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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT)

CASE NO. CC 36/2022

 

In the matter between:

 

THE STATE

 

and

 

NKOSENKULU MALI                                                                             Accused

 

SENTENCE

 

LAING J

 

[1]             The accused has already been found guilty of rape and of exposing and displaying his genitals to the complainant. The court is required to determine, at this stage of the proceedings, an appropriate sentence.

 

[2]             A clinical psychologist, Ms Karen Andrews, prepared an impact report in relation to the complainant. She found, inter alia, that:

‘[the complainant] was significantly traumatized by her experiences in this case when she was aged 10. At age 13, she continues to suffer the negative impact. The post-traumatic symptoms that she sustained after the incidents have had a negative impact on her psychological growth and development, with trajectories that will impact her negatively into adulthood.’

[3]             The report was not disputed and was admitted as evidence.

 

[4]             More will be said about it in due course.

 

[5]             The court has also received the assistance of a probation officer, Ms Phumeza Komani, who prepared a pre-sentence report regarding the accused. To that effect, she recommended a period of direct imprisonment.

 

[6]             In argument, counsel for the defence stated that the accused was convicted in 1990 for the theft of stock or produce. He was sentenced to 12 months’ imprisonment and was released on parole. He has no other convictions.

 

[7]             Referring to the pre-sentence report, counsel confirmed that the accused was raised by his parents and is one of six children. His father worked at a construction company, returning home on a fortnightly basis; his mother looked after the family, encouraging them to grow vegetables to sustain their livelihood. The passing of his mother had a negative impact on the family and led to the children’s dropping out of school because of the lack of proper parental supervision. The subsequent retrenchment of his father placed the family under severe financial strain, compelling them to rely on relatives for food.

 

[8]             Later, the accused’s father remarried and moved the family to Needs Camp. The accused enjoyed a good relationship with both his father and his stepmother, who were devout Christians and who had expected him to accompany them to church. The accused had no history of exposure to abuse or domestic violence. After the passing of his father and later his stepmother, the accused remained in their home, which comprised a three-room shack with a one-room shack next door.

 

[9]             The accused is 52 years old, unmarried, and with no children. He dropped out of school in grade eight and has worked at various construction companies since 1992 as a general worker and later as a carpenter. In that regard, counsel confirmed that the accused had received training as a carpenter while employed by Mopp Construction Company. He also has plumbing skills. The accused was not employed at the time of his arrest and earned a living by completing piecework when available and by growing vegetables.

 

[10]         The pre-sentence report indicates that the accused has no history of alcohol or drug abuse, although he smoked dagga on occasion. In general, the accused has been described by his family and neighbours as a good person, of quiet disposition, and a loner who preferred to stay at home.

 

[11]         The rape of a nine-year-old, in these circumstances, brings the offence within the ambit of the minimum sentencing provisions contained in section 51(1) of the Criminal Law Amendment Act 51 of 1997 (‘CLAA’). A life sentence is prescribed. The question to be asked, however, is whether substantial and compelling circumstances exist to justify the imposition of a lesser sentence.

 

[12]         Counsel for the state referred to S v Malgas,^[1] which is regarded as a locus classicus in relation to the subject. Marais JA held as follows:

‘…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.’

 

[13]         The learned judge went on to say:

‘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… 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.’^[2]

 

[14]         A sentence of life imprisonment is, however, the harshest punishment that a court can impose. The court must be satisfied that the sentence is proportionate to the offence. In S v Dodo,^[3] Ackermann J remarked:

‘…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.[4] 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.’^[5]

 

[15]         The principle of proportionality was also addressed in Vilakazi v S,^[6] 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 the circumstances. The essence of Malgas and Dodo, said Nugent JA, was that disproportionate sentences were not to be imposed and that courts were not vehicles for injustice.^[7]

 

[16]         In the present matter, counsel for the state reiterated the abhorrent nature of the offence of rape. This is especially so when a child is involved. Counsel referred to S v M (Centre for Child Law as amicus curiae),[8] where Sachs J observed:

‘Individually and collectively all children have the right to express themselves as independent social beings, to have their own laughter as well as sorrow, to play, imagine and explore in their own way, to themselves get to understand their bodies, minds and emotions, and above all to learn as they grow how they should conduct themselves and make choices in the wide social and moral world of adulthood. And foundational to the enjoyment of the right to childhood is the promotion of the right as far as possible to live in a secure and nurturing environment free from violence, fear, want and avoidable trauma.’[9]

 

[17]         The horrors of rape have been described repeatedly in the case law.[10] There is no need to add further gloss. The offence casts a permanent shadow, sometimes fading but always there, over the life of the victim.

 

[18]         In Vilakazi, Nugent JA held that:

‘In cases of serious crime 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 in themselves largely immaterial to what that period should be, and those seem to me to be the kind of “flimsy” grounds that Malgas said should be avoided.’[11]

 

[19]         The personal circumstances of the accused in the present matter are entirely unremarkable. He has no children, no parents, no employees, no dependents. A lack of education, economic resources, and social network are the missing anchor points that may otherwise have prevented the accused from drifting into the treacherous currents of criminal conduct. That he has been described as a good person serves merely to emphasise the tragedy of a situation in which he has been convicted of the rape of a child.

 

[20]         Counsel for the defence argued that the age of the accused and the fact that he is, to all intent and purposes, a first offender should all count in his favour. He has, moreover, cooperated with the court and the police since the inception of the trial. All of that must be acknowledged.

 

[21]         The accused was 50 years old, however, when the offence was committed. It would have been expected of him to have developed the self-awareness and self-control necessary to have conducted himself as a mature and responsible adult in his community. If anything, then the argument advanced by counsel would tend to favour a younger accused, who had not yet acquired the experience or attained the same level of development as the accused. The shortcomings in the argument are obvious.

 

[22]         Whereas the accused may have been convicted previously for an entirely unrelated offence and had no further encounters with the law for 30 years, the court is not persuaded that this assists in the present circumstances. The rape of a child is one of the most serious of all crimes.

 

[23]         Counsel for the defence raised further arguments. He pointed out that the medico-legal examination, described in the J88-form, revealed multiple clefts, which suggested previous trauma. The accused had only been found guilty of a single rape. The impact report prepared by Ms Andrews, contended counsel, had to be treated with caution because it was too generalised in its assessment of the complainant; it failed to distinguish between the most recent trauma, attributed to the accused, and previous trauma, possibly inflicted by someone else.

 

[24]         The difficulty with this argument is that it seems to suggest that various incidents of trauma can be neatly isolated and measured in terms of their severity. It may be so that an initial trauma may have significantly more impact on the well-being of a victim, especially a child, but it simply cannot be said that a later trauma should be viewed with more leniency or (worse) simply disregarded. A rape, whether as a single incident or as one of a multiple of incidents, must be seen for what it is: the brutal invasion of a person’s physical and psychological integrity, with long-lasting effects.

 

[25]         Furthermore, counsel for the defence referred to the decision of the Supreme Court of Appeal in S v Abrahams,[12] where Cameron JA stated:

‘…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. As Davis J stated in S v Swartz and another:[13]

“As controversial a proposition as this is bound to be, as not all murders carry the same moral blameworthiness, so, too, not all rapes deserve equal punishment. That is in no way to diminish the horror of rape; it is however to say that there is a difference even in the heart of darkness.”[14]’

 

[26]         It cannot be refuted that each act of rape or murder is different, with a unique set of facts and circumstances. As Cameron JA observed, a life sentence must be imposed only in those cases that are entirely lacking in any substantial factors that compel a court to decide that such a sentence would be inappropriate and unjust. The provisions of section 51(3) of the CLAA serve as a guardrail to keep in check the overzealous implementation of the prescriptive life sentence provisions contained in section 51(1).

 

[27]         Returning to the present matter, the court has struggled to identify any factors that, either individually or cumulatively, could be said to constitute substantial and compelling circumstances. In contrast, there are indeed aggravating factors, to which counsel for the state alluded. The accused has demonstrated no remorse whatsoever for his conduct; there is no sense, even, of the slightest hesitation or ambivalence in his attitude to the matter. An aspect of the evidence that appears to have been overlooked is the violence that accompanied the rape. The complainant testified that the accused pushed a strip of cloth into her mouth to prevent her from crying out. She also said that he had threatened to kill her if she told anyone about the incident. To a nine-year-old girl, the threat would have been nothing less than terrifying.

 

[28]         Overall, the court is not persuaded that the provisions of section 51(1) of the CLAA must not be applied. The courts of this division have found, repeatedly, that a sentence of life imprisonment cannot be avoided in the absence of substantial and compelling circumstances.[15] Having considered the principles enunciated in Malgas, Dodo, and (in particular) Vilakazi, the court is satisfied that a sentence of life imprisonment would not be disproportionate to the office in question.

 

[29]         It is necessary to pause at this stage and remark that it would be expected of the prison authorities to recognize the accused’s talents and abilities in carpentry and plumbing and to permit him to develop and use these constructively and meaningfully. That is his way forward.

 

[30]         The only remaining aspect to consider is the lesser offence with which the accused has been charged, viz. exposing and displaying his genitals to a child. Here, the same set of aggravating and mitigating factors that were relevant to the existence or otherwise of substantial and compelling circumstances must be considered. Mindful, particularly, of the accused’s status as a first offender, the court is satisfied that a relatively lenient sentence would not be inappropriate.

 

[31]         Consequently, at the conclusion of the matter, the following order is made:

 

1.     The accused having been found guilty of the offences with which he has been charged, is sentenced as follows:

 

(a)            on count 1, contravening the provisions of section 22 of Act 32 of 2007, read with the provisions of section 94 of Act 51 of 1977, the accused is sentenced to imprisonment for a period of 12 months; and

 

(b)            on count 2, rape, in contravention of section 3, read with sections 1, 56(1), 57(1), 58, 59, and 60, of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, read with the provisions of section 94 of Act 51 of 1977, the accused is sentenced to imprisonment for life.

 

2.     The above sentences are directed to run concurrently.

 

JGA LAING

JUDGE OF THE HIGH COURT

APPEARANCE
For the state:	Adv S Mtsila
Instructed by:	Director of Public Prosecutions
	Makhanda
	046 602 3000
For the accused:	Adv Giqwa
Instructed by:	Legal Aid South Africa
	Qonce
	043 604 6600
Date of delivery of judgment:	03 May 2024

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