S v Nkomo (160/00) [2006] ZASCA 139; [2007] 3 All SA 596 (SCA); 2007 (2) SACR 198 (SCA) (1 December 2006)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2006
>>
[2006] ZASCA 139
|

|

S v Nkomo (160/00) [2006] ZASCA 139; [2007] 3 All SA 596 (SCA); 2007 (2) SACR 198 (SCA) (1 December 2006)

Links to summary

THE SUPREME COURT
OF APPEAL
OF
SOUTH AFRICA
CASE NO 160/2000
Reportable
In the matter between
NHLANHLA NKOMO Appellant
and
THE
STATE Respondent
Coram
: CAMERON, LEWIS JJA THERON AJA
Heard:
21 NOVEMBER 2006
Delivered: 01 DECEMBER 2006
Summary: Sentence of life
imprisonment imposed for multiple rape of complainant: court using
wrong test to determine whether substantial
and compelling
circumstances were present: sentence set aside and one of 16 years’
imprisonment imposed.
Neutral citation: This case may be cited as Nkomo v The State
[2006] SCA 167 RSA
JUDGMENT
LEWIS JA
[1] The
appellant was convicted of rape and kidnapping by a regional court in
August 1998. The regional court sentenced him to imprisonment
for
three years for kidnapping but referred the sentence for rape to
the Durban High Court in terms of
s 52
of the
Criminal Law Amendment
Act 105 of 1997
. That court (per Levinsohn J) sentenced the appellant
to life imprisonment in terms of
s 51(1)
of the Act. The regional
court had found that the appellant had raped the complainant five
times during the course of a night. Rape,
when committed ‘in
circumstances where the victim was raped more than once whether by
the accused or by any co-perpetrator or accomplice’,
attracts a
minimum sentence of life imprisonment
1
unless the court is satisfied that substantial and compelling
circumstances exist which justify the imposition of a lesser
sentence.
2
[2] The
appeal is against the sentence of life imprisonment alone, with the
leave of the court below. That court found no substantial
and
compelling circumstances that warranted a sentence less than life
imprisonment. It is significant, however, that the sentence
was
imposed in 1999 before this court in
S v Malgas
3
determined the approach to be adopted in finding whether substantial
and compelling circumstances exist.
[3] The
court below relied heavily on earlier authority which suggested that
factors regarded as mitigating prior to the enactment
of the Act did
not in themselves warrant the imposition of a sentence less severe
than that prescribed by the Act. In
Malgas
, however, it was
held that in determining whether there are substantial and compelling
circumstances, a court must be conscious that
the legislature has
ordained a sentence that should ordinarily be imposed for the crime
specified, and that there should be truly
convincing reasons for a
different response. But it is for the court imposing sentence to
decide whether the particular circumstances
call for the imposition
of a lesser sentence. Such circumstances may include those factors
traditionally taken into account in sentencing
– mitigating factors
– that lessen an accused’s moral guilt. These might include the
age of an accused or whether or not he
or she has previous
convictions. Of course these must be weighed together with
aggravating factors. But none of these need be exceptional.
[4] The
court below did not consider the mitigating factors adduced by the
appellant to constitute substantial and compelling circumstances.
In
that respect it erred. This court is thus free to impose the sentence
it considers appropriate subject to the provisions of the
Act, and in
the light of the existing post-
Malgas
jurisprudence of this
court.
[5] Since
the appeal is against the sentence alone, it is not necessary to deal
in any detail with the evidence that led to the conviction.
However,
some background is necessary. The complainant’s testimony, accepted
by the regional court, was that in the late afternoon
before the
rapes were committed she went to a hotel bar in Isipingo in order to
find a woman to whom she had lent clothing but who
had not returned
it to her. She found the woman who had suggested that she wait in the
bar with the appellant, whom she had not previously
met, for her
return. She sat with the appellant who was drinking beer. She drank
nothing other than a cold drink but it had tasted
peculiar,
suggesting, albeit implicitly, that it had been laced with alcohol.
After a while, when the woman had not returned, she
decided to leave.
But when she attempted to do so the appellant forced her to go
upstairs with him. He hired a room, forced her into
it, forced her to
undress and had sexual intercourse with her against her will.
[6] The
appellant then decided to go back to the bar, and locked her in the
room, hence the kidnapping conviction. She escaped from
the room by
jumping out of a window, and falling, some ten metres to the ground,
on her leg, which she injured in the process. The
doctor who examined
her after she reported being raped noted in the J88 form that her
left ankle was injured and swollen. He noted
also that she had an
arthritic condition. When the complainant testified she said that as
a result of her fall she had injured her
hip (it had been dislocated,
she said) which was still painful, and that she required a crutch to
walk. It is not clear whether her
hip was painful because of her
arthritic condition, because of the injury or because the injury
exacerbated her condition. But her
evidence that it was the result of
the injury was not challenged by the appellant. Nor was the J88
report of the doctor contested.
He had recorded bruising of the labia
minora and majora and a torn hymen. The State argues that this
suggests that force had been
used. However, the doctor’s oral
evidence related only to the bruising and no inference can thus be
drawn from the J88.
[7]
Unfortunately when the complainant attempted to escape by jumping out
of the window of the hotel room she fell where the appellant
had been
sitting and drinking. He forced her back upstairs into the room, and
raped her four more times during the course of the
night. He also
forced her to perform oral sex on him and slapped her, pushed her and
kicked her. He prevented her from leaving the
room again by taking
her clothes away.
[8] When,
the following morning, the complainant managed to escape, she went
straight to a police station to report the multiple rapes
and
kidnapping. Her evidence was corroborated to a large extent by police
officers. They confirmed that when she approached them
her clothing
was dishevelled, and she was very distraught. They returned with her
to the hotel room where they found the appellant.
[9] The
appellant’s version, rejected by the regional court, was that she
consented to having sex with him, and jumped out the window
because
she was drunk. He had attempted to stop here from injuring herself,
but she had slipped.
[10] What,
then, are the substantial and compelling circumstances that warrant
the imposition of a sentence less than life imprisonment?
The
appellant argues that his youth (he was 29 when he raped the
complainant) and his clean record should count in his favour. So
too
should the facts that he was employed, and has three dependent
children, be regarded as mitigating factors. Moreover, he argues,
the
complainant was not seriously injured. He also contends that, because
after the charge against him was laid, the complainant
had considered
withdrawing the charge if she were paid compensation, she suffered no
serious distress.
[11] The
complainant had indeed considered withdrawing the charge and had
discussed the question of compensation with the appellant
and his
family. But that, she said, was because pressure was put on her by
the appellant’s family. In my view the fact that the
complainant
had discussed the question of compensation with the appellant is a
neutral factor. It does not in itself show that she
had not suffered
emotional distress.
[12] There
are, however, a number of aggravating factors that must be taken into
account in determining the appropriate sentence for
the appellant. He
not only raped her more than once, but five times during the course
of the night. He held her captive in a room
while he demeaned and
hurt her, forcing himself on her repeatedly through the night, even
after she had seriously hurt herself when
jumping out of the window,
and was in pain. And he showed no remorse, claiming throughout the
proceedings that the complainant had
lied about being raped and about
the events that had happened in the bar. At the same time he was
prepared to pay her in order to
persuade her to withdraw the charge
of rape. The complainant had in fact not appeared when the trial was
due to commence, because
she claimed she was threatened, and had even
stayed at the appellant’s home town over that period. Eventually
she was persuaded
to proceed with the charge by a senior prosecutor.
[13] The
factors that weigh in the appellant’s favour are that he was
relatively young at the time of the rapes, that he was employed,
and
that there may have been a chance of rehabilitation. No evidence was
led to that effect, however.
[14] Nonetheless
these are substantial and compelling circumstances which the
sentencing court did not take into account. A sentence
of life
imprisonment – the gravest of sentences that can be passed, even
for the crime of murder – is in the circumstances unjust
and this
court is entitled to interfere and to impose a different sentence,
one that it considers appropriate.
[15] In
S
v Mahomotsa
4
this court pointed out that even in the case of a serious and
multiple rape a sentence of life imprisonment need not necessarily
be
imposed. If there are compelling and substantial circumstances the
appropriate sentence is within the court’s discretion. Mpati
JA
said:
5
‘
The
present being a case where the complainants were each raped more than
once, the prescribed period of imprisonment for life is
the sentence
which should
ordinarily
be imposed. It should not be departed
from lightly and for flimsy reasons which cannot withstand scrutiny
(
S v Malgas
. . .;
S v Dodo
. . .). However, in
considering the question, a Court is not prohibited by the Act from
weighing all the usual considerations traditionally
relevant to
sentence.
. . . .
The rapes that we are concerned with here, though very
serious, cannot be classified as falling within the worst category of
rape.
Although what appeared to be a firearm was used to threaten the
complainant in the first count and a knife in the second, no serious
violence was perpetrated against them. Except for a bruise to the
second complainant's genitalia, no subsequently visible injuries
were
inflicted on them. According to the probation officer - she
interviewed both complainants - they do not suffer from any
after-effects
following their ordeals. I am sceptical of that but the
fact remains that there is no positive evidence to the contrary.
These factors
need to be taken into account in the process of
considering whether substantial and compelling circumstances are
present justifying
a departure from the prescribed sentence.
It perhaps requires to be stressed that what emerges
clearly from the decisions in
Malgas
and
Dodo
is that
it does not follow that simply because the circumstances attending a
particular instance of rape result in it falling within
one or other
of the categories of rape delineated in the Act, a uniform sentence
of either life imprisonment or indeed any other
uniform sentence must
or should be imposed. If substantial and compelling circumstances are
found to exist, life imprisonment is
not mandatory nor is any other
mandatory sentence applicable. What sentence should be imposed in
such circumstances is within the
sentencing discretion of the trial
Court, subject of course to the obligation cast upon it by the Act to
take due cognisance of the
Legislature's desire for firmer punishment
than that which may have been thought to be appropriate in the past.
Even in cases falling within the categories delineated in the Act
there are bound to be differences in the degree of their seriousness.
There should be no misunderstanding about this: they will all be
serious but some will be more serious than others and, subject to
the
caveat that follows, it is only right that the differences in
seriousness should receive recognition when it comes to the meting
out of punishment. As this Court observed in S v Abrahams
2002 (1)
SACR 116
(SCA), 'some rapes are worse than others and the life
sentence ordained by the Legislature should be reserved for cases
devoid of
substantial factors compelling the conclusion that such a
sentence is inappropriate and unjust' (para [29]).
(My emphasis.)
Of course, one must guard against the notion that
because still more serious cases than the one under consideration are
imaginable,
it must follow inexorably that something should be kept
in reserve for such cases and therefore that the sentence imposed in
the
case at hand should be correspondingly lighter than the severer
sentences that such hypothetical cases would merit. There is always
an upper limit in all sentencing jurisdictions, be it death, life or
some lengthy term of imprisonment, and there will always be
cases
which, although differing in their respective degrees of seriousness,
nonetheless all call for the maximum penalty imposable.
The fact that
the crimes under consideration are not all equally horrendous may not
matter if the least horrendous of them is horrendous
enough to
justify the imposition of the maximum penalty.’
[17] In
Mahomotsa
, where the State had appealed against the sentences
imposed in respect of the multiple rapes of two complainants (and
where the respondent
had raped the second complainant while awaiting
trial on the first charge) this court imposed a sentence of eight
years’ imprisonment
on the first charge and twelve years’
imprisonment on the second. It regarded the trial court’s sentences
in respect of both
counts (six and ten years’ imprisonment
respectively, but to run concurrently) as ’collectively woefully
inadequate’.
6
[18] In
S
v Sikhipha
7
this court, setting aside a sentence of life imprisonment where
the appellant had raped a 13 year old girl, regarded as substantial
and compelling circumstances the facts that the appellant was
regarded as capable of rehabilitation and that the complainant was
not seriously injured. The court imposed a sentence of 20 years’
imprisonment because of the age of the complainant.
[19] On
the other hand, as I have said, in Ma
homotsa
sentences of
eight years on the first conviction, and twelve on the second, were
considered just. Counsel for the appellant argued
that the case
before us and that in
Mahomotsa
are not dissimilar. The
appellant in
Mahomotsa
had also kept his victims captive, and
he had raped each of them repeatedly. He had also threatened them
with weapons, in the first
case a firearm and in the second a knife.
Neither had been seriously injured, however. The appellant did have a
previous conviction
for rape.
[20] It
is trite, however, that each case must be considered having regard to
its particular facts. In this case the appellant did
not use any
weapon although he did assault the complainant. And he did not
seriously injure her, though he callously and cruelly
disregarded her
injury caused when she tried to escape from the hotel room. While the
complainants in
Mahomotsa
were raped in very similar
circumstances to the complainant in this case, I consider that a
number of aggravating factors distinguish
the appellant’s position
from that in
Mahomotsa.
[21] I
have already referred to these. I emphasise, in particular, the
brutality with which the appellant treated the complainant,
raping
her four times after she had been injured when trying to escape from
him; that he forced her to perform oral sex on him, assaulting
her
when initially she refused; that he showed absolutely no remorse; and
that he was in a comparatively better position than her,
with
education and a permanent job. He should have known better. He
behaved, in the words of Mpati JA in
Mahomotsa
, like a ‘sexual
thug’.
8
These circumstances warrant a heavier sentence than those imposed in
Mahomotsa
;
[22] That
said, I do not believe that his crime should attract the heaviest
sentence permitted by our law, life imprisonment. I recognize
that it
may be difficult to imagine a rape under much worse conditions. But
it is possible, and I consider that the prospect of rehabilitation
and the fact that the appellant is a first offender must be regarded
as substantial and compelling circumstances justifying a lesser
sentence. What must be borne in mind as well, is the statement of
this court in
S v Abrahams
(cited in the passage from
Mahomotsa
above
)
that life imprisonment as a sentence
for rape should be imposed only where the case is ‘devoid of
substantial factors compelling
the conclusion that such a sentence is
inappropriate and unjust’.
[23] In
all the circumstances, I consider that a sentence of 16 years’
imprisonment serves the purposes of punishment, deterrence
and the
protection of the interests of society.
[24] The
appeal is upheld. The sentence imposed by the court below is set
aside and replaced with the following:
‘The
accused is sentenced to 16 years’ imprisonment.’
C H Lewis
Judge of
Appeal
Concur:
Cameron JA
THERON AJ
(DISSENTING)
[25] I have read the judgment of Lewis JA. I do not agree with the
conclusion that there are substantial and compelling circumstances
in
this matter and that we should interfere with the sentence imposed by
the court below.
[26] The
approach to an inquiry such as this is by now well settled. A court
has a discretion to depart from the prescribed sentence
where there
are substantial and compelling circumstances which compel the
conclusion that the imposition of the minimum sentence
would be
unfair or unjust. Such departure from the prescribed sentence should
not made ‘lightly and for flimsy reasons’.
9
Marais JA in
S v Malgas
cautioned:
‘Speculative
hypotheses favourable to the offender, maudlin sympathy, aversion to
imprisoning first offenders, personal doubts as
to the efficacy of
the policy implicit in the amending legislation, and like
considerations were equally obviously not intended to
qualify as
substantial and compelling circumstances’.
10
Given the
facts here present, the prescribed sentence of life imprisonment is
the sentence which should
ordinarily
be imposed.
[27] The
background facts underlying the conviction have been adequately dealt
with in the judgment of Lewis JA and I do not intend
to repeat them.
I do, however, intend to highlight certain aspects thereof; aspects
which emphasise the brutality of this rape and
the indignity and
humiliation to which the complainant was subjected. The fact that the
complainant jumped from the second floor,
despite the possible threat
of physical injury or worse to herself, is indicative of the
desperation that she felt and the lengths
to which she was prepared
to go to escape from the clutches of the appellant. The complainant
was deprived of her liberty for the
entire night, during which she
was forced to remain naked, her clothes having been hidden by the
appellant. During the course of
the night she was subjected to a
physical assault to overcome her resistance to performing oral sex on
the appellant. She was raped
a further four occasions. When she
finally made good her escape she made her way to the police station
in obvious pain and discomfort.
[28] This
court in
S v Abrahams
11
and
S v Mahomotsa
12
recognised that while all rapes are serious, ‘some rapes are worse
than others’. In my view, the rape of the complainant is one
of the
worst imaginable.
13
If life imprisonment is not appropriate in a rape as brutal as this,
then when would it be appropriate? I am of the view that this
is
precisely the kind of matter the legislature had in mind for the
imposition of the minimum sentence of life imprisonment. Courts
must
not shrink from their
duty
to impose, in appropriate cases,
the prescribed minimum sentences ordained by the legislature.
[29] Against
the backdrop of the unprecedented spate of rapes in this country,
14
courts must also be mindful of their duty to send out a clear message
to potential rapists and to the community that they are determined
to
protect the equality, dignity and freedom of all women.
15
Society’s legitimate expectation is ‘that an offender will not
escape life imprisonment – which has been prescribed for a very
specific reason – simply because [substantial and compelling]
circumstances are, unwarrantedly, held to be present.’
16
In our constitutional order women are entitled to expect and insist
upon the full protection of the law.
[30] I
agree with Lewis JA that this case is distinguishable from that of
S
v Mahomotsa
.
17
In my view, the aggravating factors in this matter distinguish the
appellant’s position from that in both
Mahomotsa
and
S v
Sikhipha
,
18
warranting the imposition of a heavier sentence than that imposed in
the said cases.
[31] I
respectfully adopt the view that what is set out in paras 13 and 14
of the judgment of Lewis JA do not substantiate the conclusion
contended for. There is hardly a person of whom it can be said that
there is no prospect of rehabilitation. The appellant was 29
years
old at the time and would ordinarily not be regarded as a youthful or
immature offender. Employment in itself would not necessarily
qualify
as a substantial and compelling circumstance. In following the
approach adopted in
Malgas
19
of balancing societal and personal interests, I can see no room to
conclude that the totality of facts in this case are such that
they
constitute substantial and compelling circumstances. The basis
therefore suggested by Lewis JA in para 4 of her judgment for
interfering with the sentence is unwarranted.
[32] I
cannot agree ‘that the prospect of rehabilitation (of which there
is no evidence) and the fact that the appellant is a first
offender’
20
constitute substantial and compelling circumstances within the
meaning of that expression and are truly convincing reasons for
departing
from the minimum sentence ordained by the legislature.
Given the prevalence of rape in our society and the brutality of this
particular
rape, even in the absence of a directive from Parliament,
life imprisonment would not, in my view, have been an inappropriate
sentence.
_____________
LV THERON
Acting
Judge of Appeal
1
Section
51(1)
read with
Part 1
of Schedule 2 of the Act.
2
Section
51((a).
3
2001
(1) SACR 469
(SCA), approved in
S v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
;
2001 (3) SA 382
(CC).
4
2002
(2) SACR 435
(SCA).
5
Paras
14, 17, 18 and 19. See also
Rammoko v DPP
2003 (1) SACR 200
(SCA).
6
Para
26.
7
2006
(2) SACR 439
(SCA).
8
Above,
para 16.
9
S
v Malgas
2001 (1) SACR 469
(SCA) para 9.
10
Ibid.
11
2002
(1) SACR 116
(SCA) para 29.
12
2002
(2) SACR 435
(SCA) paras 17-19.
13
Lewis
JA, in para 22 above, says that ‘it is difficult to imagine a rape
under much worse conditions’.
14
According
to crime statistics released by the South African Police Service, 52
733 rapes were
reported
during the period April 2003 to March
2004.
In an unreported judgement of this
court,
De Beer v S
(Case Number 121/04 delivered on 12
November 2004) para 19, Ponnan JA states: ‘NICRO estimates that
only 1 out of every 20 rapes
is reported, whilst the South African
Police Service puts the figure at 1 out of 35.’
15
S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 5d-e.
16
Rammoko v Director of Public
Prosecutions
2003 (1) SACR 200
(SCA) para 13.
17
2002
(2) SACR 435
(SCA).
18
2006
(2) SACR 439
(SCA).
19
2002
(1) SACR 469
(SCA) paras 8-9.
20
Per
Lewis JA para 22 above.