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[2002] ZASCA 138
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Rammoko v Director of Public Prosecutions (245/2001) [2002] ZASCA 138; [2002] 4 All SA 731 (SCA); 2003 (1) SACR 200 (SCA) (15 November 2002)

REPUBLIC OF SOUTH AFRICA
IN THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
REPORTABLE
Case number: 245/2001
In
the matter between:
GEORGE
RAMMOKO
Appellant
and
DIRECTOR
OF PUBLIC PROSECUTIONS
Respondent
CORAM
:
HOWIE,
FARLAM and MPATI JJA
HEARD
:
19
SEPTEMBER 2002
DELIVERED
:
15
NOVEMBER 2002
Rape
– minimum sentencing legislation, Act 105 of 1997 – role of
presiding officer in relation to finding of substantial and
compelling
circumstances.
___________________________________________________________________
JUDGMENT
__________________________________________________________________
MPATI
JA:
[1] The appellant appeals against a sentence of life
imprisonment imposed on him for the rape of a 13½ year old
girl. He stood
trial in the regional court sitting at Welkom and was
convicted on 6 April 1999. The rape was perpetrated on 23 September
1998,
almost four months of the minimum sentencing provisions of the
Criminal Law Amendment Act 105 of 1997 (‘the Act’) having come
into force on 1 May 1998. Since the complainant was under the age of
16 years a sentence of imprisonment for life had to be imposed
on the
appellant (s51(1)) unless substantial and compelling circumstances
existed which justified the imposition of a lesser sentence
(s51(3)).
The regional magistrate accordingly committed the appellant for
sentence in the High Court.
[2] On 12 August 1999 Cillie J (in the Orange Free State
Provincial Division), having satisfied himself that the appellant’s
conviction
was in order, confirmed it (s52(2)(b)). No evidence was
led before him and after argument was presented by counsel, both in
mitigation
and aggravation of sentence, Cillie J concluded that no
substantial and compelling circumstances were present. He duly
sentenced
the appellant to imprisonment for life. The learned Judge
subsequently (on 26 November 1999) granted the appellant leave to
appeal
to this Court against the sentence, for the reason that ‘`n
ander Hof tot `n ander bevinding , ten aansien van die vraag of the
sogenaamde wesenlike en dringende omstandighede in die onderhawige
geval aanwesig is, kan kom as dít waartoe ekself gekom
het’.
[3] In
considering the question of the existence or otherwise of substantial
and compelling circumstances Cillie J referred to his
earlier
judgment in
S v Shongwe
1999 (2) SACR 220
(O), in which he
approved as being correct the interpretation given by Stegmann J to
the concept of ‘substantial and compelling’
circumstances in
S
v Mofokeng
1999 (1) SACR 502
(W). In the latter case the learned
Judge held that ‘for substantial and compelling circumstances to be
found, the facts of the
particular case must present some
circumstance that is so exceptional in its nature, and that so
obviously exposes the injustice
of the statutorily prescribed
sentence in the particular case, that it can rightly be described
“compelling” the conclusion that
the imposition of a lesser
sentence than that prescribed by Parliament is justified’ (at 523
c-d). Cillie J accordingly said,
in the present matter, ‘dat
wesenlike en dwingende omstandighede darem iets meer moet wees as die
gewone versagtende omstandighede
en werklik iets moet wees wat die
oplegging van `n mindere vonnis inderdaad noodsaak ten einde `n onreg
teenoor die beskuldigde te
voorkom’. After a brief reference to
the appellant’s personal circumstances and the circumstances under
which the rape was committed
the learned Judge said:
‘Ek meen
nie dat hierdie `n geval is waar gesê kan word dat elke
regdenkende en ervare vonnisoplegger die oplegging van die
voorgeskrewe vonnis as `n skokkende onreg teenoor die beskuldigde sal
aanvoel nie.’
In this
regard Cillie J had in mind what he said in
S v Shongwe
,
supra
, that ‘indien die wetlik voorgeskrewe vonnis sodanig
verskil van die vonnis wat andersins deur `n ervare en gebalanseerde
vonnisoplegger
as gepas beskou sou word dat die oplegging van die
wetlik voorgeskrewe vonnis tot `n skokkende onreg teenoor die
beskuldigde sou
lei daardie feit wel wesenlik en dwingend die
nie-oplegging van die wetlik voorgeskrewe vonnis regverdig’.
[4] In
S
v Malgas
[2000] ZASCA 156
;
2001 (1) SA 1222
(SCA);
2001 (1) SACR 469
(SCA), this
Court held that the imposition of the prescribed sentence need not
amount to a shocking injustice (‘skokkende onreg’)
before a
departure from it is justified. That such a sentence would be an
injustice is enough (para [23]). The suggestion that
for
circumstances to qualify as substantial and compelling they must be
exceptional was also rejected (paras [10], [30] and [31]).
It
follows that the interpretation given by Cillie J to the concept
‘substantial and compelling’ circumstances is erroneous
and
amounts to a misdirection. This Court is thus at large to consider
the question of sentence afresh.
[5] The
regional magistrate’s factual findings were not challenged on
appeal. They are fairly straight forward. The complainant
lived
with her grandfather in Lusaka Park, Theunissen. After she had
returned from school (she was in Grade 4) during the afternoon
of 23
September 1998 she played outside her home with two young boys and a
young girl. She was then called by the appellant, whose
house was
right behind her home. He was known to her. When she entered his
house the appellant closed the door. There was no-one
else inside.
He grabbed hold of her hands and took off his leather belt from his
waist while ordering her not to scream. Because
she was shocked she
screamed, whereupon he struck her a number of times on her back with
the belt. He pushed her onto a bed so that
she lay on her back. As
she was still screaming he covered her mouth with one hand and with
the other removed her panties completely.
She was wearing a skirt
and a blouse. The appellant opened the zip of his trousers and
thereafter had full sexual intercourse with
her. After he had done
his deed she put on her panties and went home. When her grandfather
returned from work later that afternoon
she reported to him that the
appellant had raped her. Her grandfather requested a female visiting
family friend to examine her.
The family friend obliged and
confirmed to him that there was semen on the complainant’s panties.
She did not, however, conduct
a physical examination on the person
of the complainant. A complaint was thereafter made to the police.
[6] On 24
September 1998 the complainant was examined by Dr Hendrik Willem
Storm, who testified that the complainant had at least
five weals on
her back as though she had been struck with a sjambok. Because of
her age he examined her superficially. He did not
examine her
internally, but found that she had a bruise (‘velbars’) on her
genitalia, externally. From this he concluded that
it was probable
that there had been penetration. He also found that the hymen had
been perforated previously and concluded from
this that the
complainant had been penetrated before, but not within the two weeks
preceding his examination of her. When it was
put to him that the
complainant had testified that she bled from her genitalia as a
result of the rape Dr Storm said that she would
have bled from the
bruise.
[7] Except
for the regional magistrate’s observation that the complainant ‘`n
skraalgeboude en anatomies onderontwikkelde dogter
is’ and that she
was ‘nog pure kind in houding en in voorkoms’, as well as the
complainant’s testimony that she felt pain
inside her vagina during
the rape, there was no further investigation pertaining to the
after-effects the ordeal has had or will
have on the complainant in
the future.
[8] As to
the appellant, he was 34 years old at the time of the trial. He
testified that he lived with the complainant’s maternal
aunt as his
wife, but that they had separated at the time of the commission of
the offence. He had no fixed employment. He had
progressed only to
standard one at school. He had one previous conviction of theft for
which he was sentenced, in 1991, to a fine
of R100 or two months’
imprisonment.
[9] From a
perusal of the record in this matter one cannot but conclude that the
case for the State was presented casually, both in
the regional court
and in the court
a quo
. As I have already stated no evidence
was led before Cillie J. The evidence reveals that following the
rape the complainant’s
grandfather sent the complainant away to
live with her mother. Her mother was called as a witness but was
never asked how and to
what extent the complainant had been affected
by the rape. Dr Storm was never invited to comment on the likely
effect the ordeal
will have on the complainant as she grew older. As
to her post-rape condition the sum total of the complainant’s
evidence is the
following:
‘Q [H]ierdie voorval wat die beskuldigde of dit wat die beskuldigde
aan jou gedoen het. Hoe ervaar jy dit, ek sien jy het netnou
begin
huil, hoe ervaar jy dit, kan jy vir ons dit in woorde uitdruk, is dit
reg wat hy gedoen het?
A Nee, dit is nie reg nie.
Q Maar, kom ek vra vir jou so, slaap jy gemaklik, beweeg jy maklik
tussen maatjies, seuns na hierdie voorval of hoe ervaar jy dit,
of
gaan jy normal voort?
A Ek slaap normaal, ek kon nog met my vriende kommunikeer.’
[10] Apart
from the fact that these are multiple questions directed at a 14 year
old girl (she was 14 at the time of the trial) the
answers illicited
are not surprising. What more could have been expected?
[11] Prior
to the Act coming into force the High Courts were free, in the
exercise of their discretion, to impose sentences of life
imprisonment. But the very fact that the 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 (here rape) (
Malgas, supra,
para [7]).
‘[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, standardized, 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.’
(Per Marais
JA in
Malgas
, para [8].)
[12] For
the rape of a girl under the age of 16 years (as in the present case)
the prescribed sentence is life imprisonment. However,
the court’s
discretion to impose a different sentence has not been eliminated by
the Act, but in the absence of weighty justification
the prescribed
sentence must be imposed (
Malgas
, para [25]). In the matter
of
The State v Boesman Mahomotsa
(case number 85/2001, 31 May
2002, yet to be reported), a case where the respondent, a 23 year old
man, had raped two 15 year old
girls, I had occasion to say the
following:
‘
[17]
The
rapes that we are concerned with here, though very serious, cannot be
classified as falling within the worst category of rape.
Although
what appeared to be a firearm was used to threaten the complainant in
the first count and a knife in the second, no serious
violence was
perpetrated against them. Except for a bruise to the second
complainant’s genitalia no subsequently visible injuries
were
inflicted on them. According to the probation officer – she
interviewed both complainants – they do not suffer from any
after-effects following their ordeals. I am sceptical of that but
the fact remains that there is no positive evidence to the contrary.

These factors need to be taken into account in the process of
considering whether substantial and compelling circumstances are
present
justifying a departure from the prescribed sentence.’
What
emerges from this is that the fact that a victim may be under the age
of 16 years is not the only criterion necessary for the
imposition of
a sentence of life imprisonment. Further in the
Boesman Mahomotsa
case:
‘Even in
cases falling within the categories [of rape] delineated in the Act
there are bound to be differences in the degree of
their seriousness.
There should be no misunderstanding about this: they will all be
serious but some will be more serious than
others and, subject to the
caveat
that follows, it is only right that the differences in
seriousness should receive recognition when it comes to the meting
out of
punishment. As this Court observed in
S v Abrahams
2002
(1) SACR 116
(SCA) “some rapes are worse than others and the life
sentence ordained by the Legislature should be reserved for cases
devoid of
substantial factors compelling the conclusion that such a
sentence is inappropriate and unjust” (para 29).’
The
objective gravity of the crime, therefore, plays a role, indeed an
important role.
[13] Life
imprisonment is the heaviest sentence a person can be legally obliged
to serve. Accordingly, where s51(1) applies, an accused
must not be
subjected to the risk that substantial and compelling circumstances
are, on inadequate evidence, held to be absent.
At the same time the
community is entitled to expect that an offender will not escape life
imprisonment – which has been prescribed
for a very specific
reason – simply because such circumstances are, unwarrantedly, held
to be present. In the present matter
evidence relating to the extent
to which the complainant has been affected by the rape and will be
affected in future is relevant,
and indeed important. Such evidence
could have been led from the complainant’s mother, her school
teacher or a psychologist.
No attempt was made to do so.
[14] And
the placing of this important information before the sentencing court
is not the responsibility of State counsel alone.
The presiding
officer, who must satisfy himself before imposing the prescribed
sentence that no substantial and compelling circumstances
are
present, also bears some responsibility. Van der Walt J, in
S v
Dlamini
2000 (2) SACR 266
(T), correctly sums up the position,
when he says (at 268 d-e):
‘Die Hof
wat vonnis oplê in `n strafsaak neem `n aktiewe rol in die
verhoor en sit nie net passief by waar getuienis gelei
word nie.
Inderdaad bepaal art 186 van die Strafproseswet 51 van 1977 dat die
hof kan op enige stadium van strafregtelike verrigtinge
iemand as `n
getuie by daardie verrigtinge dagvaar of laat dagvaar en die hof moet
`n getuie aldus laat dagvaar indien die getuienis
van so `n getuie
vir die hof blyk noodsaaklik te wees vir die regverdige beregting van
die saak.’
In the
present case nothing prevented the court
a quo
from directing,
for example, that the complainant be interviewed by a psychologist or
other appropriately qualified or trained person
to establish the
effects of the rape on her, present and future.
[15] Although
this Court is at large, by reason of the misdirections mentioned
earlier in this judgment, to consider sentence afresh,
it cannot be
in the interests of justice to do so in this matter in view of what
has been discussed above. It would be proper, in
my view, to remit
the matter to the court
a quo
for reconsideration of the
sentence.
The
following order is made:
1. The
appeal succeeds to the extent that the sentence of life imprisonment
imposed on the appellant is set aside.
2. The
matter is remitted to the court
a quo
for re-consideration of
the question of sentence and to do so in line with what has been set
out above.
…………………...
L MPATI JA
CONCUR:
HOWIE JA)
FARLAM JA)