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2024
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[2024] ZANCHC 50
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Van Rooy v S (CA & R 57/2022) [2024] ZANCHC 50 (24 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: CA & R 57/2022
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In
the matter between:
BEYANDRE
VAN
ROOY
Appellant
and
THE
STATE
Respondent
Coram: Mamosebo J et
Lever J
Judgment
Lever
J
1.
The
appellant was convicted on a charge of raping an 11-year-old girl.
The conviction is one that falls under section 51(1) of the
Criminal
Law Amendment Act
[1]
(CLAA also
colloquially known as the Minimum Sentencing Act). By virtue of the
fact that it falls under the provisions of section
51(1) of the CLAA
such conviction carries a mandatory sentence of life imprisonment
unless ‘substantial and compelling’
reasons can be found
to impose a lesser sentence as contemplated in section 51(3) of the
CLAA.
2.
The
appellant was convicted on the said charge in the regional court,
Richmond on the 29 October 2020 and was sentenced to life
imprisonment. Accordingly, the appellant has an automatic right to
appeal to this court under the provisions of section 309(1)(a)
of the
Criminal Procedure Act
[2]
(CPA).
3. The
appellant only appeals against the life sentence imposed by the
regional court, Richmond.
4.
The
question of where to start and how one should assess an appeal where
the imposition of the sentence is governed by the provisions
of
section 51 of the CLAA is important. This question was considered and
decided by Bosielo JA writing for the full Bench of the
Supreme Court
of Appeal (SCA) in the matter of S v PB
[3]
,
the relevant passages read as follows:
“
[19]
The minority judgment in the court below appears to reflect the
misunderstanding that the refusal by this
court, to endorse the life
imprisonment imposed in the three cases of
Abrahams, Sikhipa
and
Nkomo
, constitutes a bench mark or a precedent binding on
other courts. That is a misconception. Such an approach or trend can
never
be elevated to a bench mark or binding precedent. Those cases
remain guidelines. Suffice to state that it remains an established
principle of our criminal law that sentencing discretion lies
pre-eminently with the sentencing court and must be exercised
judiciously
and in line with established and valid principles
governing sentencing, as enunciated in a long line of cases which
includes
S v Zinn
1969 (2) SA 537
(A), which espoused a proper
consideration and balancing of the well-known triad;
S v Rabie
1975 (4) SA 855
(A) at 862; and
S v De Jager and Another
1965
(2) SA 616(A)
at 628-629. This salutary approach has recently been
endorsed by Marais JA in
S v Malgas
para 12.
[20]
What then is the correct approach by a court on appeal against a
sentence imposed in terms of
the Act? Can the appellate court
interfere with such a sentence imposed by the trial court’s
exercising its discretion properly,
simply because it is not the
sentence which it would have imposed or that it finds shocking ?
The
approach to an appeal on sentence imposed in terms of the Act should,
in my view, be different to an approach to other sentences
imposed
under the ordinary sentencing regime. This, in my view, is so because
the minimum sentences to be imposed are ordained
by the Act. They
cannot be departed from lightly or for flimsy reasons. It follows
therefore that a proper enquiry on appeal is
whether the facts which
were considered by the sentencing court are substantial and
compelling or not
.”
[4]
(my emphasis)
5. To
the extent that the decision of the SCA in the case of
S v PB
differs from the approach of the SCA in the earlier case of
S v
Malgas (particularly at para [12] thereof)
, it must be accepted
that the SCA in the
S v PB
case amended or qualified the
earlier decision in
S v Malgas
to that extent.
6.
Accordingly, the correct approach in considering an appeal on a
sentence imposed under the provisions of section
51 of the CLAA
as set out in
S v PB,
is to assess the evidence on the record
and make a determination as to whether such evidence constitutes
substantial and compelling
grounds to depart from the prescribed
minimum sentence or not. After the decision in the SCA in the case of
S v PB
, that is the correct point of departure.
7. The
next question to be considered is how does one determine what are
substantial and compelling grounds to
depart from a prescribed
minimum sentence.
8. On
this question, I can do no better than to quote and apply the
guidance given in the seminal case of
S v Malgas
and in
particular, the following passages:
“
[20]
It would be an impossible task to attempt to catalogue exhaustively
either those circumstances or combinations
of circumstances which
could rank as substantial and compelling or those which could not.
The best one can do is to acknowledge
that one is obliged to keep in
the forefront of one’s mind that the specified sentence has
been prescribed by law as the
sentence that must be regarded as
ordinarily appropriate and that personal distaste for such
legislative generalisation cannot
justify an indulgent approach to
the characterisation as substantial and compelling. When justifying a
departure a court is to
guard against lapses, conscious or
unconscious, into sophistry or spurious rationalisations or the
drawing of distinctions so subtle
that they can hardly be seen to
exist.
[21]
It would be foolish of course, to refuse to acknowledge that there is
an abiding reality which
cannot be wished away, namely, an
understandable tendency for a court to use, even if only as a
starting point, past sentencing
patterns as a provisional standard
for comparison when deciding whether a prescribed sentence should be
regarded as unjust. To
attempt to deny a court the right to have any
regard whatsoever to past sentencing patterns when deciding whether a
prescribed
sentence is in the circumstances of a particular case
manifestly unjust is tantamount to expecting someone who has not been
allowed
to see the colour blue to appreciate and gauge the extent to
which the colour dark blue differs from it. As long as it is
appreciated
that the mere existence of
some
discrepancy
between them cannot be the sole criterion and that something more
than that is needed to justify departure, no great
harm will be done.
[22]
What that something more must be it is not possible to express in
precise, accurate and all-embracing
language. The greater the sense
of unease a court feels about imposition of a prescribed sentence,
the greater its anxiety will
be that it may be perpetrating an
injustice. Once a court reaches the point where unease has hardened
into a conviction that an
injustice will be done, that can only be
because it is satisfied that the circumstances of the particular case
render the prescribed
sentence unjust or, as some might prefer to put
it, disproportionate to the crime, the criminal and the legitimate
needs of society.
If that is the result of the consideration of the
circumstances the court is entitled to characterise them as
substantial and compelling
and such as to justify the imposition of a
lesser sentence.
[23]
While speaking of injustice, it is necessary to add that the
imposition of the prescribed sentence
need not amount to a shocking
injustice (‘ʼn skokende onreg’ as it has been put in
some of the cases in the High
Court) before a departure is justified.
That it would be an injustice is enough. One does not calibrate
injustices in a court of
law and take note only of those which are
shocking.”
[5]
9.
Paragraph [22] of the Malgas judgment, quoted above encapsulates what
has come to be known as the ‘determinative
test’, the
other paragraphs quoted above assist in illustrating how and in what
context the determinative test should be
applied.
10.
The concept
of ‘proportionality’ is implicit in balancing the
considerations encompassed by the triad referred to in
the Zinn
case
[6]
. Davis J in the matter
of S v SWARTZ & ANOTHER
[7]
applied the concept of proportionality to the crime itself. His
reasoning emerges from the following passage:
“
This
is a serious crime. As noted, rape is endemic in our society and
these factors were certainly uppermost in the Legislature’s
mind when it passed the provisions of s 51
et seq
of the Act.
The departure from the mandatory minimum sentence as justified in
terms of s 51(3)(a) of the Act is designed to ensure
that a mandatory
minimum sentence does not produce a constitutionally unacceptable
degree of disproportionality between crime and
punishment.
The
key to the application of ‘substantial and compelling’
must be the crime. As controversial a proposition as this
is bound to
be, as not all murders carry the same moral blameworthiness, so too,
not all rapes deserve equal punishment. That is
in no way to diminish
the horror of rape; it is however to say that there is a difference
even in the heart of darkness.”
[8]
(references omitted)
11.
This aspect
of the proportionality of the crime itself was considered and
accepted by Cameron JA in the matter of S v Abrahams
[9]
who wrote for the unanimous SCA bench in that matter. In the Abrahams
case whilst not diminishing the horrors of rape, the SCA
accepted
that some rapes are worse than others and that the ordained life
sentence should be reserved for those cases that were
devoid of
substantial and compelling factors.
12.
This
concept was also considered and applied by the SCA in the case of S v
SMM.
[10]
The concept of
proportionality in relation to the particular crime of rape was also
accepted in this court in the Matter of SAM
Stuurman v The State.
[11]
13. Valuable insight into
the approach to be taken in sentencing in the type of case presently
before this court can be gained from
the judgment written by Majiedt
JA in the case of State v SMM, and in particular in the following
passages:
“
[17]
It is necessary to reiterate a few self-evident realities. First,
rape is undeniably a degrading, humiliating
and brutal invasion of a
person’s most intimate private space. The very act itself, even
absent any accompanying violent
assault inflicted by the perpetrator,
is a violent and traumatic infringement of a person’s
fundamental right to be free
from all forms of violence and not to be
treated in a cruel, inhumane or degrading way. In
S v Vilakazi
Nugent JA referred to the study by Rachael Jewkes and Naeema
Abrahams on the epidemiology of rape which concluded on the
available
evidence that ‘women’s right to give or withhold consent
to sexual intercourse is one of the most commonly
violated of all
human rights in South Africa’.
[18]
The second self-evident truth (albeit somewhat contentious) is that
there are categories of severity
of rape. This observation does not
in any way whatsoever detract from the important remarks in the
preceding paragraph. This court
(the SCA) held in
S v Abrahams
that ‘some rapes are worse than others, and the life sentences
ordained by the Legislature should be reserved for cases devoid
of
substantial factors compelling the conclusion that such a sentence is
inappropriate and unjust’. The advent of minimum
sentence
legislation has not changed the centrality of proportionality in
sentencing. In
Vilikazi
Nugent JA cautioned against the danger
of heaping ‘excessive punishment … on the relatively few
who are convicted
in retribution for the crimes of those who escape
or in the despairing hope that it will arrest the scourge’. He
also pointed
to the vast disparity between the ordinary minimum
sentence for rape (10 years’ imprisonment) and the one
statutorily prescribed
for rape of a girl under the age of 16 years
(life imprisonment) and the startling incongruities which may result.
The judgment
also sets out the dramatic effect that the minimum
sentencing legislation has had in sentencing, most importantly that
statistics
show that inmates serving sentences of life imprisonment
have increased more than ninefold from 1998 to 2008. And he
reiterated
that even in the context of minimum sentencing legislation
the importance of assessing each case on its own peculiar facts and
circumstances and the need for proportionality must never be
overlooked. Nugent JA expressed it as follows:
‘
It is clear
from the terms in which the [determinative test] was framed in Malgas
and endorsed in Dodo that it is incumbent upon
a court in every case,
before it imposes a prescribed sentence, to assess, upon a
consideration of all of the circumstances of
the particular case,
whether the prescribed sentence is indeed proportionate to the
particular offence.’
[19]
Life imprisonment is the most severe sentence that a court can
impose. It endures for the natural
life of the offender, although
release is nonetheless provided for in the
Correctional Services Act
111 of 1998
. Whether it is an appropriate sentence, particularly in
respect of its proportionality to the particular circumstances of a
case,
requires careful consideration. A minimum sentence prescribed
by law which, in the circumstances of a particular case, would be
unjustly disproportionate to the offence, the offender and the
interests of society, would justify the imposition of a lesser
sentence than the one prescribed by law. …”
[12]
(references omitted)
14.
Whilst it
is accepted that rape will have an emotional impact on a victim, this
is not sufficient for the exercise of sentencing.
What is required
when going through the exercise of formulating a just and appropriate
sentence in a particular case of rape is
actual and reliable
information on the emotional impact on the complainant concerned.
This is so because the emotional impact can
vary widely
[13]
.
At the very least a victim impact report is required.
15. Where a young child
has suffered a rape, it would be better and more reliable if the
short-, medium- and long-term emotional
impact on that child were
assessed by a psychologist or a psychiatrist. I accept that for
several reasons such professional assessment
may not always be
available, but particularly in the case of a child there is no excuse
for failing to provide at least a victim
impact report.
16.
Finally, in
dealing with the law applicable to sentencing it is necessary to
consider the provisions of
section 51(3)(aA)(ii).
This section
provides: “(aA) When imposing a sentence in respect of the
offence of rape the following shall not constitute
substantial and
compelling circumstances justifying a lesser sentence: (i) …;
(ii) an apparent lack of physical injury to
the complainant;…”
Plasket J in the case of
S
v Nkawu
held that if one interprets this provision literally, it is
unconstitutional because it would require judges to ignore factors
relevant to sentencing and consequently the subsequent sentences
would be unjust.
[14]
After
considering the law relating to interpretation Plasket J determined
that it was possible to read the said subsection in a
way that was
constitutionally compliant. He held that one should read subsection
(aA) to mean that any one of the provisions listed
under that
sub-section on its own could not constitute substantial and
compelling grounds to avoid the prescribed sentence, but
that each
one of those factors may be considered along with other factors which
might cumulatively amount to substantial and compelling
reasons to
depart from the prescribed minimum.
[15]
Thus the fact that no physical injuries resulted from the rape could
be considered along with other factors to conclude that there
were or
are in fact substantial and compelling reasons to depart from the
prescribed minimum sentence. This approach was considered
and adopted
by the SCA in the case of S v SMM
[16]
.
17. Turning now to the
facts of the present appeal and applying those facts to the law
summarised above. The appellant had a relationship
with the
complainant’s aunt at the material time and it appeared that
this relationship had endured up until the trial. The
appellant was
therefore in the position of an uncle to the complainant. It appears
that the appellant was in fact treated as an
uncle by the complainant
and her family. The appellant lived on the same premises as the
complainant. The appellant and the complainant
knew each other, and
the appellant was in a position of trust vis-a-vie the complainant.
The facts show that during the rape in
question the appellant abused
the said position of trust.
18. At the time of the
rape the appellant was 23 years old, and the complainant was 11 years
old. Although, precisely how it played
out is disputed, the appellant
used alcohol to make it easier for him to have his way with the
complainant.
19. Also, from the mere
fact that the appellant was 23 years old, and the complainant was 11
years old at the time of the rape there
was clearly an abuse of the
power relationship that existed between them. Indeed, this is the
very basis of the charge the appellant
faced and was convicted of in
the court
a quo
. Accordingly, it would be inappropriate to
consider it again as an additional aggravating factor in the
sentencing exercise.
20. In his plea, the
appellant admitted the act of sexual penetration, but initially made
two claims in relation to that act. Firstly,
he was not aware that
the applicant was below the age of 12. A claim he quickly abandoned
when he gave evidence and he conceded
that he knew the complainant
had not yet reached the age of 12. Secondly, that
de facto
the
complainant consented to the sexual act. This second claim by the
appellant does not survive scrutiny.
21. Given the
complainant’s age
de facto
consent was not relevant in
respect of the conviction. The complainant testified that the
appellant threw a blanket over her head
before raping her. Although
the complainant is a single witness in this regard, this evidence was
sufficiently corroborated by
Mr Morris who gave evidence for the
State that when he entered the relevant informal shack on the
premises, he saw the complainant
on the bed with a blanket partially
covering her upper body. I accept this evidence of the complainant
and from the record I can
find no credible ground to reject such
evidence.
22. The only function a
blanket over the head of the complainant can serve in this context is
to control her and make it impossible
to raise the alarm. Both of
which negate
de facto
consent. In the circumstances there was
no
de facto
consent.
23. Unfortunately, there
was no independent or professional evidence on the short-, medium-
and long-term emotional impact of the
rape on the complainant. The
State did not deign it necessary to have a victim impact assessment
done and no such report was presented
to the trial court. Despite
several admonitions by the SCA of the necessity for such evidence,
this was ignored in this case. There
was evidence that the
complainant received counselling after the rape. The State could have
subpoenaed the relevant counsellor
and for that matter the learned
trial magistrate could have done the same. They chose not to.
24. The evidence that was
placed before the court on this aspect was from the complainant
herself and her mother. The complainant’s
evidence was that she
was sleeping well and that her schoolwork had not suffered and that
she had progressed to the next grade.
25. The evidence of the
complainant’s mother was to the effect that after the rape the
complainant did not sleep well and
had nightmares. However, she
testified that after counselling this problem went away. The
complainant’s mother did not point
to any ongoing difficulties
with the complainant’s schooling.
26.
There was
no remorse in the sense contemplated in Matyityi’s case
[17]
.
The argument advanced on behalf of the appellant that the appellant’s
admission that he made a mistake is evidence that
appellant had gone
part of the way to showing remorse, cannot be sustained. Either there
is remorse or there is no remorse. In
any event without more evidence
than that which appears from the record one does not know which
mistake he acknowledged and/or
regrets. For example, does appellant
regret committing the offence so close to home that he was in essence
caught red handed, or
is it something else that the appellant
regrets. Accordingly, I cannot support this argument advanced on
behalf of the appellant.
27. The appellant’s
personal circumstances are: He was 23 years old at the time he
committed the rape; He was 25 years old
when he was convicted and
sentenced; His highest level of schooling is that he completed Grade
10; He is unmarried; At the time
of sentencing he had a three year
old child; This child lived with her mother who was unemployed at the
time the appellant was
sentenced; The child’s mother received a
social grant for the child; The appellant was unemployed at the time
of sentencing;
The appellant had previously been employed as a farm
labourer earning R160 per day.
28. The appellant is an
overall first offender. This is confirmed by the SAP 69 which was
filed of record in the matter. As already
set out, at the time of the
offence he was 23 years old and was 25 years old when convicted and
sentenced. There was no evidence
of other pending matters when he was
sentenced. Therefore, there is no evidence of a pattern of criminal
conduct on the part of
the appellant.
29. The appellant
admitted to being sexually aroused by young girls.
30. The relevant rape is
not one of the worst rapes seen in our courts.
31. There was no lasting
physical injury. The injuries that were found were consistent with
sexual penetration. All of this is confirmed
by the medical
assessment evidenced by the J88 form which was admitted to the record
by consent.
32. The appellant was
relatively young on conviction. The prospect of rehabilitation cannot
be discounted.
33. Taking all these
factors into account it would be disproportional to sentence the
appellant to life imprisonment. A sentence
of life imprisonment is
disproportional to the crime, the criminal and the legitimate needs
of society in all of the circumstances
set out above.
34. In my view a long
term, even a harsh term of imprisonment would be justified in all the
circumstances of the case. At the same
time such sentence must be
just in all the circumstances of the case. The sentence must balance
the crime, the criminal, and the
legitimate needs of society. In my
view an appropriate sentence would be twenty-five years imprisonment
back dated to 29 October
2020.
35. There is a material
difference between life imprisonment and 25 years imprisonment.
Accordingly, the present case meets the
determinative test set out in
Malgas.
Accordingly substantial and compelling grounds to
deviate from the prescribed life sentence must be taken to have been
established
from the circumstances set out above.
Accordingly,
the following order is made:
1)
The appeal against the appellant’s sentence is upheld.
2)
The life sentence imposed on the appellant is set aside.
3)
The said sentence is replaced with a sentence of 25 years
imprisonment backdated to the 29 October 2020.
Lawrence Lever
Judge
Northern Cape Division,
Kimberley
I agree,
Mpho Mamosebo
Judge
Northern Cape Division,
Kimberley
REPRESENTATION:
Appellant:
Mr
P J Fourie
Instructed
by:
LEGAL
AID SOUTH AFRICA, KIMBERLEY.
Respondent:
ADV
S Sauls
Instructed
by:
DIRECTORS
OF PUBLIC PROSECUTIONS, KIMBERLEY.
Date
of Hearing:
23
October 2023
Date
of Judgment:
24
May 2024
[1]
Act 105 of 1997.
[2]
Act 51 of 1977.
[3]
S v PB
2013 (2) SACR 533
(SCA) at paras [19] and [20]. Particularly
the last 3 sentences of para [20].
[4]
S v PB above.
[5]
S v Malgas
2001 (1) SACR 469
(SCA) at paras [20] TO [23].
[6]
S v Zinn
1969 (2) SA 537
(A) at 540G to H.
[7]
S v Swartz & Another 1999 (2) SACR 380 (CPD)
[8]
S v Swartz., above at p385i to 386c.
[9]
S v Abrahams
2002 (1) SACR 116
(SCA) at 127c to 128c.
[10]
S v SMM
2013 (2) SACR 292
(SCA) at para [18].
[11]
Unreported judgment of Tlaletsi AJP and Lever AJ under case number
CA&R 115/16 and delivered on the 24 October 2017 at para
[21].
[12]
S v SMM., above at paras [17] to [19]
[13]
S v Vilikazi
2009 (1) SACR 552
(SCA) at para [56].
[14]
S v Nkawu
2009 (2) SACR 402
(ECG) at para [15].
[15]
S v Nkawu., above at para [17].
[16]
S v SMM., above at para [26].
[17]
S v Matyityi
2011 (1) SACR 40
(SCA).