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[2016] ZAECMHC 42
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Mgandela v S (129/08) [2016] ZAECMHC 42 (30 August 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
Not
Reportable
CASE
NO: 129/08
Heard
on: 29/07/16
Delivered
on: 30/08/16
In
the matter between:
SITHEMBELE
MGANDELA Appellant
and
THE
STATE Respondent
Coram
: Nhlangulela
DJP; Dawood
J; Griffiths J
JUDGMENT
NHLANGULELA
DJP:
[1]
The appellant was arraigned in this court on a charge of raping a 7
year old girl, of which he was convicted and sentenced to
undergo
life imprisonment. He now appeals against sentence, with leave
to do so having been granted by a single judge.
[2]
The appellant was 47 years old at the time of committing rape.
The facts proved against him were briefly that in the morning
of 12
August 2006 and at Slovo Park, Mthatha, G. D., the complaint, and her
elder sister, S., left their home in company of the
appellant to
fetch traditional beer from the house of the appellant on behalf of
her father. Upon reaching the bedroom of the appellant
he poured beer
into a five litre container, and pretending to hand over the
container to S., but instead grabbed hold of her arm.
However,
S. freed herself from the appellant’s grip and ran out of the
bedroom, leaving the complainant inside together with
the appellant.
When she reached the exit gate of the appellant’s premises it
dawned in her that the complainant was
still in the bedroom together
with the appellant. She returned to the bedroom, pushed open
the door and re-entered.
In so doing she saw the appellant
lying on top of the complainant on the mattress with his pants pulled
down having sexual intercourse
with the complainant. The
complainant confirmed that the appellant had sexual intercourse with
her without her consent.
Medical evidence adduced confirmed
that sexual penetration did occur.
[3]
The appeal is being prosecuted on the broad ground that the
sentencing court ignored the personal circumstances of the appellant,
and over-emphasized the seriousness of the offence and interest(s) of
society at the expense of the personal circumstances.
On appeal
before us it was argued strenuously that the sentencing court
erred
as the personal circumstances of the appellant taken cumulatively
constitute substantial and compelling circumstances in terms
of s 51
(3) of the Criminal Law Amendment Act 105 of 1997 (the Act)
warranting imposition of a sentence lesser than life imprisonment
ordained in s 51 (1) of the Act.
[4]
It was pressed in argument on behalf of the appellant that the
personal circumstances that the sentencing court ought to have
taken
into account are these: the appellant is a first offender; he was 47
years when he committed the offence; the appellant is
married and
having three minor children; the children are still attending school;
he supports and maintains his wife and children
with income derived
from casual jobs. To these factors the sentencing court raised
the following question during argument:
“But those sort of
factors that would ordinarily receive greater recognition in
circumstances where the court has to consider
whether the accused
should be afforded the option of a fine, do they not pale in some
sort of insignificance if one accepts that
imprisonment and long term
imprisonment … is imperatively called for.” In
this court counsel for the appellant
submitted that the statement
that the personal circumstances pale into insignificance was a
declared intention on the part of the
court to exclude the personal
circumstances of the appellant from the enquiry whether substantial
and compelling circumstances
are present in the case. It was
submitted further that the sentencing court failed to apply the
dictum
in
S v Malgas
2001 (1) SACR 469
(SCA) at 48c
that in sentencing under s 51 (1) of the Act all factors
traditionally taken into account in sentencing, such as,
inter
alia
, the personal circumstances of the accused, continue to play
a role in the determination of an appropriate sentence.
[5]
As a court of appeal dealing with sentence we must heed the injuction
of the Supreme Court of Appeal in
S v Malgas
at 478d –
h, which reads:
“
A court
exercising appellate jurisdiction cannot, in the above situation, in
the absence of material misdirection by the trial court,
approach the
question of sentence as if it were the trial court and then
substitute the sentence arrived at by it simply because
if prefers
it. To do so would be to usurp the sentencing discretion of the
trial Court. Where material misdirection
by the trial court
vitiates its exercise of that discretion, an appellate Court is of
course entitled to consider the question
of sentence afresh. In
doing so, it assesses sentence as if it were a court of first
instance and the sentence imposed by
the trial court. It may do
so when the disparity between the sentence of the trial court and the
sentence which the appellate
Court would have imposed had it been the
trial court is so marked that it can properly be described as
‘shocking’,
‘startling’ or ‘disturbingly
inappropriate’. It must be emphasised that in the latter
situation the
appellate court is not at large in the sense in which
it is at large in the former. In the latter situation it may
not substitute
the sentence which it thinks appropriate merely
because it does not accord with the sentence imposed by the trial
court or because
it prefers it to that sentence”.
[6]
The thrust of the submission advanced on behalf of the appellant is
that the sentencing court committed a misdirection.
In our view
it did not. The court a
quo
had anxious consideration to the
personal circumstances of the appellant against the backdrop of the
heinousness of the offence
of rape committed by the appellant against
a child. It recognized the principle of law stated in the case
of
S v Sobandla
1992 (2) SACR 613
(A) at 615 that the
sentencing court must assess the triad of factors in a balanced
manner, and being mindful that the personal
circumstances must not be
sacrificed at the altar of deterrence. It took into account the
principle stated in
S v Rabie
1975 (4) SA 855
(A) at 866b that
it is in the public interest that punishment should be meted out
fairly without excessiveness which would make
it appear merciless.
And above all, it recognised the obligation thrust upon it in terms
of s 51 (1) of the Act that in a
case such as the present, imposition
of a sentence of life imprisonment is mandatory. It is a
sentence that is ordinarily
appropriate and not to be deviated from
unless substantial and compelling circumstances are shown to exist.
[7]
The approach adopted by the court a
quo
is in keeping with the
manner in which a court sentencing under s 51 (1) of the Act
exercises discretion. That approach was
stated by our Full
Court in
S v Nkawu
2009 (2) SACR 402
(ECG) as follows at 404,
paras. [3] – [4]:
“
[3] …
when sentencing for crimes specified in the Act, a court is required
to ‘approach that question conscious of
the fact that the
legislature has ordained life imprisonment as the sentence which
should
ordinarily
be imposed …’ While the
Act shifted the emphasis to ‘the objective gravity of the type
of crime and the
public’s need for effective sanctions against
it’, discretion to deviate from the prescribed sentence was
granted to
courts ‘in recognition of the easily foreseeable
injustices which could result from obliging them to pass the
specified sentences
come what may’” (cf
S v Malgas
at 476 para. [8])
[4] A court may
deviate from the sentences prescribed if ‘substantial and
compelling circumstances’ are present.
In
Malgas
,
at para 9, it was held that it is impermissible to deviate from the
prescribed sentence ‘lightly and for flimsy reasons
which could
not withstand scrutiny’. Apart from this, however, all
factors relevant to determining sentence remain
relevant when the Act
applies and a sentencing court must look to the ‘ultimate
cumulative impact’ of all of these
factors in order to
determine whether a departure from the prescribed sentence is
justified”.
[8]
In dealing with the question whether substantial and compelling
circumstances exist which require imposition of a sentence lesser
than life imprisonment the sentencing court had to interrogate not
just the personal circumstances of the appellant but also the
severity of the offence of rape, the tender age of the complainant,
and the complainant is suffering from psychological and emotional
harm due to the adverse effects the rape has had on her child.
It had regard to a plethora of decided cases in which it was
held
that the offence of rape is a humiliating, degrading and a brutal
invasion of the privacy and the dignity of the person of
the
complainant:
S v Chapman
1997 (2) SACR 2
(SCA) at 5 (b);
and that it is an appalling and utterly outrageous crime and
inflicting terrible and horrific suffering and outrage
on the
complainant and her family (
S v Ncheche
[2005] ZAGPHC 21
;
2005 (2) SACR 386
(WLD) at 395, para. [35]. A similar attitude is expressed in
S
v PB
2001 (1) SACR 448
(SCA) at 453, para. [16] where it was
stated (with reference to
S v Jansen
1999 (2) SACR 368
(C) at
378g-379g) that rape of a child is an appalling and perverse abuse of
male power.
[9]
In line with a newly developed jurisprudence in
S v PB, supra,
post the majority court decision in
S v Nkomo
2007 (2) SACR
198
(SCA), the sentencing court found that the psychological and
emotional harm suffered by the complainant is an aggravating factor
which is not less than the harm caused by significant physical
injuries sustained by victims in other cases of rape. That
jurisprudence found resonance in the cases decided by our Full Court
in
Siyabulela Tonisi v The State
, ECG Case No. CA & R
144/2011 dated 23 April 2012 and
Masixole Malinge v The State,
ECB Case No. CA & R 10/2014 dated 25 November 2014.
[10]
The sentencing court came to a conclusion, correctly so in our view,
that substantial and compelling circumstances
do not exist in this
case. That decision came after considering the personal
circumstances of the appellant as well as that
he was old enough to
be a father figure towards the child, but who betrayed his position
of trust by raping instead of protecting
the complainant. He
selfishly exploited the vulnerability of the complainant to satisfy
his sexual lust. And at worst, the
appellant failed to show
remorse for his shameful and despicable conduct. That court saw
it fit to impose a custodial sentence
that would express the
revulsion of all law-abiding citizens at the aggravated nature of the
offence coupled with its prevalence
in society. In coming to
that decision the court realized that a mandatory sentence of life
imprisonment as provided for
in s 51 (1) of the Act must be imposed.
The cases of
S v Malgas
at 476;
S v PB
at 451;
S v
Matyityi
2011 (1) SACR 40
(SCA) at 53;
DPP
KwaZulu-Natal
v Ngcobo And Others
2009 (2) SA 361
(SCA) at 367a-c;
S v
Vilakazi
2009 (1) SACR 552
(SCA) at 561 support the statutory
injunction to the sentencing courts that in the absence of
substantial and compelling circumstances
the act of raping a child
must be punished by a sentence of life imprisonment.
[11]
With the appellant having failed to show penitence for his unlawful
deed, the sentencing court found that there
were no reasonable
prospects of him being rehabilitated. The appellant did not ask
for an apology from the complainant, her
parents, her community or
the court. He did not tell the court why he raped the
complainant. In the circumstances we cannot
fault the sentencing
court’s conclusion on the issue of rehabilitation. It now
remains a task for the prison officials
to explore the issue for the
benefit of the appellant as it is plain that the appellant is as yet
to gain insight into the wrongfulness
of his actions.
[12]
We agree with counsel for the respondent that there is no merit in
this appeal. Neither did counsel for the appellant
succeed in
persuading us that the imposed sentence for what is undeniably an
aggravated rape is unjust in any manner or form.
In
S v
Rabie
1975 (4) SA 855
(A) Holmes JA stated appositely as follows
at 862 G:
“
Punishment
should fit the criminal as well as the crime, be fair to society, and
be blended with a measure of mercy according to
the circumstances.”
In
this case it cannot be said that the sentence of life imprisonment is
disproportionate to the circumstances of the appellant,
the nature of
the offence and the societal need to stamp out violent crimes.
[12]
In the absence of reasons to interfere with the discretion of the
sentencing court the only order to make is the following:
“
The appeal
against sentence of life imprisonment is dismissed.
__________________
________________________________
Z.
M. NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
Dawood
J
I
agree:
__________________________
F.B.A.
DAWOOD
JUDGE
OF THE HIGH COURT
Griffiths
J
I
agree:
___________________________
R.
GRIFFITHS
JUDGE
OF THE HIGH COURT
Counsel
for the applicant
:
Adv. W.K.M. Gxaba
:
c/o Legal Aid Board
MTHATHA.
Counsel
for the respondent :
Adv. L. Mtengwana
:
c/o Director of Public Prosecutions
MTHATHA.