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[2013] ZAGPPHC 78
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Zitha v S (A108/13) [2013] ZAGPPHC 78; 2013 (2) SACR 138 (GNP) (8 March 2013)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: A108/13
DATE:08/03/2013
BEFORE
THE HONOURABLE JUDGES:
RABIE
J, THULARE AJ
In
the matter between;
OUPA
ZITHA
….........................................................................
APPELLANT
AND
THE
STATE
................................................................................
RESPONDENT
JUDGMENT
THULARE
AJ
[1]
Appellant was convicted on a charge of rape of a then ten (10) year
old minor child and sentenced to 25 years imprisonment on
08
September 2011 in the Regional Division of Limpopo held in Ritavi.
At
the time of the commission of the offence, appellant was 18 years of
age.
[2]
Appellant's application for leave to appeal against his conviction
and sentence was dismissed by the Magistrate. Appellant's
petition
was considered by the honourable Judges Louw and Teffo and after
perusal the honourable Judges' ordered refusal of the
petition on
appeal against the conviction, and leave was granted to appeal
against the sentence.
[3]
The complaint is a child as defined in Criminal Law (Sexual Offences
and Related Matters) Amendment Act, 2007 (Act No. 32 of
2007) and
further, at the age of 10, she is a female incapable of consenting to
a sexual act.
[4]
The Regional Court did not pass the sentence prescribed, which is
imprisonment for life, but imposed a lesser sentence of 25
years
imprisonment.
[5]
The approach to be adopted in the sentencing of the appellant, in my
view, is ably set out by Boshielo J, as he then was, in
S v Phulwane
and Others
2003 (1) SACR 631
(T.P.D.) at 634 paragraph 8 to paragraph
9 ending at 635 when he said: "[8] As the Director of Public
Prosecutions correctly
pointed out; the learned magistrate failed to
acknowledge the important fact that the accused herein are relatively
young, with
clean criminal records, who deserved a sentence based
more on rehabilitation than deterrence. As the learned Cachalia J
correctly
remarked in S v Nkosi 2002(1) SACR 135 (W) at 143b:
'The
fine balance that needs to be struck between society's needs to
punish crime while not overlooking the interests of a juvenile
offender was emphasized by Botha JA in S v Jansen and Another
1975
(1) SA 425
(A) at 427 in fine - 428 in the following terms:
'The
interests of society cannot be served by disregarding the interests
of the juvenile, for a mistaken form of punishment might
easily
result in a person with a distorted personality being eventually
returned to society"
In
S v Z en Vier Andere Sake 1999(1) SACR 427 € at 430f the learned
Erasmus J correctly observed as follows:
'Besondere
omstandighede geld by die bestrewing van jeugdige orrtreders, juis
vanwee die feit van hul jonkheid. Die jeug is kenlik
van kosbare
waarde vir die gemeenskap soos weerspiel word in art. 28 van die
Grondwet. Hulle is ons toekoms. Verbanhoudend hiermee
is die feit dat
jeugdiges se persoonlikhede in die algemeen nog nie ten voile
ontwikkel is nie. Hulle is meer buigsaam as volwassenes
en dus
uiteraard weer vatbaar vit beinvloeding, ten geode sowel as ten
kwade.... Dit is derhalwe die dure plig van elke person
en instansie
gemoeid met jeugdiges,
ook
dan die howe, om te poog om jeugdige oortreders vir geledere van
wetgehoorsame te win...
Although
accused 1 and 3 are; strictly speaking, not juveniles, I am of the
view that the salutary approach set out above should
apply to them as
well.
[9]
It is clear from the record that the magistrate adopted an incorrect
approach in sentencing the accused. Undoubtedly the youth
is our hope
for the future. When a youth or juvenile strays from the path of
rectitude to criminal conduct, it is the responsibility
of judicial
officers invested with the task of sentencing such a youth to ensure
that she or he receives all relevant information
pertaining to such a
juvenile to enable him or her to structure a sentence that will best
suit the needs and interests of the particular
youth. It is, after
all' a salutary principle of sentencing that sentence must be
individualized. I venture to suggest that every
judicial officer who
has to sentence a youthful offender must ensure that
whatsoever
sentence he or she decides to impose will promote the rehabilitation
of that particular youth and have; as its priority;
the reintegration
of the youthful offender back into his or her family and of course,
the community."
[6]
Currently in my view, the best way to obtain relevant information
pertaining to a youth to enable a magistrate to structure
a sentence
that will best suit the needs and interests of a youth, is to obtain
a report of a probation officer appointed in terms
of the Probation
Services Act, 1991 (Act No. 116 of 1991). We do not know whether the
childhood of appellant was characterized
by neglect, indiscipline or
ineffective parenting. It is unknown whether the youth has challenges
inherent in his faculties, challenges
from his family set-up or
challenges from the community from which he emerges. By not obtaining
a probation officer's report, and
any further evidence relevant to
assist the magistrate to structure a sentence best suited for
appellant, it was a misdirection.
The
misdirection resulted in the magistrate denying himself an
opportunity to impose a sentence that will promote the rehabilitation
of the appellant. The sentence imposed, in my view, is
disproportionately harsh. It is not individualized to the appellant.
In
my view, the youthfulness of the appellant, on its own in the
absence of any countervailing evidence, leaves an impression that
the
appellant is capable of being rehabilitated, moulded and placed on
the right path of life.
[7]
Even if the court were to arrive at a conclusion that imprisonment
was appropriate, in the light of the referral for probation
services
informed by the youth of appellant, no doubt the probation officer
would have called for the Department of Correctional
Services to
compile a correctional officer's report on appellant, and over and
above a probation officer's report, the magistrate
would have been
favoured with a correctional officer's report. In that way, it would
have been clear that the magistrate's priority
was the reintegration
of a youthful offender back into his family and his community. This
priority, no doubt, would have found
expression in the term
considered.
[8]
In S v WV
2013 SACR 204
6NP at 210, paragraphs 30 to32, Legodi J
said:
"[30]
It is when offences of this nature are committed against an innocent
and defenceless society/ that the society looks
to the courts for
protection.
[31]
It is the kind of sentence which we impose that will drive ordinary
members of our society either to have confidence or to
lose
confidence in the judicial system.
The
sentences that our courts impose when offences of this nature are
committed, should strive to ensure that people are not driven
to take
the law into their own hands, but rather to scare away would-be
offenders.
[32]
However, whilst society expects offenders of the serious offences to
be appropriately punished when convicted it is expected
that the
personal circumstances of each offender should be accorded an
appropriate consideration in assessing a balanced sentence
to be
imposed
[8]
The appellant was 18 years at the time of the commission of the
offence, he is a first offender, has no children, is single,
there
was no gratuitious violence in addition to the rape and there were no
other injuries sustained in addition to the thin fresh
tear of the
fossa navicularies on the vagina of the complainant.
[9]
Appellant's mother and complainant's mother are sisters. The
relationship is so close that although the English term is cousins,
in Africa they are brother and sister and this explains why
complainant referred to appellant as brother in her testimony. It is
a very close blood relation, which explains why the complainant's
mother first took appellant to her own mother, who is also
appellant's
maternal grandmother. Appellant was, as the magistrate
correctly remarked, in a position of trust and was looked upon to
offer
protection to complainant, as opposed to abuse her. Complainant
must have been shocked, terrified and distressed at the invasion
of
her body, her humiliation and the stripping of her dignity.
[10]
After weighing these factors, I am convinced that they warrant a
severe sentence, but I am also convinced that the relevant
information pertaining to appellant will enable the magistrate to
structure a sentence that will best suit him. I am satisfied
that the
absence of the relevant information led to the magistrate's
imposition of a sentence which is disproportionately harsh.
I
would make the following order:
1.
The appeal against sentence is upheld.
2.
The order of the court a quo on sentence is set aside.
3.
The case is referred back to the magistrate to pass sentence afresh
after obtaining the material evidence, including calling
for and
considering a report from a Probation Officer appointed in terms of
the Probation Services Act, 1991 (Act No. 116 of 1991),
as well as
such other evidence as the appellant and the State may wish to lead.
DM
THULARE
ACTING
JUDGE OF THE HIGH COURT
I
agree, and it is so ordered.
CP
RABIE
JUDGE
OF THE HIGH COURT