SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
CASE NO: 350/2003
In the matter between
THE STATE APPELLANT
and
KHEHLANI MVAMVU RESPONDENT
CORAM: MTHIYANE, CLOETE and VAN HEERDEN JJA
HEARD: 9 SEPTEMBER 2004
DELIVERED: 29 SEPTEMBER 2004
Summary: Rape – Appeal by State against sentence– rural and unsophisticated
accused sentenced to an effective 5 years’ imprisonment for the multiple rape (on two
occasions) of his customary law wife – substantial and compelling circumstances found to
exist – sentencing court required to balance all factors relevant to sentencing against
benchmark provided by the Legislature in section 51 of the Criminal Law Amendment
Act 105 of 1997.
________________________________________________________ ___
2
JUDGMENT
MTHIYANE JA:
MTHIYANE JA:
[1] This case highlights the importance of the individualization of punishment1
and the need for the sentencing court properly to balance all the factors relevant
to sentencing against the benchmark provided by the Legislature in respect of
certain serious offences. 2 The State appeals against an effective five-year prison
sentence imposed on the respondent (‘the accused’) for the multiple rape (eight
incidents on two occasions), abduction and assault of his customary law wife, Ms
C.S. (‘the complainant’).
[2] The accused was convicted in the regional court at Knysna on two counts
of rape, one count of abduction and one count of assault. The matter was
thereafter referred to the Cape High Court for sentence in terms of s 52 of the
Criminal Law Amendment Act 105 of 1997 (‘the Act’). The court a quo (Moosa
J) confirmed the convictions and sentenced the accused to 5 years’ and 3 years’
imprisonment respectively on the two rape counts, and to 3 years’ and 3 months’
imprisonment respectively for the abduction and the assault. The sentences were
ordered to run concurrently.
1 S v Toms; S v Bruce 1990 (2) SA 802 (A) at 806 H-I.
2 See s 51 of, read with Schedule 2 to, the Criminal Law Amendment Act 105 of 1997 for a description
of the offences concerned.
3
[3] The State contends that, having regard to the minimum sentence provisions
contained in s 51 of the Act, the sentence imposed on the accused was too
lenient. Sections 51 (1) and 51 (3) ( a) of the Act provide that if a High Court has
convicted a person of an offence referred to in Part I of Schedule 2, it shall
sentence that person to imprisonment for life unless it is satisfied that there are
substantial and compelling circumstances which justify the imposition of a lesser
sentence.3
[4] Before turning to the facts a brief consideration of the background of the
accused and the complainant is necessary for a better understanding of the setting
against which the offences were committed. The accused was born at Qumbu in
the Transkei, where he lived according to the traditions, customs and beliefs of
his tribe. Although he passed grade seven at school he led a simple and
unsophisticated life. In 1995 he entered into a customary marriage with the
complainant whom he had known from childhood. She was about 15 years old at
the time. They had two children: one who died soon after birth and a daughter
who was approximately five years old when the accused was sentenced. In April
1999 their marriage experienced problems which resulted in the complainant
leaving the accused to stay with her brother, Mr S.S.. She assumed that the
marriage had ended, not least because the accused’s uncle had given her
3 See, in this regard, S v Malgas 2001 (1) SACR 469 (SCA) para 25.
4
permission to remove her traditional wedding attire. (The accused’s father was
deceased, having committed suicide some years previously.) The accused on the
other hand regarded the marriage as extant, because the lobolo4 he had paid in
respect of the complainant had not been returned by her family. 5 In addition,
according to the accused, the two families had not met to attempt to reconcile the
couple, as required by customary law. 6 Both of these latter two aspects were
emphasized by the expert witness called by the court, Reverend Ngesi. The
accused also believed that the complainant’s family were the cause of the break-
up of their marriage. The problems in the marriage arose some time after the
accused and the complainant had left Transkei for Knysna, where the accused
was working.
[5] I now turn to consider the facts. On Wednesday 12 May 1999 the accused
and the complainant attended the magistrate’s court at Knysna for the hearing of
a child maintenance complaint and a domestic violence dispute. At the
conclusion of the hearing a domestic violence interdict was issued against the
accused by consent. Upon their return to their respective places of residence the
accused persuaded the complainant to travel with him in the same taxi. When she
4 Lobolo is consideration paid by the bridegroom to the family of the bride before the marriage. It is
similar to a dowry or bride price in a Western marriage, though not quite the same. Bekker Seymour’s
Customary Law 5 ed (1989) 151 describes lobolo as ‘the rock on which the customary marriage is
founded.’
5 Warner A Digest of Native Case Law para 1794 records that if the court grants a decree of divorce in a
customary marriage, an order for the return of lobolo or any portion thereof furnished the woman’s
father is peremptory.
6 According to Warner op cit para 1788, an attempt at reconciliation is an essential preliminary to the
action for divorce at customary law.
5
reached her destination he tried to prevent her from disembarking and begged her
to return to his home. She refused and proceeded to alight from the taxi. He also
disembarked. When she ran away soon after alighting he pursued her and caught
up with her near a neighbour’s house. He began to drag her away and a scuffle
ensued. As he was trying to pull her towards him she clung on to a pole
supporting the neighbour’s boundary fence. Her resistance came to naught as the
pole gave in and was ripped out of the ground. She then broke away from him
and ran into the neighbour’s house but he followed and again accosted her. The
accused ultimately had his way and took her to his home by force. He kept her
there against her will from Wednesday 12 May until Friday 15 May 1999. During
that period he raped her on six occasions. The complainant managed to escape on
Friday 15 May, after the accused had left the house for a while.
[6] The second incident occurred on 29 May 1999. The accused visited the
complainant at her brother’s house. He asked to speak to her but the
complainant’s brother was only prepared to allow him to do so if this took place
in the house. But shortly after the complainant’s brother had left the house (to
fetch his uncle to help him to deal with the accused, who was armed with a
knife), the accused forcibly removed the complainant and dragged her into the
bush to a place near an abandoned abattoir where he raped her twice. On this
occasion he also assaulted the complainant by hitting her twice on her thigh with
a stick.
6
[7] Having regard to the minimum sentence provisions, the judge a quo found
that ‘substantial and compelling circumstances’ justifying the imposition of a
lesser sentence were present as contemplated by the Act. 7 I cannot find any fault
with this conclusion. In the appeal before us the correctness of this finding was
conceded by the State.
[8] In passing sentence the judge a quo took into account the following factors
in aggravation of sentence in relation to the first incident: the fact that the
accused had forced the complainant to accompany him to his home and had held
her captive for two days; that he had raped her on six occasions; that he had
threatened her with a knife and had also threatened to douse her with petrol and
burn her; that the rape took place after the complainant had just come from court,
where she had obtained a domestic violence interdict against him; and that, had it
not been for the fact that the complainant had escaped and reported the matter to
the police, he would in all probability have continued with his conduct.
[9] As to the second incident the judge a quo took into account the fact that the
complainant had been forcibly removed from her place of residence; that she had
been threatened with a knife; that the accused had performed certain acts of
witchcraft to frighten her; that she had been raped twice; that she had been hit
with a stick; that the accused committed the second rape knowing that the police
7 Section 51(3)(a) of the Act.
7
were looking for him; and that he may have continued to rape and assault the
complainant, had he not been interrupted by the complainant’s brother and some
elders. The court also noted that the accused had shown no remorse.
[10] The learned judge then had regard to the seriousness of both offences and
the interests of the community, in particular the community’s demand for the
imposition of heavy sentences on perpetrators of sexual offences against women.
[11] In mitigation of sentence the learned judge found that the crimes were
what he termed ‘crimes of passion’; that the accused had repeatedly tried to effect
a reconciliation with the complainant and had pleaded with her to return to him;
that members of the complainant’s family had possibly contributed to the break-
up of the marriage; that the complainant still had ‘feelings’ for the accused; that,
if the family had left the couple to lead their lives, the problems between them
might not have arisen; that the complainant had not complained to the accused’s
sister when she arrived at the accused’s home during the period when the
complainant was being held against her will; and that the accused and the
complainant had different perceptions of whether they were still married to each
other or not.
[12] Turning to the personal circumstances of the accused, the learned judge
noted that the accused was 33 years old; that the couple had known each other
8
from childhood and had a five-year old child; that the accused left school in grade
eight (standard six); that he was at the time of the incidents in permanent
employment with Murray and Roberts; that, according to the social worker, he
did not appear to be an aggressive person; that he lived according to traditional
values and customary practices; and that he had to be treated as a first offender as
no previous convictions had been proved against him. Although the accused’s
attorney informed the court from the bar that he had a previous conviction for
assault, for which he had been sentenced to nine months’ imprisonment, no
account was taken of this – and properly so, as the State did not seek to prove it. 8
The court was informed further that the complainant in that case was the
accused’s sister-in-law whom the accused regarded as interfering with his
marriage.
[13] Although the judge a quo granted the State leave to appeal against the
sentences on all the counts, argument before us was limited to an attack on the
propriety of the sentences imposed on the rape counts. Counsel for the State
submitted that the sentence of five years for the first rape count was too light and
that the second rape count, for which the accused was only sentenced to three
years’ imprisonment, was in fact more serious than the first. This was because at
that stage the accused knew that he was being sought by the police for the first
8 See in this regard, S v Maputle 2002 (1) SACR 550 (W) at 555 f-g, a case in which the trial magistrate
took into account a previous conviction of the accused which the State had not proved. This was found
by the court of appeal to be a serious irregularity.
9
incident. A number of factual misdirections were relied upon. First, the learned
judge’s finding that the offences in question were ‘crimes of passion’ was
attacked. In my view this finding is, with respect, not correct as the offences were
not committed without rational reflection whilst the perpetrator was influenced
by barely controllable emotion, which is an essential characteristic of a crime of
passion. Secondly, the finding that the complainant still had ‘feelings’ for the
accused was correctly attacked because the complainant had made it clear to the
accused that she did not want to have anything further to do with him and had in
fact left him. A third misdirection, so counsel for the State submitted, was the
learned judge’s reliance – as a mitigating factor - on the complainant’s failure to
report the rape to the accused’s sister, when the latter had arrived at the house
where the complainant was being held captive. Counsel reminded us that in her
evidence the complainant had given a plausible explanation for her failure to
report - she said that the sister had previously been antagonistic towards her and
would not have been sympathetic to her plight - and this explanation appears to
have been overlooked by the judge a quo.
[14] I agree that the court a quo did indeed misdirect itself in the respects set
out above, and that the misdirections are material, so entitling this court to
interfere with the sentence imposed. The circumstances in which a court of
appeal is entitled to interfere with sentence were encapsulated by Marais JA in S
v Malgas as follows:
10
‘A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the
trial court, approach the question of sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing
discretion of the trial court. Where material misdirection by the trial court vitiates its exercise
of that discretion, an appellate court is of course entitled to consider the question of sentence
afresh. In doing so, it assesses sentence as if it were a Court of first instance and the sentence
imposed by the trial court has no relevance. As it is said, an appellate Court is at large.
However, even in the absence of material misdirection, an appellate court may yet be justified
in interfering with the sentence imposed by the trial court. It may do so when the disparity
between the sentence of the trial court and the sentence which the appellate court would have
imposed had it been the trial court is so marked that it can properly be described as “shocking”,
“startling” or “disturbingly inappropriate”’.9
[15] I am also satisfied that the sentences imposed in respect of the two rape
counts were so disturbingly inappropriate as to lead to the inference that the
judge a quo failed to exercise his discretion properly. As already indicated I agree
with the finding of the court a quo that there were substantial and compelling
circumstances in casu justifying the imposition of a lesser sentence than life
imprisonment. The complainant and the accused were not strangers to each other.
They had lived together as husband and wife in a customary marriage
relationship for a number of years before the rapes. There was no evidence that
the complainant suffered any lasting psychological trauma to speak of, although
she did mention in her evidence that she still thought about the incidents. She
9 S v Malgas supra para 12; also S v Abrahams 2002 (1) SACR 116 (SCA) para 15.
11
only suffered minor injuries. In fact, at the time sentence was considered, the
complainant could not be found and gave no evidence in aggravation of sentence.
While rape is undoubtedly a very serious offence, I am not convinced that this is
a case, despite the provisions of the Act, which requires the maximum sentence
which can be imposed by a court. In this regard the remarks of Cameron JA in S v
Abrahams, a case which concerned the imposition of the minimum sentences
prescribed by the Act, are both instructive and apposite:
‘… rape can [n]ever be condoned. But 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.’10
[16] As stated earlier in the judgment the accused believed that he and the
complainant were still married at the time of the incidents. Having regard to the
evidence of Reverend Ngesi, it would appear at the time of the offence that the
couple were indeed in all probability still formally married under customary law.
It is clear from his evidence that at the time of the incidents the accused honestly
(albeit entirely misguidedly) believed that he had some ‘right’ to conjugal
benefits. His actions, though totally unacceptable in law, might well be (albeit
only to a limited extent) explicable given his background. He grew up and lived
in a world of his own, of tradition and Black medicine – which was not
completely strange to the complainant (they grew up together and come from the
10 See supra para 29.
12
same area). His actions were shaped and moulded by the norms, beliefs and
customary practices by which he lived his life. Though the rapes were
accompanied by some acts or threats of violence, it does not appear that the
prime objective was to do the complainant harm. The key aim, it seems, was to
subjugate the complainant to his will and to persuade her to return to him – a
consequence of male chauvinism, perhaps associated with traditional customary
practices. That these traits or habits are difficult to discard appears to have been
true of the accused. The complainant’s rights to bodily integrity and dignity and
her entitlement to have these rights respected and protected 11 were not foremost
amongst his concerns. These ingrained traits and habits of the accused cannot be
ignored when considering an appropriate sentence. He wanted the complainant
back home, as his wife - in one piece. The threats he made were empty, albeit
designed to frighten her.
[17] These factors perforce have to be weighed up against the benchmark
provided by the legislature for offences of this type. In imposing the sentences of
5 years’ and 3 years’ imprisonment for the two rapes (eight incidents) it would
appear that the judge a quo reasoned, erroneously, that having found substantial
and compelling circumstances to be present, he considered himself to have a free
and unfettered discretion to impose any sentence he considered appropriate. In so
doing, he appears to have overlooked the benchmark indicating the seriousness
11 Sections 10 and 12 of the Constitution.
13
with which the Legislature views offences of this type. This approach amounts to
a material misdirection. It is as well to recall what Marais JA said in Malgas.
Dealing with departure from the prescribed minimum sentence provisions
prescribed by the Act the learned judge said:
‘What stands out quite clearly is that the courts are a good deal freer to depart from the
prescribed sentences than has been supposed in some of the previously decided cases and that
it is they who are to judge whether or not the circumstances of any particular case are such as
to justify a departure. However, in doing so, they are to respect, and not merely pay lip service
to, the Legislature’s view that the prescribed periods of imprisonment are to be taken to be
ordinarily appropriate when crimes of the specified kind are committed.’
Marais JA continued:
‘If the sentencing court on consideration of the circumstances of the particular case is satisfied
that they render the prescribed sentence unjust in that it would be disproportionate to the crime,
the criminal and the needs of society, so that an injustice would be done by imposing that
sentence, it is entitled to impose a lesser sentence.
In so doing, account must be taken of the fact that crime of that particular kind has been
singled out for severe punishment and that 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’.12 (Emphasis added.)
In S v Abrahams, Cameron JA put it thus:
‘The prescribed sentences the Act contains play a dual role in the sentencing process. Where
factors of substance do not compel the conclusion that the application of the prescribed
sentence would be unjust, that sentence must be imposed. However, even where such factors
12 S v Malgas supra para 25.
14
are present, the sentences the Act prescribes create a legislative standard that weighs upon the
sentencing court’s discretion. This entails sentences for the scheduled crimes that are
consistently heavier than before.’13
[18] In my view even in the absence of misdirection this court would have been
entitled to intervene, given that the sentences imposed in respect of the rape
counts were disturbingly inappropriate. I am satisfied that on both of the bases
indicated in Malgas in the passages quoted in para [14] above, this court is
entitled to reconsider the sentence. The crimes committed by the accused were
undoubtedly serious and the legislature has provided a benchmark which must be
borne in mind at all times. Giving due weight to the aggravating and mitigating
circumstances and to the special circumstances of this case as set out above and
bearing in mind that, when sentence was passed, the accused had already been in
custody for more than three and half years, an appropriate sentence is, in my
view, ten years in respect of each of the two counts of rape, such sentences to run
concurrently with each other and with the sentences imposed for the other
offences.
[19] The appeal accordingly succeeds. The sentences imposed by the court a
quo are set aside and are replaced by the following sentences:
Count 1: Rape: 10 years’ imprisonment;
13 Supra para 25.
15
Count 2: Abduction: 3 years’ imprisonment;
Count 3: Rape: 10 years’ imprisonment;
Count 4: Assault: 3 months’ imprisonment.
The sentences on counts 2, 3 and 4 are to run concurrently with each other and
with the sentence on count 1. To the extent necessary, the sentences are antedated
in terms of s 282 of the Criminal Procedure Act 51 of 1977 to 7 November 2002,
being the date upon which the sentences were imposed.
__________________
KK MTHIYANE
JUDGE OF APPEAL
CONCUR:
CLOETE JA
VAN HEERDEN JA