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[1989] ZASCA 82
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S v Generals (498/1988) [1989] ZASCA 82 (1 June 1989)
ARTHUR GENERALS
APPELLANT
and
THE STATE
RESPONDENT
Judgment by:
NESTADT, JA
CASE NO. 498/1988
/ccc
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
ARTHUR
GENERALS
APPELLANT
and
THE
STATE
RESPONDENT
CORAM:
VAN HEERDEN, NESTADT et MILNE
JJA
HEARD:
11 MAY 1989
DELIVERED:
1 JUNE 1989
JÚDGMENT NESTADT JA
:
The issue to be decided is whether the
trial judge exercised his discretion to impose the death sentence in a proper
and reasonable
manner. Unless one can be satisfied or convinced he did not,
interference with the sentence is not
2/
2.
justified (
S vs Pieters
1987(3) S A 717((A) at 727 F - 728 C; S
vs
Kock en 'n Ander
1988(1) S A 37(A) at 41 B - C).
It is necessary, in the
first place, to consider whether COETZEE J misdirected himself. In this regard
it must be remembered that
a mere misdirection does not suffice to warrant
interference. It must be of such a nature, degree or seriousness that it
vitiates
the court's decision on sentence (S
vs Pillay
1977(4) S A 531(A)
at 535 F). I am unable to agree with MILNE JA that an exemplary sentence in the
sense used by him was imposed.
Lieutenant Zeelie's statistics were referred to
primarily in relation to the frequency of housebreakings. In any event the ten
rapes
which Zeelie said had accompanied housebreakings during a period of just
over a year was not an insignificant figure. It served to
reinforce the need to
take the deterrent aspect of punishment into account. And, where this occurs,
the element of example will inevitably
feature in
3/
3.
the sentence (
R vs Swanepoel
1945 A D 444
at 455). This is because, to
achieve the objêct of deterrence, the sentence must demonstrate to a
potential offender the consequences
of violating the law.
The other
misdirection which was relied on by appellant and which is found by my Brother
MILNE to have taken place relates to the
trial judge's treatment of appellant's
prospects of rehabilitation. His statement that appellant was "beyond that" is
unfortunate.
It was not fully justified. But I do not think that it evinces a
material misdirection. Its positive nature must be read in the light
of two
earlier, less dogmatic observations, viz, "from that record one gains the
impression that there would be difficulty to rehabilitate
accused 4. He makes a
living selling dagga... It does not seem as if a long period of incarceration
would rehabilitate accused 4".
Appellant's previous convictions appear from the
passage of the
4/
4.
trial court's judgment on sentence quoted by MILNE JA at pp 7 - 8 of his
judgment. It is apparent that appellant has a strong criminal
propensity which
reduces his chances of reform. Two previous convictions for theft did not deter
him from stealing (a motor vehicle)
for a third time. And the sentences imposed
for two previous sexual offences did not deter him from raping complainant in
this case.
His sentences included strokes, committal to a reformatory, a
postponement of sentence in terms of
sec 297(1)
(a)(ii) of the
Criminal
Procedure Act, 51 of 1977
and imprisonment for three years. The rape of
complainant occurred relatively soon after appellant's release from serving a
substantial
portion of this sentence, namely, almost two years. There was no
indication of any remorse by appellant. In support of his plea of
not guilty he
denied participating in the crime. In any event, one cannot assume that the
judge a
quo
would not have been aware that the possibility of
rehabilitation did not
5/
5.
mean that a long term of imprisonment was, for that reason, the only
appropriate punishment (
S vs Sithole en Andere
1983(3) S A 610(A) at 615
B - C); the gravity of the offence may override that consideration (
S vs
Mooi
1985(1 ) S A 625(A) at 631 A) . This, I think, was the position here.
It seems to me that COETZEE J's view as to appellant's chances
of reform was by
no means the major factor which caused him to exercise his discretion in favour
of the death sentence. What rather
influenced him were the circumstances of the
crime itself, its effect on complainant, and the need to protect society by a
sentence
which, as he put it, should "express the law-abiding community's
feeling of revulsion and disgust of the deed". It is obvious that
the learned
judge appreciated that the death sentence should only be imposed if the rape was
a serious one.
This brings me to the remaining issue of whether, in the
absence of any material misdirections, it can be
6/
6.
said that the trial judge failed to exercise a proper discretion in imposing
the death sentence. The test in deciding this is whether
it could reasonably
have been imposed (
S vs Pieters
,
supra
, at 734 E and 735 H). In my
view, the answer is in the affirmative. This was a serious case of rape.
Appellant was armed with a knife.
He threatened to kill complainant if she did
not have intercourse with him "properly". She was a refined and educated person.
He
had previously dragged her from her bedroom. This he did by means of a skirt
which was tied round her neck. She was thereby nearly
choked. Appellant had tied
her hands behind her back. She was in the nude. There was no question of
appellant being under the influence
of ïiquor. He was a relatively mature
person of 22 or 23 when he committed the offence. And, of course, he had a
previous conviction
for rape. This was an aggravating feature (
R vs Zonele
and Others
1959 (3) S A 319(A)
at 330 D). So, too, was the fact that the
crime was
7/
7.
committed (late at night) in the privacy of complainant's home (
S vs V
1972(3) S A 611(A) at 614 A;
S vs B
1981(4) S A 851(A) at 857 B) - and,
one may add, in the virtual presence of her husband. There was no evidence (and
it is unlikely)
that appellant's lust arose on the spur of the moment, ie
immediately before he raped complainant. It was probably formed some time
earlier when he saw her being raped by two of his confederates. After her ordeal
she was, according to the testimony of her husband,
"very, very shocked". Her
arms were badly bruised. She suffered psychological effects. Her husband said
that for some time she was
"extremely nervous"; even at the time of the trial
(some 15 months later) she "found it difficult to spend time alone at home".
Complainant
herself testified that "never a day goes past that the whole thing
does not appear in my mind at some stage". Initially her sex life
with her
husband was adversely affected. The greater part of these consequences must
8/
8.
have resulted from the rape.
I am, in the result, not convinced that the
trial judge did not exercise his discretion in imposing the death sentence on
appellant
in a proper and reasonable manner.
The appeal is therefore dismissed.
NESTADT, JA
VAN HEERDEN, JA - CONCURS