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[2009] ZAKZPHC 11
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Ntanzi v S (AR465/08) [2009] ZAKZPHC 11 (31 March 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL,
PIETERMARITBURG
CASE NO: AR465/08
In
the matter between:
BUSUSANI
SIMON
NTANZI
Appellant
And
THE
STATE Respondent
JUDGMENT
MSIMANG,
J:
[1] The
appellant was convicted of rape by the Verulam Regional Court and was
sentenced to serve a
term of eighteen (18) years’
imprisonment. The allegations against him, and which were
found by the Regional
Court to have been proven were that, on 2
October 2004, he had engaged in unlawful sexual intercourse with a 14
year old.
The allegations accordingly placed the
conviction within the sentencing regime prescribed in the Criminal
Law Amendment Act
[1]
(the Act).
In terms of Section 51(1) of that Act a person convicted of an
offence referred to in Part I of Schedule
2 shall be sentenced to
serve a term of life imprisonment, unless a Court sentencing him is
satisfied that substantial and compelling
circumstances exist which
justify the imposition of a lesser sentence, in which event a Court
would then impose such a lesser sentence
and shall enter those
circumstances on the record. Rape, where a victim is a
person under the age of sixteen (16) years,
is one of the offences
enumerated in the said Schedule.
[2] In
finding that a term of life imprisonment would be unwarranted in
casu,
the Regional Magistrate opined as follows :-
“
You
are still a young man, you have been in custody for three years, you
committed one act of rape, you were initially co-operative
with the
father of the complainant and with the community. The
Court is persuaded that a term of life imprisonment
would not be just
in your case, nonetheless a lengthy term of imprisonment is warranted
to reflect the indignation and revulsion
of society and to act as a
deterrent to like-minded persons. You are accordingly
sentenced, then, TO A TERM OF EIGHTEEN
(18) YEARS IMPRISONMENT”.
[3] The
appeal is directed at the severity of the said sentence, leave having
been granted by
the Court
a
quo.
[4] On
behalf of the appellant it was argued that, if one takes into
consideration the surrounding
circumstances, the sentence is
shockingly inappropriate and therefore that the Appeal Court is at
liberty to interfere and to ameliorate
the same.
[5] Our
Courts have repeatedly and consistently emphasized that sentencing
remains a matter within
the discretion of the Trial Court and that
the Appeal Court will not interfere unless it is shown that the Trial
Court exercised
its discretion in an unjust or unreasonable
manner.
[2]
However, years of
judicial interpretation have produced well recognized grounds upon
which a Court of Appeal will interfere in the
exercise of this
discretion by a Trial Court. Those grounds are the
following :-
[3]
“
1.
Where the trial judge/magistrate as the case may be, has misdirected
himself on the law or
on the facts; or
2.
he has exercised his discretion capriciously; or
3.
upon the wrong principle; or
4.
be [so] unreasonable as to induce a sense of shock. “
[6] Having
perused and carefully considered the record of the proceedings in the
Court
a
quo,
I
could find no misdirection in that Court’s judgment on sentence
neither could Counsel direct me to one.
Also, there
are no indications that the said Court exercised its discretion
capriciously or that it relied on a wrong principle
in exercising the
same. Indeed, the only ground upon which the sentence
in
casu
was
attacked was that it is shockingly inappropriate.
Schreiner
J
preferred
the expression that the sentence should evince “a sentence of
shock and outrage”
[4]
while
Ogilvie-Thompson,
JA
was
of a view that an Appeal Court would only interfere :-
“…
..
if it considers that there is a striking disparity between the
sentence passed and that which the Court of Appeal could have
passed.
[5]
The
third version of the same ground is propounded in cases such as
R
v Ford
[6]
where
de
Wet CJ
remarked
as follows :-
“
The
only question for us to determine, as has been pointed out over and
over again, is whether the sentence imposed was such that
it could
not reasonably have been imposed”.
[7]
[8] In
R
v Zulu and others
[8]
Broome J
expressed
a view that the distinction between the two latter versions amounts
to a distinction without a difference and that there
exists no
material difference between them. Reinforcing this view
he held that :-
“
A
sentence which could not reasonably have been imposed must inevitably
induce in a Court of Appeal a sense of shock or outrage,
and vice
versa.”
[9]
[9] The
enquiry must accordingly be directed as to whether the sentence of
eighteen (18)
years’ imprisonment imposed
in
casu
is
such that, in the circumstances of the case, it could and should not
reasonably have been imposed and, in conducting such an
enquiry, the
facts underlying the appeal become relevant.
[10] Complainant’s
testimony, which was accepted by the court
a
quo,
was
that, at the time when the incident occurred, she had just turned 15
years old, that on the occasion she had been awaiting transport
at a
bus stop. At dusk when she realized that no transport was
in sight, she decided to walk home. While
walking, she
heard the sound of footsteps behind her and started walking faster.
At the same time she turned and noticed
a person walking behind
her. This person apparently overtook her, greeted her and
they started walking together.
When they reached a place
where there were stones the person pushed her down and pressed her
onto a stone. He started
undressing himself and, when the
complainant cried out, he covered her mouth. He
thereafter sat on her thighs and raped
her. After the ordeal
the complainant went home. On the following morning she
reported the incident to her grandmother,
giving a description of a
person who had accosted her. Her father was called and
the complainant and her father repaired
to a homestead where they
believed the suspect resided. Upon their arrival
thereat they found the appellant present
and he was positively
identified by the complainant as the person who had raped her during
the previous evening. Upon
questioning by the father, the
appellant admitted that he had seen the complainant the day before.
The party (which
now included the appellant) then proceeded to the
Chief’s homestead, presumably for the purpose of reporting the
incident.
Unfortunately, however, upon their arrival
thereat the Chief was not present. The story of the
incident was, however,
related to the Chief’s wife by the
complainant and, in response to questioning, the appellant admitted
having raped the complainant.
[11] The
rape had lasted for a short time. A district surgeon who
had examined the complainant
on the following day testified that his
external examination and his questioning of the complainant had
revealed no history of
assault and that there were no injuries on her
body. There was, however, a small tear in the posterior
fourchette,
approximately one centimetre by half a centimetre and an
abrasion of the same dimension on the fossa navicularis. Though
the hymen was dilated, there was no evidence of any injuries.
These findings were, according to the district surgeon,
consistent
with a recent enforced penetration. The complainant
testified that, prior to the incident, she had not engaged
in any
sexual activity.
[12] When
questioned as to her state of mental anguish at the time of the
examination, the district surgeon
testified that, due to the fact
that the examination had occurred approximately four years
previously, he could not remember the
details thereof but could
confirm his finding as recorded on the J88 form, namely, that during
the examination the complainant
had been anxious.
[13] Ms.
Anastasiou,
who
argued the appeal on behalf of the appellant, submitted that,
together with the above circumstances relating to the incident,
the
Court
a
quo
ought
to have taken into consideration that the appellant was a first
offender, who in his 27 years of existence had not had a single
brush
with the law, that he has a minor child to support and that, at the
time when he was sentenced, he had been in custody awaiting
finalization of the matter for approximately three years.
Had the Court
a
quo
taken
those factors into consideration, so the argument proceeded, it would
have concluded that such a lengthy sentence was not
warranted.
To bolster her argument, she referred to two recent decisions of the
Supreme Court of Appeal
[10]
and submitted that
the circumstances in those cases were much graver than the
circumstances in the present case and yet the Supreme
Court of Appeal
had in those casers imposed much lighter sentences, namely, a term of
sixteen years’ imprisonment in
Nkomo
(a
case in which the accused locked a victim in a room after raping her
and when she tried to escape by jumping out of a window,
she was
noticed by the accused who forced her back to the room and raped her
four more times, slapped her, pushed her and kicked
her) and a term
of eight years’ imprisonment on count 1 and a term of twelve
years’ imprisonment on count 2, in
Mahomotsa
(a
case involving the abduction by the accused of two victims on two
separate occasions who raped each one of them more than once).
[14] Perhaps
to the list should be added the decisions in
S
v Gqamana,
[11]
S v Abrahams
[12]
and
S
v Sikhipha.
[13]
[15]
Gqamana
is
a decision of the Cape Provincial Division. In that case
the accused had been convicted of raping a complainant who
was
fourteen years and ten months old. At the time when she
had been sexually molested, she had been a virgin.
Finding that substantial and compelling circumstances existed and
taking into consideration the fact that the accused had been
in
custody awaiting trial and sentencing for a period of approximately
two years and eight months, the Court sentenced him to serve
a term
of eight years’ imprisonment.
[16] In
Abrahams
the
accused, who was a first offender, had been convicted of raping his
fourteen year old daughter. The Trial
Court had
found that substantial and compelling circumstances existed and
sentenced him to a term of seven years’ imprisonment.
On appeal the Court confirmed the Trial Court’s finding on the
existence of those circumstances but set the sentence of seven
years’
imprisonment aside, replacing it with a sentence of twelve years’
imprisonment.
[17] Finally,
in
Sikhipha,
the
accused, who was also a first offender, had been convicted of raping
a thirteen year old girl. The Trial Court
had found
that substantial and compelling circumstances did not exist and had
sentenced the accused to life imprisonment.
On appeal the
Trial Court’s finding on the absence of those circumstances was
set aside as was the sentence of life imprisonment,
replacing it with
a term of twenty years’ imprisonment.
18] Much
as it is sometimes useful, when assessing punishment, to make
comparisons with sentences
imposed for similar offences, one should
not lose sight of the rule that :-
“…
..
each case, should be dealt with on its own facts connected with the
crime and the criminal, and no countenance should be given
to any
suggestion that a rule may be built up out of a series of
sentences which it would be irregular for a Court to depart
from
……”
[14]
[19] It
is difficult to imagine a situation which would illustrate the
utility of this rule more than in
the comparison of some of the cases
referred to above. The analysis of the facts and a
sentence imposed in one case
and the comparison thereof with the
facts and sentence imposed in anyone of the four other cases have
shown the futility of such
an exercise.
[20] For
instance, in the present case the victim had not only been younger
than 16 years of age at the time
of the incident but she had also
been a virgin. These factors were not present in
Nkomo.
The
same discrepancy applies in
Mahomotsa,
where
though the charge sheet had made the allegations that the
complainants had been fifteen years old which allegations were later
confirmed in the evidence of those complainants, the High Court had
found that the Regional Magistrate had erred when he accepted
those
allegations as having been proven.
[21] A
factor which was present in
Gqamana
and
which was apparently one of the factors which the Supreme Court of
Appeal took into consideration in assessing an appropriate
sentence,
is that, at all material times, the accused had laboured under a
misapprehension that the complainant was approximately
eighteen years
old, a factor which is wanting in the present appeal.
[22] When
assessing an appropriate sentence in
Abrahams
the
Supreme Court was impressed by the evidence adduced during the trial,
namely, that the downward spiral in accused’s behaviour
had
started when a family’s younger son had committed suicide and
concluded that the said incident had adversely influenced
the
accused’s conduct within the family and had led to a diminution
in the judgment he brought to bear as a father.
This
factor is not present in the facts of the present case.
[23] The
crime of rape is an extremely serious transgression. As
the crime was aptly described
by
Mohamed
CJ
in
S
v Chapman,
[15]
it constitutes :-
“……
as it does a
humiliating, degrading and brutal invasion of the privacy, the
dignity and the person of the victim ….
Women
in this country are entitled to the protection of these
rights. They have a legitimate claim to walk
peacefully on the streets, to enjoy their shopping and their
entertainment, to go and come from work, and to enjoy the peace and
tranquility of their homes without the fear, the apprehension and the
insecurity which constantly diminishes the quality and enjoyment
of
their lives.”
[24] The
crime of rape perpetrated against a young girl, like it is the case
in the present matter,
is even more serious. It was for
this very reason that this type of crime was identified and included
in Part I of
Schedule 2 as meriting a sentence of life imprisonment,
unless a court finds that substantial and compelling circumstances
exist.
Even if the court find that those circumstances
exist, a court should take into account –
“……
.the
fact that crime of that particular kind has been singled out for
severe punishment and that the sentence to be imposed in lieu
of the
prescribed sentence should be assessed paying due regard to the bench
mark which the Legislature has provided.”
[16]
[25] It
accordingly behoves of the judiciary to always keep the said bench
mark in mind when deciding
on appropriate sentences for the crimes
contained in the said schedule and in so doing –
“…
..send
a message to the community that rape, and especially the rape of a
young girl, will be visited with severe punishment.
It will
send a strong deterrent message.”
[17]
[26] It
is of no moment to argue, as Ms.
Anastaniou
did before us,
that the prosecution had not adduced evidence of any psychological
harm suffered by the complainant as a result of
the incident
and that it should therefore be inferred that she had suffered no
such harm. This was exactly the
position in
Sikhipha
(supra)
and yet the Supreme Court of Appeal refused to make such
an inference, holding that :-
“……
..
there can be no doubt that the rape was traumatic for her.
She was only 13 when a neighbour, a married man, more
than twice her
age, dragged her across his yard and had sexual intercourse with her
against her will. Her injuries
may have been minor, but
she must have been severely affected.”
[18]
There
is not much difference between this ordeal and the one suffered by
the complainant
in
casu.
[27] In
Mahomotsa (supra) Mpati JA
(as he then was) added his voice to
the debate and made the following remarks :-
“
While
it may theoretically be possible that a victim of rape committed in
the circumstances and manner I have described may not
suffer any
psychological damage other than that experienced while the attack is
taking place and its immediate aftermath, it is
in the highest degree
unlikely. Where as here, the complainants were young girls, it
is quite unrealistic to suppose that
there will be no psychological
harm.”
[19]
[28] The
period of eighteen years is a long period and, had I sat as a Court
of the first instance,
I would, in all probability, have imposed a
lesser sentence. However, that is not the issue.
The enquiry is whether
I would have imposed a sentence which would
have been strikingly disparate from the sentence which was imposed by
the Court
a
quo
in
this matter. Having carefully considered the facts of the
case my response to the said enquiry must be in the negative.
I
honestly cannot say that the sentence of eighteen years’
imprisonment imposed by the Regional Magistrate could not reasonably
have been imposed. The appeal must accordingly fail.
I
would accordingly dismiss the appeal, and confirm the sentence of
eighteen (18) years’ imprisonment which was imposed by
the
Court
a
quo
herein.
I agree
MARNEWICK,
AJ:
MSIMANG,
J:
It is so ordered.
For the
Appellant: Adv.
Z Anastasiou (instructed by Legal Aid Board)
For the
Respondent:
Adv. J H du Plessis (instructed by Director of Public Prosecutions)
Matter
argued:
25 March 2009
Judgment
delivered:
31 March 2009
[1]
Act 105 of 1997;
[2]
Lepholletsa v S
[1997] 3 All SA 113
(A);
[3]
Phophi v S
[1997] 3 All SA 370
(V) at 373 e-b;
[4]
Rex v Reece
1939 TPD 242
at 244;
[5]
S v Berliner 1967(2) SA 193 (A) at 200 H;
[6]
1939 AD 559
;
[7]
Ibid. at 561;
[8]
1951(1) SA 489(N);
[9]
Ibid. 497 B-C;
[10]
S v Nkomo 2007(2) SACR 198 SCA; S v
Mahomotsa 2002(2) SACR 435 (SCA);
[11]
2001(2) SACR 28 (CPD);
[12]
2002(1) SACR 127 (SCA);
[13]
2006(2) SACR 439 (SCA).
[14]
R v Karg 1961(1) SA 231 (AD) at 236 H;
see also S v Dhansay 1963(3) SA 259 (C) at 260 H – 261
B; S v Fallison
1969(1) SA 477 (RAD) at 478 D-E;
[15]
1997(2) SACR (SCA) at 5 b-d;
[16]
Per Marais JA in S v Malgas 2001(1) SACR 469
(SCA) at 482 g;
[17]
Sikhipha (supra) at 446 d;
[18]
Ibid. at 446 b;
[19]
Mahomotsa (supra) at 441 i – j: