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[2013] ZAGPPHC 238
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Moganedisa v S (A 252-2012) [2013] ZAGPPHC 238; 2014 (1) SACR 53 (GNP) (8 August 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG DIVISION)
Case
no A 252-2012
DATE:08/08/2013
SILUS
MDUPI
MOGANEDISA
....................................................................................
APPELLANT
and
THE
STATE
.................................................................................................................
RESPONDENT
Coram:
VAN NIEKERK J and KRUGER AJ
Heard
5 August 2013 Delivered: 13 August 2013
JUDGMENT
[1]
On 3 November 2010, the appellant was convicted on a charge of raping
his 15 year old daughter. He was subsequently sentenced
to life
imprisonment, the prescribed minimum sentence in terms of s 51 (1) of
Act 105 of 1997. The appellant appeals against both
his conviction
and sentence.
[2]
At the hearing of the appeal, the appellant’s counsel confirmed
the appellant’s concession that he had been correctly
convicted, a concession foreshadowed by the heads of argument filed
on the appellant’s behalf. The appeal is therefore confined
to
the issue of sentence. In particular, it was submitted before us that
the trial court failed properly to apply what has become
known as the
‘determinative test’ (the test to be applied to determine
when a court may depart from a prescribed minimum
sentence) and that
on an application of that test, the sentence of life imprisonment was
disproportionate to the crime.
[3]
The trial court noted that in the constitutional era, the
Constitution provided ‘some impetus’ towards the greater
recognition of the interests of victims at the stage of sentencing.
This was particularly so, observed the court, in relation to
rape,
for which a minimum sentence is prescribed for every act. The court
then assessed the substantial and compelling circumstances
proffered
by the appellant as a basis for deviation from the prescribed minimum
sentence of life imprisonment, the complainant
being under 16 years
old. These included the fact that the appellant was a first offender,
his plea of guilty, the period spent
in custody awaiting trial (seven
months), the fact that the complainant had not been kidnapped, and
the prospect of rehabilitation.
Each of these was separately
considered and rejected. The appellant’s plea of guilty was
similarly dismissed as a relevant
factor, in the absence of any
demonstrable expression of remorse.
The
fact that there was no use of violence or bodily injury suffered by
the complainant was eclipsed, reasoned the court, by the
fact that
the appellant had threatened to kill the complainant should she
disclose the appellant’s conduct to
any
other person. The court also discussed, in comprehensive terms, the
effect of the rape on the complainant.
[4]
The trial court noted the authorities to the effect that a sentencing
court is entitled to deviate from a prescribed sentence
where it is
deemed so grossly disproportionate as to amount to an injustice. The
court acknowledged that the practical application
of a ‘worst
category of rape’ test had been resolved by the legislature
when it imposed a minimum sentence of life
imprisonment for the rape
of a girl under the age of 16. On this basis, the court declined to
regard the rape of the complainant
by the appellant as ‘more or
less worse than other acts of rape’. After dismissing the
relevance of the period spent
in custody prior to sentence, the court
imposed the minimum prescribed sentence of life imprisonment.
[5]
There are a number of authorities that postdate the sentence under
appeal that are directly relevant, all of which indicate
misdirection
by the trial court. The first is the decision by the Full Bench of
this Division, when it had occasion recently to
consider appeals in
three cases of rape, all of them involving complainants below the age
of 16, and all of them the subject of
a challenge to the imposition
of the minimum prescribed sentence of life imprisonment. In S v M;S v
JS; Sv JV
2011 (1) SACR 510
, the court emphasised that in those cases
involving the imposition of prescribed minimum sentences in terms of
s 51, a trial court
must necessarily safeguard against the risk that
sentences so disproportionate as to be unconstitutional. The
applicable test is
that established by S v Malgas
2001 (1) SACR 469
(SCA), approved by the Constitutional Court in S v Dodo
[2001] ZACC 16
;
2001 (1) SACR
594
(CC). In Malgas, the court said the following:
‘
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.
[6]
A sentencing court is therefore required to determine, in each case,
on its own merits, whether the prescribed sentence is proportionate
to the offence, the latter term to be construed so as to include the
nature and seriousness of the offence, and all relevant personal
and
other circumstances. The sentencing court may not a priori assume
that the prescribed minimum sentence is proportionate in
each
instance; on the contrary, it may well be that the prescribed
sentence is seldom proportionate (see S v Vilakazi
2009 (1) SACR 552
(SCA), a case where like the present, the offence comprised the rape
of a girl under the age of 16).
[7]
The decision of the Full Bench referred to above provides guidance on
a sentence that might be proportional in the circumstances.
While
acknowledging that not all cases are the same, each of the appeals
under consideration in that instance displays significant
similarities with the present. In S v M (supra) the appellant was
convicted of raping his 12 year old step daughter in the family
home.
The court substituted the sentence of life imprisonment with a
sentence of 12 years. In S v JS (supra), the appellant, aged
13 st
the time of the offence, was convicted of raping a four year old
girl. The court similarly substituted the sentence of life
imprisonment with a sentence of 12 years. In S v JV (supra), the
court substituted the sentence of life imprisonment with a sentence
of fifteen years, to run concurrently, on each of two counts of rape
in circumstances where the appellant had raped his daughters
from the
age of about 9 until they reached the age of about 12.
[8]
Similarly, in Ndou v The State (93/12, unreported, 28 September 2012)
and Mudau v The State (764/12, unreported, 9 May 2013),
the Supreme
Court of Appeal reaffirmed that life imprisonment is the ultimate and
most severe sentence which a court can impose
and that whether it is
an appropriate sentence, especially in relation to its
proportionality to the circumstances of the case,
requires careful
consideration. In Ndou, a sentence of life imprisonment was set aside
and substituted by a sentence of 15 years’
imprisonment in
circumstances
where a stepfather was convicted of raping his 16 year-old
stepdaughter. In Mdau, a sentence of life imprisonment
was set aside
and substituted by a sentence of 15 years’ imprisonment in a
case where an uncle was convicted a raping his
13 year-old niece. Of
course, in each instance, the sentence was dictated by a conspectus
of all of the relevant circumstances,
but these are not far removed
from the facts in the present instance.
[9]
The trial court appears to have approached the issue of sentence from
the perspective that there is no gradation between the
prescribed
sentence of 10 years’ imprisonment where the victim is over the
age of 16, and the maximum sentence where she
is under that age,
irrespective of all of the aggravating or mitigation factors that may
be present. To regard the minimum prescribed
sentence as
determinative or to place undue emphasis on it, runs the risk, as the
courts have observed, of a sentence that is disproportionate
to the
crime, the criminal and the needs of society. In sentencing the
appellant, the trial court did not apply the determinative
test in
the sense that it is articulated by the relevant authorities,
insufficient weight was accorded to the appellant’s
circumstances and the legitimate interests of society. In the absence
of an assessment conducted with the necessary rigour, the
result is
that the sentence appears to have been ‘read off the machine’.
This court is therefore empowered to interfere
with the sentence and
determine a sentence that meets the requirements of proportionality.
[10]
The starting point in any determination of an appropriate sentence is
to acknowledge and bring into account the scourge of
rape. In S v
Ncheche
[2005] ZAGPHC 21
;
2005 (2) SACR 386
(W), the court said the following:
‘
Rape
is an appalling and utterly outrageous crime, gaining nothing of any
worth for the perpetrator and inflicting terrible and
horrific
suffering and outrage on the victim and her family. It threatens
every woman, and particularly the poor and vulnerable.
In our
country, it occurs far too frequently and is currently aggravated by
the grave risk of the transmission of Aids. A woman’s
body is
sacrosanct and anyone who violates it does so at his peril and our
Legislature, and the community at large, correctly expect
our courts
to punish rapists very severely. ’
[11]
In the present instance, the circumstances of the rape are such that
the
complainant
was enticed into the appellant’s room, which he locked before
proceedings to rape her, having turned up the volume
of music playing
to mask any sound made by the complainant. Afterward, the appellant
threatened to kill the complainant if she
disclosed the incident to
any other person, it was only after the complainant later discovered
that she was pregnant (as a consequence
of the rape) that she
disclosed that she had been raped, identified the appellant as the
perpetrator. She later underwent an abortion.
The psychosocial report
prepared for the purposes of sentence records that the emotional
impact of the crime on the victim- her
low self- esteem, sense of
loss and powerlessness, anger and hostility, her sense of guilt and
shame, her pseudo-maturity and inappropriate
sexual behavior. The
report concludes that the victim was put through a ‘life
threatening and traumatic experience which
can affect her for the
rest of her life.’
[12]
The appellant is described in the pre-sentence report as a 40
year-old man, the victim being his only child. He is described
as a
withdrawn, very quiet, secretive individual, who displays no emotion.
The report records the absence of any remorse by the
appellant for
his conduct, and a harboured sense of anger directed toward the
victim’s mother. The report does not directly
address any
prospects of rehabilitation. However, there is nothing before us to
refute the proposition that the appellant is capable
of
rehabilitation, a prospect that would be denied him should the
minimum prescribed penalty be imposed. Further, the act of rape,
while an act of violence in itself, was not accompanied by any other
physical violence or physical injury to the victim.
[13]
We must also necessarily take into account that the present case sits
on the cusp of a minimum prescribed sentence of life
imprisonment,
and the ten-year minimum sentence prescribed in cases of rape where
the victim is aged 16 or older. The victim in
this instance was 9
months short of her 16th birthday when she was raped. As we have
noted, the absence of any gradation in the
minimum sentence
provisions runs the risk of disproportionality (and hence
unconstitutionally) of an approach that fails to make
a holistic
assessment of all of the relevant facts and circumstances, and the
victim’s age is a factor that must necessarily
be taken into
account.
[14]
In our view, a lengthy prison sentence would properly and
proportionally take into account the seriousness of the appellant’s
crime, the interests of the appellant and the needs of society. A
sentence of 15 years imprisonment is consistent with other, similar
cases to which we have referred and would constitute a sentence that
we consider to be both proportionate and appropriate in the
present
circumstances.
Order
I
make the following order:
1.The
appeal against conviction is dismissed.
2.
The appeal against sentence is upheld.
3.
The sentence of life imprisonment is set aside and substituted by a
sentence of 15 years’ imprisonment.
AVAN
NIEKERK