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[2017] ZAKZPHC 24
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Nyuswa v S (AR785/16) [2017] ZAKZPHC 24 (30 June 2017)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR785/16
In
the matter between:
LUNGISANI
CYPRIAN
NYUSWA
Appellant
and
THE
STATE
Respondent
Coram:
Chetty J (Madondo DJP concurring)
Heard: 1 June 2017
Delivered: 30 June 2017
ORDER:
(1)
The appeal against
sentence is dismissed.
CHETTY
J:
1.
The
appellant was charged in the Regional Court in Scottburgh,
KwaZulu-Natal in terms of section 3 read with sections 1, 56(1),
57,
58, 59, 60 and 61 of the Criminal Law (Sexual Offences and Related
Matters) Act 32 of 2007, on three counts of rape.
The
complainant was a physically disabled woman, aged 21.
2.
The
appellant pleaded not guilty to the charges, contending that the
intercourse with the complainant was consensual. The
evidence
before the court
a
quo
was
that the appellant entered the house of the complainant on the night
of 25 December 2009, armed with a knife. She was alone
at home as her
mother, who cared for her, was away visiting her sister. The
appellant found the complainant asleep on her bed and
proceeded to
lift her blanket, after which he inserted his finger into the
complainant’s vagina. He covered her mouth, preventing
her from
screaming and threatened her with the knife. He thereafter inserted
his penis into her vagina, and proceeded to having
intercourse with
her without her consent. The appellant then carried the
complainant out of the house to a nearby bush where
he again
proceeded to have sexual intercourse with her without her consent.
According to the complainant, the appellant had
intercourse with her
on three occasions on this night. The State adduced evidence of DNA
analysis linking the appellant as the
person who had intercourse with
the complainant on the night in question.
3.
The court
a
quo
rejected the version of the appellant that he had a secretive love
relationship with the complainant, and that the intercourse
was
consensual. The J88 compiled by the doctor who examined the
complainant after the incident, confirmed that she was physically
disabled and that she had not engaged in sexual intercourse prior to
the incident on 25 December 2009. The photographic evidence,
handed in by consent in the court
a
quo
,
reflected that the complainant is confined to a wheel chair. The
evidence further established the complainant has little or no
mobility and is unable to get in or out of her bed unaided. It
would appear that she suffered some form of paralysis from
the waist
down.
4.
The
appellant was convicted on three counts of rape. The Court a
quo found
no
substantial and compelling circumstances to depart from the minimum
sentence prescribed by
s 51(1)
of the
Criminal
Law Amendment Act 105 of 1997
and
sentenced him to life imprisonment, with all three counts taken as
one for the purpose of sentence.
The
appellant now appeals against the sentence, exercising his automatic
right of appeal in terms of the proviso to s 309(1)(a)
of the
Criminal Procedure Act.
5.
Section
309 (1) (a) (ii) of Act 51 of 1977 provides
“
309.
Appeal
from lower court by person convicted
.—(1)
(
a
)
Subject to section 84 of the Child Justice Act, 2008 (Act No. 75 of
2008), any person convicted of any offence by any lower court
(including a person discharged after conviction) may, subject to
leave to appeal being granted in terms of section 309B or 309C,
appeal against such conviction and against any resultant sentence or
order to the High Court having jurisdiction: Provided that
if that
person was
sentenced
to imprisonment for life by a regional court
under
section 51 (1) of the Criminal Law Amendment Act, 1997 (Act No. 105
of 1997), he or she
may
note such an appeal without having to apply for leave in terms of
section 309B: Provided further that the provisions of section
302 (1)
(
b
)
shall apply in respect of a person who duly notes an appeal against a
conviction, sentence or order as contemplated in section
302 (1)
(
a
).”
6.
Although
this legislation was only passed in 2013, it is deemed to have come
into operation on 1 April 2010 (see sec 43 (2) of Act
42 of 2013).
The appellant was sentenced on 4 November 2011 and his right to
appeal accordingly falls to be governed in terms
of this section.
In
S
v Ndlovu
(unreported case of the South Gauteng High Court, Johannesburg, case
no. A593/2013, 6 June 2014) Wright J held the following
with
regard to the automatic right to appeal against life imprisonment
imposed by the regional courts:
“
In
my view it is clear that the appellant enjoys an automatic right to
appeal his sentence. It seems to me that the words such an
appeal
include an appeal against conviction, a sentence of life imprisonment
imposed by a regional magistrate and an order. They
are not limited
to an appeal against a life sentence. Absent the imposition of a life
sentence, leave is needed for any appeal.
The words sentence to
imprisonment for life are descriptive of the person seeking to
appeal. They do not qualify what is sought
to be appealed.”
7.
It
transpired that the appellant did nothing after his conviction to
process his automatic right of appeal. Only in December 2015
did the
appellant deliver an application for leave to appeal, at the same
time applying for condonation on the basis that he had
been dependent
on his family to finance the services of a private attorney to
prosecute an appeal. Despite the lengthy delay, we
are satisfied that
condonation be granted, particularly as the appeal is one which falls
within the ambit of section 309B of the
CPA. The appellant has noted
an appeal only against sentence, and has expressly abandoned an
appeal against conviction, indicating
that it was his initial
intention to plead guilty to the charges.
8.
It
must be pointed out that the record in this matter had to be
reconstructed as the original transcripts could not be obtained.
This was perhaps due to the fact that no appeal had been noted by the
appellant for more than 5 years after his conviction and
sentence.
Following his application for leave to appeal, the record was
reconstructed from the notes of the prosecutor. This reconstruction
was done on 11 July 2016 in the presence of the magistrate as well as
the accused, who confirmed the correctness of the notes read
out by
the prosecutor. The attorney who represented the appellant in his
trial could not be traced and was not available when the
prosecutor
read her notes into the record. The only parts of the
proceedings which were mechanically recorded were the rather
terse
judgment of the magistrate and the address on sentence.
9.
Rule
67(5) of the Magistrate Court Rules places an obligation on the clerk
of the court to prepare a copy of the record of the case
including a
transcript thereof as soon as leave to appeal has been granted by the
magistrate. Rule 51(3) of the High Court Rules
provides that the
ultimate responsibility for ensuring that all copies of a record on
appeal are in all respects properly before
the Court, shall rest on
the appellant or his/her legal representative, provided that where
the appellant is not represented the
responsibility rests on the
Director of Public Prosecutions.
In
S v
Chabedi
2005 (1) SACR 415
(SCA)
Brand JA said the
following”
“
[5]
On
appeal, the record of the proceedings in the trial court is of
cardinal importance. After all, that record forms the whole basis
of
the rehearing by the Court of appeal. If the record is inadequate for
a proper consideration of the appeal, it will, as a rule,
lead to the
conviction and sentence being set aside. However, the requirement is
that the record must be adequate for proper
consideration of the
appeal; not that it must be a perfect recordal of everything that was
said at the trial. As has been pointed
out in previous cases, records
of proceedings are often still kept by hand, in which event a
verbatim record is impossible
.
…
[6]
The
question whether defects in a record are so serious that a proper
consideration of the appeal is not possible, cannot be answered
in
the abstract. It depends,
inter
alia,
on the nature of the defects in the particular record and on the
nature of the issues to be decided on appeal
."
10.
In
the present matter we are concerned with an appeal against the
sentence imposed by the trial court. We have before us a
transcript of the address to the magistrate on behalf of the
appellant and the state. We are satisfied that there has been
a
proper attempt to reconstruct the record. See
S
v Zondi
2003
(2) SACR 227
(W) 245.
There
is no dissatisfaction expressed by the either counsel with the
reconstruction. For the purpose of this appeal, which lies
against
sentence, we are satisfied that the record accurately captures the
relevant factors placed before the trial magistrate.
What is not
transcribed is the magistrate’s judgment on sentence. The
prosecutor in the matter fortunately retained
a copy of her notes
from which it was apparent that the court considered the personal
circumstances of the appellant, but was not
persuaded of the
existence of substantial and compelling circumstances.
11.
I now turn
to the merits of the appeal. It was correctly submitted by both
counsel before us that sentencing is a matter for
the discretion of
the trial court. As an appeal court we
can
only interfere with the sentence imposed on the appellant if we are
convinced that the trial court committed a misdirection
or that the
sentence was shockingly inappropriate.
S
v Pieters
1987
(3) SA 717
(A)
at 728B – C;
S
v Mothibe
1977
(3) SA 823
(A)
at 830D;
S
v Pillay
1977
(4) SA 531
(A)
at 535E – F.
S
v Rabie
1975 (4) SA 855
(A);
S
v Petkar
1998 (3) SA 571
(A).
12.
As
a general rule an appellant is confined to the grounds of appeal as
set out in his notice of appeal in an application for to
leave to
appeal. On behalf of the appellant it was submitted that the
trial magistrate erred in finding that there were no
substantial and
compelling circumstances to justify the imposition of a sentence less
than the prescribed minimum sentence of life
imprisonment. It was
contended that the court
a
quo
misdirected itself by attaching insufficient weight to traditional
mitigating factors, in particular that the appellant was 28
years old
at the time of the commission of the offences; that he was the father
of two minor children and was temporarily employed
at the time of his
arrest. At the time of sentencing, the appellant’s attorney
informed the Court that the appellant’s
children were living
with relatives, casting some doubt as to whether he was responsible
for their care and upkeep. When the appellant
testified at the trial,
he admitted that he consumed alcohol on the night in question, but he
was aware of what he was doing.
In his grounds of appeal, he
belatedly changes course, asserting that he committed the offences
under the influence of alcohol.
13.
The
state on the other hand submitted that the trial court was mindful of
the personal circumstances of the appellant and took those
into
account, alongside the seriousness of the offence and the interests
of society. In addition, it was submitted that the trial
court took
into account that the complainant was a disabled person, confined to
a wheelchair, whom the appellant raped on more
than one occasion, and
while he was in possession of a knife. The appellant’s
contention in his application for leave
to appeal that his victim was
not injured in the course of the rape does not operate to his benefit
in deciding whether substantial
and compelling circumstances exist to
deviate from the prescribed sentences. This assertion loses
sight of the fact that
rape is itself a violent intrusion of the
rights of the victim.
14.
What
is also evident from the record is that appellant knew of the
complainant’s disability prior to the commission of the
offence. As such, he knew of her vulnerability as a disabled person
and preyed on her situation.
Section 51
of the
Criminal Law Amendment
Act, read
with Schedule 2 thereof provides for the imposition of life
imprisonment where the victim was raped more than once, and further
where
the victim is a physically disabled person who, due to his or her
physical disability, is rendered particularly vulnerable.
The
rape perpetrated against the complainant falls within this category
on two fronts – disability and the repetition of
the offence.
On either score, life imprisonment is prescribed in the absence of
substantial and compelling circumstances. The approach
to substantial
and compelling circumstances as set out in
S
v Malgas
2001 (1) SACR 469
(SCA) are now firmly part of our law and need not
be repeated.
15.
Our
courts have stressed the need to
send
out a clear message to potential rapists’ and to the community
that they are determined to protect the equality, dignity
and freedom
of all women. Disabled women, like the complainant, are in need of
even greater protection from the courts.
16.
To
the extent that the appellant contends that the court
a
quo
failed to have proper regard to his age, the fact that he has two
children or of his temporary employment at the time of arrest,
the
comments in
S
v Makaleni
[2010]
JOL 24878
(ECG)
are
apposite. The court there
was
concerned with the sentence to be imposed on a 21 year old offender
who had no previous convictions. He was convicted for the
rape of a
19 year old physically disabled girl, who was also mentally
handicapped. The Court at para 16 noted that
“…
.his
age and the
absence of previous convictions are matters which fall to be weighed,
along with other relevant facts, in the assessment
of sentence. The
court
a quo
did
indeed give consideration to these matters. I do not, however,
consider them to constitute substantial and compelling circumstances
justifying a deviation from the standard sentence set by the
Legislature.”
17.
In
S
v Rooi
[2012] ZAGPJHC 159, Wepner J writing for a unanimous Court,
considered an appeal against a life sentence handed down for one
count
of rape of a 15 year old girl who functioned at the mental age
of a 5 year old. In replacing the sentence with one of 18 years
the Court took into account the views expressed by Nugent JA in
S
v Vilakazi
2009 (1) SACR 552
(SCA) where the Court held at para [15] that
“
[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.’
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’”
18.
Somewhat
belatedly, and five years after his sentence, the appellant, in his
Notice of Appeal, recognises the error of his ways
and is remorseful
for his conduct and seeks to be granted a ‘second chance in
life’. By this I assume the appellant
to contend that he
is a candidate for rehabilitation and that the imposition of life
imprisonment is an inappropriate and too harsh
a sentence in the
circumstances.
It
is important to bear in mind that the mere expression of the prospect
of rehabilitation of every offender, without more, could
be the basis
for substantial and compelling reasons to impose a lesser sentence.
The views expressed by Theron AJA in
S
v Nkomo
[2007]
3 All SA 596
(SCA)
are
relevant
“
[30]
….
There
is hardly a person of whom it can be said that there is no prospect
of rehabilitation. The appellant was 29 years old
at the time
and would ordinarily not be regarded as a youthful or immature
offender. Employment in itself would not necessarily
qualify as a
substantial and compelling circumstance. In following the approach
adopted in
Malgas
of balancing societal and personal interests, I can see no room to
conclude that the totality of facts in this case are such that
they
constitute substantial and compelling circumstances. The
basis therefore suggested by Lewis JA in para [4] of her
judgment
for interfering with the sentence is unwarranted.
[31]
I cannot agree 'that the prospect of rehabilitation [of which there
is no evidence] and the fact that the appellant is
a first
offender' constitute substantial and compelling circumstances within
the meaning of that expression and are truly convincing
reasons for
departing from the minimum sentence ordained by the Legislature.
Given the prevalence of rape in our society the brutality
of this
particular rape, even in the absence of a directive from
Parliament, life imprisonment would not, in my view, have
been an
inappropriate sentence
.”
19.
In
S
v Mahlangu and others
2012
(2) SACR 373
(GSJ) at 377G – 378A Satchwell J said the
following of the approach to be adopted where the prescribed minimum
sentence is
prescribed by the legislature:
“
In
S v Malgas
2001
(1) SACR 469
(SCA)
(2001 (2) SA 1222
;
[2001] 3 All SA 220)
the
judgment, to which our courts always refer concerning minimum
sentences and substantial and compelling circumstances,
had much to
say about the approach to be taken by the court. Firstly the
legislature, in enacting the Act, aimed at ensuring a
'severe,
standardised and consistent response from the courts'. Secondly, the
emphasis in sentencing has shifted 'to the objective
gravity of the
type of crime'. Thirdly, substantial and compelling
circumstances means 'truly convincing reasons'. There must
not be
marginal differences in personal circumstances or degrees of
involvement. At the end of the day, 'the ultimate cumulative
impact
of the circumstances must be such as to justify a departure'.
Accordingly,
what I, as a sentencing court, am obliged to do is to take into
account all the relevant factors and look at their
combined impact to
see whether they are convincing enough to justify a deviation from
the prescribed minimum sentence. In favour
of the accused are their
youth and the fact that at least two of them have been in custody for
a lengthy period. Against the accused
is this extremely brutal and
vicious murder I am of the view that there are not substantial and
compelling circumstances to justify
a lesser sentence of
imprisonment
.”
20.
Similarly,
in
Vilakazi
(
supra
)
the court noted that i
n
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…”.
21.
In
S
v De Jager and another
1965 (2) SA 616
(A) at 628H-629B, Holmes JA made the following
observation
:
‘
It would
not appear to be sufficiently recognised that a Court of appeal does
not have a general discretion to ameliorate the sentences
of trial
Courts. The matter is governed by principle. It is the trial Court
which has the discretion, and a Court of appeal cannot
interfere
unless the discretion was not judicially exercised, that is to say
unless the sentence is vitiated by irregularity
or misdirection
or is so severe that no reasonable court could have imposed it. In
this latter regard an accepted test is whether
the sentence induces a
sense of shock, that is to say if there is a striking disparity
between the sentence passed and that which
the Court of appeal would
have imposed. It should therefore be recognised that appellate
jurisdiction to interfere with punishment is
not discretionary
but, on the contrary, is very limited
.’
22.
Rape is a
very serious offence with profound consequences of emotional and
psychological trauma for its victims, who often never
fully recover
from their ordeal, stripping them of their dignity. The complainant
in this matter is a disabled person, confined
to her wheel-chair.
The legislature has given proper recognition to seriousness of rape,
and particularly so where it is
committed against those who are more
vulnerable than others. In such instances, the offence of rape
attracts life imprisonment,
unless substantial and compelling
circumstances exist. I am satisfied that the trial court correctly
considered
all
the personal circumstances of the appellant and correctly concluded
that the prescribed sentence of life imprisonment was not
only
appropriate, but proportionate to the particular offences. I can find
no
misdirection
in the courts reasoning.
I
have no sense of ‘unease’
that
an injustice would be done if the prescribed sentence of life
imprisonment is affirmed.
Order
23.
Accordingly
I propose the following order:
The
appeal against sentence is dismissed.
_______________
CHETTY
J
I
agree,
_______________
MADONDO
DJP
Appearance
Appeal
heard on: 01 June 2017
Counsel
for the appellant: Mr SB Madondo
Instructed
by: Durban Justice Centre
Counsel
for the respondent: ES Magwaza
Instructed
by: The Director of Public Prosecutions
Judgment
handed down on: 30 June 2017