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[2015] ZAFSHC 257
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Magazi v S (A89/2015) [2015] ZAFSHC 257 (12 November 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case number:
A89/2015
In
the matter between:
MTHANDAZI
JOHNSON
MAGAZI
Applicant
and
THE
STATE
Respondent
CORAM:
Rampai,
J et Lekale, J
HEARD
ON:
19 OCTOBER 2015
JUDGMENT
BY:
RAMPAI, J
DELIVERED
ON:
12 NOVEMBER 2015
[1]
These were appeal proceedings. The appellant was convicted by
the regional court on a charge of rape. Following
his
conviction he was sentenced to life imprisonment. He came to us
on appeal a
gainst
his sentence with the leave of the court
a
quo
.
The respondent opposed the appeal.
[2]
An incident took place at Bainsvlei in Bloemfontein on 17 October
2010. A minor female child, herein referred to as K,
was
involved. The incident was reported to the police. The
investigation of the incident led to the arrest of the appellant
on
the same day.
[3]
The appellant was subsequently charged with rape. It was
alleged that he unlawfully and intentionally committed an act
of
sexual penetration with the complainant, K, a girl 7 years of age, by
penetrating her vagina with his penis, without her consent
in
contravention of sec 3 of Sexual Offences and Related Matters Act
32/2007 read with specified statutory provision thereof as
well as
sec 51 Criminal Law Amendment Act (CLAA) 105/1997 read with Part I
Schedule 2. The complainant was born on [.........]
2003 (vide
exi a).
[4]
The appellant was tried in the Bloemfontein Regional Court. His
trial started on 2 March 2012. Mr. Lesea appeared
for the state
and Mr. Sojada for the defence. He was required to plead to the
charge of rape. He pleaded not guilty.
He did not explain
the basis of his defence. He put in issue all the elements of
the crime.
[5]
Notwithstanding his plea, the appellant was found guilty on 12 March
2012. On 16 April 2012 he was sentenced to life imprisonment.
He was aggrieved by the sentence imposed on him. On 2 May 2012
he successfully applied for leave to appeal against the sentence.
[6]
The appellant filed his notice of appeal on 8 May 2012. The
principal ground of the appeal was that the sentence of life
imprisonment was strikingly inappropriate in that the mitigating
factors were not accorded due and proper weight. The essence
of
his contention was that, the mitigating factors and the aggravating
factors were considered and weighed up in an unbalanced
manner by the
regional magistrate. Such an approach, he contended, inevitably
led to the incorrect conclusion that no substantial
and compelling
circumstances existed to warrant deviation from the prescribed
sentence of life imprisonment.
[7]
The question in the appeal before us, therefore, was whether the
court
a
quo
materially
erred in reaching the conclusion that no weighty justification
existed to validate deviation from the prescribed minimum
sentence
and whether on the strength of alleged misdirection it ultimately
imposed on the applicant a sentence which was shockingly
severe and
thus inappropriate.
[8]
On behalf of the appellant Ms. Kruger submitted that the question
must be answered in the affirmative. Therefore, she
urged us to
uphold the appeal and set aside the sentence which she regarded as
disproportionately severe and shocking.
[9]
On behalf of the respondent Mr. Strauss disagreed. He submitted
that the answer to the question must be negative.
Therefore, he
urged us to dismiss the appeal and to confirm the sentence which he
regarded as proportionately appropriate to the
crime.
[10]
In sentencing the appellant the following factors were regarded as
mitigating factors:
10.1
He was born on [.........] 1984. At the time he committed the
crime he was 26 years old. At the
time he was sentenced he was
27 years old;
10.2
He received formal education until he passed standard 9;
10.3
He was employed as a gardener at Bethulie. His wages amounted
to R600.00 per month;
10.4
He was single and had no children at all;
10.5
His parents were never married. He and his siblings grew up in
a single parent household which was headed by his
mother;
10.6
He and his siblings were brought up by their maternal grandparents
after the death of their mother;
10.7
He maintained his youngest brother at all times prior to his arrest.
His aunt was the brother’s daily care-giver;
10.8
He was arrested on 17 October 2010 and he was incarcerated ever since
then;
10.9
He was a first rape offender with a clean criminal record.
[11]
In sentencing the appellant the following factors constituted
aggravating factors:
11.1
The nature and seriousness of the crime of rape;
11.2
The prevalence of the crime in the region;
11.3
The complainant was a small child, 7 years of age, at the time the
appellant raped her;
11.4
The appellant took an unfair advantage of a small, defenceless and
vulnerable child;
11.5
He betrayed the trust which the little girl, her mother and the
family had in him;
[12]
As already indicated the court
a
quo
considered both sides of the coin and found that no substantial and
compelling circumstances existed to justify departure from
the
prescribed minimum sentence of life imprisonment. Ms. Kruger,
canvassed specific factors on the strength of which she
submitted
that deviation was justified and that the imposition of the
prescribed minimum sentence of life imprisonment was thereby
rendered
shockingly inappropriate.
[13]
I share the view that rape is a repulsive crime. It humiliates
and degrades its victim like no other crime. It
is no ordinary
assault. It is a vicious assault of a particularly vicious
nature. It callously invades the dignity,
equality, freedom and
privacy of its victim.
S
v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(AD). The scourge of rape has reached alarming
proportions in the province. The society as a whole demands
effective
and meaningful protection of women in general and small
girls in particular from abusive sexual offenders. Our courts
must
leave no stone unturned in an endeavour to stem the tide.
It is the duty of the courts to see to it that women enjoy their
rights without fear of abusive sexual offenders.
[14]
When the crime is prevalent, severe sentence may be justified in
order to deter abusive sexual offenders.
S
v Reay
1997 (1) SA 873
(AD) at 877 c. In
S
v Moswathupa
2012 (1) SACR 259
(SCA) the court held that severe sentences should
be imposed even on first offenders in a bid to protect women.
Where sexually
abusive adults reprehensibly satisfy their carnal
desires with helplessly young children they have to be deterrantly
punished by
imposing on them sentences that would reflect not only
the strong disapproval of the court as the judges said in
S
v D
1995 (1) SACR 259
(AD) at 259 g but also the natural indignation of
society as the judges said in
S
v Karg
1961 (1) SA 231
(AD) at 236 A-B.
[15]
In
S
v E
1979 (3) SA 973
(AD) at 978 the court said:
“
Kinders
moet teen hierdie soort optrede beskerm word. Die Hof het 'n plig om
sy afkeuring daarvan ten sterkste uit te spreek en
ook om in so 'n
geval 'n vonnis op te lê wat die nodige afskrikwaarde sal hê.”
In
pretty much a similar vein the court commented as follows in
S
v Tyetyame
1991 (2) SACR 1
(AD) at 7 F Hoexter JA said:
“
Dit
is die dure plig van ons Howe om jong kinders teen gewetelose
geweldenaars te beskerm.”
[16]
We have to approach this appeal mindful of the principle that the
sentencing of an offender is primarily the prerogative of
the trial
court.
S
v Kgosimore
1999 (2) SACR 238
(SCA). In the absence of a material
misdirection no appellate interference is justified.
S
v Pieters
1987 (3) SA 717
(AD) at 728 b-c. It is impermissible to erode
the discretion entrusted to the trial court where there was no
material misdirection
or irregularity committed. To do so would
be tantamount to usurping the sentencing discretion of the trial
court –
S
v Malgas
2001 (1) SACR 469
para 12. It is trite law that a material
misdirection by a trial court vitiates its sentencing discretion.
[17]
Ms. Kruger submitted that the sentence of life imprisonment imposed
on the appellant was unjust and disproportionate to the
crime given
that he was a first offender; that he was incarcerated for 18
months; that the complainant did not suffer
any physical
injuries; that the complainant did not suffer any lasting
emotional trauma and that the case could not be considered
the most
serious of rape cases. She was of the opinion that those 5
factors, cumulatively considered together with all the
personal
circumstances of the appellant, sufficiently constituted
circumstances that substantially compelled deviation and that
they
could not be dismissed as flimsy reasons as the regional court did.
Consequently we were called upon to consider those
factors afresh.
[18]
As regards the status of the appellant as a first offender, the trial
magistrate said:
“
To
summarise, the legislator has thus clearly expressed its intention in
respect of both Part 1 and Part 3 categories of rape.
For the
one category, once (sic) previous criminal record is relevant for
purpose of sentencing and for the other category it is
not. The
contrast between the sentencing regimes thus speaks for itself.”
[19]
I have difficulty with the proposition that an offender’s
criminal past automatically becomes an irrelevant factor once
it has
been shown that his actions fell within the purview of the first
category – in other words Part I of Schedule 2.
A clean
record or a first offender’s status as a category one offender
cannot be discarded up front as a flimsy reason as
regards sentence.
It always remains a significant factor in an adjudicative process of
objectively interrogating all the
peculiar circumstances of a
particular case in order to determine a sentence that is just and
proportionate to the gravity of the
offence. A sentencing court
is still obliged to take into account all the factors relevant to
sentencing even where a rape
offender’s actions fall within the
penal purview of the first category. Nothing must be excluded,
right from the outset,
from consideration
S
v Malgas
2001 (1) SACR 469
(SCA).
[20]
In
S
v Vilakazi
2009 (1) SACR 552
(SCA) para 16 Nugent JA was at pains to clarify the
thrust of Malgas’ decision and the important effect of its
crucial qualifications
namely: that the
prescribed
minimum sentence
must not be imposed as the general norm of sentencing which must be
rarely departed from in exceptional cases only;
that
Malgas decision was no authority for the proposition that the
prescribed
minimum sentence
should be ordinarily imposed; that the thrust of that leading
decision was that a court must approach the matter of sentencing:
“…
conscious
of the fact that the legislature has ordained the prescribed sentence
as the sentence that should ordinarily, and in the
absence of weighty
justification, be imposed for the scheduled listed crimes committed
in categorized and specified circumstances.”
[21]
The rigid approach advocated by the regional court crucified all
those qualifications. The recurrent theme in the Malgas
decision was that factors traditionally taken into account in
sentencing remain relevant to the sentencing process and that none
of
them should, from the very beginning, be consciously eliminated from
the punitive equation as the regional court propounded
in respect of
cases specifically categorized in the first part of the schedule.
[22]
Consider the following hypothetical factual matrix: X and Y
rape a 7 year old girl. Obviously they face a charge
of first
category type of rape. It then turns out that Y was also linked
to 3 other separate rape incidents in which girls
of the same age
were involved. The two are tried together in connection with 4
rape charges. At the end of the trial
X is found guilty in
respect of one count of rape but Y of all 4 counts.
[23]
In considering whether the prescribed minimum sentence of life
imprisonment would be a proportionate, just and appropriate
sentence
or not in respect of Y, the peculiar circumstances of the particular
hypothetical case tend to be indicative of his propensity
to rape and
that, although he is a first offender, he is likely to re-offend.
However, the position of X is different.
There is nothing that
tends to indicate that he is likely to become a repeat offender soon,
although that cannot be confidently
predicted. Therefore, it is
a material consideration whether an offender can be expected to
offend again - Vilakazi,
supra
,
para 58.
[24]
To sentence the appellant, as an accused person, without the
slightest consideration of his status as a first offender and
its
relevance to the offence or consequences of excluding it as
irrelevant factor, was a clearly material misdirection.
[25]
As regards the fact that the complainant did not suffer any serious
and permanent physical injury, the regional court again
declined to
give the appellant credit. In this case there was no extraneous
violence of any sort unleashed by the appellant
on the child.
We live in a violent society. At times victims are sexually
abused in extremely violent and brutal circumstances
-
S
v Matyityi
2011 (1) SACR 40
(SCA) and
S
v Mosia
2012 (2) SACR 537
(FB) in particular pars [20-22]. A victim’s
serious and permanent physical injuries often symbolise the degree of
violence
an offender brutally used against a victim before, during or
after the sexual abuse. The greater the degree of brutality or
violence the greater the degree of an offender’s moral
blameworthiness
S
v Mabitse
2012 (2) SACR 380
(FB) pars [17] and [18].
[26]
The complainant was taken to Tshepong Centre where Sr Sechoci,
examined her on 18 October 2010. The forensic nurse clinically
found no evidence of visual physical injuries. (5 exi c) Her
gynaecological examination showed a whitish vaginal discharge,
abrasion and reddishness. There were no tears, bruises,
perforation of the hymen or bleeding noted. These were material
facts that emerged from the medical report. Certainly they were
not irrelevant. In weighing whether the ultimate sentence
will
be indeed proportionate in this case, the absence of serious and
permanent physical injury on the part of the complainant
was a
materially relevant factor.
[27]
The regional court reckoned that the fact that the appellant did not
physically injure the complainant was not a materially
relevant
consideration. The regional court was prompted to do so by its
own understanding of sec 51(3)(aA)(ii) Act No 105/1997.
The
section which came into operation on 31 December 2007 provides that
an apparent lack of physical injury to the complainant
shall not
constitute substantial and compelling circumstances justifying the
imposition of a lesser sentence in respect of the
offence of rape.
[28]
In
S
v Nkawu
2009 (2) SACR 402
(ECG) Plasket J was called upon to interpret the
aforesaid legislative provision. He generously interpreted the
provision
in a way favourable to the rape offender. He did so
in keeping with the basic canon of interpretation of statutes.
A punitive statutory provision is liberally interpreted in favour of
the subject. He concluded that the rape victim’s
apparent
lack of physical injury remained a factor that must be included in
the common basket of factors relevant to the enquiry
in terms of sec
51(3) in order to determine the question:
“
to
deviate or not to deviate.”
[29]
In
S v Mabitse
2012 (2) SACR 380
(FB) this court
aligned itself with the interpretation of sec 51(3) (aA)(ii) by
Plasket J in
S v Nkawu
,
supra.
At
para [17] we said:
“
Just
as the courts should realise that emotional scarring is likely to
differ in kind and degree from one case to the next (Jones
J in
S
v Booysen
supra, at para 7), so too must the courts realise that physical
scarring is likely to differ in kind and degree from one rape case
to
the next. The physical injury symbolises the measure of
violence the perpetrator unleashed on a victim. The greater the
degree of severity of the rape victim's physical injury, the greater
the degree of the rapist's moral blameworthiness. I am of
the firm
view that dictates of justice demand that, in meting out sentence,
differentiation be made, based on the degree of violent
and brutal
force used.”
At
para [18] we said:
“
If
the presence of physical injury is properly treated as a factor which
aggravates sentence, then the absence thereof must necessarily
be
treated as a factor which mitigates sentence. If it can mitigate,
then it qualifies, not singularly but collectively, along
with other
such factors, for inclusion in the melting pot of consideration in
order to make a determination in terms of s 51(3)
regarding the
existence or otherwise of substantial and compelling circumstances —
Plasket J in
S
v Nkawu
supra, at para 17.”
[30]
In
S
v Mokoena
(A323/2012) [2012] ZAFSH 12 (9 February 2012) pars [29-0] this court
re-affirmed its decision in
S
v Mabitse
,
supra
.
Both of those decisions were fundamentally inspired by the process of
thought employed by Plasket J in
S
v Nkawu
,
supra
,
para 17. The Nkawu decision was authoritatively approved and
applied in
S
v SMM
2013 (2) SACR 292
(SCA). At para 26 Majiedt JA had this to say
about sec 51(3)(aA)(ii) Act No 105/1997 and its interpretation by
Plasket J
in
S
v Nkawu
,
supra
:
“
He
correctly in my view concluded that the proper interpretation of the
provision does not preclude a court sentencing for rape
to take into
consideration the fact that a rape victim has not suffered serious or
permanent physical injuries, along with other
relevant factors, to
arrive at a just and proportionate sentence.”
[31]
It follows from the aforesaid authoritative decision that the trial
magistrate committed a material misdirection on a question
of law in
declining to apply
S
v Mokoena
,
supra
on the grounds that it was wrongly decided. We have to remind
ourselves that legislative prescription sometimes tend to strip
courts of their sentencing discretion and that courts have to be
alive to and to guard against the potential unjustness of such
edicts
-
S
v Malgas
,
supra
,
para 1. To the extent that the trial magistrate reckoned that
the rape victim’s lack of serious and permanent physical
injury
was an irrelevant factor, in view of the aforesaid punitive
legislative measure, which fell to be entirely eliminated “a
priori” from the enquiry, he materially erred.
[32]
The regional magistrate reckoned that he was not bound by the
decisions of this high court and followed a decision of another
high
court -
S v Muller
2007 JOL 19407
(W)
In
doing so the regional magistrate misapplied the principle of
stare
decisis
.
The judgments not followed were appeal decisions. In terms of
the principle a regional magistrate is generally bound
by decisions
of its provincial division of the high court.
[33]
As regards the question of emotional trauma a victim impact report
was obtained and filed “exi e”. Mr. I
Ntoi, a
social worker, interviewed the complainant and her family on 21 March
2012. He reported that the victim was born
on [.........] 2003;
that she lived at Botshabelo with her parents and 2 siblings;
that she was a middle child;
that she was a grade 2 learner of
T. P. S.; that she was a generally healthy child; that
she tearfully gave the first
report of the incident to her mother on
the same day of the incident; that her vagina was painful at
the time she reported
the incident to her mother; that she
could not go to school for 4 days after the rape incident because she
was not well;
but that she was able to concentrate in class
without any problems.
[34]
The adverse impact of the rape was noted. She dreamed about
“Worsi,” in other words the appellant, killing
her and
her family. She still remembered that he had threatened to kill
her and her family if she dared tell what he did
to her. It
appeared she dreamed about the appellant on 3 occasions. Since
the incident she was afraid to play with
or to talk to boys.
She feared that they would ask her to undress. The social
worker noted that she vividly recalled
the incident as if it happened
a day before the interview. The victim impact report was handed
up and marked “exi e”.
[35]
What we had before us in assessing the emotional impact of the crime
upon the complainant was that she was in tears when she
told her
mother about the incident. Her tears could have been
attributable to emotional hurt, physical pain or both.
All the
same each of them was attributable to the crime. When she was
examined by the forensic nurse a little later, she
observed no
symptoms of emotional distress. The nurse noted that she was
calm. Although she has had few flashbacks
about the incident,
horror dreams about the appellant, none of those adverse effects was
described as recurrent and permanent.
She did not have any
nightmares. Her concentration was not negatively affected.
There was no evidence of ongoing emotional
trauma.
[36]
I accept, nonetheless that she has been inevitably traumatized.
Said Nugent JA in Vilakazi
supra
,
para 57:
“
I
think it must be accepted that no woman, and least of all a child,
would be left unscathed by sexual assault, and that in this
case the
complainant must indeed have been traumatized, but the evidence does
not reveal anything more specific than that.”
There
is some thin evidence in this case upon which to measure the
emotional impact of the crime upon the victim. It is sufficient
to say that it is evident from the available facts that she currently
appears to have sustained no emotional damage of a permanent
nature.
I am mindful that emotional distress and damage that accompanies rape
might be extensive even if it is not immediately
and overtly
manifested, more so in the case of young girls such as the
complainant. Her fears and mistrust for boys was not
deeply
probed and no prognosis was given. However, I gained the
impression that she is a resilient girl and that she is likely
to
overcome those emotional hurdles with the passage of time.
S
v Mosia
supra
epitomises a case of very serious ongoing trauma. So does
S
v Matyityi
,
supra.
[37]
As regards the incarceration period, the appellant was arrested on 17
October 2010, being the date of the incident. Ever
since then
he remained incarcerated. He had been incarcerated for almost
18 months at the time he was sentenced on 16 April
2012. The
agony of such incarceration is treated by our courts as a factor
relevant to sentence. In Vilakazi,
supra
,
para 60 Nugent JA said:
“
There
is one further consideration that must be brought to account. The
appellant was arrested on the day the offence was committed
and has
been incarcerated ever since. At the time he was sentenced he had I
accordingly been imprisoned for just over two years.
While good reason might exist for denying bail to a person who is
charged with a serious crime it seems to me that if he or she
is not
promptly brought to trial it would be most unjust if the period of
imprisonment while awaiting trial is not then brought
to account in
any custodial sentence that is imposed.”
[38]
In
Radebe
v S
(726/12)
[2013] ZASCA 31
(27 March 2013) para [14] Lewis JA said:
“…
the
test is not whether on its own the period of detention constitutes a
substantial or compelling circumstance, but whether the
effective
sentence proposed is proportionate to the crime or crimes committed:
whether the sentence in all circumstances,
including the period spent
in detention prior to conviction and sentencing, is a just one.”
[39]
In
S
v Kruger
2012 (1) SACR 369
(SCA) at 373 c-d. Shongwe JA
“
An
effective sentence of 26 years, in the circumstances of this
particular case, is disproportionately harsh and induces a sense
of
shock. The other consideration is the period spent in prison by the
appellant while awaiting trial. It is only fair to consider
that
period, especially where it is a lengthy period. In the present case
the appellant was incarcerated for a period of three
years and eight
months before he was finally sentenced on 24 February 2000. One way
of factoring this period into a sentence is
by antedating the
sentence to the date on which he was sentenced or an earlier date by
simply deducting the three years and eight
months from the imposed
sentence.”
[40]
It is clear and obvious, in the light of those recent decisions of
the SCA, that the agony of an awaiting trial offender remains
a
material sentencing consideration. It should not be watered
without serious thought. There are cases where it would
not
matter but this is not one of such cases.
[41]
Having cumulatively considered the aforesaid four factors in
particular together with the appellant’s personal profile
in
general as well as the perculiar circumstances of this particular
case - I am persuaded that the regional court injudiciously
and
improperly exercised its sentencing discretion. Given all the
peculiar circumstances of this particular case, the sentence
of life
imprisonment was disproportionate to the crime. The misdirections
earlier alluded to were all material. The sentencing
discretion of
the trial court was thereby vitiated. We are, therefore, at
liberty to consider the question of sentence afresh
S
v Malgas
,
supra
.
[42]
The complainant was a very small child. Her rape was,
therefore, an inherently very serious crime. When viewed
as a
whole, her age was the only material feature disclosed by the
evidence as having aggravated the crime. I am satisfied
that,
by itself, her age alone did not justify the imposition of the
ultimate sentence permitted by law. In my view a substantial
sentence of 20 years imprisonment appears to be sufficient to bring
home to the appellant the gravity of his crime and also to
exact
sufficient retribution for his crime. To make him pay for the
crime with the remainder of his life would seem to me
to be grossly
disproportionate and merciless punishment.
[43]
There is one further matter that calls for comment. The trial
magistrate reckoned that there is a tendency by the courts
to
disregard legislative prescriptions.
“
My
personal view is one of the main reasons why the legislator deemed it
fit to amend the Act and legislate Section 51 [3] [A] [a]
[2], is
amongst others the manner in which the Courts easily deviated from
the minimum sentences.”
[44]
In a rather uncustomary manner the trial magistrate criticised judges
of this division such as Cillie J, Rampai J, Kruger J
and Van der
Merwe J. The trial magistrate also reckoned that he was not
bound by the decisions of this division because,
in his view, they
were wrongly decided. It will be recalled that the trial
magistrate chose to follow and to apply the decision
of another
provincial division -
S
v Muller
2007 JOL 19407
(W) as regards the interpretation of sec
51(3)(aA)(ii). It is unorthodox for a magistrate to act in that
manner and to disregard
the principle of stare decisis. I say
no more.
[45]
In the result the following order is made:
45.1
The conviction stands;
45.2
The appeal against the sentence is upheld;
45.3
The sentence of life imprisonment is set aside and substituted with
the one below;
45.4
The appellant is sentenced to 20 years imprisonment from which 18
months are to be deducted when the date
of his release is calculated.
45.5
The fresh sentence is antedated to 16 April 2012.
______________
M.H.
RAMPAI, J
I
concur
_____________
L.J.
LEKALE, J
On
behalf of appellant: Attorney S. Kruger
Instructed
by:
Bloemfontein
Justice Centre
Bloemfontein
On
behalf of respondent: Adv. M. Strauss
Instructed
by:
Office
of the Director: Public Prosecutions
Bloemfontein
/PC