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[2009] ZAGPJHC 49
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Ntsheno v S, Dlamini v S, Rampa v S (A181/2009, A182/09, A180/09) [2009] ZAGPJHC 49; 2010 (1) SACR 295 (GSJ) (8 September 2009)
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IN
THE HIGH COURT OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
REPORTABLE
In
the following matters:
EZEKIEL
NTSHENO (also spelt NTSHINU) v THE STATE (CASE NO. A181/2009); DLADLA
DLAMINI v THE STATE (CASE NO. A182/09); and TSEKO
RAMPA v THE STATE
(CASE NO. A180/09)
JUDGMENTS
WILLIS
J:
EZEKIEL
NTSHENO (also spelt NTSHINU) v THE STATE (CASE NO. A181/2009)
Date
of hearing: 12
th
August, 2009
Date
of judgment (
Postea
):
8
th
September, 2009
[
1]
During the week commencing 11
th
August, 2009 Makhanya, Makgoka JJ and I sat as a full court in the
South Gauteng High Court to consider three separate criminal
appeals
in matters which, in each instance, were decided by a single judge of
this division. These appeals are commonly known as
“full bench
appeals”. Each of these appeals has turned on the same legal
principle: the correct interpretation relating
to the making of an
appropriate finding that “substantial and compelling
circumstances” exist such as to justify the
imposition of less
than the prescribed minimum sentence in terms of the Criminal Law
Amendment Act No 105 of 1997 (“The
Criminal Law Amendment Act&rdquo
;)
- more especially when the accused is still relatively youthful but
not a juvenile
1
– and, consequent upon the finding that there were indeed such
circumstances, the imposition of a just sentence. Makhanya
J has
written the judgment in the case of
Dlamini
v The State
(case
no. A182/2009), Makgoka J in the case of
Rampa
v The State
(case
no. 180/2009) and I in the case of
Ntsheno
v The State
(case
no. 181/2009). We have, in each instance, been unanimous in our
decision that we should interfere with the sentence imposed
by the
relevant judge. We have been much influenced by the recent judgments
of the Constitutional Court in the case of
Centre
for Child Law and Minister for Justice and Constitutional Development
and Others
(CCT 98/08;
[2009] ZACC 18].
As far as we are aware, the judgments of
this court are the first full bench appeals in this division
concerning the issue of finding
that “substantial and
compelling circumstances” exist such as to justify the
imposition of less than the prescribed
minimum sentence in terms of
the
Criminal Law Amendment Act since
the
Centre
for Child Law
case.
Accordingly, we consider that our judgments are, collectively,
“reportable”: they may be of considerable practical
importance. By reason of the fact that each case was argued
separately and on a different day of the week, we have considered it
proper that a separate judgment should be delivered in each instance.
Nevertheless, we have, unavoidably, considered these cases
together.
Each of us has, in preparing his written judgment, inevitably
referred to the judgments of the others with approval.
Accordingly,
we consider it appropriate to deliver our judgments in a format that
reflects the fact that although we have prepared
three separate
judgments they are, for practical purposes, almost to be read as a
single judgment dealing with the three separate
cases argued
together. In certain respects these three judgments, collectively,
may be considered to constitute a trilogy.
[2] I
shall now deal specifically with the case of
Ntsheno
v The State
.
The appellant appeals against sentence only. He was convicted in the
Soweto Regional Magistrate’s Court on 9
th
October, 1998 on two counts of rape and one count of kidnapping. The
matter was referred to the High Court for sentencing in terms
of
sections 51
,
52
and
53
of the
Criminal Law Amendment Act No 105 of
1997
which came into operation on 1 May 1998 in terms of Presidential
Proclamation R43 of 1
st
May 2008. The crimes were committed on 9
th
August, 1998.
[3]
The matter came before Stegmann J. He referred the matter of the
sentence in respect of the count of kidnapping back to the
Regional
Court. It would seem that the learned magistrate imposed a sentence
of two years on that count. The sentence was imposed
on1st March,
2009.
[4]
The appellant was the second accused in the trial. His co-accused
was Marumo Mofokeng. Stegmann J confirmed the convictions
of both
accused and sentenced both accused to life imprisonment, taking the
two counts of rape as one for purposes of sentence.
The judgment of
Stegmann J in regard to sentence for rape is reported as
S
v Mofokeng and Another
1999
(1) SACR 502
(W). It is well known: perhaps because it begins with
the famous quote from Lewis Carroll’s
Alice
in Wonderland
in which the Queen says “Sentence first – verdict
afterwards” and then proceeds to pronounce “Off with
her
head”
2
as the sentence for Alice. Stegmann J seems to have disapproved of
the procedure for sentencing in terms of the
Criminal Law Amendment
Act but
considered himself duty bound to apply it.
3
Stegmann J found that there were no “substantial and
compelling” circumstances present such as to justify less than
the prescribed minimum sentence of life imprisonment in terms of the
Criminal Law Amendment Act (the
complainant had been raped more than
once and by more than one person as provided for in
Part I
of
Schedule 2 of the
Criminal Law Amendment Act).
[4
]
Having reached the requisite age in terms of his years of service on
the bench, Stegmann J has since been discharged from active
service.
4
The application for leave to appeal came before Mathopo J on 28
th
August, 2007 in the absence of Stegmann J. The application was in
respect of sentence only. Mathopo J granted leave. This is the
reason
that the matter is now before this court.
[5]
The can be no question that the crime was serious indeed: the
complainant was gang-raped by five or six youths.
[6]
The appellant was 20 years old at the time. He was under the
influence of alcohol. He was a first offender. He had been in custody
for seven months prior to being sentenced. Counsel for the appellant
both when the matter came before Stegmann J and in this court
submitted that the facts that no dangerous weapon was used that there
had been no serious physical injury of the complainant and
that no
serious psychological trauma on the part of the complainant were
factors that should also be taken into account.
[7]
The question of correct sentencing in matters such as this is vexing
indeed. In
S
v Mahamotsa
2002
(2) SACR 435
(SCA) the Supreme Court of Appeal (“the SCA”)
imposed an effective sentence of twenty years on an appellant
convicted
of two counts of rape. The appellant had used a firearm and
a knife to subdue his victim. In
S
v Vilakazi
2009 (1) SACR 552
(SCA) the SCA set aside a sentence of life
imprisonment and imposed 15 years for a 30 year old accused who had
raped a girl less
than 16 years of age.
[8]
In his judgment Stegmann J said:
It is
not easy to see how, in relation to the crime of rape, when a group
of young men, acting in concert, have seized a woman,
and each of
them has repeatedly raped her, there can ever be circumstances that
can honestly be described as be described as so
‘substantial
and compelling’ as to justify the imposition of a sentence
which is less severe than that which Parliament
as seen to prescribe
as the statutory sentence that is to result from the perpetration of
the crime of rape in the manner and in
the circumstances referred to
in
Part 1
of Schedule 2.
5
[9]
Stegmann J went on to say:
The
absence of previous convictions, the comparative youthfulness of the
offenders, the unfortunate factors in their backgrounds,
the probable
effect upon them of the liquor which they had taken, the absence of
dangerous weapons, and the fact that the complainant
had not suffered
serious injury are all factors that a court sentencing a convicted
rapist in the ordinary course, would weigh
up as substantial factors
relevant to the assessment of a just sentence, and as tending to
mitigate the severity of the punishment
to be imposed. However, in my
judgment, these factors, ‘substantial though they are, are
matters that Parliament must have
had in mind as everyday
circumstances that would be found present in many or most of the
crimes referred to in
Part I
of Schedule 2 of Act 105 of 1997.
Without emasculating the legislation, they cannot be thought of as
‘compelling’ the
conclusion that a sentence lesser than
that prescribed by Parliament should be substituted for the
prescribed sentence. This is
owing to the absence of any exceptional
factor to explain the prisoners’ conduct (which evidently
sprang from nothing other
than their own wicked desire to slake their
lust regardless of the cost to the victim), and the absence of any
mitigating factors
other than the everyday factors already
enumerated. As I understand this legislation, ‘substantial and
compelling’
circumstances must be factors of an unusual and
exceptional kind that Parliament cannot be supposed to have had in
contemplation
when prescribing standard penalties for certain crimes
committed in circumstances described in Schedule 2.
6
[10]
The SCA dealt with this vexed question of minimum sentencing in the
unforgettable judgment of
S
v Malgas
2001 (2) SA 1222
(SCA); 2001(1) SACR 469 (SCA);
[2001] 3 ALL SA 220
(A). At paragraph [25] of that judgment the SCA said:
Courts
are required to approach the imposition of sentence conscious that
the Legislature has ordained life imprisonment (or the
particular
prescribed period of imprisonment as the sentence that should
ordinarily
and
in the absence of weighty justification be imposed for the listed
crimes in the specified circumstances. Unless there are, and
can be
seen to be, truly convincing reasons for a different response, the
crimes in question are therefore required to elicit a
severe,
standardised and consistent response from the courts. The specified
sentences are not to be departed from lightly and for
flimsy reasons.
Speculative hypotheses favourable to the offender, undue sympathy,
aversion to imprisoning first offenders, personal
doubts as to the
efficacy of the policy underlying the legislation and marginal
differences in personal circumstances or degrees
of participation
between co-offenders are to be excluded
.
[11]
The SCA, however, went on to say that:
All
factors (other than those set out in D above
7
)
traditionally taken into account in sentencing, whether or not they
diminish moral guilt) thus continue to play a role; none is
excluded
at the outset from consideration in the sentencing process.
8
Herein
lies an important point of departure from Stegmann J’s
judgment, more especially as the SCA judgment was given mindful,
in
general terms, of Stegmann J’s judgment.
9
It seems that what Stegmann J described as “everyday”
factors in sentencing were synonymous with what the SCA was
describing as “traditional”
10
.
Stegmann J considered it incorrect, as a matter of law, to have
regard to such “everyday” factors in deciding whether
one
could depart from the minimum sentence. The SCA emphasised that they
continue to play a role. Moreover, in the as yet unreported
judgment
of the Constitutional Court in
Centre
for Child Law and Minister for Justice and Constitutional Development
and Others
(CCT 98/08;
[2009] ZACC 18]
even the minority judgment, which would
have declined to declare the minimum sentencing legislation in so far
as it applies to
children who are 16 and 17 years old inconsistent
with the Constitution, emphasised the ‘seminal importance’
of the
whole paragraph of the SCA judgment in the
Malgas
case,
11
part of which has been quoted in paragraphs [10] and [11] above in
this judgment. In the majority judgment of the Constitutional
Court
in the
Centre
for Child Law
case
(which declared certain provisions of the
Criminal Law Amendment Act
relating
to juvenile offenders to be inconsistent with the
Constitution and therefore invalid) it was said:
As
explained earlier, under
Malgas
,
Dodo
and
Vilakazi
,
the starting point for a sentence court is the minimum sentence, the
next question being whether substantial and compelling circumstances
can be found to exist. This is answered by considering whether the
minimum sentence is clearly disproportionate to the crime.
12
As we
function in an hierarchical system of courts, it must be concluded
that Stegmann J was wrong in regard to the obligation to
impose the
prescribed minimum sentence. Whether dealing with a question of fact
or of law, when a court of appeal is convinced
that the court below
was wrong it is obliged to interfere if, in the result, it comes to a
different conclusion from that of the
court below.
13
[12]
Indeed, the very factors in the present case which Stegmann J
considered could not be taken into account,
viz
.
“the absence of previous convictions, the comparative
youthfulness of the offenders, the unfortunate factors in their
backgrounds,
the probable effect upon them of the liquor which they
had taken, the absence of dangerous weapons, and the fact that the
complainant
had not suffered serious injury”
14
must be considered. Furthermore, if one reads the evidence as a
whole, it would not seem to be undue speculation in favour of the
appellant to conclude that he acted under the influence of at least
some of the others. If one takes the aggregate effect of these
factors into account the minimum sentence is clearly disproportionate
to the crime and accordingly, following the opinion of the
majority
of the Constitutional Court in
Centre for Child Law
case
substantial and compelling circumstances must be found to exist.
15
I would also respectfully refer to the judgments of Makhanya J in
Dlamini
v The State
(Case No. A182/09) (with which judgment Makgoka J and I concurred)
and Makgoka J in
Rampa
v The State
(Case No. A180/09) (with which judgment Makhanya J and I concurred).
As was noted in paragraph 1 above, Makhanya , Makgoka JJ and
I,
sitting as a full court heard these three cases, including the one
in
casu
,
during the same week.
[13]
Mr
Motaung
,
who appeared for the appellant, referred to the fact that the
appellant was not warned, before the commencement of the trail,
that
he was at risk of being sentenced to a prescribed minimum sentence in
terms of the
Criminal Law Amendment Act and
, although they were asked
whether they wanted legal representation which they declined, they
may not have made an informed decision
as to whether or not to obtain
legal representation. He referred us, in particular, to the following
case:
S
v Legoa
2003 (1) SACR 13
(SCA) at paragraph [27]. There is also the case of
S
v Ndlovu
2003 (1) SACR 331
(SCA) at paragraph [11]. By reason of the fact that
we have, in any event, decided that we must interfere with the
prescribed minimum
sentence, the point does not require further
consideration. We shall impose a sentence which we consider to be
just in all the
circumstances.
[14]
Both Ms
Naidoo
,
who appeared for the State, and Mr
Motaung
were strenuous in their submissions as to the appropriate sentence.
Mr
Motaung
submitted
that 18 years’ imprisonment was the absolute maximum that would
do justice to the case. Ms
Naidoo
,
conversely, submitted that 20 years’ imprisonment was the very
minimum that would be consistent with justice. There is not
a radical
difference between 18 and 20 years. On the other hand, the difference
is not trifling. While it may often not be appropriate
to determine
the sentence to be imposed by taking the “happy median”
between that contended for by the accused, on
the one hand and the
State, on the other, we consider that justice will be well served by
doing so in this case. In all the circumstances
an effective term of
imprisonment of nineteen for the rape counts would be just: severe
but not disproportionate.
[15]
The following is the order of this court:
The
appeal against sentence is upheld;
The
sentence imposed in this matter by Stegmann J on 1 March 1999 in
respect of Ezekiel Ntsheno (also spelt Ntshinu) is set aside;
The
sentence imposed on the aforesaid Ezekiel Ntsheno by Stegmann J is
substituted with the following:
“
(a)
Nineteen years’ imprisonment on each count of rape;
(b) The aforesaid
sentences on the rape counts are to run concurrently with each other;
(c)
The effective sentence for the rape counts, taken together, is
therefore nineteen years’ imprisonment.”
(iv)
The substituted sentence is antedated to 9
th
October, 1998.
DATED
AT JOHANNESBURG THIS 8
TH
DAY OF SEPTEMBER, 2009
N.P.WILLIS
JUDGE
OF THE HIGH COURT
I
agree.
G.M.MAKHANYA
JUDGE
OF THE HIGH COURT
I
agree.
T.M.
MAKGOKA
JUDGE
OF THE HIGH COURT
___________________________________________________
MAKHANYA
J:
DLADLA
DLAMINI) v THE STATE (CASE NO. A182/2009)
Date
of hearing: 11
th
August, 2009
Date
of judgment (
Postea
):
8
th
September, 2009
[1]
On
12 March 2002, Mr Dlamini, hereinafter referred to as “the
appellant”, was convicted together with two co-accused,
after
they had pleaded guilty, by the Kempton Park Regional Court. They
were convicted on two counts involving rape and robbery
with
aggravating circumstances.
[2]
The
appellant was sentenced by the Regional Court to fifteen years
imprisonment on each of these counts. Five years imprisonment,
however, on count 2 (robbery), was ordered to run concurrently with
the 15 years imprisonment on count one (rape). In the result
the
appellant was sentenced to an effective imprisonment term of twenty
five years.
[3]
In
2005 he approached this Court on appeal. The Appeal Court, on 28
November 2005, in terms of
section 304(4)
of the
Criminal Procedure
Act 51 of 1977
set aside his sentence and in terms of
section 52(1)
of Act 105 of 1997 the matter was referred to the High Court for
sentence. This referral, I pause to note, was correctly made as
the
conviction on count of rape required the High Court to consider the
imposition of a sentence of life imprisonment in respect
of the count
of rape unless it finds substantial and compelling circumstances.
[4]
On
16 March 2006 Snyders J (as she then was) duly confirmed his
conviction and consequently sentenced the appellant to life
imprisonment.
It is not completely clear but it appears that the two
counts were taken together for purposes of sentence.
[5]
The
appellant is now, with the leave of the court below, appealing
against the sentence.
[6]
The
facts upon which the appellant and his co-accused were convicted
after pleading guilty are briefly as follows: On 21 September
2002
in Croydon they accosted the complainant Valerie Letsapa and at
knifepoint robbed her of her Nokia 6110 cellphone, earrings
and wrist
watch. They then left. But after a while they all came back and at
knifepoint again took her to the veld where she was
stripped of her
clothes and each one of them, in turn, had sexual intercourse with
her without her consent.
[7]
In
sentencing the appellant Snyders J acknowledged that there were
mitigating factors but also referred to the aggravating factors
and
concluded by saying the following:
There are some
mitigating factors in the circumstances of the accused, however, the
seriousness of their crime and the circumstances
in which it was
committed is a seriously aggravating factor. In the circumstances I
do not find that there are substantial and
compelling circumstances
to move this Court to deviate from the prescribed minimum of life
imprisonment.
[8]
In
the seminal matter of
S
v Malgas
2001 (2) SA 1222
(SCA);
2001 (1) SACR 409
(SCA);
[2001] 3 All SA 220
(A) at para [25] Marais JA observed as follows in connection with
mitigating factors:
All factors (other
than those set out in 1 above) traditionally taken into account in
sentencing (whether or not they diminish moral
guilt) thus continue
to play a role; none is excluded at the outset from consideration in
the sentencing process.
[9]
The
majority judgment, in the yet unreported judgment of the
Constitutional Court in
Centre
fo
r
Child
Law and Minister for Justice and Constitutional Development and
Others (
CCT
98/08;
[2009] ZACC 18
(a case which declared certain provisions of
the
Criminal Law Amendment Act relating
to juvenile offenders to be
inconsistent with the Constitution and therefore invalid) it was
stated:
As
explained earlier, under
Malgas
,
Dodo
,
and
Vilakazi
the starting point for a sentencing court is the minimum sentence,
the next question being whether substantial and compelling
circumstances can be found to exist. This is answered by considering
whether the minimum sentence is clearly disproportionate to
the
crime.
[10]
I
agree with the learned judge, Snyders J, that the crimes of which the
appellant was convicted are serious and that:
One only needs to
open the paper to see the extent of crime, violence and particularly
rape in the South African community.
One
understands, and appreciates as well that current levels of crime are
unacceptable. Nevertheless it appears to me that the
appellant’s
youthfulness (19 years) is a factor that the court
a
quo
ought to have attached more weight than it had in the determination
of an appropriate sentence. Indeed youthful offenders have
been
found by our courts to be naturally immature, lacking in judgment and
self-control. They have also been found to be susceptible
to the
influence of others (accused 1 was 25 years old). See
S
v Machasa
1991 (2) SACR 308
(A). Other factors that appear to me not having
been given due weight are the following: Absence of planning or
premeditation
in respect of rape. See
R
v Taylor
1949
(4) SA 702
(A) at 716;
R
v Mlambo
1960 (2) SA 55
(W);
S
v Molale
1973 (4) SA 725
(O) at 726D-E; S V
Van
Rooi en Andere
1976 (2) SA 580
(A) at 584G-H. Indeed it appears that robbery was
the group’s motive in accosting the victim. For they left
after its commission.
The rape of the victim thereafter was clearly
carried out on the spur of the moment. By pleading guilty the
appellant showed contrition
and as such prospects of his
rehabilitation are clearly enhanced. The fact that no serious
physical injuries were sustained by
the complainant should also have
been given due weight. See
S
v Mahomotsa
2002 (2) SACR 435
(SCA).
[11]
Physical and psychological aspects which appear in my opinion, to
likely have had negative influence in the appellant’s
personality development as it appears in the probation officer’s
report include: the troubled socio-economic environment
in which the
appellant grew up. His poor and broken family. He lost his father
when he was hardly one year old. It appears also
that as a young
teenager, he was sexually abused by a prospective employer who had
promised him some temporary employment. It
has also not been
disputed by the State that the appellant was not only a scholar at
the commission of these offences but a first
offender in respect of
the category of offences involving sex.
[12]
In
my opinion, considering the authorities cited above, the above stated
mitigating factors cumulatively constitute substantial
and compelling
circumstances. The minimum sentence of life imprisonment imposed is
disproportionate to the crime, taking into account
all the relevant
circumstances. I would also respectfully refer to the judgments of
Willis J in the case of
Ntsheno
v The State
(Case
No. A181/09) with which judgment Makgoka J and I concurred and of
Makgoka J in the case of
Rampa
v The State
(Case No. A180/09) with which judgment Willis J and I concurred.
(Willis, Makgoka JJ and I heard these three similar cases, including
this one, in the same week.)
[13]
In the light of these factors we should intervene and substitute the
sentence imposed by the court below with the one that
is appropriate
in the opinion of this court.
[14]
The following
is
the order of this court:
The appeal
against sentence is upheld.
The
sentence imposed by Snyders J on 16 March 2006 on the appellant is
set aside.
The
s
entence
imposed on the appellant is substituted with the following:
“
(a)
On
the count of rape, 20 years imprisonment.
(b)
On
the count of robbery, 13 years imprisonment.
(c)
It
is ordered that 10 years imprisonment on the count of robbery runs
concurrently with imprisonment sentence on the count of rape.
(d)
Accordingly
the accused is sentenced to an effective imprisonment sentence of 23
years.”
(iv)
The substituted sentence is antedated to 2 May 2002.
DATED
AT JOHANNESBURG THIS 8
TH
DAY OF SEPTEMBER, 2009
G.M.
MAKHANYA
JUDGE
OF THE HIGH COURT
I
agree.
N
.P.
WILLIS
JUDGE
OF THE HIGH COURT
I
agree.
T
.
M. MAKGOKA
JUDGE
OF THE HIGH COURT
MAKGOKA
J:
CAPTIAN
TSEKO RAMPA v THE STATE (CASE NO. A180/2009)
Date
of hearing: 13
th
August, 2009
Date
of judgment (
Postea
):
8
th
September, 2009
[1]
This
is an appeal against sentence. The appellant, a 20 year old, stood
trial in the regional court, Tembisa, on five counts, namely
kidnapping, robbery with aggravating circumstances, two counts of
rape and unlawful possession of a firearm and ammunition.
[2]
The appellant, who enjoyed legal representation throughout his trial,
pleaded not guilty to all counts. Despite his plea of
not guilty, the
trial culminated in his conviction on all the five counts on 11 May
2004. In terms of section 52 of Act 105 of
1997, the regional
magistrate stopped the proceedings upon conviction and referred the
appellant to the High Court for sentencing.
Counts 2, 3 and 4
attracted minimum sentences of 15 years’ imprisonment and life
sentence, respectively, unless substantial
and compelling
circumstances were found to exist. Satchwell J confirmed the
conviction and sentenced the appellant as follows:
count 1, 3 years
imprisonment; count 2, 10 years imprisonment; counts 3 and 4, life
imprisonment; and count 5, 2 years imprisonment.
[3]
The
sentences imposed on counts 1, 2 and 5 were ordered to run
concurrently with the sentence imposed in respect of counts 3 and
4.
The effective term of imprisonment therefore was life imprisonment.
[4]
With
leave of Satchwell J to appeal against the sentences only, the matter
came before the Full Court of this Division, consisting
of Goldstein,
Malan and Maluleke JJ. The Full Court remitted the matter to
Satchwell J to investigate the issue relating to possible
transmission of HIV by the appellant to the complainant as a result
of the rape, and to impose sentences accordingly, in respect
of
counts 3 and 4. The Full Court dismissed the appeal on sentences in
respect of counts 1, 2 and 5.
[5]
Upon
consideration of the issues raised by the Full Court, Satchwell J
sentenced the appellant afresh, in terms of which the sentences
originally imposed in counts 1, 2 and 5 were retained, while the
sentence of life imprisonment imposed in respect of counts 3 and
4,
were replaced with 20 years each of the respective counts. The
sentences imposed in respect of counts 1, 2 and 5 were ordered
to run
concurrently with the sentence imposed in respect of count 3. Ten
years of the sentence imposed in respect of count 4 were
ordered to
run concurrently with the sentence imposed in respect of count 3.
Effective term of imprisonment was thus 30 years.
[6]
Once
again with leave of Satchwell J the matter is now before us. The
appeal is against the sentences imposed in respect of counts
3 and 4.
[7]
It
is useful to briefly outline the circumstances under which the
offences were committed. On 15 September 2002 in Tembisa, the
complainant, Ms Johanna Mahlangu was on her way to work at
approximately 04h25 in the morning. She was in the company of a male
companion. They met the appellant, who produced a firearm and forced
the complainant into the direction of an RDP house. Before
forcing
her to enter the house, he robbed the complainant of her jewellery
and a cellphone. Once inside the house, still at gunpoint,
the
appellant ordered the complainant to remove her clothes. The
appellant then raped the complainant.
[8]
After
he had finished, the appellant ordered the complainant to put on her
clothes and move out of the house. He ordered her into
a bush where
he raped her once again. After he finished, they parted ways and she
went straight to the police station to report
the rapes and the
robbery. The police took her to the hospital where she was treated.
She did not suffer any physical injuries.
[9]
It
is with this factual background in mind, as well as the appellant’s
personal circumstances, that this appeal should be
considered. With
regard to the personal circumstances of the appellant, the following
are pertinent: he was 20 years old when
the offences were committed;
he went up to standard six at school; he lived with his parents and
two siblings in Tembisa. He had
a previous conviction of
housebreaking with intent to steal and theft, committed in 1999 where
he was sentenced to two years imprisonment,
wholly suspended for five
years on certain conditions. He had been in custody for two and a
half years at date of sentence.
[10] Satchwell J,
in imposing the sentences of 20 years each on counts 3 and 4, found
the period spent in custody awaiting trial
by the appellant, to
constitute substantial and compelling circumstance, which warranted
the imposition of sentences other than
life imprisonment. Whether or
not one agrees with Satchwell J as to the basis upon which she found
substantial and compelling circumstances
to have existed, I am
satisfied having regard to all circumstances in this matter, that
substantial and compelling circumstances
do exist.
[11]
The test in an appeal against sentence is trite, namely whether the
trial court misdirected itself in considering sentence
or exercised
its discretion in an unreasonable manner. Put differently, whether
the sentence, in the circumstances of the case,
induces a sense of
shock or is disturbingly disproportionate. See
S
v Pieters
1987 (3) SA 717
(A). Indeed sentence is eminently the discretion of
the trial court. The court of appeal’s powers are limited.
[12]
Mr
Motaung
,
attorney for the appellant, urged us quite strongly, to consider the
pattern of sentences imposed by the Supreme Court of Appeal
in recent
judgments concerning rape matters, wherein sentences ranging between
16 and 18 years imprisonment were imposed. Predictably,
his argument
was premised, in the main, on
S
v Mahomotsa
2002 (2) SACR 435
(SCA);
S
v Vilakazi
2009 (1) SACR 552
(SCA) and
S
v Egglestone
[2008] ZASCA 77
;
2009 (1) SACR 244
(SCA).
[13]
In my view, all of the three cases are distinguishable from the
present case, on the facts. In
Mahomotsa
,
the appellant raped two women at different points in time, each woman
raped once. In the present case, the complainant was raped
twice. In
Vilakazi
,
the complainant asked for a lift from the appellant, who then raped
her. In the present case, the complainant was on her way to
work, and
was threatened with a gun, whereas in
Vilakazi
,
no gun was used. Without in any way condoning the facts which
presented themselves in
Vilakazi
,
they are nevertheless distinguishable from the present case. In
Egglestone
,
the appellant was convicted of only one count of rape of a woman who
was part of a group of young women lured for employment as
escort
agency prostitutes. Again the facts are distinguishable.
[14] In the
present appeal, the complainant was on her way to work and had no
business or communication with the appellant. She
was pointed with a
gun and robbed of her items, forced into a house where she was raped,
after which she was escorted to a bush
where she was raped again.
This must have been a particularly terrifying and traumatic
experience for the complainant.
[15] Another
aspect of aggravation is a distinct possibility of premeditation by
the appellant. He was a standard 7 pupil at the
time of the
commission of the offence. For him to be out in the street at 04h25
in the morning, is probably that he had formed
a clear intention to
commit a crime, possibly of rape. I say this because the
complainant’s male companion was let to go.
[16]
To my mind, the Legislature, when enacting the
Criminal Law
Amendment Act 105 of 1997
, must have had in mind, preventing people
from roaming the streets with unlicensed firearms. A disturbing
feature of the most
serious crimes that come to this Court on appeal,
and in trials is that such crimes are committed mostly by relatively
young people,
who act in callous, brazen and merciless manner towards
their victims. Rape is obviously a serious offence “constituting
… a humiliating, degrading and brutal invasion of the privacy,
the dignity and the person of the victim” (
S
v Chapman
1997 (2) SACR (SCA) at 5b).
[17] Society is
justifiably indignated by the increasing wave of violent crime
engulfing the country. As a result, expectations
are understandably
high that the courts would, through their sentences, and within the
legislative framework and common law, give
expression to the
society’s indignation.
[18]
During the week commencing on 11 August 2009, I sat with, and
respectfully concurred in the judgments of Willis and Makhanya
JJ in
Ntsheno
v The State
(Case No. A181/09) and
Dlamini
v The State
,
(Case No 182/09), wherein minimum sentences were applicable to
youthful offenders. I have found the views expressed therein to
be
helpful.
[19]
I have carefully had regard to the well-reasoned judgment of
Satchwell J on sentence in this matter, and am unable to find
any
misdirection, either on the application of the law, or on the
evaluation of the circumstances of the case. However, the learned
judge failed to adequately consider the cumulative effect of the
various sentences, which, in my view, renders the effective period
disturbingly disproportionate under the circumstances. In the light
of the recent decision of the Constitutional Court in
Centre
for Child Law and Minister of Justice and Constitutional Development
and Others
(CCT 98/08;
[2009] ZACC 18)
this Court is therefore at large to
interfere with the sentences, and replace them with sentences we deem
appropriate. An effective
period of 30 years is excessive in the
circumstances. In my view an effective period of 23 years
imprisonment would seem appropriate.
[20]
In this regard the
dictum
of Holmes JA in
S
v V
1972 (3) SA 611
(AD) at 614H is worth mention:
The law operates
to protect women against outrage. As to that, if there be any who
doubt whether a massive sentence of imprisonment
for 20 years will
not be a sufficient expiation for the gravely evil misdeeds of this
youth, let them cast their minds back in
their own lives over that
period, and consider how much has happened to them in those two
decades, and how long ago it has seemed,
although enlivened by
domestic happiness and the free pursuit of their avocations. No such
ameliorations attend the slow tread
of years when you are locked up.
[21]
It
should be recalled that the sentences imposed by Satchwell J on
counts 1, 2 and 5 on 7 March 2005, were confirmed by the Full
Court.
[22]
In
the result the following order is made:
The
appeal on sentence in respect of counts 3 and 4 is upheld but only
to the limited extent that it relates to the order of the
duration
of concurrency;
The
sentences of twenty years’ imprisonment imposed on each of
counts 3 and 4 by Satchwell J on 24 July 2007 are confirmed.
The order by
Satchwell J on 24 July 2007 as to concurrency of the sentence, is
set aside and in its place the following is substituted:
“
The
sentences imposed on counts 2, 4 and 5 are to run concurrently with
the sentence on count 3”
The effective
sentence is therefore 23 years imprisonment;
The aforesaid
sentence is antedated to 7 March 2005 being the date of the first
sentence.
DATED
AT JOHANNESBURG THIS 8TH DAY OF SEPTEMBER, 2009
T
.
M. MAKGOKA
JUDGE
OF THE HIGH COURT
I
agree.
N
.P.
WILLIS
JUDGE
OF THE HIGH COURT
I
agree.
G.M.
MAKHANYA
JUDGE
OF THE HIGH COURT
Appearance
for the appellant in the
Ntsheno
case: Attorney M Motaung
Appearance
for the State in the
Ntsheno
case: Ms
N. Naidoo
Appearance
for the appellant in the
Dlamini
case: Attorney Jesse Penton
Appearance
for the State in the
Dlamini
case: Mr
X.T. Zitha
Appearance
for the appellant in the
Rampa
case: Attorney M Motaung
Appearance
for the State in the
Rampa
case: Mr
M.L. Gcaba
1
In
terms of section 28 (3) of the Constitution a “child” is
defined as “a person under the age of 18 years”
Se also
the illuminating observations of Cameron J in this regard in the
case of
Centre
for Child Law v Minister of Correctional Services & Others
(Case CCT 98/08; [2009]ZACC 18) at paragraph [39]
2
In
the more comical renditions of this story the Queen pronounces “off”
as “orf”, the accent being an
imitation of that widely
used by British aristocrats until recently.
3
See
506d-f; 516j-521a
4
Some
prefer to say “retired”. Stegmann J left the active
service of the South Gauteng High Court in 2004.
5
At
523d-e
6
At
523i-524d
7
i.e. speculative hypotheses favourable to the offender, undue
sympathy, aversion to imprisoning first offenders, personal doubts
as to the efficacy of the policy underlying the legislation and
marginal differences in personal circumstances or degrees of
participation between co-offenders.
8
Also
at para [25] of the judgment
9
See
footnote 3 of the SCA judgment
10
The
synonymousness of “everyday” with “traditional”
may not be immediately apparent. If, however, one
substitutes the
word “usual”, which in each instance seems to have been
sense employed by both Stegmann J and the
SCA when using the words
“everyday” and “traditional” respectively,
the issue acquires an easy clarity.
11
Paragraphs
[111], [112] and [121] of the Constitutional Court judgment
12
At
paragraph [40]
13
See
R
v Dhlumayo
1948 (2) SA 677
(A);
Mine
Workers’ Union v Broderick
1948 (4) SA 959
(A) at 970;
R v Kuzwayo
1949 (3) SA 761
(A) at 765.
14
See
At
523i-524d of Stegmann J’s judgment and paragraph [8] above
15
Paragraph
[40] of the Constitutional Court’s judgment