About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1994
>>
[1994] ZASCA 150
|
|
S v Davids (674/93) [1994] ZASCA 150 (8 November 1994)
SAFLII Note:
Certain personal/private details of parties or witnesses have
been redacted from this document in compliance with the law and
SAFLII
Policy
CG
CASE
NUMBER: 674/93
IN THE
SUPREME COURT OF SOUTH AFRICA
(APPELLATE
DIVISION)
In the
matter between:
MYNARDT
JOHN MORRIS DAVIDS
Appellant
and
THE
STATE
Respondent
CORAM:
NESTADT, VAN DEN HEEVER JJA et NICHOLAS AJA
HEARD
ON:
19 SEPTEMBER 1994
DELIVERED
ON:
8 NOVEMBER 1994
J U D G
M E N T
VAN DEN
HEEVER JA
2
I have
read the judgment of Nicholas AJA, and wish to add the
following
to his summary of facts:
The group
approached by appellant were street children. He asked
them
"maar
wat soek julle dan hierso, moet julle dan nie by die
huis
gewees het nie, toe se die spannetjie vir my, die
klonges,
nee hulle loop maar hier in die rondte, want hulle
gaan nie
huis toe nie, want hulle kry pak by die huis, want
hulle ma
en hulle pa bly dronk".
The
oldest of the group was M.. Erica's older sister, Ma.
aged about 9, was the only other girl. When M. told appellant he
could provide no woman for him, appellant said that Ma. would do.
The boys objected that she was too young. Appellant then offered to
take them home by bakkie. Instead, he drove to the lonely spot where
he parked, and first called Ma. to him. She however jumped out of the
cab. Appellant then called E.. She went, because
"M.
het vir haar gesê van die geld ...
Toe het sy seker bly
geraak oor die geld, toe het sy gegaan".
3
When
be dropped off the children after enjoining them to silence, he
promised that he would return to that same place the next evening
to
bring them blankets and food.
I agree
that decided cases on sentence provide guidelines, not
straight
jackets. I however disagree, with respect, that the magistrate
misdirected himself in looking to
S v E
1979 (3) SA 973
(A) for
guidance. There is no
indication that he was not fully aware that the
facts
in that matter differ in many respects from those he was dealing
with. The principle
enunciated in the passage quoted from that judgment
is
clear. It has not been invalidated by the legislative introduction of
correctional supervision
as a sentencing option, nor by the later decision
of
this court in
S v R
1993 (1) SA 476
(A), where the facts differed and
the
complainant was almost twice as old as E.. Children are
vulnerable
to abuse, and the younger they are, the more vulnerable they
are.
They are usually abused by those who think they can get away with
it,
and all too often do. Even where an offence is brought to light, our
4
adversarial
system often results in the courts failing the victims. Had
appellant
(presumably confident that he could bribe the impoverished
children to silence) not taken the whole group with him, and had not,
as
a result, one of the
boys been able to give good evidence of the events of that evening,
appellant would indeed have got away with
it. M.
was found to be as incompetent to testify as E.. It would probably
have taken very little, even had they been rated capable of
testifying, for
appellant's attorney to show them up as unreliable witnesses.
Appellant's
conduct in my view was sufficiently reprehensible to
fall within the category of offences calling for a sentence both
reflecting
the court's
strong disapproval and hopefully acting as a deterrent to
others minded to satisfy their carnal desires with helpless children.
His
victim was doubly vulnerable. Not only was she very young,
but she
had neither a safe haven
to return to nor any of the armour caring parents
try to provide for their children. She was perhaps chosen for that
very
reason: sexually
attractive she certainly was not. Appellant exhibited no
5
genuine
remorse. He protested (untruthfully) to the end, that though he
was
after sexual satisfaction he did no more than hug the child and kiss
her neck. Genuine contrition can only come from an
appreciation and acknowledgement of the extent of one's error. There
is no
suggestion
that
he suffers from any psychological flaw to deflect the obvious
inference
that he chose a street urchin because he thought he could get
away
with it. The worst of it is that he did not care that buying her
services
from M. as though she were a prostitute in the hands of her pimp,
constituted corruption of the whole group of children.
In
my view for the very reason that correctional supervision does
not
contain a denunciatory element, a sentence of only correctional
supervision would not be
adequate here. The offence was pre-planned.
Appellant
had sufficient time for reflection. And one needs no evidence
of
formal statistics to persuade that abuse of children is rife. Hardly
a
newspaper appears but carries some report of malpractices
with or
against the vulnerable
young. The magistrate was correct in regarding
6
the
offence as serious and the interests of society as requiring a severe
sentence. However, he
does not appear to have given sufficient regard
to the third leg of the accepted triad relevant to the determination
of what
is appropriate.
In the light of the mitigating factors set out in the other
judgment,
of which the most important is that appellant had an
unblemished record, the sentence imposed was unduly severe despite
the
fact that appellant displayed no remorse. In my view the
court's disapproval of appellant's conduct may be sufficiently voiced
by
combining effective
incarceration in terms of sec 276(l)(i) of the
Criminal Procedure Act with suspended imprisonment. At the same time
such an order would put the appellant's future in his own hands in
greater
measure than the
magistrate did.
The
appeal is allowed. The sentence imposed by the magistrate is
set aside and replaced with the following:
"1.
Beskuldigde word gevonnis tot 3 jaar gevangenisstraf
ingevolge a 276(l)(i) van Wet 51 van 1977.
2.
Daarbenewens word beskuldigde gevonnis tot 2 jaar
7
gevangenisstraf
opgeskort vir 5 jaar op voorwaarde
dat
hy nie skulig bevind word aan verkragting of poging tot verkragting
of onsedelike aanranding
gepleeg
gedurende die tydperk van opskorting nie."
L VAN DEN
HEEVER JA
CONCUR:
NESTADT JA)
J U D G M
E N T
NICHOLAS
AJA
:
This is an
appeal against sentence. The appellant, Maynard
Davids,
was charged in the regional court sitting at the Strand with the
attempted rape of E.W., an 8-year old girl, on 23 October
1991. He pleaded not guilty. The magistrate convicted him of
indecent
assault, and
sentenced him to imprisonment for 6 years, of which 2
years were suspended for a period of 5 years on condition that he was
not
convicted of rape, attempted rape, or indecent assault committed
during the period of suspension. His appeal against the conviction
and
sentence was
dismissed by the Cape Provincial Division, as was his
3
application
for leave to appeal further to this court. On a petition to the
Chief
Justice however leave was granted to appeal against the sentence
"oil
the basis of the facts found by the trial court".
In
summary those facts were the following. On the evening of 23
October
1991 a group of young people, which included E.W.,
were
walking in a street in the Strand. Davids, who was driving a
bakkie,
stopped and offered one of the group R 10 to get a woman for
him.
The group got onto the bakkie and he drove to a lonely spot near
Sir
Lowrey's Pass where he parked his vehicle.
Everybody
got off the bakkie. The accused took E. with him
into
the cabin of the bakkie, which he locked. After a while the other
children came closer to
see what was going on. Davids was seen to be
4
lying on
top of E., whose dress was up and whose panties were
around
her knees. She was struggling and kicking. The accused's pants
and
underpants were down to his knees. He was moving up and down
on the child. The spectators knocked on the cabin. Davids waved with
his hand, indicating that they should wait. They carried on
knocking
until he climbed off the child. She was crying. Davids pulled up his
pants, and also pulled up E.'s
panties. He told them that they must
not
report to the police. He then drove back to the Strand where he
dropped the children.
In his
judgment, the magistrate said after analysing the evidence:
"Die
Hof kan nie as enigste redelike moontlikheid dit
as
bewese bevind dat die beskuldigde vaginaal met die
klaagster
won verkeer nie. Die moontlikheid bestaan selfs
5
dat
die beskuldigde sy penis tussen die klaagster se bene op
en
af beweeg het. Dit bring gevolglik mee dat die Staat nie
die
misdaad van poging tot verkragting bewys het nie."
The
magistrate found that all the ingredients of indecent assault had
been proved and he
convicted Davids accordingly.
In
the course of his judgment on sentence the magistrate made the
following remarks - the
numbers have been added by me for convenience
of reference:
"
(1) Daar is geen mediese getuienis dat die kind enige beserings
opgedoen het nie. (2) Dit
moes vir haar 'n ondervinding gewees
het
wat sy seker nooit sal vergeet nie, alleenlik die tyd sal leer. (3)
Sy het die Hof ingekom en in die getuiebank het sy 'n patetiese
houding ingeslaan. (4)
Alhoewel daar nie fisiese skade is wat u
haar
aangedoen het nie, sal die Hof die omstandighede van hierdie voorval
in verrekening moet bring by die oplegging van 'n gepaste
6
straf.
(5)In S v E 1979(3)SA973(A)op978(A-B) worddeui
Corbett
AR soos volg opgemerk:
Die
fisiese skade wat hy haar aangedoen het was, relatief
gesproke,
taamlik gering, maar dit was eerder aan geluk as
aan appellant se goeie oordeel te danke ...
Kinders
moet teen
hierdie soort
optrede beskerm word. Die Hof het 'n plig om
sy afkeuring daarvan ten sterkste uit te spreek en ook om in
so 'n geval 'n vonnis op te lê wat die nodige afskhkwaarde
sal he. Die aard van die misdaad en die belange van die
gemeenskap verg, na my mening, 'n redelik strawwe vonnis.'
I make the
following comments.
(1)
Dr AJ Stals, who was called as a witness by the trial court, said
that he had examined E.
at 2.30 p.m. on 24 October 1991, the day after the occurrence. She
was neglected, dirty and very frightened.
7
There
were no signs of assault or violence. On vaginal examination the
doctor found no sign of
penetration: the hymen and the perineum were
both intact.
I
do not think that the magistrate was here suggesting that E.'s
pathetic showing in the
witness box was a consequence of her treatment
by
the accused. All that it revealed was that she was a very timid
little
girl who was
overawed by the unaccustomed atmosphere in the court
room.
It cannot
be gainsaid that the circumstances of the incident were of
considerable importance in the determination of a proper
sentence.
(5)
I
do not think however that the dicta quoted from the judgment of
Corbett JA could properly
be used to support the conclusion which the
8
magistrate
ultimately reached, namely that a sentence of direct
imprisonment
was imperatively demanded in this case. The dicta were
uttered
with reference to the facts of that case, and it is unsafe and likely
to lead to error to apply
dicta uttered with reference to particular
circumstances
as if they embodied a rule of general application.
Counsel
for the State submitted that there were points of correspondence
between the present case
and
S v E
.
I do not think that that was a useful
exercise.
In
R v Wells
1949(3) SA 83(A) Centlivres JA said at 87-88
that:
"Decided
cases are ... of value not for the facts but for the
principles
of law which they lay down. In this connection I cannot
do
better than quote the remarks of LORD FINLAY in Thomson v Inland
Revenue (1919, SC (HL) 10):
9
'No
enquiry is more idle than one which is devoted to
seeing
how nearly the facts of two cases come together: the
use
of cases is for the propositions of law they contain, and
it
is no use to compare the special facts of one case with the
special
facts of another for the purpose of endeavouring to
ascertain
what conclusion you ought to arrive at in the
second case.'"
Decided
cases dealing with sentence may be of value as providing
guidelines
for the trial court's exercise of discretion (see
S
v S
1977(3)
SA
830(A)) and they sometimes provide useful guidance where they
show
a succession of punishments imposed for a particular type of crime.
(See
R
v Kars
1961(1) SA 231
(A) at 236 G.) But it is an idle exercise
to
try to match the colours of the case at hand and the colours of other
cases with the object of
arriving at an appropriate sentence. "Each case
1
should
be dealt with on its own facts, connected with the crime and the
criminal....
"
(Karg's
case
ubi cit
.)
See
S v Fraser
1987(2) SA 859(A)
at 863 CD.
In
my opinion the magistrate misdirected himself in relying on S
v
E
and this
misdirection led him to impose a sentence which in my
view was
entirely disproportionate. This court is accordingly at large in
regard to sentence.
The
magistrate did not consider correctional supervision as a possible
sentencing option. This was probably because the probation
officer
had stated in the welfare report on Davids -
"Die
oplegging van korrektiewe toesig kan oorweeg word, maar in
die
lig daarvan dat die betrokkene buite die bedieningsgebied van
11
die
korrektiewe kantoor woon, word die vonnisopsie nie oorweeg
nie."
This
objection was however no longer operative when the appeal
was
heard. Counsel for the State then informed this court that the Strand
was now within the
service area of a correctional office. Consequently
the
way is open for such a sentence to be considered in this case.
In
Punishment, Prison and
the Public
(1971),
Sir Rupert Cross said
the following at pp 108-9:
"Writing
in 1922, Sydney and Beatrice Webb said in their
English
Prisons under local Government
We
suspect that it passes the wit of man to contrive
a
prison which shall not be gravely injurious to the
12
minds
of the vast majority of prisoners, if not also to
their
bodies. So far as can be seen at present, the
most
practical and hopeful of 'prison reforms' is to
keep people
out of prison altogether.'
I
am sure there are those who would be disposed to question the first
sentence, especially in the case of comparatively
short
term prisoners; but I doubt whether there are many
who would
wish to quarrel with the second. Even if imprisonment has no
permanent detrimental effect on a
prisoner,
it means loss of employment, temporary, if not
permanent, loss
of wife and family, the risk of
contamination
and impaired ability to get further
employment.
Small wonder then that prison has come to be
regarded as the
sentencer's last resort."
The
learned author referred to various reforms made in England,
mostly
as the outcome of twentieth century legislation, but concluded (at
13
the foot
of 109) that -
"the
fact remain that the provision of further alternatives to
imprisonment is still the
penal reformer's most insistent
demand."
In
South Africa the year 1991 saw a radical shift in penal policy.
To
the list of sentences which might be passed upon a person convicted
of an offence, there was
added by s 41(a) of Act 122 of 1991 a new type
of
sentence called correctional supervision. In the same year the
Prisons
Act
No 8 of 1959 became the
Correctional
Services Act
No 8 of
1959.
And by s 28 of the
Correctional Services
and Supervision Matters
Amendment
Act
, 122 of 1991
("the amending Act") there was inserted
in Act 8 of
1959 a new chapter headed "CORRECTIONAL
14
SUPERVISION"
comprising sections 84, 84A, 84B, 84C, 84D, and 84E. In the leading
case of
S v R
1949(1) SA 476(A), Kriegler AJA made the
following points
inter alia
:
While
it is true that correctional supervision is still an untested
sentencing option, it appears already from the empowering
legislation that it has great
potential (at 487 E).
like
most important feature of the amending Act is the shift of
emphasis
from imprisonment to reform (ct 487 F).
The
law-giver has made a clear distinction between two kinds of
offenders, namely those who must be removed from the
community by imprisonment, and
those who, while deserving of
punishment,
do not require to be removed from the community
15
(488 G).
(4)
The
legislature has unequivocally indicated by the shift of
emphasis
which is apparent from the amending Act as a whole,
that
punishment, reformative but if necessary highly punitive, is not
necessarily or even primarily to be achieved by incarceration
(at
488 G-H).
(5)
Where
the legislature has expressed its wishes so clearly and the
executive
is prepared to provide the necessary administrative
support,
it is the duty of judicial officers to actually adopt the
measures
which have been placed at their disposal. In particular
it
should be realized that appreciable punishment can now be inflicted
without imprisonment, with all its well-known
16
disadvantages
for both the prisoner and the broad community.
The injunction
in point (5) was necessary because the new
sentencing
option has been received by sentencers, not with universal
approval, but frequently with doubts and misgivings, - one judge
indicated that he would have no
truck with "trendy" sentences. The lack |
of
enthusiasm was perhaps not surprising: many of those concerned in
the
administration of criminal justice had acquired a particular mind-set
as a result of years of
habituation to the idea that imprisonment is the
punishment
of choice for serious crime, and it required a basic mental
shift
to regard imprisonment "as the sentencer's last resort".
It
has sometimes been suggested that correctional supervision is a
"soft"
sentencing option. Although different in kind from imprisonment,
17
and
lacking its detrimental and degrading effects, correctional
supervision
is, in the
words of Kriegler AJA, " 'n gevoelige straf". The treatment
of
"probationers"
(who are by definition persons who are subject to
correctional
supervision) is prescribed in s.84 of Act No 8 of 1959:
"
84. Treatment of probationers.-(l) Every probationer shall
be
subject to such monitoring, community service, house arrest,
placement in employment, performance of service, payment of
compensation to the victim and
rehabilitation or other programmes
as may be determined by the
court or the Commissioner or
prescribed
by or under this Act, and to any such other form of
treatment,
control or supervision, including supervision by a
probation
officer, as the Commissioner may determine after
consultation
with the social welfare authority concerned in order
to
realize the objects of correctional supervision."
If the
probationer does not comply with the conditions he may
inter alia
18
be
referred back to the court for trial. Kriegler AJA pointed out (at
487
E-F) that it was
clear that the name 'correctional supervision' did not
merely
describe a sentence, but was a collective name for a wide variety
of
measures of which the single common feature was that they were
applied outside a prison.
At 988J, he referred to the fact that in terms of
s
276A(l)(b) of the
Criminal
Procedure Act
a court
may impose for a
period
corrective supervision of as much as to 3 years. House arrest for
so
long a period would be in itself a heavy punishment. He had pointed
out however at 488 D:
"Dit
staan egter 'n straftoemeter vry om monitering en
inskakeling
by 'n program van sielkundige behandeling vir
19
drie jaar voor te skryf
en huisarres van 'n korter duur."
Although
point (3) refers to "the kinds of offenders" this does not
of
course mean that the
sentencer must look only at the the offender's make-
up
to the exclusion of the other elements of the well-known triad,
namely, the crime and the
interests of society. All three elements must
be considered.
In
some cases the courts have stated that "emphatic denunciation"
is an important function
of punishment. (See
Burchell
and Hunt. South
African
Criminal Law and Procedure
2nd ed Vol
I.
at 69-70). Such a
case was
S
v E
from which the
magistrate quoted, and the magistrate
himself said in his
judgment on sentence -
20
"Tweedens
moet die Hof ook kyk na die gemeenskapsbelang. Die
Hof
moet deur die vonnis wat hy ople aan die gemeenskap toon
met
welke mate van afsku 'n misdaad soos hierdie bejeen word."
In
its nature a sentence of correctional supervision is not
denunciatory. It does not
follow however that such a sentence is
necessary
inappropriate because the case is one which excites the moral
indignation of the community. The question to be answered
is a wider
one: whether the particular offender should, having regard to his
personal circumstances, the nature of his crime and the interests of
society, be removed from the community.
The
magistrate referred in his judgment on sentence to the
following
mitigating factors. Davids had no previous convictions. He
21
was
37 years old, married, with two children aged 10 and 6, one of
whom
suffered from asthma. Davids had passed standard 4 at school.
He
had been employed as manager of vehicles by and earned R 900 per
month. He had lost his employment as a result of this case,
and was
now working as a taxi
driver and earning R 720 per month. His wife
was working and earning R 970 a month.
In the
welfare report the probation officer stated:
"Uit
die ondersoek blyk dit dat die betrokkene 'n gesonde
gesinslewe
handhaaf, hoewel daar voorheen probleme was rakende
die
betrokkene se sosiale leefwyse.
Daar
kan geen verklaarbare rede vir die betrokkene se misdaad
gevind
word nie, behalwe dat sy drankgebruik 'n rol daarin kon
gespeel
net."
22
This
is not the picture of a man who belongs to the class of
offenders
who must be removed from the community. This the magistrate appears
to have recognized. He stated:
"Die
Hof staan nie onsimpatiek teenoor die aanbeveling van
die
proefbeampte en van u regsverteenwoordiger vir 'n opgeskorte
vonnis
nie. Die Hof is gedagtig daaraan dat ook genade in
gewenste
gevalle betoon moet word. Die Hof is egter die oordeel
toegedaan
dat u eie belange totaal oorbeklemtoon sal word indien
u
nie na die gevangenis gestuur gaan word nie. Die Hof gaan
egter
deels voldoen aan die versoek dat daar 'n gedeelte van die
gevangenisstraf vandag
opgeskort word. Die Hof ag 'n termyn van
direkte
gevangenisstraf as die mees gepaste vorm van vonnis onder
die
omstandighede."
The
reason for that conclusion lay in the magistrate's view that the
offence called for a
sentence which would demonstrate to the community
23
the
degree of repugnance with which the offence was regarded by the
court. In my view however
the offence, serious and reprehensible though
it
was, was not in the circumstances such as to call for the accused's
removal from the community.
In
terms of s 276 A(l) of the
Criminal
Procedure Act
punishment
shall only be
imposed under s 276(l)(h) after a report of a probation
officer
or a correctional official has been placed before the court. The
report which is
contemplated is one which deals
inter
alia
specifically
with the question whether the imposition of correctional
supervision
is appropriate. No such report is so far available. Moreover
the
magistrate's sentence was imposed on 29 June 1992 and in the more
than two years which have
passed since then the whole picture may have
24
changed.
In my view therefore the following order should be made:
I
The
appeal is upheld.
The
sentence imposed by the magistrate is set aside.
The
matter is referred back to the magistrate to impose
sentence
afresh after considering a report submitted in terms
of
s 276 A(l)(a) of the Criminal Procedure Act and any
further evidence relevant to sentence which may be received
by
the trial court.
HC
NICHOLAS
JUDGE OF
APPEAL