S v Vilakazi

• Jurisdiction: South Africa
• Judge: Streicher JA, Nugent JA, Mlambo JA, Maya JA and Hurt AJA
• Judgment Date: 03 September 2008
• Citation: 2009 (1) SACR 552 (SCA)
• Docket Number: 576/07
• Counsel: BC Bredenkamp SC (with HL Alberts) for the appellant. AR de Meillon for the respondent. W Trengove SC (with C Steinberg and I Goodman) as first amici curiae. KD Moroka SC (with K Pillay) as second amici curiae.
• Court: Supreme Court of Appeal

Nugent JA:

[1] Rape is a repulsive crime. It was rightly described by counsel in this case as 'an invasion of the most private and intimate zone of a woman and strikes at the core of her personhood and dignity'. In S v Chapman H [1] this court called it a 'humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim' and went on to say that

[w]omen in this country . . . have a legitimate claim to walk peacefully I on the streets, to enjoy their shopping and their entertainment, to go and come from work, and to enjoy the peace and tranquility of their homes without the fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives.

Nugent JA

A [2] Yet women in this country are still far from having that peace of mind. According to a study on the epidemiology of rape 'the evidence points to the conclusion that women's right to give or withhold consent to sexual intercourse is one of the most commonly violated of all human rights in South Africa'. [2] During 2007 as many as 36 190 reports of rape B were made to the police. [3] Perhaps in some cases the report was false but the figure is nonetheless staggering bearing in mind that rape is notoriously under-reported. It is also notorious that relatively few offenders are caught and convicted.

[3] There is considerable risk in those circumstances that excessive C punishment will be heaped on the relatively few who are convicted in retribution for the crimes of those who escape or in the despairing hope that it will arrest the scourge. [4] But the Constitutional Court reminded us in S v Dodo[5] that punishment must always be proportionate to the deserts of the particular offender - no less but also no more - for all human beings 'ought to be treated as ends in themselves, never merely D as means to an end'. [6]

[4] In the case that I referred to earlier Chapman was said to have 'prowled the streets and shopping malls and in a short period of one week he raped three young women, who were unknown to him. He deceptively pretended to care for them by giving them lifts and E then proceeded to rape them callously and brutally, after threatening them with a knife.' [7] This court (Mahomed CJ, Van Heerden and Olivier JJA) described the sentence that he received as 'undoubtedly severe' but declined to interfere, saying that it was 'determined to protect the equality, dignity and freedom of all women we shall show no mercy F to those who seek to invade those rights'. [8] For each of his crimes Chapman was sentenced to seven years' imprisonment with the effective sentence being 14 years' imprisonment. [9]

[5] Chapman was sentenced before ss 51 and 52 of the Criminal Law Amendment Act 105 of 1997 (for convenience I will refer to those sections as the Act) introduced a minimum sentencing regime. But the G sentence that was imposed in that case is not unduly out of line with the minimum sentence that is prescribed by the Act. The Act prescribes a minimum sentence for rape of ten years' imprisonment in the absence of

Nugent JA

specified aggravating circumstances (none of which appear to have been A present in that case) and multiple sentences imposed under the Act are capable of being served concurrently.

[6] In the present case the appellant was convicted on one count of rape and sentenced to life imprisonment. What accounts for the enormous disparity between the sentence in Chapman and the sentence in this case B is that in this case the appellant's victim was under the age of 16 years. The Act prescribes that on that account alone the ordinary minimum sentence for rape of 10 years' imprisonment should instead be the maximum sentence that is permitted by our law, which is life imprisonment. C

[7] This appeal is against that sentence. The appellant was convicted in the regional court at Volksrust and was committed to the High Court for sentence as required by s 52 of the Act. The Act prescribes that the minimum sentence must be imposed unless the court is satisfied that substantial and compelling circumstances exist that justify a lesser D sentence. In this case the High Court at Pretoria (Els J) found that no such circumstances existed and sentenced the appellant accordingly. An application to that court some three years later for leave to appeal against both the conviction and the sentence failed. Leave was subsequently granted by this court to appeal against sentence. Why the appeal process E has taken so long is not now material.

[8] Leave to appeal was granted by this court with directions that certain issues in particular should be addressed. At the time the appellant petitioned this court he had no legal representation and Mr Trengove SC was requested to act as amicus curiae to assist this court in reaching a F proper conclusion. We are grateful to him, and to Ms Steinberg and Ms Goodman who agreed to assist him, for their willingness to accept the appointment. By the time the matter reached this court the Legal Aid Board had appointed counsel (Mr Bredenkamp SC and Mr Alberts) to represent the appellant. The Centre for Applied Legal Studies and the Tshwaranang Legal Advocacy Centre applied for and were granted leave G to address this court on issues of general application relating to the Act and were represented by Ms Moroka SC and Ms Pillay. The State was represented by Mr De Meillon. Although leave to appeal was granted only against sentence Mr De Meillon properly accepted that the appeal might be broadened to include the conviction if upon reflection on the evidence H we were to be of the view that the appellant should not have been convicted. [10]

[9] The Act came into effect on 1 May 1998 for a period of two years but was capable of being extended for two years at a time by proclamation. It was introduced in response to the upsurge in serious crime and was I described by the Minister of Justice at the time as 'drastic' but temporary. Parliament was told by the portfolio committee that the Act

Nugent JA

A is to be regarded as a precursor to a fully fledged sentencing guideline system that will inevitably take some time to evolve. Hence the provision to limit the life span of the Act to two years, after which the President with the concurrence of Parliament will be able to extend its operation one year at a time. [11]

B [10] A sophisticated system to construct guidelines for consistency in sentencing that would take account of the views of all interested parties was subsequently recommended by the South African Law Commission in December 2000. [12] The recommendation was made after a comprehensive review of sentencing practice in this country and abroad, where C sentencing guidelines in one form or another are common. [13] But drastic legislation has a propensity to become permanent once it has become familiar. The sophisticated guideline-system recommended by the Law Commission, which I suspect would have been welcome to many judges who face the difficult task of sentencing, was not introduced. Instead the temporary regime provided for in the Act was consistently extended and D has now been entrenched (with some amendments) by the Criminal Law (Sentencing) Amendment Act 38 of 2007. [14]

[11] The sentencing regime that is provided for in the Act bears little relationship to the systems I have referred to, all of which are structured E to give due weight to the numerous combinations of variables that accompany the commission of crime. In contrast the Act purports to cover the field of serious crime in no more than a handful of blunt paragraphs.

[12] The Act demands the imposition of the prescribed minimum F sentences unless a court is satisfied in a particular case that there are 'substantial and compelling circumstances' that justify the imposition of a lesser sentence. I have pointed out that in the case of rape the sentence that is considered to be ordinarily appropriate is 10 years' imprisonment. G But there are eight circumstances in which the sentence prescribed for

Nugent JA

the crime is imprisonment for life. I have mentioned one such circumstance: A where the victim is a girl who is under the age of 16 years. The other seven are the following: [15]

(i)

Where the victim was raped more than once whether by the accused or by any co-perpetrator or accomplice;

(ii)

[When the crime was committed by] more than one person, where B such persons acted in the execution or furtherance of a common purpose or conspiracy;

(iii)

[When the crime was committed] by a person who has been convicted of two or more offences of rape, but has not yet been sentenced in respect of such convictions; C

(iv)

[When the crime was committed] by a person, knowing that he has the acquired immune deficiency syndrome or the human immunodeficiency virus;

(v)

Where the victim is a physically disabled woman who, due to her physical disability, is rendered particularly vulnerable; D

(vi)

Where the victim is a mentally ill woman as contemplated in s 1 of the Mental Health Act, 1973;

(vii)

[Where the crime involved] the infliction of grievous bodily harm.

[13] What is striking about that regime is the absence of any gradation E between ten years' imprisonment and life imprisonment. The minimum sentence of ten years' imprisonment progresses immediately to the maximum sentence that our law allows once any of the aggravating features is present, irrespective of how many of those features are present, irrespective of the degree in which the feature is present, and irrespective of whether the convicted person is a first or repeat offender. F On the face of it a first-offending 18-year-old boy who rapes his 15-year- old girlfriend on one occasion must receive the same sentence as a recidivist serial rapist who repeatedly gang-rapes and beats...