S v Radebe

• Jurisdiction: South Africa
• Citation: 2019 (2) SACR 381 (GP)

S v Radebe
2019 (2) SACR 381 (GP)

2019 (2) SACR p381

Citation	2019 (2) SACR 381 (GP)
Case No	A 03/2017
Court	Gauteng Division, Pretoria
Judge	Spilg J, Rautenbach AJ and Mayisela AJ
Heard	December 13, 2018
Judgment	July 10, 2019
Counsel	EMMP Masete for the appellant, instructed by the Pretoria Justice Centre.; JMB Rangaka for the state.

Flynote : Sleutelwoorde

Rape — Sentence — Life imprisonment — Minimum sentence in terms of B Criminal Law Amendment Act 105 of 1997 — Substantial and compelling circumstances — What constitutes — Lack of apparent injuries — Not available to accused in terms of s 51(3)(aA) of Act 105 of 1997 — Notwithstanding, such factor ought not to be considered because mere absence of physical injury could not automatically equate with lesser C degree of degradation or emotional and psychological trauma.

Rape — Sentence — Life imprisonment — Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997 — Substantial and compelling circumstances — Conundrum facing prosecutors and presiding officers where accused offered plea bargain where some facts amounting to D aggravating factors omitted — Duty of prosecutor and magistrate to place proper evidence before court.

Headnote : Kopnota

The appellant, a 26-year-old first offender, was convicted in a regional magistrates' court of having raped a 10-year-old girl on a plea of guilty. The admitted evidence indicated that the appellant had gone to a playpark E and had taken the complainant, who at the time was in the company of her stepbrother, and penetrated her anally, placed his fingers into her vagina and tried to get the complainant to suck his penis. The assault was observed by the stepbrother who was compelled to be present. The court found no substantial and compelling circumstances present and sentenced the appellant to life imprisonment. He appealed against the finding that there were no F compelling and substantial circumstances present and that the sentence imposed induced a sense of shock. He contended in support thereof the facts that he was only 26 years old and relatively young; that he was a first offender; that he had pleaded guilty; that there were prospects for his rehabilitation; and that the degree of violence used was slight and the rape therefore did not amount to the worst kind of rape for which life imprisonment was intended. He also wished that it be taken into consideration G the nine months that he spent in custody prior to being sentenced.

Held, as to the submission that this was not the worst kind of rape because there were no apparent physical injuries, that if the appellant were to succeed in this submission, then, as with cases where the proximity of the relationship between the perpetrator and the victim was relied on as a mitigating factor, the first hurdle to overcome was whether such a ground could be competently H raised in light of the exclusionary provisions of s 51(3)(aA) of the Criminal Law Amendment Act 105 of 1997 (CLAA). (See [29].)

Held, further, that it was evident that, far from allowing such factors to constitute substantial and compelling factors, the provisions of ss 51(3)(aA)(ii) and (iv) expressly provided that the apparent absence of physical harm, or the existence of a relationship between the offender and the victim, could not be I regarded as mitigating factors for purposes of reducing the prescribed sentence. (See [32].)

Held, further, that the factors mentioned in part I of the CLAA and the clear delineation between what Parliament considered to be more egregious instances of rape, albeit that the victim did not appear to have suffered any physical injury, gave a clear indication of the gravity with which the J

2019 (2) SACR p382

legislature A considered how the rape of a child would impact on their general wellbeing and development, as well as the interests of society, and its revulsion towards such a crime. Unless a constitutional challenge were raised to these exclusions, then the appellant could not rely on the absence of physical injuries (other than to the complainant's anus) as constituting substantial and compelling circumstances. (See [39] – [40].)

Held, B further, that, leaving aside the exclusionary provisions of s 51(3)(aA), at its most basic level, support for the proposition that a lack of physical injuries would result in a less serious rape ought to fail, firstly, because rape constituted the invasion of a bundle of rights impacting on the bodily integrity and psyche of the victim, and, secondly, because the mere absence of physical injury could not automatically equate with a lesser degree of C degradation or emotional and psychological trauma. (See [46].)

Held, in the circumstances, the magistrate was correct to have found an absence of substantial and compelling circumstances justifying a departure from the prescribed minimum sentence, and the appeal accordingly had to be dismissed. (See [97].)

The D court remarked on the conundrum faced by prosecutors and presiding officers, where an accused offered a plea bargain in circumstances where some facts that would amount to aggravating factors were omitted. It noted that it was for the prosecutor to decide what facts contained in the s 112 plea should not be accepted. Once accepted, they constituted the admitted facts which were unlikely to be contradicted, bearing in mind E the risk of jeopardising the accused's fair-trial rights. However, this did not mean that where there were gaps they could not be filled in by evidence presented to the court at the stage of sentencing. This was apparent from the right the prosecutor had under s 112(3) to present evidence on sentencing in cases where a plea had been accepted. Moreover, the court was entitled in terms of s 274(1) to adopt a more inquisitorial role in receiving evidence as it thought fit, as to the proper sentence to be passed. F (See [101] – [103].)

Cases cited

Director of Public Prosecutions, North Gauteng v Thabethe2011 (2) SACR 567 (SCA) ([2011] ZASCA 186): referred to

Masiya v Director of Public Prosecutions, Pretoria and Another (Centre for Applied Legal Studies and Another, Amici Curiae) G 2007 (2) SACR 435 (CC) (2007 (5) SA 30; 2007 (8) BCLR 827; [2007] ZACC 9): referred to

S v Bogaards2013 (1) SACR 1 (CC) (2012 (12) BCLR 1261; [2012] ZACC 23): referred to

S v Chapman H 1997 (2) SACR 3 (SCA) (1997 (3) SA 341; [1997] 3 All SA 277; [1997] ZASCA 45): referred to

S v Dlamini2012 (2) SACR 1 (SCA): applied

S v Ganga2016 (1) SACR 600 (WCC): compared

S v GK2013 (2) SACR 505 (WCC) ([2013] ZAWCHC 76): referred to

S v H [2014] ZAGPJHC 214: referred to

S v Karg I 1961 (1) SA 231 (A): applied

S v Kruger2012 (1) SACR 369 (SCA) ([2011] ZASCA 219): applied

S v Kwanape2014 (1) SACR 405 (SCA) ([2012] ZASCA 168): considered

S v M2007 (2) SACR 60 (W): dicta in paras [99] and [101] discussed

S v Mabaso A 372/2014: referred to

S v Mahomotsa2002 (2) SACR 435 (SCA) ([2002] 3 All SA 534; [2002] ZASCA 61): J referred to

2019 (2) SACR p383

S v Makwanyane1995 (2) SACR 1 (CC) (1995 (3) SA 391; 1995 (6) BCLR 665; A [1995] ZACC 3): considered

S v Malgas2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220; [2001] ZASCA 30): applied

S v Masuku2019 (1) SACR 276 (GJ): referred to

S v Matyityi2011 (1) SACR 40 (SCA) ([2010] 2 All SA 424; [2010] ZASCA 127): applied B

S v Mayisela2013 JDR 0752 (GNP): referred to

S v Mqabhi2015 (1) SACR 508 (GJ): referred to

S v Mugridge2013 JDR 0658 (SCA): referred to

S v Nkunkuma and Others2014 (2) SACR 168 (SCA) ([2013] ZASCA 122): referred to C

S v Rabie1975 (4) SA 855 (A): dictum at 862G – H applied

S v Radebe and Another2013 (2) SACR 165 (SCA) ([2013] ZASCA 31): applied

S v Vilakazi2009 (1) SACR 552 (SCA) (2012 (6) SA 353; [2008] 4 All SA 396; [2008] ZASCA 87): applied

S v Zinn1969 (2) SA 537 (A): applied. D

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, ss 112, 112(3) and 274(1): see Juta's Statutes of South Africa 2018/19 vol 1 at 2-308

The Criminal Law Amendment Act 105 of 1997, ss 51(3)(aA) and 51(3)(aA)(ii), (iv), read with part I of sch 2: see Juta's Statutes of South Africa 2018/19 E vol 1 at 2-458 and 2-460 – 2-461.

Case Information

EMMP Masete for the appellant, instructed by the Pretoria Justice Centre.

JMB Rangaka for the state. F

An appeal from a sentence of life imprisonment imposed in a regional magistrates' court for rape.

Order

The appeal is dismissed. G

Judgment

Spilg J (Rautenbach AJ and Mayisela AJ concurring):

Introduction H

[1] The appellant pleaded guilty to raping a girl who was only 10 years old at the time. He was legally represented at the trial and fully aware that the state intended to apply the provisions of s 51(1) read with sch 2 to the Criminal Law Amendment Act 105 of 1997 (the CLAA). This appears from the charge-sheet that was read out when he was required to plead. I

[2] The effect of s 51(1) is that on conviction the court is obliged to sentence an offender, who rapes someone under the age of 16, to life imprisonment unless substantial and compelling circumstances are present. J

2019 (2) SACR p384

Spilg J (Rautenbach AJ and Mayisela AJ concurring)

[3] A The appellant was convicted on his s 112(2) plea-of-guilty statement. [1] Regional court magistrate Willemse could find no substantial and compelling circumstances to depart from the minimum sentence for the rape of an underaged person, and sentenced the appellant to life imprisonment. The appellant exercised his right of automatic appeal under s 10 of the Judicial Matters Amendment Act 42 of 2013. B The appeal is against sentence only.

Grounds of appeal

[4] The appellant raises two main grounds of appeal against sentence:

(a)

C That the trial court misdirected itself in finding...