Recent Case: Sentencing

• Citation: (2023) 36 SACJ 341
• DOI: https://doi.org/10.47348/SACJ/v36/i2a9
• Published date: 14 November 2023
• Pages: 341-359
• Author: van der Mewe, A.
• Date: 14 November 2023

Sentencing

ANNETTE VAN DER MERWE

University of Limpopo

GENERAL PRINCIPLES OF SENTENCING

1 Factors affecting sentence

1.1 After-effects of the crime

A victim impact statement (V IS) sets out ‘the extent to which the offence

has affected the victim’s life’ (SE van der Merwe ‘A basic introduction to

criminal procedure’ in JJ Joubert (ed) Criminal Proc edure Handbook

(2017) 15). The VIS is informative to the sentencing court (SA Bandes

‘What are victim impact statements for?’ (2022) 87 Brook L Rev 1253 at

1259, allows a complainant to have a voice and to participate in the last

phase of the trial (S v Mhlongo 2016 (2) SACR 611 (SCA) atpara[22]).

The Supreme Court of Appeal has on a few occasions held that a VIS

should be presented in all sexual offence cases, in particular those

falling under the minimum prescribed sentences of life imprisonment

(see Rammoko v Director of Public P rosecutions 2003 (1) SACR 200

(SCA) at 205E; and S v Matyityi 2011 (1) SACR 40 (SCA); S v Mhlongo

supra (atpara [23]), but evidence in this regard is sti ll not presented in

a consistent manner, as is evident from the cases below.

In Director of Public Prosecutions, Free State v Mokati 2022 (2) SACR

1 (SCA), a young woman endured at knife-point a violent rape ordeal.

Several expert witnesses, such as a medical doctor, psychiatrist and

clinical pharmacologist, testied about the deleterious effects of the

crime. The victim su ffered from anxiety and panic attacks, and acute

stress which could all be directly linked to the rape incident (atparas

[35]–[36]). The events from which she later died, were triggered by

both the combination of her contraceptive and the ARV medici ne, as

well as the acute stress that she experienced. The cour t concluded as

follows on the after-effects the vict im had experienced:

‘the rape evoked ongoing severe psychological and physical distress on the

once industrious and perfectly healthy 21-year-old woman until her death

14days later’ (atpara [37]).

The considerable hardship for the deceased’s family, such as the

deteriorating health of the victim’s father, was also highlighted (atpara

[38]). See Mandatory and minimum sentences in term s of the Criminal

Law Amendment Act 105 of 1997 – Imposing a more severe se ntence

than the prescribed o ne be lo w.

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In S v Austin 2022 (2) SACR 615 (WCC), the complainant, an 11-year-

old who was a virgin, fell pregnant as a result of being raped on

three occasions by A, who was fteen years older and resided at the

same premises as the complainant. She could not resort to an abortion

because she was seven months pregnant when the pregnancy was

discovered (atparas [123]-[124]):

‘… She had to endure giving normal vaginal birth to a child when she herself

was still a young child. She bled excessively during the birth and had to stay

in hospital for 7 or 8 days after giving birth, due to loss of blood. … She

only held her son briey before he was taken into foster care, she was crying

because she had never thought “that this is going to happen in my life”. She

was told to say goodbye to him and thereafter she only saw him once. She

herself was taken away from her father and placed into foster care and is

currently still in foster care’ (atparas [124]-[25]).

The victim did submit a V IS during the trial i n the regional court,

where she indicated (three years after giving birt h) that A had

destroyed her life. The VIS allowed the court to follow a balanced and

fair approach in deciding whether it would be proportionate to impose

the minimum prescr ibed sentence of life (see S v Rammoko supra). On

an appeal from A against his conviction and sentence, the high court

(atpara [126]) accepted that the effect of the rape on the complainant

was devastating: ‘She has become an angry child and carries th is

burden wherever she goes’. The imposition of life imprisonment was

conrmed. Ulti mately, this decision signies a victi m-centred approach

as advocated in S v Matyityi supra.

The facts in S v TS 2023 (1) SACR 290 (WCC) appear to be fairly

similar to those in Au stin supra yet, no VIS was presented at the court

a quo. It was once again highlighted by the high court that ‘the lasting

impact of the crimes on the complainant, of which there was little to

be gleaned from on the record,’ is a factor important for sentencing

purposes in sexual of fence cases involving child complainants

(at para [19]). Due to the lack of information, the sentence of life

imprisonment was set aside, and the matter referred to the trial court

to obtain reports on both the offender and victim. The absence of

a VIS was perhaps the reason for the appeal court’s remark that a

sentence of between 10 and 15 years would be more appropriate on

the available information (atpara [18]). It is nevertheless a cause of

concern since this remark does not reect the current view on the

seriousness of the crime of child rape, as alluded to in S v Austin

supra. In the case of Sv Xaba 2022 (2) SACR 240 (NWM), a VIS was

also absent but without reprimand from the appeal cour t. A possible

reason may be that the act of rape in this case, accompanied by three

stab wounds, regardless of the emotional sequelae for the victim, was

so serious that it per se justi ed life imprisonment (based on a nding

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