S v Nxumalo
| Jurisdiction | South Africa |
| Judge | Steyn J |
| Judgment Date | 22 October 2018 |
| Docket Number | CCD6/2017 |
| Court | KwaZulu-Natal Division, Durban |
| Hearing Date | 22 October 2018 |
| Citation | 2018 JDR 1819 (KZD) |
Steyn J:
The accused has been convicted on nine counts, two counts of kidnapping, five counts of rape, possession of suspected stolen property [1] and using a motor vehicle without the owner's consent. [2] The factual matrix supporting these convictions is set out in the judgment on the merits.
In deciding upon an appropriate sentence I am obliged to have regard to the objectives of punishment, i.e. deterrence, prevention, retribution and reformation. The traditional circumstances that should play a role at sentencing have been stated in S v Zinn. [3]
2018 JDR 1819 p2
Steyn J
The rights of victims should also be taken into account and have been acknowledged by the South African Law Commission in its report of 2000:
'Individual decisions are announced to a critical public who analyse them against a variety of expectations. They not only ask whether the sentences express public condemnation of the crime adequately and protect the public against future crimes by the reform and incapacitation of offenders and by the deterrence of both the individual offender and other potential offenders, but also whether the sentences are just in the sense that similar sentences are being imposed for offences that are of equal seriousness or heinousness.' [4]
(My emphasis.)
South Africa adopted the Service Charter for Victims of Crime in 2007. [5] Section 299A of the Criminal Procedure Act 51 of 1977 [6] underlines the philosophy of restoring the rights of victims and clearly recognises that victims have the right to be informed of an offender's parole consideration. More importantly, they have the right to make representations with regard to an offender's parole decision. [7] Despite this
2018 JDR 1819 p3
Steyn J
statutory recognition, these rights remain hollow and non-existent unless the prosecution service ensures that victims are present at court when an accused is sentenced to imprisonment on one of the categories of crime as per s 299A(1)(a) to (g).
The aforesaid section recognises formally that victims have fundamental rights that should be upheld throughout the criminal justice process. Courts are obliged to inform the victims of these categorised crimes of this right. As much as courts are compelled to inform victims of their right to make representations, the implementation of this section causes a practical problem, since presiding officers are not in control of the victims' details that testified before them. It is the office of the DPP that has such details and who should give meaning to the rights of the victims listed in s 299A and who has a duty to develop a policy that gives effect to the legislation. In my view, the National Prosecuting Authority's Code of Conduct, s 2(c) requires of prosecutors to:
'consider the views, legitimate interests and possible concerns of victims and witnesses when their personal interests are, or might be, affected, and endeavour to ensure that victims and witnesses are informed of their rights, especially with reference to the possibility if any of victim compensation and witness protection.'
It is therefore of paramount importance that the office of the DPP, without delay, develop a policy that would enable prosecutors not only to comply with the obligations and duties listed in the Code of Conduct but also to give effect to s 299A of the Act, which is aimed at serving the interests of victims of crime. In this matter, the sentencing of the accused was delayed because no arrangement was made by the State to have the victims present at the sentencing phase. Both the victims were present at the next date of sentencing and have been informed of their s 299A rights.
It is common cause that the Criminal Law Amendment Act 105 of 1997 finds application in counts 6, 7, 9 to 11 and that the prescribed sentence is life
2018 JDR 1819 p4
Steyn J
imprisonment unless substantial and compelling circumstances exist which would justify a lesser sentence. In deciding upon the facts before me I shall take due cognisance of the Supreme Court of Appeal's approach and the Constitutional Court's in determining whether the circumstances of the accused are substantial and compelling. [8]
In a number of sentencing judgments little more than lip service has been paid to S v Malgas. I align myself with the words of Ponnan JA (para 23) in S v Matyityi: [9]
'As Malgas makes plain courts have a duty, despite any personal doubts about the efficacy of the policy or personal aversion to it, to implement those sentences. Our courts derive their power from the Constitution and like other arms of state owe their fealty to it. Our constitutional order can hardly survive if courts fail to properly patrol the boundaries of their own power by showing due deference to the legitimate domains...
To continue reading
Request your trial