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2024
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[2024] ZANCHC 5
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Kammies v S (CA&R 1/2022) [2024] ZANCHC 5 (26 January 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: CA&R 1/2022
Reportable:
YES/NO
Circulate
to Judges:
YES/NO
Circulate
to Magistrates:
YES/NO
Circulate
to Regional Magistrates:
YES/NO
In
the matter between:
HENDRIK
KAMMIES
Appellant
and
THE
STATE
Coram: Lever J et Nxumalo
J
JUDGMENT
Lever
J
1.
The
appellant was accused 2 in the court
a
quo
.
The appellant together with his co-accused, faced 3 charges in the
court
a
quo
.
The first charge was one of kidnapping. Where both accused were
alleged to have taken the victim from outside a shebeen to a shack
some distance away where the crime which is the subject of the second
charge was committed. The second charge was one of rape,
where both
accused allegedly raped the victim. Relevant to the current appeal,
the charge made specific reference to the Criminal
Law Amendment
Act
[1]
(the minimum sentence
act) and more particularly section 51 thereof, as read with schedule
2 thereof. The third charge was one
of malicious damage to property.
This charge relates to the burning of certain articles of clothing
belonging to the victim.
2. The
appellant and his co-accused were found guilty on all three of the
above charges. On the charge of kidnapping,
the appellant was
sentenced to 3 years in imprisonment. On the charge of rape, the
appellant was sentenced to life imprisonment.
On the charge of
malicious damage to property, the appellant was sentenced to 2 years
imprisonment. The sentences in respect of
the first and third charges
were ordered to run concurrently with the life sentence. The
appellant’s co-perpetrator was given
the same sentences.
3. The
appellant does not appeal his convictions and only appeals against
the sentences imposed. In substance,
the appellant only appeals the
life sentence imposed on him in respect of the conviction of rape.
4. It
was common cause between the appellant and the State that section
51(1), as read with Schedule 2 Part I,
under the sentencing
provisions for ‘rape’ item (a)(ii) of the said
minimum sentencing act applied.
5. The
consequence of this is that the minimum prescribed sentence for rape
under those circumstances is life
imprisonment. In order for the
court
a quo
to depart from this prescribed minimum sentence,
such court would have needed to find ‘substantial and
compelling’
reasons to impose a lesser sentence, as
contemplated in section 51(3) of the said minimum sentencing act.
6. It
is further common cause that the learned trial Magistrate in the
court
a quo
found that there were no substantial and
compelling reasons to depart from the prescribed minimum sentence and
in fact imposed
the prescribed minimum sentence of life imprisonment
on the appellant. This is in fact the substance of the appeal in this
matter.
7.
Further, there is an application for condonation in relation to the
late filing of the Notice of Appeal. Originally,
the appellant filed
a notice of appeal against both the convictions and the imposition of
the life sentence. However, the appellant
only proceeded with the
appeal on sentence.
8. The
State does not oppose the application for condonation.
9. The
appellant personally drafted and filed a Notice of Appeal in
circumstances where his family had assured
him that they would
acquire the services of a private attorney. However, the family was
unable to secure the funds in order to
appoint a private attorney.
The Notice of Appeal was personally drafted and filed by the
appellant approximately seven months out
of time when he realised
that he had no lawyer. In these circumstances, it cannot be said that
the appellant was negligent. The
delay was not unreasonable in the
circumstances. The issue is undeniably important to the appellant.
While the prospects of success
are not very strong, there is at least
an arguable case.
10. Weighing up all of
these interrelated considerations condonation for the late filing of
the Notice of Appeal was granted at
the hearing of this appeal.
11.
Mr
Steynberg submitted that in an appeal where the minimum sentencing
act applied, the approach on appeal is different from the
normal
approach to sentence on appeal. Where the minimum sentence act
applied, the court of appeal has to look at the facts placed
before
the court
a
quo
and
decide whether they are ‘substantial and compelling’ or
not. In support of this contention, Mr Steynberg relied
on the case
of S v PB.
[2]
12.
Mr
Steynberg then referred to the ‘determinative test’ as it
was framed by the Supreme Court of Appeal in the case of
S v
MALGAS
[3]
. The determinative
test is a central part of the argument pursued by Mr Steynberg on
behalf of the appellant.
13.
Mr
Steynberg then referred to the Constitutional Court decision in the
matter of S v DODO
[4]
and
contended that the learned trial Magistrate in the court
a
quo
did
not even enquire into the proportionality of the life sentence of the
appellant in the circumstances of his case, which he submitted
constitutes a misdirection.
14. What Mr Steynberg
loses sight of in pursuing this argument is that the appellant and
his co-perpetrator acted in concert and
with a common intention and
purpose to rape the victim. These facts emerge clearly from the
record and cannot be gainsaid. This
fundamentally alters the power
relationship between the perpetrators and the victim. This in and of
itself is an aggravating factor.
The legislature has clearly treated
this as an aggravating factor by providing that when two or more
co-perpetrators act with common
intent and common purpose in
committing a rape, that in itself is worthy of a life sentence. In
these circumstances, Mr Steynberg’s
argument that this
constitutes a misdirection by the learned trial Magistrate cannot be
upheld.
15. The appellant’s
personal circumstances are listed as: He is 31 years old; he is
unmarried with one minor child; he earned
R1500 every fortnight; he
used this income to take care of himself and his child; the minor
child stays with her mother who is
unemployed; he only completed
standard 2 at school; he has 4 previous convictions; and he spent 15
months in jail whilst the trial
ran.
16. Mr Steynberg
correctly conceded that where a long custodial sentence is called
for, these factors as raised by the appellant
recede into the
background.
17. Mr Steynberg then
submitted that the learned trial Magistrate erred in treating the
appellant and his co-perpetrator the same
when it came to sentencing.
He pointed out that the co-perpetrator had 25 previous convictions
and the appellant only had 4 previous
convictions.
18. From the record, it
is evident that the learned trial Magistrate had both relevant SAP
69’s placed before her. It is also
evident that she considered
the nature of the previous crimes and the sentences imposed in
respect of the appellant and the co-perpetrator.
The record also
shows that in respect of the appellant and the co-perpetrator, each
had one previous conviction for assault GBH,
which was particularly
relevant in the case before her. In my view, the learned trial
magistrate did not err in this regard. This
is especially so in the
light of the fact that there is a minimum prescribed sentence.
Accordingly, at best the differences in
previous convictions might
form a partial basis for a substantial and compelling reason not to
apply the minimum prescribed sentence
and impose a lesser sentence.
However, in no sense of the word can it be said that the learned
trial Magistrate erred in this regard.
In my view it does not
constitute even a partial basis to find a substantial and compelling
reason not to apply the prescribed
minimum sentence.
19.
Mr
Steynberg then turns to the case of S v SMM
[5]
which found in essence that a court can consider a lack of serious or
lasting injury, cumulatively together with other factors
as a basis
for ‘substantial and compelling’ reason not to impose the
legislated and prescribed minimum sentence.
20. Mr Steynberg then
submits that the fact that the victim suffered no serious or lasting
injury, taken together with the fact
that the appellant has the
potential to be rehabilitated by a long term of imprisonment and the
personal circumstances taken cumulatively
does constitute a
substantial and compelling reason not to impose the prescribed
minimum sentence.
21.
The manner
in which Mr Steynberg has raised the potential of the appellant to be
rehabilitated by a long custodial sentence is nothing
more than the
speculative hypothesis warned against by the SCA in the Malgas
case
[6]
. The appellant has from
the record shown no remorse for his violation of the victim. The
appellant has shown no empathy for his
victim. The appellant has
shown no understanding of how this violation would inevitably have
affected his victim. In these circumstances,
I cannot support Mr
Steynberg’s argument.
22. Accordingly, I cannot
find that the learned trial Magistrate erred in not finding
substantial and compelling reasons to apply
a lesser sentence. Also,
from the record, I cannot find that any substantial and compelling
reason exists to impose a lesser sentence.
In these circumstances,
the appeal stands to be dismissed.
The
following Order is made:
1)
The appeal is dismissed.
Lawrence
Lever
Judge
Northern
Cape Division, Kimberley.
I
agree,
APS
Nxumalo
Judge
Northern
Cape Division, Kimberley.
REPRESENTATION:
Appellant:
Mr
Steynberg oio LEGAL AID SOUTH AFRICA,
KIMBERLEY
Respondent:
Adv
Molefe oio OFFICE OF DIRECTOR OF PUBLIC
PROSECUTIONS
Date
of Hearing:
28 November
2022
Date
of Judgment:
26 January 2024
[1]
Act 105 of 1997.
[2]
[2]
S v PB
2013 SACR 533
(SCA) at para [20].
[3]
2001 (1) SACR 469
(SCA) at para [25].
[4]
2001 (1) SACR 549
(CC) at para [38].
[5]
2013 (2) SACR 292
(SCA) at 302c – g.
[6]
S v MALGAS
2001 (1) SACR 469
(SCA) at 477d.