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[2013] ZAFSHC 19
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Louw v S (A297/11) [2013] ZAFSHC 19 (28 February 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A297/11
In the appeal between:-
BUSANI JOHANNES
LOUW
........................................................
Appellant
and
THE STATE
...............................................................................
Respondent
_______________________________________________________
CORAM:
LEKALE, J
et
DA
ROCHA-BOLTNEY, AJ
_______________________________________________________
HEARD ON:
11 FEBRUARY 2013
_______________________________________________________
JUDGMENT BY:
DA ROCHA-BOLTNEY, AJ
_______________________________________________________
DELIVERED:
28 FEBRUARY 2013
_______________________________________________________
JUDGMENT
_______________________________________________________
[1] The appellant was
convicted of rape in the Regional Court, Bloemfontein and sentenced
to 30 (thirty) years imprisonment, on
the 21
st
June 2010.
An application for leave to appeal against the conviction and
sentence was dismissed. Leave to appeal against the sentence
was
obtained by petitioning the Judge President.
FACTS
[2] During September
2008, at Trompsburg, the appellant had sexual intercourse with the
complainant, a 9-year old girl, without
her consent. This happened
more than once. The appellant is well-known to the complainant’s
mother as they used to consume
alcohol together. Complainant had been
sexually penetrated per genitalia, i.e. vaginally and per annum.
[3] Appellant used to
send the complainant to do some chores and thereupon he would rape
her. Complainant reported to her mother
who confronted appellant, but
he denied it. Later complainant made a report to an elderly
neighbour, Mrs Lydia Mphuti. According
to this witness complainant’s
mother is mentally unstable. Complainant ran to this neighbour’s
house after she heard
that appellant was calling her again. After
some questioning by the neighbour it came to light that appellant
usually calls complainant
and then rapes her. The authorities were
notified. Appellant was arrested and subsequently convicted.
ARGUMENTS
[4] Mr Reyneke, who
appeared for the appellant, argued that the court
a quo
correctly found that there were substantial and compelling factors
entitling the court to deviate from the prescribed minimum sentence.
[5] He, however, argued
on behalf of the appellant that the sentence of 30 (thirty) years
imprisonment is shockingly inappropriate
and harsh.
[6] On behalf of
appellant it was argued that there were no aggravating factors that
would justify that term of imprisonment, especially
if regard is had
to the following,
inter alia
:
6.1. No evidence was led
in aggravation of sentence;
6.2. No evidence was led
regarding the psychological and psychiatric effect that the rape had
on the complainant or she is likely
to experience in the future;
6.3. The doctor’s
evidence shows that there were no physical injuries except the hymen
which was half-moon like, but not oestrogenated.
[7] As mitigating
factors, counsel for appellant argued that the following should have
been taken into account:
Appellant was 26 years
old at the time of the commission of the offence.
He had spent two years
and three months in custody awaiting trial.
He is a first offender.
He was prepared to
apologise to the complainant and her parents.
The
court failed to take into account the effect of overly long
sentences. See
S v Mahomotsa
2002 (2) SACR 435
SCA at [17];
S
Abrahams
2002 (1) SACR 116
(SCA);
S v Pute
1990
(1) SACR 339
at 340 d-f and
S v
Nkomo
2007 (2) SACR 198
(SCA).
[8] It was further the
submission of the appellant’s counsel that the period of
imprisonment is in excess of his age for an
offence which cannot be
described as “a much worse case of rape” and in imposing
same, the court has deprived him of
any opportunity of
rehabilitation.
[9] Mr de Nysschen, who
appeared for the respondent, submitted that the trial court
incorrectly found that there were substantial
and compelling factors
present and requested this court to increase the term of
imprisonment, to bring it in line with the one
prescribed by the
Criminal Law Amendment Act no 105 of 1997 (Act on Minimum Sentences).
He argued that the trial court committed
misdirection in this regard.
[10] The observation made
by the trial magistrate
“That only, for the fact that
you are still in your twenties, I feel I should not impose life
imprisonment”
, was regarded, by counsel for
respondent, to be wrong and as not in accordance with the Act on
Minimum Sentences. He referred the
court to
S
v Matyityi
2011 (1) SACR 4
(SCA) at 48a –
b:
“
In my view a
person of
20
years or more must show
by acceptable evidence that he was immature to such an extent
that
his immaturity can operate as a mitigating factor.
At the age of 27 the respondent could hardly be described as a callow
youth. At best for him, his chronological age was a
neutral
factor
.
Nothing in it served, without more, to reduce his moral
blameworthiness.”
[11] Counsel for
respondent referred to
S v MALGAS
2001 (1) SACR 469
(SCA). Counsel for respondent argued that because the complainant is
so young she suffered enormously and that she will have serious
psychological scars as a consequence.
[12] Appellant was found
guilty of an offence listed under Part I of Schedule 2 of the Act on
Minimum Sentences, as amended. According
to section 51(2) (b) read
with subsection (3):
“
If any court
is satisfied that substantial and compelling circumstances exist
which justify the imposition of a lesser sentence
than the sentence
prescribed in those subsections, it shall enter those circumstances
on the record of the proceedings and may
thereupon impose such lesser
sentence...”
[13]
It seems that the court
a quo
considered the fact that the appellant was in his
twenties and spent some time in custody awaiting trial, sufficient to
deviate
from the term of imprisonment, prescribed by the Act on
Minimum Sentences. It is trite that the court may, in appropriate
circumstances,
have regard to the time the accused spent in custody
awaiting the finalization of his trial. See in this regard
S
v Vilikazi and Others
2000 (1) SACR 140
(W) and
S v
Brophy and Another
2007 (2) SACR 56
(W).
[14] In respect of the
argument put forward by appellant’s counsel that there is no
evidence with regard to psychological
harm suffered by complainant, I
would like to refer to
S v Mahomotsa
2002 (2) SACR 435
(SCA) at 441:
“
Where as
here, the complainants were young girls; it is quite unrealistic to
suppose that there will be no psychological harm.
To quantify
its likely duration and degree of intensity, of course, is not
possible in the absence of appropriate evidence, but
that does not
mean that one should approach the question of sentence on the footing
that there was no psychological harm.”
And in
S v E
1990 (2) SACR 625
(A), it was held that-
“
Sexual
molestation of children – the violation of the innocence of
children arouses the community’s indignation and
prompts it to
call for measures to protect its youth.”
It would seem that the
crime of rape has become too prevalent in our society. One can hardly
open a newspaper or any other form
of media without being confronted
with its ugliness which is permeating our society. In this instance
the complainant was a 9-year
old girl. Our courts will have to take
firm stance in this regard. In
Bailey v The State
(454/11)
[2012] ZASCA 154
(01 October 2012), an appeal against the
sentence of life imprisonment was dismissed. This case dealt with the
rape by a father
of his daughter. What was uttered by the Court with
regard to rape, I feel compelled to repeat-
“
It has
emerged insidiously in recent times as a malignant cancer seriously
threatening the well-being and proper growth and development
of young
girls. It is an understatement to say that it qualifies to be
described as a most serious threat to our social and moral
fabric.”
[15] When regard is had
to the above, as well as the fact that complainant was struggling at
school, was taken away from her mother
to live with foster parents
and the memory of the rape at that vulnerable age, I can safely say
that complainant must have suffered
psychological harm.
[16] Appellant was 27
years old (as per charge sheet) at the time of the commission of the
offence. To quote Theron AJA in a dissenting
judgment in
S v
NKOMO
2007 (2) SACR 198
(SCA):
“
The
appellant was 29 years old at the time and would ordinarily not
be regarded as a youthful or immature offender.”
I fail to see why the
appellant cannot fall into this category, as well.
[17] I feel that the
trial court misdirected itself when it found that the reasons or
factors listed below are substantial and compelling
to justify a
lesser sentence in the instant matter, to wit
that the accused was in
his twenties;
that he spent some time
in custody awaiting trial.
[18] I accordingly make
the following order:
18.1 The appeal is
dismissed and the conviction confirmed.
18.2 The sentence is set
aside and replaced by the following sentence:
“
The
accused is sentenced to life imprisonment in terms of section 276(1)
(b) of Act 51 of 1977.”
The sentence is
antedated to 21 June 2010.
_______________________
P.W. DA ROCHA-BOLTNEY
I agree.
_____________
L.J. LEKALE, J
On behalf of appellant:
Adv J.D. Reyneke
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of respondent:
Adv J.M. de Nysschen
Instructed by:
Office of Director of
Public Prosecutions
BLOEMFONTEIN
/spieterse