About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2012
>>
[2012] ZAGPPHC 129
|
|
Matwa v S (A443/2011) [2012] ZAGPPHC 129 (13 June 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF THE REPUBLIC OF
SOUTH
AFRICA NORTH GAUTENG, PRETORIA
CASE
NO A443/2011
DATE:13/06/2012
In
the matter of
BAFANA
FANI MATWA
.....................................
APPELLANT
vs
THE
STATE
........................................................
RESPONDENT
JUDGMENT
BAM
AJ.
1.
The appellant, aged 30, was convicted in the regional court
Vereeniging on a charge of rape in contravention of the provisions
of
section 3 of the Criminal Law Amendment Act (Sexual Offences and
Related Matters), Act 32 of 2007, of a female person, seven
years of
age, and sentenced to life imprisonment. Leave to appeal against only
the sentence was granted by the trial court. Hence
this appeal.
2.
The trial commenced on 13 January 2011.The appellant was represented
by an attorney at the trial. He pleaded not guilty and denied
the
allegations in the charge sheet but admitted, formally, that the
complainant was aged seven years at the time the crime was
committed
on 1 August 2010. The trial was partly heard on the said day and then
postponed to 17 February 2011. On the latter day,
after having
admitted the forensic DNA evidence, the appellant then altered his
plea to one of guilty to the charge. He further
admitted that the
provisions of the act on minimum sentences had been explained to him.
3.
Act 32
of 2007 repealed the "common low offence of rape and
replacing it with a new expanded statutory offence of rape,
applicable
to all forms of sexual penetration without consent,
irrespective of gender. See preamble to Act 32 of 2007.
4.
Sections 3 and 4 of Act 32 of 2007 creating the expanded statutory
offences read as follows.
"3.
Rape - Any person ("A") who unlawfully and intentionally
commits an act of sexual penetration with complainant
("B"),
without the consent of B, is guilty of the offence of rape.
4.
Compelled rape. —Any person (" a") who unlawfully and
intentionally compels a third person ("C"), without
the
consent o fC, to commit an act of sexual penetration with a
complainant ("B"), without the consent of B, is guilty
of
the offence of compelled rape."
7.
6.1 It is further of importance to bear in mind that section 276 of
the Criminal Procedure Act provides for punishment of a person
convicted of an offence in the following terms:
Section
276(1):
"Subject
to the provisions of this Act and any other law and of the common
law, the following sentences may be passed upon
a person convicted of
an offence, namely -" The section proceeds to provide for a
variety of punishments, including direct
imprisonment, a fine etc.
6.2
From the words used by the legislature in this section, it appears,
in my opinion, that whenever a crime is created by any Act
of
Parliament, and no provision is specifically made
for punishment
of that crime, a court may impose sentence in terms of the provisions
of this section.
6.3
Where, however, no provision is made in any act creating a crime, for
a specific penalty, the penal jurisdiction of any lower
court will be
subject to the provisions of the Magistrate's Court Act no 32 of
1944, providing for the maximum penal jurisdiction
of the specific
court.
8.
The problem regarding the principle nulla poena sine lege, arising
from the fact that no penal provision is provided for in Act
32 of
2007 pertaining to certain offences, was in depth considered and
ruled upon in the matter of Director of Public Prosecutions,
Western
Cape v Arnold Prins, Case number A134/08, Western Cape High Court.
That court concluded that due to the lack of a penal
provision in the
Act in question, the charge of contravening the provisions of section
5(1) of the said Act did not disclose an
offence. It was however
stated in the said case that the offences in terms of section 3 and 4
of the said Act were not affected
in that they are dealt with by
section 51 of Act 105 of 1997. The issues in that matter came to the
attention of the Supreme Court
of Appeal. A date for the hearing of
the matter in the latter Court has now been allocated by the
Honorable President of that Court.
9.
Whilst the reasoning of the full bench of the Western Cape High Court
is respected, it appears that the provisions of section
276 of the
Criminal Procedure Act, to what I have alluded above, were not
considered in the Prins case. I am of the humble opinion
that if the
provisions of section 276 of the Criminal Procedure Act are taken
into account, this Court is entitled to find that
a penal provision
pertaining to a contravention of the provisions of section 3 and 4 of
Act no 32 of 2007 is also provided for
in the provisions of that
section.
10.
Mr Malende, appearing for the appellant, submitted that the regional
court did not have jurisdiction to impose a life sentence
in this
matter in view of the fact that no punishment is provided for in Act
32 of 2007. For the reasons set out above, I do not
agree.
11.
I now turn to the salient facts of the case before us. According to
the complainant she was living with her grandmother. On
the day in
question she visited her mother's house. In the latter's absence,
whilst the complainant was in the company of other
children, the
appellant, a family member, whom she called Fanie, carried her to a
bedroom. She tried to scream but he covered her
mouth. The appellant
then undressed himself and the complainant. He overpowered her when
she resisted and proceeded to rape her.
After she was raped her
sister Ntswaki, entered the room. The appellant by then had already
left the room. The complainant, who
was still naked, told Ntswaki
that she was raped by the appellant. The complainant did not sustain
any physical injuries save for
the injuries to her private parts
reflected in the standard J88 form that was admitted as evidence. It
was recorded in the J88
that the complainant weighed 29,3 kg and that
her height was 1,16 m. Features of forced vaginal penetration were
found to be present.
12.
This Court's powers to interfere with the sentence of a trial court
are limited. Recently the following considerations in that
regard
were re-stated in S v Nkosi 2011(2) SACR 482 at 492 par [34]:
"Turning
to the issue of sentence, it should be re-iterated that sentencing is
pre-eminently a matter for the discretion of
the trial court and that
this court does not have an overriding discretion to interfere unless
the sentences imposed by the court
below are vitiated by irregularity
or misdirection or are disturbingly inappropriate/'
13.
The learned regional court magistrate, after having admitted a
pre-sentence report of the appellant, delivered a comprehensive
and
well-reasoned judgment on sentence, consisting of more than forty
pages, referring to applicable case law. It would be rather
difficult
to add anything to the magistrate's judgment. All relevant issues
were considered and discussed. I cannot do any better.
I also do not
deem it expedient to repeat the references to the more than sixty
decided cases referred to in the judgment.
14.
The learned magistrate considered all relevant aspects including the
personal circumstances of the appellant. Pertaining to
the effect of
the personal circumstances of an accused when sentence is considered,
I wish to add that those circumstances necessarily
recede into the
background when sentencing in serious crimes of this nature is
considered. See S v Vilakazi 2009(1) SACR 552 SCA
at 574 par [58].
15.
It was submitted on behalf of the appellant that he showed remorse
when he changed his plea to guilty. However, a mere plea
of guilty is
not perse proof of remorse or contrition, it has to be substantiated
by acceptable evidence, which is lacking in this
matter. It should be
noted that the plea of guilty was entered after the admission of the
DNA evidence. The said evidence clearly
linked the appellant to the
crime. This evidence was overwhelming. Accordingly it was an open and
shut case against the appellant.
His plea of guilty is accordingly a
totally neutral factor. See S v Barnard 2004(1) SACR 191 SCA at 197.
16.
Rape of child is a very serious matter. Much has been said about this
issue as referred to by the learned magistrate in his
judgment. I
wish to refer to but one case in that regard, quoted by the
magistrate, where the learned judge succinctly put it as
follows in S
v Jansen
1999 (2) SACR 368
(C) at 378g-379B:
"Rape
of a child is an appalling and perverse abuse of male power. It
strikes a blow at a very core of our claim to be a civilized
society/'
"The
community is entitled to demand that those who perform such perverse
act of terror be adequately punished, and that the
punishment reflect
the societal censure/' "It is utterly terrifying that we live in
a society where children cannot play in
the streets in any safety;
where children are unable to grow up in the kind of climate which
they should be able to demand in any
decent society, namely in
freedom and without fear. In short, our children must be able to
develop their lives in an atmosphere
which behoves any society which
aspires to be an open and democratic one based on freedom, dignity
and equality, the very touchstone
of our Constitution. The community
is entitled to demand of the police that they bring those who subvert
these minimum aspirations
before the courts and that the courts, in
punishing such persons, should ensure that the sentence adequately
reflect the censure
which society should and does demand, as well as
the retribution which it is entitled to extract/'
17.
The psychological impact of the offence on the complainant is
serious. This is a material consideration, especially in view
of the
fact that the complainant was only seven at the time.
See
S v Matyiyi 2011(1) SACR 40 SCA. (This decision was also referred to
by the magistrate.)
18.
The learned magistrate found no substantial and compelling
circumstances justifying a lesser sentence than the prescribed
minimum.
It is correct in law that a court should not, for flimsy
reasons, deviate from a prescribed minimum sentence. In this matter,
however,
it appears that the following circumstances may well be
regarded as substantial and compelling reasons justifying a lesser
sentence
than the prescribed life imprisonment.
(i)
The appellant was, pertaining to the nature of the crime, a first
offender;
(ii)
The complainant, although she suffered serious mental anxiety, was
not physically injured.
19.
Accordingly, I am of the opinion that the learned magistrate should
have found that a lesser sentence than the prescribed life
sentence
should have been imposed. I therefore suggest that the appeal against
sentence should succeed and that the sentence of
life imprisonment be
set aside. I propose that the following sentence should substitute
the life sentence:
THE
ACCUSED IS SENTENCED TO 22 YEARS IMPRISONMENT.
No
order is made contra the provisions of
section 103
of the
Firearms
Control Act no 66 of 2000
. The accused remains unfit to possess a
firearm.
In
terms of the provisions of section 282 of the Criminal Procedure Act,
the sentence is antedated to 31 March 2011.
A
J BAM
ACTING
JUDGE OF THE HIGH COURT
I
agree, and it is so ordered
T
J RAULINGA
JUDGE
OF THE HIGH COURT