S v JA

• Jurisdiction: South Africa
• Citation: 2017 (2) SACR 143 (NCK)

S v JA
2017 (2) SACR 143 (NCK)

2017 (2) SACR p143

Citation	2017 (2) SACR 143 (NCK)
Case No	CA&R 80/2007
Court	Northern Cape Division, Kimberley
Judge	Kgomo JP, Olivier J and Erasmus AJ
Heard	July 25, 2016
Judgment	August 12, 2016
Counsel	VZ Nel for the appellant, instructed by Legal Aid South Africa.; JJ Rosenberg for the state.

Flynote : Sleutelwoorde

Rape — Sentence — Life imprisonment — Minimum sentence in terms of B Criminal Law Amendment Act 105 of 1997 — Relatively old offender — Argument that would only be eligible for parole when very old and therefore life imprisonment not appropriate, rejected.

Headnote : Kopnota

The appellant was 59 years of age when he was sentenced in the High Court to life C imprisonment for the rape of his 12-year-old daughter. On appeal it was contended, inter alia, that his advanced age should have been considered as a mitigating factor, as he would become eligible for parole (with reference to the provisions of s 73 of the Correctional Services Act 111 of 1998) no sooner than the age of 74, and possibly, only when he reached the age of 84.

Held, that, in imposing sentence, the court could not take into account or rely on D the possibility that the offender could be released on parole after having served a specified portion of the maximum period. It was not for the sentencing court to try to work out how old an offender could be when (if at all) the executive decided to release him or her on parole (see [38] – [39]). The appeal was dismissed.

Cases cited

Director of Public Prosecutions, KwaZulu-Natal v Ngcobo and Others 2009 (2) SACR 361 (SCA) ([2009] 4 All SA 295): compared

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

S v Barendse 2010 (2) SACR 616 (ECG): distinguished

S v Dlamini 2014 (1) SACR 530 (GP): compared F

S v Dumba 2011 (2) SACR 5 (NCK): distinguished

S v ET 2012 (2) SACR 478 (WCC): compared

S v GK 2013 (2) SACR 505 (WCC) ([2013] ZAWCHC 76): referred to

S v Heller 1971 (2) SA 29 (A): referred to

S v Hewitt 2017 (1) SACR 309 (SCA): dictum in para [16] applied

S v HN SECLD CC 5/08: referred to G

S v Jaftha 2010 (1) SACR 136 (SCA) ([2010] 1 All SA 403): compared

S v Jibiliza 1995 (2) SACR 677 (A): compared

S v Lewatle 2012 JDR 1446 (GNP): compared

S v M 2007 (2) SACR 60 (W): compared

S v Martin 1996 (2) SACR 378 (W): compared

S v Matlala 2003 (1) SACR 80 (SCA): dictum in para [7] applied H

S v MDT 2014 (2) SACR 630 (SCA): compared

S v Mhlakaza and Another 1997 (1) SACR 515 (SCA) ([1997] 2 All SA 185; [1997] ZASCA 7): compared

S v Michele and Another 2012 (1) SACR 131 (SCA) ([2010] 1 All SA 446): compared

S v MM 2012 (2) SACR 18 (SCA) ([2012] 2 All SA 401): compared I

S v Mokoena 2009 (2) SACR 309 (SCA): referred to

S v Mthimkulu [2011] ZASCA 178: referred to

S v Munyai and Others 1993 (1) SACR 252 (A): distinguished

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

S v T 1997 (1) SACR 496 (SCA): compared

S v Van Deventer and Another 2012 (2) SACR 263 (WCC): compared. J

2017 (2) SACR p144

Legislation cited

The Correctional Services Act 111 of 1998, s 73: see Juta's Statutes of South Africa 2015/16 vol 1 at 3-121

The Criminal Law Amendment Act 105 of 1997: see Juta's Statutes of South Africa 2015/16 vol 1 at 2-514 – 2-516.

Case Information

VZ B Nel for the appellant, instructed by Legal Aid South Africa.

JJ Rosenberg for the state.

An appeal against a sentence of life imprisonment imposed for rape in the High Court.

Order

The C appeal is dismissed and the sentence of life imprisonment is confirmed.

Judgment

Olivier J (Kgomo JP and Erasmus AJ concurring):

[1] D After the withdrawal of another charge the appellant, Mr JA, appeared in the regional court, Springbok, on one count of rape, on 22 November 2006. It was alleged that he had over a period of time 'between 2002 and 2/9/2004' raped the 12-year-old complainant.

[2] E The charge referred to the provisions of s 51(2) of the Criminal Law Amendment Act [1] (the Act) which prescribed sentences of 10 years', 15 years' and 20 years' imprisonment for, respectively, first-, second- and third-rape offenders as contemplated in part III of sch 2 to the Act. It appears, however, that the appellant had prior to pleading to the charge been informed that, if convicted, he would be facing a sentence F of life imprisonment 'due to the fact that the person you are alleged to have raped is a . . . 12-year-old girl'.

[3] The appellant pleaded not guilty, but in explanation of his plea he admitted that he had on 2 September 2004 indecently assaulted the complainant by undressing her and touching her private parts. G He denied, however, having ever had sexual intercourse with her.

[4] The appellant was, however, subsequently convicted on the basis of findings that he had in 2004, and on a farm where he had been working, raped the complainant on three occasions and that, on 2 September 2004 and in Port Nolloth, had again undressed the complainant with the H intent of having sexual intercourse with her.

[5] The appellant had been approximately 56 years old at the time of the crimes and was 59 years old when the matter was referred to the High Court for sentencing. [2]

[6] I The court a quo confirmed the conviction. Having found a prescribed sentence of life imprisonment to be applicable on two grounds,

2017 (2) SACR p145

Olivier J

viz the fact that the complainant had been under the age of 16 years and A the fact that the appellant had raped the complainant more than once, [3] and having found no substantial and compelling circumstances justifying a lesser sentence, the court sentenced the appellant to life imprisonment, but subsequently granted him leave to appeal against the sentence.

[7] The delays between the imposition of sentence in March 2008 and B the grant of leave to appeal in 2010, and the further delays in finalising the appeal, are regrettable. It appears that part of the proceedings in the court a quo could not be transcribed and had to be reconstructed, but that would not in itself explain such delays. The appellant had been legally represented when leave to appeal was granted and his legal C representative, as well as the prosecuting authority, should have monitored the prosecution of the appeal and the proper compilation of the record. Such delays could in certain cases compromise the right to appeal and the consideration of sentence on appeal. [4] In the present case the appellant has, however, been serving his sentence of life imprisonment pending the appeal, and could not realistically have expected any D sentence other than long-term imprisonment in the event of a successful appeal.

[8] The complainant, who had been 12 years old at the time of the incidents, was the daughter of the appellant and Ms B, with whom the appellant had been living as husband and wife for more than 20 years. E They, as well as the complainant's two sisters and one brother, had been living in Port Nolloth. From time to time the appellant worked on farms in the vicinity, and the rapes occurred when the complainant and Ms B spent a school holiday with the appellant on such a farm.

[9] The facts which the regional magistrate had found to have been F proven and on the basis of which the court a quo imposed sentence were, very briefly, that the rapes had occurred when the appellant had followed the complainant to where she had been herding sheep (sometimes after the appellant had sent her there). When they were out of sight the appellant would, despite the complainant's pleas and protests, insist that she undress and would then have sexual intercourse with her by G penetrating her vaginally.

[10] In the process the complainant was robbed of her virginity and, when Ms B once noticed blood on her clothes and confronted the appellant, he admitted to having had sexual intercourse with the H complainant and promised never to do so again. This promise was not kept and the appellant even on occasion, and to ensure the silence of the complainant, threatened that he would kill her mother.

2017 (2) SACR p146

Olivier J

[11] A When Ms B became aware of the last rape she left the farm and took the complainant with her. It appears that they then returned to where they had been living in Port Nolloth.

[12] Approximately two weeks later, on 2 September 2004, the appellant showed up in Port Nolloth and had the complainant called home under B false pretences. When she arrived there with friends, the appellant put the friends out of the house and proceeded to partially undress the complainant and himself. He was on the point of again raping the complainant when Ms B came into the room. He then pretended to have been looking for his tobacco and pretended that the complainant had undressed herself, and that he did not know why.

[13] C The appellant then left, but was shortly thereafter arrested. That was the end of the relationship between the appellant and Ms B, and the complainant never saw the appellant again after that.

[14] It appears that a social worker, Ms LE Swartbooi, had prepared a D victim report on the complainant on 10 December 2004. Although the report itself does for some reason not form part of the record, its contents were read into the record by Ms Swartbooi in her evidence.

[15] From that it appears that the complainant and her siblings had grown up in unstable circumstances, with both the appellant and Ms B E having abused alcohol and drugs. The complainant had been experiencing problems with her concentration, but after these events she finally left school in grade 4, because...