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[2016] ZAFSHC 219
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S v S (A125/2016) [2016] ZAFSHC 219 (4 October 2016)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A125/2016
In
the matter between:
M.
P. S.
Appellant
and
THE
STATE
Respondent
CORAM:
MOLEMELA, JP
et
CHESIWE, AJ
HEARD
ON:
22 AUGUST 2016
JUDGMENT
BY:
CHESIWE, AJ
DELIVERED
ON:
4
OCTOBER 2016
[1]
The appellant in this matter was convicted in the Regional Court at
Welkom on a charge of rape as contemplated in section 3
of the
Criminal Law Amendment Act 51 contravening the provisions of Section
3 read with Sections 1, 56(1), 56A as amended, 50(2)(a)
and 50(2)(b)
57, 58, 59, 60 and 61 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, Act 32 of 2007, Further
read with the
provisions of Section 94, 256 and 261 of the Criminal Procedure Act,
51/1977. Further read with the provisions
of Section 51(1)
*51(2)(b) of the
Criminal Law Amendment Act 105 of 1997
, as amended,
Furthermore read with
Section 1
,
2
and
120
of the Children’s
Act, 38/2005. The appellant at the time of the offence was 17
years old and the complainant was 16
years old. The trial court
sentenced the appellant to twenty (20) years imprisonment.
[2]
Leave to appeal lies only against the sentence. Adv Tshabalala
conceded, correctly so, that he had erroneously stated
in his heads
of argument that leave to appeal was against conviction and sentence.
[3]
At the trial, the appellant was legally represented by Mrs Maritz
from the Legal Aid Board. Before his plea the court
specifically advised him on the implications of
section 51(1)
read
with
Part 1
of the Schedule 2 of the Act, and the relevant minimum
sentence of life imprisonment being applicable if he were to be found
guilty
as charged. The appellant pleaded not guilty and denied
the allegation against him. In his plea explanation he raised
an alibi, stating that he was at home with his mother and his
girlfriend on the night of 16 December 2009. Because of the
complainant’s age and the nature of the offence, the court room
was cleared and proceedings were held in camera.
[4]
The appellant appeals on the grounds that the trial court erred on
the following grounds:
That
state proved the guilt of the appellant beyond reasonable doubt; that
the complainant and the state witnesses, Aaron T. corroborated
each
other; that the contradiction between the complainant and the state
witness, Aaron T. and the J88 are not material contradictions;
that
the sentence imposed by the trial court is unreasonably excessive and
also that he was only seventeen at the time the offence
was
committed.
My
learned sister, Molemela JP, brought it to the attention of the legal
representative of the appellant that the heads of argument
were not
sufficiently detailed and thus are not helpful to the court as the
heads did not address all the issues of the appeal.
Adv.
Tshabalala submitted that he stands by his heads of argument and
argued that the basis of the appeal to tamper with the sentence
was
largely because of the appellant’s age. He however
conceded that 20 years imprisonment under the circumstances
the
offence was committed, in this instance is appropriate.
Adv.
Giorgi on behalf of the respondent submitted in the heads of argument
and oral argument that the trial court did not misdirect
itself and
that the appeal court should not tamper with the sentence, as it is
appropriate for the crime committed. She argued
further that
the court already took into account the appellants circumstances:
that he was 17 years at the time of the offence,
he lives only
with his mother, is unmarried, had no children, he completed only
grade seven at school and he is a first offender.
[5]
The facts of the matter are summarised as follows: the complainant
testified that on the 16 December 2009, she and a friend,
M. walked
to the shops, when one K. approached them and started to pull her by
the hand to a certain shack. K. was carrying
a big knife. The
complainant’s friend was able to run away. K.’s
friends followed him and the complainant closely
to the shack.
The complainant testified that she knows K.’s friends and she
named them as S. (the appellant), M., T.
M. and N..
She said that she knew them from school and that they lived all in
the same area. When they
got inside the shack, the complainant
was instructed by K. to undress and lie down on the floor on her
back. K. raped her
first, followed by the appellant, T., M. and
M..
[6]
The complainant testified that she was raped by seven boys. The state
witness, T., who was a co-perpetrator testified that five
boys
including, the appellant, participated in the rape. After they
had all raped her, K. took the complainant to another
house to rape
her a second time. The complainant testified that K.
forced her to accompany him to Stompie’s place.
Stompie
intervened when he noted that K. had pulled the complainant
aggresively. Stompie and K. had an argument and
K. ran away. The
complainant immediately told Stompie that K., S. and their friends
had raped her.
The
complainant stayed with Stompie till the morning and went to report
the matter the next day at the police station.
[7]
The complainant’s case was corroborated and bolstered by the
state witness, T., who pointed out and placed the appellant
on the
scene on the night the offence was committed. T. testified that
he knows the appellant very well. It cannot
be an issue of
mistaken identity as they went to initiation school together.
T. pleaded guilty to the same offence and informed
the court that the
other four also pleaded guilty to the same offence. The
testimony of Mabel Mkhatatsi, a registered nurse,
shows that she
medically examined the complainant. She testified that though
there were no visible injuries, she noted a
whitish discharge,
semen-like on the complainant’s vagina. She explained
that ejaculation into the vagina causes lubrication
and thus it is
possible for a victim not to have physical injuries despite being
sixteen years old. She indicated on the
J88 that the
complainant was raped by approximately six unknown men. This issue
was not taken further by the defence at the trial.
[8]
As I pointed out the fact that the complainant was 16 years and was
raped by a gang of boys, and one boy K. raped her twice,
this brought
the application of the
Criminal Law Amendment Act into
operation.
The authoritative case in this application is
S
v Malgas
[1]
.
In line with this decision the sentencing court should not depart
from the prescribed minimum sentence simply because of flimsy
reasons
[2]
. On the other
hand the prescribed minimum sentence should not be “shocking”,
“startling” or “disturbingly
inappropriate”
[3]
.
[9]
It is trite that the notion “compelling and substantial
circumstances” differs from one case to another
[4]
,
as evidenced from the decision of
S
v Malgas
[5]
.
When a trial court is faced with a case in which a minimum sentence
is prescribed, the sentencing court must still have
regard to all the
traditional factors taken into account when considering sentence
[6]
.
[10]
The trial court in this regard took into consideration the following
factors. Appellant was 17 years at the time of the offence,
he
resides with his mother, is unmarried, has no children, has no proven
previous convictions and is a first offender with regard
to the
rape. The trial court took into consideration the appellant’s
circumstances and deviated from the prescribed
minimum sentence of
life. Du Plessis J in
S
v GN
[7]
said:
“
Accordingly,
in its quest to do justice, a court will more readily impose a lesser
sentence where the prescribed minimum sentence
is imprisonment for
life. That is where the prescribed minimum is life
imprisonment, a court will more readily conclude that
the
circumstances peculiar to the case are substantial and compelling, to
the extent that justice request a lesser sentence than
life.”
[8]
[11]
S
v Matyityi
[9]
informs us to be victim-centred when considering an appropriate
sentence. A serious aggravating factor is the fact that the
victim had to relocate because of the trauma of the incident, which
was worsened by the threats that were directed at her.
[12]
It is indeed so that, imprisonment must be a last resort when the
offender is youthful
[10]
.
At the end of the day, every case must be judged on its own facts.
A serious factor is the fact that gang-related
violence has become
rampant in the court’s area of jurisdiction and that it is
unfortunately rampant among the youth.
Another aggravating
factor is the fact that the appellant showed no remorse whatsoever
and has clearly not taken any responsibility
for his actions.
All these aggravating factors weigh heavily on the consideration of
an appropriate sentence. I am
of the view that given all these
aggravating circumstances, a relatively lengthy term of imprisonment
is the only appropriate sentence
for the appellant.
[13]
In order to determine whether in a particular case substantial and
compelling circumstances exists, a court will follow the
guidelines
as set out in
S
v Malgas
[11]
and consider the trite triad of factors propounded in
S
v Zinn
[12]
that are relevant to the sentence, the crime, the criminal and the
interests of society
[13]
.
[14]
A fine balance needs to be struck between society’s needs to
punish crime whilst not overlooking the right and interests
of a
youthful offender, to be accorded an opportunity to be rehabilitated
in suitable and appropriate cases
[14]
.
It is trite that a teenager is
prima
facie
to
be regarded as immature and that the youthfulness of an offender will
be invariably a mitigating factor. In general a sentencing
court will
not punish an immature young person as severely as it would an
adult
[15]
.
[15]
In concluding that compelling and substantial circumstances warrant
deviation from the prescribed sentence. The trial
court took
cognisance of the fact that the appellant was 17 years at the time of
the offence and that he has no previous conviction
and he is a first
offender, and has been in custody during the duration of the trial.
These are weighty factors, which cumulatively
must contribute greatly
to the appellants benefit as substantial and compelling circumstances
justifying the imposition of a sentence
lesser than the minimum
prescribed sentenced.
[16]
[16]
The trial court already deviated from the prescribed sentence. I
agree with Adv. Giorgi on behalf of the respondent that the
trial
court did not misdirect itself and that the appeal court should not
tamper with the sentence, as it is appropriate for the
crime
committed. As stated in
S
v SMM
2013 (2)
SACR 292
(SCA)
“
Rape
is undeniably a degrading, humiliating and brutal invasion of a
person’s most intimate, private space, the very act itself,
even absent of any accompanying violent assault inflicted by the
perpetrator, is a violent and traumatic infringement
…
[17]
”
[17]
The invasive and humiliating nature of rape, the discrimination
inherent therein and the unfortunate prevalence thereof in
society
demands protection against this kind of conduct, especially if the
complainant is raped by a gang, this makes it the worst
kind of
brutality against any human being
[18]
.
In
F
v Minister of Safety and Security
2012 (1) SA 536
(CC)
,
the Constitutional Court stated that:
“
It
is deeply sad that a few of our women and girls dare to venture into
public spaces alone, especially when it is dark and deserted.
If official statistics are anything to go by, incidents of sexual
violence against women occur with an alarming regularity.
[19]
”
[18]
Rape is a very serious offence, especially gang rape. I align myself
with the remarks of Goldstein J in
S
v Ncheche
2005(2) SACR 386(W):
“
Rape
is an appalling and utterly outrages crime, gaining nothing of any
worth for the perpetrators and inflicting terrible and horrific
suffering and outrage on the complainant and her family.
[20]
”
[19]
The impact that the rape had on the complainant is an aggravating
factor. The complainant had to relocate and change
schools as
the friends of the appellant threatened her. After enduring the
brutality of a gang rape she had to relocate,
thus separating her
from her support structure.
“
It
has affected me a lot and in a negative way because I lost trust
especially to male persons and I also had to leave school and
move
away from there because some of their friends were busy threatening
me.”
[20]
It is trite that the appeal court may interfere with the sentence
imposed by a trial court if
inter
alia
there is a disparity in the sentence imposed or where the trial court
failed to exercise its discretion properly or exercised it
unreasonably or where there is misdirection by the court
[21]
.
I am of the view that the trial court came to an informed and
processed decision on whether compelling and substantial
circumstances
were indeed such that it should deviate from the
prescribed sentence.
[21]
The legislature has deliberately left it to the courts to decide
whether circumstances of any particular case call for a departure
from the prescribed sentence
[22]
.
I am of the view that taking into consideration the principles set
out in Malgas
[23]
, the
sentence imposed for the offence committed is reasonable and is not
harsh and inappropriate nor did the trial court misdirect
itself in
any manner.
[22]
It is trite that a court of appeal should not replace the sentence
imposed by the trial court with its own, unless it is justified
to do
so
[24]
. As indicated above, I
see no reason to interfere and replace the sentence imposed.
[23]
In view of the aforesaid I am not persuaded that the court
a
quo
misdirected
itself or that the sentence is shockingly inappropriate.
Therefore there is no justification to tamper with it.
In the
circumstances I make the following order.
ORDER
[23.1] The appeal
against sentence is dismissed.
[23.2]
The sentence imposed by the trial court is confirmed.
______________
S.
CHESIWE, AJ
I
concur
________
_________
M.
MOLEMELA, JP
On
behalf of Appellant: Adv.
Tshababala
Instructed
by:
Legal
Aid Board
Bloemfontein
On
behalf of Respondent: Adv. Giorgi
Instructed
by:
Office
of the Director of Public Prosecutions
Bloemfontein
[1]
S v
Malgas
2001
(1) SACR 469 (SCA).
[2]
Ibid
at
481j–482e
.
See also
S
v Price and Another
2003 (2)
SACR 551
(SCA)
.
[3]
S v GN
2010 (1)
SACR 93
(T) at 95j - 96a.
[4]
Mofokeng v
S
[2015] JOL 34851
(FB). See also
S
v Abrahams
2002
(1) SACR 116 (SCA).
[5]
S v
Malgas
above
[6]
S v
Abrahams
above
and
S
v Nkomo
2007 (2) SACR 198 (SCA).
[7]
S v GN
above
[8]
Ibid at
97f-g.
[9]
S
[zRPz]
v
Matyityi
2011
(1) SACR 40
(SCA).
[10]
S v B
2006 (1) SACR 311
(SCA) para [19] – [20].
[11]
S v
Malgas
above
at 482c
[12]
S v Zinn
1969 (2) SA
537 (A)
[13]
Ibid at
540g
[14]
S v
Nkosi
2002
(1) SACR 135
(W)
at
143b. See
also
S
v Phulwane and Others
2003 1 SACR
631 (T).
[15]
S v
Matyityi
2011
(1) SACR 40
(SCA) para [14]
[16]
S v
Malgas
above.
[17]
S v SMM
2013 (2)
SACR 292
(SCA) para [17] and
S
v Uithaler
2015
(1) SACR 174
(WCC) para [10] – [12]
[18]
S v
Mabaso
2014
(1) SACR 299(KZP)
para [87]
[19]
F v
Minister of Safety and Security
2012 (1) SA
536
(CC) para [56]
[20]
S
v Ncheche
2005(2)
SACR 386(W) para 35
[21]
S v Malgas
above para [12]-[13]. See also S v Salzwedel and Others1999 (2) SACR
586 (SCA) and S v Sadler 2000 (1) SACR 331 (SCA).
[22]
S v Dodo
2001(3) SA 382 (CC) para [11]. See also S v Malgas,
2001 (2) SA 1222
(SCA).
[23]
S v
Malgas
above.
[24]
S v
Obisi
2005
(2) SACR 350
(W) para [7]