Summary of Judgment

1. Introduction

This matter concerned a criminal appeal in the High Court of South Africa, Free State Division, Bloemfontein. The appellant, Daniel Patrick Thamae, appealed against sentence, with the State as respondent.

The appellant had been convicted and sentenced in the court a quo on two counts of housebreaking with intent to rape and rape (counts 1 and 3) and a further count of rape (count 2), all under section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. The appeal, as framed by the notice of appeal, was directed only at the sentences imposed on counts 1 and 3.

Although there was no appeal against the conviction or sentence on count 2, the appeal court, after reading the record, expressed reservations about the correctness of the conviction on that count and invited counsel to address it. However, the court ultimately declined to interfere with count 2 because no formal appeal was before it in relation to that count.

The general subject-matter of the dispute was the proper application of the minimum sentence regime under the Criminal Law Amendment Act 105 of 1997, specifically whether a court that finds substantial and compelling circumstances may nevertheless impose a sentence exceeding the prescribed minimum sentence.

2. Material Facts

It was common cause that the appellant was 26 years old at the time of sentencing, had completed Grade 8, lived with his girlfriend, and had a young child (under two years old) who lived with the child’s mother and whom the appellant was not maintaining. He lived with his grandparents, his mother, and four siblings, in circumstances where the grandparents received old-age pensions and a sibling received a disability grant.

The offences for which the appellant was convicted were treated as very serious. In relation to the commission of the offences (as relevant to sentence), the court emphasised that in both incidents the victims were asleep in their homes when the appellant violated their privacy and raped them. The court treated the setting—victims being attacked in the perceived safety of their homes—as an aggravating feature.

For purposes of the appeal, a pivotal feature of the procedural and factual landscape was that, on the appeal court’s reading of the record (particularly the leave to appeal proceedings), the court a quo had found substantial and compelling circumstances justifying a departure from the prescribed minimum sentence on counts 1 and 3. At the same time, the appeal court noted that the court a quo did not record the factors constituting those substantial and compelling circumstances, and nevertheless imposed sentences on counts 1 and 3 that were far in excess of the prescribed minimum.

The State accepted, on appeal, that substantial and compelling circumstances existed. In the absence of evidence or submissions to the contrary, the appeal court proceeded on the basis that substantial and compelling circumstances were indeed present, despite their not being properly recorded by the sentencing court.

3. Legal Issues

The central legal question was whether, under the minimum sentence framework in the Criminal Law Amendment Act 105 of 1997, a sentencing court that finds substantial and compelling circumstances may nonetheless impose a sentence that exceeds the prescribed minimum sentence.

Closely connected to that was whether the court a quo committed a material misdirection by (a) failing to enter on the record the substantial and compelling circumstances as contemplated by section 51(3)(a) and (b) imposing sentences on counts 1 and 3 that were above the minimum, despite having found substantial and compelling circumstances.

The dispute primarily concerned the application of law to fact, namely the legal consequences that follow once a court is satisfied that substantial and compelling circumstances exist, and whether the resulting sentencing discretion permits an upward departure beyond the minimum sentence. It also implicated the appellate standard for interference with sentence, which entails a value-laden assessment of whether the sentencing discretion was properly exercised.

A further issue arose tangentially, but was not determined on the merits: whether the appeal court should mero motu interfere with the conviction and sentence on count 2 notwithstanding the absence of an appeal against that count.

4. Court’s Reasoning

The court approached the appeal mindful of the established principle that sentencing lies primarily within the discretion of the trial court, and that appellate interference is limited. Relying on S v Malgas 2001 (1) SACR 409 (SCA), the court reiterated that interference is warranted only where it is convincingly shown that the discretion was not properly exercised.

The court then examined the statutory framework. It referred to section 51(2)(b)(i) of the Criminal Law Amendment Act 105 of 1997, which prescribes a minimum sentence of 10 years’ imprisonment for a first offender convicted of an offence referred to in Part III of Schedule 2, subject to section 51(3). The court then relied on section 51(3)(a), which provides that where substantial and compelling circumstances exist, the court must enter those circumstances on the record and impose a lesser sentence than the prescribed minimum.

On the court’s reading, section 51(3)(a) imposed two peremptory obligations once substantial and compelling circumstances are found. First, the sentencing court must record those circumstances. Second, having found such circumstances, the court must impose a lesser sentence than the minimum sentence. The appeal court further reasoned that, once a sentencing court accepts that substantial and compelling circumstances exist, it is obliged to depart downwards from the minimum sentence; it therefore “has no choice” but to impose a sentence below the prescribed minimum. From this the court reasoned that it “stands to reason” that a court cannot both find substantial and compelling circumstances and then impose a sentence higher than the prescribed minimum.

The court observed that the court a quo did not record the substantial and compelling circumstances it had found, making it difficult to identify the factors supporting that conclusion. While the judgment referred to authority suggesting that a failure to record reasons for imposing a sentence above the minimum does not necessarily constitute a material misdirection, the appeal court treated the omission to record substantial and compelling circumstances (in circumstances where such a finding had been made) as inconsistent with the statutory injunction in section 51(3)(a) and with the general duty to keep a proper record and furnish reasons for decisions.

Given the State’s acceptance that substantial and compelling circumstances existed, and in the absence of contrary material, the court proceeded on the basis that such circumstances were present. The critical misdirection, in the appeal court’s view, lay in the court a quo’s imposition of sentences “far exceeding” the prescribed minimum despite having found substantial and compelling circumstances. That misdirection entitled the appeal court to interfere.

Turning to the appropriate substituted sentence, the court applied conventional sentencing principles, including the Zinn triad from S v Zinn 1969 (2) SA 537 (A): the seriousness of the offence, the interests of society, and the personal circumstances of the offender. It also relied on S v SMM 2013 (2) SACR 292 (SCA) for the proposition that sentence must be individualised, fitting the crime, the offender, and the circumstances.

The court emphasised the gravity of rape, referencing S v Ncheche [2005] ZAGPHC 21; 2005 (2) SACR 386 (W) on the seriousness of the offence and its impact, including the broader social context and the vulnerability of victims. At the same time, the court stated that mercy remains an element of punishment and must be taken into account. It highlighted as aggravating that the victims were attacked while asleep in their homes. The court also referred to the preamble to the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, which acknowledges the significant societal harm caused by sexual offences, and reasoned that sentences should serve deterrent purposes.

In relation to count 2, the court recorded that it had invited argument because it was not entirely satisfied, on reading the record, that the appellant was guilty. However, it declined to interfere because the appellant had not appealed that conviction or sentence, and the court had not called for argument on whether it was appropriate to deal with the matter mero motu in the absence of a formally lodged appeal. The court considered that the issue could be dealt with by another court in the event of a further appeal properly before it.

Finally, the court considered concurrency. It reasoned that if the sentences were not structured to run concurrently, the appellant would face an effective term of 31 years’ imprisonment, which the court considered inappropriately and unnecessarily long. The court therefore crafted an order making part of the substituted sentences concurrent with the sentence on count 2, seeking to reflect both mercy and the seriousness of the offences.

5. Outcome and Relief

The appeal against sentence on counts 1 and 3 was upheld. The sentences imposed by the court a quo on counts 1 and 3 were set aside and replaced with 8 years’ imprisonment on each of counts 1 and 3.

The court ordered that 5 years of each of the sentences on counts 1 and 3 would run concurrently with the 15 years’ imprisonment imposed on count 2. The result was an effective sentence of 21 years’ imprisonment.

The substituted sentences were antedated to 28 January 2015. The judgment did not record any specific costs order.

Cases Cited

S v Malgas 2001 (1) SACR 409 (SCA).

S v Zinn 1969 (2) SA 537 (A).

S v SMM 2013 (2) SACR 292 (SCA).

S v Ncheche [2005] ZAGPHC 21; 2005 (2) SACR 386 (W).

Dial v S (A141/2012) [2014] ZAFSHC 79 (12 June 2014).

Isaac Kukutsi Metsing v The State CA 54/2014 (North West High Court) (unreported, as described in the judgment).

Legislation Cited

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, section 3, and the preamble.

Criminal Law Amendment Act 105 of 1997, section 51(2)(b)(i) and section 51(3)(a), read with Part III of Schedule 2.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that where a sentencing court finds substantial and compelling circumstances under section 51(3)(a) of the Criminal Law Amendment Act 105 of 1997, it is obliged to impose a sentence less than the prescribed minimum sentence, and it committed a misdirection by imposing sentences on counts 1 and 3 that substantially exceeded the prescribed minimum notwithstanding such a finding.

The court further held that it would not interfere with the conviction and sentence on count 2 because no appeal had been noted in respect of that count, notwithstanding the appeal court’s expressed reservations after considering the record.

The appeal was upheld to the extent that the sentences on counts 1 and 3 were replaced with 8 years’ imprisonment each, with partial concurrency ordered to produce an effective term of 21 years’ imprisonment, antedated to 28 January 2015.

LEGAL PRINCIPLES

The imposition of sentence is primarily within the discretion of the trial court, and an appellate court will interfere only where that discretion was not properly exercised, consistent with the approach articulated in S v Malgas 2001 (1) SACR 409 (SCA).

Under the minimum sentence regime in the Criminal Law Amendment Act 105 of 1997, once a court is satisfied that substantial and compelling circumstances exist, section 51(3)(a) requires that those circumstances be entered on the record and that the court impose a lesser sentence than the prescribed minimum.

Sentencing remains an individualised enquiry requiring a balancing of the seriousness of the offence, the interests of society, and the personal circumstances of the offender, consistent with S v Zinn 1969 (2) SA 537 (A) and S v SMM 2013 (2) SACR 292 (SCA), while recognising the seriousness of rape and the need for deterrent sentencing as discussed in S v Ncheche [2005] ZAGPHC 21; 2005 (2) SACR 386 (W).

In structuring multiple sentences, the court may order concurrency to avoid an effective sentence that is unduly lengthy in the circumstances, while still reflecting the seriousness of the offences.