S v Mvamvu

• Jurisdiction: South Africa
• Judge: Mthiyane JA, Cloete JA and Van Heerden JA
• Judgment Date: 29 September 2004
• Citation: 2005 (1) SACR 54 (SCA)
• Docket Number: 350/2003
• Hearing Date: 09 September 2004
• Counsel: F Geyser for the State. N W Botha (attorney) for the respondent.
• Court: Supreme Court of Appeal

Mthiyane JA:

[1] This case highlights the importance of the individualisation of punishment [1] and the need for the sentencing court properly to balance

Mthiyane JA

all the factors relevant to sentencing against the benchmark provided by the Legislature in respect A of certain serious offences. [2] The State appeals against an effective five-year prison sentence imposed on the respondent (the accused) for the multiple rape (eight incidents on two occasions), abduction and assault of his customary-law wife, C S (the complainant).

[2] The accused was convicted in the regional court at Knysna B on two counts of rape, one count of abduction and one count of assault. The matter was thereafter referred to the Cape High Court for sentence in terms of s 52 of the Criminal Law Amendment Act 105 of 1997 (the Act). The Court a quo (Moosa J) confirmed the convictions and sentenced the accused to five years' and three years' C imprisonment respectively on the two rape counts, and to three years' and three months' imprisonment respectively for the abduction and the assault. The sentences were ordered to run concurrently.

[3] The State contends that, having regard to the minimum D sentence provisions contained in s 51 of the Act, the sentence imposed on the accused was too lenient. Sections 51(1) and 51(3)(a) of the Act provide that if a High Court has convicted a person of an offence referred to in Part I of Schedule 2, it shall sentence that person to imprisonment for life unless it is satisfied that there are substantial and compelling circumstances which justify the imposition of a lesser sentence. [3] E

[4] Before turning to the facts a brief consideration of the background of the accused and the complainant is necessary for a better understanding of the setting against which the offences were committed. The accused was born at Qumbu in the Transkei, where he lived according F to the traditions, customs and beliefs of his tribe. Although he passed grade 7 at school he led a simple and unsophisticated life. In 1995 he entered into a customary marriage with the complainant, whom he had known from childhood. She was about 15 years old at the time. They had two children: One who died soon after birth and a daughter who was G approximately five years old when the accused was sentenced. In April 1999 their marriage experienced problems which resulted in the complainant leaving the accused to stay with her brother, Mr S S. She assumed that the marriage had ended, not least because the accused's uncle had given her permission to remove her traditional wedding attire. (The accused's father was deceased, having committed suicide H some years previously.) The accused, on the other hand, regarded the marriage as extant, because the lobolo [4] he had paid in respect of the complainant I

Mthiyane JA

had not been returned by her family. [5] In addition, according to the A accused, the two families had not met to attempt to reconcile the couple, as required by customary law. [6] Both of these latter two aspects were emphasised by the expert witness called by the Court, Rev Ngesi. The accused also believed that the complainant's family were the cause of the break-up of their marriage. The problems in the marriage arose some time after the accused and the B complainant had left Transkei for Knysna, where the accused was working.

[5] I now turn to consider the facts. On Wednesday, 12 May 1999 the accused and the complainant attended the magistrate's court at Knysna for the hearing of a child maintenance complaint and a domestic violence dispute. At the conclusion of the hearing a domestic C violence interdict was issued against the accused by consent. Upon their return to their respective places of residence the accused persuaded the complainant to travel with him in the same taxi. When she reached her destination he tried to prevent her from disembarking and D begged her to return to his home. She refused and proceeded to alight from the taxi. He also disembarked. When she ran away soon after alighting he pursued her and caught up with her near a neighbour's house. He began to drag her away and a scuffle ensued. As he was trying to pull her towards him, she clung on to a pole supporting the neighbour's boundary fence. Her resistance came to naught as the pole E gave in and was ripped out of the ground. She then broke away from him and ran into the neighbour's house but he followed and again accosted her. The accused ultimately had his way and took her to his home by force. He kept her there against her will from Wednesday, 12 May until Friday, 15 May 1999. During that period he raped her on six occasions. The complainant managed to escape on Friday, 15 May, F after the accused had left the house for a while.

[6] The second incident occurred on 29 May 1999. The accused visited the complainant at her brother's house. He asked to speak to her but the complainant's brother was only prepared to allow G him to do so if this took place in the house. But shortly after the complainant's brother had left the house (to fetch his uncle to help him to deal with the accused, who was armed with a knife), the accused forcibly removed the complainant and dragged her into the bush to a place near an abandoned abattoir, where he raped her twice. On this occasion he also assaulted the complainant by hitting her twice on her thigh with a stick. H

[7] Having regard to the minimum sentence provisions, the Judge a quo found that 'substantial and compelling circumstances' justifying the imposition of a lesser sentence were present as...