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[2003] ZAWCHC 91
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S v Nthonyweni (SS29/2003) [2003] ZAWCHC 91 (7 March 2003)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
: SS29/2003
DATE
: 7-3-2003
In
the matter of:
THE
STATE
versus
LWANDILE
NTHONYWENI
S
E N T EN C E
MOTALA,
J
:
Earlier today I confirmed the conviction of the accused in the court
below and indicated that I would furnish my reasons later.
These are
the reasons.
The
accused was charged in the Regional Court with orie count of rape.
The State alleged that on 30 August 1998 he raped the complainant
who
was then under the age of 12 years. The accused pleaded not guilty.
In his plea explanation he admitted having sexual intercourse
with
the complainant, but despite this averment in the charge sheet that
the complainant was under the age of 12 years, he alleged
that he did
so with her consent. The accused was found guilty of rape on 19 July
2001. He was then referred to this Court for sentence
in terms of
section 51 of Act 105 of 1997. The matter was placed before me on 14
February 2003. As the complainant was not available
the matter was
postponed to 21 February 2003. Her testimony: was:; essential as the
record of the proceedings in the Regional Court
indicated that before
she gave evidence, she was warned to tell the truth in terms of
section 164 of the Criminal Procedure Act,
i.e. without h^r being
examined under oath in terms of section 162 of the Act or without her
making an affirmation in terms of
section 163 of the Act.
In
terms of section 164 of the Act, a witness may be warned to tell the
truth without taking the oath or making an affirmation only
if the
presiding officer is of the view that the witness is unable to
understand the nature and import of the oath or affirmation.
Before
warning the complainant in terms of section 1.64 of the Act, the
magistrate did not enquire as to whether or not she understood
the
nature andimport of the oath or of an affirmation. The proceedings in
the court a
quo
were;: in that respect, irregular. In
SvB
2003(1} SACR 52 (SCA) it was held that" in such a case the court
to which a matter has been referred for sentence; in terms
of Act 105
1997 may itself call the complainant, and after the provisions of
sections 162-164 have been complied with/ to ask her,:
inter
alia,
to confirm whether she had given truthful evidence at the trial.
On
21 February 2003 I called the complainant to give evidence. I
questioned her as to whether she understood the nature and import
of
the oath. I was satisfied that she did and she was duly sworn in. She
confirmed that what she said in the court a
quo
was the truth. In the circumstances ! was satisfied that the accused
was correctly found guilty and that the accused's version
that the
complainant consented to have intercourse with him was correctly
rejected by the trial magistrate. Even ignoring for the
moment, for
reasons which will appear later, that being under the age of 12
years, according to the charge sheet and the undisputed
evidence of
her mother, she was in law unable to give such
consent.
The
magistrate's finding that the complainant did not consent to having
sexual intercourse with the accused makes it unnecessary
to consider
the statement in the report of the social worker Mr Ntuli, that the
complainant was born a year earlier than the year
deposed to by her
mother. Even if the complainant was over the age of 12 years, the
accused was correctly convicted.
I
turn now to the question of sentence. Evidence in that regard was
given by the complainant, the accused and by the social worker,
Mr
Ntuli. There is some uncertainty as to whether Act 105 of 1997
applies in this matter in that the accused was not advised, either
in
the charge sheet or otherwise, that the State intended to rely on
that Act. However, he was legally represented. In
S
v B
,
supra,
the Supreme Court of Appeal held that the Act did not apply in that
case because neither the accused nor his legal representative
had
been advised that the Act was to be relied on by the State. That case
is distinguishable in that the charge sheet in that case
lacked the
factual averment which would have made the Act applicable so that
even a legal representative would not have known that
the State was
going to rely on that Act.
Here
it is clear from the averment that the complainant was under the age
of 12 years that the Act was applicable as the Act prescribes
a
minimum sentence for the rape of any girl under the age of 16 years.
It may be going too far to hold that in every case an accused
must be
informed of the Act, even when he is legally represented. Each case
has to be decided on its own facts. The question ultimately
is
whether the
accused
had a fair trial. In this matter I will assume in favour of the State
that the Act does apply to this matter.
It
is now established law that in order to determine whether ther^ are
substantial and compelling circumstances justifying the imposition
of
a sentence other than the prescribed sentence, which in this case, is
life imprisonment, the court may take into .account all
the factors,
it has always taken into account. The accused's personal
circumstances are on record and I do not intend to set them
out,
except to emphasise that : he has no previous convictions. That is an
important factor and must be given due weight. Furthermore,
he has
been in custody for more than four and a half years. The Act provides
that a sentence of life imprisonment may not be backdated.
In my
view, the fact that the accused has no previous convictions and the
fact that: he has been in custody for so long, whatever
the reason
for that delay, taken together constitute substantial and compelling
circumstances that justify the imposition of a
lesser sentence than
one of life imprisonment. The accused has expressed deep remorse for
what he has done, a factor must also
be given due weight.
On
the other hand there are certain aggravating circumstances in this
matter. The complainant was slapped by the accused. He threatened
her
with a knife. Her evidence in that regard was accepted by the trial
magistrate and there is no adequate basts on which I can
interfere
with that finding . Indeed, the complainant gave evidence before me
and confirmed that she feared for her life as the
accused had
threatened to kill her. During her testimony she was clearly
distressed at having to recall what happened to her and
began to cry.
Although after that incident she formed a relationship with a male
person and her relationship with men may not have
been severely
affected, and although she has not suffered serious physical injury,
there can be no doubt that she was traumatised
and will be affected
to some degree or other by her experience, A long period of
imprisonment is, therefore, the only appropriate
sentence. The
community demands, quite rightly, that the courts impose heavy
sentences on those committing crimes of violence,
especially against
women and children.
Taking
ail the circumstances into account, and especially in the light of
the fact that the accused is a first offender who has
been in
detention for more than four and a half years, he is sentenced to 14
years' imprisonment.
MOTALA,
J