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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE NORTH WEST HIGH COURT

MAFIKENG

CAF18/14

In the matter between:

A[…] M[…]................................................................................................................................Appellant

and

THE STATE............................................................................................................................Respondent

FULL BENCH APPEAL

GURA J, KGOELE J & DJAJE AJ

DATE OF HEARING : 10 OCTOBER 2014

DATE OF JUDGMENT : 05 DECEMBER 2014

FOR THE APPELLANT : Adv. S B. Khan

FOR THE RESPONDENT : Adv. T.D. Muneri

JUDGMENT

KGOELE J:

[1] The appellant stood trial in the Regional Court of Mankwe held at Madikwe on a charge of rape read with the provisions of section 51 (1) of Act 105 of 1997.

[2] The allegations against him were that on the 9^th day of September 2000 at Vrede, he did unlawfully and intentionally assault a female person, O[…] P[…] S[…], who was by then nine (9) years old, and then had sexual intercourse with her without her consent.

[3] He was legally represented and pleaded guilty to the charge on the 2^nd day of August 2002.The Regional Court found him guilty as charged solely on his plea on the same day. The matter was then transferred to this Court for sentence in terms of section 52 (1) (a) of Act 105 of 1997.

[4] On the 11^th June 2003 the appellant was sentenced to life imprisonment by Hendler J (as he then was). On the 23^rd May 2014 Gutta J granted the appellant condonation and leave to appeal against the sentence, hence this Appeal,

[5] In this Court the sentence was attacked on three grounds:

Firstly, that, the sentencing court did not adequately take the personal circumstances of the appellant into consideration which cumulatively amounts to substantial and compelling circumstances. Secondly, that the sentence imposed is so shockingly, inappropriate and induces a sense of shock.  Lastly that the sentencing Court erred in placing too much emphasis on the seriousness of the offence and the deterrence effect thereof.

[6] The respondent’s counsel conceded to the submissions made by appellant’s counsel in support of these grounds of Appeal.  In addition he indicated that the sentencing Court further misdirected itself as it did not sufficiently interrogate the legal representative of the appellant on the question of whether substantial and compelling circumstances were present or not.

[7] It is trite law that when a convicted person appears before a High Court for sentencing, the sentencing Court must satisfy itself first that the conviction of the lower Court was in order and if it is, make a formal finding to that effect.  Section 52 A (2) (a) of Act 105 of 1997, which was later amended, provided as follows:

“(2) (a) Where an accused is committed under subsection (1) (a) for sentence by the High Court, the record of the proceedings in the regional court shall upon proof thereof in the High Court be received by the High Court and form part of the record of that Court, and the plea of guilty and any admission by the accused shall stand unless the accused satisfies the Court that such plea or such admission was incorrectly recorded.

(b) Unless the High Court in question-

(i) is satisfied that a plea of guilty or an admission by the accused which is material to his or her guilt was incorrectly recorded: or

(ii) is not satisfied that  the accused is guilty of the offence of which he or she has been convicted and in respect of which he or she has been convicted and in respect of which he or she has been committed for sentence, the court shall make a formal finding of guilty and thereupon impose the sentence that  the court may deem fit.”

[8] A thorough analysis of the proceedings before Hendler J reveals that a formal finding required by the section quoted above was not made. The whole record of the transcribed proceedings before the sentencing Court reads thus:

“MS MABOANE: Adv. Morule appears on behalf of the accused. The matter was referred from the regional court for sentence.

COURT: Yes?

MR MORULE: As it pleases the court, M’Lord I confirm my appearances on behalf of the accused person.

MR MORULE ADRESSES THE COURT: M’Lord, in this

 matter no Compelling circumstances could be found save to say that when I looked at the record the fact that the complainant did not sustain any injuries coupled with the fact that the accused person himself pleaded guilty to court a quo … [indistinct] this could constitute compelling circumstances. Those will be my submissions, M’Lord.

COURT: Thank you.

MR MORULE: As it pleases the Court.

COURT: Is the complainant here, Ms Maboane?

MS MABOANE: She is here M’Lord.

COURT: I want to see her. Where is she?

MS MABOANE: She Went into the- she is the mother of the complainant.

COURT: Oh, okay I just want to see her.

MS MABOANE: As the Court pleases, M’Lord.

COURT: Were there any injuries sustained here?

MS MABOANE: There were no injuries sustained. The complainant was 9 years of age at the time of the commission of the offence and the accused in this matter was the complainant’s father or father figure.

COURT: Not biological, her stepfather?

MS MABOANE: Stepfather, M’Lord. They were living in the same house.

COURT: But she also indicated that she was abused since April  2000, so it going over and over a long period. Did you see that?

MS MABOANE: I did M’ Lord.

COURT: Okay, no she is a baby, Okay thank you.

MS MABOANE: She is, M’Lord.

COURT: Yes, what are you asking from me?

MS MABOANE: Life imprisonment, M’Lord.

COURT: Ja,I am afraid this one qualifies.”

SENTENCE

HENDLER J: Accused, once again you were sent here from the Magistrate’s court to be sentenced because the government passed this law that if you rape somebody, a little child like this, the court must pass life imprisonment.

I have just seen this little child. I cannot believe that a grown man like you would want to rape a little child like that.

You must be sick. That is not like a person that is like an animal.

I have got no sympathy for you. Despite the fact that you pleaded

Guilty it appears from record that you abused this child over a period of time.

There are certainly no compelling or substantial factors in this

Which could urge me to pass a lesser sentence than the one on the government says I must pass.

SENTENCE

YOU ARE ACCORDINGLY SENTENCED TO LIFE IMPRISONMENT.”

[9] It is furthermore apparent from the quoted paragraphs above that the personal circumstances of the appellant were also not placed before the sentencing Court nor did the sentencing Court enquire about them. All of these concerns were raised by this Court mero-mutu as both counsel appeared to have overlooked them because they were not raised in their heads of arguments.  Section 274 of the Criminal Procedure Act 51 of 1977 is clear, it provides that it is the duty of the court imposing sentence to obtain the necessary information, if need be, even on its own initiative.  See also: S v Pillay 2011 (2) SACR 409 (SCA) at  416 d-e.  In my view, and as correctly conceded by the two counsel, the sentencing Court misdirected itself in this regard as well.

[10] On a conspectus of all the above irregularities, I am satisfied that this Court is entitled to set aside the sentence by Hendler J.  The issue that now arises is whether the matter should be sent back for the proceedings on sentence to be heard de novo by a single judge or whether this Court sitting as a Court of Appeal is at large to consider the sentence afresh.

[11] Both counsel before us urged this Court to exercise its inherent powers vested in it to deal with the sentence afresh.  In an unreported matter of S v Rasirubu [2013] ZA SCA 140, Case No. 651/12 (30 September 2013) in which the trial court’s failure to rely on section 274 (1) were highlighted, Tshiqi J A in deviating from the normal Appeal Court order of remitting the matter to the trial Court to receive the evidence required and pass sentence afresh, concluded as follows:-

“the appellant’s continued incarceration pending finalisation of the matter if it were to be remitted to the High Court would …… not be in the public interest.  The interest of justice demand therefore that, in view of the passage of time, this Court should impose what it considers to be an appropriate sentence based on the information at its disposal”.

[12] I am of the view that the “paucity of facts” that was caused by the passive if not hastily attitude of the sentencing Court including the legal representatives who were before it, led to the material misdirection by the sentencing Court, warranting this Court to be at large to impose an appropriate sentence afresh.  In this sense, the appellant’s position before this Court is similar to a convicted accused awaiting sentence.  In all fairness to the appellant, finality in the criminal process demands no further delay in this matter.  Given the fact that this Court is empowered to impose sentence as if none had been previously imposed, we saw no impediment in requesting the appellant’s counsel to submit a supplementary affidavit from the appellant containing his personal circumstances that existed at the time of conviction, which she did.  The respondent’s counsel was also ad idem that the affidavit was necessary to ensure fairness to the appellant’s trial.

[13] In as far as the conviction of the appellant is concerned, the proceedings before the Regional Court appears to be in order.  The conviction of the appellant is therefore confirmed.

[14] The appellant’s personal circumstances from his affidavit can be summarised as follows:-

• He was 40 years old at the time that he committed this offence;

• He attended school and only completed standard two.  Due to financial constraints he was unable to continue with his schooling career;

• At the time of his arrest, he was gainfully employed as a brick layer (he was contracted to build houses) and earned an amount of R800-00 per week;

• With this earning he supported his two minor children, the mother of his children and his aged parents;

• He is deeply remorseful and sorry for his action;

• His children were aged nine years and two years respectively at the time of his arrest;

• He was unmarried, however at the time of his arrest he was cohabiting with the mother of his minor children.  They lived together as a stable family unit;

• The mother of his children was unemployed and he was solely responsible for her and the minor children’s maintenance;

• His parents are pensioners, and at the time of commission of the offence he was financially supporting them as well; 

• His immediate and extended family were solely dependent on him.

[15] The aggravating factors in this case are that the complainant was a very young girl of 9 years of age. She endured humiliation of being attacked in the sanctity of her home by a stepfather who was a father figure to her, where she ought to be safe.  Although the J88 did not reveal any physical injuries except those that are concomitant with sexual intercourse, one cannot escape the thought that the experience left her traumatised and with devastating emotions. The appellant was convicted of one of the heinous crimes of the kind which the legislature has singled out for severe punishment.  The appellant has a recent previous conviction which is relevant because it involves violence.  The complainant’s dignity was severely impaired in that the J88 reveals that the hymen had raptured.  She endured the humiliation and pain of having sexual intercourse at an early stage of her life.  The complainant was still immature.  It is obvious that appellant preyed on her weakness because she was young, defenceless and vulnerable.

[16] In S v Abraham 2002 (1) SACR 116 (SCA) at paragraph 17 the following was said:

“Of all the grievous violations of the family bond the case manifest, this is the most complex, since a parent, including a father, is indeed in a position of authority and command over a daughter.  But it is a position to be exercised with reverence, in a daughter’s best interests, and for her flowering as a human being.  For a father to abuse that position to obtain forceful sexual access to his daughter’s body constitutes a deflowering in the most grievous and brutal sense”.

[17] Later in the same judgment at paragraph 23 Cameron JA proceeded to say:”

“Second, rape within the family has its own peculiarly reprehensible features, none of which subordinate it in the scale of abhorrence of other crimes”

[18] In S v Vilakazi 2009 (1) SACR 552 (SCA) the Supreme Court of Appeal held that in cases of serious crimes the personal circumstances of the offender, by themselves, will necessarily 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 he has two children or three, whether or not he is in employment, are themselves largely immaterial to what that period should be, and those seem to be the kind of “flimsy” grounds that the case of S v Malgas 2001 (1) SACR 469 (SCA) said should be avoided.

[19] As the appellant pleaded guilty to the charge, the material facts surrounding the commission of this offence are very scanty.  The only factor that counts in his favour is that he has pleaded guilty.  However, one cannot conclude that this is a sign of remorse, it suffices to regard it as neutral.  The same applies to his indication in his affidavit that he is remorseful.  It is trite law that the sentencing Court normally has to be convinced of the genuine nature of the accused’s alleged remorse, for it to be regarded as a mitigating factor.  This will inevitably require that the accused takes the Court fully into his confidence regarding what motivated him to commit the crime, and what has since provoked the change of heart, and finally, whether he does have a true appreciation of the consequences of those actions.  The appellant in casu did not express any of these in his section 112 (2) statement before the trial Court, nor in his supplementary affidavit submitted in this Court.  Whether the offender is sincerely remorseful and not simply feeling sorry for himself or herself at having been caught is a factual question.  See: S v Martin 1996 (2) SACR 309 (SCA).

[20] In the matter of Aifhel, Enock Kwinda v the State, an unreported Case No. 076/14 of Supreme Court of Appeal delivered on 24 September 2014, the following was said:-

“[25]  It cannot be denied that the rape of young girls by their father is not only scandalous but morally reprehensible.  Rape is undeniably a despicable crime.  In N v T it was described as “a horrifying crime and is a cruel and selfish act in which the aggressor treats with utter contempt the dignity and feelings of [the] victim”.  In S v Chapman this Court said it is ‘a humiliating, degrading and virtual invasion of the privacy, the dignity and the person of the victim”. 

[21] In my view, there are no substantial and compelling circumstances that warrant this Court to deviate from the imposition of the prescribed sentence of life imprisonment.  The appeal succeeds only as far as the irregularities are concerned.

[22] Consequently the following order is made:-

22.1 The sentence by Hendler J. dated 11^th June 2003 is hereby set aside and substituted with the following:-

“The appellant is sentenced to life imprisonment”.

22.2 The sentence is antedated to the 11^th of June 2003.

_______________

A M KGOELE

JUDGE OF THE HIGH COURT

I agree

SAMKELO GURA

JUDGE OF THE HIGH COURT

I agree

________________

T. DJAJE

ACTING JUDGE OF THE HIGH COURT

ATTORNEYS:

FOR THE APPELLANT : Legal Aid South Africa

MMABATHO

FOR THE RESPONDENT : Director  of Public Prosecutions

Mega City East Gallery. 2^nd Floor, 3139 Sekame Street

MMABATHO

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