S v Ngcobo

• Jurisdiction: South Africa
• Citation: 2018 (1) SACR 479 (SCA)

S v Ngcobo
2018 (1) SACR 479 (SCA)

2018 (1) SACR p479

Citation	2018 (1) SACR 479 (SCA)
Case No	1344/2016; [2018] ZASCA 6
Court	Supreme Court of Appeal
Judge	Wallis JA, Pillay AJA and Schippers AJA
Heard	February 15, 2018
Judgment	February 23, 2018
Counsel	Z Anastasiou for the appellant, instructed by the Justice Centre, Pietermaritzburg.; C Kander for the state.

Flynote : Sleutelwoorde

Rape — Sentence — Life imprisonment — Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997 — Substantial and compelling circumstances — What constitutes — Effect of two-year period of incarceration prior to sentencing. C

Headnote : Kopnota

The appellant, who was 23 years old at the time of the commission of the offence, was convicted in a regional court of two counts of rape in terms of s 51 and s 52 of the Criminal Law Amendment Act 105 of 1997. He was sentenced to a term of life imprisonment (both counts taken together). The circumstances D of the crime were that the appellant had gone to the house of the 16-year-old complainant where he raped her. He then dragged her to his own home, some 2 – 3 kilometres away, where he raped her again. She sustained bruises to her legs and swelling of the face from the assault. His appeal to the High Court was unsuccessful but he was granted leave to appeal by the Supreme Court of Appeal.

On appeal, it was contended on his behalf that the court a quo had not taken into E account the fact that he had been in custody for two years before he was sentenced.

Held, that a preconviction period of imprisonment was not, on its own, a substantial and compelling circumstance: it was merely a factor in determining whether the sentence imposed was disproportionate or unjust. (See [14].) F

Held, noting that the appellant had shown no remorse, that the difference that the two years would make to the sentence of life imprisonment was so marginal that it did not render the sentence shockingly disproportionate. Nor would it be, without remorse on his part, inconsistent with his countervailing constitutional rights. The appeal was accordingly dismissed. (See [21].) G

2018 (1) SACR p480

Cases cited

Director A of Public Prosecutions, North Gauteng: Pretoria v Gcwala and Others 2014 (2) SACR 337 (SCA) ([2014] ZASCA 44): referred to

S v Dodo 2001 (1) SACR 594 (CC) (2001 (3) SA 382; 2001 (5) BCLR 423; [2001] ZACC 16): applied

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220; B [2001] ZASCA 30): applied

S v Matyityi 2011 (1) SACR 40 (SCA) ([2010] 2 All SA 424; [2010] ZASCA 127): dictum in para [14] applied

S v Mhlongo 2016 (2) SACR 611 (SCA) ([2016] ZASCA 152): referred to

S v Radebe and Another 2013 (2) SACR 165 (SCA) ([2013] ZASCA 31): dicta in paras [14] – [16] applied

S C v Romer 2011 (2) SACR 153 (SCA): dicta in paras [22] – [23] applied

S v Sangweni 2010 (1) SACR 419 (KZP): referred to

S v Seboko 2009 (2) SACR 573 (NCK): referred to

S v Vilakazi 2009 (1) SACR 552 (SCA) (2012 (6) SA 353; [2008] 4 All SA 396; [2008] ZASCA 87): applied.

Legislation cited

The D Criminal Law Amendment Act 105 of 1997, ss 51 and 52: see Juta's Statutes of South Africa 2016/17 vol 1 at 2-561.

Case Information

Z Anastasiou for the appellant, instructed by the Justice Centre, E Pietermaritzburg.

C Kander for the state.

An appeal against a sentence of life imprisonment imposed in a regional magistrates' court for rape, the sentence confirmed on appeal to the KwaZulu-Natal Division, Pietermaritzburg (McLaren J and K Pillay J).

Order F

The appeal is dismissed.

Judgment

Pillay AJA G (Wallis JA and Schippers AJA concurring):

[1] On 18 September 2006 the complainant, then aged 16 years, was studying in her room in Mangwaneni, Bulwer, in the KwaZulu-Natal Midlands. She was expecting her boyfriend W to bring her a book. She heard a knock at the door. Assuming that it was W she opened the H door. Instead it was the appellant.

[2] The appellant grabbed her and covered her mouth with his hand so that she could not scream. Pulling her to him he told her that he had returned from prison. He hit her with clenched fists many times, demanding that she call her sister with whom he previously had a I relationship. The complainant refused to do so. He threatened to shoot her. After asking her whom she had been expecting he said that they must go to W. She refused to go with him. He pulled her away, saying that they were no longer going to W's house. He forced her onto the ground and raped her. Then he dragged her to his house some two or three kilometres away. There he pushed her onto a bed and raped her J again. She sustained bruises on her legs and swelling of her face.

2018 (1) SACR p481

Pillay AJA (Wallis JA and Schippers AJA concurring)

[3] When the appellant fell asleep the complainant escaped. She made A her way to a bar owned by her brother-in-law. Someone telephoned for her brother-in-law. He arrived shortly thereafter with his father. The matter was reported to the police. The appellant was arrested that day. He was 23 years old at the time.

[4] In his defence the appellant alleged that he was in a secret relationship B with the complainant who did not want her parents to know about their affair. Because her sister was his girlfriend, her parents would have 'expelled' her from their home if they found out about their affair. Therefore, fearing her parents, she lied that he had raped her when they had sexual intercourse only once at his house. C

[5] On 5 September 2008 the regional court in Ixopo convicted the appellant of two counts of rape falling under ss 51 and 52 of the Criminal Law Amendment Act 105 of 1997 (the Act) and sentenced him to a term of life imprisonment for both counts taken together. On an automatic D appeal in terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 38 of 2007 the KwaZulu-Natal Division of the High Court, Pietermaritzburg (McLaren J and K Pillay J), confirmed the conviction and sentence of life imprisonment. On 3 November 2016 this court granted special...