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[2013] ZAKZPHC 32
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Mabaso v S (AR 250/12) [2013] ZAKZPHC 32; 2014 (1) SACR 299 (KZP) (10 May 2013)
IN
THE KWAZULU - NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
CASE
NO: AR250/12
HIGH
COURT CASE NO: CC66/05
In
the matter between
MLUNGISI
PATRICK MABASO
........................................................................
APPELLANT
vs
THE
STATE
....................................................................................................
RESPONDENT
APPEAL
JUDGMENT
Date
of hearing: 06 February 2013
Judgment
delivered: 10 May 2013
D.
Pillay J
[1]
The appellant appeals against the sentence of life imprisonment for
two counts of rape, and fifteen years imprisonment for
robbery. The
trial commenced in the regional court where the appellant was
convicted. The matter was referred to the High Court
for sentencing.
The High Court refused leave to appeal against conviction but
granted leave to appeal against sentence.
[2]
On the facts, on 18 April 2004 the complainant, a working woman of
twenty eight years had alighted from a taxi and was walking
along
Helpmekaar Road and Pieters Road, Kwazulu-Natal. The appellant
approached her purportedly to propose love. She rejected
his
advances. He grabbed her arm, took out an Okapi knife, pointed it at
her and steered her in the direction of the forest nearby.
He took
her straight to a spot where there were dense trees, grass, soil and
stones. He instructed her to undress and to lie
down on the ground.
The thorns pierced her shoulders. She complained. He put her jacket
underneath her. He climbed on top of
her and had sexual intercourse
with her against her will.
[3]
Then he instructed her to get dressed. They continued walking. After
a while he told her to undress again. He raped her once
more.
[4]
The entire ordeal lasted for about an hour and a half. She did not
resist when he raped her as she feared he might stab her.
The
intercourse was very painful. She did not scream because in the
veldt no one was around to assist her. Thorns thick, long
and sharp
pierced her back and feet. The tips broke into her feet. She had
managed to brush off the thorns in her back.
[5]
During this encounter the appellant took the complainant’s
Nokia 5110 cellular phone and her wallet. She also lost her
shoes.
The complainant reported the matter immediately to her friend and
the next day to the police.
[6]
As she did not know the identity of her assailant she could not name
him to the police. However, about a month later she spotted
him and
alerted the police. He was arrested. She identified the appellant
from the ‘bumping’ way he walked, his height
and his
face.
[7]
The appellant’s defence was that he had an on-going
relationship with the complainant and that he had sexual intercourse
with her on various occasions with her consent. Allegedly, he
confronted her with the allegation that she was sleeping with
another man. They argued. He had previously taken her cellular phone
to repair it. She demanded its return. He told her that he
had sold
it for R300. She left after this argument.
[8]
In this appeal Mr Butler for the appellant correctly conceded that
no misdirection occurred in sentencing the appellant. He
also
acknowledged that the trial judge, K Pillay J, was alive to the
authorities on sentencing. She was one of the three judges
who
presided in S
v Matyityi
2011 (1) SACR 40
(SCA). The only ground on which he challenged the
sentence was that the trial court placed insufficient weight on the
mitigating
factors.
[9]
As substantial and compelling circumstances he proffered the
following: The appellant was thirty-three years. He was in a
stable
relationship akin to marriage. He was self-employed as the owner of
a tuck-shop. He supported his wife and two minor children
aged
twelve and three years. He did not harm the appellant physically
even though he brandished a knife. Notwithstanding the
robbery of
her purse with cash and a cellular phone, the appellant did not
suffer major financial loss. The complainant was a
mature woman.
This was not the worst form of rape. Between ten years imprisonment
for one rape and life imprisonment for two
or more, courts must
strike a balance, he urged. The sentence for the two rape
convictions and fifteen years imprisonment for
the robbery should
run concurrently. Relying on five appellate decisions,
1
he asked that the sentences be ameliorated.
[10]
I begin my analysis by referring to the bases on which the
Constitutional Court (CC) endorsed the legitimacy of s 51 (1)
of the
Criminal Procedure Act 105 of 1997 read with Schedule 2 Part 1 (‘the
Act’ also referred to as ‘the minimum
sentence
legislation’). I summarise the sentences the Supreme Court of
Appeal (SCA) imposed in some of the reported rape
cases. Thereafter
I remind that rape is intrinsically gender and sex discrimination. I
consider international law on gender and
sex discrimination and the
SCA’s treatment of race discrimination as an aggravating
factor for purposes of sentencing.
Lastly, I motivate for
maintaining sentences in rape cases that are as tough and long as
sentences in murder cases.
[11]
In
Dodo
the CC refused to confirm the invalidity of the Act. In conferring
constitutional legitimacy
2
it made four points relevant to my analysis in this case:
a.
The legislature and executive share an interest in the nature and
severity of punishment the courts impose.
3
b.
The CC ‘respect(ed) the legislature's decision to ensure that
consistently heavier sentences are imposed in relation
to the
serious crimes covered by section 51’,
4
which the ‘legislature doubtless(ly) intended’, but not
‘sentence(s) which (are) inconsistent with the Constitution.
5
c.
The interpretation of ‘substantial and compelling
circumstances’ in s 51(3)(a) of the Act by the SCA in
S
v Malgas
2001 (1) SACR 469
SCA is
‘an overarching guideline, ... a practical method to be
employed by all judicial officers faced with the application
of
section 51.
d.
The length of punishment must be proportionate to the offence
because proportionality between the offence and the period of
imprisonment ‘lies at the very heart of human dignity’.
6
I
deal first with a-c to recount how the CC and the SCA have applied
the legislation before turning to the proportionality test
in d.
[12]
The ‘severe, standardised and consistent’ sentences that
Malgas
7
advocated did not imply an inflexible imposition of the prescribed
minimum sentences. Although life imprisonment was the prescribed
minimum sentence in that case, the SCA imposed 25 years. By
‘standardised’ the SCA therefore did not mean
‘identical’,
‘same’ or ‘unvarying’
sentences in every case of murder. More likely ‘standardised’
meant
Q
‘
consistent’
or ‘harmonised’ with ‘consistent’ meaning
‘reliable’ and ‘coherent’.
8
[13]
Again more recently in
Centre for
Child Law v Minister of Justice and Constitutional Development
2009 (6) SA 632
(CC) para 45 the CC reminded that
‘
the
minimum sentencing regime makes for tougher and longer sentences.’
Evidence
of this development emerges in S
v
Vilakazi
[2008] ZASCA 87
;
2009 (1) SACR 552
(SCA)
(2008 (4) All SA 396)
para 51 in which the SCA noted that between
1998 to 2008 prisoners serving sentences of life imprisonment
increased over nine
times. Although the legislation has resulted in
dramatically higher sentences being imposed overall, the decisions
of the SCA
in rape cases vary significantly. The variances in
sentencing and the reasons for them emerge from the cursory survey
below.
[14]
In
Malgas
the appellant shot the deceased in the head while he slept. The
deceased’s wife instigated the shooting. The appellant
tried
unsuccessfully to resist but eventually pulled the trigger on the
wife’s instruction. She confessed spontaneously.
She
manifested remorse. Her youthfulness (twenty-two years
9
)
counted as a substantial and compelling circumstance in so far as it
held out prospects of rehabilitation even after a long
period of
imprisonment.
10
Four judges of the SCA reduced her sentence of life imprisonment to
twenty-five years.
[15]
The SCA reconstituted with three judges in
Matyityi
was faced with a rapist, twenty-seven years, married with three
children ranging between ten years and one month. His highest
level
of education was grade nine. He was one of three men who attacked
the complainant and her boyfriend whilst they were parked
along the
beach. They stuffed her boyfriend in the boot of the motor vehicle.
Driving off they took turns to rape the complainant.
The boyfriend
died later. On appeal the SCA increased the terms of imprisonment of
twenty-five years imposed by the trial court
to life imprisonment
for both murder and the rapes.
Matyityi
found that the trial court misdirected itself by failing to consider
previous convictions against the assailant. It criticised
the court
a quo
for not fully appreciating that the starting point in murder and
rape convictions was not a ‘clean slate ... but imprisonment
for life.’
11
In so doing
Matyityi
added its weight to the unanimous decision of four judges of the SCA
in
Malgas.
[16]
Unanimously, the bench in
Matyityi
rejected the trial court’s finding of remorse which it said
should be characterised as a ‘gnawing pain of conscience
for
the plight of another’
12
as a substantial and compelling circumstance because it was not
manifested by a plea of guilty and an apology, but rather an
address
by counsel from the bar.
13
The SCA criticised the trial court for using the terminology
‘relative youthfulness’ without attempting to define
it
in relation to that assailant. It did not rule out altogether
youthfulness as a mitigating factor favouring, say, a teenager.
However, the
viciousness
of the offence could rule out immaturity as mitigation.
14
A person of twenty- seven years could hardly be described ‘as
a callow youth’, the SCA found.
15
[17]
Another misdirection to emerge in
Matyityi
was that the trial court accepted that the complainant sustained no
permanent physical injuries. The SCA criticised this as
fundamentally misconstruing the ‘profound physiological,
emotional and symbolic significance for the victim’ of the
act
of rape itself.
16
[18]
Recently in
Patrick Clive Bailey v
State
[2012] ZASCA 154
, the SCA
composed of five judges confirmed a sentence of life imprisonment
notwithstanding a plea of guilty to the charge of
raping his
daughter of 12 years. The appellant had a previous conviction for
attempted rape.
[19]
In contrast to the authorities cited above the three-bench split
decision in S
v Nkomo
2007 (2) SACR 198
avoided imposing life imprisonment.
Notwithstanding the appellant’s conviction for raping his
victim five times during
the course of a night, slapping, kicking
and forcing her to perform oral sex on him, and holding her captive
after she injured
herself when she attempted to escape, the majority
found that there were substantial and compelling circumstances.
These circumstances
were the relative youthfulness of the appellant
who was twenty-nine years; he was employed; there was a chance of
rehabilitation
even though the appellant showed no remorse and no
evidence was lead on the prospects of rehabilitation. The majority
reduced
the sentence of life imprisonment to sixteen years
imprisonment. The decision is controversial.
17
Although
Matyityi
did not refer to
Nkomo
it is diametrically different on the questions of youthfulness and
remorse.
[20]
In contrast to the hefty sentences in
Malgas,
Matyityi,
and
Bailey,
Edson Ndou v S
[2012] ZASCA 148
,
18
reduced a sentence of life imprisonment to a 15 year term of
imprisonment. The complainant was 15 years and the appellant was
a
first offender of 47 years. The five judges who composed the
Ndou
court found that a sentence of life imprisonment was
disproportionate to the crime. They held that the court
a
quo
had misdirected
19
itself in finding that the appellant had raped the complainant
continuously because:
‘
(t)he
appellant was charged and convicted of one count of rape only. The
evidence of the complainant was that it was not for the
first time
that the appellant had had sexual intercourse with her and she
testified under cross-examination about one previous
occasion. She
said that it happened when her mother was away and came back the
following day. This suggests that when the appellant
was apprehended
it was the second time. It is therefore incorrect, as the court below
found, that the ‘rape was continuous’
and that there had
been ‘previous occasions’ on which the appellant sexually
abused the complainant. It was this reasoning
that led to the
misdirection that entitles this court to consider the sentence
afresh.’
[21]
Although the rape was not ‘continuous’, on the SCA’s
findings it nevertheless amounted to two rapes upon
a child. The
legislation prescribes life imprisonment for a single rape upon a
child.
[22]
Even though no victim impact evidence was led, the court acknowledged
that the complainant would have endured post-traumatic
stress.
However, it accepted the submissions for the appellant in the
following extract:
‘
On
the other hand the complainant did not suffer any serious physical
injuries. She submitted to the sexual intercourse on the occasion
in
question without any threat of violence. The fact that she had
accepted gifts and money from the appellant must have played
a role
in her submitting to the sexual intercourse.'
20
[23]
Added to the above are the list of cases to which Mr Butler referred.
Without detailing the circumstances of each case which
differ vastly,
I set out the sentences below purely for the purposes of
demonstrating the degree of variance in rape sentences.
1.
S
v Abrahams
2002 (1) SACR 116
(SCA) 12 years imprisonment for rape of a daughter;
2.
S
v Mahomotsa
2002 (2) SACR 435
(SCA) eight years and twelve years imprisonment for
two counts of rape;
3.
S
v Nkomo
2007 (2) SACR 198
(SCA) 16 years imprisonment for rape and
kidnapping;
4.
S
v Vilakazi
2009 (1) SACR 552
(SCA) 15 years imprisonment for the rape of a girl
under the age of sixteen.
[24]
The variances are a predictable and natural consequence of democracy
at work. They evidence judges exercising their judicial
discretion
independently of other arms of government and of each other. It frees
the discretion of the lower courts which then
have a wider choice of
appellate authorities on which to peg their decisions.
[25]
Although sentencing cannot be such that it amounts to inflexible
rubber stamping of the legislation, it cannot undermine the
legislative intent to impose consistently tougher sentences.
Furthermore, the degree to which a sentence deviates from the
prescribed
minimum correlates with the extent to which the sentence
serves to assuage the harm to the complainant. Consequently, an
inconsistently
low sentence could trivialise the trauma of the
complainant arising from the crime itself and in participating in the
prosecution.
[26]
However, the genesis of the Act adds another reason for not imposing
low sentences The memorandum accompanying the Act explains
that its
purpose was to create ‘a legal regime of discretionary minimum
sentences in respect of certain serious offences’
which it
‘categorised in terms of their degree of seriousness’ and
listed them in the four parts of the Schedule to
the Act. Amongst the
parties consulted in developing the response to problems with the
practical application of the Act was the
Western Cape Consortium on
Violence Against Women.
21
The legislation was also informed by International law and the
application of such law by the CC.
[27]
By the time the Act was promulgated Parliament had already elevated
rape as a violation of fundamental constitutional values
and rights
by ratifying the United Nations Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW) on
15 December 1995.
CEDAW, otherwise known as an international bill of rights for women,
was adopted by the United Nations in General
Assembly Resolution
34/180 on 18 December 1979 and signed on 29 January 1993. The
relevant extract states:
‘
Recognizing
that violence against women is a manifestation of historically
unequal power relations between men and women, which
have led to
domination over and discrimination against women by men and to the
prevention of the full advancement of women, and
that violence
against women is one of the crucial social mechanisms by which women
are forced into a subordinate position compared
with men,...
For
the purposes of this Declaration, the term "violence against
women" means any act of gender-based violence that results
in,
or is likely to result in, physical, sexual or psychological harm or
suffering to women, including
threats of
such acts, coercion or arbitrary deprivation of liberty, whether
occurring in public or in private life.’
22
[28]
As international law binding on South Africa the CC applied it in
Carmichele v Minister Of Safety And
Security And Another (Centre For Applied Legal Studies Intervening)
[2001] ZACC 22
;
2002 (1) SACR 79
(CC) para 62 to observe that:
‘
[f]ew
things can be more important to women than freedom from the threat of
sexual violence. As it was put by counsel on behalf
of the
amicus
curiae
“
Sexual
violence and the threat of sexual violence go to the core of women's
subordination in society. It is the single greatest
threat to the
self-determination of South African women.”
She
referred in that context to the following statement by the SCA in the
Chapman
[1997] ZASCA 45
;
[1997 (2) SACR 3
(SCA),
1997 (3) SA 341]
case:
“
The
courts are under a duty to send a clear message to the accused, to
other potential rapists and to the community. We are determined
to
protect the equality, dignity and freedom of all women, and we shall
show no mercy to those who seek to invade those rights.”
South
Africa also has a duty under international law to prohibit all
gender-based discrimination that has the effect or purpose
of
impairing the enjoyment by women of fundamental rights and freedoms
and to take reasonable and appropriate measures to prevent
the
violation of those rights.’
[29]
The CC also considered CEDAW in
Omar
v Government, RSA and Others
[2005] ZACC 17
;
2006
(2) BCLR 253
(CC) para 17. It did not do so in
Dodo
probably because
Dodo
was about determining the constitutional legitimacy of the Act from
the perspective of the separation of powers. In applying the
proportionality test it focused on balancing the rights in s 12(1)(e)
of the Constitution with the offence and the length of the
punishment
23
to ensure that the minimum sentences legislation did not amount to
cruel and unusual punishment. Its focus was not on the specific
crimes.
[30]
All this information about the nature of rape as gender and sex
discrimination would have informed the legislature when it
promulgated the Act. The next four cases exemplify the palpable
repugnance with which our courts respond to race discrimination
post-apartheid.
[31]
In S v
Salzwedel And Others
2000 (1) SA 786
(SCA) and S v
Van Wyk
1992 (1) SACR 147
(NmS) discrimination as an aggravating factor in
sentencing was introduced. In a poignant plea for transformation the
highest courts
in Namibia and South Africa at the time urged:
‘
But
there comes a time in the life of a nation, when it must and is able
to identify (discriminatory) practices as pathologies and
when it
seeks consciously, visibly and irreversibly to reject its shameful
past. ...
Substantially
the same temper should inform the response of South Africa to serious
crimes motivated by racism, at a time when our
country had negotiated
a new ethos and a clear repudiation of the racism which had for so
long and so pervasively dominated so
much of life and living in South
Africa. The commission of serious offences perpetrated under the
influence of racism subverts
the fundamental premises of an ethos of
human rights which must now 'permeate the processes of judicial
interpretation and judicial
discretion' including sentencing policy
in the punishment of criminal offences.
24
And
‘
It
cannot properly be said that a substantial term of imprisonment, in
the circumstances of this case, 'would serve no purpose
other than
retribution'. It would also give expression to the legitimate
feelings of outrage which must have been experienced
by reasonable
men and women in the community when the circumstances of the offence
were disclosed and appreciated. A lengthy
term of imprisonment
sanctioned by the Court would also serve another important purpose.
It would be a strong message to the
country that the courts will not
tolerate the commission of serious crimes in this country
perpetrated in consequence of racist
and intolerant values
inconsistent with the ethos to which our Constitution commits our
nation and that courts will deal severely
with offenders guilty of
such conduct. As the highest Court of the country in such matters,
the Supreme Court of Appeal must
project this message clearly and
vigorously.’
25
[32]
S v
Combrink
2012 (1) SACR 93
(SCA) and the full bench in S v
Botes
2011 (1) SACR 439
(GNP) applied
Salzwedel.
Combrink,
in which the minimum
sentence applied, broadened the scope thus:
‘
I
am not suggesting by any means that the murder committed in this
case was racially motivated. However, I am saying that courts
must
be conscious and sensitive to cases which on the facts appear to
have a racial or discriminatory connotation, especially
when dealing
with the question of sentence.’
26
And
‘
...
The public interest and discrimination are not necessarily between
black and white but rather between people in general who
perceive
others, with prejudice, to be different or inferior to them. It is
this
perception
that
the judiciary should address.’
27
(my
underlining)
Combrink
increased the sentence of 10 years for murder to the minimum
sentence of 15 years' in terms of
s 322(6)
of the
Criminal Procedure
Act 51 of 1977
.
28
[33]
In noting that sentences should give expression to legitimate
feelings of outrage against the ‘evil of racism’,
29
Botes
insightfully observed:
‘
[22]
The gravity of the offence committed by the appellant and his
socii
criminis
does
not lie only in the killing of an innocent person, and/or the
severity and the brutality in the commission thereof, but more
in
the motive which propelled them to commit it — racism!
Racially motivated offences, committed by whomever, offend against
the ethos and aspirations of the peoples of this nascent democracy.’
And
‘
I
am of the view that the further away we move from 1996, there is a
need to deepen and strengthen the ethos of the Constitution.
There
is equally a duty on the courts to impose harsher sentences in
racially motivated crimes, because there is no room for
racist
bigotry in this democracy. There is no need to be sympathetic to
those who are fixed in the past, when the majority of
the people of
this country are forging ahead with reconciliation.
In
casu,
the
crime was committed seven years into the democracy. There was no
need for the commission of this offence, and it warrants
that severe
sentences should be imposed.
30
[34]
Botes
dismissed the appeal
against the sentence of 15 years' imprisonment
oh
imposed
on the appellant, who was 17 years when he committed murder.
31
[35]
The courts found that in all these cases the deceased were killed
simply because they were black. The crime was murder. The
motive and
aggravating factor was racism. In this case the complainant was
raped because she was female. Rape is inherently and
automatically
sex and gender discrimination. Gender and sex are the recognised
grounds of discrimination because of the prevalence
of rape by men
of women. As inherently discriminatory, rape is distinguishable from
other crimes for which minimum sentences
are prescribed.
Discrimination will count as an aggravating factor for those crimes
only if it is found to exist in a particular
case. The aggravation
will always exist in every rape case. Hence it is built or priced
into the minimum sentence. Deviating
from the minimum sentences for
rape should therefore be slow.
[36]
Another consequence of rape that distinguishes it from the other
serious crimes for which minimum sentences are prescribed
is the
propensity of the victim to become suicidal. S
v
Ntaka
[2008] ZASCA 30
;
2008 (2) SACR 135
(SCA) is
one of the many cases in which the complainant attempted suicide and
testified to being suicidal and depressed. Others
simply do not make
the law reports. Few crimes are as dignity and soul destroying as
rape is.
[37]
The socialisation of the offenders in all four racism cases above
was to treat other human beings who were different and
vulnerable as
inferior. The same is true of every rapist and his victim. The total
and absolute abhorrence of racial discrimination
must apply with
equal and uncompromising vigour to all forms of unfair
discrimination and especially to gender and sex which
rank second
and third after race in s 9(3) of the Constitution, 1996. For these
reasons too sentences must be constantly, consistently,
coherently
and reliably high.
[38]
Proportionality in applying the minimum sentence legislation is not
only about balancing the offender’s rights with
the sentence
to be imposed.
32
In our constitutional jurisprudence it is also about balancing all
rights in the Bill of Rights in order to arrive at a just
decision.
33
As the CC pointed out in
The Citizen
1978 (Pty) Ltd And Others v Mcbride (Johnstone And Others, Amici
Curiae)
2011 (4) SA 191
(CC) para
148 our Constitution knows no hierarchy of rights. Just as in that
case in which freedom of expression was held to
be just as important
as human dignity, in this case the appellant’s rights to a
fair trial and not to be subjected to cruel
and unusual punishment
rank equally with the complainant’s right to equality.
[39]
In S
v Mamabolo (E TV and Others
Intervening)
[2001] ZACC 17
;
2001 (3) SA 409
(CC)
para 41 the CC reminded that
‘
the
Constitution, in its opening statement, and repeatedly thereafter,
proclaims three conjoined, reciprocal and covalent values
to be
foundational to the Republic: human dignity, equality and freedom.’
34
[40]
Both the appellant and the complainant are entitled to the right to
human dignity, equality and freedom. However, once the
appellant has
infringed these rights of the complainant he cannot expect to enjoy
them to the same extent as she is entitled
to or in the same way he
did before his conviction. His rights must yield in favour her
rights. Consequently, sentencing in rape
cases cannot be so low as
to trivialise or dilute not only the complainant’s rights, but
importantly, our constitutional
values of human dignity, equality
and freedom. Nor can the court default on the responsibility it
shares with other arms of government
in imposing consistently higher
sentences as the collective strategy to combat serious crimes.
[41]
An academic commentator observes:
‘
Mention
has been made of the fact that life imprisonment prescribed for rape
is more controversial than it is in the case of murder.’
35
And
‘
When
murder is attended by aggravating features the imposition of the
ultimate punishment, life imprisonment, is seldom controversial.
The
same is not true of rape. The Act prescribes life imprisonment for
rape in many instances where such sentence would not have
been
contemplated before. Our courts have found this situation
problematic and have, on many occasions, overturned life
imprisonment
for rape when the crime could not be “classified
as falling within the worst category of rape”’.
36
[42]
He also submits that attempts to supersede previous judicial
attempts at describing the horrific nature of rape as a crime
in
general have nothing to be gained.
‘
Eventually,
nothing describes the seriousness of a crime as well as the gravity
of the punishment that is imposed.’
37
[43]
I agree. The clearest demonstration of how serious rape is lies in
the sentence itself. At the same time rapists as human
beings ‘ought
to be treated as ends in themselves, never merely as means to an
end.’
38
[44]
Turning to the facts in this case, a long custodial sentence is
unavoidable. This is an overriding factor in considering
the
appellant’s personal circumstances.
[45]
Youthfulness and family responsibility have been held to constitute
substantial and compelling circumstances in some of the
cases above.
Youthfulness is not such a circumstance in this case because at 33
years the appellant’s crime was not driven
by immaturity.
Family responsibility would count as a mitigating factor if the
appellant took these responsibilities seriously.
As an adult with
responsibilities to Ms Bongiwe Mpinga, a woman he considered to be
his wife and to the minor children who were
dependent on him for
their livelihood and welfare, he showed scant regard for these
obligations when he raped the complainant.
[46]
Ms Mpinga testified in mitigation for him. During his incarceration
she tried unsuccessfully to run his tuck-shop. Thereafter
she
depended on R350 she received as the proceeds of an unemployment
insurance fund. That was the situation in May 2005 when
the
appellant was sentenced. He awaited trial as a prisoner from 13
August 2004 to 30 November 2004 when he was convicted. By
the time
he was sentenced there was no tuck-shop to return to. As a long
custodial sentence is inevitable his family’s
needs could not
be a compelling consideration.
[47]
The appellant also admitted to having three previous convictions for
possession of unlawful arms and ammunition and unlawful
abduction.
39
He was legally represented when he admitted his previous
convictions. The court questioned Ms Mpinga as follows:
‘
And
he did something similar years ago as well, he abducted someone. Now
when one talks of abduction, one usually abduct(s) as
opposed to
kidnapping when one wants the person for sexual favours. That was in
1997, I think.’
(sic)
Her
response was:
‘
The
sentence was in 97 and he did it in 96 May.’
The
trial court found:
‘
Now
as far as the accused is concerned he is no stranger to these
courts. The fact that he was convicted of abduction suggests
that he
has some sort of kind of propensity for committing sexual
offenses.’
40
(sic)
[48]
The SAP 69’s for his previous convictions were omitted from
the record probably inadvertently. However, the appellant
was
legally represented and could have objected if the evidence about
his previous convictions and the SAP 69’s were false
or
inadmissible. His counsel might also have re-examined Ms Mpinga if
the sentence for abduction was not long or if he disagreed
about any
other aspect that was put to her. She also did not dispute that the
sentence for abduction was for a sexual offence.
Therefore, when the
appellant raped the complainant on 18 April 2004 he had recently
(after 1997) been released from prison after
serving a long sentence
for a sexual offence. The appellant could also have testified in
mitigation and to correct any aspect
of the previous convictions
that the court put to his witness. His silence leads to the
inference that he did not disagree with
the evidence led or the
court’s observations.
[49]
Indicators of the appellant’s socialisation and consequently,
his prospects of rehabilitation are to be found not only
in the rape
but also in his defence itself. He used a knife to compel the
complainant to do his bidding. He robbed her. He chose
her only
because she was a woman. The robbery was incidental to his primary
objective of raping her because he took what little
she had after he
raped her. Although I reject his version as false, the mere fact
that he conjured up such a defence also provides
some insight into
his mind-set. The appellant has hardly been a model husband and
father. Furthermore, on his version he considered
himself entitled
to multiple sexual relations. He took umbrage when he suspected that
the complainant had sex with another man.
To him the complainant was
inferior, entitled to less than what he was entitled to. He showed
no shame, remorse or the slightest
understanding that even on his
version he owed the complainant an apology.
[50]
These factors all point to confirming the sentence of life
imprisonment. However the proportionality test also applies to
avoid
the ‘startling incongruities’ identified in
Vilakazi.
41
Furthermore, strict, inflexible deference to the minimum sentence
legislation should be avoided to ensure its constitutional
viability.
42
[51]
Factors that go to ameliorating the sentence of life imprisonment
include the maturity of the complainant and the degree
of force and
violence the appellant used to cow her to capitulate. As a mature
woman the impact of the rape on her would, objectively
speaking, be
less severe than on a child. This inference is manifest from the
differing minimum sentences for rape of adults
and children. The
force and violence the appellant used and the injuries she sustained
from being pricked by thorns do not amount
to grievous bodily harm.
If her injuries did amount to grievous bodily harm then a single
rape accompanied by grievous bodily
harm would have attracted life
imprisonment under Part 1 of Schedule 2.
[51]
The only reason this offence qualifies for a Part 1 sentence is that
the appellant raped the complainant twice. This elevates
the
sentence from the minimum of ten years for one rape imposed in Part
2 of Schedule 2 to life imprisonment in Part 1. Both
rapes occurred
in relatively quick succession. The entire ordeal lasted about an
hour and a half.
[52]
On the facts, this case is distinguishable from
Bailey
in which the complainant was a child. It is also distinguishable
from
Matyityi
in which the violence accompanying that rape was far worse. However,
this case is distinguishable from
Nkomo
and other cases in which less severe sentences were imposed for two
reasons. Firstly, similar to
Bailey,
the appellant has a previous related conviction for abduction. The
conviction was barely eight years before he was convicted
again of
this offence.
[53]
Secondly, the proportionality test applies to the facts in this case
through the prism of discrimination law. The appellant’s
socialisation, sheer lack of remorse and acknowledgment of wrong
doing diminishes any hope for his rehabilitation. Consequently,
his
propensity to be a repeat offender is real. As such, he remains a
risk to society. Therefore, the appropriate punishment
should be
imprisonment for twenty- five (25) years for two counts of rape
taken together. As regards the robbery count, given
the
insignificant value of the cell phone, wallet and cash of R18.00
that the appellant stole, the prescribed minimum sentence
of fifteen
years’ imprisonment is disproportionately high. Eight years’
imprisonment fits this offence.
[54]
I have had the privilege of reading the opinion of my brother Koen J
with whom I respectfully disagree about the sentence
to be imposed,
whether the previous conviction for abduction counts and whether the
minimum sentence legislation applies. The
first two issues are
covered in my judgment. My reasons for holding that the Act applies
are based on the case law relating to
notice of the Act to an
accused as applied to the facts in this case. For the facts on this
issue I defer to Koen J’s recording
of what the charge sheet
and transcript contained. In essence, the charge sheet referred
sloppily to the Act without specifying
the sections, and the
transcript does not show that trial court alerted the appellant to
its provisions at the outset. However,
I respectfully disagree with
his analysis of those facts.
[55]
The test is whether the accused knew what the charges were and what
possible sentence he would get if he was convicted. The
charge sheet
must not mislead him into believing that the state is relying on a
different charge or sentencing regime. Clear
proof that he was aware
of the possible sentence would be if there was notice in the charge
sheet or indictment or in the record
of the proceedings. However,
these are not the only sources of such proof. S
v
Ndlovu
2003 (1) SACR 331
(SCA)
anticipates such notice ‘if not in the charge-sheet then in
some other form’.
43
Where an accused is legally represented and the charge sheet refers
to the Act there is no duty on the trial court to ensure
that the
accused is aware of the gravity of the conviction of a minimum
sentence charge.
43
Conversely, a minimum sentence cannot be imposed where the charge
sheet does not refer to the Act and the accused is not forewarned
that the Act would apply.
44
[56]
S
v Legoa
2003 (1) SACR 13
(SCA) para 21 clarified that the matter is one of
substance and not form, and refused to lay down a general rule that
the charge
must in every case recite either the specific form of the
scheduled offence with which the accused is charged, or the facts
the
State intends to prove to establish it. The court was alive to
the ‘intolerable complexities in the administration of justice
and . the practical realities under which charge-sheets are
frequently drawn’.
[57]
S
v Mseleku
2006 (2) SACR 574
(D) at 581 A-E elaborated on how
Ndlovu
should be applied. However, the
court concluded that
‘
if
any reference is made in the indictment to the state’s
reliance on the “minimum sentence Act”, a court may
well
be justified in assuming that counsel would have drawn that to the
accused’s attention.’ (my underlining)
[58]
In S
v Tshidso
2002 (1) SACR 207
(W) a failure to explain the implications of the
Act was held not to vitiate the conviction or the sentence when
there was clear
evidence of robbery, obvious aggravating
circumstances and the taking of a motor vehicle. In contrast, in
Maake v DPP
[2011] 1 All SA 460
(SCA) it was clear that although the appellant
was represented, there was no indication at all that the magistrate
considered
imposing the maximum sentence. Consequently, the
appellant’s legal representative could not have been invited
to make submissions
on the sentence.
45
[59]
In S
v Makatu
2006 (2) SACR 582
(SCA) the appellant was charged and convicted of
murder which would have attracted a sentence of 15 years'
imprisonment. However,
he was sentenced for premeditated murder for
which s 51(1) of the Act opened him to imprisonment for life. The
SCA summarised
the reasons for notifying an accused as follows:
‘
[7]
As a general rule, where the State charges an accused with an
offence governed by s 51(1) of the Act, such as premeditated
murder,
it should state this in the indictment. This rule is clearly neither
absolute nor inflexible. However, an accused faced
with life
imprisonment - the most serious sentence that can be imposed - must
from the outset know what the implications and
consequences of the
charge are. Such knowledge inevitably dictates decisions made by an
accused, such as whether to conduct his
or her own defence; whether
to apply for legal aid; whether to testify; what witnesses to call;
and any other factor that may
affect his or her right to a fair
trial.
[60]
The reasons for providing information to an accused is not to enable
him to falsify his defence by, for instance, contending
that there
was one rape and not two or that he believed the complainant was
over the age of 16. No doubt these elements of the
offence will
focus his mind on what needs to be proved but it is not an
invitation or opportunity to be untruthful.
[61]
The facts of this case are distinguishable from those cases in which
the accused’s substantive fair trial rights were
impaired for
the following reasons:
a.
The appellant was legally represented throughout.
b.
The charge sheet set out two counts of rape of the same complainant
at the same place and the same time.
c.
Although the references to the Act are sloppy, the appellant and his
legal representative could not have been misled or in
any doubt that
Part 1 of Schedule 2 of the Act applied.
d.
When the matter was about to be transferred to the High Court for
sentencing in terms of s 52 (1)(B)(i) of the Act, the prosecutor
pointed out that the complainant was raped twice and that the matter
fell under Part 1 of the Schedule 2 of the Act. The learned
magistrate invited the appellant’s legal representative but he
declined to make submissions. If he was unaware that the
Act applied
he would have protested.
e.
On appeal, the appellant was ably represented by Mr Butler who has
proven competence and experience in minimum sentences cases.
f.
Mr Butler conceded that there was no misdirection, as there would
have been if the appellant was unaware that he faced life
imprisonment.
g.
The shortcomings in the charge sheet were not raised as grounds of
appeal.
h.
Having regard to the appellant’s defence of a love affair with
the complainant whose surname and address he did not know,
and a
bald denial of the rape, there was little more he could say or do to
have helped himself.
[62]
For all these reasons I am satisfied that the appellant had a fair
trial. Even if I am wrong on this issue, and the Act does
not apply,
sentencing is entirely a matter for the discretion of the court, as
long as the sentence is not one that no reasonable
court would
impose.
46
Furthermore, whatever sentence is imposed must be proportional to
balance all the rights and values. In a constitutional democracy
based on rights and values of human dignity, equality and freedom, a
sentence of twenty-five years for raping the complainant
twice is
proportional
[63]
I propose the following order:
The
appeal against the sentences is upheld and substituted with the
following:
a.
For the two rape counts, taken as one for the purposes of
sentencing, the appellant is sentenced to a term of twenty-five (25)
years imprisonment.
b.
For the robbery count the appellant is sentenced to a term of eight
(8) years imprisonment.
c.
Both counts are to run concurrently.
d.
In terms of s 276B (2) of the Act, a non-parole period is fixed at
16 years of the effective sentence of 25 years.
D.
Pillay J
Appearances: //
Appearances
Counsel
for the Appellant: Advocate J BUTLER
Instructed
by: Legal Aid SA
Pietermaritzburg
Justice Centre
Tel:
033 394 2190
Fax
: 033 342 2576
Counsel
for the Respondent: Advocate Y Gangai
Instructed
by: Director Public Prosecutions
Pietermaritzburg
Tel:
033 845 4400
Fax
: 033 394 6891
1
S
v
Malgas
2001
(1) SACR 469
(SCA); S
v
Abrahams
2002
(1) SACR 116
(SCA) 12 years imprisonment for rape of a daughter; S
v
Mahomotsa
2002
(2) SACR 435
(SCA) eight years and twelve years imprisonment for the
two counts of rape; S
v
Nkomo
2007
(2) SACR 198
(SCA) on appeal sentenced to 16 years imprisonment for
rape and kidnapping; S
v
Vilakazi
[2008] ZASCA 87
;
2009
(1) SACR 552
(SCA)
(2008 (4) All SA 396)
15 years imprisonment for
the rape of a girl under the age of sixteen.
2
Dodo
v S
[2001] ZACC 16
;
2001
(1) SACR 594
(CC) para 41, 43, 52.
3
Dodo
para
23-24
4
Dodo
para
11
5
Dodo
para
33.5
6
Dodo
para
38
7
Malgas
para
481
8
Thesaurus
English
(U.K.)
(electronic)
9
Malgas
para
26
10
Malgas
para
34
11
Malgas
para
8
12
19
Matyityi
para
13
13
Matyityi
para
12
and 13
14
Matyityi
para
14
15
Matyityi
para
14
16
Matyityi
para
10
17
S
van Der Merwe et al DuToit: Commentary on the
Criminal Procedure Act
(Revision
Service 47 - 2011) 18D; S Terblanche ‘Sentencing’
(2008)
SACJ
119
125; JD Mujuzi ‘The prospect of rehabilitation as a
‘substantial and compelling’ circumstance to avoid
imposing life imprisonment in South Africa: A comment on S
v
Nkomo’
(2008)
SACJ
1.
18
Delivered
on 28 September 2012, two days before the life sentence issued in
Bailey
by
five judges other than the
Baily
court.
19
Ndou
para
10
20
Ndou
para 13
21
http://www.info.gov.za/view/DownloadFileAction?id=72027;
See Also Sa Law Commission Report Project 82 Sentencing (A New
Sentencing
Framework ) December 2000
22
Preamble
and Article 1 of CEDAW available at
http://www.polity.org.za/polity/govdocs/reports/nongov/sexviolence/scared09.htm,
accessed
on 1 March 2013.
23
Dodo
para 34, 37-38
24
Salzwedel
para
13
25
Salzwedel
para
18
26
Combrink
para
24
27
Combrink
para
25
oo
28
Combrink
para
26
29
Botes
para
22
30
Botes
para
28
31
Botes
para
6, 31
32
Dodo
v S
para
26, 30, 31, 38,39
33
Ntaka
v S
[2008] ZASCA 30
;
[2008]
3 All SA 170
(SCA) para 15
34
S
v Mamabolo (E TV and Others Intervening)
[2001] ZACC 17
;
2001
(3) SA 409
(CC) para 41
35
SS
Terblanche
The
Guide to Sentencing in South Africa
2ed
(2007) 67
36
SS
Terblanche
The
Guide to Sentencing in South Africa
2ed
(2007) 53
37
SS
Terblanche ‘Sentencing’ (2009)
Annual
Survey of South African Law
1158
at 1189 commenting on S
v
Kearns
2009
(2) SACR 684
(GSJ)
38
Dodo
para
38
39
Page
214
40
225
lines 15- 20
41
Para
13
42
See
Dodo
supra.
43
S
v
Nkadimeng
2008
(1) SACR 538
(T)
44
S
v
Tshabalala
[2007] ZAGPHC 168
;
2008
(1) SACR 486
(T)
45
Maake
v DPP
[2011]
1 All SA 460
(SCA)
46
S
v
Kgosimore
1999
(2) SACR 238
(SCA) para 10.