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[2007] ZASCA 113
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S v Fhetani (158/2007) [2007] ZASCA 113; 2007 (2) SACR 590 (SCA) (21 September 2007)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE NO 158/2007
In
the matter between
TAKALANI FHETANI
.......................
Appellant
and
THE STATE
.......................
Respondent
Coram: Nugent, Jafta JJA and Mhlantla AJA
Heard: 11 SEPTEMBER 2007
Delivered: 21 SEPTEMBER 2007
Summary: Sentence – s 22 of the Sexual Offences
Act 23 of 1957 prescribes a maximum sentence of 6 years’
imprisonment
with or without a maximum fine of R12 000 –
incompetent to impose imprisonment in excess thereof for contravening
s 14
of the Act.
Neutral citation: This judgment may be referred to as
Fhetani v The State
[2007] SCA 113 (RSA)
___________________________________________________________
JUDGMENT
___________________________________________________________
JAFTA JA
[1] This appeal was heard on 11 September 2007
and at the conclusion of the hearing the following order was made:
‘
1. The appeal against sentence
is upheld.
2. The sentence imposed by the court below is set aside
and substituted with a sentence of 3 years’ imprisonment.
3. The appellant must be released from prison
immediately.’
It was stated at the time the order was made that the
reasons for such order would follow. These are the reasons.
[2] The appellant was arraigned in the Venda High Court
on a charge of rape, alternatively unlawful sexual intercourse with a
girl
below the age of 16 years. He pleaded and the prosecutor
accepted the plea of guilty to the alternative charge. The trial
court (Hetisani
J) convicted and sentenced him to 15 years’
imprisonment. He appeals against the sentence with the leave of the
court below.
[3] The court seems to have been under the impression
that there were facts before it that established that the appellant
was guilty
of rape and it sentenced him accordingly. In its judgment
the court said:
‘
The
court has to pass sentence which must be deterrent to others who may
be thinking of meeting girls in the evening, producing a
knife and
pulling them to empty houses and rape them.’
Later in the judgment on the application for bail the
court stated further that:
‘
Now
your legal counsel has now come with your instructions that you ask
that while the appeal is being processed you need to be granted
bail.
Of course it is one of your rights, but one will always consider that
we have communities there today, no longer the old communities
which
were fast asleep. Today’s communities are very much up against
people who have been convicted of offences like rape,
and more
particularly the rape against minor children. One cannot imagine the
horror with which the people out there will see you
now walking
around and enjoying Christmas when they know that you have perhaps
spoiled the future of that poor child….’
[4] There was no basis for such findings
because no evidence was led at the trial. The court impermissibly
relied on the summary of
substantial facts for its findings. The
summary does not constitute evidence nor admitted facts. Its sole
purpose is to inform an
accused about the nature of the case he or
she is facing by setting out material facts on which the prosecution
relies (
S v Van Vuuren
1983
(1) SA 12
(A) at 21E).
[5] The approach adopted by the trial court
in assessing punishment has led to an excessively disproportionate
sentence being imposed.
Punishing the appellant as if he had been
convicted of rape violated his right to a fair trial. It is a
well-established principle
of our law that the sentence imposed must
fit the nature of the offence of which the accused was found guilty.
Put differently, the
severity of the sentence must not be grossly
disproportionate to the offence itself. An exemplary sentence such as
the one we are
concerned with here, is not a fair and just punishment
because it is disproportionate to the true deserts of the offender.
In discouraging
the imposition of such punishment this court in
S
v Sobandla
1992 (2) SACR 613(A)
said (at 617
f-g):
‘
As
to the magistrate’s view of the need for a strongly deterrent
sentence, the peculiar circumstances of the present case do
not, in
my assessment, suggest the risk of a repeated robbery or
housebreaking by the appellant. Essentially what the trial court
had
in mind was, in the interests of the community, a sentence which
would deter others who might, given the prevalence referred
to,
contemplate similar serious criminal conduct. Having regard to all
the facts of the present matter, however, it seems to me that
appellant’s counsel (who appeared at the court’s request,
and for whose assistance we are grateful) was right in contending,
in
effect, that appellant was sacrificed on the altar of deterrence,
thus resulting in his receiving an unduly severe sentence.’
[6] This does not mean that deterrence is
no longer an object of sentencing. In this matter it is unlikely that
the appellant would
commit the same offence again. A severe sentence
would only serve as a deterrence to other would-be offenders who
might contemplate
having sexual intercourse with girls below the age
of 16 years. A sentence that is intended to serve this purpose must
not, however,
be grossly disproportionate to the offence of which an
accused person was convicted. Because a grossly disproportionate
sentence
does not only violate the accused person’s right to a
fair trial but also his or her right not to be punished in a cruel,
inhuman
or degrading manner (
S v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC) paras 35-39).
[7] Moreover, in sentencing the appellant the court
below overlooked the provisions of the Sexual Offences Act 23 of 1957
in terms
of which he was convicted. Section 14 thereof makes it an
offence for a male person to have sexual intercourse with a girl
under
the age of 16 years, even if she consents to such intercourse.
For this offence, section 22 prescribes a sentence of imprisonment
for a period not exceeding six years with or without a fine not
exceeding R12 000 in addition to such imprisonment.
[8] The court has, contrary to the clear provisions of s
22, imposed 15 years’ imprisonment thereby exceeding the
maximum prescribed
sentence. Therefore, the sentence was not
competent for the offence of which the appellant was convicted.
[9] In view of the above misdirections we are entitled
to interfere with the sentence imposed. At the time of the trial the
appellant
was a 23-year-old student. He was doing matric at school.
The complainant was 15 years old when the offence was committed.
There
is no evidence to suggest that she did not consent to having
intercourse with the appellant. It is unlikely that the prosecutor
would
have accepted the plea of guilty to a lesser offence, if
evidence that she did not consent existed. In assessing punishment,
we must
also take into account the fact that the appellant has been
in prison since September 2002 to date (five years in total).
[10] The appellant has effectively served five years in
prison – as we were informed at the hearing of this appeal –
even
though he was granted bail on 5 December 2002. He was unable to
raise the bail money which was fixed at an exorbitant amount of
R10 000.
At the hearing of the bail application, his attorney
informed the court that he could afford to pay the sum of R4 000
which was in
itself quite substantial when regard is had to the fact
that he was a student. Contrary to the principles applicable to the
fixing
of the amount of bail, the trial judge fixed it at an amount
which he could clearly not afford to pay. Fixing bail at an excessive
amount in a case involving a poor person such as the present
appellant, is tantamount to a refusal.
[11] Before granting bail the trial court’s
attention was drawn to the error it had committed by imposing a
sentence which exceeded
the maximum punishment prescribed for the
offence. This manifestly demonstrated good prospects of success in
favour of the appellant.
During the hearing of that application, the
court alluded to the fact that it would take long for his appeal to
be heard. Yet bail
was fixed at an amount he could not afford to pay.
In
S v Mohamed
1977
(2) SA 531
(A) Trollip JA said (at 544H):
‘
The
means and resources of an accused are therefore an important,
although not the sole, criterion in fixing the amount of bail ....
Hence, speaking very generally, I think that if a court is minded in
all the circumstances to release an accused on bail, it should
not
fix an amount that is quite beyond his means and resources, otherwise
that would nullify its decision to release him.’
[12] In this case the exorbitant amount fixed coupled
with the delays in prosecuting the appeal have infringed the
appellant’s
right of appeal. He ended up serving more time in
prison than justified. As it appears from the substituted sentence,
he served two
additional years without just cause and in violation of
his right to freedom.
[13] The delays in prosecuting the appeal were mainly
caused by the attorneys appointed by the Legal Aid Board for him, as
he could
not afford legal representatives of his choice. He was
granted leave on 5 December 2002 and the first step towards the
prosecution
of the appeal was taken in January 2003. His attorney
instructed adv Sikhwari to prepare a notice of appeal. Nothing
happened afterwards
until May 2004 when the advocate returned
the brief without the notice because he had a dispute about fees with
the Board. Meanwhile
the attorney had taken receipt of the record,
consisting of 47 pages only, from transcribers on 24 July 2003.
No explanation
was given for this delay despite the fact that
s 316
of the
Criminal Procedure Act 51 of 1977
requires such record to be
transmitted to the registrar of this court immediately after leave
has been granted.
[14] The next step taken by the attorney was to brief
adv Snyman on 1 July 2004. He was instructed to draw heads
of argument
which he failed to produce for a period of a year. His
explanation for the failure is that he was unable to carry out the
instructions
due to other work-related commitments. It is not
explained why he did not return the brief immediately as he could not
attend to
it. In these circumstances I find the explanation given by
Snyman to be unsatisfactory. Although the appellant’s attorney
has
deposed to an affidavit in support of the application for
condonation, he has furnished no explanation for the delays
occasioned
by his inaction. This conduct by an officer of the court
is unacceptable, more so in circumstances of the present case.
[15] By providing legal representation in matters such
as this the Board is discharging one of the most important
constitutional obligations
imposed on the state by our Constitution
(s 35(3)). This obligation is necessitated by the fact that the
majority of people in this
country are – as the law reports
inform us – poor and they cannot afford to pay for legal
representation. Poor service
by lawyers appointed by the Board, which
lead to infringement of accused persons’ rights, does not
constitute a proper discharge
of that obligation. As already
indicated, the delays have resulted in the appellant serving
unjustifiably excessive time in prison.
In view of the fact that none
of these delays were attributed to the appellant and that the state
did not oppose the application,
we granted condonation asked for.
[16] Having had regard to all factors relevant to
sentence, it appeared to us that a sentence of 3 years’
imprisonment was appropriate
in the present circumstances. It
followed that the appeal had to succeed. For these reasons the order
referred to in para [1] above
was issued.
____________________
C N JAFTA
JUDGE OF
APPEAL
CONCUR: )
NUGENT JA
) MHLANTLA
AJA