S v Blaauw

• Jurisdiction: South Africa
• Judge: Borchers J
• Judgment Date: 02 August 1999
• Citation: 1999 (2) SACR 295 (W)
• Hearing Date: 02 August 1999
• Counsel: Mrs Miles for the accused, at the request of the Court P Louw for the State
• Court: Witwatersrand Local Division

S v Blaauw
1999 (2) SACR 295 (W)

1999 (2) SACR p295

Citation	1999 (2) SACR 295 (W)
Court	Witwatersrand Local Division
Judge	Borchers J
Heard	August 2, 1999
Judgment	August 2, 1999
Counsel	Mrs Miles for the accused, at the request of the Court; P Louw for the State

Flynote : Sleutelwoorde B

Rape — Elements of — Repeated acts of penetration cannot without more be equated with repeated and separate acts of rape — As general rule, more closely connected separate acts of penetration are in terms of time and place, less likely court will be to find that series of separate rapes has occurred — Where accused has ejaculated and withdrawn penis from victim, and he again penetrates her thereafter it should be inferred that he C has formed intent to rape again, even if second rape takes place soon after first and at same place.

Indictment and charge — While desirable that aggravating circumstances affecting sentence should be mentioned in charge it is not essential — While it might be fair and advisable when aggravating factor first arises D during evidence, where aggravating circumstances affecting sentence not mentioned in the charge, to bring relevant provisions of legislation to attention of undefended accused, there is no duty or requirement to do so where accused is represented.

Sentence — Imposition of — Section 51(3) of Criminal Law Amendment Act 105 of 1997 — Section 51(1) read with s E 51(3) of Act not creating mandatory sentence, for measure of discretion is permitted to Court to find that substantial and compelling circumstances exist which justify imposition of sentence less severe than life imprisonment — Legislature not prescribing what factors may or may not be considered, consequently Court able to have regard to all factors which would traditionally have been considered in imposing sentence — Court F should not consider each factor in isolation but view them cumulatively — If on doing so Court forms view that, considering aggravating as well as mitigating factors, sentence of life imprisonment would be grossly disproportionate to crime committed or startlingly inappropriate or offensive to its sense of justice, then it G should find that substantial and compelling circumstances exist for departing from prescribed sentence of life imprisonment — Legislature not requiring that unusual or exceptional circumstances be found to exist — Precisely what factors will be held to be substantial and compelling must depend upon circumstances of each case. H

Headnote : Kopnota

Mere and repeated acts of penetration cannot without more be equated with repeated and separate acts of rape. A rapist who in the course of raping his victim withdraws his penis, positions the victim's body differently and then again penetrates her, will not have committed rape twice. Each case must be determined on its own facts. As a general rule the more closely connected the I separate acts of penetration are in terms of time (ie the intervals between them) and place, the less likely a court will be to find that a series of separate rapes has occurred. But where the accused has ejaculated and withdrawn his penis from the victim, and he again penetrates her thereafter, it should be inferred that he has formed the intent to rape her again, even if the second rape takes place soon after the first and at the same place. J

1999 (2) SACR p296

A While it is desirable that aggravating circumstances affecting sentence should be mentioned in the charge, for example where s 51 of the Criminal Law Amendment Act 105 of 1997 (the Act) may be applicable, it is not essential. While it might be fair and advisable when the question of multiple rape first arises during evidence, where aggravating circumstances affecting sentence were not mentioned in the charge, to bring the relevant provisions of the Act to the attention of an undefended B accused, there is no duty or requirement to do so where the accused is represented.

Section 51(1) read with s 51(3) of the Act does not create a mandatory sentence, for a measure of discretion is permitted to the Court to find that substantial and compelling circumstances exist which justify the imposition of a sentence less severe than that of life imprisonment. This discretion C is narrower than that permitted in earlier legislation where the finding of mere 'circumstances' was sufficient to justify departure from a prescribed sentence. The Legislature has not seen fit to describe what factors may or may not be considered, consequently a Court is still able to have regard to all the factors which would traditionally have been considered in imposing sentence. D Moreover, a Court should not consider each factor in isolation but view them cumulatively and, if on doing so, the Court forms the view that, bearing in mind all the factors, aggravating as well as mitigating, a sentence of life imprisonment would be grossly disproportionate to the crime committed or, to put it differently, startlingly inappropriate or offensive to its sense of justice, then it should find that substantial and compelling circumstances exist for departing from the prescribed E sentence of life imprisonment. In such circumstances a Court would be substituting its own discretion for that of the Legislature, for the Legislature did not intend that unfair or grossly disproportionate sentences should be imposed.

The Legislature certainly intended the Courts to increase drastically the sentences imposed for the F offences defined in Schedule 2. However, the Legislature did not require that 'unusual or exceptional circumstances be found to exist'. If that were the test a court in South Africa will seldom come to the conclusion that substantial and compelling circumstances exist which permit it to impose a sentence less severe than that of life imprisonment. Such an approach may put the Court in a position where in imposing the sentence of life imprisonment, it is of the view that the sentence imposed is unfair to the accused. Such an approach would breach the accused's constitutionally G guaranteed right to a fair trial laid down in s 35 of the Constitution of the Republic of South Africa Act 108 of 1996 as well, possibly, as the right enshrined in s 12(1)(e) of the Constitution not to be punished in a cruel, inhuman or degrading way. The words should be interpreted in a broader way to enable a Court to impose a sentence which in the circumstances of that case is fair to the accused and to society. Precisely what factors will be held to be substantial and compelling must H naturally depend upon the circumstances of each case.

There is logic in the reasoning that the mere relative youth of an accused cannot be considered a 'substantial or compelling circumstance', for the Legislature has provided that the provisions apply to all offenders over the age of 18. So, too, the fact that a rape victim was not seriously physically I harmed is not of itself a substantial or compelling circumstance, for serious physical harm to the victim brings these provisions into operation. The mere absence thereof cannot have the opposite effect. But a combination of factors, including the relative youth of the offender and the absence of physical harm to the victim, may constitute substantial and compelling circumstances of the nature which would be 'almost irresistible or which would at least constitute a strongly sensed obligation' J not to impose the prescribed punishment.

1999 (2) SACR p297

Case Information

Imposition of sentence by a High Court in terms of s 52(1) of the Criminal Law Amendment Act 105 A of 1997. The facts appear from the reasons for judgment.

Mrs Miles for the accused, at the request of the Court.

P Louw for the State.

G Hulley, as amicus curiae, on behalf of the Legal Resources Centre. B

Judgment

Borchers J:

Mr Cecil Blaauw, whom I shall refer to as the accused in future, was convicted by the regional magistrate in Krugersdorp of the crime of rape. He had pleaded not guilty to the charge which alleged that on 24 October 1998 he had carnal intercourse with Lydia Molahlegi without her C consent and thus raped her. The charge sheet only made mention of one act of rape. It is significant that the accused was legally represented at his trial, which is a matter to which I shall later revert. After evidence by witnesses for the State and the defence, the accused was convicted.

The magistrate held that the State had proved that during the relevant night the accused had raped D the complainant three times. He was of the opinion that the punishment merited was in excess of the jurisdiction of the regional court and he therefore stopped the proceedings, as he is enjoined to do by s 52(1) of the Criminal Law Amendment Act 105 of 1997, and he committed the accused for sentence to this Court. E

I read through the record of the proceedings prior to the date upon which the accused was due to appear here for sentencing and, as a result of certain difficulties which I experienced in attempting to interpret the relevant sections of Act 105 of 1997, asked the Legal Resources Centre for assistance. Mr G Hulley appeared amicus curae on their behalf. Mrs Miles appeared pro Deo for the accused and Mr P Louw represented the State. I am very grateful to all the parties for the F well-researched and thoughtful heads of argument which they prepared and for the competent arguments they presented.

I was not in any doubt after reading the record that the accused had correctly been convicted of rape. I invited counsel to address me on the subject and was informed that they shared my opinion, so, in terms of s 52(3)(b) of Act 105 of 1997, the conviction of the regional court stands and the G Court then proceeded to sentence.

No evidence was led by any of the parties but, with the consent of the State, the...