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[2024] ZAECELLC 23
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S v Mali - Sentence (CC36/2022) [2024] ZAECELLC 23 (3 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE
NO. CC 36/2022
In
the matter between:
THE
STATE
and
NKOSENKULU
MALI
Accused
SENTENCE
LAING
J
[1]
The accused has already been found guilty of rape and
of exposing and
displaying his genitals to the complainant. The court is required to
determine, at this stage of the proceedings,
an appropriate sentence.
[2]
A clinical psychologist, Ms Karen Andrews, prepared an
impact report
in relation to the complainant. She found,
inter alia
, that:
‘
[the complainant]
was significantly traumatized by her experiences in this case when
she was aged 10. At age 13, she continues to
suffer the negative
impact. The post-traumatic symptoms that she sustained after the
incidents have had a negative impact on her
psychological growth and
development, with trajectories that will impact her negatively into
adulthood.’
[3]
The report was not disputed and was admitted as evidence.
[4]
More will be said about it in due course.
[5]
The court has also received the assistance of a probation
officer, Ms
Phumeza Komani, who prepared a pre-sentence report regarding the
accused. To that effect, she recommended a period
of direct
imprisonment.
[6]
In argument, counsel for the defence stated that the
accused was
convicted in 1990 for the theft of stock or produce. He was sentenced
to 12 months’ imprisonment and was released
on parole. He has
no other convictions.
[7]
Referring to the pre-sentence report, counsel confirmed
that the
accused was raised by his parents and is one of six children. His
father worked at a construction company, returning home
on a
fortnightly basis; his mother looked after the family, encouraging
them to grow vegetables to sustain their livelihood. The
passing of
his mother had a negative impact on the family and led to the
children’s dropping out of school because of the
lack of proper
parental supervision. The subsequent retrenchment of his father
placed the family under severe financial strain,
compelling them to
rely on relatives for food.
[8]
Later, the accused’s father remarried and moved
the family to
Needs Camp. The accused enjoyed a good relationship with both his
father and his stepmother, who were devout Christians
and who had
expected him to accompany them to church. The accused had no history
of exposure to abuse or domestic violence. After
the passing of his
father and later his stepmother, the accused remained in their home,
which comprised a three-room shack with
a one-room shack next door.
[9]
The accused is 52 years old, unmarried, and with no children.
He
dropped out of school in grade eight and has worked at various
construction companies since 1992 as a general worker and later
as a
carpenter. In that regard, counsel confirmed that the accused had
received training as a carpenter while employed by Mopp
Construction
Company. He also has plumbing skills. The accused was not employed at
the time of his arrest and earned a living by
completing piecework
when available and by growing vegetables.
[10]
The pre-sentence report indicates that the accused has no history of
alcohol
or drug abuse, although he smoked dagga on occasion. In
general, the accused has been described by his family and neighbours
as
a good person, of quiet disposition, and a loner who preferred to
stay at home.
[11]
The rape of a nine-year-old, in these circumstances, brings the
offence within
the ambit of the minimum sentencing provisions
contained in section 51(1) of the Criminal Law Amendment Act 51 of
1997 (‘CLAA’).
A life sentence is prescribed. The
question to be asked, however, is whether substantial and compelling
circumstances exist to
justify the imposition of a lesser sentence.
[12]
Counsel
for the state referred to
S
v Malgas
,
[1]
which
is regarded as a
locus
classicus
in
relation to the subject. Marais JA held as follows:
‘…
The
very fact that this amending legislation has been enacted indicates
that Parliament was not content with that and that it was
no longer
to be “business as usual” when sentencing for the
commission of the specified crimes.
…
In
what respects was it no longer business as usual? First, a court was
not to be given a clean slate on which to inscribe whatever
sentence
it thought fit. Instead, it was required to approach that question
conscious of the fact that the legislature has ordained
life
imprisonment or the particular prescribed period of imprisonment as
the sentence which should
ordinarily
be imposed for the commission
of the listed crimes in the specified circumstances. In short, the
legislature aimed at ensuring a
severe, standardised, and consistent
response from the courts to the commission of such crimes unless
there were, and could be
seen to be, truly convincing reasons for a
different response.’
[13]
The learned judge went on to say:
‘
Secondly,
a court was required to spell out and enter on the record the
circumstances which it considered justified a refusal to
impose the
specified sentence… Moreover, those circumstances had to be
substantial and compelling. Whatever nuances of meaning
may lurk in
those words, their central thrust seems obvious. The specified
sentences were not to be departed from lightly and for
flimsy reasons
which could not withstand scrutiny.’
[2]
[14]
A
sentence of life imprisonment is, however, the harshest punishment
that a court can impose. The court must be satisfied that the
sentence is proportionate to the offence. In
S
v Dodo
,
[3]
Ackermann
J remarked:
‘…
The
concept of proportionality goes to the heart of the inquiry as to
whether punishment is cruel, inhuman or degrading, particularly
where, as here, it is almost exclusively the length of time for which
an offender is sentenced that is in issue. This was recognized
in
S
v Makwanyane
.
[4]
Section 12(1)(a) [of the Constitution] guarantees, amongst others,
the right “not to be deprived of freedom… without
just
cause.” The “cause” justifying penal incarceration
and thus the deprivation of the offender’s freedom,
is the
offence committed. “Offence”, as used throughout in the
present context, consists of all factors relevant to
the nature and
seriousness of the criminal act itself, as well as all relevant
personal and other circumstances relating to the
offender which could
have a bearing on the seriousness of the offence and the culpability
of the offender. In order to justify
the deprivation of an offender’s
freedom it must be shown that it is reasonably necessary to curb the
offence and punish
the offender. Thus the length of punishment must
be proportionate to the offence.
…
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.’
[5]
[15]
The
principle of proportionality was also addressed in
Vilakazi
v S
,
[6]
where
Nugent JA observed that a prescribed sentence cannot be assumed,
a
priori
,
to be proportionate in a particular case. This was an issue to be
determined upon consideration of the circumstances. The essence
of
Malgas
and
Dodo
,
said Nugent JA, was that disproportionate sentences were not to be
imposed and that courts were not vehicles for injustice.
[7]
[16]
In
the present matter, counsel for the state reiterated the abhorrent
nature of the offence of rape. This is especially so when
a child is
involved. Counsel referred to
S
v M (Centre for Child Law as amicus curiae)
,
[8]
where Sachs J observed:
‘
Individually
and collectively all children have the right to express themselves as
independent social beings, to have their own
laughter as well as
sorrow, to play, imagine and explore in their own way, to themselves
get to understand their bodies, minds
and emotions, and above all to
learn as they grow how they should conduct themselves and make
choices in the wide social and moral
world of adulthood. And
foundational to the enjoyment of the right to childhood is the
promotion of the right as far as possible
to live in a secure and
nurturing environment free from violence, fear, want and avoidable
trauma.’
[9]
[17]
The
horrors of rape have been described repeatedly in the case law.
[10]
There is no need to add further gloss. The offence casts a permanent
shadow, sometimes fading but always there, over the life of
the
victim.
[18]
In
Vilakazi
, Nugent JA held that:
‘
In cases of
serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background.
Once it
becomes clear that the crime is deserving of a substantial period of
imprisonment the questions whether the accused is
married or single,
whether he has two children or three, whether or not he is in
employment, are in themselves largely immaterial
to what that period
should be, and those seem to me to be the kind of “flimsy”
grounds that
Malgas
said should be
avoided.’
[11]
[19]
The personal circumstances of the accused in the present matter are
entirely
unremarkable. He has no children, no parents, no employees,
no dependents. A lack of education, economic resources, and social
network are the missing anchor points that may otherwise have
prevented the accused from drifting into the treacherous currents
of
criminal conduct. That he has been described as a good person serves
merely to emphasise the tragedy of a situation in which
he has been
convicted of the rape of a child.
[20]
Counsel for the defence argued that the age of the accused and the
fact that
he is, to all intent and purposes, a first offender should
all count in his favour. He has, moreover, cooperated with the court
and the police since the inception of the trial. All of that must be
acknowledged.
[21]
The accused was 50 years old, however, when the offence was
committed. It would
have been expected of him to have developed the
self-awareness and self-control necessary to have conducted himself
as a mature
and responsible adult in his community. If anything, then
the argument advanced by counsel would tend to favour a younger
accused,
who had not yet acquired the experience or attained the same
level of development as the accused. The shortcomings in the argument
are obvious.
[22]
Whereas the accused may have been convicted previously for an
entirely unrelated
offence and had no further encounters with the law
for 30 years, the court is not persuaded that this assists in the
present circumstances.
The rape of a child is one of the most serious
of all crimes.
[23]
Counsel for the defence raised further arguments. He pointed out that
the medico-legal
examination, described in the J88-form, revealed
multiple clefts, which suggested previous trauma. The accused had
only been found
guilty of a single rape. The impact report prepared
by Ms Andrews, contended counsel, had to be treated with caution
because it
was too generalised in its assessment of the complainant;
it failed to distinguish between the most recent trauma, attributed
to
the accused, and previous trauma, possibly inflicted by someone
else.
[24]
The difficulty with this argument is that it seems to suggest that
various
incidents of trauma can be neatly isolated and measured in
terms of their severity. It may be so that an initial trauma may have
significantly more impact on the well-being of a victim, especially a
child, but it simply cannot be said that a later trauma should
be
viewed with more leniency or (worse) simply disregarded. A rape,
whether as a single incident or as one of a multiple of incidents,
must be seen for what it is: the brutal invasion of a person’s
physical and psychological integrity, with long-lasting effects.
[25]
Furthermore,
counsel for the defence referred to the decision of the Supreme Court
of Appeal in
S
v Abrahams
,
[12]
where Cameron JA stated:
‘…
some rapes
are worse than others, and the life sentence ordained by the
Legislature should be reserved for cases devoid of substantial
factors compelling the conclusion that such a sentence is
inappropriate and unjust. As Davis J stated in
S
v Swartz
and
another:
[13]
“
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.”
[14]
’
[26]
It cannot be refuted that each act of rape or murder is different,
with a unique
set of facts and circumstances. As Cameron JA observed,
a life sentence must be imposed only in those cases that are entirely
lacking
in any substantial factors that compel a court to decide that
such a sentence would be inappropriate and unjust. The provisions
of
section 51(3) of the CLAA serve as a guardrail to keep in check the
overzealous implementation of the prescriptive life sentence
provisions contained in section 51(1).
[27]
Returning to the present matter, the court has struggled to identify
any factors
that, either individually or cumulatively, could be said
to constitute substantial and compelling circumstances. In contrast,
there
are indeed aggravating factors, to which counsel for the state
alluded. The accused has demonstrated no remorse whatsoever for his
conduct; there is no sense, even, of the slightest hesitation or
ambivalence in his attitude to the matter. An aspect of the evidence
that appears to have been overlooked is the violence that accompanied
the rape. The complainant testified that the accused pushed
a strip
of cloth into her mouth to prevent her from crying out. She also said
that he had threatened to kill her if she told anyone
about the
incident. To a nine-year-old girl, the threat would have been nothing
less than terrifying.
[28]
Overall, the court
is not persuaded that the provisions of section 51(1) of the CLAA
must not be applied. The courts of this division
have found,
repeatedly, that a sentence of life imprisonment cannot be avoided in
the absence of substantial and compelling circumstances.
[15]
Having considered the principles enunciated in
Malgas
,
Dodo
,
and (in particular)
Vilakazi
,
the court is satisfied that a sentence of life imprisonment would not
be disproportionate to the office in question.
[29]
It is necessary to pause at this stage and remark that it would be
expected
of the prison authorities to recognize the accused’s
talents and abilities in carpentry and plumbing and to permit him to
develop and use these constructively and meaningfully. That is his
way forward.
[30]
The only remaining aspect to consider is the lesser offence with
which the
accused has been charged, viz. exposing and displaying his
genitals to a child. Here, the same set of aggravating and mitigating
factors that were relevant to the existence or otherwise of
substantial and compelling circumstances must be considered. Mindful,
particularly, of the accused’s status as a first offender, the
court is satisfied that a relatively lenient sentence would
not be
inappropriate.
[31]
Consequently, at the conclusion of the matter, the following order is
made:
1.
The accused having been found guilty of the offences with which he
has been charged, is sentenced as
follows:
(a)
on count 1, contravening the provisions of section 22 of Act
32 of
2007, read with the provisions of section 94 of Act 51 of 1977, the
accused is sentenced to imprisonment for a period of
12 months; and
(b)
on count 2, rape, in contravention of section 3, read with
sections
1
,
56
(1),
57
(1),
58
,
59
, and
60
, of the
Criminal Law (Sexual Offences
and Related Matters) Amendment Act 32 of 2007
, read with the
provisions of
section 94
of Act 51 of 1977, the accused is sentenced
to imprisonment for life.
2.
The above sentences are directed to run concurrently.
JGA
LAING
JUDGE
OF THE HIGH COURT
APPEARANCE
For
the state:
Adv S
Mtsila
Instructed
by:
Director
of Public Prosecutions
Makhanda
046 602
3000
For
the accused:
Adv
Giqwa
Instructed
by:
Legal
Aid South Africa
Qonce
043 604
6600
Date
of delivery of judgment:
03
May 2024
[1]
2001
(1) SACR 469 (SCA).
[2]
At
paragraphs [7] to [9].
[3]
2001
(1) SACR 594 (CC).
[4]
1995
(3) 391 (CC).
[5]
Dodo
,
n 3
supra
,
a
t
paragraphs [37] and [38].
[6]
2009
(1) SACR 552 (SCA).
[7]
At
paragraph [18].
[8]
2007
(2) SACR 539 (CC).
[9]
At
paragraph [19].
[10]
See,
for example,
S
v Chapman
[1997] ZASCA 45
;
1997
(3) SA 341
(SCA);
S
v Matyityi
2011
(1) SACR 40
(SCA); and
Director
of Public Prosecutions, North Gauteng v Thabethe
2011
(2) SACR 567 (SCA).
[11]
At paragraph [58].
[12]
2002
(1) SACR 116
(SCA), at paragraph [29].
[13]
1999
(2) SACR 380 (C).
[14]
At
386b-c.
[15]
To
name but a few examples, see
S
v Mqulwana
2014
JDR 2163 (ECG);
S
v Mgandela
2016
JDR 1748 (ECM);
S
v Milisi
2016
JDR 2336 (ECG);
S
v MD and another
2017
JDR 0624 (ECB);
S
v Pepping
2023
JDR 0352 (ECM); and
S
v Mpeni
[2023]
JOL 59296
(ECG).