Mzamo v S (13/2018) [2021] ZAECGHC 74 (3 August 2021)

REPORTABLE

IN THE HIGH COURT

OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

Appeal Number: 13/2018

Case Number: RCPE2149/2014

Date of Hearing: 24 March 2021

Date of Delivery: 3 August 2021

In the matter between:

MONDE

MZAMO

APPELLANT

and

THE

STATE

RESPONDENT

JUDGMENT

NOTYESI AJ

Introduction

[1] The appeal is against sentence only. The appellant was convicted by the Regional Court in Port Elizabeth for raping his 12 year old stepdaughter. The Port Elizabeth Regional Court found no exceptional circumstances and sentenced him, in terms of the minimum sentence legislation, to an effective term of life imprisonment. This is an automatic appeal in terms of section 309(1) of the Criminal Procedure Act 51 of 1977 (the “Criminal Procedure Act”). The appellant pleaded guilty to the charge.

[2] In this appeal, it is contended that the sentence imposed by the Regional Court is shockingly inappropriate and severe and that the Magistrate had erred in finding that there were no substantial and compelling reasons to deviate from the prescribed minimum sentence legislation.

Background

[3] On 7 May 2015, the appellant pleaded guilty to the charge for raping his 12 year old stepdaughter. The appellant tendered a plea statement in terms of section 112(2) of the Criminal Procedure Act. The appellant was legally represented during the trial.

[4] The appellant stated that he is married to the complainant’s mother and that they have two children born out of the marriage. Prior to 2004, the complainant lived with her relatives. However, since 2004, she lived with her mother and the appellant. The appellant’s family resided in a 3 bedroom house situated at 67 Johnson Road, Zwide in Port Elizabeth now known as Gqeberha.

[5] In the plea statement, the appellant admitted that:

5.1 The complainant is his stepdaughter.

5.2 He raped the complainant between November 2007 and January 2008.

5.3 The rape occurred in this house during the day and in the absence of the complainant’s mother.

5.4 As a result of the rape, the complainant became pregnant.

[6] The complainant’s pregnancy was first noticed by her aunt, Ntombomzi Sabalele. When confronted about the pregnancy, the complainant revealed that she was raped by the appellant.

[7] At the time of conviction, the Magistrate was presented with a pre-sentence report prepared by Fundiswa Seti the probation officer, Prof M Nagdee, Dr H Jordaan and Mr I Reid’s psychiatric report, two affidavits by the complainant and her aunt, Ntombomzi Sabalele on the impact that the rape had and a J88. All these documents form part of the appeal record.

Grounds of Appeal

[8] On a conspectus, the appeal is predicated mainly on the grounds that:

“(a) the Court erred by not deviating from the prescribed minimum sentence(s) of life imprisonment and on coming to the conclusion that the appellant failed to show in his case that there were no substantial and compelling circumstances that can make the Court to deviate from the prescribed minimum sentence of life imprisonment; and

(b) based on the incorrect conclusion, the court exercised its discretion incorrectly when imposing the sentence, resulting in the imposition of a sentence that is shockingly inappropriate and severe.”

[9] I shall consider the grounds of this appeal.

General Principles

[10] The task of imposing an appropriate sentence is within the discretion of the trial court. A court of appeal may only interfere if the sentence imposed is shockingly inappropriate,[1] or there is an irregularity or misdirection on the part of the trial court.

[11] In S v Rabie[2] Corbett JA held:

“In every appeal against the sentence, whether imposed by the Magistrate or a judge, 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 irregularity or by misdirection or is disturbingly inappropriate.”

[12] Corbett JA further remarked that:

“[a] judicial officer should not approach punishment in a spirit of anger, because, being human, that will make it difficult for him to achieve that delicate balance between the crime, the criminal and the interest of society which his task and the objects of punishment demand of him. Nor should he strive after severity; nor, on the other hand, surrender himself to misplaced pity. While not flinching from firmness, where firmness is called for, he should approach his task with humane and compassionate understanding of human frailties and the pressures of society which contribute to criminality.”

[13] In Mudau v The State[3] Majiedt JA held:

“…….Sentencing should always be considered and passed dispassionately, objectively and upon a careful consideration of all relevant factors. Public sentiment cannot be ignored, but it can never be permitted to displace the careful judgment and fine balancing that is involved at arriving at an appropriate sentence. Courts must therefore always strive to arrive at a sentence which is just and fair to both the victim and the perpetrator, has regard to the nature of the crime and takes account of the interests of society. Sentencing involves a very high degree of responsibility which should be carried out with equanimity.”

[14] The principles developed in S v Zinn[4] remains the leading authority in the consideration of the appropriate sentence. Rumpff JA set out the triad of factors warranting consideration in sentencing, namely the offender, the crime and the interests of society are the very essence of a balanced, effective sentence which meets all the sentencing objectives.

[15] In R v Karg[5] Schreiner JA observed:

“While the deterrent effect of punishment has remained as important as ever, it is, I think, correct to say that the retributive aspect has tended to yield ground to the aspects of prevention and correction. That is no doubt a good thing. But the element of retribution, historically important, is by no means absent from the modern approach. It is not wrong that the natural indignation of interested persons and of the community at large should receive some recognition in the sentence that Courts impose, and it is not irrelevant to bear in mind that, if sentences for serious crimes are too lenient, the administration of justice may fall into disrepute and injured persons may incline to take the law into their own hands.”

[16] Finally, the court in S v Malgas[6] held:

“Courts are required to approach the imposition of sentence conscious that the Legislature has ordained life imprisonment (or the particular prescribed period of imprisonment) as the sentence that should ordinarily and in the absence of weighty justification be imposed for the listed crimes in the specified circumstances.”

[17] Rape is a serious offence and was described in S v Chapman[7] as ‘a humiliating, degrading and brutal invasion of the privacy and the dignity of the person of the victim’.

[18] Notwithstanding the nature of the crime of rape, the court is obliged to take into account all relevant factors as set out in the cases and in particular the overarching principle in Malgas when passing a sentence.

[19] Courts have repeatedly described the offence of rape as:

“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.”[8]

[20] Majiedt J in Mudau v The State[9] held:

“It is necessary to reiterate a few self-evident realities. First, rape is undeniably a degrading, humiliating and brutal invasion of a person’s most intimate, private space. The very act itself, even absent any accompanying violent assault inflicted by the perpetrator, is a violent and traumatic infringement of a person’s fundamental right to be free from all forms of violence and not to be treated in a cruel, inhumane or degrading way. In S v Vilakazi, Nugent JA referred to the study done by Rachel Jewkes and Naeema Abrahams on the epidemiology of rape which concluded on the available evidence that ‘women’s right to give or withhold consent to sexual intercourse is one of the most commonly violated of all, human rights in South Africa.”

(Footnotes omitted)

[21] The kind of sentences imposed for this type of offence are warranted. In S v Abrahams[10] the court held:

“some rapes are worse than others, and the life sentence ordained by the Legislature should be reserved for cases devoid of substantial factors compelling the conclusion that such a sentence is inappropriate and unjust.”

[22] In Vilakazi v State[11] Nugent JA made this observation:

“There is considerable risk in those circumstances that excessive punishment will be heaped on the relatively few who are convicted in retribution for the crimes of those who escape or in the despairing hope that it will arrest the scourge. But the Constitutional Court reminded us in S v Dodo that punishment must always be proportionate to the deserts of the particular offender – no less but also no more – for all human beings ‘ought to be treated as ends in themselves, never merely as means to an end’.

[23] In the same case, Nugent JA confirmed the principle that:

“It is clear from the terms in which the (determinative) test was framed in Malgas and endorsed in Dodo 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 the particular case, whether the prescribed sentence is indeed proportionate to the particular offence.”

Discussion

[24] The Magistrate found that there are no substantial and compelling circumstances to deviate from the prescribed minimal sentence.

[25] In support of the Magistrate’s finding, the State contends that the sentence imposed on the appellant is appropriate. The appellant contends otherwise.

[26] As laid out in case law:

(a) The point of departure is that the prescribed sentence must ordinarily be imposed.

(b) It is only if a court is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence. In such cases the court may depart from the prescribed minimum sentence.

(c) In deciding whether substantial and compelling circumstances exist, the court is required to look at the mitigating and aggravating factors, and consider the cumulative effect thereof.

(d) If the court concludes that the minimum prescribed sentence is so disproportionate to the sentence which would be appropriate – to the extent that an injustice would be done by imposing that – it would be entitled to impose a lesser sentence.

(e) The specified sentence are, however, not to be departed from lightly and for flimsy reasons.[12]

[27] Mr Geldenhuys contended that the Magistrate ought to have considered the following circumstances which were substantial and compelling:

27.1 the complainant did not give the child up for adoption and the appellant and his wife lived with the child as part of family.

27.2 The appellant assumed full responsibility of the child and provided support to both the complainant and the child.

27.3 The appellant has a borderline intellectual functioning. In this regard, Mr Geldenhuys pointed this court to the psychiatric report issued in accordance with provisions of section 79(4)(b) of the Criminal Procedure Act and the relevant portion reads:

“Section 79(4)(b) : Diagnosis of Mental Condition;

Borderline intellectual functioning (not mentally retarded).”

27.4 The psychiatric report was corroborated by the report of the probation officer, which reads:

“The accused’s mother indicated that her son could not cope with the academic demands of the school, as he was repeating grades at school. …….. He was referred to a psychologist due to the fact that he was unable to read and write. The psychologist then referred the accused to Luthando Luvuyo Special School, because of his low intellectual capacity during 1984. The undersigned probation officer, during her consultation with the accused, observed that he was able to relay information in a sensible way, despite his psychological problem.”

27.5 The probation officer’s report reveals that the appellant has a troubled family background. According to the probation officer’s report, the appellant met his wife for the first time at a special school where they were learners.

[28] The submission is that had the Magistrate carefully considered these facts, he would have concluded that the appellant has established substantial and exceptional circumstances.

[29] The gravamen of Mr Geldenhuys’ contention is that the background of the appellant, his intellectual capacity, the fact that he pleaded guilty to the offence, has taken responsibility of the child, is giving support to complainant and baby, and that the complainant did not suffer serious physical injuries, justify deviation from the prescribed minimum sentence.

[30] Mr Geldenhuys further submitted that in addition to the factors set out in the report, the age of the appellant and the fact that he has no previous convictions weigh heavily in his favour. Mr Geldenhuys is of the view that the Magistrate was obliged to consider all those factors. The Magistrate’s failure to consider these factors amounts to the Magistrate erring in the exercise of his discretion.

[31] Ms Prince, who appeared for the State, contended that there are a number of aggravating factors which justify the imposition of the prescribed minimum sentence:

31.1 The complainant was 12 years old at the time of the incident.

31.2 The complainant was the appellant’s stepdaughter.

31.3 The appellant abused his position of trust as a parent and caregiver.

31.4 The crime was pre-meditated and carefully planned.

31.5 The rape continued over a period of time.

31.6 The complainant was robbed of her virginity and childhood by the appellant.

31.7 The rape must have caused permanent emotional damage to the complainant.

[32] In considering the submissions by the parties, I take into account that the Magistrate did not sufficiently deal with the reports and the affidavits presented to him at the time of the conviction. He merely read into record the contents of those documents without doing any factual analysis. In his judgment, the Magistrate makes this conclusion:

“Having regard to the age, the fact that the perpetrator had no previous convictions, that there were so called no serious injuries the fact that the applicant provided financially for the complainant and her child does not justify me in finding that I should deviate from the prescribed minimum sentence. I am of the view that these mitigating factors in itself and cumulatively does not constitute substantial and compelling circumstances that permit a deviation from the minimum sentence prescribed by law. I therefore conclude that life imprisonment as directed by the legislature is the only appropriate sentence and I order you to undergo life imprisonment for the offence. ” (sic)

[33] I disagree with the Magistrate’s approach. The determinative test for departure from the prescribed minimum sentence has been set out above.

[34] If regard is had to the conclusions referred to above, the Magistrate has not taken into account the evidence in its totality. The court must consider the entire evidence, both in mitigation and aggravation of sentence. I find that the Magistrate failed to do so in order to arrive at a just and appropriate sentence.

[35] Although the Magistrate incorrectly found that “[t]he accused had sex with this minor child, his step-daughter, multiple times during this period and it only came to light when the complainant fell pregnant as a result of the intercourse”, there was no evidence that the appellant had “sex multiple times” with the complainant.

[36] The court accepted a plea explanation of the appellant, which does not indicate that the appellant had sex with the complainant multiple times. The affidavit of the complainant also contains no such allegation. This is a clear misdirection on the part of the Magistrate.

[37] Had the Magistrate intended to rely on such a finding, evidence in this regard should have been obtained. It was not. I find in this regard that the Magistrate relied on incorrect facts. The correct facts are that the incidents of rape occurred between November 2007 and January 2008. No evidence about specific dates and the nature of the rape was provided. The Magistrate misdirected himself in this regard.

[38] The Magistrate appears not to have dealt carefully with the victim assessment and in particular, the probation officer’s report. This excerpt from the probation officer’s report is relevant:

“The victim indicated that, she has made a conscious decision to close that chapter in her life and to move on with her life, as she is still young and has a lot of dreams for her future. Dealing with the court case, however, has been difficult for her, as she wants to move on with her life.”

[39] The consideration of the assessment on the impact of rape and its extent is crucial. I find this failure to be a misdirection which, inevitably lead to the improper exercise of discretion.

[40] The Magistrate does not refer to the psychiatric report although it was admitted into record as exhibit “A”. The report records the diagnosis of appellant’s mental condition. The recorded conclusion by a panel of psychiatrists is that the appellant has a borderline intellectual functioning. No explanation of what is the meaning of the borderline intellectual functioning except that the appellant is not mentally retarded. More was required in view of this medical finding. The circumstances under which this report was produced are singularly lacking. No evidence at all as to why it became necessary to refer the appellant for psychiatric observation. I find this failure to deal with the circumstances of the report to be a misdirection.

[41] On each of the grounds that I have referred to, the Magistrate materially misdirected himself and the sentence that he imposed cannot stand, which means that this court must evaluate whether life imprisonment is indeed an appropriate sentence.

[42] If a court is satisfied that a lesser sentence is called for in a particular case, justifying a departure from the prescribed minimum sentence, then it hardly needs saying that the court is bound to impose that lesser sentence. This was also made clear in Malgas when the court noted that “[a] different sentence must be imposed if the court is satisfied that substantial and compelling circumstances exist which ‘justify’…..it.[13]

[43] In this case, the appellant was 35 years old and has no previous convictions. He is described as a caring and loving person. Despite him being diagnosed with intellectual challenges, he is a breadwinner and apparently holds a stable family. He pleaded guilty to the charge. I do not consider these factors to be constituting exceptional circumstances on their own, but they are relevant for consideration of an appropriate sentence.

[44] In addition, the complainant did not suffer any serious physical injuries. The State correctly submitted that the complainant was subjected to a traumatic and shocking experience. Nugent JA in Vilakazi [14] remarked that “I think it must be accepted that no woman, and least of all a child, would be left unscathed by sexual assault, and that in this case the complainant must indeed have been traumatized, but the evidence does not reveal anything more specific than that.”

[45] The complainant was depressed and cried when she was told that she was pregnant, she could not sleep thinking about her pregnancy. She informed the probation officer that she has since consciously decided to move on with her life.

[46] I have already mentioned that rape is a serious offence, especially when perpetrated against a minor. It deserves severe punishment. Importantly, the circumstances under which it took place, is relevant in the consideration of an appropriate sentence.

[47] The rather unusual and peculiar nature of this case, together with all the factors I have discussed above, in my view, justifies a conclusion that a sentence of life imprisonment is disproportionate to the crime. I therefore find that the factors mentioned below do constitute compelling and substantial circumstances:

47.1 The personal circumstances of the appellant;

47.2 That the appellant is a care giver to his family, the complainant and the child;

47.3 That the appellant has a borderline intellectual functioning;

47.4 That the complainant suffered no serious physical injuries;

47.5 The troubled background of the family and the appellant’s childhood upbringing;

47.6 The probation officer’s report insofar as it relates to the impact of the offence on the complainant. The complainant had during her interview with the probation officer indicated that she had consciously taken a decision to move on.

[48] In consideration of an appropriate sentence, I had a careful look at the case law on similar cases. In Mudau v S[15] Majiedt JA, after an extensive analysis of similar cases, which I have also considered, replaced the sentence of life imprisonment with a fifteen year imprisonment sentence. In Ndou v S[16] Shongwe JA replaced life imprisonment of the appellant, who had been convicted of raping a 15 year old girl, with 15 years’ imprisonment.

Conclusion

[49] I am satisfied that the Magistrate incorrectly exercised her discretion when imposing the sentence. I have taken into account all the circumstances of the case and accordingly, the appeal against sentence must succeed.

Order

[50] I make the following order:

1. The appeal is upheld.

2. The sentence imposed by the Regional Court is set aside and replaced with the following:

‘The accused is sentenced to 15 years’ imprisonment calculating from 28 July 2015.’

M

NOTYESI

JUDGE OF THE HIGH COURT (ACTING)

I agree

M

MAKAULA

JUDGE

OF THE HIGH COURT

Appearances:

Counsel for the appellant : D P Geldenhuys

: Legal Aid South Africa

Grahamstown

Counsel for the respondent : L A Prince

: Director of Public Prosecutions

[1] S v Singh 2016 (2) SACR 443 (SCA) at para [23].

[2] 1975 (4) SA 855 (A) at [857 D-E], S v Kibido 1998 (2) SACR 213 (SCA) at [216G-H].

[3] (764/12) [2012] ZASCA 56 (9 May 2013) para [13].

[4] S v Zinn 1969 (2) SA 537 (A) at 540G.

[5] R v Karg 1961 (1) SA 231 (A) at 236A-B, Cf S v Mafu 1992 (2) SACR 494 (A) at 497b-d.

[6] 2001 (1) SACR 469 (SCA) at page 481i.

[7] [1997] ZASCA 45; 1997 (3) SA 341 (SCA) at 344I-J; See also Ndou v The State (93/12) [2012] ZASCA 148 (28 September 2012).

[8] S v Nchenche [2005] ZAGPHC 21; 2005 (2) SACR 386 (W) at para 35.

[9] Supra at page 9 para [17].

[10] S v Abrahams 2002 (1) SACR 116 (SCA) para 29.

[11] Vilakazi v The State (576/07) [2008] ZASCA 87 (2 September 2008) para 3.

[12] S v Dyantyi 2011 (1) SACR 540 (ECG) at para 14, S v Jansen Case No: CC73/2019 at para 2 – judgment Malusi J, S v Malgas supra.

[13] Vilakazi v The State supra para 15; See reference made therein to para 25 at part B of the summary of its conclusions.

[14] Supra

[15] Supra.

[16] Supra.