IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

DELETE WHICHEVERIS NOT APPLICABLE
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VENTURA JAEMA LANGA	APPELLANT

and

THE STATE	RESPONDENT

APPEAL JUDGMENT

AMIEN AJ

[1]	This is an appeal against a sentence of life imprisonment on a conviction of rape, imposed on the Appellant by the Regional Court in Springs on 14 June 2023.

[2]	The Appellant was charged in the Springs Regional Court on two counts, namely, rape and robbery with aggravating circumstances. A third count of being in South Africa illegally was withdrawn by the state.

[3]	Count 1 relates to rape in contravention of section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

[4]	Count 2 relates to robbery with aggravating circumstances.

[5]	The Appellant pleaded guilty to both counts against him. Thereafter, the Appellant changed his plea and a plea of not guilty was noted by the Magistrate under section 113 of the Criminal Procedure Act 51 of 1977.

[6]	At the conclusion of the trial, the Appellant was convicted on both counts.

[7]	In respect of count 1, the prescribed minimum sentence of life imprisonment for rape was imposed in terms of section 51(1) read with Part I of Schedule II of the Criminal Law Amendment Act 105 of 1997 (hereafter referred to as the 'amending legislation) in terms of which the Appellant was found guilty of raping the Complainant more than once.

[8]	On count 2, the Appellant was sentenced to 15 years imprisonment.

[9]	In terms of section 280(2) of the Criminal Procedure Act, the Magistrate ordered both sentences to run concurrently.

[10]	The Appellant was also declared unfit to possess a licensed firearm in terms of section 103(1) of the Firearms Control Act 60 of 2000.

Background facts

[11]	The facts underscoring the convictions and sentence are summarized as follows:

11.1.	On 10 July 2022, the Appellant telephoned the Complainant, inquiring about the availability of cement in a hardware store where the Complainant previously worked.

11.2.	The Complainant informed the Appellant that she no longer worked at the hardware store whereupon the Appellant informed her that he had a job for her and that they should meet at Daveyton Mall.

11.3.	When the Complainant arrived at Daveyton Mall, the Appellant encouraged her to board a taxi to Springs. When the taxi reached an Engen garage in Springs, both the Appellant and the Complainant alighted from the taxi.

11.4.	The Appellant took the Complainant into an open veld where he produced an axe, with which he threatened her and proceeded to rape her twice. The Appellant did not wear a condom during either of the rapes.

11.5.	The Appellant also stole the Complainant's two cell phones.

11.6.	After the rapes, the Complainant walked to the main road and obtained assistance in getting to a hospital and to open a case at a police station.

11.7.	As a means of capturing the Appellant, the Complainant's sister telephoned him, advising that she needed a job. The Appellant indicated that she should meet him and when he took her to an open veld behind the Sasol garage in Kingsway, he was arrested.

Magistrate's decision

[12]	Section 51(1) of the amending legislation requires a minimum prescribed sentence of life imprisonment to be imposed for a conviction of rape where the Complainant is raped more than once, unless in terms of section 51(3)(a), substantial and compelling circumstances exist that justify a lesser sentence.

[13]	In considering whether substantial and compelling circumstances exist that warrant a reduction of the minimum prescribed sentence of life imprisonment, the Magistrate took the following into account:

13.1.	Personal circumstances of the Appellant:
13.1.1.	He was 35 years old at the date of sentencing.
13.1.2.	He was a matric graduate.
13.1.3.	He had no previous convictions.
13.1.4.	He was employed at Cloverdene Constructions prior to his arrest.
13.1.5.	He was married with three children.
13.1.6.	He was the breadwinner of his family.

13.2.	Nature of the crime and the interests of society:
The Magistrate acknowledged the increasing levels of violent crimes in South Africa, particularly against women. Given the seriousness of rape and its high prevalence in Gauteng and elsewhere in the country, the Magistrate found that it is the duty of the courts to impose an appropriate sentence, especially where women are raped.

[14]	The Magistrate concluded that substantial and compelling circumstances do not exist to warrant a lesser sentence than the prescribed minimum sentence of life imprisonment and accordingly imposed a sentence of life imprisonment on the Appellant.

Appellant's case

[15]	The Appellant chooses to appeal only against the sentence of life imprisonment.

[16]	In his Notice of Appeal, the Appellant lists the following reasons for his appeal:

16.1.	That an effective sentence of life imprisonment is shockingly inappropriate in that it induces a sense of shock.
16.2.	That the Court erred by not imposing a shorter term of imprisonment.
16.3.	That the Court erred by not considering the degree of remorse shown by the appellant.
16.4.	That the Court erred in over-emphasizing the seriousness of the offence and the interests of the community over the Appellant's personal circumstances.
16.5.	That the Court erred in finding that there are no compelling and substantial circumstances justifying a sentence lesser than the prescribed minimum sentence as a suitable sentence.
16.6.	That the Appellant is a family man, and he was a primary care giver.

Legal background

[17]	In S v Malgas, the Supreme Court of Appeal noted that the imposition of a minimum sentence of life imprisonment for the crimes specified in section 51 of the amending legislation, which includes multiple rapes means that it is 'no longer ... "business as usual" when sentencing for the commission of the specified crimes.'

[18]	The Supreme Court of Appeal later clarified its meaning of no longer business as usual. In S v Kwanape, the Court explained that a sentence of life imprisonment must be ordinarily imposed to ensure 'a severe, standardised, and consistent response from the courts' for the crimes specified in section 51, 'unless there were ... truly convincing reasons for a different response.'

[19]	Under section 51(3)(a) of the amending legislation, the prescribed minimum sentence can be deviated from only if substantial and compelling circumstances exist.
The Supreme Court of Appeal interprets this as meaning:

'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... the ultimate cumulative impact of those circumstances must be such as to justify a departure.'

[20]	In assessing whether substantial and compelling circumstances exist, the Supreme Court of Appeal also held:

'If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence. In so doing, account must be taken of the fact that crime of that particular kind has been singled out for severe punishment and that the sentence to be imposed in lieu of the prescribed sentence should be assessed paying due regard to the bench mark which the legislature has provided.'

This approach was endorsed by the Constitutional Court in S v Dodos.

[21]	In determining whether substantial and compelling circumstances exist, a factual inquiry is adopted by considering the triad of factors identified in S v Zinn to determine a sentence that is just and fair namely,

(a)	the nature of the crime,
(b)	the personal circumstances of the person convicted, and
(c)	the interests of society.

[22]	When the prescribed sentence is disproportionate to the above triad of factors thereby rendering the sentence unjust, a court is entitled to impose a lesser sentence.

[23]	To achieve the appropriate balance, the Supreme Court of Appeal enjoins us to weigh the personal circumstances of the convicted person against the interests of society, and to consider not only 'the objective gravity of the offence but also the impact of the crime on the victim'.

[24]	When considering sentence, one must also keep the objectives of sentencing in mind, which include retribution, deterrence, prevention and rehabilitation.

[25]	Rape is one of the vilest and most monstrous of crimes that can be committed against any person. The Supreme Court of Appeal describes it as 'repulsive', and explains its impact as 'a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim'. The Court notes that rape violates not only the victim's physical integrity, but also their emotional and psychological well-being, and can cause life-long trauma.

[26]	In S v Chapman, the Supreme Court of Appeal held unequivocally:

'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 ... The Courts are under a duty to send a clear message to the accused, to other potential rapists and to the community: We are determined to protect the equality, dignity and freedom of all women, and we shall show no mercy to those who seek to invade those rights.'

Analysis and application of law to this case

[27]	Rape is a pernicious and pervasive evil within our society. Gauteng alone, where the rape in this case was committed, accounts for 20.4% of the national total of rapes in South Africa, which is the highest contributor to the national total.

[28]	At a national level, rape comprises 80% of the total sexual offences, which is the highest contributor to the total sexual offences in the country.

[29]	It is therefore not surprising that the legislature sought fit to respond to the malicious evil that is rape, particularly multiple rapes through the imposition of a minimum prescribed sentence of life imprisonment.

[30]	The heinousness of the crime in this case was exacerbated by the fact that:

30.1.	The rapes were premeditated.
30.2.	The Appellant took advantage of the Complainant's financial vulnerability.
30.3.	The Appellant threatened the Complainant with an axe.
30.4.	After the rapes, the Appellant robbed the Complainant of her cell phones.
30.5.	The Appellant responded to the Complainant's sister's request for a job with a similar process of meeting and taking her to a veld, which suggests that his violent attack on the Complainant may not have been his first.

[31]	Regarding the impact of the rapes on the Complainant, while she does not appear to have suffered lasting physical injuries, one cannot ignore the physical violation and pain that is endured during a rape, especially during repeated acts of rape. Moreover, one cannot ignore the longer lasting emotional and psychological trauma that a rape survivor undergoes. In this case, the Victim Impact Report confirms that the Complainant struggles to go to malls and to walk the streets. She continues to struggle with the trauma of being raped. Her eight-year-old child was removed from her care. Women should not have to be made to feel vulnerable and fearful in their own neighborhoods, in their own cities, and in their own countries.

[32]	By violating the Complainant in the manner that he did, the Appellant violated the Complainant's constitutional right to freedom and security of her person, particularly her right to be free from all forms of violence from private sources as entrenched in section 12(1)(a) of the Constitution. He also violated her section 12(2)(b) right to have her bodily and psychological integrity protected, which includes the right to have security in and control over her body.

[33]	The Appellant suggests that the sentence of life imprisonment is "shockingly inappropriate", that the remorse shown by the appellant was not considered, and the serious nature of the offence and the interests of the community were over­ emphasized above the Appellant's personal circumstances. Regarding the latter, the Appellant avers that the fact that he is married with children, and that he is their primary caregiver constitutes substantial and compelling circumstances.

[34]	Remorse might be gleaned from the fact that an accused person pleads guilty. Still, the Supreme Court of Appeal distinguishes between remorse in the form of 'genuine contrition' and feeling sorry for oneself for having been caught out:

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

[35]	By changing his plea from guilty to not guilty in the middle of the proceedings, the Appellant showed no remorse, and this was correctly noted by the Magistrate.

[36]	As for the fact that the Appellant is married with children and is their primary caretaker, it is trite that when the interests of minor children may be affected, their best interests are of paramount importance, as enjoined by section 28(2) of the Constitution.

[37]	Yet, the Constitutional Court points out that a convicted person who is also a parent cannot rely on an expectation of receiving punishment that is 'least damaging to the interests of children ... as a pretext for escaping the otherwise just consequences of their own misconduct.'

[38]	In fact, the Constitutional Court notes that '[c]hildren have a need and a right to earn from their primary caregivers that individuals make moral choices for which they can be held accountable.'

[39]	In this respect, it is clear from the transcripts that the Magistrate considered the Appellant's personal circumstances, especially the fact that he is a married man and a father of three children. The Magistrate correctly observed that by resorting to crime, the Appellant placed his family in jeopardy.

[40]	Moreover, the Supreme Court of Appeal has held that when an accused person is convicted of a serious crime, their personal circumstances become overshadowed by the seriousness of the crime. The Court found that:

'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 Ma/gas said should be avoided. But they are nonetheless relevant in another respect. A material consideration is whether the accused can be expected to offend again.'

[41]	Counsel for the Appellant conceded that the actions of the Appellant indicated that he had most likely raped previously. Thus, if given a lesser sentence, one could reasonably assume that the Appellant could be expected to rape again.

[42]	Regarding the Appellant's averment that the sentence of life imprisonment is "shockingly inappropriate", the Supreme Court of Appeal in S v Malgas, found that:

'[A]n appellate court may ... be justified in interfering with the sentence imposed by the trial court ... when ... the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as "shocking", "startling" or "disturbingly inappropriate"'.'

[43]	In S v Bogaards, the Constitutional Court similarly held that an appellate court is justified in interfering with a sentence imposed by a lower court if the latter misdirects itself or if the sentence is of such a nature that no reasonable court would impose it.

[44]	The Appellant relies on his status as father, husband and primary caregiver as comprising substantial and compelling circumstances that justify a reduction in his sentence.

[45]	Yet, it is disingenuous of the Appellant to not have considered his family when he threatened the Complainant with an axe and committed the atrocious crime
of rape under circumstances that were clearly premeditated but now wants his status as father, husband and primary caregiver to override the seriousness of the crime and the interests of society.

[46]	The prescribed minimum sentence in the circumstances of this case do not result in an injustice to the Appellant. In fact, to impose a lesser sentence would be an injustice to the Complainant and the interests of society given the seriousness of the crime and its repercussions on the Complainant and society in general. Under these conditions, the Appellant's position as father, husband and primary caregiver do not constitute substantial and compelling circumstances.

[47]	I am of the view that the Magistrate undertook an appropriate balancing of the Appellant's personal circumstances against the serious nature of the crime, its increasing prevalence in South Africa and especially against women, and in the interests of society, the need to hold perpetrators of rape appropriately accountable.

[48]	Following the above, the Magistrate did not misdirect himself and the sentence of life imprisonment in the circumstances of this case is not "shocking", "startling" or "disturbingly inappropriate".

[49]	The objectives of sentencing namely, retribution, deterrence, prevention and rehabilitation are also met with the sentence imposed in this matter. Since it is likely that the Appellant may have committed the crime of rape previously, life imprisonment will prevent him from doing so again outside the prison system. The sentence further serves as appropriate punishment for the grotesque crime of rape and sends a clear message that such crimes cannot be tolerated and must be deterred. Rehabilitation programmes are available within the prison system and the Appellant can avail himself of those programmes if he so wishes.

Order

[50]	In the result:

50.1.	The appeal is dismissed.

50.2.	The sentence imposed by the court a quo on the appellant is hereby confirmed.

WAMIEN ACTING JUDGE OF THE HIGH COURT
PRETORIA

I agree,

R FRANCIS-SUBBIAH JUDGE OF THE HIGH COURT
PRETORIA

APPEARANCES:

Counsel for the Appellant:	MG Botha
Instructed by:	Legal Aid South Africa, Pretoria

Counsel for the Respondent:	M Masilo
Instructed by:	Director of Public Prosecutions, Pretoria

Appeal number: A222/2023 
Date heard: 31 July 2024
Date of judgment: 17 September 2024

This judgment has been delivered by uploading it to the court online digital data base of the Gauteng Division, Pretoria and by e-mail to the attorneys of record of the parties. The deemed date and time for the delivery is 17 September 2024.