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[2015] ZAKZPHC 8
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Zondo v S (AR118/14 (Dissenting Opinion)) [2015] ZAKZPHC 8 (19 February 2015)
SAFLII
Note: This is the dissenting opinion. View the majority opinion
here:
Zondo
v S (AR118/14) [2015] ZAKZPHC 7
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO:
AR118/2014
In
the matter between:
CELEMPHILE
WELCOME
ZONDO
....................................................................
APPELLANT
and
THE
STATE
...........................................................................................................
RESPONDENT
JUDGMENT
(delivered on 19
February 2015)
KRUGER
J
[1]
The Appellant was convicted in the Regional Court, Vryheid, of raping
a girl who was under the age of sixteen years. In terms
of Section 52
of the Criminal Law Amendment Act 105 of 1997 (hereinafter referred
to as the Act) (which section has now been repealed),
the Appellant
was committed to the High Court for sentencing. It is worth
mentioning that he was convicted on the 25
th
November 2003. On the 20
th
September 2004, some ten months later, he was
sentenced to life imprisonment. The Court
a
quo
found that there were no
substantial and compelling circumstances which existed and which
would justify the imposition of a sentence
lesser than that
prescribed by the Act. On the 20
th
September 2013, exactly nine years later, he was
granted leave to appeal against the sentence imposed. No
reasons have been
forthcoming why the application for leave to appeal
took so long nor were any reasons forthcoming why the appeal was set
down some
seventeen months after leave to appeal was granted.
[2]
The judgment on sentence is very scant and is eighteen lines long.
Apart from reference being made to the Appellant’s
age, there
is no indication that the Court considered his personal
circumstances. Most of the sentence, although brief, centred
around the interests of society and the reason why the Minimum
Sentences Act was passed. The Court
a
quo
concluded by holding that although
it was established that the complainant “was not injured in any
other way than the injuries
occasioned by the rape itself”,
this was not sufficient to warrant a departure from the imposition of
the minimum sentence
of life imprisonment. The Court was of the
view that as a girl under the age of sixteen years was raped, it
automatically
called for a sentence of life imprisonment.
[3]
At the time of sentencing, the Supreme Court of Appeal in
S
v Malgas
, 2001(1) SACR 469 (SCA)
and the Constitutional Court in
S
v Dodo
2001(1) SACR 594 (CC)
had provided some guidelines to the courts with
regards to the imposition of the sentences as prescribed in Act 105
of 1997.
In paragraph 25 in
S v
Malgas
it was held:
“
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.”
[4]
It is accordingly clear from the passage quoted in
S
v Malgas
that it is incumbent upon
the court, before imposing a prescribed sentence, to assess, upon a
consideration of all the circumstances
of that case, whether the
prescribed sentence is indeed proportionate to the offence
committed. The Court
a quo
,
in my opinion, failed to take this into consideration and accordingly
misdirected itself. Given this misdirection, this
Court is
entitled to reconsider the sentence imposed and to evaluate whether
life imprisonment is indeed an appropriate sentence,
regard being had
to the test as set out in
S v Malgas
,
outlined earlier in this judgment.
[5]
The complainant testified that the Appellant was well known to her.
They were neighbours. On the day in question
the Appellant
arrived at her homestead and requested permission from her mother or
grandmother to send her to the shop to purchase
a cigarette.
The complainant purchased the cigarette and proceeded to the
Appellant’s homestead where she handed the
cigarette to him.
Once she had entered the rondavel, he requested to sleep with her.
She did not agree. He then
placed her on the bed, extinguished
the candle, removed her panty and then had sexual intercourse with
her. After he had
finished, they both got dressed, he opened
the door and she left. She proceeded to her homestead and
informed her grandmother
of what had taken place. The matter
was later reported to the police and the following day she was
examined by the District
Surgeon. The Court
a
quo
, in its judgment, remarked that
“the incident had no adverse effect on her school work”.
[6]
The complainant’s grandmother confirmed most of the
complainant’s evidence which related to the request and the
subsequent purchase of the cigarette. She also confirmed that
the child returned home, in tears, and had reported to her
what had
transpired. The Appellant denied that he ever went to the
complainant’s homestead and requested permission
to send her to
the shop to purchase the cigarette. He denied raping the
complainant and averred that on the night in question
he had been
drinking heavily and subsequently fell asleep. He was awoken by
the police and it was then that he had learnt
that the complainant
had been raped.
[7]
The Court
a quo
correctly
rejected the Appellant’s version and, in my view, correctly
convicted the Appellant.
[8]
As found in the Court
a quo
,
there was no extraneous violence and no physical injury was caused to
the complainant other than the physical injury occasioned
by the act
of rape itself. There was also no threat of any extraneous
violence of any kind. The complainant certainly
did not testify
that she was threatened not to reveal to any person what had happened
to her. As mentioned earlier in this
judgment, the Court
a
quo
found that the entire incident had
no adverse effect on her school work. This finding was made
following a question by the
Prosecutor to the complainant, in her
evidence in chief, whether her school work had suffered as a result
of the incident.
The complainant replied in the negative.
No other evidence was adduced to prove or disprove this. Apart
from this oblique
reference, there is nothing on the record to
measure the emotional impact of the offence upon the complainant.
Notwithstanding
this, I agree with the sentiments of Nugent JA in
S
v Vilakazi
2009(1) SACR 552
,
at paragraph 57, where he remarked that:
“
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 traumatised ……”.
[9]
The Appellant was twenty-seven years old at the time and was a first
offender. I agree with the submission by counsel
on his behalf
that the Appellant’s actions on the day was a singular brief
lapse of behaviour on his part. The Court
a
quo failed to take into consideration
that the Appellant had spent two years in custody awaiting the
finalisation of this matter.
The only aggravating feature is
the complainant’s age. This alone, in my view, does not
warrant an automatic imposition
of life imprisonment.
[10]
Bearing in the mind test as set out in
S
v Malgas
, as outlined earlier in
this judgment, I am of the view that the imposition of the prescribed
minimum sentence would be unjust
and would be disproportionate to the
crime, the criminal and the needs of society.
[11]
I accordingly propose that:
1. The appeal be
upheld.
2. The sentence be
set aside and be substituted with the following:
(i)
The Appellant is sentenced to fifteen years
imprisonment.
(ii)
The sentence is antedated to the 20
th
September 2004.
KRUGER
J:
Date
of Hearing: 30
th
January
2015
Date
of Judgment: 19 February 2015
Appellant’s
Counsel: A A Nohiya
Respondent’s
Counsel: N E S Buthelezi