About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2024
>>
[2024] ZAECBHC 20
|
|
S.M v S (CA&R: 27/2022) [2024] ZAECBHC 20 (16 July 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
Case
No: CA&R: 27/2022
In
the matter between:
S[…]
M[…]
Appellant
and
THE
STATE
Respondent
APPEAL JUDGMENT
BANDS
J:
[1]
The
appellant, who was legally represented at trial, was convicted by the
regional court, Zwelitsha, Eastern Cape on 8 September
2021 of one
count of rape of his live-in partner’s 10-year-old daughter on
diverse occasions (per vaginum) in contravention
of section 3 of the
Criminal Law (Sexual Offence and Related Matters) Amendment Act 32 of
2007.
[2]
Having
been convicted of the rape of a child under the age of 16, and it
being found by the sentencing court that there were no
substantial
and compelling circumstances to justify the imposition of a lesser
sentence, the appellant was sentenced to life imprisonment
in
accordance with the provisions of section 51(1) of the Criminal Law
Amendment Act 105 of 1997 (“
the
Act
”). The appellant appeals
against his sentence by way of an automatic appeal in terms of
section 309(1)
of the
Criminal Procedure Act 51 of 1977
.
[3]
As
is often the case, this appeal turns on whether: (i) the sentencing
court erred in its finding that there were no substantial
and
compelling circumstances justifying the imposition of a lesser
sentence than that prescribed; and (ii) the sentence imposed
was
disproportionate and accordingly, unjust.
[1]
The appellant, without advancing what he contends to be an
appropriate term of direct imprisonment, seeks an order that the
sentence
of life imprisonment imposed by the sentencing court be set
aside and replaced with a lesser term.
The
approach to the minimum sentencing legislation
[4]
A
court is required to impose the prescribed minimum sentence unless it
is satisfied that there are substantial and compelling circumstances
which militate against its imposition. Whilst such circumstances may
be comprised of any of the factors which the courts traditionally
consider and may be the cumulative effect of any number of such
factors, if the imposition of the prescribed minimum sentence would
be disproportionate to the crime and brings about an injustice, this
on its own constitutes a substantial and compelling circumstance
justifying the imposition of a lesser sentence.
[2]
[5]
Put
differently, in approaching the sentencing of the appellant, the
sentencing court was to impose a sentence that struck an appropriate
balance between the seriousness of the crime of which he was
convicted; his personal circumstances; and the legitimate
expectations
and legal interests of the community. The decision
whether substantial and compelling circumstances were present
involved the exercise
of a value judgment. It was necessary to have
regard to all factors relevant to both aggravation and mitigation,
and to assess,
upon a consideration of all the circumstances relevant
to the matter, whether the prescribed sentence was proportionate to
the
offence.
[6]
The
court in
S
v Malgas
[3]
emphasised the correct approach in establishing whether substantial
and compelling circumstances exist as follows:
“
[7]
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.
[8]
In what respects was it no longer to be 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. When considering sentence the emphasis was
to be shifted to the objective
gravity of the type of crime and the
public’s need for effective sanctions against it. But that did
not mean that all other
considerations were to be ignored. The
residual discretion to decline to pass the sentence which the
commission of such an offence
would ordinarily attract plainly was
given to the courts in recognition of the easily foreseeable
injustices which could result
from obliging them to pass the
specified sentences come what may.
[9]
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. As was observed in Flannery v Halifax
Estate Agencies Ltd
5
by
the Court of Appeal, “a requirement to give reasons
concentrates the mind, if it is fulfilled the resulting decision is
much more likely to be soundly based --- than if it is not”.
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. Speculative hypotheses favourable to the offender,
maudlin
sympathy, aversion to imprisoning first offenders, personal doubts as
to the efficacy of the policy implicit in the amending
legislation,
and like considerations were equally obviously not intended to
qualify as substantial and compelling circumstances.
Nor were
marginal differences in the personal circumstances or degrees of
participation of co-offenders which, but for the provisions,
might
have justified differentiating between them. But for the rest I can
see no warrant for deducing that the legislature intended
a court to
exclude from consideration, ante omnia as it were, any or
all of the many factors traditionally and rightly
taken into account
by courts when sentencing offenders. The use of the epithets
“substantial” and “compelling”
cannot be
interpreted as excluding even from consideration any
of those factors. They are neither notionally nor
linguistically
appropriate to achieve that. What they are apt to convey, is that the
ultimate cumulative impact of those
circumstances must be
such as to justify a departure. It is axiomatic in the
normal process of sentencing that, while
each of a number of
mitigating factors when viewed in isolation may have little
persuasive force, their combined impact may be
considerable.
Parliament cannot have been ignorant of that. There is no indication
in the language it has employed that it intended
the enquiry into the
possible existence of substantial and compelling circumstances
justifying a departure, to proceed in a radically
different way,
namely, by eliminating at the very threshold of the enquiry one or
more factors traditionally and rightly taken
into consideration when
assessing sentence. None of those factors have been singled out
either expressly or impliedly for exclusion
from consideration.
[10]
To the extent therefore that there are dicta in the
previously decided cases that suggest that there are such factors
which fall to be eliminated entirely either at the outset of the
enquiry or at any subsequent stage (eg age or the absence of previous
convictions), I consider them to be erroneous. Equally erroneous, so
it seems to me, are dicta which suggest that for
circumstances to qualify as substantial and compelling they must be
“exceptional” in the sense of seldom encountered
or rare.
The frequency or infrequency of the existence of a set of
circumstances is logically irrelevant to the question of whether
or
not they are substantial and compelling.
”
[7]
The
Constitutional Court in
S
v Dodo
[4]
approved the approach to sentencing as laid down in
Malgas
.
With reference to the aspect of proportionality, the court held that
what had to be considered in determining whether the length
of a
sentence was proportionate to the offence, was the offence in its
broader context. This, Ackermann J described at paragraph
[37] as
consisting 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.
”
Ackermann
J went on to state at paragraph [38] that even when the legislature
has prescribed the sentence ordinarily to be imposed
in respect of an
offence, the value of human dignity lies at the heart of the
requirement that sentences must be proportionate
to the offence.
[8]
The
Supreme Court of Appeal
S
v Vilikazi
,
[5]
in endorsing the approach set out in
Malgas
,
stated that it is only by approaching sentencing under the Act in
such manner that it is possible to avoid incongruous and
disproportionate
sentences. A prescribed minimum sentence cannot be
assumed
a
priori
to
be proportionate in a particular case simply because a crime falls
within a particular category. Disproportionate sentences,
said Nugent
JA, are not to be imposed. Courts are not vehicles for injustice.
The
approach to sentencing on appeal
[9]
It
is well established that the approach of an appellate court, when
considering a sentence imposed, in the exercise of a sentencing
court’s ordinary sentencing discretion, is to interfere
therewith only if there is a clear misdirection on the part of the
court or if the sentence is disturbingly inappropriate or induces a
sense of shock. In the absence of this and given the applicability
of
the Criminal Law Amendment Act, this Court is in any event entitled
to interfere with the trial court’s sentence in respect
of a
finding as to substantial and compelling circumstances.
[10]
Consequently,
the proper enquiry on appeal is whether the facts which were
considered by the sentencing court were substantial and
compelling or
not. In this regard, Bosielo JA, writing for the Supreme Court of
Appeal in
S
v PB
,
[6]
formulated the approach as follows:
"[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."
[11]
As
highlighted by Rogers J in
S
v GK
,
[7]
the learned judge of appeal did not mean that the appellate court was
only permitted to consider only those circumstances which
the trial
court considered. All circumstances bearing on the question must be
examined to determine the absence or presence of
substantial and
compelling circumstances (as the case may be). Put differently, the
appellate court’s power to reconsider
the matter of substantial
and compelling circumstances is unfettered. In this respect, Rogers J
went on to state that: “
[t]he
decision whether or not substantial and compelling circumstances are
present involves the exercise of a value judgment; but
a Court on
appeal is entitled to substitute its own judgment on this issue if it
is of the view that the lower court erred in its
conclusion.
”
The
relevant facts
[12]
The
complainant who was 12 years of age at the date of trial suffers from
mild cognitive impairment due to epilepsy rendering her
mental age,
7, this being 5 years younger than her chronological age. This
notwithstanding, she was psychologically assessed as
having the
ability to give evidence in court, via closed circuit television,
with the assistance of an intermediary. I must mention
that whist the
complainant’s impairment was assessed as mild and as not
falling within the definition of mentally disabled
for the purposes
of Act 32 of 2007, it is not insignificant. That this is so, is
apparent from the record of proceedings.
[13]
The
appellant has known the complainant since she was an infant, at which
time he entered into a romantic relationship with her
mother, playing
the role of her father figure. On 3 and 4 January 2018, the
complainant, who was 10 years old at the time, was
raped in her home
(in which she lived with her mother, the appellant and her siblings)
by the appellant. Both incidents occurred
in a similar fashion,
whilst the complainant was at home alone with the appellant. On each
occasion, she was asleep in her bed.
She awoke to the appellant
removing her clothing. The appellant got on top of her and raped her.
Firstly, by penetrating her digitally,
and thereafter by penetrating
her with his penis. He threatened to slit her throat should she tell
her mother about what had happened.
For this reason, the complainant
elected not to report the incidents on either 3 or 4 January 2018.
[14]
The
following day, on 5 January 2018, the complainant had difficulty
urinating. This led to her becoming emotional. Having observed
this,
her mother and other members of the homestead enquired what was
wrong. It was at this stage that the complainant reported
the
incidents, including the identity of her rapist. The police were
immediately informed, and the appellant was arrested. The
complainant
was taken to the hospital for a medical examination. The content of
the J88, was admitted into evidence in its entirety.
The
gynaecological examination confirmed the absence of hymenal tissue
from 7 to 12 o’clock and from 1 to 3 o’clock,
with the
presence of bumps at 4 o’clock and clefts at 3 and 10 o’clock.
These findings were consistent with a history
of sexual assault and
suggestive of vaginal penetration.
[15]
The
appellant, during evidence, denied the allegations against him and
maintained his innocence throughout. According to him, when
confronted with the alleged rape and his subsequent denial, he was
assaulted by the complainant’s grandfather and various
members
of the community. He contended that he had falsely admitted to having
penetrated the complainant digitally to stop the
assault on him. The
court, unpersuaded, and having found the complainant to be an honest
and reliable witness, convicted the appellant
as aforesaid.
[16]
In
sentencing the appellant, the court imposed the prescribed minimum
sentence, having found no substantial and compelling circumstances
to
be present. Whilst no specific reference is made to proportionality
(in such terms), it appears from the wording of the judgment
itself,
albeit that it is somewhat concise, that the magistrate was alive to
this aspect.
[17]
The
appellant’s personal circumstances were recorded from the bar.
He was raised by his mother, having lost his father at
a young age.
His highest level of education is grade 11. At the date of
sentencing, he was 40 years of age. He was 37 years old
at the time
of the commission of the offence. As stated, he is well known to the
complainant and played the role of her father
figure. He is the
biological father of four children, whose respective ages at the date
of trial were 8; 7; 6 years’; with
his youngest being 3 months
old. The youngest two of his four children were born from the
relationship between the appellant and
the complainant’s mother
and resided together with them in their common home. Prior to his
arrest, he worked, cutting down
poles, receiving approximately
R1,200.00 per week, from which he supported his family.
[18]
In
summary, the appellant in his notice of appeal contends that: (i) the
trial court erred in not considering the cumulative effect
of the
above factors, which constituted substantial and compelling
circumstances; (ii) the trial court overemphasised the seriousness
of
the offence; (iii) and that sentence imposed by the trial court is so
severe and disproportionate that it induces a sense of
shock. The
appellant also contends that “
at
the time of the commission of the offence he was drunk as a result,
alcohol might have play (sic) a role in the commission of
the offence
and the victim although she was seven years old did not suffer severe
injuries
.”
[19]
In
respect of this latter aspect, the complainant, in essence, sought to
rely on his state of intoxication at the time of the incidents
in
favour of a finding of diminished blameworthiness, which was to be
considered as a mitigating factor. In doing so, the appellant’s
counsel made reference to an unreported authority of the Eastern Cape
Division of the High Court, Grahamstown (as it then was)
in the
matter of
Luxolo
Mandita Mpongoshe v S
(CA24/2019),
[8]
in which Lowe J embarked on a careful examination of the consequences
of intoxication on sentencing, concluding on the facts of
that case
that the circumstances, taken cumulatively, including the issue of
intoxication, established the presence of substantial
and compelling
circumstances.
[20]
Whilst
I accept that in appropriate circumstances intoxication, if shown to
have impaired the mental faculties of an offender, can
serve to
diminish moral blameworthiness, that this was one such case is not
borne from the record. The only evidence pertaining
to the intake of
alcohol by the appellant (which in any event is insufficient on its
own) surrounds the events of the night of
4 January 2018 and the
following day on which he was arrested – this being after the
occurrence of the incidents. This was
properly conceded by counsel
appearing on behalf of the appellant. Accordingly, such factor has no
role to play in the present
instance.
[21]
The
complainant was 10 years of age, chronologically, when the offences
were committed. Extrapolating from her respective chronological
and
mental ages at the date of trial, being 12 and 7, to which I have
referred, she would at the time of the commission of the
offence
undoubtedly have fallen below the age of 7, mentally and emotionally.
The appellant, being her father figure, was in a
position of trust,
which he abused. He penetrated the complainant, digitally and
thereafter with his penis on two separate occasions
on consecutive
days. Accordingly, notwithstanding an opportunity for reflection, he
elected not to alter his conduct.
[22]
The
rape of young girls by their fathers was described by Bosielo JA in
S
v Bailey
[9]
as “
scandalous
”
and
“
morally
repugnant
”
.
It is “
a
malignant cancer seriously threatening the well-being and proper
growth and development of young girls
”
and
it qualifies to be described as “
a
most serious threat to our social and moral fabric
.”
[23]
Cameron
JA, in dealing with the rape of a minor by her father stated as
follows at paragraph [17] in
S
v Abrahams
:
[10]
“
Of all the
grievous violations of the family bond the case manifests, this is
the most complex, since a parent, including a father,
is indeed in a
position of authority and command over a daughter. But it is a
position to be exercised with reverence in the daughter’s
best
interest, and for her flowering as a human being. For a father to
abuse the position to obtain forced sexual access to his
daughter’s
body, constitutes deflowering in the most grievous and brutal sense.”
[24]
Common
sense dictates that these comments are of equal application in
circumstances involving rape within the family unit perpetrated
by an
adult filling the role of a parental figure, such as in the present
matter. The rape of a minor child is an abhorrent crime.
It is for
this reason that the legislature has elected to include this type of
rape in the category of crimes which attract a life
sentence in the
absence of substantial and compelling circumstances.
[11]
[25]
This
is compounded by the fact that not only is the complainant a
vulnerable member of society, being a child, who has been deprived
of
her innocence, but she has an added layer of vulnerability given her
cognitive impairment. She was violated in the most egregious
manner
on two separate occasions, in the sanctity of her own home, by the
person that she considered to be her father. He thereafter
threatened
to kill her, using immense brutality, should she speak out. This
breach of their trust relationship by the appellant
is reprehensible.
Whilst no evidence was led at trial through a social worker or a
psychologist as to the psychological consequences
of the incidents on
the complainant and her long-term prognosis, nor was a victim impact
statement compiled, there can be little
doubt that the events were
traumatic for her and that she will be severely affected thereby.
[26]
The
appellant showed no sign of remorse, nor was any such remorse
contended for by his legal representative at trial. As for his
prospect for rehabilitation, no such evidence was advanced. The
appellant was 37 years old at the time of the commission of the
offence and 40 at the date of trial. He is neither a youthful nor
immature offender. The repeated commission of the offence on
two
consecutive days; his lack of reflection during such time and
thereafter, in the three-year period that followed leading up
to the
conclusion of the trial and prior to sentencing, militate against
such a finding. To draw any other conclusion in such circumstances,
would amount to a speculative hypothesis in favour of the appellant
as cautioned against in
Malgas
.
[27]
That
the appellant was employed and supported his family from his income,
coupled with the fact that he is a first-time offender,
does not, in
the circumstances of this case constitute substantial and compelling
circumstances. Accordingly, no criticism can
be levelled against the
sentencing court’s conclusion in this respect. Regard being had
to what I have set out above, and
with particular reference to the
facts of this matter viewed collectively with the high levels of
violence against woman and children
(inclusive of
the
legitimate expectations and legal interests of the community)
,
which are widely reported on and have been referred to as “
a
pandemic of sexual violence against woman and children
”
by
the Supreme Court of Appeal,
[12]
life imprisonment is not unjust.
[28]
In
the result, the following order is issued:
1.
The appeal against
sentence is dismissed.
I
BANDS
JUDGE
OF THE HIGH COURT
RUSI
J:
I
agree.
L
RUSI
JUDGE
OF THE HIGH COURT
For
the appellant:
Mr
Giqwa
Instructed
by:
Legal
Aid South Africa
Qonce
Office
Cathcart
Street
Qonce
For
the respondent:
Mr
Philisane
Instructed
by:
Office
of Director of Public Prosecutions
East
London
Date
heard:
29
November 2023
Judgment
delivered
16
July 2024
[1]
S v
Malgas
2001 (2) SA 1222
;
2001 (1) SACR 469
(SCA) Marais JA said as follows
at paragraph [25]:
“
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence unjust in that it would be disproportionate to the crime,
the criminal and the needs of society, so that an injustice
would be
done by imposing that sentence, it is entitled to impose a lesser
sentence
.”
[2]
S
v Malgas
[2001]
3 All SA 220
(A);
S
v Vilikazi
2009
(1) SACR 552
(SCA) at paras [14] and [15];
Madikane
v S
2011
(2) SACR 11
(ECG);
De
Beer v The State
(1210/2016)
ZASCA 183 (5 December 2017) at paragraph [17].
[3]
[2001]
3 All SA 220 (A).
[4]
[2001] ZACC 16
;
2001 (3) SA 382
(CC).
[5]
2009
(1) SACR 552 (SCA).
[6]
2013 (2) SACR 533
(SCA) at paragraph [20].
[7]
2013
(2) SACR 505
(WCC) at paragraph [7].
[8]
Mpongoshe
v S
(CA24/2019) [2020] ZAECGHC 8 (11 February 2020).
[9]
[2012] ZASCA 154
at paragraph
[13]
.
[10]
2002 (1) SACR 116 (SCA).
[11]
GK
v S
2013 (2) SACR 505 (WCC).
[12]
Director
of Public Prosecutions, Grahamstown v TM
(131/2019) [2020] ZASCA 5 (12 March 2020).