As stated, the State is opposing the appeal. Next, I deal with the
evidence adduced at the Trial
Court, together with submissions made
on behalf of the parties.
Evidence
at the Trial Court (summarised)
The
State's Case (Count 1)
[11]
The State called three witnesses. Ms Nkosi, the complainant,
testified that on 30 August 2009,
around 19h00, she was alone in her
room, when she heard a knock on the door. She went to the door and
found that it was the appellant.
He had a bottle in his hand. He
slapped her three time s on the face with an open hand and tried to
hit her with a bottle, but
missed. He pushed her and she fell on the
floor; grabbed her by the arm and placed her on the bed. He then
undressed her clothes;
instructed her to suck his private part
(ostensibly his penis), which she did, and then had sexual
intercourse with her without
consent. Her sister, X, came back from
the shops and walked in on the appellant raping her. Upon her sister
running out of the
house to go seek help from neighbours, the
appellant left her house.
[12]
Ms N T was the second witness to testify
in respect of this count. She told the Trial Court that she is a
relative of the complainant
and was actually her caregiver at the
time of the incident. The complainant was recovering from stroke. On
30 August 2009, at around
18h45, she left the house for the shop to
go buy bread. She left behind the complainant and her (i.e. the
witnesses') 3-year-old
son. Whilst on her way to the shop, her son
came crying and told her that a certain man pushed him out of the
house. She turned
back to the house only to find a naked unknown man,
whose face she could not see, pushing the complainant onto the bed.
She ran
out of the house to go seek help.
[13]
Mr S M, the complainant' s brother in
law , was the last witness to take the stand for the State. He
testified as follows. At about
19h00, on 30 August 2009, he received
a telephone call from the complainant asking him to rush to her home.
Upon his arrival at
the complainant's home , he found her crying and
shaking. She told him that she has been raped by the person
(referring to the
appellant) she was with in the street, earlier
around 14h00 that day, when he (i.e. Mr M) went past them. He then
went looking
for the appellant at his house and didn't find him, but
later when he was on his way to the police station, he saw the
appellant
in another vehicle by the BP garage. The appellant has been
known to him for 20 years.
The
appellant 's case (Count 1)
[14]
The appellant testified .that he met the complainant during the day
on 30 August 2009, when they
fell in love. She gave him directions to
her house . Later that day, he went to the complainant's house and
found her in the company
of two other people. The complainant chased
the two-other people out of the house, after telling them that her
husband (referring
to the appellant) wanted to talk to her. This made
the appellant think she wanted to have sex with him. Thereafter, they
had consensual
sex.
[15]
Under cross-examination, the appellant mentioned that he met the
complainant, who was by then
unknown to him and was attracted to her
by her facial appearance and body structure. He did not notice her
disability then, but
only when she testified in court. When he left
her home, after the sexual intercourse, she was happy and did not
appear to have
any problems. He was surprised when he was arrested
for rape.
The
State's Case (Count 2)
[16]
Ms N, the complainant, testified that on
01 January 2011 , around 23h30, she went to Duke's tavern looking for
her friend , Sarah,
when she met the appellant. She did not know him,
but he volunteered to help her find her friend inside the tavern.
When he did
not find her friend, she wanted to go back home to sleep,
but the appellant offered to accompany her home , only after they had
stayed a while by the tavern. At some stage, whilst she was talking
to another male person, the appelIant called her and when she
went to
him, he threatened to kill her with a knife, if she made noise. They
proceeded to the back of the tavern, where he assaulted
her with open
hands and fists in the face and she fell to the ground. She was also
assaulted with a brick by her mouth. He took
off her pair of trousers
and panties, and had sexual intercourse with her, without her
consent. When two male persons appeared,
the appellant got off and
tried to run away, but he was apprehended .
[17]
Mr I M was the other witness for the
State on this count. He testified that on 01 January 2011, at around
23h00 he was also at Duke's
tavern. Whilst there, he was approached
by a certain girl, who told him that another girl was being raped
outside, at the back
of the tavern. They ran to the scene and found
the appellant on his feet, whilst the complainant was crying and
struggling to put
on her pants. The appellant was known to him. The
complainant was bleeding from the mouth and nose. The appellant told
him that
the complainant was his girlfriend, but the complainant
denied this. She told the witness that the appellant had raped her
and
hit her with a brick. A crowd of onlookers gathered around and
some started assaulting the appellant. He tried to run away, but
was
apprehended. Realising that the crowd of people gathered there could
kill the appellant, the witness fired gunshot in the air
and the
crowd dispersed. The witness phoned the police and the appellant was
arrested.
The
appellant's case (Count 2)
[18]
The appellant testified that he met the
complainant, in this count, at the tavern. They sat around the same
table consuming alcohol;
he proposed love to her and she accepted his
proposal. Thereafter, they stood up and went out of the tavern,
having agreed to have
sexual intercourse. They had sex in a toilet
behind the tavern, but when some people appeared and asked what they
were doing, the
complainant told them that he was raping her. He told
them that she was his girlfriend. In his view, she told them that she
was
being raped because she saw people coming to the scene. He denied
threatening to kill her.
[19]
Under cross-examination, the appellant
confirmed that he was assaulted by the people gathered at the scene.
He says this was after
the complainant has told them that he had
raped her. He admitted that Mr M protected him from the crowd. He
does not know how the
complainant got her injuries and neither did he
observe any injuries on her. It came out under cross-examination that
the appellant
had initially denied having sex with the complainant,
but recanted his story, when DNA results became available.
Trial
Court's judgment
[20]
In my view, the Trial Court handed down
a very comprehensive judgment. It dealt with the essentials of the
evidence before it, significantly
repeated above. There is no need to
rehash the evidence. I will discuss the essential aspects thereof,
below, to the extent warranted
for this appeal.
[21]
Regarding count 1, the Trial Court was
mindful of the fact that the complainant' s evidence stood alone, as
a single witness and
emphasised that it will be treated with the
necessary caution . The court stated that it was impressed by the
complainant. She
was a forceful witness, even though she had some
limitations relating to her disability. It found that she had given a
comprehensive
version of what had transpired in the house and had
stood firm in her testimony, despite the rigours of cross
examination. Her
evidence, in some respect particularly regarding the
fact that she was crying after the incident, is supported by the
evidence
of the two other witnesses. The court was alive to the fact
that there are some criticisms that could be levelled against the
complainant'
s evidence , like when she stated under
cross-examination that she saw the accused once in Greyville prior to
the incident, after
testifying that she does not know the accused.
However, the court found that this could not be considered a
contradiction, as seeing
somebody is not the same as knowing
somebody. Regarding the perceived discrepancies between her statement
to the police and her
testimony in court, the court found her
evidence clear and to be that when the accused came to her house, her
sister and brother
in-law had already le ft, and she was alone.
The court also found her forgetfulness or amnesia regarding the name
of her brother-in-law
or referring to him as a friend, not to affect
the high quality of her evidence, overall. It accepted her evidence
and that of
the two other State witness as the truth.
[22]
Regarding count 2, the Trial Court was equally impressed by the
evidence of the complainant and
considered her to have given a
comprehensive version of what transpired during the incident, whilst
mindful of the need to exercise
the necessary caution. The court
found the evidence that she was bleeding from the mouth and nose
supported by the evidence of
the witness, Mr Masuku. It nevertheless
acknowledged the shortcomings in her testimony, in some respects, and
criticisms that may
be levelled against her statement to the police.
The complainant denied some of the contents in the statement (like
that she drank
several beers on the day, in question) and insisted
that she had mentioned to the police that the appellant had
threatened her
with a knife. In the Trial Court's view the police
might have made a mistake when they took her statement in this
regard. However,
the court found this not adversely affecting the
high quality of her evidence, supported by that of Mr Masuku, a
member of the
Correctional Services. Whilst the court was alive to
the so-called contradictions, it accepted her evidence and that of Mr
Masuku,
as the truth.
[23]
The Trial Court found it remarkable that the appellant had initially
denied having sexual intercourse
with the complainants, but only
later to contend there was consensual sexual intercourse, when the
DNA results became available.
It found the appellant's version "
pregnant with improbabilities".
[2]
It found it improbable that the witnesses would have invented such a
detailed version or merely sucked the testimonies from their
thumbs.
In count 2, the court also found it improbable that the complainant
had consented to the sexual intercourse , when she
was found bleeding
from the mouth and nose, and other people had called out for her
help. She would not have consented to sex,
when she was menstruating
, the court also found. Further, the court pointed out that Masuku
who protected the appellant from the
crowd, wouldn't have lied about
the complainant bleeding through the mouth and nose. Due to the
improbabilities , the court rejected
the appellant's version as
improbable and not reasonably possibly true and accordingly found, on
.the basis of available evidence,
the counts to have been proven
beyond reasonable doubt.
Grounds
of appeal judgment and legal principles (an analysis)
[24]
Below, follows an analysis of the grounds of appeal and the material
parts of the judgment, against
the applicable legal principles. This
will not be a rehash of the discussions appearing above. I use the
grounds of appeal as subheadings.
Complainants
as single witnesses and alleged discrepancies in their evidence
[25]
As stated above, one of the appellant's grounds for challenging his
conviction is on the basis
that the Trial Court did not apply
cautionary rules to the evidence of both complainants, as single
witnesses, in the respective
matters. But, the Trial Court clearly
stated that the evidence of both complainants will be treated with
necessary caution and
there is nothing suggesting the contrary.
[26]
n terms of section 208 of the Criminal Procedure Act 5 I of 1977, an
accused person " may
be convicted of any offence on the single
evidence of any competent witness" . In the relatively new
matter of
Modiga
v The State,
[3]
the
Supreme Court of Appeal repeated the longstanding "salutary
warning .. .that even when dealing with the evidence of a s.ingle
witness, courts should never allow the exercise of caution to
displace the exercise of common sense" from the decision in
S
v
Snyman.
[4]
The
single witness must still be credible.
[5]
The Trial Court comprehensively assessed the evidence of both
complainants against the circumstances in the respective matters.
In
the sum, the court found that the complainants gave comprehensive
versions of what transpired. It also considered their evidence
to be
supported by those of the other State witnesses, despite the
so-called contradictions, which did not affect the quality of
their
evidence.
[27]
In
the decision of
S
v Teixeira
[6]
,
the
court emphatically held that regarding the evidence of the single
witness, "a final evaluation can rarely, if ever, be
made
without considering whether such evidence is consistent with the
probabilities".
[7]
Despite, the so-called inconsistencies and contradictions, I agree
with the Trial Court that, the quality and probative value of
the
complainants was indeed in line with the circumstantial evidence and
probabilities in the matters. Any flaws that may have
existed [as it
would indeed be remarkable if there were none in a testimony of a
witness of the kind of the complainants
[8]
]
were of no consequence under the circumstances. In terms of the
dictum
in
Modiga,
the
exercise of caution ought not to yield to the exercise of common
sense.
[9]
Therefore, it is my view that nothing under this ground of appeal
justifies interference with the judgment of the Trial Court.
Contradictions
amongst State witnesses
[28]
The
alleged contradictions were briefly dealt with under the previous
heading. Suffice to reiterate that, the Trial Court found
no material
contradictions. The approach of the Trial Court is supported by the
authorities, including in the decision of S
v
Van der Meyden,
[10]
that a defence cannot be possibly true "if at the same time the
State's case with which it is irreconcilable is "completely
acceptable and unshaken" .
[11]
Therefore, I agree that the so-called contradictions did not
materially affect the probative value of the evidence and the
conclusions
reached by the Trial Court, thereon. This ground of
appeal is also without merit. Therefore, the appeal in respect of
conviction,
will fail.
Sentencing
General
[29]
Regarding
sentence imposed on the appellant, it is submitted that the Trial
Court erred in imposing sentence of imprisonment for
life. The court
ought to have deviated from the prescribed minimum sentence, if it
had not failed to investigate existence of substantial
and compelling
circumstances or had considered the cumulative effect of the
appellant's personal circumstances. Further from what
is stated
above,
[12]
the appellant was an unemployed 30-year old and is unmarried
father of two kids. Due to his relatively youthful age and "first
offender" status, it is submitted that the appellant had
increase d prospects of rehabilitation.
[13]
It is further, submitted that, the Trial Court was without mercy;
harshly sentenced the appellant disproportionately to the offences
he
committed, and that the rapes he committed are not the worst cases of
rape, as the complainants did not suffer serious physical
harm
therefrom. I deal with these grounds of appeal under subheadings ,
below.
[30]
During
oral submissions before us, Ms Masete for the appellant argued that
in terms of the decision of
Ndlovu
v
S,
[14]
the Trial Court could not have convicted the appellant in terms of
section 51(1) of the Minimum Sentences Act to life imprisonment,
when
the charge sheet mentioned both sections 51(1) and 51(2) of the same
legislation. The charge sheet included both sections
as potentially
applicable and used the conjunction "or" in respect of the
two sections.
[15]
In
Ndlovu,
the
charge sheet did not mention section 51(1), but only section 51(2).
Consequently , the Constitutional Court found that the Regional
Court
lacked jurisdiction to impose a sentence in terms of the former
statutory provision, when the charge sheet only included
the latter
provision.
[16]
The Trial Court accepted, in respect of count 2, that the complainant
had been assaulted with intent to do previous bodily harm,
due to her
injuries sustained during the rape.
Emphasis
of the offence and interests of the society over appellant's personal
circumstances
[31]
The Trial Court was clearly appreciative of the responsibilities
regarding its sentencing exercise
and the need to balance the
competing interest s, in this regard.
[17]
From its judgment, part of which is repeated above, it is clear that
the Trial Court considered the personal circumstances of the
appellant. The court, equally, considered the fact that the crimes
committed by the appellant were of a serious nature; its duty
to
protect women without sacrificing the appellant
[18]
or deterring others without making the appellant a scapegoat for the
offences of others.
[19]
I am,
there fore, satisfied that the Trial Court reasonably discharged its
sentencing responsibilities in this regard.
Substantial
and compelling circumstances I cumulative effect of the appellant's
personal circumstances
[32]
The
Trial Court did not find existence of substantial and compelling
circumstances to deviate from the minimum sentence it imposed:
lifelong imprisonment. It is submitted, on behalf of the appellant,
that the Trial Court actually failed to investigate existence
of
substantial and compelling circumstances. It is correct that the
responsibility regarding the presence or absence of substantial
and
compelling circumstances falls on the State, the defence or accused
and the court itself. It is not the sole responsibility
of the
defence to place on record the substantial and compelling
circumstances in the matter, although the defence or accused has
a
responsibility to " pertinently raise such circumstances for
consideration"
[20]
by the trial court.
[21]
The defence or an accused often discharges its part, in this regard,
during the pre-sentencing address in terms of
section 274(2)
of the
Criminal Procedure Act 51 of 1977
, but this is generic to all
criminal matters.
[33]
Both
sides made submissions with regard to the substantia l and compelling
circumstances. The defence submitted on behalf of the
accused that
the Trial Court ought to deviate from the prescribed minimum
sentence, as the accused is a first offender and has
greater
prospects for rehabilitation.
[22]
The State submitted, in the main, that the lack of remorse throughout
the trial ought to sway the court to impose the applicable
minimum
sentence . The court, in my view, meticulously went through the
particular circumstances of this matter from all angles.
This
included the personal circumstances of the appellant, as already
stated above or the cumulative effect of those circumstances;
the
fact that the first rape was committed in 2009 and the second in 2011
, which the court considered to be indicative of inability
to learn
from past mistakes , on the part of the appellant. Also considered
were that, in count 1, a disabled woman was raped and
in count 2, the
complainant was also assaulted with an open hand, fists and a brick ,
which the court considered to be indicative
that the appellant is a
violent person. The court also considered that the appellant spent
almost 4 years in custody awaiting his
trial. It relied on the
decision of S v
Fortune,
[23]
whose
findings were in fact reliant on the decision of S
v
Malgas,
[24]
regarding
the fact that 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 ",
[25]
but found none in the matter . I also agree with this finding of the
Trial Court arrived at after meticulous investigation of the
circumstances in the matters. Therefore, there is nothing meritorious
under this ground of appeal.
Lifelong
sentence: shockingly harsh and strikingly disproportionate to the
offences
[34]
It was conceded, on behalf of the appellant, that the crimes for
which he was convicted are of
serious nature.
[26]
The concession is ordinarily normal. As Mohammed JA (as he then was)
stated in the decision of the Supreme Court of Appeal in S
v
Chapman,
[27]
"[r]ape
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 ".
[28]
The same sentiments have been repeated in countless other cases,
including another decision of the Supreme Court of Appeal in S
v
Vilakazi.
[29]
Against
that reality, I, therefore, do not agree that the crimes committed by
the appellant were not rapes of the worst kind. In
fact , I do not
subscribe to the notion that one can apply degrees of comparison to a
serious and abominable crime, like rape.
If there ever was a need for
a fair comparison, such may only be regarding exterior activities to
the actual crime of rape, including
circumstances under which the
crime of rape was committed. But, not the rape itself .
[35]
In this matter, the appellant raped a disabled woman, after
assaulting her, and less than two
years later , he raped another
woman whose penchant to befriend strangers he betrayed that fateful
night, also after assaulting
her. And in the absence of substantial
and compelling ·circumstances, the Trial Court imposed the
prescribed minimum sentence:
life long imprisonment. However, the
Trial Court showed some level of mercy to the appellant by taking the
two counts of rape as
one, for purposes of sentencing , thus avoiding
the cumulative effect of the sentence- practically awkward, as the
notion of consecutive
life sentences, may be.
Prospects
of (rehabilitation
[36]
Despite, his two other previous convictions for malicious damage to
property and house breaking
, it is submitted that the appellant
lacks propensity to commit crimes. This, including his age (i.e. 30
years old, at the time
of sentencing on 18 September 2014) increases
his chances of rehabilitation, it is submitted. The Trial Court
comprehensively dealt
with all these aspects and was unpersuaded that
the imposition of a sentence other than for life long imprisonment,
was appropriate.
And I see no valid cause to differ or interfere.
Conclusion
[37]
It
is trite that sentencing or punishment is pre-eminently a matter for
the discretion of a trial court. The discretion of an appellate
court
becomes available only where there is misdirection; the sentence
imposed is shockingly or disturbingly inappropriate or there
is an
irregularity originating from the trial court not properly and
judicially exercising its discretion.
[30]
It is my view that, the Trial Court judiciously discharged its
responsibilities, regarding both conviction and sentence. There
is no
room for this Court, on appeal, in any way, to interfere with the
judgment of the Trial Court, in any respect. Therefore,
the appeal
will fail with regard to both conviction and sentence.
Order
[38]
In the result, I propose that the
following order be made:
a)
the
appeal against conviction and sentence is dismissed ;
b)
The
conviction and sentence of the Regional Court for the Regional
Division of Mpumalanga, Nelspruit is confirmed.
K.
La M. Manamela
Acting
Judge of the High Court
02
MARCH 2018
.'
NV
KHUMALO
Judge
of the High Court
I
agree and it is so ordered
Appearances:
For
the Appellant
:
Adv MMP Masete,
:
Pretoria
Justice Centre, Pretoria
For
the Respondent
:
Adv M.R. Molatudi
Director
of Public Prosecutions
Gauteng
Division, Pretoria
[1]
The appellant had two previous convictions: one for malicious damage
to property in Barberton on 08 January 2004, for which the
passing
sentence was postponed for five years to 08 January 2009, and
another for house breaking, also in Barberton, for which
he was
sentenced to imprisonment for one year on 26 August 2004. He was
also declared unfit possess a firearm in the latter conviction.
[2]
See line 15 on indexed p 167.
[3]
[2015] 4 All SA 13
(SCA) at pars [32]· [33].
[4]
1968 (2) SA 582
(A) at 585G; [1968) 3 All SA 18 (A).
[5]
See S
v Sauls
1981
(3) SA 172
(A) at 180 C- H. See further Wigmore JH
A
Treatise on the Law of Evidence
vol
3 at par 2034 at 262.
[6]
1980 (3) SA 755 (A).
[7]
See
S v Teixeira
at
761
[8]
S v Sauls
1981
(3)SA 172 at 180H.
[9]
See
Modiga
at
par (32).
[10]
see S
v Van der Meyden
1999 (I) SACR 447
(W).
[11]
See S
v Van der Meyden
at 449f - 450b.
[12]
See par (9), above.
[13]
See footnote 1 , above.
[14]
2017 (2) SACR 305 (CC).
[15]
See indexed pp 2 and 3.
[16]
See
Ndlovu
at
pars [46]- [47].
[17]
See lines 4-20 on indexed p 172.
[18]
See
lines 15-18 on indexed p 175.
[19]
See lines 18-21 on indexed p 175.
[20]
In
S
v
Roslee
[2006)
SCA 15 (RSA) at 545e the court affirmed the pre-sentence
responsibilities of accused and held: "Although there is
no
onus on an accused to prove the presence of substantial and
compelling circumstances, it must be so that an accused who intend
s
to persuade a court to impose a sentence less than that prescribed
should pertinently raise such circumstances for consideration."
I omitted the references to this quotation.
[21]
This apparent from the reading of the following part from section
51(3) of the Minimum Sentences Act:
"(a)
If
anv
court
referred to in
subsection (1) or (2)
is
satisfied that substantial and compelling circumstances exist
which justify the imposition of a lesser sentence than the sentence
prescribed in those subsect ions,
it
shall enter those circumstances on the record of the proceedings
and
must thereupon impose such lesser sentence ... " [underlining
added for emphasis]
[22]
See Iines 21 - 24 on indexed p 170.
[23]
2014 (2) SACR 178 (WCC).
[24]
2001 ( I ) S ACR 469 (SCA).
[25]
See
S v Fortune
at
185d- e.
[26]
See line 19 onwards on indexed p 170 ; pa r 17 of the appellant ' s
heads of argument
[27]
1997 (2) SACR 3 (SCA).
[28]
See
S
v
Chapman
at
5a- b.
[29]
2009 (1) SACR 552
SCA at 555g-h.
[30]
See S v
Rabie
1975
(4) SA 855
(A) at 8570-E]. See furthers v
Pillay
1977 (4) SA 531
(A)
at 535D-F wherein the court said the following about the concept of
misdirection: "Now the word " misdirection
" in the
present context simply means an error committed by the Court in
determining or applying the facts for assessing
the appropriate
sentence. As the essential enquiry in an appeal against sentence,
however, is not whether the sentence was right
or wrong, but whether
the Court in imposing it exercised its discretion properly and
judicially, a mere misdirection is not by
itself sufficient to
entitle the Appeal Court to interfere with the sentence ; 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 misdirection is
usually and conveniently termed one that vitiates the Court's
decision on sentence."