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[2016] ZAGPPHC 739
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Ndlovu v S (A962/2011) [2016] ZAGPPHC 739 (23 August 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: A962/2011
DATE:
23 AUGUST 2016
In
the matter between:
JULIUS
NDLOVU
....................................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
MAKUME
J WITH HIM NKOSI AJ CONCURRING
[1]
This is an appeal against conviction and sentence of life
imprisonment imposed by the Regional Court Nelspruit on the 5
th
of May 2010.
[2]
The appellant a 44 years old married man pleaded guilty to a charge
of rape in contravention of the provisions of Section 3
read with
Section 1, 56(1), 57, 58, 59, 60 and 61 of the Criminal Law Amendment
Act read with the provisions of Section 51 and
Schedule 2 of the
Criminal Law Amendment Act No. 105 of 1997
.
[3]
A statement in terms of
Section 112(2)
of the
Criminal Procedure Act
No. 51 of 1977
was read into the Court record by the appellant’s
legal representative in which he admitted all the elements of the
crime
and was duly convicted.
[4]
It was whilst the appellant’s attorney was addressing the Court
in mitigation of sentence that he told the presiding officer
that his
instructions were that the appellant was under the influence of
liquor at the time of committing the offence and then
proceeded to
say that the appellant told him that he did not know what he was
doing at that time. Based on those submissions
the Court duly
acted in terms of
Section 113
of the
Criminal Procedure Act and
entered a plea of not guilty. The complainant N N N testified
in camera
through
a duly sworn intermediary a Ms. N M.
[5]
It is common cause that the complainant in this matter was an 11 year
old girl and a stepdaughter to the appellant. On
the 10
th
of May 2009 the appellant’s wife who is the mother of the
complainant was not at home as she was attending a funeral at a
place
called Mangweni Trust in Mpumalanga.
[6]
At about midnight on that day the appellant entered the room where
the complainant was asleep with her other two sisters.
He
removed her to his own room where he undressed her and then carnally
penetrated her without her consent. When he had finished
he
threatened her with death should she report what happened.
[7]
Despite this threat the complainant told her mother when she returned
home as a result the appellant was arrested. He
remained in
custody and was never released on bail.
[8]
The medical evidence as presented on the J88 form does not indicate
any serious physical injuries sustained by the complainant.
It
however confirmed forced vaginal penetration beyond the hymen.
[9]
In her evidence the complainant testified how the appellant came into
the bedroom, switched off the lights and turned on the
radio to be
loud and then proceeded to rape her whilst closing her mouth with his
hand. She told the Court that she felt
pain in her private
parts but did not sustain any injuries.
[10]
The version of the appellant was that on that day he was drunk and
when complainant said he was not drunk his counsel sat down
and did
not dispute the further evidence or version of the complainant.The
state’s case was closed. The appellant also
closed his
case without testifying.
[11]
I am satisfied that the appellant was correctly convicted as charged
and the appeal against conviction should fail.
SENTENCE
[12]
This appeal is largely about whether the Court
a
quo
was justified in imposing a
sentence of life imprisonment or whether a lesser sentence should
have been imposed.
[13]
The crime of rape has been described in various judgments in our
courts as a humiliating, degrading and brutal invasion of
the
privacy, dignity and person of the victim. The Court in
S
v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA)
went on to say that:
“
Women
in this country have a legitimate claim to walk peacefully on the
streets, to enjoy their shopping and their entertainment
to go and
come from work and to enjoy peace and tranquillity of their homes
without fear, the apprehension and the insecurity which
constantly
diminishes the quality and enjoyment of their lives.”
[14]
The appellant was convicted of a very serious crime. However
his legal representative at the trial does not seem to have
appreciated that the conviction would attract a sentence of life
imprisonment. He was casual about handling the trial at
that
stage and in fact presented no evidence save to tell the Court that
the appellant was under the influence of liquor.
[15]
The introductory remarks in Hiemstra’s
Criminal Procedure on
Sentence
reads as follows:
“
Sentencing
is the most difficult facet of a criminal case. Unfortunately
it is the topic about which legal practitioners least
learn and
consequently with which they are least familiar. Although for
the accused it is the most important facet it is
often disposed of
hurriedly. However sentencing deserves at least as much
attention as the consideration of the merits and
because it often
requires insight and expertise which lawyers do not have the wise
presiding officer will when imposing sentence
not hesitate to call
upon experts to assist.”
[16]
The appellant’s legal representative was asked by the Court to
address it on mitigating factors. He replied as
follows:
“
No
Your Worship I think the defence has covered everything”.
He
was then asked a pertinent and crucial question that goes to the root
of sentencing in accordance with the minimum sentence regime.
The question by the Magistrate was as follows:
“
COURT:
So are you of the opinion that there are no substantial and
compelling circumstances present?
MR
ZIYANE: I doubt if there are Your Worship.”
[17]
After this question and answer the Magistrate proceeded to pass
sentence and found that there were no substantial and compelling
circumstances warranting a deviation from the prescribed minimum
sentence of life imprisonment.
[18]
Section 274(1)
of the
Criminal Procedure Act enjoins
a Court before
passing sentence to receive such evidence as it thinks fit in order
to inform itself as to the proper sentence to
be passed. In
this matter the Court should have noticed the incompetency of the
appellant’s legal representative and
stepped in as if the
appellant was unrepresented. This much was highlighted by
Olivier JA in the matter of
S v Siebert
1998 (1)
SACR 554
at 558-559a-b where the following was highlighted:
“
Sentencing
is a judicial function
sui generis
.
It should not be governed by considerations based on notions akin to
onus of proof. In this field of law public interest
requires
the Court to play a more active inquisitorial role. The accused
should not be sentenced unless and until all the
facts and
circumstances necessary for the responsible exercise of such
discretion had been placed before the Court. An accused
should
not be sentenced on the basis of his or her legal representative’s
diligence or ignorance. If there is insufficient
evidence
before the Court to enable it to exercise a proper judicial
sentencing discretion it is the duty of that Court to call
for such
evidence.”
[19]
I am satisfied that in this matter the presiding officer made no
attempt to inform himself of evidence that could have assisted
him to
pass an appropriate sentence. It is clear that in passing
sentence the Magistrate had adopted the view that life imprisonment
must be passed as a matter of course.
[20]
Nugent JA in
S v Vilakazi
2009 (1) SACR 552
at
562 paragraph 21 warned against such an approach when he said the
following:
“
[21]
The prosecution of rape presents peculiar difficulties that always
call for the greatest care to be taken and even more so
where the
complainant is young. From prosecutors it calls for thoughtful
preparation, patient and sensitive presentation
of all available
evidence and meticulous attention to detail. From judicial
officers who try such cases it calls for accurate
understanding and
careful analysis of all the evidence. For it is in the nature
of such cases that the available evidence
is often scant and many
prosecutions fail for that reason alone. In those circumstances
each detail can be vitally important.
From those who are called
upon to sentence convicted offenders such cases call for considerable
reflection. Custodial sentences
are not merely numbers.
And familiarity with the sentence of life imprisonment must never
blunt one to the fact that its
consequences are profound.”
(See also
S v Mokgara
2015
(1) SACR 634
(GP)
).
[21]
The appellant’s personal circumstances were placed before the
trial Court and in my view at the least in the absence
of other
evidence the trial Court should have applied the test and approached
sentence in the manner as laid down by the Supreme
Court of Appeal in
S v Malgas
2001
(1) SACR 469
(SCA)
which approach was
endorsed by the Constitutional Court in
S
v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC)
to
be undoubtedly correct. In
Malgas
it was made clear that it is
incumbent upon a Court in every case before it imposes a prescribed
minimum 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.
[22]
In my view the trial Court misdirected itself in finding that there
are no substantial and compelling circumstances justifying
the
imposition of a sentence less than life imprisonment. The
personal circumstances of the appellant should have been properly
considered to determine if there are such substantial and compelling
circumstances. The appellant is a first offender, he
pleaded
guilty, he is self-employed and earned R4 000 per month.
He showed remorse by pleading guilty in the first place.
All
this the court failed to take into consideration and thus misdirected
itself in arriving at a decision that life imprisonment
was the only
appropriate sentence.
[23]
The complainant testified that she only felt pain in her private
parts other than that there is no evidence of any physical
violence
having been used to make her succumb to the appellant’s
demand. By so saying this Court is not undermining
or playing
down the fact that the complainant was traumatised and still fears
the appellant. However the Court was not presented
with any
evidence to indicate whether the complainant will suffer from any
long term psychological effects.
[24]
In
S v Ngomane
2012
(2) SACR 474
(GNP)
the court held that
where a trial Court is dealing with minimum sentence in such cases it
is expected that the Magistrate should
canvass what the nature and
extent of the injuries if any are.
[25]
In conclusion it is so that a Court must bear in mind that life
imprisonment is the ultimate penalty and should be lightly
imposed.
The appellant was a first offender and there is no evidence to
indicate that he is not a good candidate for rehabilitation
and in my
view the appeal against sentence ought to succeed.
[26]
In the result I propose the following order:
(a)
The appeal against conviction is dismissed.
(b)
The appeal against sentence is upheld.
(c)
The sentence of life imprisonment is set
aside and substituted with the following:
(i)
The accused is sentenced to 18 years
imprisonment.
(ii)
The sentence of 18 years is antedated to
the 5
th
of May 2010.
Dated
at
Pretoria
on
this the
19
th
day of August 2016.
M.A.
MAKUME
JUDGE
OF THE HIGH COURT
I
agree
N.
NKOSI
ACTING
JUDGE OF THE HIGH COURT
CASE
NO: A962/2011
HEARD
ON: 18 August 2016
FOR
THE APPELLANT: ADV. L.A. VAN WYK
INSTRUCTED
BY: Legal Aid Board
FOR
THE RESPONDENT: ADV. J.P. VAN DER WESTHUYSEN
INSTRUCTED
BY: Director of Public Prosecutions
DATE
OF JUDGMENT: 23 August 2016