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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

Case number: A298/2019

22/5/2020

 

In the matter between:

 

HEADMAN THOLAKELE BUTHELEZI                                                     APPELLANT

 

And

 

THE STATE                                                                                                       RESPONDENT

JUDGEMENT

MOSOPA, J

INTRODUCTION

1.           Appellant was convicted of one count of rape, involving a 10 year old minor child, in contravention of Section 3 read with the relevant sections of the Sexual Offences Act 32 of 2007 and also read with section 51(1) of and schedule 2 of Act 105 of 1997 in the Sebokeng Regional Court, following his guilty plea.

2.           Following his plea in terms of Section 112(2) of the Criminal Procedure Act 51 of 1977 (CPA) Appellant was sentenced to life imprisonment. Appellant now appeals against sentence which is automatic appeal to this court due to sentence imposed by below court.

3.           This appeal is heard in terms of Section 19(a) of the Superior Courts Act 10 of 2013 which allow the matter to be disposed without oral hearing. Parties were invited to supplement their heads of argument and we only received supplementary heads of argument from Appellant's Counsel.

 

EVIDENCE

4.           Appellant and the Complainant knew each other and Appellant was a friend to the complainant's Father. On the day of the incident the Complainant was from school wearing her uniform. Appellant asked Complainant to go with him to the library as in the past they have went there together, and Complainant agreed to Appellant's request.

5.           Complainant first went home to change her clothes and Appellant also went to change his clothes and they went to the library together. Complainant whilst they were at the library asked Appellant as to where is the toilet as she wanted to use the rest room. Appellant accompanied her to the toilet but took her to toilet demarcated to people living with disabilities. It is while still inside that toilet that Appellant instructed Complainant to take off her jeans and panty and he also undressed. He then inserted his penis inside the vagina of the Complainant. The Appellant was then convicted on the strength of his plea in terms of Section 112(2) if the Criminal Procedure Act.

 

COURT'S APPROACH ON APPEAL AGAINST SENTENCE

6.           Khamphepe J in S v Bogaards 2013 (1) SACR 1 (CC) at par 41, when dealing with court's approach in appeals against sentence observed;

"Ordinarily, sentencing is within the discretion of the trial court. An Appeal's court's power to interfere with sentences imposed by lower courts is circumscribed. It can only do so where there has been an irregularity that results in a failure of justice, the court below misdirected itself to such an extent that its discretion on sentence is vitiated, or the sentence is so disproportionate or shocking that no reasonable court could have imposed it. A court of appeal can also impose a different sentence when it sets aside a conviction in relation to one charge or convicts the accused of another". (See also S v Ma/gas 2001 (1) SACR 469 (SCA) Par 12 and S v Hewitt [2016] ZASCA 100, 2017 (1) SACR 309 (SCA) par 8).

 

7.           Appellant was convicted of the offence which resorts under Section 51 (1) of the Act 105 of 1997 which prescribe a sentence of life imprisonment. To avoid such imprisonment, Appellant has a duty to show the existence of compelling and substantial circumstances in his case. For the sake of completeness I am of the view that the sections deserves mention and provides;

 

"51 (1) - Notwithstanding any other law, but subject to subsection (3) and (6), a Regional Court or High Court shall sentence a person it has convicted of an offence referred to in Part 1 of Schedule 2 to imprisonment for life.

51 (3) (a) - If any court referred to in subsection (1) and (2) is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in those subsections, it shall enter those circumstances on the record of proceedings and must thereupon impose such lessor sentence "

 

8.           The provisions of Section 51 (6) is not applicable in cause, as Appellant is not a child under the age of 16 years.

9.           No definition is provided in the Act as to what is "substantial and compelling circumstance" but we have noticed through the evolution of time that our courts have developed what constitutes "substantial and compelling circumstances". In the seminal judgment of S v Malgas [2001] 3 ALL SA 220 (A) at par 20 and 24 and Marais JA observed; when dealing with concept of "substantial and compelling circumstances";

"[20]    It would be an impossible task to attempt to catalogue exhaustively either those circumstances or combination of circumstances which would rank as substantial and compelling or those which could not. The best one could do is to acknowledge that one is obliged to keep in the forefront of one's mind that the specified sentence has been prescribed by law as the sentence which must be regarded as ordinary appropriate and that personal dictate for such legislative generalization cannot justify an indulgent approach to the characterization of circumstances as substantial and compelling. When justifying a departure a court is to guard against lapses, conscious and unconscious, into soplustry or spurious rationalization or the drawing of distinctions so subtle that they can hardly be seen to exist.

[24]      It has been suggested that the kind of circumstances which must qualify as substantial and compelling are those that reduce the moral guilt of the offender (analogously to the circumstance considered in earlier times to be capable of constituting "extenuating circumstances (in crimes which attracted the sentence of death ). That will no doubt often be so but it would not be right to suppose that it is only factors diminishing moral guilt which may rank as substantial and compelling circumstances".

 

10.        Section 51 (3) (Aa) of Act 105 of 1997 further excludes certain circumstances when imposing sentence in respect of offence of rape to constitute substantial and compelling circumstances and provides ,

"51 (3) (Aa) - When imposing a sentence in respect of the offence of rape the following shall not constitute substantial and compelling circumstances justifying imposition of a lesser sentence;

(i)         the complainants previous sexual history;

(ii)        the apparent lack of physical injury to the complainant;

(iii)       the accused persons cultural or religious beliefs about rape; or

(iv)       any relationship between the accused person and the complainant prior to the offense being committed".

 

SENTENCE

11.        Criticism is levelled to the fact that the court below when imposing a sentence of life imprisonment it did not take into consideration the fact that medical examination of the Complainant did not indicate any injuries on her private part, save for tears in 3 and 9 o'clock positions. This submission is made despite the fact that the rape incident was reported after 10 days it was perpetrated and the Complainant was only 10 years at the time.

12.        This criticism also flies in the face of the the provisions of Section 51 (3) (aA) (ii) of Act 105 of 1997, as lack of physical injury to the Complainant as explicitly said not to constitute a substantial and compelling circumstances. In S v SMM 2013 (2) (SCA) the court observed;

 

"... the proper interpretation of the provision {when referring to Section 51 (3) (aA) of Act 105 of 1997) however did not preclude a court sentencing for rape to take into consideration that a rape victim had not suffered serious or permanent physical injuries, in order to arrive at a just and appropriate sentence. It was settled law that such factor needed to be considered cumulatively and not individually".

 

13.        What SMM matter provides is that lack of injury on the rape victim on its own cannot constitute a compelling and substantial circumstances but it is a factor that can be considered by a sentencing court.

14.        The personal circumstances of Appellant were considered by a trial court, but as it was correctly stated in the matter of S v Vilakazi at par 58, "the personal circumstances of the offender in serious crime recede into the background. Once it becomes clear that the crime is deserving of a substantial period of imprisonment the questions whether the accused is married or single, whether or not he is in employment, are in themselves largely immaterial to what that period should be, and those seems to me to be the kind of "flimsy" grounds that Malgas said should be avoided'.

15.        The contention that the below court when imposing a sentence of life imprisonment misdirected itself in not taking account that life imprisonment is the ultimate sentence that a court can impose, cannot be supported. The court took into account the gravity of the offence and more importantly the fact that Appellant lured the Complainant under the pretense that her father instructed Appellant to fetch her from school. Complainant trusted Appellant as he was a friend of his father and more importantly in the words of Appellant, it was not the first time they went together to the library. Appellant misused the trust the Complainant had on him and violated the Complainant in a public facility. The court below observed that Appellant was supposed to have protected the Complainant and he failed to do so. We are therefore of the view that the court a quo considered all the factors when imposing the sentence Appellant is appealing against.

16.        Appellant was in custody for a period of 9 months pending finalization of his trial. In our view such period is not sufficient on itself to constitute a substantial and compelling circumstance. The record shows that the matter was postponed on more than 5 occasions for Appellant to apply for bail. According to the record, the matter was also postponed for plea bargaining. After Appellant was convicted the matter was postponed for Appellant to obtain pre-sentence reports and as such it cannot be correct for one to say that the delay was not at the instance of the Appellant.

17.        The fact that Appellant pleaded guilty and took responsibility for his actions cannot on its own constitute a compelling and substantial circumstances. Appellant was found naked after raping the Complainant inside a toilet and was assaulted by members of the community. Evidence against the Appellant was overwhelming and it is in our opinion that is the fact that motivated Appellant to plead guilty. Appellant even though he indicated that he is remorseful that can also not be completely believed as he informed the probation officer that it is evil spirits which made him to commit the offence.

18.        In the matter of S v Chapman [1997] ZASCA 45; 1997 (3) SA 341 (SCA) 345 A-B the court held that;

"rape is humiliating, degrading and brutal invasion of the privacy, dignity and the person of the victim'. It is so also in this matter as the Complainant was a 1O year old child and who knew and trusted Appellant. Her dignity and privacy was humiliated by Appellant in an underserving manner; instead of being protected by the Appellant".

 

19.        In the consequence the following order is made;

1.    Appeal against sentence is dismissed.

 

 

 

M.J MOSOPA

JUDGE OF THE HIGH

COURT, PRETORIA

 

 

I AGREE

 

 

 

P.D PHAHLANE

ACTING JUDGE

OF THE HIGH COURT

PRETORIA

 

 

 

 

APPEARANCES

For Applicant :         Advocate LA Van Wyk

Instructed by :          Legal Aid South Africa

For Respondent:      Advocate PCB Luyt

Instructed by :          Director of Public Prosecution

Date of hearing :      14 May 2020

Date of delivery :     22 May 2020

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