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[2008] ZASCA 87
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S v Vilakazi (576/07) [2008] ZASCA 87; [2008] 4 All SA 396 (SCA) ; 2009 (1) SACR 552 (SCA); 2012 (6) SA 353 (SCA) (3 September 2008)
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO
: 576/07
BONGANI PHILLIP VILAKAZI Appellant
and
THE STATE Respondent
Neutral citation:
Vilakazi v The State
(576/07)
[2008] ZASCA 87
(2 September 2008)
Coram: STREICHER, NUGENT, MLAMBO, MAYA JJA and HURT AJA
Heard: 5 MAY 2008
Delivered: 2 SEPTEMBER 2008
Corrected: 3 SEPTEMBER 2008
Summary: Sentence – rape – sentencing
principles.
_______________________________________________________________
ORDER
_______________________________________________________________
On appeal from: High Court, Transvaal Provincial
Division (Els J sitting as court of first instance)
[1] The appeal against sentence is upheld. The sentence
imposed upon the appellant is set aside and the following sentence is
substituted:
‘
The accused is sentenced to fifteen years’
imprisonment from which two years are to be deducted when calculating
the date
upon which the sentence is to expire.’
______________________________________________________________
JUDGMENT
______________________________________________________________
NUGENT JA (STREICHER, MLAMBO, MAYA JJA and HURT AJA
concurring)
[1] Rape is a repulsive crime. It was rightly described
by counsel in this case as ‘an invasion of the most private and
intimate
zone of a woman and strikes at the core of her personhood
and dignity’. In
S v Chapman
1
this court called it a ‘humiliating, degrading and
brutal invasion of the privacy, dignity and the person of the victim’
and went on to say that
‘[w]omen in this country…have a
legitimate claim to walk peacefully on the streets, to enjoy their
shopping and their
entertainment, to go and come from work, and to
enjoy the peace and tranquility of their homes without the fear, the
apprehension
and the insecurity which constantly diminishes the
quality and enjoyment of their lives.’
[2] Yet women in this country are still far from having
that peace of mind. According to a study on the epidemiology of rape
‘the evidence points to the conclusion
that women’s right to give or withhold consent to sexual
intercourse is one of
the most commonly violated of all human rights
in South Africa.’
2
During 2007 as many as 36 190 reports of rape were
made to the police.
3
Perhaps in some cases the report was false but the
figure is nonetheless staggering bearing in mind that rape is
notoriously under-reported.
It is also notorious that relatively few
offenders are caught and convicted.
[3] There is considerable risk in those circumstances
that excessive punishment will be heaped on the relatively few who
are convicted
in retribution for the crimes of those who escape or in
the despairing hope that it will arrest the scourge.
4
But the Constitutional Court reminded us in
S
v Dodo
5
that punishment must always be proportionate to the
deserts of the particular offender – no less but also no more –
for all human beings ‘ought to be treated as ends in
themselves, never merely as means to an end’.
6
[4] In the case that I referred to earlier Chapman was
said to have ‘prowled the streets and shopping malls and in a
short
period of one week he raped three young women, who were unknown
to him. He deceptively pretended to care for them by giving them
lifts and then proceeded to rape them callously and brutally, after
threatening them with a knife’.
7
This court (Mahomed CJ, Van Heerden and Olivier JJA)
described the sentence that he received as ‘undoubtedly severe’
but declined to interfere, saying that it was ‘determined to
protect the equality, dignity and freedom of all women…we
shall show no mercy to those who seek to invade those rights’.
8
For each of his crimes Chapman was sentenced to 7 years’
imprisonment with the effective sentence being 14 years’
imprisonment.
9
[5] Chapman was sentenced before ss 51 and 52 of
the Criminal Law Amendment Act 105 of 1997 (for convenience I will
refer to
those sections as the Act) introduced a minimum sentencing
regime. But the sentence that was imposed in that case is not unduly
out of line with the minimum sentence that is prescribed by the Act.
The Act prescribes a minimum sentence for rape of 10 years’
imprisonment in the absence of specified aggravating circumstances
(none of which appear to have been present in that case) and
multiple
sentences imposed under the Act are capable of being served
concurrently.
[6] In the present case the appellant was convicted on
one count of rape and sentenced to life imprisonment. What accounts
for the
enormous disparity between the sentence in
Chapman
and
the sentence in this case is that in this case the appellant’s
victim was under the age of 16 years. The Act prescribes
that on that
account alone the ordinary minimum sentence for rape of 10 years’
imprisonment should instead be the maximum
sentence that is permitted
by our law, which is life imprisonment.
[7] This appeal is against that sentence. The appellant
was convicted in the regional court at Volksrust and was committed to
the
High Court for sentence as required by s 52 of the Act. The
Act prescribes that the minimum sentence must be imposed unless
the
court is satisfied that substantial and compelling circumstances
exist that justify a lesser sentence. In this case the High
Court at
Pretoria (Els J) found that no such circumstances existed and
sentenced the appellant accordingly. An application to that
court
some three years later for leave to appeal against both the
conviction and the sentence failed. Leave was subsequently granted
by
this court to appeal against sentence. Why the appeal process has
taken so long is not now material.
[8] Leave to appeal was granted by this court with
directions that certain issues in particular should be addressed. At
the time
the appellant petitioned this court he had no legal
representation and Mr Trengove SC was requested to act as amicus
curiae to
assist this court in reaching a proper conclusion. We are
grateful to him, and to Ms Steinberg and Ms Goodman who agreed to
assist
him, for their willingness to accept the appointment. By the
time the matter reached this court the Legal Aid Board had appointed
counsel (Mr Bredenkamp SC and Mr Alberts) to represent the appellant.
The Centre for Applied Legal Studies and the Tshwaranang
Legal
Advocacy Centre applied for and were granted leave to address this
court on issues of general application relating to the
Act and were
represented by Ms Moroka SC and Ms Pillay. The state was represented
by Mr De Meillon. Although leave to appeal was
granted only against
sentence Mr De Meillon properly accepted that the appeal might be
broadened to include the conviction if upon
reflection on the
evidence we were to be of the view that the appellant should not have
been convicted.
10
[9] The Act came into effect on 1 May 1998 for a period
of two years but was capable of being extended for two years at a
time by
proclamation. It was introduced in response to the upsurge in
serious crime and was described by the Minister of Justice at the
time as ‘drastic’ but temporary. Parliament was told by
the portfolio committee that the Act
‘is to be regarded as a precursor to a
fully fledged sentencing guideline system that will inevitably take
some time to evolve.
Hence the provision to limit the life span of
the Act to two years, after which the President with the concurrence
of Parliament
will be able to extend its operation one year at a
time.’
11
[10] A sophisticated system to construct guidelines for
consistency in sentencing that would take account of the views of all
interested
parties was subsequently recommended by the South African
Law Commission in December 2000.
12
The recommendation was made after a comprehensive review
of sentencing practice in this country and abroad, where sentencing
guidelines
in one form or another are common.
13
But drastic legislation has a propensity to become
permanent once it has become familiar. The sophisticated
guideline-system recommended
by the Law Commission, which I suspect
would have been welcome to many judges who face the difficult task of
sentencing, was not
introduced. Instead the temporary regime provided
for in the Act was consistently extended and has now been entrenched
(with some
amendments) by the
Criminal Law (Sentencing) Amendment Act
2007
.
14
[11] The sentencing regime that is provided for in the
Act bears little relationship to the systems I have referred to, all
of which
are structured to give due weight to the numerous
combinations of variables that accompany the commission of crime. In
contrast
the Act purports to cover the field of serious crime in no
more than a handful of blunt paragraphs.
[12] The Act demands the imposition of the prescribed
minimum sentences unless a court is satisfied in a particular case
that there
are ‘substantial and compelling circumstances’
that justify the imposition of a lesser sentence. I have pointed out
that in the case of rape the sentence that is considered to be
ordinarily appropriate is 10 years’ imprisonment. But there
are
eight circumstances in which the sentence prescribed for the crime is
imprisonment for life. I have mentioned one such circumstance:
where
the victim is a girl who is under the age of 16 years. The other
seven are the following:
15
‘(i) Where the victim was raped more
than once whether by the accused or by any co-perpetrator or
accomplice;
(ii) [When the crime was committed by] more
than one person, where such persons acted in the execution or
furtherance of a common
purpose or conspiracy;
(iii) [When the crime was committed] by a
person who has been convicted of two or more offences of rape, but
has not yet been sentenced
in respect of such convictions;
(iv) [When the crime was committed] by a
person, knowing that he has the acquired immune deficiency syndrome
or the human immunodeficiency
virus;
(v) Where the victim is a physically
disabled woman who, due to her physical disability, is rendered
particularly vulnerable;
(vi) Where the victim is a mentally ill
woman as contemplated in section 1 of the Mental Health Act, 1973;
(vii) [Where the crime involved] the
infliction of grievous bodily harm.’
[13] What is striking about that regime is the absence
of any gradation between 10 years’ imprisonment and life
imprisonment.
The minimum sentence of 10 years’ imprisonment
progresses immediately to the maximum sentence that our law allows
once any
of the aggravating features is present, irrespective of how
many of those features are present, irrespective of the degree in
which
the feature is present, and irrespective of whether the
convicted person is a first or repeat offender. On the face of it a
first-offending
18 year old boy who rapes his 15 year old girlfriend
on one occasion must receive the same sentence as a recidivist serial
rapist
who repeatedly gang-rapes and beats senseless a disabled
victim whom he consciously infects with HIV. The 18 year old boy who
rapes
his 15 year old girlfriend must also receive the same sentence
as the adult recidivist who rapes an infant. The offender who
imprisons
and rapes his victim repeatedly every day for a week is
considered to be no more culpable than one who rapes his victim twice
within
ten minutes. It requires only a cursory reading of the Act to
reveal other startling incongruities. And when the sentences that
are
prescribed for rape in various circumstances are related to sentences
prescribed for other crimes even more incongruities emerge.
It is not
surprising that the leading writer on the subject of sentencing in
this country, Professor Terblanche, advanced the following
acerbic
observation on the Act ten years after it took effect:
16
‘I have criticised the Act elsewhere
17
and, if anything, have become more critical with time. There is
hardly a provision in sections 51 to 53 that is without problems.
The
number of absurdities that have been identified and which will no
doubt be identified in future is simply astounding. The Act’s
lack of sophistication disappoints from beginning to end. There are
too many examples of disproportionality between the various
offences
and the prescribed sentences.’
[14] It is only by approaching sentencing under the Act
in the manner that was laid down by this court in
S
v Malgas
18
–
which was said by the Constitutional Court in
S
v Dodo
to be ‘undoubtedly correct’
19
–
that incongruous and disproportionate sentences
are capable of being avoided. Indeed, that was the basis upon which
the Constitutional
Court in
Dodo
found the Act to be not unconstitutional. For by
avoiding sentences that are disproportionate a court necessarily
safeguards against
the risk – and in my view it is a real risk
– that sentences will be imposed in some case that are so
disproportionate
as to be unconstitutional. In that case the
Constitutional Court said that the approach laid down in
Malgas
,
and in particular its ‘determinative test’ for deciding
whether a prescribed sentence may be departed from,
‘makes plain that the power of a court
to impose a lesser sentence … can be exercised well before the
disproportionality
between the mandated sentence and the nature of
the offence becomes so great that it can be typified as gross’
[and thus
constitutionally offensive].
20
That ‘determinative test’ for when the
prescribed sentence may be departed from was expressed as follows in
Malgas
and it deserves
to be emphasised:
‘
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.’
21
[15] It is clear from the terms in which the test was
framed in
Malgas
and
endorsed in
Dodo
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. The
Constitutional
Court made it clear that what is meant by the ‘offence’
in that context (and that is the sense in which
I will use the term
throughout this judgment unless the context indicates otherwise)
consists of all factors relevant to the
nature and seriousness of the criminal act itself, as well as all
relevant personal and
other circumstances relating to the offender
which could have a bearing on the seriousness of the offence and the
culpability of
the offender.’
22
If a court is indeed satisfied that a lesser sentence is
called for in a particular case, thus justifying a departure from the
prescribed
sentence, then it hardly needs saying that the court is
bound to impose that lesser sentence. That was also made clear in
Malgas,
which said that the relevant provision in the Act
‘vests the sentencing court with the
power, indeed the obligation, to consider whether the particular
circumstances of the
case require a different sentence to be imposed.
And a different sentence must be imposed if the court is satisfied
that substantial
and compelling circumstances exist which
‘
justify’…
it’.
23
[16] It was submitted before us that in
Malgas
this court ‘repeatedly emphasised’ that the
prescribed sentences must be imposed as the norm and are to be
departed
from only as an exception. That is not what was said in
Malgas.
The submission
was founded upon words selected from the judgment and advanced out of
their context. The court did not say, for example,
as it was
submitted that it did, that the prescribed sentences ‘should
ordinarily be imposed’. What it said is that
a court must
approach the matter ‘
conscious of the
fact that the Legislature has ordained
[the
prescribed sentence] as the sentence which should
ordinarily
and in the absence of weighty justification
be imposed for the listed crimes in the specified
circumstances’
24
(the emphasis in bold is mine). In the context of the
judgment as a whole, and in particular the ‘determinative test’
that I referred to earlier, it is clear that the effect of those
qualifications is 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.
[17] I need not repeat all the other passages that were
selectively relied upon to support the submission. It is sufficient
to say
that when placed in their context none supports the
submission. Indeed, the court could hardly have held that the various
sentences
are indeed proportionate to the particular crimes –
and thus to be imposed as the norm – when it did not even
pertinently
consider the various sentences for the various crimes. To
say that a court must regard the sentence as being proportionate a
priori
and apply it other than in an exceptional case runs altogether
counter to both
Malgas
and
Dodo
. Far from saying that
the circumstances in which a court may (and should) depart from a
prescribed sentence will arise only as
an exception
Malgas
said:
‘Equally erroneous…are
dicta
which suggest that for circumstances to qualify as substantial and
compelling they must be ‘exceptional’ in the sense
of
seldom encountered or rare. The frequency or infrequency of the
existence of a set of circumstances is logically irrelevant
to the
question of whether or not they are substantial and compelling.’
25
[18] It is plain from the determinative test laid down
by
Malgas
, consistent with what was said throughout the
judgment, and consistent with what was said by the Constitutional
Court in
Dodo
, that a prescribed sentence cannot be assumed a
priori to be proportionate in a particular case. It cannot even be
assumed a priori
that the sentence is constitutionally permitted.
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. It ought
to be apparent
that when the matter is approached in that way it
might turn out that the prescribed sentence is seldom imposed in
cases that fall
within the specified category. If that occurs it will
be because the prescribed sentence is seldom proportionate to the
offence.
For the essence of
Malgas
and of
Dodo
is that
disproportionate sentences are not to be imposed and that courts are
not vehicles for injustice.
[19] In a variation upon the earlier submission it was
also submitted that the prescribed sentence must be imposed in
‘typical’
cases and may be departed from only where the
case is atypical. We were not told what constitutes a ‘typical’
case
nor how such a case is to be identified. All that is typical of
cases that fall within a specified category is that they have the
characteristics of that category. But for that, no case can be said
to be ‘typical’. The submission finds no support
in
Malgas
or in logic and
it has no merit.
[20] I do not think it is helpful to revisit
constructions of the Act that were considered and rejected in
Malgas
,
as much of the argument before us attempted to do. I have pointed out
that the essence of the decisions in
Malgas
and in
Dodo
is
that a court is not compelled to perpetrate injustice by imposing a
sentence that is disproportionate to the particular offence.
Whether
a sentence is proportionate cannot be determined in the abstract, but
only upon a consideration of all material circumstances
of the
particular case, though bearing in mind what the legislature has
ordained and the other strictures referred to in
Malgas
.
It was also pointed out in
Malgas
that a prescribed sentence need not be ‘shockingly
unjust’ before it is departed from for ‘one does not
calibrate
injustices in a court of law’.
26
It is enough for the sentence to be departed from that
it would be unjust to impose it.
[21] The prosecution of rape presents peculiar
difficulties that always call for the greatest care to be taken, and
even more so
where the complainant is young. From prosecutors it
calls for thoughtful preparation, patient and sensitive presentation
of all
the available evidence, and meticulous attention to detail.
From judicial officers who try such cases it calls for accurate
understanding
and careful analysis of all the evidence. For it is in
the nature of such cases that the available evidence is often scant
and
many prosecutions fail for that reason alone. In those
circumstances each detail can be vitally important. From those who
are called
upon to sentence convicted offenders such cases call for
considerable reflection. Custodial sentences are not merely numbers.
And
familiarity with the sentence of life imprisonment
27
must never blunt one to the fact that its consequences
are profound.
[22] The case that is before us is characterized by
superficiality from beginning to end with the result that it exhibits
several
disturbing features. Nothing was done to enquire into
material matters before the trial commenced. The complainant’s
evidence
was presented with little care for completeness and
accuracy. The evidence was subjected to little analysis. And the
process of
sentencing was perfunctory.
[23] Section 52 of the Act requires a 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. The process provided for in
that section
is ‘designed to place the High Court in the same
position as the trial court after it has convicted the accused’,
28
which contemplates that the high court will familiarize
itself sufficiently with the material facts surrounding the
commission of
the offence to be in that position. The section
provides that ‘unless the high court is not satisfied that the
accused is
guilty’ it must make a formal finding of guilty and
proceed to sentence the accused accordingly.
29
Although that is framed in the negative I venture to
suggest that a court that is sufficiently familiar with the material
facts
to enable it to properly assess the sentence ought never to be
in the position of sentencing without having formed the view that
the
conviction is indeed sound.
[24] In this case the court below recorded that it had
read the record and was satisfied that the appellant was properly
convicted
but features of the subsequent judgment that I presently
refer to do not inspire confidence. A finding of guilty having
formally
been entered that was followed by submissions by counsel for
the appellant that were decidedly brief – they take up a mere
forty lines in the record. I call them submissions but they were
really no more than a recital of the appellant’s personal
circumstances – that he was 30 years old, lived with a female
partner and their three children, was in fixed employment earning
approximately R700 per week, and was a first offender.
30
The learned judge then delivered a judgment that takes
up 30 lines. Brevity is naturally not a vice but what was said in
those lines
was mostly formalistic and a repetition of the
appellant’s personal circumstances. Of the offence itself the
learned judge
said no more than that raping a girl under the age of
16 years is a serious offence against which society is entitled to be
protected,
which goes without saying. What he also said in the
judgment is that at the time the offence was committed the
complainant was
11 years old, that she was a ‘sufferer of
epilepsy’, and that she was ‘to a degree mentally
impaired’,
all of which he clearly considered to be
aggravating. He concluded by saying that ‘taking everything
into account’
he could not find circumstances that justified a
departure from the prescribed sentence of life imprisonment and he
sentenced the
appellant accordingly.
[25] It is convenient at the outset to deal with the
three features relating to the complainant that the court below took
account
of in weighing what sentence to impose. (All the quotations
from the record that follow are my translations with the original
evidence
in footnotes.)
[26] The complainant was not 11 years old when the
offence was committed. According to the complainant she was 15 when
she gave
evidence,
31
which places her age at between 14 and 16 when the
offence was committed. (In answer to a question the complainant, who
had no formal
schooling, said that she could not remember the date of
her birth
32
).
A witness
33
who encountered the complainant for a short time on the
day the incident occurred said that he ‘estimated her age to be
about
11 or 12 years’ but that evidence naturally carries no
weight. The district surgeon who examined the complainant on the day
of the incident recorded her age as 13 years. The source of that
information was not disclosed and nobody bothered to enquire nor
to
query its inconsistency with the evidence of the complainant. The
magistrate estimated her age to be below 16 years and her
own
evidence of her age was accepted by the prosecution and the defence
alike both at the trial and in the proceedings before us.
The age of
the complainant at the time the offence occurred was clearly a
material factor to be taken account of in sentencing.
To take account
of the fact that she was 11 when in fact she was at least 14 and
might have been over 15 was a misdirection.
[27] The evidence that founded the other two statements
emanated from the district surgeon who examined the complainant on
the day
that the incident occurred but what was said by the court
below does not accurately reflect that evidence. The evidence of the
district surgeon was not that the complainant suffered epilepsy nor
that she was mentally impaired. His evidence was that the complainant
gave a history of those conditions. The district surgeon made no such
diagnosis himself. Precisely what the complainant told the
district
surgeon was not disclosed and once more nobody bothered to ask either
the district surgeon or the complainant. The evidence
was strictly
not even admissible as proof of the existence of those conditions but
the misdirection goes further than that.
[28] It appears from a standard medical textbook
34
that epilepsy is not a single condition but describes a
variety of conditions characterized by cerebral seizures that might
manifest
themselves in various ways and with varying intensity and at
varying intervals. In the period between seizures normal functional
capacity may be altogether unaffected. In some cases seizures that
manifest themselves in early childhood dissipate over time and
may
abate altogether by the time the child reaches adolescence. I do not
pretend to an understanding of epilepsy nor do I suggest
for a moment
that what I have given is a comprehensive or properly informed
account. The textbook that I have referred to deals
with the matter
in no less than 24 pages. I also do not suggest that a court is
entitled to school itself in medical matters by
referring to
textbooks. I have given this account of what appears in a medical
textbook only to illustrate that a ‘history
of epilepsy’
is by itself quite meaningless without knowing what that history is.
To take account of the fact that the complainant
was a ‘sufferer
of epilepsy’ without any evidence that she was, without the
slightest knowledge of the form that it
took if she was indeed such a
sufferer, and without the slightest indication of its relevance to
the offence or any consequences
of the offence, was a clear
misdirection.
[29] The evidence also does not disclose what was told
to the district surgeon that caused him to record a history of mental
impairment
and again nobody bothered to ask. Explaining what the term
meant the district surgeon said the following:
‘If a person looks at mental
impairment it means only that your IQ is lower than 85. So she can
function normally, communicate,
and so on. It means only that she has
limited intellectual capacity.’
It seems unlikely that the complainant would have known
what her intelligence quotient was and it is not even certain that it
has
ever been tested. Certainly there are signs in the record of her
evidence that her intelligence is limited but I have found nothing
to
place it at more than that. Neither the prosecutor nor the magistrate
appear to have noticed anything untoward in that regard.
(The
magistrate remarked upon the matter only once he saw the observation
in the medical report.) Nor did anything untoward strike
the
witnesses who interacted with the complainant. (In his judgment the
magistrate recorded that the police officer had said that
the
complainant appeared to him not to be altogether normal but in truth
the police officer said the opposite.) The only evidence
of the
district surgeon’s own observations emerged in response to the
question whether the complainant’s ability to
communicate was
limited in any way, to which he answered:
35
‘I did not do a psychometric
evaluation of the patient but she could conduct a meaningful
conversation with me and give a
reasonably clear history of her
background but I did not do a psychometric evaluation.’
To bring to account the fact that the complainant was
mentally impaired without any knowledge at all of her mental state
was another
misdirection.
[30] But I think the court below misdirected itself even
more fundamentally. I have pointed out that the judgment of the court
below
contains no evaluation of the circumstances in which the
offence was committed. By itself that does not mean that they were
not
evaluated for in most cases a judgment will not incorporate
everything that exercised the mind of a court. But in this case I am
driven to the conclusion – from the misdirections I have
referred to, the paucity of the preceding argument, and the tenor
and
brevity of the judgment – that if there was any evaluation of
the evidence it must have been superficial at most. The
clear
impression I have is that the matter was approached on the basis that
the prescribed sentence would be imposed as a matter
of course unless
the personal circumstances of the appellant disclosed it to be an
exceptional case. I think I have made it clear
that an approach of
that kind is not permissible. The court was required by
Malgas
to apply its mind to whether the sentence was proportional to the
offence (in the wide sense that I have described) and I think
it is
fair to conclude that the court failed altogether to do so.
[31] On each one of the grounds that I have referred to
the court below materially misdirected itself and the sentence that
it imposed
cannot stand, which means that we must ourselves evaluate
whether life imprisonment is indeed a proportionate sentence, in
accordance
with the approach that was laid down in
Malgas
.
[32] A singular feature of the complainant’s
evidence is that she pointedly refrained from identifying the
appellant in the
course of her evidence. It is abundantly clear that
the man she was referring to was indeed the appellant and for
convenience I
will narrate her evidence with that adaptation.
[33] The complainant lived in a place called
Driefontein. She had no formal schooling and quite evidently lived in
poor circumstances.
On the day in question she had been visiting at a
nearby mine and she was walking home in the late afternoon. The
appellant came
driving by in what appears to have been a tanker-truck
that is used for spraying water onto gravel roads and he stopped to
give
her a lift. After traveling for a while the appellant turned the
truck off the road into a plantation where he stopped.
[34] According to the complainant both she and the
appellant alighted from the truck and sat in the plantation for some
time. For
how long they sat in the plantation, and what was occurring
while they sat there, does not appear from the evidence because
nobody
bothered to ask. The complainant said that the appellant then
went to the truck and returned with a condom which he put on. She
said that he then ‘caught me and had sexual intercourse with
me’
36
on two occasions. She said that this occurred without
her consent.
37
On being asked in cross-examination whether the
appellant had covered his face when he raped her the complainant
answered: ‘He
covered my mouth’.
38
Once intercourse was completed the appellant departed in
his truck saying that he was going to fetch water (meaning,
apparently,
that he was going to fill the tanker).
[35] Meanwhile the complainant waited in the plantation
for the appellant to return. It appears that she was waiting for him
to
return so that she could be driven home, because in response to
the question whether she was cross that she had to wait for what
she
said was a ‘long time’ she said:
‘Yes. I was cross and I decided let me
rather get a lift from another vehicle.’
39
She then walked to the road where she was encountered
hitch-hiking by a passing motorist, Mr Nkosi, who stopped to give her
a lift.
[36] Mr Nkosi’s evidence as to what then occurred
does not altogether coincide with a written statement that he signed
the
same day nor with the evidence of the complainant. The magistrate
found that Mr Nkosi was an honest witness and I have no doubt
that
that is correct. But even honest witnesses have the capacity for
error and reconstruction and at times place events in the
incorrect
sequence.
[37] According to Mr Nkosi the complainant was
hitch-hiking when he encountered her and he stopped. As she was
approaching him he
said she must make haste as he was in a hurry. In
evidence he said that she was walking ‘as if her legs were
stiff’,
that she was crying, and that she looked from time to
time into the bushes. In his statement he said that before he stopped
he
‘noticed that [she] is scared or looked like a person who is
injured and she was looking or suspicious looking in the bushes’,
but made no mention of the fact that she was crying.
[38] The complainant herself did not say that she was
crying, and from her account of why she came to be hitch-hiking,
there is
no reason to think that she was. It is likely that she was
in tears at a later stage, when she was being questioned by Mr Nkosi,
but that is something else. No doubt the complainant exhibited signs
of pain, or at least discomfort, as she walked towards Mr
Nkosi,
bearing in mind the findings at a medical examination that I will
come to presently. There is also no reason to doubt that
she indeed
glanced into the bush as she approached or entered the vehicle. On
her account of what had occurred I do not think that
is significant,
though it undoubtedly prompted Mr Nkosi to suspect that she had been
with someone else.
[39] I think it is clear that the further interchanges
to which Mr Nkosi testified took place after the complainant had
entered
the vehicle and they had driven off. I think it is also clear
that the complainant did not volunteer an account to Mr Nkosi of what
had occurred, but that the account she gave him emerged in response
to questioning on his part.
[40] Mr Nkosi said that he asked the complainant what
she had been doing in the plantation and she replied that she was
afraid to
tell him. His statement records that when he asked her that
‘she became shy’ and he ‘immediately suspected
there
is something wrong.’ That is broadly consistent with the
evidence of the complainant, who said that after she boarded the
vehicle Mr Nkosi asked her what she had been doing in the plantation
and with whom had she been, to which she replied that she
had been
sitting alone after the person who had taken her there had left.
[41] The complainant then gave an account of events that
she said had occurred, which unfolded in response to Mr Nkosi’s
questions.
According to Mr Nkosi the complainant told him that she
had been given a lift by the driver of a truck and that he had driven
into
the bush and raped her. She also told him that ‘they said
that they were going to kill her if she spoke about what had happened
in the bush’.
40
Her reference to more than one person puzzled him at
first and on further questioning she confirmed that only one person
had been
present. In the course of their interchange she also told
him that after she had been raped she noticed that ‘she was
bleeding
and had semen on her private parts’.
41
His statement records her having said that ‘even
though she screamed [he] continued to have sex with her’ and
that ‘she
was bleeding through her vagina’. In his
evidence he said that she was crying as she related these events.
[42] What the complainant told Mr Nkosi, when compared
to the evidence that she gave to the court, was not an altogether
full and
accurate account of what had occurred. She seems not to have
told him that she sat with the appellant in the plantation for some
time, nor that she had been waiting for the appellant to return so
that he could drive her home. There was no suggestion in her
evidence
that threats had been made to kill her. Nor did she say in her
evidence that she was screaming. That might be obliquely
suggested by
her remark in cross-examination that the appellant had covered her
mouth, but had she indeed been screaming I would
expect that to have
emerged directly even before she was cross-examined. That there would
have been semen around her vagina seems
doubtful given her evidence
that the appellant had used a condom. And the evidence of the doctor
who examined the complainant later
that day makes it plain that she
was not bleeding.
[43] Not surprisingly Mr Nkosi was concerned at the
account he had been given and he very properly drove directly to the
police
station where a report was made to Sergeant Ndlangamandla that
the complainant had been raped. After questioning the complainant
Sergeant Ndlangamandla went to the appellant’s place of work in
the company of the complainant. Upon seeing them the appellant
immediately came forward and acknowledged that he had had sexual
intercourse with the complainant. He said that what he had done
was
not rape because he had used a condom and the complainant had
consented.
42
According to Sergeant Ndlangamandla it was only upon
being informed that the complainant was a minor that the appellant
‘understood
that it was wrong’.
43
[44] The complainant was then taken to a district
surgeon who examined her. He said that the examination was painful
but that he
found no lacerations or bruising or indeed any injuries.
She had not bathed before she was examined and the examination
revealed
no external signs of bleeding. He said that her underpants
were soiled, and that he sent a sample for analysis, but there was no
suggestion that the soiling was blood. He also observed a white
vaginal discharge but was unable to say what it was. He took a
vaginal smear and a swab, which were sent for analysis, but he did
not know what the result was. (The prosecutor was not in possession
of the results of the analyses and they were never presented to the
court.) There was no suggestion in the evidence of the district
surgeon, or in his contemporary notes of his examination, that the
complainant was emotional or in a state of distress. In the
space on
the standard form reserved for observations concerning the ‘state
of the person as regards physical powers, general
state of health and
mental state’ he made a mark indicating that there were no
observations to record.
[45] In his explanation to his plea of not guilty the
appellant acknowledged that he had given the complainant a lift but
denied
that he had raped her. In his evidence he changed his mind. He
said that he had indeed given a lift to a woman but that she was
not
the complainant. He had seen the complainant alongside the road but
had not even spoken to her. I think it is clear that when
it became
apparent to the appellant in the course of the proceedings that the
complainant declined to identify him the appellant
latched upon it
and altered his evidence so as to distance himself altogether from
the scene. The magistrate correctly rejected
the appellant’s
evidence and I need say no more about it.
[46] There is no doubt that the appellant was indeed the
person in the truck who gave the complainant a lift. Leaving aside
his
admission to that effect in the explanation to his plea
44
it was not disputed that he acknowledged that he was
that person (in circumstances that made the statement admissible)
immediately
before he was arrested. There is also no doubt that he
had sexual intercourse with the complainant.
[47] Once having rejected the evidence of the appellant
the magistrate appears to have considered that to be the end of the
matter
and did not pertinently direct his mind to whether all the
elements of the offence had been established. Rejecting the
exculpatory
evidence of an accused does not end the enquiry in a
criminal case. Before convicting a court must always be satisfied not
merely
that the exculpatory evidence of the accused is not true but
also that every element of the offence has been established by
evidence
that is truthful and reliable beyond reasonable doubt and
that applies as much to the crime of rape. In the case of rape those
elements include both absence of consent and knowledge by the accused
of the absence of consent (or at least knowledge of that
possibility
45
).
As Howie P said in
S v York
46
in relation to the absence of consent:
‘It is always, of course, for the
prosecution to prove the absence of consent. This entails that even
if the defence, as here,
is that no intercourse took place, the court
must, in the adjudicative process, be alive to the possibility that
there might have
been consent nonetheless.’
That applies as much to the presence of mens rea and
this court said as much in
S v S
.
47
In that case the accused denied that sexual intercourse
had occurred, in circumstances in which an admission to that effect
would
have exposed him to conviction under the Immorality Act. After
finding that sexual intercourse had indeed occurred the court said
the following (my translation):
‘However, this finding is not by
itself sufficient to bring home a conviction of rape. Although the
appellant had sexual intercourse
with the complainant without her
consent and against her will he is not guilty of rape if he
bona
fide
believed that she consented… In the present case the
appellant does not allege that he believed that the complainant
consented
to intercourse and he could not allege that, given his
denial that he had intercourse with her. That does not relieve the
state
however of the obligation to prove
mens rea,
although
the appellant’s false denial that intercourse occurred makes
the state’s task in that regard considerably easier.’
[48] Where an accused person advances a false defence,
as the appellant did in this case, a court might ordinarily infer
that the
reason for doing so is that he or she has no other defence.
But on the ordinary logic of inferential reasoning
48
that inference could not properly be drawn if another
reason presents itself. The most that could then be said is that he
or she
might have advanced a false defence for either of those
reasons. Needless to say an accused person in that position takes a
considerable
risk. For if there is unchallenged evidence of all the
elements of the offence a court would be perfectly justified in
accepting
the evidence. It is if there is no evidence on the issue
that the onus that rests on the state will accrue to the benefit of
the
accused for the gap in the evidence could not be filled by an
inference drawn against the accused. That is not a matter of law but
only a consequence of ordinary inferential reasoning.
[49] In the present case the evidence of Sergeant
Ndlangamandla indeed discloses a reason why the appellant might have
advanced
a false defence that is not consistent only with his guilt.
For it was made clear to him by Sergeant Ndlangamandla that the
explanation
that he first gave – which was that the complainant
had consented – would not assist him to avoid conviction but
would
assure a conviction at least of contravening s 14(1)(a) of
the Sexual Offences Act 23 of 1957.
49
In the circumstances I do not think that the fact alone
that the appellant advanced a false defence takes the remaining
elements
of the crime out of the equation.
[50] With regard to those elements it is unfortunate
that the evidence was presented only in blunt outline without much in
the way
of detail. The only direct evidence on the question of
consent was the complainant’s answer to the question ‘was
it
with your consent’ to which the complainant replied ‘I
never gave consent’
50
but I see no reason not to accept that evidence in the
absence of any challenge. There is no evidence, however, that the
complainant
expressed that to the appellant verbally, which raises
the question whether the appellant was aware that the complainant was
not
a consenting party, bearing in mind particularly that his
explanation to Sergeant Ndlangamandla was that the complainant had
consented.
But there are two further items of evidence that are
relevant in that regard. The first is the complainant’s
evidence that
the appellant ‘caught me’ and then
proceeded to have sexual intercourse. The second is her evidence that
the appellant
‘covered my mouth’. In the absence of any
challenge to that evidence, or a contrary explanation, I think it can
be
inferred from the fact that the appellant found it necessary to
place some form of restraint upon the complainant (whatever the
precise form of that restraint might have been) both before and
during intercourse, that he must have known that she was not
consenting,
or at least have foreseen that possibility. In those
circumstances the appellant was properly convicted and I turn to the
matter
of sentence.
[51]
Malgas
made
it clear that the Act signaled that it was not to be ‘business
as usual’ when sentencing for the commission of
the specified
crimes. That it has indeed not been ‘business as usual’
is reflected in the dramatic change in the profile
of the prison
population since the Act took effect. Published figures indicate that
the number of prisoners serving sentences of
imprisonment between ten
and fifteen years increased almost three times from 1998 to 2008.
51
Those serving sentences of life imprisonment increased
over nine times.
52
As for the crime of rape Parliament was told at the time
the Act was introduced that for rape ‘generally a sentence of
three
or four years would be imposed, or six to ten years in very
serious cases’.
53
That is consistent with my own experience of cases that
came before the high courts on appeal at that time. Naturally I am
not aware
of all the cases in which sentences have been passed but my
firm impression from cases that come before this court is that if
there
are still sentences falling within that range it would be most
unusual. I think it is fair to say that sentences from ten to twenty
years are now common and life imprisonment is by no means rare.
[52] We were referred to sentences that have been
imposed or confirmed in various cases that have come before this
court. While
I have read those decisions I do not think any purpose
would be served by examining them in this judgment. It is sufficient
to
say that I do not think any relevant principles of law emerges
from those cases that must guide us in our decision.
[53] In a case of this kind the objective features of
the crime come to the fore in determining a proper sentence. The fact
alone
that the complainant was under 16 is considered by the
legislature to warrant what might otherwise have been a sentence of
10 years’
imprisonment being increased to the most severe
punishment that our law knows. The legislature considered that to be
warranted
also in each of the other circumstances that I referred to
earlier.
[54] That each of those circumstances is indeed an
aggravating factor is beyond question. But if the presence of any one
of those
circumstances is indeed so aggravating as to have that
profound effect then on the approach in
Malgas
their absence is also capable of lessening the
culpability of the offender and that was accepted by all counsel who
appeared before
us. I should not be understood to mean that the
absence of any one or more of the various aggravating features
specified in the
Act necessarily justifies a departure from the
prescribed sentence for that would suggest that the maximum sentence
is reserved
for only extreme cases. That was not so prior to the Act
and it is not the case now. There comes a stage at which the maximum
sentence
is proportionate to an offence and the fact that the same
sentence will be attracted by an even greater horror means only that
the law can offer nothing more. Whether, and if so to what extent,
the absence of other aggravating circumstances might diminish
the
offender’s culpability will naturally depend upon the
particular circumstances. That their absence might have that effect
is merely affirmation of the recurrent theme in
Malgas
that of the factors traditionally taken into account in
sentencing ‘none is excluded at the outset from consideration
in the
sentencing process.’
54
[55] I have given a full account earlier in this
judgment of the material facts that emerge from the record and will
only highlight
some of them in weighing whether the maximum sentence
will indeed be proportionate in this case. In this case there was no
extraneous
violence and no physical injury was caused other than
physical injury inherent in the offence. There was also no threat of
extraneous
violence of any kind. The appellant at least minimized the
risk of pregnancy and the transmission of disease by using a condom.
The complainant’s evidence that she was raped twice is curious
bearing in mind that the appellant was charged with only one
count.
Once more the evidence on that issue is scant and in the absence of
evidence to the contrary I think we are bound to accept
that if two
acts indeed occurred they might have been so closely linked as to
amount in substance to the continuation of a single
event and ought
not to be given undue weight. Indeed, all who are concerned in this
case placed no weight on that aspect of the
evidence.
[56] In this case there is very little upon which to
measure the emotional impact of the offence upon the complainant. It
would
not be possible to encapsulate in this judgment the range of
emotional responses that rape might evoke as it is described in the
considerable literature on the topic and I make no attempt to do so.
It is sufficient to say that it is evident from the literature
that
emotional distress and damage that accompanies rape might be
extensive even if it is not manifested overtly and even more
is that
so in the case of young girls. What also needs to be borne in mind is
that the literature shows that emotional responses
vary as is
demonstrated by a revealing empirical study of the impact of violence
(including sexual violence) against women in the
metropolitan areas
of this country.
55
But while a court must inform itself sufficiently to be
alive to the range of possibilities that present themselves in such
cases
ultimately it must assess the particular individual that is
before it and not a statistical sample.
[57] It is most unfortunate that no attempt was made
before the trial to establish the complainant’s intellectual
capacity
and other aspects of her background in view of the history
that she related to the district surgeon for that might have cast
further
light on the emotional impact of the crime. I have pointed
out that the evidence is not sufficient for any meaningful assessment
of the complainant’s intellectual capacity and on the evidence
it is possible to say no more than that there is some indication
that
it is limited. What we have before us in assessing the emotional
impact of the crime upon the complainant is that after the
event the
complainant felt herself able to await the appellant’s return
and to be in his company once more while he drove
her home and became
exasperated when he did not return. No doubt she was in tears when
being questioned by Mr Nkosi but it is difficult
to assess the degree
to which that was attributable to being questioned persistently by a
stranger and the degree to which it is
to be attributed to the crime.
When she was examined by the district surgeon a little later he
observed no signs of distress. I
think it must be accepted that no
woman, and least of all a child, would be left unscathed by sexual
assault, and that in this
case the complainant must indeed have been
traumatized, but the evidence does not reveal anything more specific
than that. I might
add that if the complainant was indeed prone to
epileptic seizures in one form or another I do not think that can be
said to be
an aggravating feature because there is no indication that
any such seizure played any role in this case.
[58] The personal circumstances of the appellant, so far
as they are disclosed in the evidence, have been set out earlier. In
cases
of serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background. Once it
becomes clear that the crime is deserving of a substantial period of
imprisonment the questions whether the accused is married
or single,
whether he has two children or three, whether or not he is in
employment, are in themselves largely immaterial to what
that period
should be, and those seem to me to be the kind of ‘flimsy’
grounds that
Malgas
said should be avoided. But they are
nonetheless relevant in another respect. A material consideration is
whether the accused can
be expected to offend again. While that can
never be confidently predicted his or her circumstances might assist
in making at least
some assessment. In this case the appellant had
reached the age of 30 without any serious brushes with the law. His
stable employment
and apparently stable family circumstances are not
indicative of an inherently lawless character.
[59] When viewed as a whole the only material feature
that the evidence discloses as having aggravated what is inherently a
serious
crime was the complainant’s age. Bearing in mind where
the complainant’s age fits in the range between infancy and 16
I do not think that her age by itself justifies what would otherwise
have been a sentence of 10 years imprisonment being raised
to the
maximum sentence permitted by law. A substantial sentence of 15
years’ imprisonment seems to me to be sufficient to
bring home
to the appellant the gravity of his offence and to exact sufficient
retribution for his crime. To make him pay for it
with the remainder
of his life would seem to me to be grossly disproportionate.
[60] There is one further consideration that must be
brought to account. The appellant was arrested on the day the offence
was committed
and has been incarcerated ever since. At the time he
was sentenced he had accordingly been imprisoned for just over two
years.
56
While good reason might exist for denying bail to a
person who is charged with a serious crime it seems to me that if he
or she
is not promptly brought to trial it would be most unjust if
the period of imprisonment while awaiting trial is not then brought
to account in any custodial sentence that is imposed. In the
circumstances I intend ordering that the sentence – which for
purposes of considering parole is a sentence of fifteen years’
imprisonment commencing on the date that the appellant was
sentenced
– is to expire two years earlier than would ordinarily have
been the case.
[61] The appeal against sentence is upheld. The sentence
imposed upon the appellant is set aside and the following sentence is
substituted:
‘
The accused is sentenced to fifteen years’
imprisonment from which two years are to be deducted when calculating
the date
upon which the sentence is to expire.’
_________________
R.W. NUGENT
JUDGE OF APPEAL
FOR
APPELLANT: B C Bredenkamp SC
H
L Alberts
W
Trengove SC (Amici Curiae)
C
Steinberg
I
Goodman
ATTORNEYS:
Adv C van Veenendal
PRETORIA
Bloemfontein
Justice Centre
BLOEMFONTEIN
Matsepes
(Amici Curia)
BLOEMFONTEIN
FOR
RESPONDENT: A R de Meillon SC
K
D Moroka SC (Amici Curiae)
K
Pillay
ATTORNEYS:
Director of Public Prosecutions
PRETORIA
Bloemfontein
Justice Centre
BLOEMFONTEIN
Webbers
(Amici Curiae)
BLOEMFONTEIN
1
[1997] ZASCA 45
;
1997
(3) SA 341
(SCA) 345A-B.
2
Rachel
Jewkes and Naeema Abrahams ‘The Epidemiology of Rape and
Sexual Coercion in South Africa: An Overview’
Social
Science and Medicine
55 (2002) 1231-1244.
3
Crime
statistics on www.saps.gov.za.
4
According
to S.S. Terblanche
A
Guide to Sentencing in South Africa
2ed para 8.3.2 the assumption that drastic sentences deter crime
has little support.
5
[2001] ZACC 16
;
2001
(3) SA 382
(CC).
6
Para
38.
7
At
p 345C.
8
At
p 345D.
9
The
sentence on one count was to run concurrently with the sentences on
the other two counts.
10
The
record of the trial was not before this court when the petition was
considered.
11
Second
Reading Debate: Hansard 6 November 1997 column 6089.
12
Project
82: ‘Sentencing (A New Sentencing Framework)’
13
In
South Australia, for example, the Criminal Law (Sentencing)
(Sentencing Guidelines) Act 2003 empowers the Full Court to
establish
sentencing guidelines. In New South Wales the Criminal
Court of Appeal has itself assumed jurisdiction to do so (See
R v
Henry, Barber, Tran, Silver,
Tsoukatos,
Kyroglou, Jenkins
[1999] NSWCCA
111).
In England the Criminal Justice Act 2003 created a
Sentencing Guidelines Council that has established sophisticated
guidelines
on the recommendation of a Sentencing Advisory Panel
(see, for example, ‘Guidelines on Sexual Offences’ at
http://www.sentencing-guidelines.gov.uk/guidelines/
council/final.html). Across the Atlantic the Minnesota Sentencing
Guidelines Commission (created under 1978 Minn. Laws, ch. 723)
has
established a sophisticated framework of advisory sentence-ranges
that are presumed to be appropriate to particular crimes
with scope
for the courts to depart from them where that is justified by
‘substantial and compelling circumstances’.
14
That
Act took effect on 31 December 2007.
15
Schedule
2 Part I read with s 51(1).
16
S.S.
Terblanche, above, p. 75.
17
2003
Acta Juridica
218-220
and
(2001) 14
SACJ
18-19.
18
2001
(2) SA 1222
(SCA).
19
Para
40.
20
Para
40.
21
Para
25.
22
Para
37.
23
Para
14.
24
Para
25 at part B of the summary of its conclusions.
25
Para
10.
26
Para
23.
27
Prisoners
serving sentences of life imprisonment increased ninefold from 1998
to 2008 (see para 51 below).
28
S
v Dzukuda, S v Tshilo
2000 (4) SA 1078
(CC) para 18.
29
Section
52(2)(b).
30
He
has one conviction for possession of dagga but the court below
correctly regarded that to be immaterial.
31
On
7 June 2000. The offence was committed on 17 September 1999.
32
‘
Ek
vergeet wanneer ek is gebore’.
33
Mr
Nkosi, who I will refer to later in this judgment.
34
Henry
L. Barnett MD with the collaboration of Arnold H. Einhorn MD
Pediatrics
14ed (Meredith) pp. 947-969.
35
‘
Ek
het nie ‘n psigometriese evalusie van die pasiënt gedoen
nie maar sy kon ʼn sinvolle gesprek met my voer en
redelik
duidelike geskiedenis gee van haar agtergrond maar ek het nie ʼn
psigometriese evaluasie gedoen.’
36
‘
Hy
het my gevang en vleeslike gemeenskap met my gehad.’
37
‘
Ek
het nooit toestemming gegee nie.’
38
‘
Hy
het my mond toegemaak.’
39
‘
Ja,
ek was kwaad en ek het besluit laat ek liewers geleentheid kry by ʼn
ander voertuig.’
40
‘
Sy
het verder gesê dat hulle het gesê hulle gaan haar
doodmaak as sy kan praat wat het gebeur in die bos.’
41
‘
Sy
het my meegedeel dat na die persoon haar klaar verkrag het sy het
opgemerk dat sy bloei en semen op haar privaatdele’.
42
‘…
hy
het by my beweer dat dit is nie mos verkragting as hy ʼn kondom
gebruik het nie. En dat as sy toegegee het dit is nie verkragting
nie, dit is hoekom hy het gepraat.’
43
‘
En
dat totdat ek vir hom sê die kind is minderjarig, hy verstaan
dit is verkeerd gewees’.
44
It
was held in
S v Jama
1998 (2) SACR 237
(N) at 239e-f that
unless admissions made in a plea-explanation are formally recorded
as admissions they may not be used against
the accused. It is not
necessary in this case to decide whether that is correct (cf
Hiemstra: Suid Afrikaanse Strafproses
6ed by Johann Kriegler
and Albert Kruger p 591).
45
Jonathan
Burchell
Principles of Criminal Law
3ed 712-3; CR Snyman
Strafreg
5ed 455;
R v K
1958 (3) SA 420
(A);
R v Z
1960 (1) SA 742
(A).
46
2002
(1) SACR 111
(SCA) para 19.
47
1971
(2) SA 591
(A) 597B-F.
48
See
R v Blom
1939 AD 188
AT 202-3.
49
‘
Any
male person who has…unlawful carnal intercourse with a girl
under the age of 16 years…shall be guilty of an
offence.’
50
‘
Was
dit met u toestemming? – Ek het nooit toestemming gegee nie.’
51
Chris
Giffard and Lukas Muntingh
The Effect of Sentencing on the Size
of the South African Prison Population
(Open Society Foundation
for South Africa) for 1998 figures and website of the Department of
Correctional Services for 2008 figures.
52
Sources
above.
53
Reference
above, column 6089.
54
Para
25 at F.
55
Sandra
Bollen, Lillian Artz, Lisa Vetten and Antoinette Louw: ‘Violence
Against Women in Metropolitan South Africa: a study
on impact and
service delivery’ Institute for Security Studies (1999)
Monograph 41.
56
The
appellant was taken into custody on 17 September 1999 and sentenced
on 8 October 2001.