Abstract

Keywords

Rape; minimum sentence; life imprisonment; grievous bodily harm; co-perpetrator.

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1 Introduction

In a country scourged by violent crime and gender-based violence, the South African criminal courts are inundated with rape trials. Due to the high prevalence of sexual crimes committed in the country, South Africa has been labelled as the "rape capital of the world". 1

* Jolandi Le Roux-Bouwer. BJuris LLB LLD. Professor, School of Law, University of South Africa. E-mail: Ebouwej@unisa.ac.za. ORCiD: https://orcid.org/0000-0002-8230-2859.

1 See Kunle and Matsha 2021 Cogent Arts and Humanities 1; S v Vilakazi 2012 6 SA 353 (SCA) para 2.

This contribution illustrates to the reader the South African courts' desperate struggle against the continuing rise of rape incidents and the application of the minimum sentence legislation in doing so. In Sithole v S, Masango v S and Nyathi v S the Gauteng high court has recently heard three appeals from appellants who were sentenced to life imprisonment after a conviction of rape. The only factors that connect the three cases are that all of them deal with sentencing for rape. Apart from that, they are mainly characterised by wide differences regarding the victims, the offenders and the provisions under which the sentences were prescribed. It is trite that, after the death penalty was declared unconstitutional in S v Makwanyane, 7

7 S v Makwanyane 1995 3 SA 391 (CC).

The recent cases of Sithole v S, Masango v S and Nyathi v S are discussed in this contribution, but the legislative framework governing the imposition of punishment for the crime of rape will be expounded before the facts in these cases are provided. While conscious of the risk of a lack of consistency and balance when discussing the three cases, it needs to be stated that the facts in each of the three cases were not discussed by the court in similar detail.

2 Legislative framework

Rape is contemplated in section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, involving the unlawful and intentional commission of an act of sexual penetration of a complainant without the complainant's consent. Prior to the enactment of section 3, the common law defined rape in extremely narrow terms. The crime was gender-specific in that only a male could be the perpetrator, and only a female could be the victim of rape. The crime was also anatomically specific in that only non-consensual sexual penetration of the female sexual organ by the male sexual organ qualified as rape. The Constitutional Court in Masiya v Director of Public Prosecutions Pretoria 12

12 Masiya v Director of Public Prosecutions Pretoria 2007 5 SA 30 (CC) para 62.

On 1 May 1998 the legislature implemented sections 51 to 53 of the Criminal Law Amendment Act 105 of 1997 in terms of which minimum sentences are prescribed for various crimes. The Act stipulates that a sentencing court may impose a lesser sentence only if it is satisfied that "substantial and compelling circumstances" exist which justify doing so. 13

13 Compare Snyman Criminal Law 17; Burchell Principles of Criminal Law 23; S v Dodo 2001 3 SA 382 (CC) para 10 and S v Malgas (117/2000) [2001] ZASCA 30 (19 March 2001) 482G.

Life imprisonment is mandated in terms of section 51(1), read with Part I of Schedule 2 upon conviction, unless in terms of section 51(3), substantial and compelling circumstances exist which necessitate the imposition of a lesser sentence than the prescribed sentence. Much debate has occurred on the question of whether the minimum sentence legislation indeed contributes to a reduction in violent crime. 16

16 Terblanche 2003 Acta Juridica 194. Edwin Cameron in his Dean's Distinguished Lecture delivered at the Faculty of Law, University of the Western Cape, held that

3 Facts in Sithole v S

The appellant was 24 years old at the time he committed the crimes. The complainant and her cousin were patrons at the Kayalami tavern, where they met the appellant while sitting amongst a group of friends. She knew the appellant. The appellant offered to buy her a drink, which she accepted and drank. These facts lead to the inference that the complainant was an adult woman. She informed her cousin that she wanted to leave as it was getting late. 17

17 Sithole v S para 6. Also see Cameron 2020 SALJ 32-71.

The complainant then told the appellant that she would not accompany him. In reaction to the complainant's refusal to accompany him, the appellant then slapped her twice on her face with an open hand. At that time, she was seated on the ground. The appellant then dragged her to the other side of the street by pulling her by her arm. 19

19 Compare with Bulelani v S (A26/2023) [2024] ZAGPPHC 50 (24 January 2024) para 16, a decision not discussed in this contribution, for similar facts.

Upon their arrival at the appellant's shack, the appellant pushed the complainant inside and locked the door. He then tore her dress off her and raped her. She cried, and the appellant told her to stop crying because she would wake up the people in the yard. She stopped crying and heard her brother's voice outside in the yard. He was calling her name from outside the room. Her brother kicked at the door of the shack/room whilst calling her name. 24

24 Sithole v S para 11.

The Regional Division of the Gauteng court convicted the appellant of kidnapping and sentenced him to 5 years imprisonment. The appellant was also convicted of rape and sentenced to life imprisonment. The finding that the rape involved grievous bodily harm brought the rape conviction squarely within the ambit of section 51(1), read with Part I of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 as set out above. The court a quo ordered all sentences to automatically run concurrently with the sentence of life imprisonment. The appellant subsequently appealed against his conviction and sentence to the high court by virtue of his automatic right to appeal the conviction and sentence, which right he derived from section 309(1)(a) of the Criminal Procedure Act 51 of 1977 (as amended).

4 Facts in Masango v S

The appellant was convicted on a charge of rape in contravention of section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. The appellant, although a major, was not advanced in years. The complainant was 14 years old at the time. 27

27 Compare Van Rooy v S (CA & R 57/2022) [2024] ZANCHC 50 (24 May 2024), where the victim was 11 years old.

The complainant's evidence that she was raped by the appellant was corroborated by a medical doctor, who confirmed that the complainant had had sexual intercourse that caused bruising and that her jersey had been torn. The complainant testified that she had been abducted by the appellant, and this was corroborated by her mother. 28

28 Masango v S (A175/2021) [2024] ZAGPPHC 64 (5 February 2024) (hereafter Masango v S) para 7.

5 Facts in Nyathi v S

The complainant, aged 25 at the time of sentencing, testified that the incident occurred at a local tavern at or near Olievenhoutbosch in Pretoria, where she was selling chips. It must be inferred from the facts that the complainant was an adult woman. At about 23:30, a group of 12 to 14 armed individuals entered the tavern, ordered everyone to lie down and proceeded to search the patrons for money and valuables. The complainant was also subjected to a search and thereafter taken from the tavern by two armed individuals. The complainant identified these individuals as the first and second appellant, respectively. 31

31 Nyathi v S (A133/2020) [2024] ZAGPPHC 121 (6 February 2024) (hereafter Nyathi v S) para 5.

The complainant testified that she had had R210 in cash in her possession that was taken from her when she was searched in the tavern. She further testified that five months after the incident, she participated in an identification parade and was able to identify the first and second appellants. She identified the first appellant due to a small scar below his right eye, and she recognised the second appellant as the youngest among the robbers. 32

32 Nyathi v S para 5.

A captain who is stationed at the forensic lab in the SAPS indicated that they discovered the DNA of the second appellant in the swab taken from the complainant. The witness clarified that DNA is found exclusively in sperm and not in semen and also confirmed that not all semen contains sperm. 34

34 Nyathi v S para 7.

6 Discussion

It is common cause that sentencing is the trial court's prerogative, which should not lightly be interfered with. 36

36 In S v Siebert 1998 1 SACR 554 (A) 558i Olivier JA confirmed that sentencing is a judicial function sui generis.

sentencing is within the discretion of the sentencing court. An appeal court's power to interfere with sentences imposed by a trial court is circumscribed. It can only do so where there has been an irregularity that results in a failure of justice, or that the trial court 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. 38

38 Ndou v S 2014 1 SACR 198 (SCA) para 21. Also see Bogaards v S (CCT 120/11) [2012] ZACC 23 (28 September 2012) 41.

As mentioned already, the legislature mandated the imposition of life imprisonment in terms of section 51(1) of Act 105 of 1997, read with Part I of Schedule 2 upon conviction, unless in terms of section 51(3), substantial and compelling circumstances exist which necessitate the imposition of a lesser sentence than the prescribed sentence. 39

39 This was echoed by Ackermann J in S v Dodo 2001 3 SA 382 (CC) para 1.

No statutory definition of the phrase "substantial and compelling circumstances" that might justify a sentence less severe than that which it had prescribed exists. The lawmaker has left it to the courts to decide whether, in a particular case, such circumstances are present or absent on the facts before it. The mere fact that the severity of the prescribed sentence exceeds the severity of the sentence that but for the legislation the court would itself have regarded as appropriate having regard to the sentencing criteria usually applied by the sentencing court is not a "substantial and compelling circumstance" justifying a departure from the sentence prescribed by parliament. Having said that, the Supreme Court of Appeal (SCA) has confirmed that the circumstances that might justify imposing a lesser sentence than the prescribed sentence do include the mitigating factors traditionally taken into account by a sentencing court. 40

40 So stated by Lewis JA in S v Sikhipha (262/05) [2006] ZASCA 73 (30 May 2006) (hereafter S v Sikhipha) para 16.

For "substantial and compelling circumstances" to be found, the facts of the particular case must present some circumstance that is so exceptional in its nature and that so obviously exposes the injustice of the statutorily prescribed sentence in the particular case that it can rightly be described as "compelling" the conclusion that the imposition of a lesser sentence than that prescribed by parliament is justified. The SCA endorsed a similar approach in S v Malgas 2001, where Marais JA stated the following:

On the other hand, it seems clear that those who have decried the suggestion that the exercise required involves no more than assessing what, but for the legislation, would have been an appropriate sentence and, if that should be anything less than the prescribed sentence, regarding that as sufficient justification for departure, are right. As they have pointed out, that approach would obviously represent a return to what I have called "business as usual" and no effect whatsoever would be given to the intention of the Legislature. 41

41 S v Malgas (117/2000) [2001] ZASCA 30 (19 March 2001) para 17.

The interpretation of the phrase "substantial and compelling circumstances" was met with approval by the court in Director of Public Prosecution, Pretoria v Tsotesti, 42

42 Director of Public Prosecutions, Gauteng Division, Pretoria v Tsotetsi (170/2017) [2017] ZASCA 83 (2 June 2017) para 27.

As explained above, the legislature mandated life imprisonment in terms of section 51(1) of Act 105 of 1997, read with Part I of Schedule 2 upon conviction, unless in terms of section 51(3) substantial and compelling circumstances exist which necessitate the imposition of a lesser sentence than the prescribed sentence. In terms of section 51(1) of Act 105 of 1997, read with Part I of Schedule 2, life imprisonment is mandated where the rape "involved the infliction of grievous bodily harm".

6.1 Sithole v S

The high court in Sithole v S's critical analysis of what exactly constitutes "grievous bodily harm" constitutes a valuable piece of jurisprudence. In Sithole v S the appeal was directed against the court a quo's finding that the rape conviction involved the infliction of grievous bodily harm. The pertinent question for the high court to decide was, therefore, whether the court of first instance erred in its finding, having evaluated the evidence in toto, that the rape in casu involved the infliction of grievous bodily harm. 46

46 Sithole v S para 22.

6.2 Masango v S

The appellant in Masango v S was convicted in the court a quo of the rape of a 14-year-old girl who had turned 15 years shortly prior to the trial. The appellant submitted that the trial court had misdirected itself in relying solely on the complainant's evidence and claimed that there was little reliable corroboration regarding the perpetrator's identity. The appellant further submitted that the trial court misdirected itself in finding that his version could not reasonably be possibly true. As for the sentence imposed, the appellant contended that the trial court misdirected itself in not finding that substantial and compelling circumstances existed that justified a lesser sentence. 54

54 Masango v S para 2.

Van der Schyff J in the High Court of South Africa Gauteng Division, Pretoria was mindful of the fact that the complainant was youthful and that she testified in the court a quo after having taken the oath. The trial court held that a child of 14 years can be presumed to be able to distinguish between right and wrong and, concomitantly, between truth and falsehood. 55

55 Masango v S para 17.

In S v Gallant, 61

61 S v Gallant (CA&R 69/06) [2007] ZAECHC 64 (19 July 2007) para 15.

As far as the sentence of life imprisonment was concerned, the court made reference to the SCA's decision in Sikhipha 65

65 S v Sikhipha para 16.

Considering the triad in S v Zinn 1969 2 SA 537 (A) and the objectives of sentencing, the court was of the view that a lengthy sentence of imprisonment was appropriate. A period of 20 years' imprisonment was thought to send a message to the community that rape would be visited with severe punishment. Van der Schyff J held that such a sentence would deter prospective rapists, acknowledging the period for which the accused had already been incarcerated. In addition, the appellant was ordered to attend a rehabilitation programme for sexual offenders. A portion of his sentence might be suspended if he successfully completed a programme for sexual offenders. The court concluded that suspending a portion of the sentence subject to the imposed conditions would have a rehabilitative and deterrent effect. 67

67 Masango v S para 28.

This decision by Van der Schyff J in Masango v S is consistent with that in S v Sikhipha. In the latter case Lewis JA (Scott JA and Van Heerden JA concurring) held that the trial court had misunderstood what is meant by "substantial and compelling circumstance". In S v Sikhipha Lewis JA referred to the decision in S v Malgas, where the court held that in determining whether there are substantial and compelling circumstances, a court must be

conscious that the legislature has ordained a sentence that should ordinarily be imposed for the crime specified, and that there should be truly convincing reasons for a different response. It is for the court imposing sentence to decide whether the particular circumstances call for the imposition of a lesser sentence. Such circumstances include those factors traditionally taken into account in sentencing as mitigating factors. 68

68 S v Sikhipha para 16.

These must be weighed together with the aggravating factors, but none of these circumstances need to be "exceptional". 69

69 S v Sikhipha para 16.

The sentence of life imprisonment required by the legislature is the most serious that can be imposed. It effectively denies the appellant the possibility of rehabilitation. Moreover, the mitigating factors are not speculative or flimsy. In my view, life imprisonment is not a just sentence for the appellant. However, a lengthy sentence of imprisonment is warranted. I consider that a period of 20 years' imprisonment will send a message to the community that rape, and especially the rape of a young girl, will be visited with severe punishment. It will send a strong deterrent message. 70

70 S v Sikhipha para 19.

6.3 Nyathi v S

The appellants in Nyathi v S were convicted of rape as co-perpetrators, and this brought the rape conviction squarely within the ambit of section 51(1) read with Part I of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 as explained above. The first appellant testified in his own defense. He attempted to refute the charges by providing an alibi, claiming that he was with his pregnant girlfriend at the time of the incident. He acknowledged the presence of a scar on his face, which he has had for several years. He confirmed that he was acquainted with the second appellant as they resided in the same yard. Notably, when the first appellant was arrested, he had never mentioned or made any statement regarding his alibi, and he had closed his case without calling any witnesses. 71

71 Nyathi v S para 9.

In considering sentencing and the presence of compelling and substantial circumstances, the court in Nyathi v S assumed a startlingly different approach to the court in Masango v S discussed above.

On behalf of the first appellant, it was argued that the trial court had erred in failing to find significant and compelling reasons to depart from the minimum prescribed sentence of life imprisonment. The first appellant, who had been 25 years old at the time of sentencing, had become a father while in prison. His relationship with the child's mother had ended following his arrest. He had had a challenging upbringing and had come to South Africa from Zimbabwe in pursuit of a better life. Furthermore, he had no prior criminal record. It was contended that the absence of physical injuries to the complainant and the potential for rehabilitation constituted significant and compelling factors to deviate from the prescribed minimum sentence. 77

77 Nyathi v S para 20.

Coetzee AJ in Nyathi v S afforded due weight to the statement in Malgas, namely that a court should not lightly impose a sentence lower than the prescribed minimum sentence. In line with the criteria outlined in Malgas, it was apparent that a comprehensive analysis of the mitigating and aggravating factors is essential to determine the presence of substantial and compelling circumstances. 80

80 Nyathi v S para 24.

With regard to the first appellant, Coetzee AJ found no significant and compelling circumstances in either his personal background or the potential for rehabilitation. Contrary to what had been stated in Masango v S, Coetzee AJ did not consider the lack of physical injuries to the complainant as a mitigating factor. The nature of the first appellant's crime was found to be "callous and likely to inflict lasting emotional harm upon the complainant, despite the absence of physical injuries". 81

81 Nyathi v S para 25.

7 Conclusion

The transition of South Africa into a new democracy came with a notable increase in the number of violent crimes. 84

84 Snyman Criminal Law 14.

The Act stipulates that a sentencing court may impose a lesser sentence only if it is satisfied that "substantial and compelling circumstances" exist which justify it. Parliament has not indicated what is meant by the phrase "substantial and compelling circumstances" that might justify a sentence less severe than that which it had prescribed. It has been left to the courts to decide whether, in a particular case, such circumstances are present or absent. An overview of recent case law demonstrates that courts are still not ad idem on what exactly constitutes substantial and compelling circumstances. Relative youthfulness was accepted as a mitigating factor in Masango v S, 85

85 Masango v S para 27.

In Sithole v S the high court stated that the "infliction of grievous bodily harm" ought not to be equated with the offence of assault with the "intent to do grievous bodily harm", where mere intention is sufficient, as opposed to the actual causation of grievous bodily harm. It is submitted that the flipside of the coin, namely whether the absence of physical injuries to the victim constitutes a mitigating factor in sentencing, has, unfortunately, not been resolved. It is argued that the role of physical injuries to the victim in the sentencing of rape constitutes a viable topic for further research. While the appeal court in S v Sikhipha 87

87 S v Sikhipha para 18.

The devastating impact of sexual violence on victims is well documented. 89

89 Compare, generally, Le Roux-Bouwer 2023 SALJ 1-16.

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AK v Minister of Police 2023 2 SA 321 (CC)

Bogaards v S (CCT 120/11) [2012] ZACC 23 (28 September 2012)

Bulelani v S (A26/2023) [2024] ZAGPPHC 50 (24 January 2024)

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Faniswa v S (A111/2023) [2024] ZAFSHC 71 (12 March 2024)

JSG v S (CA 52/22) [2024] ZANWHC 71 (12 March 2024)

Khambule v S (AR 267/2018) [2023] ZAKZPHC 35 (24 March 2023)

Maila v S (429/2022) [2023] ZASCA 3 (23 January 2023)

Masango v S (A175/2021) [2024] ZAGPPHC 64 (5 February 2024)

Masiya v Director of Public Prosecutions Pretoria 2007 5 SA 30 (CC)

Mokwele v S (A34/2021) [2024] ZAGPPHC 51 (22 January 2024)

Mthanti v S (859/2022) [2024] ZASCA 15 (8 February 2024)

Ndou v S 2014 1 SACR 198 (SCA)

Nedzamba v S (911/2012) [2013] ZASCA 69 (27 May 2013)

Nyathi v S (A133/2020) [2024] ZAGPPHC 121 (6 February 2024)

President of the RSA v South African Rugby Football Union 2000 1 SA 1 (CC)

Rabako v S (A234/2006) [2007] ZAFSHC 47 (7 June 2007)

S v B 2003 1 SACR 52 (SCA)

S v De Kock 1997 2 SACR 171 (T)

S v Dodo 2001 3 SA 382 (CC)

S v Francis (95/89) [1990] ZASCA 141 [(26 November 1990)

S v Gallant (CA&R 69/06) [2007] ZAECHC 64 (19 July 2007)

S v Hadebe (298/94) [1997] ZASCA 86 (29 September 1997)

S v Isaacs (SS38/2011) [2012] ZAWCHC 91 (24 May 2012)

S v Jansen (186/2023) [2024] ZAWCHC 14 (19 January 2024)

S v Lewis (54/2024) [2024] ZAWCHC 59 (26 February 2024)

S v Makwanyane 1995 3 SA 391 (CC)

S v Malgas (117/2000) [2001] ZASCA 30 (19 March 2001)

S v Matyityi 2011 1 SACR 40 (SCA)

S v Mngoma 2009 1 SACR 435 (EC)

S v Monyane (160/01) [2006] ZASCA 113 (23 November 2006)

S v PB 2013 2 SACR 533 (SCA)

S v Siebert 1998 1 SACR 554 (A)

S v Sikhipha (262/05) [2006] ZASCA 73 (30 May 2006)

S v Stefaans 1999 1 SACR 182 (K)

S v Tabethe (CC468/06) [2009] ZAGPHC 23 (23 January 2009)

S v Tuswa 2013 2 SACR 269 (KZN)

S v V 1998 2 SACR 651 (CPD)

S v Vilakazi 2009 1 SACR 552 (SCA)

S v Vilakazi 2012 6 SA 353 (SCA)

S v Zinn 1969 2 SA 537 (A)

Sithole v S (A105/2021) [2024] ZAGPPHC 39 (18 January 2024)

Thole v S (A138/2010) [2011] ZAFSHC 136 (30 August 2011)

Van Rooy v S (CA & R 57/2022) [2024] ZANCHC 50 (24 May 2024)

Vardien v S (A36/2024) [2024] ZAWCHC 79 (11 March 2024)

Legislation

Criminal Law Amendment Act 105 of 1997

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007

Criminal Procedure Act 51 of 1977 (as amended)

Domestic Violence Act 116 of 1998

List of Abbreviations