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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: A143/2016

DATE: 25/07/2017

In the matterbetween:

DANIEL METLHOLO MAANYA                                                                              Appellant

and

THE STATE                                                                                                         Respondent

JUDGMENT

TEFOF, J:

[1] The appellant stood trial in the Regional Court, Klerksdorp with a co­ accused where they faced one count of housebreaking with intent to commit a crime unknown to the State and two counts of rape in contravention of s 3 of the  Sexual  Offences and Related Matters Act,  32 of 2007 read with the provisions of s 51(1) of Act 105 of 1997 (the Criminal Law Amendment Act). The count of housebreaking with intent to commit a crime unknown  to the State and one count of rape were withdrawn at the  commencement  of the trial. The appellant pleaded guilty to the charge of rape. The State accepted  his plea of guilty as tendered and the trial of his co-accused was eventually separated from his trial. The appellant was then convicted and sentenced to imprisonment for life.  He now appeals against his conviction and sentence in terms of the provisions of s 10 of the Judicial Matters Amendment Act, No 42 of 2013. The section provides that an accused person who has  been  sentenced to imprisonment for life by the Regional Court under s 51(1) of the Criminal Law Amendment Act may note an appeal without having to apply for leave in terms of s 3098 of the Criminal Procedure Act, 51 of  1977.

The appeal against conviction

[2] The grounds of appeal against conviction were no longer pursued.

The appeal against sentence

[3] The appellant challenges the sentence imposed on him on the grounds that it disregards the period of one year that he spent in custody awaiting the finalisation of his trial, it is out of proportion to the totality of the accepted facts in mitigation, that the trial court overemphasised the seriousness of  the  offence,  the interests of society, the prevalence  of  the offence,  the   deterrent and retributive element of sentencing. He contended that he was only sentenced to satisfy the society.

[4] The State disagreed with the submissions made on behalf of the appellant and it was argued on its behalf that the sentence imposed by the trial court is justified.

[5] The salient facts that arose from the appellant's s 112(2) statement were the following: On the night of 20 May 2012 he went to the complainant's homestead in the Regional division of North West where he turned the door handle of the house, gained entry and proceeded straight to her bedroom where she was sleeping. He had been to her homestead on a previous occasion. He took her panties off, climbed on top of her and inserted his penis into her vagina. He ejaculated and subsequent thereto, he lay next to her. Later on he climbed on top of her again and inserted his penis into her vagina. At all material times and as he penetrated her, the complainant did not resist his actions. She never consented to the intercourse. He forced her to have sexual intercourse with him and his actions were against her will.

[6] The J88 medical report completed by the doctor who examined the complainant immediately after the rape was handed in by agreement between the parties and formed part of the record.

[7] The following personal circumstances of the appellant were placed on record in mitigation of sentence:  He was 35 years old at the time of sentence which meant that he was 32 years old at the time of the commission of the offence. He resided alone at his homestead. He has one child aged 14 years at the time who resided with his mother. He went to school up to grade 11. He was single and not married. He pleaded guilty and saved the complainant from  testifying  and being  subjected  to  cross-examination.  He  has  been  in custody for a period of a year. He is terminally ill although he did not want to disclose his medical condition. At the time of his arrest he was employed and he earned a salary of R1 000,00 per month which he used to support himself and his child. He was not a first offender and his previous convictions included rape.

[8] Coupled with the above, further submissions were made on behalf of the appellant: The fact that he pleaded guilty triggered the imposition of a sentence of life imprisonment although the evidence proved that the victim was raped more than once, the trial court held that the complainant did not sustain serious physical injuries to her body except on her private parts. The appellant stated that he was terminally ill. All these factors cumulatively taken should have been considered by the trial court to have constituted substantial and compelling circumstances.

[9] Relying on the case of S v GN 2010 (1) SACR 93 (T) he further submitted that taking into account that the appellant’s legal representative in the court a quo, did not address the court on substantial and compelling circumstances and the trial court did not find any, the appeal court has to determine  whether  the  sentence  of  life imprisonment  imposed  on the appellant is proportionate to the offence committed. He also referred to the case of S v Dyantyi 2011 (1) SACR 540 (ECG) in support of his argument.

[10] The following submissions were made on behalf of the State in aggravation of sentence: That the complainant was raped more than once, she was attacked at the sanctity of her home while she was sleeping at night where she thought she was secure and safe. The doctor who examined her after the rape noted on the J88 medical report that she was severely traumatised by the incident. The appellant had previous convictions which included rape. The rape he was convicted of, attracted the prescribed minimum sentence of life imprisonment. The offence is serious and prevalent. He referred to the case of S v Matyityi 2011 (1) SACR 40 (SCA) and argued that the appellant displayed no remorse, that nothing showed in the evidence that he accepted the seriousness of his actions and intended to make such amends as lay in his power. He also did not regret his actions and there is therefore no hope for rehabilitation. The court did not find any substantial and compelling circumstance.s.

[11] The basic approach in every appeal against sentence was set out in S v Rabie 1975 (4) SA 455 (A) at 8570-E to be the following: the court hearing the appeal -

"(a) should be guided by the principle that punishment is 'pre­ eminently a matter for the discretion of the trial court', and

(b) should be careful not to erode such discretion hence the further principle that the sentence should only be altered if the discretion has not been Judicially and properly exercised'."

The test under (b) is whether the sentence is vitiated by any irregularity or misdirection or is disturbingly inappropriate (see also S v Giannoulis 1975 (4) SA 469 (A); S v Barnard 2004 (1) SACR 191 (SCA) at 194C-D; S v Mayisela 2013 (2) SACR 129 GNP at [13]).

[12] In S v Ncheche [2005] ZAGPHC 21; 2005 (2) SACR 386 0N) the Full Court also held that sentencing fell primarily within the discretion of the trial court and that the appeal court may only interfere where the trial court has not properly and reasonably exercised its discretion when imposing sentence. It further held that where that sentencing discretion was properly and reasonably exercised, the appeal court had no power to interfere. Within this context, the Full Court pointed out that a trial court in imposing sentence is not bound by sentences imposed by other courts, including higher courts, as long as it exercises its sentencing discretion reasonably. See S v Holder 1979 (2) SA 70 (A) at 800 and R v Karg 1961 (1) SA 231 (A) at 236H where the following was stated:

"Fourthly and finally, it was contended for the appellant that SNYMANJ A.J., paid no, or no sufficient regard to the trend of judicial decisions quoted to him. It may be accepted that sometimes a succession of punishment imposed for a particular type of crime provide a useful guidance to court dealing with such a crime.  But each case should be dealt with upon its own facts, connected with the crime and the criminal, and no countenance should be given to any suggestion that a rule may be built up out of a series of sentences which would be irregular for a court to depart from."

[13] The court in S v Ma/gas 2001 (1) SACR 469 (SCA) at 478E-H said the appeal court can only interfere with the sentence imposed by the trial court where it is vitiated by a material misdirection or where the disparity between the sentence of the trial court and the sentence the appellate court  would have imposed had it been the trial court, is so marked that it can be described as "shocking', "startling", or "disturbingly inappropriate" (see also Madiba v S [2015] JOL 33686 (SCA))

[14] In S v Radebe and Another2013 (2) SACR 165 (SCA) it was held that the period of pre-sentence detention becomes part of the totality of factors which must be weighed in order to determine whether substantial and compelling circumstances exist to reduce the sentence from the prescribed minimum. At para [13] it was held that there should be no rule of thumb in respect of the calculation of the weight to be given to the period spent by the accused awaiting trial (see also S v Seboko 2009 (2) SACR 573 NCK at para [22]). The court further stated that the circumstances of an individual accused must be assessed in each case in determining the extent to which the sentence proposed should be reduced. It further held that the test is not whether on its own that period of detention constitutes a substantial and compelling circumstance, but  whether  the  effective  sentence  proposed  is proportionate to the crime(s) committed: Whether the sentence in all the circumstances, including the period spent in detention prior to conviction and sentencing is a just  one.

[15] The appellant has previous convictions. On 23 May 1997 he was convicted of robbery and his sentence was postponed to a period of five years and he was placed under correctional supervision for a period of three years. On 1 August 2002 he was convicted of rape and sentenced to twelve years imprisonment. On 30 January 2009 he was released on parole and the period thereof was up to 31 January 2014. On 27 May 2014 he was also convicted of rape and sentenced to 15 years imprisonment. At the time he was sentenced on the present matter which is the subject of this appeal, he was a convicted prisoner and serving a sentence of 15 years imprisonment for the rape. It cannot therefore be said that the time he spent in custody had anything to do with the present matter.

[16] The court in the GN matter held that life imprisonment is the ultimate sentence that a court can impose and should therefore not be imposed lightly. It further held that even when a minimum sentence is prescribed, a court must still seek to differentiate between sentences in accordance with the dictates of justice.  The court went on to state the following:

“Where the prescribed minimum sentence is less than life imprisonment, such differentiation is possible either by imposing a heavier sentence than the prescribed minimum, or where there are substantial and compelling circumstances to do so, impose a lesser sentence. Where the   minimum   prescribed sentence is   life Imprisonment, it  is  impossible  to  differentiate  otherwise  than by imposing a   lesser sentence.Thus, where   the   Act   prescribes imprisonment for  life as a minimum sentence,  the  fact  that it is the ultimate sentence must be taken into account. Accordingly, in its quest to do justice, a court will readily impose a lesser sentence where the prescribed minimum sentence is imprisonment for life. Put differently, where the prescribed minimum is life imprisonment, a court will more readily conclude that the circumstances peculiar to the case are substantial and compelling, to the extent that justice require a lesser sentence than life imprisonment.”

[17] The facts in the present matter are distinguishable from the GN matter in that the appellant in the present matter was previously convicted of rape. It is more aggravating that while he was released on parole after having been convicted of rape, before he could finish the parole period,  he was again convicted of rape. At the time when he was convicted and sentenced for the present matter, he was serving the 15 years imprisonment for the second  rape  conviction.

[18] As regards the fact that he pleaded guilty in the present matter, this plea should be put in its proper perspective. In S v Matyityi at para [13] the Supreme Court of Appeal defined remorse as follows:

"Remorse is a gnawing pain of conscience for the plight of another. Thus genuine contrition can only come from an appreciation and acknowledgement of the extent of one's error. Whether the offender is sincerely remorseful and not simply feeling sorry for himself at having been caught is a factual question. It is to the surrounding actions of the accused rather than what he says in court that one should rather look. In other words for the remorse to be a valid consideration, the pertinence must be sincere and the accused must take the court fully into   his  or   her  confidence.  Until   and  unless   that  happens   the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of inter alia: what motivated the accused to commit the deed, what has since provoked his or her change of heart and whether he or she does have a true appreciation of the consequences of those actions."

[19] In the Dyantji matter at para 552C on page 26 of the judgment, the court held as follows:

"In considering the prospects or possibility of rehabilitation of the offender as a factor in determining an appropriate sentence, it should be borne in mind that the seeds of rehabilitation, can in a manner of speaking,  germinate  only if  a convicted,  him or herself  has first and foremost, expressed the contrition for his or her criminal wrongdoing, thereby accepting the gravity of the criminal act of which he or she has been convicted, and commits to return to the path of rectitude. Without the expression of contrition any hope of rehabilitation becomes illusory and thus an unrealistic expectation."

[20] The trial court took into account that the appellant was not a first offender for rape and that the sentences previously imposed did not rehabilitate him. From line 24 on page 34 of the record the following was said:

"Nou u was nog op parool gewees toe u die huidige oortreding gepleeg het. Baie duidelik het daardie vonnis nou ook nie die gewenste uitwerking op u gehad nie."

[21] Given the facts in this matter I am satisfied with the reasoning of the trial court in this regard.

[22] The J88 medical report stated the following: The complainant was emotionally traumatised, her abdomen was extremely tender suprapubic but non-surgical. On gynaecological examination the clinical findings made were that the clitoris was covered by the labia majora and the clitoral hood, the frenulum of the clitoris was oedematous and there was a prominent yellow white discharge with a non-foul smell in the labia minora. There were no tears in the posterior fourchette. The fossa navicularis was red. The doctor concluded that penetration took place with a lot of trauma, the victim was trembling in fear and crying. She had suprapubic tenderness. No visible lacerations were present in the perineum and vagina. There were copious secretions in the vagina which were surpled. They looked chic like semen mixed with vaginal fluid.

[23] The complainant  was  only 20 years old at the time of the   incident.

Although the trial court found that the complainant was not seriously physically  injured  on page 32,  line 25 of the judgment,  it  found that   the complainant sustained injuries on her private parts and noted that the J88 medical report stated that she was extremely traumatised as a result of the incident.

[24] In S v Chapman [1997] ZASCA 45; 1997 (2) SACR 3 (SCA) at 58 -C, rape was described as follows:

"Rape is a very serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the Constitution and to any defensible civilization. Women in this country are entitled to the protection of these rights. They have a legitimate claim to walk peacefully on the streets, to enjoy their shopping and their entertainment, to go and come from work, and to enjoy the peace and tranquillity of their homes without the fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their Jives."

[25] At para [35] of the Ncheche matter the crime of rape was described as follows:

"Rape is an appalling and utterly outrageous crime, gaining nothing of any worth for the perpetrator and inflicting terrible and horrific suffering and outrage on the victim and her family. It threatens every woman, and particularly the poor and the vulnerable. In our country, it occurs far too frequently and is currently aggravated by the grave risk of the transmission of Aids. A woman's body is sacrosanct and anyone who violates it does so at his peril and our legislature, and the community at large, correctly expects our courts to punish rapists very severely."

[26] From the J88 it is clear that the complainant's private parts were seriously injured. The doctor's conclusion that the penetration took place with a lot of trauma and that the complainant was trembling in fear and crying when he examined her, is an indication that she was seriously hurt about the incident and that it affected her emotionally. The fact that she did not sustain physical injuries does  not  mean  that  she  was  not  hurt  emotionally.  The absence of injuries on its own does not constitute substantial and compelling circumstances. In any event the evidence as per the J88 proves that the complainant was severely traumatised about the incident and she had injuries on her private parts.

[27] In the Malgas matter and endorsed in S v Dodo 2001 (2) SACR 594 (CC) at 602-603, it was held that it is incumbent upon a court in every case, before it imposes a prescribed sentence, to assess upon a consideration of all the circumstances of a particular case, whether the prescribed sentence is indeed proportionate to the particular offence. The Constitutional Court made  it clear that what is meant by the offence in that context consists of all factors relevant to the nature and seriousness of the criminal act itself, as well as all relevant personal and other circumstances relating to the offender which could have a bearing on the seriousness of the offence and the culpability of the offender. If the court is satisfied that a lesser sentence is called for in a particular case, thus justifying a departure from the prescribed sentence then the court is bound to impose that lesser sentence.

[28] Taking into account all the factors in mitigation and aggravation of sentence and the facts in this matter, I am satisfied that the sentence imposed is proportionate to the offence committed. I agree with the trial court that there were no substantial and compelling circumstances justifying a departure from imposing the prescribed minimum sentence of life imprisonment. The trial court in my view correctly applied the principles of sentence. There is therefore no reason to interfere with the sentence imposed in this matter.

[29] In the result I make the following order:

29.1    The appeal against sentence is dismissed.

___________________________

M J TEFFO

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

I agree:

 ___________________________

M SELLO

ACTING JUDGE OF THE HIGH COURT

GAUTENG  DIVISION, PRETORIA

APPEARANCES

 

FOR THE APPELLANT                        LA VAN WYK

INSTRUCTED BY                                LEGAL AID SA

FOR THE RESPONDENT                   S SCHEEPERS

INSTRUCTED BY                               THE DIRECTOR OF PUBLIC PROSECUTIONS

DATE OF JUDGMENT                        25 JULY 2017

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