South Africa: Kwazulu-Natal High Court, Pietermaritzburg

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[2014] ZAKZPHC 10
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Ngcobo v S (AR 68/13) [2014] ZAKZPHC 10 (27 February 2014)
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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
APPEAL CASE No: AR 68/13
In the matter between:
GCINOKWAKHE SITHEMBISO NGCOBO ….........................................Appellant
and
THE STATE..........................................................................................Respondent
JUDGMENT
Vahed J:
[1] On 17 March 2001 the appellant was convicted in the regional court sitting in Ixopo on a charge of rape. At the time the provisions of Section 52 of the Criminal Law Amendment Act, 105 of 1997 required the sentencing phase of the trial to be disposed of in a High Court and the appellant was duly committed to the High Court for that to unfold. On 24 July 2001 the appellant appeared before Sardiwalla AJ who imposed a sentence of life imprisonment.
[2] Thereafter there were a number of delays, inordinate ones at that, but eventually, on 22 September 2010, Sardiwalla AJ refused the appellant’s application for leave to appeal against both conviction and sentence.
[3] The present appeal serves before us, leave to appeal against both conviction and sentence having subsequently been allowed by the Supreme Court of Appeal.
[4] The allegations in the regional court that the appellant had to deal with were that on 6 February 2000, at Sandaneza Location, he intentionally and wrongfully had carnal intercourse with S[…] M[…], a mentally-handicapped girl, 13 years old at the time, without her consent. The accused denied the allegation and accordingly tendered a plea of not guilty.
[5] The medical evidence presented in the regional court was from a Doctor Gardner who examined the complainant on 7 February 2000. During the course of that examination it was obvious to him that the complainant was a mongoloid child and that it was plainly apparent to anyone that she was thus afflicted. His physical examination of the complainant indicated to him that she had sustained a tear on the posterior fourchette with slight bleeding. He was uncertain as to whether the bleeding was from menstruation or from the tear itself. He noted however that the tear was a fresh one. He noted also that the complainant’s hymen had been perforated and was swollen as were the walls of her vagina. He concluded that the injuries he observed were consistent with forced vaginal entry.
[6] The complainant’s sister, X[…] P[…] M[…], testified that the appellant came to their home on 6 February 2000. He enquired after his brother Stelega and then left after about 5 minutes. The lack of the usual noise of children playing alerted her and she went into a nearby room and found the appellant engaged in sexual activity with the complainant. According to her, he was making up and down movements on top of the complainant. The appellant was at first not alerted to her entry into the room and was only interrupted when she enquired as to what he was doing. He jumped up, said he was tempted, and apologized. She then closed the door to that room and summoned persons she referred to as Mthembu and Mbhele. They arrived and during the course of their arrival the appellant was pulling up the complainant’s panties. Upon their arrival the appellant fled making his escape through a window. According to her the complainant was taken to see Doctor Gardner the following day. She noticed, upon entering the room, that the complainant appeared to be soiled with semen on her thighs and her vagina and that the appellant himself was also soiled with semen. She told the court that it was obvious to anyone that the complainant was mentally-handicapped because of her mongoloid features.
[7] Mthembu also testified and largely corroborated the evidence of Miss M[…]. He saw the semen and also witnessed and heard the appellant’s apology. When he arrived the complainant’s panty was on the floor but he also witnessed the appellant pulling up the panty on the child.
[8] Mbhele also testified and he also largely corroborated the evidence of the first two witnesses. There were minor discrepancies particularly with regard to when the appellant was alleged to have pulled up the complainant’s panties but, to my mind, those discrepancies were of no moment. They were merely differences which resulted from witnesses who had different vantage points.
[9] The appellant testified in his defence and denied the events as testified to by the three state witnesses. He said that he had arrived at the M[…] homestead to purchase alcohol. He was left in a room while Miss M[…] went to fetch the alcohol but she returned with the two others with sjamboks and he was assaulted. I pause to mention that the fact that he was assaulted, by primarily Miss M[…], with a sjambok was never put to any of the state witnesses. His evidence was that he escaped through the window because of the assault on him. The assault, he said, was as a result of allegations made by Miss M[…] that he, the appellant, and his brothers had destroyed Miss M[…]’s shop. As I indicated, none of this was put to the state witnesses. Much of his evidence smacked of recent fabrication.
[10] In my view, the regional magistrate’s conclusion that the appellant’s version was riddled with inherent improbabilities and inconsistencies was correct. His version was rightly rejected by the learned regional magistrate. Upon my reading of the record the three state witnesses were consistent and gave good evidence, and I can find no misdirection of the part of the magistrate.
[11] In my view the appellant was rightly convicted and his appeal against conviction must accordingly fail.
[12] The appeal against sentence is a different matter entirely. The learned acting Judge a quo concluded that he was unable to discover any mitigating or substantial circumstances and concluded that he had no option but to impose a sentence of life imprisonment.
[13] In his judgment the learned acting Judge concluded in the following terms:-
‘This crime is as bizarre as you can find them. Sometimes immorality is responsible for rape where there is a certain level of attraction caused by the female herself but here we have the weakest of the weakest, a young disabled child. In fact, if there ever was the death sentence still available to these courts, it may well have been argued that this was an ideal scenario for that sentence. The court has an obligation to protect society from people like the accused and behavior of this nature. [There] cannot be a more appropriate sentence then the life sentence, given the fact that there are absolutely no substantial and compelling circumstances, in fact, aggravating circumstances.’
[14] Those are strong words indeed but carry within them, in my view, a misdirection. The ascertainment of an appropriate sentence is always one of the most difficult tasks that faces a judicial officer. This is made particularly more difficult with the advent of the Criminal Law Amendment Act, Act 105 of 1997 (“The Minimum Sentencing Legislation”). To look for substantial and compelling circumstances, which may justify the imposition of a lesser sentence, or for aggravating circumstances, which may justify the imposition of a harsher sentence is not some mechanical process involving the placing of check marks in various boxes. It is an evaluative process but one that is only embarked upon against a backdrop of proportionality.
[15] In S v Vilakazi 2009 (1) SACR 552 SCA Nugent JA said the following at paras 16 – 21:
‘[16] It was submitted before us that in [S v Malgas 2001 (1) SACR 469 (SCA)] this court 'repeatedly emphasised' that the prescribed sentences must be imposed as the norm and are to be departed from only as an exception. That is not what was said in Malgas. The submission was founded upon words selected from the judgment and advanced out of their context. The court did not say, for example, as it was submitted that it did, that the prescribed sentences 'should ordinarily be imposed'. What it said is that a court must approach the matter 'conscious [of the fact] that the Legislature has ordained [the prescribed sentence] as the sentence that should ordinarily and in the absence of weighty justification be imposed for the listed crimes in the specified circumstances' (the emphasis in bold is mine). In the context of the judgment as a whole, and in particular the 'determinative test' that I referred to earlier, it is clear that the effect of those qualifications is that any circumstances that would render the prescribed sentence disproportionate to the offence would constitute the requisite 'weighty justification' for the imposition of a lesser sentence.
[17] I need not repeat all the other passages that were selectively relied upon to support the submission. It is sufficient to say that when placed in their context none supports the submission. Indeed, the court could hardly have held that the various sentences are indeed proportionate to the particular crimes - and thus to be imposed as the norm - when it did not even pertinently consider the various sentences for the various crimes. To say that a court must regard the sentence as being proportionate a priori and apply it other than in an exceptional case runs altogether counter to both Malgas and [S v Dodo [2001] ZACC 16; 2001 (1) SACR 594 (CC)]. Far from saying that the circumstances in which a court may (and should) depart from a prescribed sentence will arise only as an exception, Malgas said:
Equally erroneous . . . are dicta which suggest that for circumstances to qualify as substantial and compelling they must be 'exceptional' in the sense of seldom encountered or rare. The frequency or infrequency of
the existence of a set of circumstances is logically irrelevant to the question of whether or not they are substantial and compelling.
[18] It is plain from the determinative test laid down by Malgas, consistent with what was said throughout the judgment, and consistent with what was said by the Constitutional Court in Dodo, that a prescribed sentence cannot be assumed a priori to be proportionate in a particular case. It cannot even be assumed a priori that the sentence is constitutionally permitted. Whether the prescribed sentence is indeed proportionate, and thus capable of being imposed, is a matter to be determined upon a consideration of the circumstances of the particular case. It ought to be apparent that when the matter is approached in that way it might turn out that the prescribed sentence is seldom imposed in cases that fall within the specified category. If that occurs it will be because the prescribed sentence is seldom proportionate to the offence. For the essence of Malgas and of Dodo is that disproportionate sentences are not to be imposed and that courts are not vehicles for injustice.
[19] In a variation upon the earlier submission it was also submitted that the prescribed sentence must be imposed in 'typical' cases and may be departed from only where the case is atypical. We were not told what constitutes a 'typical' case nor how such a case is to be identified. All that is typical of cases that fall within a specified category is that they have the characteristics of that category. But for that, no case can be said to be 'typical'. The submission finds no support in Malgas or in logic and it has no merit.
[20] I do not think it is helpful to revisit constructions of the Act that were considered and rejected in Malgas, as much of the argument before us attempted to do. I have pointed out that the essence of the decisions in Malgas and in Dodo is that a court is not compelled to perpetrate injustice by imposing a sentence that is disproportionate to the particular offence. Whether a sentence is proportionate cannot be determined in the abstract, but only upon a consideration of all material circumstances of the particular case, though bearing in mind what the legislature has ordained and the other strictures referred to in Malgas. It was also pointed out in Malgas that a prescribed sentence need not be 'shockingly unjust' before it is departed from for '(o)ne does not calibrate injustices in a court of law'. It is enough for the sentence to be departed from that it would be unjust to impose it.
[21] The prosecution of rape presents peculiar difficulties that always call for the greatest care to be taken, and even more so where the complainant is young. From prosecutors it calls for thoughtful preparation, patient and sensitive presentation of all the available evidence, and meticulous attention to detail. From judicial officers who try such cases it calls for accurate understanding and careful analysis of all the evidence. For it is in the nature of such cases that the available evidence is often scant and many prosecutions fail for that reason alone. In those circumstances each detail can be vitally important. From those who are called upon to sentence convicted offenders such cases call for considerable reflection. Custodial sentences are not merely numbers. And familiarity with the sentence of life imprisonment must never blunt one to the fact that its consequences are profound.’
[16] I regard those views as constituting good guidance. The learned acting judge a quo appeared to restrict his approach to a search for substantial and compelling circumstances and, concluding that there were none, then sought to find aggravation.
[17] In the present matter the imposition of life imprisonment was wholly disproportionate to the crime. Indeed, the rape of the complainant in the instant case is an act that is deserving of the utmost contempt. However, it cannot be said that the present crime is deserving of being categorized as being of the extreme nature warranting the ultimate punishment.
[18] I am of the view that a more fitting sentence for the present case will be one of 20 years’ imprisonment. It is also appropriate that the commencement of that sentence be antedated to the date sentence was originally imposed, that is 24 July 2001.
[19] I would accordingly propose the following order:-
a) The appeal against conviction is dismissed and the conviction in the regional court is confirmed.
b) The appeal against sentence succeeds.
c) The sentence of life imprisonment imposed by the court a quo is set aside and replaced with a sentence of 20 years’ imprisonment.
d) The sentence of 20 years’ imprisonment is deemed to have commenced on 24 July 2001.
Vahed J
I agree
Van Zÿl J
I agree
Nzimande AJ
For the Appellant: I Khan
C/O PMB Justice Centre
183 Church Street
Pietermaritzburg
Tel: 033 394 2190
For the Respondent: A. Watt
The Director of Public Prosecutions
High Court Building
Pietermaritzburg
Tel: 033845 4400
Date of Hearing: 27 January 2014
Date of Judgment: 27 February 2014