Sangweni v S (AR221/09) [2009] ZAKZPHC 60; 2010 (1) SACR 419 (KZP) (10 November 2009)

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[2009] ZAKZPHC 60
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Sangweni v S (AR221/09) [2009] ZAKZPHC 60; 2010 (1) SACR 419 (KZP) (10 November 2009)

IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG REPUBLIC OF SOUTH
AFRICA
REPORTABLE
AR221/09
SOSO
BHEKIZENZO SANGWENI Appellant
versus
THE
STATE Respondent
Judgment
Delivered
on 10 November 2009
Steyn J
[1] The appellant, who
was tried in the regional court of the Regional Division
KwaZulu-Natal, held at Ulundi, on a charge of rape,
read with the
sections 51
and
52
of the
Criminal Law Amendment Act, 105 of 1997
,
was convicted on the charge and sentenced to undergo life
imprisonment. The appellant, who has an automatic right of appeal,
exercised his right to do so, and now appeals against both conviction
and sentence.
[2] Mr Marimuthu, acting
on behalf of the appellant, conceded rightly in my view, that the
record revealed that the presiding officer
in the Court
a
quo
had
carefully considered all the evidence placed before him, and had
dealt appropriately with all the contradictions in the State’s

case, weighing up the merits and the demerits of the case. I agree
that on the merits of the case the court
a
quo
cannot be faulted. In his view, however, this court, ought to
interfere with the sentence the Court imposed, especially in the

light of the guidance given by the Supreme Court of Appeal
1
in the cases of
Mohomotso,
Rammoko
,
Nkomo
and
Vilakazi
.
2
[3] On behalf of the
respondent it was argued that the conviction was in order, and that
sentence prescribed by statute had to be
upheld as the personal
circumstances of the appellant failed either singularly or
cumulatively
to constitute ‘substantial and compelling circumstances’ that
would allow a departure from such a sentence. It was further

submitted that aggravating factors, such as the tender age of the
complainant, the fact that the appellant was known to the girl
and
was also in a position of trust, justified the sentence of life
imprisonment, that had been imposed by the court
a
quo.
[5]
Ad
conviction
The complainant gave her
testimony in a straightforward way, explaining how it came about that
she was with the appellant in the
hut when she was raped by him. It
is evident from the judgment of the learned regional Magistrate that
he was cautious in the
consideration of the testimony of the
complainant and was alive to the fact that he should look for
corroborative factors in support
of her testimony. On the evidence as
a whole, I can find no misdirection, either on fact or on law. In my
view the appeal on the
merits cannot succeed.
[6]
Ad
sentence
I shall now turn to the
sentence imposed. It is trite law that life imprisonment should only
be imposed in very serious cases.
Upon focusing on the
sentencing regime introduced by the minimum sentence legislation,
introduced by the
Criminal Law Amendment Act, No. 105 of 1997
, I
align myself with the SCA’s view in
S
v Vilakazi
,
supra
,
at 562:
“
[18] It is plain from the
determinative test laid down by
Malgas
,
consistent with what was said throughout the judgment, and consistent
with what was said by the Constitutional Court in
Dodo
,
that a prescribed sentence cannot be assumed a priori to be
proportionate in a particular case. It cannot even be assumed a
priori
that the sentence is constitutionally permitted. When the
prescribed sentence is indeed proportionate, and thus capable of
being
imposed, is a matter to be determined upon a consideration of
the circumstances of the particular case. It ought to be apparent

that when the matter is approached in that way it might turn out that
the prescribed sentence is seldom imposed in cases that fall
within
the specified category. If that occurs it will be because the
prescribed sentence is seldom proportionate to the offence.
For
the essence of
Malgas
and of
Dodo
is that disproportionate sentences are not to be imposed and that
courts are not vehicles for injustice.
”
(my emphasis).
[7] The South African Law
Commission, as it then was, has expressed its view on the nature of
‘life imprisonment’ and I consider
it to be a very useful way of
looking at this form of punishment. My interpretation of the term,
albeit that it is not specifically
expressed in the wording of the
legislation, is that life imprisonment should be considered in
instances where the death penalty
would have been an appropriate
sentence. The Commission stated its view as follows:
“
Since the abolition of the death
penalty ‘life imprisonment’ is the most severe sentence that the
courts can impose. In
S v
T
the court explained that
the sentence of ‘life imprisonment’
authorises
the
State to keep offenders in prison for the rest of their natural
lives. Unless this result is considered to be appropriate this

sentence should not be imposed. The question is when is this option
appropriate? It is clear though, that the crime has to be very

serious and that mitigating factors should have little effect on the
blameworthiness of he offender.”
3
(Footnotes omitted).
[8] The gravity of the
life imprisonment is recognised around the world. As Professor van
Zyl Smit, a distinguished author on the
subject of sentencing
internationally and in South Africa, has remarked, on the basis of an
extensive comparative study:
4
“
It must be
emphasised that life sentences are always very harsh penalties
because of their potential to deny liberty indefinitely….
[C]areful
consideration of when they are imposed can limit their use to the
most serious cases.”
Given the gravity of the
sentence of life imprisonment, it is important that this Court should
ask itself whether the role displayed
by the learned magistrate was
sufficiently proactive. Did he elicit the necessary information from
the appellant to enable him
to properly examine all the
circumstances, and to exercise his judicial discretion as to what
sentence would be proportionate to
the crime that was committed. As
has been re-emphasised in
Vilakzi
,
the prescribed sentence is not the norm:
“
[16] It was submitted before us
that in
Malgas
this court ‘repeatedly emphasised’ that the prescribed sentences
must be imposed as the norm and are to be departed from only
as an
exception. That is not what was said in
Malgas
.
The submission was founded upon words selected from the judgment and
advanced out of their context. The court did not say, for
example, as
it was submitted that it did, that the prescribed sentences ‘should
ordinarily be imposed’. What it said is that
a court must approach
the matter
‘conscious
[of the fact] that the Legislature has ordained
[the prescribed sentence] as the sentence that should
ordinarily
and in the absence of
weighty justification
be imposed for the listed crimes in the specified circumstances’
(footnotes omitted emphasis as in original text)”
5
As in
Nkomo
6
there are factors that weigh in
favour
of the appellant, especially the fact that the appellant was
relatively young, 30 years old and before his arrest had been
gainfully employed. Most importantly, he has never been convicted of
any offence. These factors all weigh heavily in favour of
a finding
that the appellant is a candidate for rehabilitation. These listed
factors were, however, not considered by the court
a
quo
as
‘substantial and compelling circumstances’.
I have carefully
considered the submissions made on behalf of the appellant and
interestingly, Mr Marimuthu did not advance any
listed factors as
being ‘substantial and compelling’. He did, however, refer this
Court to a number of decisions of the SCA
where lesser sentences were
imposed.
[9] This court is acutely
aware of the principle that decided cases should be of value not for
the facts but the principle of law
which they lay down.
7
[10] In my view it is
incumbent on every presiding officer when imposing a minimum sentence
to consider all the circumstances of
the case at hand, and then to
determine whether the punishment prescribed by the legislature is
proportional to the crime committed
case. This is done by applying
the
Malgas
8
test. In applying the ‘determinative test’ it is evident that if
the minimum sentence is disproportionate to the offence,
given the
specific circumstances of the case, then a court should deviate from
the prescribed sentence. Such an approach is also
in line with the
view of our Constitutional Court. In
Dodo
the Court explained it as follows:
“To
attempt to justify any period of penal incarceration, let alone
imprisonment for life as in the present case, without inquiring
into
the proportionality between the offence and the period of
imprisonment, is to ignore, if not to deny, that which lies at the

very heart of human dignity. Human beings are not commodities to
which a price can be attached; they are creatures with inherent
and
infinite worth; they ought to be treated as ends in themselves,
never merely as means to an end. Where the length of a sentence,

which has been imposed because of its general deterrent effect on
others, bears no relation to the gravity of the offence (in the
sense
defined in para 37 above) the offender’s dignity assailed. So too
where the reformative effect of the punishment is predominant
and the
offender sentenced to lengthy imprisonment, principally because he
cannot be reformed in a shorter period, but the length
of
imprisonment bears no relationship to what the committed offence
merits. Even in the absence of such features, mere disproportionality

between the offence and the period of imprisonment would also tend to
treat the offender as a means to an end, thereby denying
the
offender’s humanity.”
9
(original footnotes omitted)
[11] In
Vilakazi
Nugent JA highlights the test with reference to
Malgas
:
“
If the sentencing court on
consideration of the circumstances of the particular case is
satisfied that they render the prescribed
sentence unjust in that it
would be disproportionate to the crime, the criminal and the needs of
society, so that an injustice
would be done by imposing that
sentence, it is entitled to impose a lesser sentence”
10
In my view the learned
Magistrate misdirected himself when he considered the minimum
sentence as the norm without taking due consideration
of all the
facts and applying the proportionality test to depart from the
minimum sentence. This is how he dealt with the factors
when passing
the sentence:
“
But what happened in this case
is what we listen to just about in every rape case. Just about every
day as well. No wonder that
the minimum sentence is life
imprisonment. Because obviously something must be done to try and
protect children. Something must
be done about those who for some
reason or other deem it necessary to rape a child, a seven year old
child. What sexual pleasure
can be derived from raping a child, I
personally fortunately do not know. A seven year old child should not
even be a sex object
for a man.”
11
[12] For the above
reasons I find that the learned magistrate was at fault when he
concluded, without applying the
Malgas
test that life imprisonment is proportional and appropriate. The
record does not reveal any consideration of rehabilitation of
the
appellant nor of considering the proportionality of the sentence that
he imposed.
[13] In my view the
appeal against the conviction should be dismissed as being without
merit but the appeal against sentence should
be upheld. In light of
the aforementioned misdirection of the court
a
quo
,
this Court will have to determine afresh on the facts of this case,
paying due consideration to the existing personal circumstances
of
the appellant, and taking into account the needs of society, an
appropriate sentence. In doing so, I shall be mindful of all

relevant factors, including the fact that rape remains and offensive
and very serious offence. I am mindful of the words of Justice

Thomas, who so
succinctly
states the repulsiveness of the crime:
“Rape
is the most vicious and reprehensible crime in the criminal calendar.
Every individual possesses a core persona which makes
up the essence
of their being. It is an
intensely
personal and private self which necessarily includes the individual’s
sexuality and autonomy. Rape shatters a woman’s sexual
integrity
and personal autonomy. Victims suffer acute trauma and endure
lifelong psychological and emotional scars.”
12
[14] At the time of
sentencing the appellant was 30 (thirty) years old, and at the time
of his arrest gainfully employed. He supported
his family, which
consisted of his brothers and one sister. He was the only
breadwinner at the family homestead, and also a first
offender. A
long term of imprisonment should emphasise the seriousness of the
offence sufficiently and, at the same time serve
the community
interest. Such a sentence will also take due account of the need to
give the appellant an opportunity and a chance
to rehabilitate
himself.
[15] The conviction is
hereby confirmed. The appeal against the imposed sentence of life
imprisonment is upheld. In the result
the following order should be
made:
[16]
Order
The conviction on rape
is hereby confirmed, the sentence is set aside and substituted with
the following sentence:
Appellant is sentenced
to 18 (eighteen) years’ imprisonment.
The sentence is
antedated to 29 July 2008.
_____________________________
Steyn J
Jappie J: I agree, it is
so ordered.
_____________________________
Jappie J
1
Hereinafter
referred to as the SCA.
2
See
S
v Mahomotso
2002 (2) SACR 435
(SCA);
Rammoko
v DPP
2003 (1)
SACR
200
(SCA);
S
v Nkomo
2007 (2) SACR 198
(SCA) at para [13] and [14] and
S
v Vilakazi
2009 (1) SACR 552
(SCA).
3
See
SALC – Project 82: Sentencing framework at para 3.3.14.
4
D van Zyl Smit “Life Imprisonment: Recent Issues in National and
International
Law”
(
2006)
29
International
Journal of Law and Psychiatry
405-421; The same general conclusion is reached in the Southern
African content by J D Mujuzi
Life
imprisonment in International Criminal Tribunals and Selected
African Jurisdictions – Mauritius, South Africa and
Uganda.(
Unpublished
PhD thesis, University of the Western Cape, 2009).
5
See
Vilakazi
supra
at para [16].
6
Supra
note 1.
7
See
R
v Wells
1949 (3) SA 83
(A) at 87-88 and
S
v Sinden
1995 (2) SACR 704
(A)
at 708 A-B.
8
See
S
v Malgas
2001 (1) SACR 469
(SCA) and
S
v Vilakazi
,
supra
at para 15.
9
Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC) at para 38.
10
See
Vilakazi,
supra
par 14.
11

See
record at 90.
12
EW
Thomas
‘Was
Eve merely framed; or was she forsaken’
1994 New Zealand
LJ
368
at 368;
also
see E Steyn
‘Witnesses
in South Africa, The Stepchildren of the Criminal Justice System’
(unpublished LLM thesis, UCT, 1999) chapter 5 for a discussion of
the trauma that rape survivors experience in the criminal justice

system.