S v Mvamvu

• Jurisdiction: South Africa
• Judgment Date: 29 September 2004
• Citation: 2005 (1) SACR 54 (SCA)

S v Mvamvu
2005 (1) SACR 54 (SCA)

2005 (1) SACR p54

Citation	2005 (1) SACR 54 (SCA)
Case No	350/2003
Court	Supreme Court of Appeal
Judge	Mthiyane JA, Cloete JA and Van Heerden JA
Heard	September 9, 2004
Judgment	September 29, 2004
Counsel	F Geyser for the State.; N W Botha (attorney) for the respondent.

Flynote : Sleutelwoorde B

Sentence — Prescribed sentences — Minimum sentence — Imposition of in terms of Criminal Law Amendment Act 105 of 1997 — 'Compelling and substantial circumstances' — Court's discretion where such exist — That having found substantial and compelling circumstances justifying imposition of lesser sentence are present, C sentencing court not having free and unfettered discretion to impose any sentence it considers appropriate — Important for sentencing court to properly balance all factors relevant to sentencing against benchmark provided by Legislature in respect of certain serious offences.

Sentence — D Imposition of — Factors to be taken into account — Accused's background — Accused raping, abducting and assaulting customary-law wife — Apparent aim of attacks to subjugate complainant to his will and to persuade her to return to him — Accused's actions shaped and moulded by norms, beliefs and customary practices by which he lived his life — They cannot be ignored when E considering appropriate sentence — Giving due weight to aggravating and mitigating circumstances and special circumstances of case, and bearing in mind that accused had been in custody for more than three and a half years, sentence of five years' and three years' imprisonment respectively on two counts of rape, and three years' and three months' imprisonment respectively for abduction and assault, to F be served concurrently substituted with one of ten years' imprisonment in respect of two counts of rape, such sentences to run concurrently with each other and with sentences imposed for the other offences.

Headnote : Kopnota

The accused was convicted in a regional court on two counts of G rape, one count of abduction and one count of assault of his customary-law wife. The apparent aim of these attacks was to subjugate the complainant to his will and to persuade her to return to him. He was sentenced in a High Court, in terms of s 52 of the Criminal Law Amendment Act 105 of 1997, to five years' and three years' imprisonment respectively on the two counts of rape, and to three years' and three months' imprisonment respectively for the abduction H and the assault. The sentences were to run concurrently. The State appealed against the sentence.

Held, that the Court a quo had misdirected itself on a number of factual matters and the misdirections were material, so entitling the Court on appeal to interfere with the sentence imposed. (Paragraph [14] at 59g - h.)

Held, further, that the sentences imposed in respect of the I two rape counts were so disturbingly inappropriate as to lead to the inference that the Court a quo failed to exercise its discretion properly. (Paragraphs [15] and [18] at 60b and 62b.)

Held, further, that having found substantial and compelling circumstances justifying the imposition of a lesser sentence were present as contemplated by the Act, the sentencing Court did not have a free and unfettered J

2005 (1) SACR p55

discretion to impose any sentence it considered appropriate. (Paragraph [17] at 61c - d.) A

Held, further, that it is important for the sentencing court to properly balance all the factors relevant to sentencing against the benchmark provided by the Legislature in respect of certain serious offences. (Paragraphs [1] and [17] at 56a and 61c.)

Held, further, that, the accused's actions were shaped and B moulded by the norms, beliefs and customary practices by which he had lived his life and that these could not be ignored when considering an appropriate sentence. (Paragraph [16] at 60i - 61b.)

Held, further, that giving due weight to the aggravating and mitigating circumstances and the special circumstances of the case, and bearing in mind that, when sentence had been passed the accused had already been in custody for more than three and a half years, an C appropriate sentence was ten years' imprisonment in respect of the two counts of rape, such sentences to run concurrently with each other and with the sentences imposed for the other offences. (Paragraph [18] at 62c - d.)

Annotations:

Cases cited

Reported cases

S v Abrahams 2002 (1) SACR 116 (SCA): applied D

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222): applied

S v Maputle 2002 (1) SACR 550 (W): referred to

S v Toms; S v Bruce 1990 (2) SA 802 (A): referred to.

Case Information

Appeal by the State against a sentence imposed by the Cape E High Court (Moosa J). The facts appear from the reasons for judgment, which was handed down by Mthiyane JA; Cloete JA and Van Heerden JA concurring.

F Geyser for the State.

N W Botha (attorney) for the respondent. F

In addition to the authorities cited in the judgment of the Court, the legal representatives of the parties referred to the following:

Attorney-General, Venda v Maraga 1992 (2) SACR 594 (V)

R v Mapamulo and Others 1920 AD 56 at 57

S v B 1996 (2) SACR 543 (C) at 551A, G 551I, 552D

S v Fazzie and Others 1964 (4) SA 673 (A) at 684B

S v Pieterse 1987 (3) SA 717 (A) at 734E, 734G - H

S v Pillay 1977 (4) SA 531 (A) at 535E - G

S v Rabie 1975 (4) SA 755 (A) at 857D - E

Du Toit Straf in Suid-Afrika (1981) at H 126, 127, 447.

Cur adv vult.

Postea (September 29). I

Judgment

Mthiyane JA:

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

2005 (1) SACR p56

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...