S v Swart (654/02) [2003] ZASCA 140 (28 November 2003)

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[2003] ZASCA 140
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S v Swart (654/02) [2003] ZASCA 140; 2004 (2) SACR 370 (SCA) (28 November 2003)

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THE SUPREME COURT
OF APPEAL
OF SOUTH AFRICA
Reportable
CASE NO
: 654/02
In the matter between :
THE STATE
Appellant
and
RIAAN SWART
Respondent
___________________________________________________________________________
Before: STREICHER, NUGENT JJA, SOUTHWOOD, VAN HEERDEN
& MOTATA AJJA
Heard: 18 NOVEMBER 2003
Delivered:
28 NOVEMBER 2003
Summary: Sentence – rape – gravity of offence to
be given due weight
___________________________________________________________________________
J U D G M E N T
___________________________________________________________________________
NUGENT JA
NUGENT JA:
[1] The respondent was convicted in the High Court at
Johannesburg (by Borchers J and assessors) of housebreaking with
intent to
rape, two counts of rape, and two counts of indecent
assault. The two convictions for rape brought the matter within the
terms
of s 51 read with Part I of Schedule 2 to the
Criminal Law
Amendment Act No 105 of 1997
but the court was satisfied that
substantial and compelling circumstances justified the imposition of
a lesser sentence than the
prescribed sentence of life imprisonment.
For the offences taken together the respondent was sentenced to seven
years’ imprisonment
which was suspended for five years on the
following conditions:
‘
1. That he is not convicted of rape, indecent assault
or housebreaking, committed during the period of suspension.
2. That he abstain from the use of any alcoholic
beverage during the period of suspension.
3. That he submit himself to correctional supervision in
terms of
s 276(1)(h)
of Act 51 of 1997 for a period of 3 years.
4. That such sentence of correctional supervision shall
include the following components:
(a) That he receive therapy from Dr Aaron Segal for such
period as Dr Segal and the officials of the Department of
Correctional
Supervision, in consultation with each other, deem
necessary.
(b) That he place himself under the control and
supervision of the Correctional Supervision Officer stationed at
Benoni.
(c) That he fulfil all the requirements of Dr Segal and
the said officials, including possible placement for therapy at the
Christian
Alcoholic Services, including attendance of any courses and
therapy to be determined by them, and including admission as an in
patient for therapy at any institution determined by them.
(d) That he be subjected to house arrest, the precise
times and the period thereof to be determined by the officials of
Correctional
Services Department.
(e) That he render 300 hours of community service, at
the venues and for the periods determined by the said officials.
(f) That he reside at the home of his aunt, Mrs Claassen
(sic), and does not leave or change this address without the consent
of
the said officials.
5. That he report to Mrs Stander, or to Mrs Snyman, of
the Department of Correctional Services at First Floor, Mutual &
Federal
Buildings, Elston Avenue, Benoni by noon on Monday, 31 July
2001.’
[2] The State now appeals against that sentence as
provided for in
s 316B
of the
Criminal Procedure Act No 51 of
1977
with leave granted by the trial court. There are two preliminary
matters that need to be dealt with before turning to the merits
of
the appeal.
[3] The respondent was sentenced on 26 July 2001 and
leave to appeal was granted on 15 February 2002.
Section 316
(5)
of the
Criminal Procedure Act (which
is made applicable to appeals by
the State by
s 316B
(2)) provides that once leave to appeal to
this court has been granted
‘…
the registrar of the court granting
such application … shall cause to be transmitted to the …
registrar [of the Supreme Court
of Appeal] a certified copy of the
record, including copies of the evidence, whether oral or
documentary, taken or admitted at
the trial, and a statement of the
grounds of appeal.'
The record of the trial was lodged with the registrar of
this court on 17 December 2002 (the record was lodged by the Director
of
Public Prosecutions rather than by the registrar of the
Johannesburg High Court but that is not material).
[4]
Rule 5(5)
of the former rules of this court required
an appellant in a criminal case to lodge the record within three
months of being granted
leave to appeal. That has not been repeated
in the current rules, for in my view
Rules 8(1)
and (3), properly
construed, apply only to appeals in civil cases. (Rule 52 of the
Uniform Rules also stipulates no time for the
filing of the record).
But no doubt this court may make an appropriate order if the record
is not lodged within a reasonable
time, either in terms of
s 342A
of the
Criminal Procedure Act or
in the exercise of the inherent
power to protect and regulate its own process that is conferred upon
it by s 173 of the Constitution.
At the commencement of the
hearing of this appeal counsel for the respondent said that she left
it in the hands of the court to
decide whether the appeal had lapsed
because of the delay. Only when asked whether it was her contention
that the appeal had lapsed
did she submit that it had. However, on
the assumption that an appeal will lapse if the record is not lodged
within a reasonable
time, in the absence of facts indicating that the
delay was unreasonable in the circumstances of the present case I do
not think
it can be said that this appeal has lapsed. The
respondent’s counsel submitted further that the delay in pursuing
the appeal
is a consideration that ought in any event to be borne in
mind in deciding whether to interfere with the sentence and I have
done
so.
[5] The respondent also applied to place before us
further evidence that was said to be relevant to sentence. The
evidence was contained
in affidavits deposed to by Mrs Classen (the
respondent’s aunt referred to in paragraph 4(f) of the order made
by the trial court)
and a senior horticulturist employed by the
Ekurhuleni Metropolitan Municipality (which is where the respondent
performed the community
service referred to in paragraph 4(e) of that
order).
[6]
Section 322(2)
of the
Criminal Procedure Act
provides
that upon an appeal against sentence the court of appeal may
confirm the sentence or it may delete or amend the sentence and
impose
‘such punishment as ought to have been imposed at the
trial’. It has been held that it is implicit in the powers
conferred
upon a court of appeal that it may take account only of
circumstances that existed at the time the trial court imposed its
sentence
(
R v Verster
1952 (2) SA 231
(A) at 236 A-D;
R v
Hobson
1953 (4) SA 464
(A) at 466 A-B;
S v Marx
1992 (2)
SACR 567
(A) at 573 i-j) but it has been suggested that exceptional
circumstances might permit a departure from that rule (
S v Marx
1989 (1) SA 222
(A) at 226C). I have assumed that this court may
indeed admit further evidence in exceptional circumstances, bearing
in mind particularly
that a court is bound to ensure that every
accused is given a fair trial as provided for in
s 35
(3) of the Bill
of Rights. In the present case no such circumstances exist for the
evidence that is sought to be adduced does
not take the matter
further and its exclusion cannot prejudice the respondent. To the
extent that the evidence is admissible at
all it constitutes no more
than confirmation that the respondent has thus far observed all the
terms of the sentence that the trial
court imposed and that he is a
person who is ordinarily polite and well-behaved. We would in any
event assume that the respondent
is complying with the terms of his
sentence (if that were to be relevant) and the respondent’s
character was in any event established
before the trial court. The
evidence accordingly adds nothing material and no purpose is served
by admitting it.
[7] At the time the offences were committed the
respondent (who was then 30 years old) was a lodger at the home of Mr
and Mrs Ferreira.
The complainant (who was about fifteen years older
than the respondent) and her husband also lodged on the premises. The
respondent
lived in the main house together with Mr and Mrs Ferreira
and the complainant and her husband lived in a separate cottage.
Contact
between the respondent and the complainant had been limited
to an occasional exchange of greetings. The offences were committed

between approximately 20h30 and 21h00 on 5 November 1999 while the
complainant’s husband was at work and the complainant was
alone in
the cottage.
[8] The circumstances in which the offences were
committed are summarised in the trial court’s chronological
narrative of the
evidence. All the material evidence dealt with in
that narrative was accepted by the trial court and none of its
findings of fact
were placed in issue before us. The trial court’s
narrative, appropriately adapted, and abridged where necessary,
provides a
convenient means for setting out the material facts
(stylistic adaptations have also been made where it was considered to
be appropriate):
At about 20:30 on 5 November 1999 Mr and Mrs Ferreira
set out from home on an outing that they had planned earlier that
week.
The respondent, who was almost in the position of a member of
the family and often accompanied the family when they went out,
elected not to accompany them.
B.F., the teenage son of Mr and Mrs Ferreira, remained
at home for a while after his parents had left. He came across the
respondent
in the main house. The respondent was drunk and was
pouring himself more liquor (which B. thought might be brandy,
whisky or
beer). The respondent asked B. whether the complainant’s
husband was with her. B. told the respondent that he did not know

and soon thereafter went out himself. The only people left on the
premises were the accused and the complainant.
Soon after B. left the complainant heard a knocking on
one of her windows. She went to it and saw the respondent outside
with
a beer can in one hand and a brown 750 ml bottle - which
she thought contained liquor - in the other. He was standing outside

her door. To her surprise - as they did not ordinarily communicate
with one another - he asked her if she was all right. She
replied
that she was and she moved away from the window.
4. A very short while later the respondent again rapped
on the window. The complainant went to the window and the respondent
asked
her whether she was lonely. She was irritated by his return and
replied curtly that she was fine and that she was in bed. She
returned
to her bed, switched off the light, and dozed off.
5. Some time later (she could not say what time had
elapsed but it was probably no more than a few minutes) she woke to
find the
respondent in her room, crouching beside her bed.
6. The complainant screamed, whereupon the respondent
pounced onto the bed, pulled aside the duvet that was covering the
complainant,
and hit her in the face, at the same time saying "Shut
up, you bitch".
7. The respondent then forced the complainant’s legs
apart. She was dressed only in a long T-shirt and wore no underwear.
The
respondent was wearing a T-shirt and shorts. The respondent
overpowered the complainant and when she tried to scratch him with
her fingernails he held her down with one hand and again hit her in
the face with the other.
8. The respondent then tried to penetrate the
complainant sexually but his penis was not sufficiently erect, so he
pushed one of
her legs up behind her head and then succeeded in
penetrating her vagina. He had only a semi-erection and struggled to
do so.
9. The respondent then asked "Where is the butter?"
and extracted his penis and dragged the complainant by her hair to

the kitchen area (according to Mrs Ferreira the respondent had been
in the cottage before the complainant moved in and would thus
have
known its layout).
10. In the kitchen the respondent exposed his penis and
ordered the complainant twice to put butter on it. She applied
margarine
to his penis as she was ordered to do. He had her in his
control all the time as he was holding her by her hair and pulling
her
about by it. He then ordered her to spread margarine on her
vagina and again she did as she was ordered.
11. The respondent’s manner of speech was abnormal.
The complainant said that he was speaking slowly and in a tone that
made her
cringe. The respondent’s usual language was Afrikaans but
whenever he spoke to the complainant that night he did so in English

(she was English-speaking).
12. Still pulling the complainant by her hair the
respondent then dragged her to the adjoining bathroom where he pushed
her over
the bath and penetrated her anally. That caused pain to the
complainant and she screamed again, whereupon the respondent hit her

hard on one of her ears.
13. The complainant felt a bowel movement commencing and
begged to use the toilet. The respondent appeared to comprehend her
request
because - still pulling her by the hair - he dragged her from
the bath and pushed her onto the toilet. However the complainant had

lost control of her bowels and defecated on the floor on her way to
the toilet and then again in the toilet.
14. While the complainant sat on the toilet the
respondent manoeuvred her head by pulling hard at her hair and put
his penis into
her mouth causing the complainant almost to choke.
15. The respondent then pulled the complainant back to
the bedroom, pushed her onto the bed, and penetrated her vagina with
his
penis.
16. Again the complainant screamed, whereupon the
respondent put his hand into her mouth, with his fingers behind her
teeth, and
pulled her jaw. The complainant bit his hand and the
respondent in turn bit her breast. The respondent then altered his
position,
withdrew his penis, and penetrated the complainant yet
again. On that occasion he pinned her arm to her chest and she felt
as if
she was suffocating.
17. All the incidents of penetration seem to have been
of very short duration. On one occasion, while he was penetrating
her, the
respondent asked the complainant whether she liked what he
was doing and she smelt liquor on his breath.
18. After the third act of penetration the respondent
shifted upwards and the complainant attempted to fight back. She
tried to
scratch him and she grabbed his penis and testicles as he
knelt on the bed. She twisted or grabbed them forcibly with the
obvious
intent to cause him pain but he showed no signs of pain –
in fact he did not react at all. The complainant said that he made no

attempt to stop her and it almost appeared that he was enjoying it.
19. Then - and for no apparent reason –the respondent
toppled off the bed onto the floor. The respondent sat on the floor
with
his head between his hands and twice said "The bitches,
tell them I love them". He then moved to the single step between

the bedroom and the sitting room where he sat - his head between his
hands - muttering something to himself in Afrikaans that the

complainant did not understand.
20. The complainant noted a complete change of attitude
- from aggression and control to passivity and apparent confusion.
She seized
the opportunity to move, as calmly and unobtrusively as
possible, past the respondent towards the door. The respondent made
no
attempt to stop her.
21. The complainant opened the door leading outside and
went to the gate that opened onto the street. Meanwhile the
respondent had
followed her. At the gate he fell against her. She
moved away and he fell to one side.
22. The complainant ran to a nearby house. It was then
shortly after 21:00. Injured, half-dressed, and highly upset, she
reported
that she had been raped. Assistance was summoned from
various quarters. A traffic officer was one of the first to arrive.
He went
to the Ferreiras' home, where the door was opened by B.F. who
must just have arrived home. B. found the respondent in the house

still noticeably drunk, and talking what seemed to him to be drunken
nonsense. He said to B. words to the effect "Vlieënde

pierings, vlieënde pierings, kyk hoe lyk ek nou", and B.
saw marks on the accused's body. He was at this point dressed
only in
shorts.
[9] Two completed acts of rape were
found to have been committed, which brought the matter within the
terms of
Part I
of Schedule 2
to the Criminal Law Amendment
Act No 105 of 1997 (potentially attracting a prescribed sentence of
life imprisonment). Had the respondent's
conduct constituted only
one act of rape the matter would have fallen within the terms of Part
III of Schedule 2, attracting a
potential minimum sentence of ten
years’ imprisonment. I
t is not necessary to
consider whether the trial court was correct in that conclusion,
(even if it was open to us to do so, bearing
in mind that the
respondent has not appealed against his convictions), and I expressly
refrain from doing so, for the trial court
found that there were
substantial and compelling circumstances that justified the
imposition of a lesser sentence than the minimum
sentences prescribed
by the Act and that finding has not been placed in issue by the
State. The trial court was thus at large to
impose the sentence that
was appropriate on a conspectus of all the facts and it was not
material whether those facts strictly
fell within Part I or within
Part III of the Schedule.
[10] It is almost otiose to repeat what was said by this
court in
S v Zinn
1969 (2) SA 537
(A) at 540G – in
approaching the question of sentence a court must consider ‘the
triad consisting of the crime, the offender
and the interests of
society’ – and in
S v Rabie
1975 (4) SA 855
(A) at 862G-H
– ‘punishment should fit the criminal as well as the crime, be
fair to society, and be blended with a measure
of mercy according to
the circumstances’. In
Rabie’s
case at 862A-B Holmes JA
reiterated that ‘the main purposes of punishment are deterrent,
preventive, reformative and retributive’.
[11] While it was observed in
S v Karg
1961 (1)
SA 231
(A) at 236A that the retributive aspect of punishment has
tended to yield ground to the aspects of prevention and correction,
more
recently this court said the following in
S v Nkambule
1993
(1) SACR 136
(A) at 147c-e:
‘Retribusie
moet nie uit die oog verloor word nie. Retribusie het nie ‘n vaste
plek laag op die rangorder van strafoorwegings
nie. Sy oorwegingskrag
hang van die omstandighede af.
R v Karg
1961 (1) SA 231
(A) op
235G-236D bevestig dit … Niemand is geneë om strafoplegging
aan die hand daarvan te motiveer nie omdat dit die indruk
van ‘n
oog-vir-oog benadering skep. Ek het vantevore in
S v Mafu
1992
(2) SASV 494 (A) 497 gepoog om vergelding in sy juiste perspektief te
stel. Dit is nie ‘n oorweging wat in isolasie staan
nie maar wat in
samehang met die faktor deur
Nigel Walker
‘denunciation’
(dit is ‘to show society’s abhorrence’ : sien
Grosman
a
w op 23) genoem, gesien word. En hoewel dikwels reeds gesê is
dat retribusie sy belang verloor het, het hierdie Hof dit
reeds by
herhaling as deurslaggewend by die oplegging van bepaalde
doodvonnisse gegee. Sien bv
S v Nkwanyana and Others
[1990] ZASCA 95
;
1990 (4)
SA 735
(A) op 749C-D.’
And in
S v Mhlakaza and Another
1997 (1) SACR 515
(SCA) at 519d-e:
‘
Given the current
levels of violence and serious crimes in this country, it seems
proper that, in sentencing especially such crimes,
the emphasis
should be on retribution and deterrence (cf Windlesham ‘
Life
Sentences: The Paradox of Indeterminacy’
[1989]
Crim LR
at 244, 251).
Retribution may
even be decisive (
S
v Nkwanyana and Others
[1990] ZASCA 95
;
1990 (4) SA 735
(A)
at 749C-D).’
And earlier in
S v di Blasi
1996 (1) SACR 1
(A)
at 10f-g:
‘
The requirements of
society demand that a premeditated, callous murder such as the
present should not be punished too leniently
lest the administration
of justice be brought into disrepute. The punishment should not only
reflect the shock and indignation
of interested persons and of the
community at large and so serve as a just retribution for the crime
but should also deter others
from similar conduct.’
[12] What appears from those cases is that in our law
retribution and deterrence are proper purposes of punishment and they
must
be accorded due weight in any sentence that is imposed. Each of
the elements of punishment is not required to be accorded equal

weight, but instead proper weight must be accorded to each according
to the circumstances. Serious crimes will usually require
that
retribution and deterrence should come to the fore and that the
rehabilitation of the offender will consequently play a relatively

smaller role. Moreover, as pointed out in
S v Malgas
2001 (2)
SA 1222
(SCA) at 1236E, where a court finds that it is not bound to
impose a prescribed sentence ‘the sentence to be imposed in lieu of

the prescribed sentence should be assessed paying due regard to the
bench mark which the Legislature has provided’.
[13] The sentence that was imposed by the trial court –
and the reasons that were given for doing so – all point to those
considerations
having been given little weight. Dealing with the
four aims of punishment the learned judge concluded that none, except
retribution,
would be served by a sentence of direct imprisonment.
After noting that retribution (the proper meaning of which is
discussed in
Terblanche
The Guide to Sentencing in South Africa,
esp para 8.6) is a legitimate aim of punishment the learned judge
went on to say
‘…
but it is in my
view also a worthless and perhaps primitive objective if it leaves
the offender unrehabilitated, and society as
a result in danger on
his release from prison. Society’s interests are better served by
the rehabilitation of the offender, if
such be possible …’
Dealing with the element of deterrence the learned judge
said that she
‘…
strongly doubt[ed]
that a sentence of imprisonment, imposed in this present matter, will
convey the message to those of the general
public who drink heavily,
that they will be imprisoned if they commit rape while heavily
intoxicated, for the simple reason that
most of such people, like the
accused when sober, simply cannot conceive of themselves performing
such an act’.
As for the deterrence of the accused himself the learned
judge expressed ‘similar doubts about such a result occurring from
a
sentence of direct imprisonment’, for she was of the view that
unless the respondent was cured of his drinking problem he might
well
offend again when he was released from prison.
[14] The sentiments expressed by the learned judge were
translated into a sentence that was directed towards curing the
respondent
of his drinking problem, while the grave crimes that he
committed faded far into the background. In my view the learned judge
was
materially misdirected in the approach that she took. I have
pointed out that in the case of serious crimes society's sense of
outrage and the deterrence of the offender and other potential
offenders deserve considerable weight. Amongst the permissible
sentencing
options that the Legislature has made available to the
courts, imprisonment is pre-eminently designed to fulfil those
purposes
and I do not think it is open to a court to dismiss it
perfunctorily, as the trial court was inclined to do. The result in
the
present case was that the sentence imposed was startlingly
inappropriate and the misdirection allows this court to reconsider
the
sentence.
[15] The appellant committed a deplorable offence. He
subjected the complainant to extreme humiliation and degradation. Her
uncontested
evidence as to the effect of the assault on her was:
‘
Well, I had no confidence in myself. I have not been
able to work. I have not been able to look for work, I could not
bring myself
to. In the first few weeks after it if I went outside I
wore dark glasses. I wore this skirt that I am wearing today. I
hardly
go anywhere without it because it covers me up. I did have a
breakdown within the Lynnmed. I could only stay in for a week because

our medical aid, we did not have enough money on our medical aid. I
have been on Prozac and I have been on Urbanol. I had to give
those
up because our medical aid ran out towards the end of the year. It
has affected my sex life with my husband. It was at least
five months
before we had any sexual relationship after this and at the moment it
is about nil because I just get all uptight and
everything when he
comes near me. I had flashbacks. When my husband was having to work
the shifts that he started that night I
was lying in bed with every
light in the flat on with all my clothes on, with three kitchen
knives and my husband's gun in the
bed. That is how badly I felt. I
was a wreck.’
[16] In
S
v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) at
344J-345B this court said the following:
‘
Rape is a very
serious offence, constituting as it does a humiliating, degrading and
brutal invasion of the privacy, the dignity
and the person of the
victim. The rights to dignity, to privacy and the integrity of every
person are basic to the ethos of the
Constitution and to any
defensible civilisation.
Women in this country are entitled to the protection of
these rights. They have a legitimate claim to walk peacefully on the
streets,
to enjoy their shopping and their entertainment, to go and
come from work, and to enjoy the peace and tranquillity of their
homes
without the fear, the apprehension and the insecurity which
constantly diminishes the quality and enjoyment of their lives.
The Courts are under a duty to send a clear message to
the accused, to other potential rapists and to the community: We are
determined
to protect the equality, dignity and freedom of all women,
and we shall show no mercy to those who seek to invade those rights.'
[17] No doubt the court did not intend to suggest that
the quality of mercy should be altogether overlooked – for it is an
intrinsic
element of civilised justice – but rather to emphasise
that retribution and deterrence will come to the fore in relation to
such
crimes.
[18] The personal circumstances of the respondent were
set out fully in the judgment of the trial court and I do not intend
to do
more than summarise the principal features. The respondent is
one of a number of siblings who was brought up in modest
circumstances.
His upbringing was uneventful except that he has a
relatively low IQ and experienced learning difficulties, with the
result that
he has a negative self-image and came into conflict with
his mother. After completing school he spent two years in the army,
which
was at that time being used to quell civil unrest, and he is
said to have suffered emotionally as a result. While he was in the

army the respondent began to drink heavily. After leaving the army
the respondent went through an unsettled period until he commenced

employment as a spray-painter and he remained in that employment
until his arrest. He had a short and unsuccessful marriage.
[19] The respondent was a regular abuser of alcohol and
would often have no recall of what had happened while he was
intoxicated.
On one occasion he found himself in a police cell when
he recovered his sobriety. On another occasion he found that he had
been
injured. At the time he committed the offences he was severely
intoxicated, which constituted the 'substantial and compelling
circumstances'
that were found to exist by the trial court. But while
his state of intoxication is also a consideration to be taken into
account
in determining a proper sentence it is not one that can be
permitted to obscure the gravity of the crimes.
[20] In my view the offences, taken together, in the
circumstances warranted a sentence of twelve years’ imprisonment. I
have
taken into account, however, that the respondent was imprisoned
for twenty-one months while awaiting trial, and that he has already

served a substantial portion of the sentence of correctional
supervision that was imposed by the trial court. With those
considerations
in mind in my view the appropriate sentence to be
served by the respondent at this stage is imprisonment for eight
years.
[21] The appeal is upheld. The sentence imposed by the
trial court is set aside and the following sentence is substituted:
‘
The accused is sentenced to imprisonment for eight
years.’
_____________
NUGENT JA
STREICHER JA)
SOUTHWOOD AJA)
VAN HEERDEN AJA) CONCUR
MOTATA AJA)