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Laing J in Cook v S (ECG) (unreported case no CA&R 141/2021, 22-2-2022) (Laing J) quotes E du Toit in Commentary on the Criminal Procedure Act (Cape Town: Juta 2021) observing that:
‘A court of appeal will not, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court.’
‘The principles of appellate sentencing review are well-settled’ (R v Parranto 2021 SCC 46). South African jurisprudence has over many years confirmed it. Our apex court in Bogaards v S 2012 (12) BCLR 1261 (CC); 2013 (1) SACR 1 (CC) held that sentencing is within the discretion of the trial court. An appellate court’s power to interfere with sentences imposed by courts below is circumscribed. It can only do so where there has been an irregularity that fails justice. Perhaps it is prudent to state the principles enunciated and developed over many years when appellate courts should interfere with sentences imposed by trial courts:
‘Appellate courts can only intervene if the trial [court] has erred in principle in a way that impacted the sentence or if the sentence was demonstrably unfit. A trial [court] has not erred in principle simply because the appeal court would have weighed the relevant sentencing factors differently. A sentencing [court] has discretion over which sentencing objectives to prioritise and, which, sentencing range is applicable in any given case. An appellate court cannot intervene just because it would have used a different range. Even if an error in principle is found, deference must be shown unless the error impacted the sentence. In the absence of any errors in principle that impacted the sentence, an appellate court can only intervene if the sentence is demonstrably unfit, meaning that it constitutes an unreasonable departure from the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence is not demonstrably unfit simply because it falls outside of a particular sentencing range or there is a significant deviation from a starting point. Whether a sentence is demonstrably unfit is a qualitative rather than a quantitative assessment. What matters is whether the trial [court] imposed a proportionate sentence by reasonably appreciating the gravity of the offence and the degree of responsibility of the offender in the specific circumstances of the case’ (Parranto).
The approach adopted by many High Courts necessitates the writing of this article due to their failure to understand the principles referred to above. In Van Rooy v S (NCK) (unreported case no CA & R 57/2022, 24-5-2024) (Lever J) Lever J replaced life imprisonment imposed by the Regional Court, Richmond, to 25 years imprisonment for contravening s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 read with s 51(1) of the Criminal Law Amendment Act 105 of 1997. His reasoning for changing the sentence is summarised in paras 27 – 32 of his judgment. I will refer to each paragraph and illustrate the decision made is not based on the principles referred to in the Bogaards decision.
In para 27 he writes: ‘The appellant’s personal circumstances are: He was 23 years old at the time he committed the rape; he was 25 years old when he was convicted and sentenced; his highest level of schooling is that he completed Grade 10; he is unmarried; at the time of sentencing he had a three-year-old child; this child lived with her mother who was unemployed at the time the appellant was sentenced; the child’s mother received a social grant for the child; the appellant was unemployed at the time of sentencing; the appellant had previously been employed as a farm labourer earning R160 per day.’
Lever J was aware of the S v Malgas 2001 (1) SACR 469 (SCA) decision. His reference to it attests to it. In Vilakazi v S [2008] 4 All SA 396 (SCA) Nugent JA said in para 58: ‘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 (supra) said should be avoided.’
In para 28 he writes: ‘The appellant is an overall first offender. This is confirmed by the SAP 69 which was filed of record in the matter. As already set out, at the time of the offence he was 23 years old and was 25 years old when convicted and sentenced. There was no evidence of other pending matters when he was sentenced. Therefore, there is no evidence of a pattern of criminal conduct on the part of the appellant.’
Lever J’s reference to the accused’s age and that he was a first offender, according to our jurisprudence and the stare decisis rule, does not make the fact that the accused is 23 years old and a first offender a substantial and compelling factor. I refer to the stare decisis rule based on what was said in S v Matyityi 2011 (1) SACR 40 (SCA) where Ponnan JA said in para 14: ‘Thus, whilst someone under the age of 18 years is to be regarded as naturally immature, the same does not hold true for an adult. In my view a person of 20 years or more must show by acceptable evidence that he was immature to such an extent that his immaturity can operate as a mitigating factor.’ There is nothing to suggest evidence has been adduced that the accused is immature and that it must be regarded as a substantial and compelling factor. The accused has a child and has been employed. In S v MM (GJ) (unreported case no SS 52/2022, 9-2-2024) (Bhoola AJ) it was held that the previous record of an accused is in itself not a substantial and compelling circumstance.
Lever J said in para 29: ‘The appellant admitted to being sexually aroused by young girls.’ This fact must raise concern because the accused might have a history of an inability to control his sexual impulses. There is a likelihood of repeating such behaviour without treatment. The accused might not be able to control his deviant sexual impulses if not treated with anti-libido drugs. It casts doubt on the sentencing principle of rehabilitation without intervention either through programmes or medical treatment.
What specifically caught my attention to the reasoning of Lever J were paras 30 and 31 of his judgment. He wrote in para 30: ‘The relevant rape is not one of the worst rapes seen in our courts.’ Paragraph 31: ‘There was no lasting physical injury. The injuries that were found were consistent with sexual penetration. All of this is confirmed by the medical assessment evidenced by the J88 form which was admitted to the record by consent.’
The lack of serious physical injuries does not make the crime less heinous. Lever J must be aware of what the Supreme Court of Appeal said in Maila v S (SCA) (unreported case no 429/2022, 23-1-2023) (Mocumie, Carelse and Mothle JJA and Mjali and Salie AJJA) at para 47: ‘Counsel was taken to task during the exchange with the members of the bench on this submission, but he could not take the argument further. Correctly so, because apart from this minimising the traumatic effects of rape on any victim and more so a child, it is well documented that “irrespective of the presence of physical injuries or lack thereof, rape always causes its victims severe harm”’. Lever J’s findings in paras 29 and 30 are contrary to what Mocumie JA held in the Maila decision at paras 57 to 60. ‘Violence is always inherent in the act of applying force of a sexual nature to a child’ (R v Friesen 2020 SCC 9). ‘Physical contact of a sexual nature with a child always means that the offender has interfered with both the child’s “security of the person, from any non-consensual contact or threats of force” and the child’s bodily integrity, which “lies at the core of human dignity and autonomy” (R v Ewanchuk [1999] 1 SCR 330 at para 28 … ). Such physical sexual contact is also a form of psychological violence precisely because bodily and psychological integrity are closely linked … . The degree of physical interference and the intensity of physical and psychological violence vary depending on the facts of individual cases. However, any physical contact of a sexual nature with a child always constitutes a wrongful act of physical and psychological violence even if it is not accompanied by additional physical violence and does not result in physical or psychological injury. Courts must always give effect to this inherent violence since it forms an integral component of the normative character of the offender’s conduct’ (Friesen).
His understanding of the amendment in s 51(3)(aA)(ii) of the Criminal Law Amendment Act 105 of 1997, which came into operation in December 2007: ‘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: … (ii) an apparent lack of physical injury to the complainant’; is wrong for the following reasons:
His reliance on S v Nkawu – Sentence (ECG) (unreported case no CC06/09, 3-4-2009) (Plasket, J) is misplaced because it does not adhere to the stare decisis principle.
I can do no better to borrow from the seminal judgments of Malgas and Matyityi about the role of courts in interpreting the Criminal Law Amendment Act 105 of 1997. It was held ‘Malgas makes plain, courts have a duty, despite any personal doubts about the efficacy of the policy or personal aversion to it, to implement those sentences. Our courts derive their power from the Constitution and, like other arms of state, owe their fealty to it. Our constitutional order can hardly survive if courts fail to properly patrol the boundaries of their own power by showing due deference to the legitimate domains of power of the other arms of state. Here parliament has spoken’ (Matyityi at para 23). ‘Parliament’s legislative initiatives thus give effect to society’s increased understanding of the gravity of sexual offences and their impact on children’ (Friesen). The wording of the amendment is unambiguous. Lack of physical injuries cannot be regarded as a substantial and compelling circumstance. ‘Courts should reject the belief that there is no serious harm to children in the absence of additional physical violence’ (Friesen).
In para 14 of the judgment, he wrote: ‘Whilst it is accepted that rape will have an emotional impact on a victim, this is not sufficient for the exercise of sentencing. What is required when going through the exercise of formulating a just and appropriate sentence in a particular case of rape is actual and reliable information on the emotional impact on the complainant concerned. This is so because the emotional impact can vary widely. At the very least a victim impact report is required.’
It is indeed so reliable information would assist but to say it is insufficient for exercising sentence is wrong. In S v C 1996 (2) SACR 181 (C) the court held that the rapist does not murder his victim. He murders her self respect and destroys her feeling, physically and mentally and security. His monstrous deed often haunts his victim and subjects her to a mental torment for the rest of her life, a fate often worse than the loss of life. In Maila the court held ‘it must be noted that even without a psychological assessment, from reported cases of rape based on literature and evidence of experts in court, rape has a devastating impact on anyone, let alone a child.’
This case and a long line of other cases in the higher courts illustrate how the stare decisis principle and the Bogaard decision of when to interfere are ignored.
Desmond Francke BIuris (UWC) is a magistrate in Wynberg.
This article was first published in De Rebus in 2024 (Oct) DR 22.
