S v Ntholeng (A402/2003) [2004] ZAFSHC 140; [2004] 4 All SA 469 (O) (2 September 2004)

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[2004] ZAFSHC 140
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S v Ntholeng (A402/2003) [2004] ZAFSHC 140; [2004] 4 All SA 469 (O) (2 September 2004)

IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE FREE STATE PROVINCIAL DIVISION)
Appeal
No.: A402/2003
In
the matter between:
ELIAS NTHOLENG
Appellant
and
THE STATE
Respondent
___________________________________________________________
CORAM:
MUSI J,
RAMPAI et VAN DER MERWE, JJ
___________________________________________________________
HEARD ON:
23
AUGUST 2004
___________________________________________________________
JUDGMENT BY:
MUSI,
J
___________________________________________________________
DELIVERED ON:
2
SEPTEMBER 2004
___________________________________________________________
[1] The appellant was convicted on five counts of rape
in the Regional Court at Botshabelo on 24 November 2000. In all the
counts
the victims of the rape were girls under the age of 16 and
presumably the provisions of section 51 of the Criminal Law Amendment
Act 105 of 1997 (the Minimum Sentences Act) became applicable. In
terms hereof the appellant became liable to be sentenced to life
imprisonment in respect of each of the counts. The matter was
accordingly referred to the High Court for sentence in terms of
section
52(1)(b) of the Act.
On 12 December 2001 the matter came before Mabesele, AJ
who duly confirmed all the convictions of the appellant and proceeded
to consider
sentence. He imposed the prescribed minimum sentence of
life imprisonment in respect of each of the five counts.
An application for leave to appeal was subsequently
filed and since Mabesele AJ was not available, it was heard by my
brother Rampai,
J who granted it.
[2] There are two issues in this appeal that call for
consideration. Firstly, the offences in counts 1, 2 and 5 were
committed respectively
on 28 February 1998, 9 March 1998 and 26 April
1998, which is prior to the coming into operation on 1 May 1998 of
the Minimum Sentences
Act. These counts were therefore not subject
to the prescribed minimum sentences as provided for in the Act; and
the Court
a quo
was
not obliged to impose life imprisonment in respect thereof. This
much was common cause at the time of sentencing. However,
the Court
a quo
nonetheless
proceeded to impose life imprisonment on the basis that it had the
power to do so even if the Act was not applicable.
The second issue
is failure of the Court
a quo
to deal specifically with the issue of whether there were substantial
and compelling circumstances as set out in section 51(3) of
the Act,
which would entitle the Court to depart from the prescribed minimum
sentence.
[3] In his heads of argument Mr Langenhoven, who
previously acted for the appellant, agreed that the Court
a
quo
was entitled to impose life imprisonment
even if the provisions of the Minimum Sentences Act were not
applicable to the offences in
counts 1, 2 and 5. He gave notice that
he did not think that the imposition of life imprisonment was
inappropriate in the circumstances
of this case.
Before us Ms Murray, who did not draw up the heads of
argument, appeared for the appellant. She agreed that the Court
a
quo
had the power to impose life imprisonment
even in respect of counts 1, 2 and 5, but deviated from the heads of
argument and submitted
that life imprisonment was inappropriate in
the circumstances of this case and urged us to interfere and
substitute appropriate sentences
in respect of those three counts.
In regard to counts 3 and 4, counsel was of the view
that there were no substantial and compelling circumstances
justifying a departure
from the prescribed minimum sentence of life
imprisonment and could not challenge the sentences imposed.
[4] Ms Giorgi, who appeared for the State, did not deal
with this issue in her heads of argument but broadly supported the
decision
to impose life imprisonment in respect of all the five
counts, and thereby also signified an agreement with the decision of
the Court
a quo
in
imposing life imprisonment in respect of counts 1, 2 and 5 as well.
She supported the sentences on the basis of the seriousness
of the
crimes, the interests of the community and the fact that the crimes
were prevalent.
[5] In her heads of argument and in oral argument before
us counsel for the State submitted that the Court
a
quo
did indeed deal with the question of
whether there were substantial and compelling circumstances as set
out in section 51(3) of the
Act. She said that the fact that the
Minimum Sentences Act is referred to in the reasons for sentence
means that the Court
a quo
was aware of the relevant provisions and considered the issue. She
further submitted that it is implicit in its judgment that the
Court
a quo
found that there
were no such substantial and compelling circumstances, and hence it
imposed the prescribed minimum sentence.
[6] In my view, the Court
a quo
materially misdirected itself in imposing life imprisonment in
respect of counts 1, 2 and 5. It is so that the Courts retain the
power and discretion to impose life imprisonment even in regard to
rapes committed prior to the coming into operation of the Minimum
Sentences Act. (See
S v MALGAS
[2001] (3) ALL SA 220
(SCA) at 227e
).
However, a sentencing Court must make a clear distinction between the
offences committed prior to and those committed subsequent
to 1 May
1998. This is so because the enactment of the Minimum Sentences Act
ushered in a completely different dimension to sentencing.
It was a
drastic measure that created a new regime of sentencing packages
applicable to a select category of crimes and to be applied
strictly
with effect from date of its coming into operation. Such date is
significant as it marks a clear break from the manner
in which the
specifically delineated crimes had previously been punished. The
significance of the break was highlighted by Marais,
JA when he
stated in
MALGAS
(
supra
) at
227e
that in enacting the Minimum Sentences Act, parliament was not happy
with the prevailing sentencing patterns and
“that it was no longer to be business as usual when sentencing for
commission of the specified crimes.”
And at
232A
it is made clear that section 51 of the Act has limited the
discretion of the Court in imposing sentence in respect of the
specified
offences. Therein lies the significance of the
distinction, for in respect of the offences not covered by the Act,
the Courts retain
their unfettered sentencing discretion.
[7]
In casu
the Court
a quo
merely
indicated that it had the power to impose life imprisonment even in
respect of the rapes not falling within the purview of
the Act, but
there is nothing to suggest that it treated the relevant offences
differently from those covered by the Act. In my
view, had the Court
a quo
approached the
matter on the basis of the unfettered sentencing discretion it had in
respect of counts 1, 2 and 5, and consulted
precedents, it would have
realised that life imprisonment would be startlingly inappropriate in
the circumstances of this case.
Even if I am wrong in my conclusion
that the Court
a quo
misdirected itself as to approach, nonetheless the Court
a
quo
was wrong in imposing life imprisonment
in the circumstances of this case. It over-emphasised the nature and
gravity of the offences
and the interests of society and did not give
sufficient weight to the mitigating factors in the matter, to which I
shall revert
shortly.
[8] I now turn to consider the question of “substantial
and compelling circumstances”. This relates to the offences that
fall
within the provisions of the Act. It is to be noted that
sub-section (1) of section 51 is subject to the provisions of
sub-section
(3) and (6) of the same section. Sub-section (3)
provides that where substantial and compelling circumstances are
found to exist
justifying the imposition of a lesser sentence than
the prescribed sentence, then the Court shall enter those
circumstances on the
record and proceed to impose the lesser
sentence. That means that a Court applying the provisions of section
51 must consider the
existence or not of substantial and compelling
circumstances before passing sentence. This much is clear from the
decision in
RAMMOKO v DIRECTOR OF PUBLIC
PROSECUTIONS
2003 (1) SACR 200
(SCA)
at 205g
. See also
MALGAS
(
supra
) at
229j
. It was further
made clear in
RAMMOKO
that the sentencing officer has a duty to explore the relevant
factors and must be proactive in this respect.
Now if the Court finds that such circumstances do exist,
it must record them. On the other hand, if it finds none to exist,
it is
not called upon to record such finding in so many words. In my
view, it must, however, be clear from the record that the Court did
pertinently deal with the issue and came to the relevant conclusion.
[9]
In casu
no reference is made to the provisions of sub-section (3) of section
51 aforesaid. There is neither any mention at all of the phrase
“substantial and compelling circumstances” in the reasons for
sentence nor any indication that the appellant’s then legal
representative
raised the issue at all. The issue was first raised
in the application for leave to appeal by Mr K. Pretorius, who moved
that application.
I cannot, therefore, agree with counsel that such
issue was dealt with by the Court
a quo.
The Court
a quo
simply followed the traditional route of considering the triad of
sentence, found life imprisonment to be appropriate and proceeded
to
impose it without first pondering whether a departure from the
prescribed sentence may be justified.
[10] In the heads of argument filed on behalf of the
appellant, Mr Langenhoven drew attention to this omission to deal
with the issue
of substantial and compelling circumstances and cited
the case of
S v CALITZ EN ‘N ANDER
2003 (1) SACR 116
(SCA)
. That case dealt
with a situation where the reasons for the sentence imposed were
absent from the record of the relevant proceedings
and it is
distinguishable from the instant one insofar as reasons for the
sentence are there in this case. Counsel correctly conceded
this much
and on that basis abandoned the point. However, that case is
relevant insofar as the record herein is blank as far as
a
consideration of the provisions of section 51(3) is concerned. In
this context, the point was validly made. Counsel appears to
have
abandoned that point also on the basis that, at any rate, on the
basis of the principles set out in
MALGAS
(
supra
) and
PRICE AND ANOTHER v S
[2003] (4) ALL SA 26
(SCA), t
here were no
substantial and compelling circumstances in this case. That was also
the view expressed by both Ms Murray and Ms Giorgi
in oral argument.
I respectfully disagree. Firstly, failure to consider the existence
or not of substantial and compelling circumstances
before imposing
the prescribed sentence would normally constitute an irregularity (I
say “normally” advisedly because circumstances
are conceivable
where this may not be the case). Secondly, in my view, there are
indeed substantial and compelling circumstances
as defined.
[11] To conclude this aspect of the inquiry, I hold that
the question of whether there were substantial and compelling
circumstances
as defined was not addressed in this case and that
constitutes an irregularity grave enough to vitiate the sentences in
respect of
counts 3 and 4. This Court is therefore at large to
consider sentence afresh. In doing so I propose to start with a
consideration
of the issue of substantial and compelling
circumstances in respect of counts 3 and 4. I shall consider the
relevant factors in conjunction
with all other factors relative to
sentence covering counts 1, 2 and 5 as well.
[12] It is so that there are aggravating factors in this
case, quite apart from the fact that rape is a serious crime. The
Minimum
Sentences Act has marked out rape of a girl under the age of
16 as deserving severe punishment. The complainants in counts 4 and
5 were raped twice by the appellant and that in itself has been
marked out for severe punishment. Clearly these two counts are more
serious than the others. Then there is the manner of execution of
the crimes, about which the Court
a quo
has said all that needed to be said. Suffice it so say that the
appellant can be classified as what is normally referred to as a
serial rapist. I say this because the offences were all pre-planned
and his
modus operandi
was the same. He targeted girls of between 13 and 16 years of age
and would falsely accuse the unsuspecting victim of having been
involved in, one way or another, the murder of a relative of his. He
would then demand that the victim accompany him to the police
and in
this way lure her to an open space where he would rape her.
[13] On the other hand, there are strong mitigating
factors as well and in my view the following factors cumulatively
constitute weighty
reasons justifying a departure from imposition of
the prescribed minimum sentence, at any rate in respect of counts 3
and 4:
1. All the complainants did not sustain any physical
injuries other than those incidental to forced penetration and even
those were
not of a serious nature. The indications are that whereas
the complainants were obviously traumatised, no permanent damage has
resulted
in this regard, at any rate, there is no evidence pointing
in that direction.
2. The appellant did not use excessive force and appears
to have intended no harm other than to satisfy his sexual lust.
3. The rapes took place during the day in an open veld
within the township and the complainants were not subjected to
life-threatening
conditions as compared to, for instance, being
dragged to a forest or other dangerous remote place at night.
Compare the situation
in
S v BLAAUW
[2001] (3) ALL SA 588
(C)
. In a nutshell,
these were not rapes of the worst kind. See the remarks of Mpati, JA
(as he then was) in
S v MAHOMOTSA
2002 (2) SACR 435
(SCA) at 444
.
4. The
appellant has favourable personal circumstances:
4.1 He is a married man of 34 (now) with minor children.
He was fully employed, and earned a reasonable income of R1 800,00
per month
and supported his family.
4.2 He
was, for purposes of sentence, a first offender.
4.3 The Court
a quo
described the appellant as an enlightened and responsible person. It
can be accepted that he is not the type that should be permanently
removed from society.
In my view these factors also render life imprisonment
in respect of counts 1, 2 and 5 startlingly inappropriate.
[14] Once the Court finds that a departure from the
prescribed minimum sentence is justified, it is at large to impose
any appropriate
sentence. However, it must do so conscious of what
the legislature has ordained to be appropriate sentences for the
relevant offences.
In my view, this awareness must extend also to
similar offences not falling within the purview of the Act, for a
sentencing Court
must take into account changed circumstances and
prevailing societal attitudes. In that context, it cannot be
business as usual
even in respect of the offences not hit by the
provisions of the Act.
In casu
,
all the offences fall within the same category and were committed one
after the other over a short period of four consecutive months.
In
my view they warrant similar punishment. I have already indicated
that counts 4 and 5 are more serious than the others and the
sentences I am about to impose must reflect that. Finally, the
effective term of imprisonment to be imposed will hopefully reflect
due recognition of the nature and gravity of the offences and the
interest of the community in the protection of young girls and
women
generally against rapists as well as keeping open a window of
possibility for the appellant’s rehabilitation in the distant
future.
[15] In the result, the appeal succeeds and the
sentences imposed on the appellant are all set aside and replaced
with the following
sentences:
1. On
each of counts 1, 2 and 3 – ten (10) years imprisonment.
2. On each of counts 4 and 5 – thirteen (13) years
imprisonment.
3, The sentences on counts 1, 2 and 3 to run
concurrently with the sentences on counts 4 and 5 and all the
sentences to be antedated
to 12 December 2001.
_____________
H.M. MUSI, J
I CONCUR
_______________
M.H.
RAMPAI, J
I CONCUR
__________________________
C.H.G.
VAN DER MERWE, J
On behalf of Appellant:
Adv.
Murray
Instructed
by
Legal Aid Board
On behalf of Respondent:
Adv.
S. Giorgi
Instructed by
Director:
Public Prosecutions
/scd