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[2016] ZANCHC 5
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H.M.A v S (42/2015) [2016] ZANCHC 5 (15 April 2016)
SAFLII
Note:
Certain personal/private
details of parties or witnesses have been redacted from this
document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
NO
Circulate
to Judges: YES
Circulate
to Magistrates: NO
Circulate
to Regional Magistrates: NO
CASE
NO: 42/2015
DATE
DELIVERED: 15/04/2016
In
the matter between:
H.
M. A.
and
THE
STATE
Coram:
Olivier
J
et
Lever AJ
JUDGMENT
ON REVIEW
Olivier
J:
[1.]
The
accused was convicted of rape
[1]
and was sentenced to 6 years imprisonment. It was ordered that
he serve his sentence in the Bosasa Youth and Child Care Centre
in De
Aar until he reached the age of 21 years, when the court would, upon
receipt of a report from the centre, consider whether
further
imprisonment would be appropriate.
[2.]
This
resulted in the accused being deemed unfit to possess a firearm
[2]
and the Regional Magistrate did not order otherwise.
[3.]
The
accused had pleaded guilty to having raped a 7 year old girl.
The two of them had been walking together when the accused,
who had
been 15 years old at the time, suggested to the complainant that they
have intercourse. She agreed, undressed and
they had
intercourse. Afterwards both of them got dressed and when the
girl complained of pain the accused accompanied her
home.
[4.]
The
complainant suffered a genital laceration that was sutured in
theatre. There was no evidence of lasting physical or
psychological
effects, although the complainant’s family
experienced the events as very traumatic. It also appeared that
the complainant
was being ridiculed about the incident.
[5.]
The
accused was 17 years old at the time of the trial. He was
attending school and was in grade 9. Even though the accused
appeared “
to
have low intellectual abilities
”
[3]
,
his academic progress had been average. According to the social
worker the accused was, even at the age of 17 years, in
the
“
adolescent
stage of development
”,
which is according to the social worker “
often
associated with the search for identity
”.
[6.]
According
to the report of the social worker the accused was “
aware
of the harm he
(had)
done
to the victim
”,
felt sorry for her and whenever he saw her he wanted to cry.
These observations are difficult to reconcile with the
social
worker’s remark that the accused showed little concern for the
impact that his deed had on others.
[7.]
The
accused was a first offender. He told the social worker that
the delay in the case caused him a lot of stress and that
he wanted
it to be finalised.
[8.]
Despite
financial constraints and living in an area of Douglas where social
problems were common, the accused’s parents provided
him with a
stable upbringing. The social worker described him as “
attached
with his siblings
”
[4]
and as part of a close-knit family. He had a very strong bond
with his parents. The accused had never before “
manifested
behavioral
problems
”
and according to the social worker the accused “
easily
accepts to be disciplined
”.
[9.]
The
accused and his parents were distressed at the prospect of him having
to leave Douglas to go to the Bosasa Child and Youth Care
Centre in
De Aar
[5]
.
[10.]
The
Regional Magistrate has conceded that the sentence, as formulated, is
not a competent sentence.
[11.]
Section
76(1) of the
Child
Justice Act
[6]
(the “
Act
”)
provides for a sentence of “
compulsory
residence
”
in a child and youth care centre
[7]
;
not for a sentence of imprisonment to be served at such a centre.
That a sentence of imprisonment is to be distinguished
from a
sentence of compulsory residence at such a centre is evident from the
provisions of section 76(3)(a) of the Act, which provides
that a
sentence of imprisonment, to be served after completion of the period
of compulsory residence in a child and youth care
centre, may be
imposed “
in
addition to
”
a sentence of compulsory residence in such a centre.
[12.]
Such
additional imprisonment may only be imposed “
if
substantial and compelling reasons exist
”
[8]
which would justify it, and then “
only
… as a measure of last resort and for the shortest appropriate
period of time
”
[9]
.
Even then the need for such an additional sentence of imprisonment to
be served will, in terms of subsections (b) and (c)
of section 76(3)
of the Act, have to be reconsidered upon completion of the period of
compulsory residence at the centre.
[13.]
The
maximum period of compulsory residence (in a child and youth care
centre) that may be imposed is 5 years or until the child
reaches the
age of 21 years, whichever occurs first
[10]
.
The Regional Magistrate has stated that he intended the accused to
remain in the centre until the age of 21 years, but also
to impose an
additional sentence of 2 years imprisonment in view of the
seriousness of the offence.
[14.]
The
problem is that it does not appear from the judgment on sentence, or
from the Regional Magistrate’s subsequent comments,
whether the
Regional Magistrate was aware of the requirement of substantial and
compelling reasons for such an additional sentence
of imprisonment
and, if so, what the Regional Magistrate considered to be such
reasons.
[15.]
Much
emphasis was placed on the seriousness of the offence. It goes
without saying that sexual intercourse with a 7 year old
girl is a
serious offence, but the particular circumstances nevertheless have
to be kept in mind. The complainant was not
subjected by force
or threat. She “
agreed
”
to a suggestion made by a particularly small built 15 year old
friend.
[16.]
Although
mention was made of the fact that the accused was at the time of
sentence still a child who had to be dealt with in accordance
with
the provisions of the Act, no particular consideration appears to
have been given to the fact that the accused had actually
been only
15 years old at the time of the offence
[11]
.
[17.]
That
he had no previous convictions and had pleaded guilty were only
mentioned in passing. No mention at all was made of the
issue
of remorse, or of the delay in the prosecution and the resulting
“
mental
anguish
”
[12]
and “
suspense
”
[13]
for the accused
[14]
.
[18.]
Factors
like the accused’s limited intellectual capacity and his
particularly small physique appear not to have been considered.
[19.]
It
is against this background that the Regional Magistrate should have
considered whether there nevertheless existed substantial
and
compelling reasons for an additional sentence of imprisonment.
In doing so the Regional Magistrate would have had to
deal with the
fact that the social worker had recommended only compulsory residence
as a sentence and had advised against the imposition
of imprisonment.
[20.]
In
my view the sentence should therefore be set aside and the matter
remitted to the Regional Magistrate to impose sentence afresh,
keeping in mind what has been said above, as well as cases like
S
v Gqamana
[15]
,
S v Fhetani
[16]
,
S
v TLT
[17]
and
Johannes
v S
[18]
,
to the extent that they may be comparable, and any period already
spent in the centre by the accused.
[21.]
Should
a sentence be imposed which would again result in the accused being
deemed unfit to possess a firearm, the Regional Magistrate
must give
the accused’s legal representative the opportunity to address
the court on the issue of whether the court should
determine
otherwise
[19]
. If such a
sentence is not imposed the Regional Magistrate must “
must
enquire and determine whether
(the
accused)
is
unfit to possess a firearm
”
[20]
[22.]
In
my view the conviction is in accordance with justice and the
following orders are therefore made:
1.
THE
CONVICTION IS CONFIRMED.
2.
THE
SENTENCE IS SET ASIDE AND THE MATTER IS REMITTED TO THE MAGISTRATE TO
SENTENCE AFRESH, TAKING INTO ACCOUNT THE PERIOD ALREADY
SPENT BY THE
ACCUSED IN THE CHILD AND YOUTH CARE CENTRE.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
agree.
______________________
LEVER
L G
ACTING
JUDGE
NORTHERN
CAPE DIVISION
[1]
In contravention of the provisions of section 3
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act
, 32 of 2007.
[2]
In terms of the provisions of section 103(1)(g)
the
Firearms Control Act
, 60 of 2000.
[3]
According to a report of a social worker.
[4]
Most of whom were still living with the accused
and his parents in Douglas.
[5]
There is no child and youth care centre in
Douglas.
[6]
75 of 2008.
[7]
As envisaged in section 191 of the Children’s
Act, 38 of 2005
.
[8]
Section 76(3)(a) of the Act.
[9]
Sections 77(1)(b) and 69(1)(e) of the Act.
[10]
Section 76(2) of the Act.
[11]
Compare
S v Kwalase
2000 (2) SACR 135
(C) at 141i-142a
[12]
Michele and Another v S
,
[2010] 1 All SA 446
(SCA), para [13]
[13]
S v Roberts
,
2000 (2) SACR 522
(A) at 529D
[14]
Compare also
Hendricks
v S
, [2010] 4 All SA 184 (SCA)
[15]
2001 (2) SACR 28 (C)
[16]
2007 (2) SACR 590 (SCA)
[17]
2013 JDR 1482 (GSJ)
[18]
[2013] 4 All SA 483 (WCC)
[19]
See section 103(1) of the
Firearms
Control Act
.
[20]
Section 103(2) of the
Firearms
Control Act
.