DPP, Pretoria v Zulu (1192/2018) [2021] ZASCA 174 (10 December 2021)

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[2021] ZASCA 174
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DPP, Pretoria v Zulu (1192/2018) [2021] ZASCA 174 (10 December 2021)

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THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case no: 1192/2018
In
the matter between:
DIRECTOR
OF PUBLIC PROSECUTIONS,
PRETORIA

APPELLANT
and
MFANIMPELA
NTOKOZO ZULU

RESPONDENT
Neutral
citation:
DPP,
Pretoria v Zulu
(1192/2018)
[2021] ZASCA 174
(10 December 2021)
Coram:
SALDULKER ADP and
MATHOPO, NICHOLLS and MABINDLA-BOQWANA JJA and KGOELE AJA
Heard:
This appeal was
disposed of without an oral hearing in terms of s 19(
a
)
of the
Superior Courts Act 10 of 2013
.
Delivered:
This judgment was
handed down electronically by circulation to the parties’ legal
representatives by email, publication on the Supreme
Court of Appeal
website, and release to SAFLII. The date and time for hand-down are
deemed to be 09h45 on 10 December 2021.
Summary:
Sentence – Appeal
by the State in terms of
s 311(1)
of the
Criminal Procedure Act 105
of 1977
– whether the issue raised is a question of law or fact –
whether sentence disproportionate to the crime – sentence imposed
by Regional Court reinstated.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (
Davis
J and Nair AJ
sitting
as court of appeal):
1
The appeal is upheld.
2
The order of the high court in respect of the sentences on the three
counts of rape
is set aside and replaced with the following order:
‘
1
.
The appeal against
the sentences in respect of the three counts of rape is dismissed.
2. The judgment of
the Ermelo Regional Court in the Regional Division of Mpumalanga in
respect of the life sentences imposed on counts
1, 2, and 3 are
confirmed. The sentences will run concurrently.’
JUDGMENT
Kgoele
AJA (
Saldulker
ADP and Mathopo, Nicholls and Mabindla-Boqwana JJA
concurring):
[1]
This
is an appeal by the Director of Public Prosecutions, Pretoria (the
appellant), against the sentence imposed on 1 June 2018 by
the
Gauteng Division of the High Court, Pretoria, wherein Davis J and
Nair AJ (the high court) partially set aside the sentence of
Magistrate Jonker sitting at Ermelo, Mpumalanga Regional Division
(the regional court). The appeal is brought in terms of s 311(1)
of
the Criminal Procedure Act 51 of 1977 (the CPA).
[2]
On
12 May 2016, Mr Mfanimpela Ntokozo Zulu (the respondent), was
convicted of three counts of rape read with the provisions of s 51(1)
of the Criminal Law Amendment Act 32 of 2007 (the CLAA) and two
counts of common assault, by the regional court. He was sentenced
to
life imprisonment on each of the rape counts and to three months
imprisonment in respect of both the assault counts. All of the
sentences were ordered to run concurrently.
[3]
He
successfully obtained leave from the regional court against his
conviction and sentence. The appeal was heard by the high court,
which dismissed the appeal against conviction. However, the high
court upheld the appeal against sentence, and the life imprisonment
imposed on each count of rape was set aside and substituted with a
sentence of 20 years imprisonment on counts 1, 2, and 3 respectively.
The concurrency of the sentences remained intact with the result that
the respondent’s effective sentence is 20 years.
[4]
It
bears mention that the sentences of life imprisonment imposed by the
regional court in respect of the rape counts, were in consequence
of
the finding that no substantial and compelling circumstances were
present that could warrant a deviation from the prescribed minimum
sentences of life, prescribed by the CLAA. The high court, even
though it did not find any reason to interfere with this finding
by
the regional court, including the concurrency of the sentences
imposed, concluded that the sentence of life imprisonment was
disproportionate
to the offences of rape the respondent was convicted
of. In arriving at its conclusions, it relied on the judgments of
Abrahams
,
Mahomotsa
,
Nkomo
,
GN,
and
Ganga,
[1]
where it was found that, even when a life sentence is a prescribed
minimum sentence, as an ultimate sentence, it must not be imposed
lightly. It considered itself bound by those judgments on the basis
that they were the precedents and found that the regional court
misdirected itself in that it did not consider the approach adopted
by our courts in those cases.
[5]
Aggrieved
by these findings, the appellant launched this appeal against the
reduced sentences. As already indicated, the appellant
raised what it
termed a question of law in terms of s 311 of the CPA, which was
formulated as follows:
‘
Did the court a
quo correctly weigh the cumulative factors in aggravation and
mitigation of sentence against the accused’s criminal
liability, in
terms of the
Criminal Law Amendment Act 105 of 1997
, in accordance
with the principles enunciated in
S
v Malgas
2001 SACR 496
(SCA) inter alia?’
[6]
Before
turning to the requirements of
section 311
, a brief summary of the
background facts that led to the respondent's conviction is
necessary. The complainant, who was a minor at
the time, started
staying with her mother and the respondent, who is her stepfather, in
2010. She testified that during the periods
November 2011, August
2012, and February 2015, she was raped on numerous occasions by the
respondent. She was 12, 13, and 15 years
old, respectively, at the
time. The respondent would usually approach her after school when no
one else was present at home. He gained
her trust by telling her that
he would show her what boys do to girls. He would then smear Vaseline
on his penis and gradually, over
a period extending over weeks and
months, penetrate the complainant vaginally.
[7]
The
repeated rapes did not only cause the complainant to lose her
virginity, but also to fall pregnant several times. The respondent
influenced her to tell her mother that she was impregnated by her
boyfriend on each occasion. When the complainant’s mother wanted
to
approach the boy’s parents, the respondent convinced her not to,
saying it was unnecessary as boys nowadays always deny impregnating
girls. The multiple pregnancies were terminated by the use of pills
from shops allegedly run by Nigerian citizens. These were procured
for her at the insistence of the respondent. The complainant’s
mother rejected her at some stage believing that this young boy
impregnated her.
[8]
The
respondent also isolated the complainant because he did not want to
see her with her male school friends. He often followed her
after
school to check on her. On one of the days, he assaulted the
complainant with an open hand when he found her with one Thabo
Dludlu
after school. He also threatened to stab Thabo with a knife, but
Thabo outran him. These are the allegations informing the
two counts
of assault he was convicted of.
[9]
Coming
back to the jurisdictional requirements of
s 311
, it is now settled
that essentially,
s 311
provides the prosecuting authority with an
appeal opportunity directly to this Court under the following
conditions:
(a)
There was an appeal to the high court (it is irrelevant which party
brought this appeal);
(b)
That court of appeal (ie the high court) found in favour of the
convicted person on a question of law.
[2]
This
section confers an automatic right of appeal when the conditions set
out above are satisfied.
[3]
[10]
The
first jurisdictional requirement does not pose any problem in this
appeal. The second one, whether the question raised by the
appellant
is a question of law is one of the issues pertinently raised by the
respondent. This Court can only entertain the merits
if it is
satisfied that the appellant's ground of appeal involves a question
of law.
[11]
Before
us, the respondent relied on several decisions of this Court to
support the contention that the nature of the question formulated
by
the appellant is simply a question of fact clothed as a legal
question to provide it with legitimacy.
[4]
Most of these authorities were thoroughly analysed by this Court in
MG
and need no further emphasis. It suffices to state that the finding
in
Mphaphama
,
upon which the respondent heavily relied, was qualified therein as
follows:
[5]
‘
Although the
facts in
Mphaphama
are at first blush not materially distinguishable from the facts of
this case, the issues raised in the two cases are different.
Hence
the different outcomes. Accordingly, the dictum in
Mphaphama
,
that “the exercise of a judicial discretion in favour of a
convicted person in regard to sentence . . . cannot be a question of
law”, is cast too wide. In particular, it does not deal with the
position where that discretion has been exercised on an incorrect
legal basis. An exercise of a judicial discretion based on a wrong
principle or erroneous view of the law is clearly a question of
law
decided in favour of a convicted person. This also distinguishes the
present matter from that of
Mosterd
because it is not the nature of the sentence, but the legal basis on
which it was approached, which places this matter within the
ambit of
s 311
of the CPA.’
[12]
To
substantiate the fact that the question raised involves a question of
law, the appellant argued that ‘the high court failed to
properly
assess the respondent’s criminal liability against Schedule 2,
Part
1
of the CLAA, in that the offences the respondent was convicted of
resorted under item (a)(i), since the complainant had been raped
more
than once and further under item (b)(ii) in that the complainant was
a minor under the age of 16 years. Further that, its ‘maudlin
sympathy’ for the respondent is against the principles enunciated
by this court in
Malgas
.’
[6]
[13]
As to
the question of whether the issues raised in an appeal are a question
of law or facts,
Magmoed
[7]
remains a good authority on how to approach this question. The
approach has been widely accepted and applied by this Court in
various
judgments
[8]
and needs
no further emphasis.
[14]
Although
the high court concluded, that ‘to impose an imprisonment for life
in the present matter would be disproportionate to the
life sentences
in such other matters which would deserve the ultimate penalty’, it
confirmed the regional court’s finding that
there were no
substantial and compelling circumstances that warranted the court to
deviate from the prescribed minimum sentence prescribed,
which is
life imprisonment. However, the high court bemoaned the fact that the
regional court did not consider the issue of proportionality
as one
of the principles a court must take into consideration when imposing
a sentence of life imprisonment.
[15]
There
is no doubt that the facts and circumstances of this case bring the
respondent’s rape convictions within the ambit of the
prescribed
minimum sentence of life imprisonment. First, the complainant is a
minor, and second, she was raped more than once. The
provisions of
the CLAA are implicated as being the law applicable to the conduct of
the respondent.
[16]
My
understanding of the question raised by the appellant is that it
requires an inquiry first into whether the high court’s view
and
understanding of the mandatory provisions of the CLAA are correct and
second, whether the high court properly appreciated the
import of the
circumstances of this matter in its determination of the
proportionality test as espoused in
Malgas,
together
with the precedents it quoted. The issue regarding proportionality
involves a question of whether the punishment fits the
crime, it is,
therefore, a question of law. Simply put, the inquiry does not
concern the nature of the sentences, but the legal basis
on which the
reduced sentences were approached. After all, as already quoted
above, it is trite that an erroneous view of the law
is a question of
law. I am satisfied that the question raised is a question of law.
[17]
That
being so, this Court is empowered to consider the sole question in
the appeal as to whether there was any legal basis that entitled
the
high court to interfere with and reduce the sentences imposed by the
regional court. The nub of the appellant’s case is that
the
reduction of the sentences in the rape counts was based on an
incorrect application of the accepted legal principles in sentencing
and the provisions of the CLAA, including an incorrect finding that
the circumstances of this case are not the ‘worse kind of rape’
that warrants a maximum punishment.
[18]
It
is important at the outset to re-state the basic principle that the
determination of a sentence in a criminal matter is pre-eminently
a
matter for the discretion of the trial court and that the power of
the appellate court to interfere with a sentence imposed by
a lower
court is limited. I now consider whether this Court is entitled to
interfere with the sentences imposed by the high court.
[19]
After
confirming the order of the regional court that there are no
substantial and compelling circumstances in this matter, the high
court held in para 10 of its judgment in justifying its decision to
interfere with the sentences imposed by the regional court:
‘
However, that is
not the end of the inquiry. Our courts have, in a series of judgments
emphasised that one should not lose sight of
the fact that life
imprisonment is the most severe sentence which a court can impose and
that the question whether it is an appropriate
sentence in respect of
its proportionality to the particular circumstances of a case
requires careful consideration. See:
S
v Abrahams
2002 (1) SACR 116
(SCA);
S
v Mahomotsa
2002 (2) SACR 435
(SCA);
S
v Nkomo
2007 (2) SACR 189
(SCA) and
S
v GN
2010 (1) SACR 93
(T). In
S
v Ganga
2016 (1) 600 (WCC) it was further found that, even when a life
sentence is a prescribed minimum sentence, as an ultimate sentence,
it must not be imposed lightly. A court must still seek to
differentiate between sentences in accordance with the dictates of
justice
and where a magistrate did not sufficiently give
consideration to the approach adopted by our courts in the cases
referred to above
and simply considered whether the circumstances of
the accused displayed substantial and compelling circumstances, such
an approach
would amount to a misdirection. Unfortunately, this is
what happened in this present instance, necessitating interference by
this
court on appeal.’
[20]
In coming to the conclusion that the sentences were disproportionate
to the offences of rape the respondent was convicted
of, it remarked
‘society has given us worse examples of the extent or brutality of
crimes against women’. The latter remarks
depict that it did not
consider the circumstances of this case to fall into the category of
‘the worse kind of scenario’. As
the latter remarks are
inextricably linked with the issue of proportionality, the two will
be analysed together hereunder.
[21]
In
Malgas
,
the issue of proportionality was couched as follows:
[9]
‘
What that
something more must be it is not possible to express in precise,
accurate and all-embracing language. The greater the sense
of unease
a court feels about the imposition of a prescribed sentence, the
greater its anxiety will be that it may be perpetuating
an injustice.
Once a court reaches the point where unease has hardened into a
conviction that an injustice will be done, that can
only be because
it is satisfied that the circumstances of the particular case render
the prescribed sentence unjust or, as some might
prefer to put it,
disproportionate to the crime, the criminal and the legitimate needs
of society. If that is the result of a consideration
of the
circumstances the court is entitled to characterise them as
substantial and compelling and such as to justify the imposition
of a
lesser sentence.’
[22]
To assess the proportionality of the prescribed sentence in a
particular case, the sentencing court must determine
what a
‘proportionate’ sentence would be, considering all the
circumstances traditionally relevant to sentencing.
[10]
The
proportionality of a sentence cannot be determined in the
abstract.
[11]
The principle is
trite and was couched in
Malgas
as follows:
‘
To
attempt to deny a court the right to have any regard whatsoever to
past sentencing patterns when deciding whether a prescribed
sentence
is in the circumstances of a particular case manifestly unjust is
tantamount to expecting someone who has not been allowed
to see the
colour blue to appreciate and gauge the extent to which the colour
dark blue differs from it. As long as it is appreciated
that the mere
existence of some discrepancy between them cannot be the sole
criterion and that something more than that is needed
to justify
departure, no great harm will be done.’
[12]
[23]
In
Mahomotsa,
[13]
one of the authorities relied upon by the respondent’s legal
representative, a practical approach of this principle is well
illustrated
and buttresses the point made above.  The court
remarked ‘[whilst] I am persuaded that in respect of the first
count the factors
mentioned in para 17 above, taken together with the
accused’s relative youth and his other personal circumstances, the
fact that
his previous conviction, though of a sexual nature, did not
involve non-consensual sex, are such that a departure from the
prescribed
sentence is justified on the basis that such a sentence
would be
disproportionate
to the crime, the criminal and the legitimate interest of the
society
,
the same cannot be said without more about the second count’.
[24]
It is therefore clear that there is a contradictory and
irreconcilable tension in the findings of the high
court. It found no
substantial and compelling circumstances justifying a departure from
the prescribed minimum sentences and found
no reason to interfere
with the concurrency of sentences as ordered by the regional court,
yet, after making this finding, it found
another reason that
justified the imposition of a lesser sentence. In this regard it
erred.
[25]
Although the legislature’s aim in promulgating the minimum sentence
regime was to achieve a ‘severe, standardised
and consistent’
response from courts in imposing sentences unless there were truly
convincing reasons for a different response’
as enunciated in
Malgas
,
[14]
it is important to always note that it is trite that the invocation
of the proportionality test must always be determined on the
peculiar
facts of each case.
[26]
In more recent times and after the guidelines in
Malgas
were confirmed by the Constitutional Court, Petse JA as he then was,
remarked as follows in
Kwanape
:
[15]
‘
It was further
submitted on behalf of the appellant that this was not the worst rape
imaginable. Thus, concluded the argument, that
consideration, viewed
with other mitigating factors, justifies a lesser sentence. I do not
agree. In
S
v Mahomotsa
this court made plain that the fact that more serious cases than the
ones under consideration are imaginable is not decisive. Mpati
JA
said:
“
[19]
Of course, one must guard against the notion that because still more
serious cases than the one under consideration
are imaginable, it
must follow inexorably that something should be kept in reserve for
such cases and therefore that the sentence
imposed in the case at
hand should be correspondingly lighter than the severer sentences
that such hypothetical cases would merit
there is always an upper
limit in all sentencing jurisdictions, be it death, life or some
lengthy term of imprisonment, and there
will be cases which, although
differing in their respective degrees of seriousness, nonetheless all
call for the maximum penalty
imposable. The fact that the crimes
under consideration are not all equally horrendous may not matter if
the least horrendous of
them is horrendous enough to justify the
imposition of the maximum penalty.”
Accordingly this
case, on its facts, is indeed horrendous enough to justify the
imposition of the maximum penalty.’
[27]
In this matter, sight should not be lost of the fact that society
views the respondent’s heinous conduct in a very
serious light.
This was also borne out by the high court, also referring to the
offences the respondent was convicted of as ‘abhorrent’.
Within
the context of this case, the injunction to protect children from
these crimes assumes a prominent role. Courts are reminded
in
Malgas
that when considering what sentence to impose, ‘emphasis was to be
shifted to the objective gravity of the type of crime and public’s
need for effective sanctions against it’.
[16]
[28]
In this matter, we have a step-father who abused his step-daughter in
the early years of her life and not only impregnated
her several
times but caused her to experience the trauma and pain associated
with abortion. Not only once, but many times. That
the commission of
these offences took place over a protracted period of three years,
with the resultant after-effects, are some of
the egregious
distinguishing features which set apart this case from the cases the
high court relied on.
[29]
In fact, there are more aggravating factors in this case.
This also comes out clearly from the remarks by the high
court
that ‘[having] regard to the evidence of the minor, the conduct of
the [appellant] could have resulted in many more than
the three
charges . . .’. In addition, the respondent is not a candidate for
rehabilitation. He spurned the mercy he was given
by the previous
court because five years after he was released on parole, he
committed rape again. If one has regard to the circumstances
as to
how the rapes were committed including the resultant consequences
that flowed from them, there is no doubt that they are horrendous
enough to justify the imposition of the maximum penalty. Unlike the
regional court, the high court gave insufficient weight to the
seriousness of the offences in this case. It is in the interest of
society that the respondent’s conduct in the circumstances of
this
case be appropriately sentenced.
[30]
Apart from the fact that the reasons given by the high court rested
on tenuous grounds, what is disturbing, in this
case, is that the
sentences imposed by the high court are woefully inadequate when
viewed within the context of the circumstances
of this case. In
finding that the crimes the respondent was convicted of were not the
worst kind of rapes, the high court clearly
underplayed the
circumstances in this matter. The failure by the high court to apply
correctly the appropriate provision of the CLAA
and the principles as
laid down in
Malga
s, coupled with how it underplayed the
seriousness of the offences viewed in the context of the
circumstances of this matter, is a
material misdirection that
entitles this court to interfere.
[31]
For all the preceding reasons, I am not persuaded that there was
misdirection, let alone
a material misdirection on the part of the
regional court.  I conclude that the sentences imposed by the
regional court should
stand, as they are proportionate to the
offences committed by the respondent and the circumstances of this
case. The appeal must,
accordingly, succeed. The appeal against the
reduced sentences in respect of the three counts of rape imposed by
the high court should
be upheld.
[32]   In
the result, the following order is made:
1
The appeal is upheld.
2
The order of the high court in respect of the sentences on the three
counts of rape
is set aside and replaced with the following order:
‘
1
.
The
appeal against the sentences in respect of the three counts of rape
is dismissed.
2. The judgment of
the Ermelo Regional Court in the Regional Division of Mpumalanga in
respect of the life sentences imposed on counts
1, 2, and 3 are
confirmed. The sentences will run concurrently.’
A M KGOELE
ACTING JUDGE OF
APPEAL
APPEARANCES
For
the appellant:
C P Harmzen
Instructed
by:
Director of Public Prosecutions, Pretoria
Director of Public
Prosecutions, Bloemfontein
For
the respondent:
M G Botha
Instructed
by:
Pretoria Justice Centre
Bloemfontein
Justice Centre
[1]
S v Abrahams
2002 (1) SACR 116
(SCA);
S
v Mahomotsa
2002 (2)
SACR 435
(SCA);
S v
Nkomo
2007 (2) SACR
198
(SCA);
S v GN
2010 (1) SACR 93
(T) and
S
v Ganga
[2015] ZAWCHC
171; 2016 (1) SACR 600 (WCC).
[2]
Director of Public
Prosecutions, Gauteng Division, Pretoria v Moabi
[2017] ZASCA 85
;
2017 (2) SACR 384
(SCA) para 32. See also a Du Toit
et al
Commentary on
the
Criminal Procedure Act
[Service
60, 2018] p 30-67.
[3]
Ibid
paras 35, 45 and 47. See also
Director
of Public Prosecutions, Gauteng v MG
[2017] ZASCA 82
;
2017 (2) SACR 132
(SCA) para 16.
[4]
Director of Public
Prosecutions, Gauteng, v Mphaphama
[2016] ZASCA 8
;
2016 (1) SACR 495
(SCA) para 11;
Director
of Public Prosecutions v Olivier
2006 (1) SACR 380
(SCA) paras 21-22;
Director
of Public Prosecutions, Western Cape v Kock
[2015] ZASCA 197
;
2016 (1) SACR 539
(SCA) para 9;
Director
of Public Prosecutions: Gauteng Division, Pretoria v Mbonani
[2020] (SCA) ZASCA 115 para 31.
[5]
Para 29
MG
(fn 3 above).
[6]
S v Malgas
2001 SACR 496 (SCA).
[7]
Magmoed v Janse van Rensburg
& Others
1993 (1)
SACR 67 (A); 1993 (1) SA 777.
[8]
Director of Public
Prosecutions: Gauteng Division, Pretoria v Pooe
[2021]
ZASCA 55
;
[2021] 3 All SA 23
(SCA);
2021 (2) SACR 115
(SCA);
Director of Public
Prosecutions, Western Cape v Schoeman and Another
2020 (1) 449 SACR (SCA);
Director
of Public Prosecutions: Limpopo v Molope and Another
[2020] ZASCA 69; [2020] 3 All SA 633 (SCA); 2020 (2) SACR 343 (SCA).
[9]
S v Malgas
2001 (2) SA 1222
SCA at 1234H (para 22).
[10]
S v Vilakazi
[2008] ZASCA 87
;
[2008] 4 All SA 396
(SCA);
2009 (1) SACR 552
(SCA);
2012 (6) SA 353
(SCA) para 16.
[11]
Ibid para 20.
[12]
S v Malgas
2001 (1) SACR 469 (SCA)
at para 21.
[13]
Mahomotsa
above fn 1 para 20.
[14]
Para 25.
[15]
S v Kwanape
[2012] ZASCA 168
;
2014 (1) SACR 405
(SCA) para 20. (References
omitted.)
[16]
Para 25.