S v GK

• Jurisdiction: South Africa
• Judgment Date: 15 March 2013
• Citation: 2013 (2) SACR 505 (WCC)

S v GK
2013 (2) SACR 505 (WCC)

2013 (2) SACR p505

Citation	2013 (2) SACR 505 (WCC)
Case No	A 05/2013
Court	Western Cape High Court, Cape Town
Judge	Gamble J, Rogers J and Matthee AJ
Heard	May 24, 2013
Judgment	March 15, 2013
Counsel	LN Adams for the appellant.; A Allchin for the respondent.

Flynote : Sleutelwoorde

Rape — Sentence — Life imprisonment — Minimum sentence in terms of B Criminal Law Amendment Act 105 of 1997 — 'Substantial and compelling circumstances' — Approach to appeal on sentence imposed in terms of Act — Court not restricted to interfering only if material misdirection or if sentence disturbingly inappropriate or induced sense of shock — Nothing in Act that fettered appellate court's powers to reconsider C issue of substantial and compelling circumstances.

Headnote : Kopnota

The appellant, a 56-year-old man, was convicted of the rape of a 7-year-old girl and sentenced in a regional court to life imprisonment, the court having found there to be no substantial and compelling circumstances to justify a D lesser sentence. The appellant had a previous conviction in 2002 for attempted rape for which he was sentenced to four years' imprisonment. He had been held in custody for approximately a year before he was sentenced. The rape in the instant case took the form of an oral rape and there was no evidence that he had ejaculated at all. The rape was not accompanied by any extraneous violence and the appellant had attempted to buy her silence by offering her R5. The complainant received therapy for six months after E the rape and the social worker who compiled the report that was presented to the court said that she might require further therapy. In an appeal against the sentence,

Held (per Rogers J, Gamble J concurring), that the approach of an appellate court to a trial court's finding as to the presence or absence of substantial and F compelling circumstances was that the court was not restricted to interfering only if there had been a material misdirection or if the sentence were disturbingly inappropriate or induced a sense of shock. In terms of s 51 of the Criminal Law Amendment Act 105 of 1997, the presence or absence of substantial and compelling circumstances was the jurisdictional fact on which the presence or absence of the ordinary sentencing discretion depended. A determination that there were or were not substantial and G compelling circumstances was not itself a matter of sentencing discretion. Resolving the question did involve a value judgment, but, in the absence of clear indications in the Act that this value judgment had been entrusted solely to the discretion of the trial court, an appellate court could form its own view as to whether such circumstances were or were not present. (Paragraphs [3] at 507e–h and [4] at 507h–i.) H

Held, further, that there was nothing in the Act which fettered an appellate court's power to reconsider the matter of substantial and compelling circumstances. The values of the Constitution were better served by an interpretation which did not fetter the appellate court when it came to the question of the presence or absence of substantial and compelling circumstances. I To allow an appellate court to make its own value judgment on appeal provided accused persons with greater safeguards against the imposition of disproportionate punishment. (Paragraph [7] at 509g–h.)

Held, further, that the rape in the present matter fell well short of the most serious types of rape for which a life sentence would ordinarily, in the new regime, be a just sentence. Disgusting and awful as an oral rape must have been for the complainant, it was a form of rape which was far less calculated to injure J

2013 (2) SACR p506

A and cause physical pain to a young girl's body than vaginal or anal rape. The previous conviction for attempted rape certainly counted against the appellant, but ought not to have been given undue prominence and had to be offset by the fact that the appellant was 56 years old when he committed the crime and that was only his second serious encounter with the law over B a 40-year period of adult life. In these circumstances life imprisonment would be unjust and disproportionate to the crime, the offender and the legitimate needs of society. A sentence of 18 years' imprisonment would be appropriate and the appellant was entitled to a deduction for the period of 13 months spent in custody awaiting trial, giving 17 years', antedated'. Appeal upheld and sentence altered accordingly. (Paragraphs [15], [25]–[26] and [29] at 513b–g, 517d–h and 518d–i.)

In a dissenting judgment, Matthee AJ held that the appellate court's power to C interfere on appeal with a trial court's finding on the presence or absence of substantial and compelling circumstances was limited, and that the sentence of life imprisonment was in any event an appropriate sentence in the circumstances of the case. (Paragraphs [96]–[98] at 532i–533b.)

Cases cited

Kekana v Society of Advocates of South Africa 1998 (4) SA 649 (SCA) ([1998] 3 All SA 577; [1998] ZASCA 54): compared D

Kudo v Cape Law Society 1977 (4) SA 659 (A): compared

Law Society of Cape of Good Hope v C 1986 (1) SA 616 (A): compared E

Law Society Transvaal v Behrman 1981 (4) SA 538 (A): compared

Media Workers Association of South Africa and Others v Press Corporation of South Africa Ltd 1992 (4) SA 791 (A): dicta at 800C – G applied

Nyembezi v Law Society Natal 1981 (2) SA 752 (A): compared

R v Taylor 1949 (4) SA 702 (A): compared

S v AL (WCC case No A 37/2013): referred to F

S v Abrahams 2002 (1) SACR 116 (SCA): compared

S v Coetzee 2010 (1) SACR 176 (SCA) ([2010] 2 All SA 1; [2009] ZASCA 134): referred to

S v Dayimani (ECD case No CC 12/2007): referred to

S v Dodo 2001 (1) SACR 594 (CC) (2001 (3) SA 382; 2001 (5) BCLR 423): referred to G

S v ET 2012 (2) SACR 478 (WCC): referred to

S v Homareda 1999 (2) SACR 319 (W) ([1999] 4 All SA 549): followed

S v M 2007 (2) SACR 60 (W): referred to

S v Mahomotsa 2002 (2) SACR 435 (SCA) ([2002] 3 All SA 534): referred to

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220): discussed and applied H

S v Matyityi 2011 (1) SACR 40 (SCA): referred to

S v Mkhonza 1981 (1) SA 959 (A): compared

S v Mlandeli Dayimani (case No CC12/2007): referred to

S v Nkawu 2009 (2) SACR 402 (ECG): referred to I

S v PB 2011 (1) SACR 448 (SCA): explained

S v PB 2013 (2) SACR 533 (SCA) ([2012] ZASCA 154): explained

S v RO and Another 2010 (2) SACR 248 (SCA): referred to

S v SMM and Others 2013 (2) SACR 292 (SCA) ([2012] ZASCA 56): dictum in para [26] applied

S v Swart 2004 (2) SACR 370 (SCA): referred to J

2013 (2) SACR p507

S v Van Wyk 2000 (1) SACR 45 (C): referred to A

S v Vilakazi 2009 (1) SACR 552 (SCA) (2012 (6) SA 353; [2008] 4 All SA 396): referred to.

Legislation cited

Statutes

The Criminal Law Amendment Act 105 of 1997, s 51: see Juta's Statutes of South Africa 2012/13 vol 1 at 2-539. B

Case Information

LN Adams for the appellant.

A Allchin for the respondent.

Appeal from a sentence of life imprisonment imposed in a regional court. The facts appear from the reasons for judgment. C

Judgment

Rogers J (Gamble J concurring):

[1] I have read the judgment prepared by my colleague Matthee AJ in which he would dismiss the appeal and uphold the appellant's life sentence. For the reasons he gives there is every reason to view the appellant's crime with revulsion, but after careful consideration I have D come to the conclusion that the trial court erred in finding an absence of substantial and compelling circumstances. I would uphold the appeal and impose a sentence of 17 years' imprisonment.

[2] The facts of the matter are set out in Matthee AJ's judgment. I shall not repeat them, but will elaborate where I feel this is necessary. E

[3] It is appropriate first to say something concerning the approach of an appellate court to a trial court's finding as to the presence or absence of substantial and compelling circumstances. I do not think a trial court's finding on this question is a matter with which an appellate court can F interfere only if there has been a material misdirection or if the sentence is 'disturbingly' inappropriate or induces a sense of 'shock'. That is the approach when an appellate court considers a sentence imposed in the exercise of the trial court's ordinary sentencing discretion. In terms of s 51 of the Criminal Law Amendment Act 105 of 1997 certain minimum sentences are prescribed and the court is deprived of its ordinary G sentencing discretion, unless substantial and compelling circumstances are present. The presence or absence of such circumstances is thus the jurisdictional fact (to borrow an expression from administrative law) on which the presence or absence of the ordinary sentencing discretion depends. A determination that there are or are not substantial and compelling circumstances is not itself a matter of sentencing discretion. H

[4] The question whether such circumstances are present or absent involves a value judgment, but unless there are clear indications in the Act that this value judgment has been entrusted solely to the discretion of the trial court, an appellate court may form its own view as to whether such circumstances are or are not present. The fact that a judicial power I involves a value judgment does not in itself mean that it is a discretionary power in the sense that an appellate court's power to interfere is circumscribed (see Media Workers Association of South Africa and Others v Press Corporation of South Africa Ltd 1992 (4) SA 791 (A) at 800C – G). For many years, by way of example, the test for the admission or striking- off of attorneys and advocates was whether the person was a 'fit and J

2013 (2) SACR p508

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