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 HIGH COURT OF SOUTH AFRICA
(NORTH-WEST DIVISION, MAHIKENG)

CASE NO.: CA 53/2019
REGIONAL COURT CASE NO.:RC2/148/2015
Reportable:                                     YES/NO
Circulate to Judges:                        YES/NO
Circulate to Magistrates:                 YES/NO
Circulate to Regional Magistrates:  YES/NO
IN THE APPEAL OF:

ANDRIES MOLOKELA	            APPELLANT

and

THE STATE	        RESPONDENT

JUDGMENT

CORAM: REID J et LAUBSCHER AJ:
LAUBSCHER AJ

BACKGROUND RELEVANT TO THIS APPEAL:

[1]	This is an appeal against both the conviction and the sentence imposed upon the Appellant on a charge of rape in the Klerksdorp Regional Court in the North-West Province on 29 November 2016.

[2]	According to the record availed to this Court the Appellant was charged with the flowing count:  That the Appellant is guilty of the contravention of the provisions of section 3 read with section 1, 2, 50, 56(1), 56A, 57, 58, 59, 60 and 61 of the Criminal Law Amendment Act (Sexual Offence and Related Matters), Act 32 of 2007 (hereafter “the SORM Criminal Law Amendment Act”) read with section 94, 256 and 261 of the Criminal Procedure Act, Act 51 of 1977 (hereafter “the Criminal Procedure Act”) and the provisions of section 51(1) and Schedule 2 of the Criminal Law Amendment Act, Act 105 of 1997 (hereafter “the Criminal Law Amendment Act”) as amended, in that on or about 14 to 15 February 2015 and at or near Casten Street, Collerville in the district/regional division of Klerksdorp in the North West Province the Appellant did unlawfully and intentionally commit an act of a sexual penetration with a female person to wit AM, 61 years of age by penetrating her vaginally and anally (i) in circumstances where the victim was raped more than once by the Appellant and (ii) where the rape involved the infliction of grievous bodily harm without her consent.

[3]	The Appellant pleaded not guilty to the charges levied against him and the matter proceeded to trial.  The Respondent adduced the evidence of the victim, the arresting police officer – De Koker, one Mr Smit – the first report and the victim’s neighbour during the conducting of the trial.  The evidence which the Respondent adduced during the trial of the matter also included a number of photos contained in a photo album which graphically depicts inter alia a severely bloodstained area in a room and the extent of the bodily injuries inflicted upon the face of the victim.  The contents of the medical examiners’ report corroborated the severe extent of the victim’s injuries.  Both the photo album and the medical examiner’s report was admitted into evidence with the consent of the Appellant as referred to below.

[4]	A statement made by the Appellant was also admitted into evidence.  This statement read as follows:

“I the undersigned Andries Molotela hereby states as follows.  I am the accused in this matter and make the statement freely, voluntarily and without any undue influence.  My legal representative has informed me that I have the right to remain silent.  My legal representative has further informed me that any statement I make in terms of Section 220 are treated as formal admissions.

This means that I admit specific fact and that the State does not need to prove that particular fact or lead any evidence in that regard.

I admit that on 14 to 15 February 2015 and at Carstens Street, Collerville, Klerksdorp in the Regional Division North-West I did have sexual intercourse with the complainant A[...] M[...].

I further admit that I penetrated the complainant more than once.  I admit that I did assault the complainant that same night by hitting her with open hands, clenched fists and by biting her on her breast.  I admit the contents of the J88 report completed by Dr Erasmus following his or her examination of the complainant on 15 February 2015.

I have no objection if it is handed up as exhibit.

I admit the contents of the photo album and affidavits compiled by constable Modise Motjabi following his visit to the scene at 4[...] C[...] Street on 15 February 2015.

I have no objection if the said statement and photo album consisting of 36 photos and a sketch plan is handed up as exhibit.”

[5]	The Appellant was arrested on 15 February 2015 by a police officer where he was hiding naked under a motor vehicle parked at the premised where the victim resided, and the assault and the rape took place.  According to the testimony of the police officer, De Koker, the victim pointed the Appellant out there and then as the person who assaulted her and raped her.

[6]	The Appellant elected not to adduce any evidence during the trial and did not testify or adduce any other evidence before the court a quo.

[7]	On the evidence before the court a quo the court a quo found the Appellant guilty on the charge levied against him, the details of which shall be set in more detail below.

[8]	The Appellant was sentenced to:

(a)	life imprisonment in terms of section 51(1) of the Criminal Law Amendment Act; and

(b)	the Appellant was declared unfit to possess a firearm in terms of section 103 of the Firearms Control Act, Act 60 of 2000.

[9]	In terms of the provisions of section 309(1)(a) of the Criminal Procedure Act as amended by the provisions of section 10 of the Judicial Matters Amendment Act, Act 42 of 2023 the Appellant is entitled to an automatic right of appeal once the court a quo has imposed a sentence of life imprisonment.

[10]	The Appellant’s appeal to this Court is premised on the ground that the Appellant’s legal representation was inadequate and that the sentence imposed by the court a quo was shockingly inappropriate.

[11]	The State, the Respondent in this appeal opposed the Appellant’s appeal.

[12]	The Appellant in this appeal was represented by counsel B R Matlhape and the Respondent was represented by counsel T Koloti of the office of the Director of Public Prosecutions.  Written heads of argument were submitted to this Court on behalf of both the Appellant and the Respondent, the contents of which assisted this Court in the adjudication of this appeal.  This appeal is adjudicated in terms of section 19(a) of the Superior Court Act, Act 10 of 2013, by agreement between the parties on the documents filed in the court file without the presentation of oral argument.

THE GENERAL PRINCIPLES APPLICAPLE TO AN APPEAL ON CONVICTION:

[13]	A court of appeal must always observe the following trite principles in the adjudication of an appeal ad conviction:

(a)	In the matter of R v Dhlumayo and Another the Appeal Court (as it was then known) stated:

“The trial court has the advantages, which the appeal judges do not have, in seeing and hearing the witness being steeped in the atmosphere of the trial.  Not only has the trial court the opportunity of observing the demeanor, but also their appearances and whole personality.  This should not be overlooked”.

(b)	In the matter of A M and Another v MEC Health, Western Cape the court referred to the matter of ST v CT and reiterated the following “trite principles” as reaffirmed by the Constitutional Court : “In Makate v Vodacom (Pty) Ltd the Constitutional Court, reaffirmed the trite principles outlined in Dhlumayo, quoting the following dictum of Lord Wright in Powell and Wife v Streatham Nursing Home”: ‘Not having seen the witnesses puts the appellant judges in a permanent position of disadvantage against the trial judges, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the Higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case”. (own emphasis)

(c)	A court of appeal can only reject the trial court’s assessment of the evidence if the court of appeal is convinced that the trial court’s assessment of the evidence was wrong.  If the appeal court is in doubt, the trial court’s judgment must remain in place.

(d)	The appeal court must be careful in making decisions, which are purely based on paper and representations in court without the presence of the parties in the actual case.

(e)	The above referred to principles were stated in a similar vein in the matter of S v Kebana as follows:

“It can hardly be disputed that the magistrate had advantages which we, as an appeal court, do not have of having seen, observed and heard the witnesses testify in his presence in court.  As the saying goes, he was steeped in the atmosphere of the trial.  Absent any positive finding that he was wrong, this court is not at liberty to interfere with his findings”.

(f)	In Khoza v S it was confirmed that a “…court of appeal is not at liberty to depart from the trial court’s findings of fact and credibility unless they are vitiated by irregularity, or unless an examination of the record reveals that those findings are patently wrong.”

(g)	Ponnan JA in the matter of S v Monyane and Others confirmed the following regarding the powers of a court of appeal:
 
“This court’s powers to interfere on appeal with the findings of fact of a trial court are limited… In the absence of demonstrable and material misdirection by the trial court, its findings of fact are presumed to be correct and will only be disregarded if the recorded evidence shows them to be clearly wrong (S v Hadebe and Others 1997 (2) SACR 641 (SCA) at 645 e-f).”

[14]	In dealing with an appellant’s appeal against conviction this Court’s must have regard to the following principles and methods of assessing the evidence before the trial court:

(a)	It is trite that the onus of proof rests with the Respondent to prove the guilt of the Appellant beyond reasonable doubt.

(b)	If the Appellant’s version might be reasonably possibly true, he or she would be entitled to an acquittal.  The Supreme Court of Appeal in the matter of Shackle v S stated:

“The court does not have to be convinced that every detail of an accused’s version is true.  If the accused’s version is reasonably possibly true, in substance, the court must decide the matter on acceptance of that version.  Of course, it is permissible to test the accused’s version against the inherent probabilities; but it cannot be rejected merely because it is improbable.  It can only be rejected on the basis of inherent probabilities if it can be said that it will be so improbable that it cannot be reasonably possibly true”.

(c)	In the matter of S v Munyai the court stated:

“A court must investigate the defense case with the view of discerning whether it is demonstratable false or inherently so improbable as to be rejected as false”.

(d)	The Supreme Court of Appeal in the matter of S v Chabalala stated:

“The correct approach is to weigh up all the elements which points towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt to the accused’s guilt.  The result may prove that one scrap of evidence or one defect in the case for either party (such as failure to call a material witness concerning an identity parade) was decisive but that can only be on an ex post facto determination and a trial court (and counsel) should avoid the temptation to latch onto one (apparently) obvious aspect without assessing it in the context of the full picture in evidence.”

(e)	In the matter of S v Sithole and Others it was succinctly stated:

“There is only one test in a criminal case and that is whether the evidence establishes the guilt of the accused beyond reasonable doubt.  The corollary is that the accused is entitled to an acquittal if there is a reasonable possibility that there is an innocent explanation which he has proffered might be true”.

(f)	In S v Molaza the court stated and confirmed the following test:

"The proper test is that an accused is bound to be convicted if the evidence establishes his guilt beyond reasonable doubt, and the logical corollary is that he must be acquitted if it is reasonably possible that he might be innocent.  The process of reasoning which is appropriate to the application of that test in any particular case will depend on the nature of the evidence that the court has before it.  What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence.  Some of the evidence might be found to be false; some of it might be found to be unreliable; and some of it might be found to be only possibly false or unreliable, but none of it may be simply ignored."

(g)	Addressing the concept of “reasonable doubt” the Appeal Court (as it was then known) in the matter of R v Mlambo started:

"In my opinion, there is no obligation upon the Crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man after mature consideration comes to the conclusion that there exists no reasonable doubt that the accused has committed the crime charged. He must in other words, be morally certain of the guilt of the accused. An accused's claim to the benefit of the doubt that may be said to exist must not be derived from speculation but must rest upon a reasonable and solid foundation created either by positive evidence or gathered from reasonable influences which are not in conflict with, or outweighed by the proved facts of the case."

(h)	The above referred to approach was confirmed by the Supreme Court of Appeal in the matter of S v Phallo and Others referring to it as a “classic decision”.  The SCA went on to state that the approach of our law as represented by the said judgement corresponds with that adopted and stated by the English Courts. Olivier JA in the SCA went on to quote from Miller v Minister of Pensions [1937] 2 All EL 272 (KB) wherein the following was stated:

"The evidence must reach the same degree of cogency as required in a criminal case before an accused person is found guilty.  That degree is well settled.  It need not reach certainty, but must carry a high degree of probability.  Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt.  The law would fail to protect the community if it admitted fanciful possibilities to deflect the cause of justice.  If the evidence is so strong against a man to leave only a remote possibility in his favour, which can be dismissed with a sentence "of course it is possible, but not in the least probable", the case is proved beyond reasonable doubt, but nothing short of that will suffice."

(i)	The above referred to measurement must be applied by having regard to the general principle in evaluating evidence in a criminal case.  This principle was stated in the matter of S v van der Meyden as follows:

"The onus of proof in a criminal case is discharged by the State.  If the evidence establishes the guilt of the accused beyond reasonable doubt.  The corollary is that he is entitled to be acquitted if it is reasonably possible that he might be innocent (see for example, R v Difford 1937 AD 370 at 373 and 383).  These are not separate and independent tests, but the expression of the same test when viewed from the opposite perspective.  In order to convict, the evidence must establish the guilt of the accused beyond reasonable doubt which will be so only if there is at the same time no reasonable possibility that an innocent explanation which has been put forward might be true.  The two are inseparable, each being the logical corollary of the other ... in whatever the form the test is expressed, it must be satisfied upon a consideration of all the evidence.  A court does not look at the evidence implicating the accused in isolation in order to determine whether there is proof beyond reasonable doubt and so too, it does not look at the exculpatory evidence in isolation in order to determine whether it is reasonably possible that it might be true." (own emphasis)

(j)	The evaluation of evidence in a criminal trial comprises of the evaluation of the “mosaic of evidence as whole” as aptly stated in the matter of Khumalo v S  as follows: 

“Considering all the circumstances of this case, I am of the view that the evidence tendered by the State weighs so heavily as to exclude any reasonable doubt about the applicant’s guilt.  Expressed differently, the mosaic of the evidence as a whole is, beyond reasonable doubt, inconsistent with the applicant’s innocence.  The inescapable inference is that the applicant was the aggressor on the night of the incident; that he shot at the complainant, chased him into a yard, fired more shots at the complainant and then robbed him of his money.” (own emphasis)

THE GENERAL PRINCIPLES APPLICAPLE TO AN APPEAL AGAINST SENTENCE:

[15]	First and foremost, in the adjudication of an appeal against sentence this Court must have regard to the general and overarching principles which have been laid down in this regard by the Supreme Court of Appeal.  These are the following:

(a)	An appeal court must be loath to interfere with the sentence of a trial court.  As far back as 1920, the Appellate Division (as it was then known) in the case of R v Maphumulo and Others stated that:

"The infliction of punishment is pre-eminently a matter for the discretion of the trial Court.  It can better appreciate the atmosphere of the case and can better estimate the circumstances of the locality and the need for a heavy or light sentence than an appellate tribunal.  And we should be slow to interfere with its discretion."

(b)	In S v Barnard the Supreme Court of Appeal stated: “A court sitting on appeal on sentence should always guard against eroding the trial court’s discretion … and should interfere only where the discretion was not exercised judicially and properly.  A misdirection that would justify interference by an appeal Court should not be trivial but should be of such a nature, degree or seriousness that it shows that the court did not exercise its discretion at all or exercised it improperly or unreasonably.”

(c)	The above quoted phrase succinctly states the general and overarching principle which must be adopted by this Court in the adjudication of appeals on sentence and hence in this appeal.

(d)	In S v Hewitt, Maya DP held that:  “It is a trite principle of our law that the imposition of sentence is the prerogative of the trial court. An appellate court may not interfere with this discretion merely because it would have imposed a different sentence. In other words, it is not enough to conclude that its own choice of penalty would have been an appropriate penalty.  Something more is required; it must conclude that its own choice of penalty is the appropriate penalty and that the penalty chosen by the trial court is not.  Thus, the appellate court must be satisfied that the trial court committed a misdirection of such a nature, degree and seriousness that shows it did not exercise its sentencing discretion at all or exercised it improperly or unreasonably when imposing it.  So, interference is justified only where there exists a “striking” or “startling” or “disturbing” disparity between the trial court’s sentence and that which the appellate court would have imposed.  And in such instances the trial court’s discretion is regarded as having been unreasonably exercised.”

(e)	In S v Bogaards, Khampepe J in the Constitutional Court held the following, that:

“It can only do so [i.e. interfere with the sentence imposed] where there has been an irregularity that results in the failure of justice; the court below misdirected itself to such an extent that its decision on sentence is vitiated; or the sentence is so disproportionate or shocking that no reasonable court could have imposed it.”

[16]	Consequently, this Court of appeal in the present matter can only interfere with the sentence where the trial court’s exercise of its discretion was patently incorrect.  The sentence must otherwise be left undisturbed.

[17]	This principle was also echoed by and phrased by Du Toit as follows: “The sentence will not be altered unless it is held that no reasonable court ought to have imposed such a sentence, or that the sentence is totally out of proportion to the gravity or magnitude of the offence, or that the sentence evokes a feeling of shock or outrage, or that the sentence is grossly excessive or insufficient, or that the trial judge had not exercised his discretion properly, or that it was in the interest of justice to alter it.” 

[18]	The court a quo “…enjoys pre-eminent discretion and the court of appeal will not lightly interfere with the exercise of same.”  A court of appeal will not interfere lightly with the trial court’s exercise of its discretion.  In S v Singh Tshiqi JA held that: “The task of imposing an appropriate sentence is in the discretion of the trial court.  A court of appeal may only interfere if the sentence is shockingly inappropriate.”

[19]	In the matter of Chitumbura and Another v S the court quoted the above referred to phrase from du Toit with approval and proceeded to referred to the Supreme Court of Appeal matter of S v Kgosimore and stated the following: “Regard may be had also to the judgment of Scott, JA in S v Kgosimore, 1999(2) SACR 238 (SCA), relied on by the State, where his lordship held that if the discretion of the trial court was properly and reasonably exercised, there was no scope at all for interference in the sentence.  This collection of expressions of resistance to interference in lower court sentencing underscores just how jealously our judicial hierarchy protects the prerogative below, and it is difficult to add to it.”

THE EVIDENCE BEFORE THE COURT A QUO

[20]	Having regard to the above set out principles, this Court must accordingly proceed to consider the contents of the evidence adduced on behalf of both the Respondent and the Appellant during the trial in this matter.  The Court now proceeds to do so.

[21]	On the evening of 14 February 2015, the victim was sitting in front of the house in which she was residing in alone in Carsten Street, Collerville, Klerksdorp when the Appellant, 21 years old at the time, entered the premises.

[22]	He asked the victim to borrow him matches.  When she stood up to fetch the matches the Appellant commenced to assault the victim.  The result of the severeness of the assault was that the victim lost sight in one of her eyes. 

[23]	The assault was by all counts severe, a fact corroborated by the contents of the medical examiner’s report and testimony.  The Appellant proceeded to rape the victim numerous times, first in the passage of the house and then in two other different rooms of the house.  The whole ordeal lasted about 9 hours from 18:00 on 14 February 2015 to 03:00 on 15 February 2015.

[24]	It is evident from the record of proceedings that the victim was extremely emotional during her testimony and the court a quo was compelled to adjourn the proceedings on account hereof at a stage.

[25]	In the early hours of 15 February 2015 at approximately 03:05, whilst the Appellant fell asleep, the victim managed to escape the confines of the house and went to the neighbour’s house where she asked for help.  The victim was full of blood, naked with a blanket raped around her.  She conveyed that she was raped and the neighbour to whom she went for help, one Smit, called the police, who came within seven minutes.  The police arrested the Appellant where he was hiding naked under a motor vehicle parked at the victim’s house.

[26]	The contents of the testimony of the victim are corroborated by the contents of the photo album and the written report compiled by the medical examiner.

[27]	The Appellant, apart from making the statement as referred to above, elected not to testify at the trial and the defence’s case was closed without adducing any evidence.  In the statement the Appellant admitted that he sexually penetrated the victim more than once, that he has assaulted her and that he also bit her breast. 

[28]	Notwithstanding the fact that the Appellant did not testify, and the contents of the statement made by the Appellant, the court a quo was mindful of the following facts: 

“It is law that even where the accused had not testified the Court must still be satisfied that his guilt has been proved beyond reasonable doubt.

The form J88 was handed in by consent and indeed the doctor noted the injuries which were sustained by the complainant in this case.

In his conclusion the doctor who examined the complainant Dr L J Erasmus there is evidence of forceful vaginal penetration.  And accused himself in Extension B that is the formal admissions in terms of Section 220 admitted that he penetrated the complainant more than once.

However, if one reads Extension B as to how he assaulted the complainant to a certain extent it soes not tally with the, what is contained in the J88 because according to Extension B he was, just a moment.  He was, the accused admits that he assaulted the complainant that same night by hitting her with open hands, clenched fists and biting on her breasts.  Indeed, there is an indication that there was an injury on the breasts.

But according to the J88 the doctor concludes that injuries are suggestive of both blunt force which maybe tally with the clenched fists and sharp force trauma.  That means a sharp instrument was also used.

Indeed, that conclusion by the doctor in the form J88 is borne out by the photos 34, 35 and 36.

I do not think that open hands only and clenched fists can inflict such grievance injuries as we can see on those photos. The doctor is right to say that also a sharp instrument must have been used.

Though the accused has not testified it was put to the complainant that that night at a certain tavern they walked together after they have agreed to have sexual intercourse.  And indeed, they had consensual sexual intercourse.  It is only when the complainant demanded money because that sexual intercourse would have been in return for the accused paying the complainant.  When the complainant demanded more that is when the complainant, that is when the accused, that is when the complainant grabbed the accused person by his private parts and then he assaulted the complainant in this fashion.  However, this is not the version of the accused as he did not confirm this under oath.  I just mentioned it as a proposition which is only what we call, which is only an evidential material.  But be it as it may one looks at the injuries sustained by the complainant in this matter clearly the question of consent is out.

An uncontested version for the state is that the complainant was raped as she testified.  She did not know this stranger who came on the premises and who eventually rape her as confirmed by the doctor that was indeed a forceful penetration.

Even though the accused did not testify on the evidence tendered before this Court I am satisfied that the guilt of the accused was proved beyond reasonable doubt.  The Accused is therefore found guilty as charged.”

[29]	In dealing with sentence the court a quo took into account the personal circumstances of the Appellant, to wit that he was a first offender who was very young.

[30]	The court a quo also discounted the seriousness of the crime and the impact which it had on the victim and interest of society.  

[31]	The court a quo dealt with the prescribed minimum sentence in view of the fact that the victim was raped more than once and that the rape involved “…the infliction of grievous bodily harm…” as contemplated in and Schedule 2 of the Criminal Law Amendment Act – to which more comprehensive reference shall be made to below.  It is clear from the aforestated facts that the rape of the victim by the Appellant that the Appellant formed the clear intend of raping the victim more than once and in different locations in the victims house.  The importance of these facts, as will be evident below, is that this brings the actions of the Appellant within the purview of section 51(1) of the Criminal Law Amendment Act in respect of both victims.

[32]	In this regard the court a quo stated, “The factors which Court will normally consider when embarking on the inquiry whether substantial and compelling circumstances exist is the triad that is your personal circumstances, the seriousness of the offence as well as the interest of the society.”

[33]	After a detailed consideration of the seriousness of the crime, the personal circumstances of the Appellant and the interest of society the court a quo stated the following: “Therefore, I find in this case having considered the trail your personal circumstances, the interest of the society as well as the seriousness of the offence and the manner in which this offence was committed, I find that there are no substantial and compelling circumstances to justify this Court to deviate from the prescribed sentence.”

[34]	The court a quo accordingly found that there were no “…substantial and compelling circumstances present…” to warrant the departure from the prescribed minimum sentence as per the provisions of section 51(1) of the Criminal Law Amendment Act, for the offence of which the Appellant was found guilty, i.e., rape as contemplated in section 3 of the SORM Criminal Law Amendment Act more than once by the Appellant and involving “…the infliction of grievous bodily harm…” as contemplated in the provisions of Schedule 2, Part 1 (Rape) to the Criminal Law Amendment Act.

[35]	The court a quo accordingly proceeded to sentence the Appellant as set out in paragraph [8] above.

THE PRESCRIBED MINIMIMUM SENTENCE

[36]	The provisions of section 51(1) of the Criminal Law Amendment Act are applicable in this matter and prescribe the following minimum sentence in a peremptory manner: “Notwithstanding any other law, but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person[— (a) if it has convicted [a person] of an offence referred to in Part 1 of Schedule 2 … to imprisonment for life.” (own emphasis)

[37]	Section 51(3)(a) of the Criminal Law Amendment Act contains a redeeming provision and states the following:  “If any court referred to in subsection (1) or (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 the proceedings and [may] must thereupon impose such lesser sentence: Provided that if a regional court imposes such a lesser sentence in respect of an offence referred to Part 1 of Schedule 2, it shall have jurisdiction to impose a term of imprisonment for a period not exceeding 30 years.” (own emphasis)

[38]	Section 51(3)(aA) of the Criminal Law Amendment Act aids the interpretation of the phrase “substantial and compelling circumstances” by stating which facts shall not constitute “substantial and compelling circumstances”.  This provision reads as following:  “When imposing a sentence in respect of the offence of rape the following shall not constitute substantial and compelling circumstances justifying the imposition of a lesser sentence: (i) The complainant's previous sexual history; (ii) an apparent lack of physical injury to the complainant; (iii) an accused person's cultural or religious beliefs about rape; or (iv) any relationship between the accused.” (own emphasis)

[39]	The provisions of section 51(1) refer to Schedule 2, Part 1.  In respect of this matter the applicable provisions of this Part of Schedule 2 is the part which deals with “rape”.  This part reads as follows:

“Rape as contemplated in section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 —

(a)	when committed—

(i)	in circumstances where the victim was raped more than once whether by the accused or by any co-perpetrator or accomplice;

(ii)	by more than one person, where such persons acted in the execution or furtherance of a common purpose or conspiracy;

(iii)	by a person who has been convicted of two or more offences of rape or compelled rape, but has not yet been sentenced in respect of such convictions; or

(iv)	by a person, knowing that he has the acquired immune deficiency syndrome or the human immunodeficiency virus;

(b)	where the victim—

(i)	is a person under the age of 16 years;

(iA)	is an older person as defined in section 1 of the Older Persons Act, 2006 (Act No. 13 of 2006);

(ii)	is a physically disabled person who, due to his or her physical disability, is rendered particularly vulnerable; or

(iii)	is a person who is mentally disabled as contemplated in section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007; or

(c)	involving the infliction of grievous bodily harm.”

THE PERTINENT ISSUES IN THIS APPEAL IN RESPECT OF CONVICTION AND SENTENCE

[40]	On the evidence as adduced before the court a quo, the court a quo applied the provisions of section 51(1) of the Criminal Law Amendment Act and sentenced the Appellant to life imprisonment, having found no “substantial and compelling circumstances” as contemplated in section 51(2) of the Criminal Law Amendment Act, to trigger the redeeming effect of the last mentioned section.

[41]	Having regard to the fact that the court a quo, following and implementing the provisions of section 51(1) of the Criminal Law Amendment Act and sentenced the Appellant as aforestated, the crisp issue in this appeal in respect of the Appellant’s appeal against his sentence is whether the court a quo was correct in its finding that there are no “…substantial and compelling circumstances justifying the imposition of a lesser sentence…” than life imprisonment.

[42]	Accordingly, one needs to turn to the content and interpretation which was given in the past by the courts to the phrase “…substantial and compelling circumstances…”.

[43]	In respect of sentence the Appellant placed his personal circumstances as referred to above before the Court.  It must also be emphasised that the Appellant was a first offender.

[44]	In the heads of argument submitted on behalf of the Appellant it is argued that the court a quo “…did not take into account the personal circumstance which were scantily placed on record by the Legal Representative…”.  The contents of the record of proceedings indicate that this argument is not correct.  The court a quo had due regard to the person circumstances of the Appellant.  In fact, it was submitted by the legal representative of the Appellant that there are no “…substantial and compelling circumstances…” present.

[45]	In as far as the Appellant’s arguments of inadequate legal representation is concerned, it is not the case of the Applicant in this appeal that the Appellant’s legal representative acted against the Appellant’s instructions.  In fact, when the Appellant’s legal representative adduced the statement of the Appellant to the court a quo, the court a quo, the following exchanges between the court a quo and the Appellant’s legal representative took place:

“MS ODENDAAL:	May it please the Court Your Worship.  I confirm my appearance on behalf of the accused.  I confirm that I did approach the state and request to address the Court at this stage.

Your Worship I consulted with the accused and I would like to make formal admissions in terms of Section 220 at this stage.  I ask to do it before the witnesses we called because it will shorten perhaps some of the questioning.

COURT:	And it has been signed by him is it so?

INTERPRETER:	Indeed, the accused person appended his signature.

COURT:	Therefore, the statement will be handed in and marked Exhibit B is it so?

PROSECUTOR:	I am sorry Your Honour?

COURT:	The statement in terms of Section 220 by the accused person is handed up and marked Exhibit B.

PROSECUTOR:	As the Court pleases.

COURT:	Yes proceed.” (own emphasis) 

[46]	In the matter of S v Louw the Supreme Court of Appeal stated the following regarding the interaction between an accused person and his/her legal representative:

“It is axiomatic that an accused person’s constitutional right to representation by a legal practitioner would be rendered meaningless by incompetent representation or, as is alleged in this case, a complete failure to execute the accused’s mandate and instead compelling the accused to act against his or her will in a criminal trial.  It is equally well established that a legal representative never assumes total control of a case, to the complete exclusion of the accused.  An accused person always retains a measure of control over his or her case and, to that end, furnishes the legal representatives with instructions.  As Van Blerk [A]JA expressed, it in a separate concurring judgment, in R v Matonsi: ‘. . . die klient dra nie volkome seggenskap oor sy saak onherroeplik aan sy advokaat oor nie’.  While the legal representative assumes control over the conduct of the case, that control is always confined to the parameters of the client’s instructions.  The other side of the coin is that, in the event of an irresolvable conflict between the execution of a client’s mandate and the legal representative’s control of the case, the legal representative must withdraw or the client must terminate his or her mandate where such an impasse arises.  An accused person cannot simply remain supine until after conviction.” (own emphasis)

[47]	Having regard to the facts of the facts of the matter one of which being that the Appellant was arrested whilst hiding naked under a car parked alongside the house where the victim was assaulted and raped and that the victim there and then identified the arrested Appellant as her assailant, the options open to the legal representative of the Appellant as to the manner in which the Appellant’s case stood to be conducted were limited, to say the least. 

[48]	This does not mean that this Court is by any means overwhelmingly impressed by the manner in which the Appellant’s defence was conducted.  The accusation that the Appellant’s legal representative could have mounted a more vigorous defence however, in the view of this Court, does not rise to the level where the proceedings against the accused can be vitiated on this basis alone.  The Appellant’s legal representative did not act contrary to the instructions of the Appellant as is evident from the contents of the quoted portion of the record.

[49]	The heads of argument delivered on behalf of the Respondent the Court was inter alia referred to the criteria with which this Court dealt in this judgment as to when a court of appeal is at liberty to interfere with the actions of the court a quo.  

[50]	The Respondent also aptly referred to the matter of S v Boesak wherein the following was stated regarding an accused person’s election not to testify:

“The right to remain silent has application at different stages of a criminal prosecution.  An arrested person is entitled to remain silent and may not be compelled to make any confession or admission that could be used in evidence against that person.   It arises again at the trial stage when an accused has the right to be presumed innocent, to remain silent, and not to testify during the proceedings.   The fact that an accused person is under no obligation to testify does not mean that there are no consequences attaching to a decision to remain silent during the trial.  If there is evidence calling for an answer, and an accused person chooses to remain silent in the face of such evidence, a court may well be entitled to conclude that the evidence is sufficient in the absence of an explanation to prove the guilt of the accused.  Whether such a conclusion is justified will depend on the weight of the evidence.” (own emphasis)

[51]	The Respondent pointed out a number of aggravating circumstances which emanated from the facts which were considered proven by the court a quo.  The Respondent submitted that both the conviction and sentence imposed by the court a quo were appropriate.

[52]	In this matter the victim was present at her house when the Appellant approached her entering the premises where she was sitting.  The Appellant proceeded to assault and rape the victim in the most violent of fashions numerous times in a nightmarish ordeal which lasted approximately 9 hours.  These actions by the Appellant scarred the victim and left her maimed for life.

[53]	Having regard to the findings made by the court a quo, this Court of appeal is satisfied that the conviction of the appellant should not be overturned.

[54]	Turning to the prescribed minimum sentences imposed by the court a quo.  In the matter of S v Malgas, the following was stated by Marais JA in the SCA regarding sentencing and the implementation of the provisions of section 51 of the Criminal Law Amendment Act and the concomitant imposing of prescribed minimum sentences brought about thereby:

“…The very fact that this amending legislation has been enacted indicates that Parliament was not content with that and that it was no longer to be “business as usual” when sentencing for the commission of the specified crimes.

In what respects was it no longer business as usual?  First, a court was not to be given a clean slate on which to inscribe whatever sentence it thought fit.  Instead, it was required to approach that question conscious of the fact that the legislature has ordained life imprisonment or the particular prescribed period of imprisonment as the sentence which should ordinarily be imposed for the commission of the listed crimes in the specified circumstances.  In short, the legislature aimed at ensuring a severe, standardised, and consistent response from the courts to the commission of such crimes unless there were, and could be seen to be, truly convincing reasons for a different response.  When considering sentence the emphasis was to be shifted to the objective gravity of the type of crime and the public’s need for effective sanctions against it.  But that did not mean that all other considerations were to be ignored.  The residual discretion to decline to pass the sentence which the commission of such an offence would ordinarily attract plainly was given to the courts in recognition of the easily foreseeable injustices which could result from obliging them to pass the specified sentences come what may.

Secondly, a court was required to spell out and enter on the record the circumstances which it considered justified a refusal to impose the specified sentence.  As was observed in Flannery v Halifax Estate Agencies Ltd by the Court of Appeal, ‘a requirement to give reasons concentrates the mind, if it is fulfilled the resulting decision is much more likely to be soundly based- than if it is not’.  Moreover, those circumstances had to be substantial and compelling.  Whatever nuances of meaning may lurk in those words, their central thrust seems obvious.  The specified sentences were not to be departed from lightly and for flimsy reasons which could not withstand scrutiny.  Speculative hypotheses favourable to the offender, maudlin sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy implicit in the amending legislation, and like considerations were equally obviously not intended to qualify as substantial and compelling circumstances.  Nor were marginal differences in the personal circumstances or degrees of participation of co-offenders which, but for the provisions, might have justified differentiating between them.  But for the rest I can see no warrant for deducing that the legislature intended a court to exclude from consideration, ante omnia as it were, any or all of the many factors traditionally and rightly taken into account by courts when sentencing offenders…” (own emphasis)

[55]	In the matter of S v GN, Du Plessis J stated in respect of the Malgas judgment:

“…As I understand the Malgas judgment, the prescribed minimum sentence may be departed from if, having regard to all the factors that play a role in determining a just sentence, the court concludes that the imposition of the prescribed minimum would in the particular case constitute an injustice or would be “disproportionate to the crime, the criminal and the legitimate needs of society”…”

[56]	The Supreme Court of Appeal has recently confirmed that certain mitigating personal circumstances of an accused and even the fact that an accused person is a first offender do not constitute “substantial and compelling circumstances” as contemplated in section 51(2) of the Criminal Law Amendment Act.  The SCA in the matter of Mthanti v The State of which the facts to a limited extend resonates with the facts in this matter, stated the following:

“[19] The last issue is whether there were substantial and compelling circumstances that justified deviation from the minimum prescribed sentences in this case.  It is apparent from the above description of the events that took place on the three occasions that the aggravating circumstances present when committing the crimes by far outweighed the mitigating factors.  The high court was correct in considering that the appellant’s criminal conduct was not ‘fleeting and impetuous’; that it was ‘calculated and callous’, and that there was no reason to deviate from the prescribed minimum sentences. 

[20] The only submission made on appeal was that the appellant‘s mother died when he was 7 years old.  The suggestion was that the appellant was troubled by the fact that his mother died without revealing the identity of his father.  But all of this was considered by the high court.  The court also considered in the appellant’s favour, his personal circumstances - that he was gainfully employed at the time of his arrest for the offences in question and supporting his two minor children.  It considered that although he lost his only biological parent early in his life, his uncle and aunt gave him 10 a ‘good and warm upbringing’ until he abandoned his post matric studies without telling them’.  The court considered that the appellant was a first offender. 

[21] The appellant ruthlessly exploited the vulnerabilities of the most exposed members of our society.  He preyed on those most affected by the high levels of unemployment in the country.  He deceived women, causing them to leave the security and comfort of their homes.  He caused them to use their meagre financial resources to travel to Pietermaritzburg.  He robbed them of their scant belongings and then humiliated the second and third complainants by raping them.  In respect of the third complainant the rape happened in the most degrading manner, in the presence of a third person.  He then left the complainants to their own devices in remote places at night.  This he did repeatedly, as the high court correctly found.  In all three incidents there was no basis for a departure from the prescribed minimum sentences.”

[57]	The above referred to case (as confirmed in the Malgas matter) confirms that certain mitigating factors from the Appellant’s personal circumstances are in isolation not sufficient to justify a departure from the imposition of a minimum sentence. There must be substantial and compelling reasons to do so.  The court a quo in casu did not find substantial and compelling circumstances to deviate from the minimum prescribed sentences.

[58]	The usual triad of the crime, the offender, and the interests of society, as enunciated in S v Zinn were considered by the court a quo and this Court.  

[59]	With regard to the offence of rape, which are disturbingly prevalent in our country, this Court deems it appropriate to make reference to the following:

(a)	The court in the matter of Vilakazi held as follows:

“…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.”

(b)	Most recently, in the matter of Director of Public Prosecutions, Kwazulu-Natal Pietermaritzburg v Ndlovu the Supreme Court of Appeal Stated:

“Rape is an utterly despicable, selfish, deplorable, heinous and horrendous crime. It gains nothing for the perpetrator, save perhaps fleeting gratification, but inflicts lasting emotional trauma and, often, physical scars on the victim.  More than two decades ago, Mohamed CJ, writing for a unanimous court, aptly remarked that:  '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 lives.'

In similar vein Nugent JA, writing for a unanimous court, in equal measure described rape in these terms:  'Rape is a repulsive crime, it was rightly described by counsel in this case as an invasion of the most private and intimate zone of a woman and strikes at the core of her personhood and dignity.'”

(c)	In Tshabalala v S (Commissioner for Gender Equality and Centre for Applied Legal Studie sas Amici Curiae); Ntuli v S  the Constitutional Court stated “…rape is not rare, unusual and deviant.  It is structural and systemic…”

(d)	In Masiya v Director of Public Prosecution Pretoria and Another (Centre for Applied Legal Studies and another as Amici Curiae) the Constitutional Court said the following of rape:

“Today rape is recognised as being less about sex and more about the expression of power through degradation and concurrent violation of the victim's dignity, bodily integrity and privacy.  Regrettably, 26 years, since the decision of this Court in Chapman, the scourge of rape has shown no signs of abating.  On the contrary, it appears to be on an upward trajectory.”

(e)	In recent times, this “…upwards trajectory...” referred to by the Constitutional Court in 2007 seems to be continuing unabated, notwithstanding numerous efforts form government and society at large to address violence committed against women and children.

(f)	It is not only this Court that is saying this.  In the matter of Director of Public Prosecutions, Grahamstown v T M

“The reality is that South Africa has five times the global average in violence against women.  There is mounting evidence that these disproportionally high levels of violence against women and children, has immeasurable and far-reaching effects on the health of our nation, and its economy.  Despite severe underreporting, there are 51 cases of child sexual victimisation per day.  UNICEF research has found that over a third (35.4%) of young people have been the victim of sexual violence at some point in their lives.  What cannot be denied is that our country is facing a pandemic of sexual violence against women and children.  Courts cannot ignore this fact. In these circumstances the only appropriate sentence is that which has been ordained by statute.” (footnotes omitted and own emphasis)

[60]	Against this background, the courts in this country must not shy away from its role to address and discount the fact that violence committed against woman and children must be condemned in the strongest terms, eradicated and the seriousness of this task must be reflected in the manner in which the courts address same.  This must be done whilst striking a balance with the court’s compelling duty to ensure that the punishment fits the crime and, of course, the offender.

[61]	In the matter of Ndou v S Shongwe JA stated that:

“Sentencing is the most difficult stage of a criminal trial, in my view.  Courts should take care to elicit the necessary information to put them in a position to exercise their sentencing discretion properly.  In rape cases, for instance, where a minor is a victim, more information on the mental effect of the rape on the victim should be required, perhaps in the form of calling for a report from a social worker.  This is especially so in cases where it is clear that life imprisonment is being considered to be an appropriate sentence.  Life imprisonment is the ultimate and most severe sentence that our courts may impose; therefore a sentencing court should be seen to have sufficient information before it to justify that sentence”.

[62]	The information placed before the court a quo on behalf of the Appellant, in the discretion of the court a quo, did not present substantial and compelling circumstances to have justified the imposition of a lesser sentence than the prescribed minimum sentence.  There exists no reason for this Court to interfere with this finding.

[63]	In fact, having regard to the facts in this matter and the manner in which the rape of the victim was perpetrated by the Appellant in this matter it is difficult to imagine which scenario of facts would have constituted substantial and compelling circumstances to have justified the imposition of a lesser sentence than the prescribed maximum sentence.  

[64]	This is also apparent from a consideration of recent case law that deals with similar facts surrounding vicious incidents of rape.

[65]	As to the conviction of the Appellant, the court a quo in the view of this Court correctly found that the full conspectus of evidence placed before it established the guilt of the Appellant.  The conclusion reached by the court a quo rationally and meticulously accounted for all the evidence before it.  There is no reason for this Court of appeal to interfere with the finding of the court a quo in respect of the conviction of the Appellant on the count of rape as per the charge levied against him.

[66]	If one then has regard to the manner in which the court a quo dealt with the sentencing of the Appellant it is evident that a proportioned, balanced and all-inclusive approach was adopted by the court a quo, taking into account all the relevant evidence placed before it.  The court a quo was clearly alive to the fact that there must be a separate and distinct enquiry as the absence of any substantial and compelling circumstances before the court can proceed to impose the prescribed minimum sentence, in casu, life imprisonment.

[67]	The imposition of life imprisonment is, however, the most severe sanction available to the court.  It is imperative, therefore, that this Court is satisfied that the sentence is indeed proportionate in casu.  

[68]	In S v Dodo Ackermann J dealt with the “concept of proportionality” and stated the following:

“…The concept of proportionality goes to the heart of the inquiry as to whether punishment is cruel, inhuman or degrading, particularly where, as here, it is almost exclusively the length of time for which an offender is sentenced that is in issue.  This was recognized in S v Makwanyane. Section 12(1)(a) [of the Constitution] guarantees, amongst others, the right “not to be deprived of freedom… without just cause.”  The “cause” justifying penal incarceration and thus the deprivation of the offender’s freedom, is the offence committed.  “Offence”, as used throughout in the present 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.  In order to justify the deprivation of an offender’s freedom it must be shown that it is reasonably necessary to curb the offence and punish the offender.  Thus the length of punishment must be proportionate to the offence.

…To attempt to justify any period of penal incarceration, let alone imprisonment for life as in the present case, without inquiring into the proportionality between the offence and the period of imprisonment, is to ignore, if not to deny, that which lies at the very heart of human dignity.  Human beings are not commodities to which a price can be attached; they are creatures with inherent and infinite worth; they ought to be treated as ends in themselves, never merely as means to an end.  Where the length of a sentence, which has been imposed because of its general deterrent effect on others, bears no relation to the gravity of the offence (in the sense defined in paragraph 37 above) the offender is being used essentially as a means to another end and the offender’s dignity assailed.  So too where the reformative effect of the punishment is predominant and the offender sentenced to lengthy imprisonment, principally because he cannot be reformed in a shorter period, but the length of imprisonment bears no relationship to what the committed offence merits.  Even in the absence of such features, mere disproportionality between the offence and the period of imprisonment would also tend to treat the offender as a means to an end, thereby denying the offender’s humanity.” 

[69]	The principle of proportionality was also addressed in Vilakazi v S, where Nugent JA observed that a prescribed sentence cannot be assumed, a priori, to be proportionate in a particular case.  This was an issue to be determined upon consideration of all the circumstances in the matter.  In casu, the court a quo did so, and there is no reason for this Court to interfere with the sentence imposed by the court a quo.

[70]	In this matter this Court is satisfied that the imposition of the prescribed minimum sentence would most definitely not constitute an injustice, neither would it be disproportionate to the crime, the criminal and the legitimate needs of society.

CONCLUSION AND JUDGMENT 

[71]	Having had regard to the record and the arguments led on behalf of the Appellant and Respondent, respectively, this Court is satisfied that there is no basis upon which to interfere with the finding of guilt and the sentence imposed by the court a quo.

[72]	Accordingly, the Appellant’s appeal against both conviction and sentence is dismissed.

N G LAUBSCHER
ACTING JUDGE OF THE HIGH COURT
NORTH-WEST DIVISION, MAHIKENG

I agree and it is so ordered.

FMM REID
JUDGE OF THE HIGH COURT
NORTH-WEST DIVISION, MAHIKENG

DATE OF HEARING: 1 December 2023

DATE OF JUDGMENT: 16 April 2024

For the Appellant: 		Adv B R Matlhape
				Instructed by Legal Aid South Africa

For the Respondent: 	Adv T Koloti
				Office of the Public Prosecutor