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S v Generals (498/1988) [1989] ZASCA 82 (1 June 1989)

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ARTHUR GENERALS APPELLANT

and

THE STATE RESPONDENT

Judgment by: NESTADT, JA

CASE NO. 498/1988
/ccc

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:
ARTHUR GENERALS APPELLANT
and
THE STATE RESPONDENT
CORAM: VAN HEERDEN, NESTADT et MILNE JJA
HEARD: 11 MAY 1989
DELIVERED: 1 JUNE 1989

JÚDGMENT NESTADT JA:
The issue to be decided is whether the trial judge exercised his discretion to impose the death sentence in a proper and reasonable manner. Unless one can be satisfied or convinced he did not, interference with the sentence is not

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justified (S vs Pieters 1987(3) S A 717((A) at 727 F - 728 C; S vs Kock en 'n Ander 1988(1) S A 37(A) at 41 B - C).
It is necessary, in the first place, to consider whether COETZEE J misdirected himself. In this regard it must be remembered that a mere misdirection does not suffice to warrant interference. It must be of such a nature, degree or seriousness that it vitiates the court's decision on sentence (S vs Pillay 1977(4) S A 531(A) at 535 F). I am unable to agree with MILNE JA that an exemplary sentence in the sense used by him was imposed. Lieutenant Zeelie's statistics were referred to primarily in relation to the frequency of housebreakings. In any event the ten rapes which Zeelie said had accompanied housebreakings during a period of just over a year was not an insignificant figure. It served to reinforce the need to take the deterrent aspect of punishment into account. And, where this occurs, the element of example will inevitably feature in

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the sentence (R vs Swanepoel 1945 A D 444 at 455). This is because, to achieve the objêct of deterrence, the sentence must demonstrate to a potential offender the consequences of violating the law.
The other misdirection which was relied on by appellant and which is found by my Brother MILNE to have taken place relates to the trial judge's treatment of appellant's prospects of rehabilitation. His statement that appellant was "beyond that" is unfortunate. It was not fully justified. But I do not think that it evinces a material misdirection. Its positive nature must be read in the light of two earlier, less dogmatic observations, viz, "from that record one gains the impression that there would be difficulty to rehabilitate accused 4. He makes a living selling dagga... It does not seem as if a long period of incarceration would rehabilitate accused 4". Appellant's previous convictions appear from the passage of the

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trial court's judgment on sentence quoted by MILNE JA at pp 7 - 8 of his judgment. It is apparent that appellant has a strong criminal propensity which reduces his chances of reform. Two previous convictions for theft did not deter him from stealing (a motor vehicle) for a third time. And the sentences imposed for two previous sexual offences did not deter him from raping complainant in this case. His sentences included strokes, committal to a reformatory, a postponement of sentence in terms of sec 297(1) (a)(ii) of the Criminal Procedure Act, 51 of 1977 and imprisonment for three years. The rape of complainant occurred relatively soon after appellant's release from serving a substantial portion of this sentence, namely, almost two years. There was no indication of any remorse by appellant. In support of his plea of not guilty he denied participating in the crime. In any event, one cannot assume that the judge a quo would not have been aware that the possibility of rehabilitation did not

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mean that a long term of imprisonment was, for that reason, the only appropriate punishment (S vs Sithole en Andere 1983(3) S A 610(A) at 615 B - C); the gravity of the offence may override that consideration (S vs Mooi 1985(1 ) S A 625(A) at 631 A) . This, I think, was the position here. It seems to me that COETZEE J's view as to appellant's chances of reform was by no means the major factor which caused him to exercise his discretion in favour of the death sentence. What rather influenced him were the circumstances of the crime itself, its effect on complainant, and the need to protect society by a sentence which, as he put it, should "express the law-abiding community's feeling of revulsion and disgust of the deed". It is obvious that the learned judge appreciated that the death sentence should only be imposed if the rape was a serious one.
This brings me to the remaining issue of whether, in the absence of any material misdirections, it can be

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said that the trial judge failed to exercise a proper discretion in imposing the death sentence. The test in deciding this is whether it could reasonably have been imposed (S vs Pieters, supra, at 734 E and 735 H). In my view, the answer is in the affirmative. This was a serious case of rape. Appellant was armed with a knife. He threatened to kill complainant if she did not have intercourse with him "properly". She was a refined and educated person. He had previously dragged her from her bedroom. This he did by means of a skirt which was tied round her neck. She was thereby nearly choked. Appellant had tied her hands behind her back. She was in the nude. There was no question of appellant being under the influence of ïiquor. He was a relatively mature person of 22 or 23 when he committed the offence. And, of course, he had a previous conviction for rape. This was an aggravating feature (R vs Zonele and Others 1959 (3) S A 319(A) at 330 D). So, too, was the fact that the crime was

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committed (late at night) in the privacy of complainant's home (S vs V 1972(3) S A 611(A) at 614 A; S vs B 1981(4) S A 851(A) at 857 B) - and, one may add, in the virtual presence of her husband. There was no evidence (and it is unlikely) that appellant's lust arose on the spur of the moment, ie immediately before he raped complainant. It was probably formed some time earlier when he saw her being raped by two of his confederates. After her ordeal she was, according to the testimony of her husband, "very, very shocked". Her arms were badly bruised. She suffered psychological effects. Her husband said that for some time she was "extremely nervous"; even at the time of the trial (some 15 months later) she "found it difficult to spend time alone at home". Complainant herself testified that "never a day goes past that the whole thing does not appear in my mind at some stage". Initially her sex life with her husband was adversely affected. The greater part of these consequences must

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have resulted from the rape.
I am, in the result, not convinced that the trial judge did not exercise his discretion in imposing the death sentence on appellant in a proper and reasonable manner.

The appeal is therefore dismissed.

NESTADT, JA VAN HEERDEN, JA - CONCURS