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[2024] ZAECMKHC 141
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S v Jokanisi (CC64/2024) [2024] ZAECMKHC 141 (22 November 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO.: CC64
/2024
In
the matter between:
THE
STATE
and
THOBILE
JOKANISI
Accused
JUDGMENT
JOLWANA
J:
[1]
The accused appeared in this Court on one count of rape in
contravention of section 3 read with
section 1
,
56
(1),
57
,
58
,
59
,
60
and
68
(2) of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
. In the indictment the State indicated
its intention to ask the court to impose a minimum sentence of life
imprisonment in
the event of the accused being convicted. In
doing so the State relied on
section 51(1)
, read with
Part 1
of
Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
. The
State alleges in the indictment that this is on the basis that the
victim was under the age of 18 years at the time
the offence was
committed.
[2]
The accused pleaded guilty to the charge of rape put to him which was
that on or about the 19 April 2024, at or near Takalani
Township in
Ugie in the Joe Gqabi Magisterial District he unlawfully and
intentionally anally penetrated L[...] N[...], an 11 year
old boy.
[3]
The legal representative of the accused handed up to the court a
statement provided for in section 112 (2) of the Criminal Procedure
Act 51 of 1977 (Act) which is signed by the accused in which the
facts on the basis of which he was pleading guilty are set out.
Section 112(2) of the Act reads:
“
If
an accused or his legal adviser hands a written statement by the
accused into court, in which the accused sets out the facts
which he
admits and on which he has pleaded guilty, the court may, in lieu of
questioning the accused under subsection (1)(b),
convict the accused
on the strength of such a statement and sentence him as provided in
the said subsection if the court is satisfied
that the accused is
guilty of the offence to which he has pleaded guilty: Provided that
the court may in its discretion put any
question to the accused in
order to clarify any matter raised in the statement.”
[4]
After considering the contents of the statement and the facts
contained therein which the accused admitted, the accused was
convicted of the rape as charged. In
Hanisi
[1]
the Supreme Court of Appeal explained the import of a statement in
terms of section 112(2) of the Act as follows:
“
A
Court considering a statement made in terms of s 112(2) exercises its
discretion to determine whether the statement admits all
the elements
of the offence in question. If it is not satisfied that that is
so, it must question the accused as set out
in s112(1)(b) to clarify
any matter raised in the written plea. If it determines that
the statement is satisfactory and admits
all the elements of the
offence, it shall convict the accused on the plea of guilty.
When the written plea detailing the
facts on which the plea is
premised is accepted by the prosecution, it constitutes the factual
matrix on the strength of which
an accused will be convicted and the
sentence imposed. The written plea is aimed at ensuring that
the court is provided with
an adequate factual basis to make a
determination on whether the admissions made by the accused support
the plea of guilty tendered.”
[5]
The accused having been convicted, the court must now consider an
appropriate sentence that must be imposed. In considering
an
appropriate sentence, a sentencing court is required to have due
regard to the triad consisting of the crime, the offender and
the
interests of society. In
Tsotetsi
[2]
the court restated the basic sentencing principles as follows:
“
(a)
The sentence must be appropriate, based on the circumstances of the
case. It must not be too light or too severe.
(b)
There must be an appropriate nexus between the sentence and the
severity of the crime; full consideration must be given to all
mitigating and aggravating factors surrounding the offender.
The sentence should thus reflect the blameworthiness of the
offender
and be proportional. These are the first two elements of the
triad enunciated in
S v Zinn
.
(c)
Regard must be had to the interests of society (the third element of
the Zinn triad). This involves a consideration of
the
protection society so desperately needs. The interests of
society are reflected in deterrence, prevention, rehabilitation
and
retribution.
(d)
Deterrence, the important purpose of punishment, has two components,
being both the deterrence of the accused from re-offending
and the
deterrence of would–be offenders.
(e)
Rehabilitation is a purpose of punishment only if there is the
potential to achieve it.
(f)
Retribution, being a society’s expression of outrage at the
crime, remains of importance. If the crime is viewed
by society
as an abhorrence then the sentence should reflect that.
Retribution is also expressed as the notion that the punishment
must
fit the crime.
(g)
Finally, mercy is a factor. A humane and balanced approach must
be followed.”
[6]
The accused testified in mitigation of sentence. His evidence
included his expression of his acceptance that what he has
done in
raping the minor child is wrong. He went on to say that he
accepted that he has to pay for what he has done and felt
that he is
a bad person who does not deserve forgiveness. He testified
that since his arrest he has been in custody and that
if the victim
and his family were in court he would apologize directly to them.
However, he was prepared to pay for what
he has done to the child.
He committed the offence in the following circumstances. He had
smoked dagga on that day
as indicated in his section 112(2) statement
which he said was more than he usually smoked. He knew what he
was doing when
he raped the victim and he appreciated that it was
wrong. The dagga emboldened him and made him feel like he can
do anything.
When he thought of raping the complainant, dagga
had the effect of egging him on as it interfered with the functioning
of his brain.
He understood that he should be punished with a
lengthy period of imprisonment, the extent of which should be up to
the court.
[7]
On being asked some questions by the court he testified that he had
opened a knife to instill fear in his victim so as to overcome
his
victim’s resistance although he had no intention of stabbing
him. When the complainant cried while he was raping
him he did
not immediately stop. He stopped when he realized that his
cries were becoming too loud and would attract the
attention of the
people. He already knew the complainant’s father although
at the time of the incident he did not know
that he was raping the
child of a person he knew. He had initially denied having
committed the offence but when he was at
the Police Station he
realized that lying about the incident was not right. On the
day of his second court appearance, he
indicated his intention to
plead guilty to his legal representative whom he also requested to
convey his apology to the complainant’s
family. He did
not know if his attorney actually conveyed his apology or indicated
to the court that he wanted to tender
a plea of guilty.
[8]
In addition to the evidence of the accused, his legal representative,
Ms McCullum made submissions in which she started by acknowledging
the seriousness of the offence which she said the society obviously
abhorred as children should ordinarily be able play safely
and be
able to go home freely without fear. She placed the following
circumstances which she contended, were substantial
and compelling
and on the basis thereof, urged the court to depart from imposing the
prescribed minimum sentence of life imprisonment.
The accused
pleaded guilty to the offence and in his section 112 (2) statement he
played open cards with the court. He did
not downplay the
incident and he took full responsibility for what he has done.
He accepted that he must be punished and
he acknowledged the
complainant’s pain so much that in his evidence he initially
said that the extent of his sentence would
not be up to him, the
court would have to decide on it. It was when he was pressed by
counsel for the State that he indicated
that the sentence should be
fifteen years imprisonment.
[9]
He was very frank with the court about what happened and gave details
of what he did to the complainant in his guilty statement.
The
commission of the offence was not premeditated but was committed
impulsively when he saw the complainant walking alone.
At that
stage he had smoked dagga which had an effect on him even though it
was not the first time that he smoked dagga as he had
been smoking
dagga since 2022. It was submitted that the accused
acknowledged the wrongfulness of his actions. All
of these
combined and considered cumulatively were indicative of his remorse
and were indicative of the accused’s prospects
of
rehabilitation.
[10]
The accused’s personal circumstances which were placed on
record were that he was born on 6 December 2001. He was
therefore 22 years old when he committed the offence. Before
his arrest he lived with his mother and his younger sister as
well as
four children of his two elder sisters. Those two elder sisters
live in Ugie but their children live with his mother.
He is one
of 9 siblings and all his elder siblings do not live at home.
His mother is a domestic worker in a farm and
also stays there.
She comes home for one week every month. He is mostly the only
adult at home. His younger sister
usually makes food and when
she cannot cook, the accused cooks for his family.
[11]
He has never been formally employed. He does odd jobs like
cleaning other people’s yards. Even on the day
of the
incident he was cleaning his neighbour’s yard for which he was
paid R50 which he used to buy electricity for his home.
At home
they depend on his mother’s wages as a domestic worker together
with the child support grant of his two elder sisters’
young
children who live with them. He went to Sibabane High School
where passed grade 8. Thereafter he did not go back
to school
as his mother could not afford paying school necessities for all of
them. His main responsibilities at home are
to clean the yard
and to cook for the children when his younger sister is at school.
His father died when he was 13 years
old. During his life time
he worked in the same farm in which his mother works. He is a
first offender who may not
have committed the offence if he had not
come across the complainant as the offence was not planned.
[12]
With reference to
Malgas
[3]
it was argued that the imposition of the prescribed minimum sentence
could itself be an injustice taking into account all of the
circumstances of the offence and the accused which it was submitted,
were substantial and compelling so as to justify a departure
from the
prescribed minimum sentence.
[13]
In
Malgas
the Supreme Court of Appeal gave the following
guidance on the very difficult task of considering an appropriate
sentence without
perpetrating an injustice. The court said.
“ …
The
greater the sense of unease a court feels about the 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 a
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 the society.
If that is the result
of a consideration of the circumstances the court is entitled to
characterize them as substantial and compelling
and such as to
justify the imposition of a lesser sentence.”
[14]
The State called a clinical psychologist who testified in aggravation
of sentence bringing to the attention of the court the
changes that
have been observed in the behavioral patterns of the young
complainant since the incident occurred earlier this year.
She
testified that the complainant was brought to her by his mother at
the instance of the Director of Public Prosecutions for
a
psychological assessment to determine the impact of the rape incident
on the complainant. The complainant asked that his
mother
should be present when she interacted with him. Some of those
negative changes which the victim’s mother observed
include the
following. The complainant has become irritable, hostile and has
become an angry child. He has become very disrespectful
which
manifests itself by speaking out of turn, sometimes hurling insults
even to adults and is unapologetic about his unruly behavior.
When he does not get his way he becomes aggressive, verbally abusive
and throws tantrums and would sometimes cry hysterically.
[15]
He has become withdrawn with mood swings whereas before the incident
he was a hard worker who initiated certain household chores
without
being requested. He refuses to go out to play with other
children and displays uncontained behavior. He uses
very
aggressive messages on his Facebook page and gets defensive when
confronted for this behavior. He has become wary of
male
figures, becomes anxious, agitated and suspicious when he meets male
persons in the streets. In one instance he was
walking with his
mother when they came across a male person. On that occasion he
started trembling and behaving erratically.
He struggles to
fall asleep and sometimes he would moan and talk in his sleep.
He experiences fecal retention. He has
suicidal thoughts and
ideation which he sometimes expresses. This has resulted in his
mother having to keep guard on him
constantly out of fear that he
might act impulsively on his suicidal thoughts. His
mother has found dealing with the
complainant quite overwhelming as
his father is often absent. Even when he is at home he ignores
the child and does not assist
in correcting some of his behavioral
patterns.
[16]
It is clear from the evidence of the clinical psychologist which is
also based on the observations she testified she made during
the
psychological assessment, that all of the things the complainant’s
mother observed are the life altering effects of the
rape incident.
The clinical psychologist explained that as a result of this
incident, the complainant is in a state of confusion
about his
sexuality and gender identity due to what happened to him. His
refusal or reluctance to go out and play with other
children could be
due to the publicity the incident received as some of his friends and
children of similar age may have become
aware of the incident.
She testified that rape is essentially about power and its exertion
over another person and the fecal
retention could be one way the
complainant is trying to assert some measure of control post the rape
incident. She concluded
that the complainant suffered
significantly from being raped and the symptoms which manifest
themselves in the observations that
have been made are all indicative
of the negative impact the incident has had on this young boy.
While psychotherapy will
help him understand and cope better with
what was done to him, he will never be the same person again as the
rape incident was
a significant life altering ordeal whose
psychological scars cannot be erased.
[17]
In his submissions in aggravation of sentence, counsel for the State,
Mr Nohiya pointed out that rape is undeniably a horrible
and
despicable offence. He submitted that the life of this complainant
was clearly damaged very fundamentally to the extent that
he is now
confused about his sexual identity as a result of what was done to
him by the accused. He, however, pointed out
that he could not
dispute that the rape was not premeditated. The fact that the
accused is relatively young was also an undeniable
fact, although it
was not conclusive on its own. Counsel for the State further
submitted that he could not, with any sense
of conviction, argue that
the imposition of the prescribed minimum sentence of life
imprisonment would not, in all the peculiar
circumstances of the
case, be disproportionate regard being had to all the facts of this
case.
[18]
The crime of rape has become a menace to our society. It is
most commonly perpetrated against the weaker in our society
as the
victims are generally women, both older women and younger women,
girls and even babies who happen to be girls. There
are
anecdotal indications that rape of young boys is also increasing at
an alarming rate, which is indicative of a fundamental
shift from a
situation in which by definition, the vulnerable members of our
society were only women and children. We have
not even made a
significant dent in reducing the sexual abuse of women and girl
children. The unfortunate reality is that
we are now fast being
confronted with the abuse of young boys who, like women and girls,
are also being subjected to sexual abuse
because they are also weaker
and therefore vulnerable in our society in the sense of not being
strong enough to ward-off these
evil attacks on their basic humanity
and sense of self-worth. Clearly, as Mr Nohiya pointed out, the
seriousness of the offence
of rape against boys is as bad as the rape
of women and young girls for which a clear message must be sent out
that the punishment
meted out for the rape of young boys and boy
children will be taken as seriously as that of young girls.
This goes to the
point that the clinical psychologist made which must
be emphasized, which is that rape is about the exertion of power over
another
person in a most horrible way.
[19]
As Ms McCullum pointed out, the crime itself was clearly not
premeditated or planned but was rather opportunistic. Without
suggesting that the use of mind altering substances such as dagga
are, in themselves a mitigating factor, she submitted that it
is not
in dispute that the accused had smoked dagga just before the
incident. If his evidence is to be believed, while it
was not
the first time that the accused had smoked dagga, the difference was
that he had smoked more dagga than he normally did.
The
complainant was accosted on his way home by the accused who was also
on his way home after smoking dagga. The accused
must be given
a sentence that sends a clear message to would be offenders that
courts will be unflinching in the exercise of their
duty to impose
appropriate sentences that acknowledge the seriousness of the offence
and take it account not only the pain that
the complainant such the
one in this matter experienced but also the long term after effects
of having been put through this horrendous
ordeal.
[20]
That will only be so if the accused is removed from society for quite
some time. Hopefully, considering the fact that
while the
complainant and the accused live in different localities, they are
all from the same geographical area. It could
provide a sense
of comfort, it is to be hoped, if the victim does not also have to
encounter the accused person anywhere as he
goes about trying to
rebuild his life as a growing young man after this incident. A
lengthy sentence of imprisonment will
not only give the accused time
to go through the rehabilitative processes during his time in prison
and thus give him a second
chance in life, it will also hopefully
enable the complainant to get some form of relief in knowing that
there is no chance that
he could meet the accused anywhere while he
tries to recover and cope with the ordeal.
[21]
The substantial and compelling circumstances as already indicated are
briefly the fact that he is a first offender and has
pleaded guilty.
On his own version, which has not been gainsaid, he indicated his
intention to plead guilty to his lawyers
as soon as his second court
appearance. This could be highly indicative of rehabilitative
prospects. He chose to testify
in mitigation of sentence which
is not as common as it should be and was subjected to
cross-examination. His evidence included
his expression of his
willingness to serve whatever sentence the court imposes. He
took responsibility for his actions.
While it cannot be said
with any degree of certainty, it would appear that he was a
responsible young man who assisted his family
before this incident.
He was the main person responsible for looking after his younger
sister who attended school and also
his older sisters’
young children who lived with them at home. The crime itself was not
planned but was committed opportunistically
possibly spurred by the
effect dagga had on him.
[22]
The difficulties and thought processes involved in finding the
correct equilibrium in the exercise of the sentencing discretion,
especially for serious offences such as in this matter were expressed
as follows in
Vilakazi
[4]
:
“
It
is clear from the terms in which the 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
the
circumstances of the particular case, whether the prescribed sentence
is indeed proportionate to the particular offence.
The
Constitutional Court made it clear that what is meant by the
“offence” in that 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’.
If
a court is indeed satisfied that a lesser sentence is called for in a
particular case, thus justifying a departure from the prescribed
sentence, then it hardly needs saying that the court is bound to
impose that lesser sentence. That was also made clear in
Malgas
, which said that the relevant provision in the Act:
‘
vests
the sentencing court with the power, indeed the obligation, to
consider whether the particular circumstances of the case require
a
different sentence to be imposed. And a different sentence must
be imposed if the court is satisfied that substantial and
compelling
circumstances exist which ‘justify’ … it’.”
[23]
There is one other matter of concern that I do feel it would be
remiss of this Court not to raise it. That is the issue relating
to
the therapy that the minor child needs after the incident which has
been described as an ordeal. The clinical psychologist has
recommended psychotherapy to assist the minor child to deal with the
ordeal. However, there does not seem to be any actual road
map or
plan to ensure that this child and his mother do get the required
psychotherapy sessions. Perhaps it should be required
that one of the
witnesses the Director of Public Prosecutions calls in a case
involving the abuse of minor children should be the
Regional Head or
head of office in the Department of Social Development in the area in
which the crime was committed as a standard
practice. This is to
ensure that the court, as the upper guardian of all minor children,
is apprised of the plan for ongoing therapy
sessions or a plan to
start with such sessions if by the time the matter gets to court
appropriate counselling sessions had not
yet started.
[24]
In S v S. N
[5]
Norman J had this to say:
“…
[T]he
interests of the children where they are victims of crime or abuse,
must be addressed prior to the conclusion of the trial
in order to
ensure that the well-being of an abused child is taken into account
by the trial court. That, in my view, will pave
the way for those
children to grow and become emotionally, mentally and physically
strong future members of society. Once sentence
is imposed on an
accused person that is the end of the trial. If nothing is said about
the child victim other than condemning the
unlawful act itself the
child will go back home with no support from the justice system.”
[25]
We should strive for a victim centred justice system if we are to
rebuild our communities subsequent to the crime having been
committed. Considering all of the above I do intend to issue an
appropriate order to deal with this aspect as it is a dereliction
of
duty by the Department of Social Development that there does not seem
to be systems in place for them to know about all cases
of abuse
against children so that they can deploy the necessary resources.
This is absolutely necessary so that the affected children
are given
the indispensable support and therapy they need in their difficult
journey of recovery from what they went through.
[26]
I have already indicated hereinbefore that the substantial and
compelling circumstances exist that justify a departure from
the
minimum prescribed sentence of life imprisonment. What the
court must now do is to impose a sentence that suits the crime,
the
offender and the interests of society, an undeniably difficult
balancing act. Before I impose the said sentence I am
required
to inform you that in terms of
section 50(1)
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007
, your
name will be included in the National Register for Sex Offenders.
This is because you have been convicted of a sexual
offence against a
child who was under the age of 16 years when you raped him, the
complainant in this case.
[24]
Accordingly you are sentenced as follows:
1.
You are to serve a period of 25 years direct imprisonment.
2.
The Registrar of the National Register for Sex Offenders is ordered
to enter the details of the accused in the Register for Sexual
Offenders.
3.
The investigating officer is directed to serve a copy of this
judgment on the Regional Head or head of office of the Department
of
Social Development in Queenstown.
4.
The Regional Head or head of office of the Department of Social
Development in Queenstown is ordered to ensure that psychotherapy
counselling sessions are provided to the minor child on a regular
basis until they are no longer necessary.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearance:
Counsel
for the state
: A. Nohiya
Instructed
by
: NDPP
Grahamstown
Counsel
for the accused : H. McCullum
Instructed
by
:
Legal Aid South Africa
Grahamstown
Date
heard
: 20 November 2024
Date
delivered
: 22 November 2024
[1]
Director
of Public Prosecutions, Gauteng Division, Pretoria v Hanisi
2018 (2)
SACR 230
(SCA) para 7.
[2]
S
v Tsotetsi 2019 (2) SARC 594 (WCC) at page 604.
[3]
S
v Malgas
[2001] 3 All SA 220
(A) para 22.
[4]
S
v Vilikazi 2009 (1) SARS 552 (SCA) at 560 g-h – 561 a-b.
[5]
S v S. N (CC16/2022) [2022] ZAECMKHC 122 (20 April 2022) para 28.