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IN TH HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GRAHAMSTOWN
Case no. CA90/2015
Date heard: 5/12/16
Date delivered: 8/12/16
Not reportable
In the matter between:
NTOBEKO POSWA
Appellant
and
THE STATE
Respondent
JUDGMENT
PLASKET, J:
[1]
The appellant was convicted by Eksteen J in the Eastern Cape High Court,
Port Elizabeth of the offence of rape. He was sentenced to life imprisonment and
now appeals against that sentence with Eksteen J’s leave. It was argued before us
that Eksteen J erred in failing to find that substantial and compelling circumstances
were present to justify a departure from the prescribed sentence of life imprisonment.
[2]
On 7 August 2011, the appellant met the complainant, a nine year old girl, by
chance in the street. He enticed her to accompany him and, through deceit, induced
her to go with him into a bushy area. There he threw her to the ground and raped
her. He also throttled her. This caused her to lose consciousness. He apparently left
her for dead.
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[3]
When the complainant regained consciousness, she returned to her home
where she reported to her parents that she had been raped. She gave them a
description of the man that had raped her. She was medically examined. The doctor
who examined her concluded that the injuries to her genitals were consistent with
her having been forcefully penetrated. Samples were also taken from her. Those
samples and the panties that she had worn prior to and immediately after being
raped were sent for DNA analysis.
[4]
A few days later, the complainant saw the appellant in the street. She alerted
her parents who, together with neighbours, followed the appellant to a tavern. They
attempted to apprehend him after the complainant had pointed him out. When he
saw the complainant he broke free of his captors and ran away. He was later taken
to the local police station by his family, who had been informed of the allegations
against him.
[5]
The appellant’s defence was a denial that he had raped the complainant. He
was, however, unable to explain how his DNA, which had been extracted from the
complainant’s panties, could have got onto them.
[6]
The appellant was 32 years old at the time of the commission of the offence.
He was a first offender. He had passed grade 12 at school. He had enrolled for a
course in quantity surveying but had not completed it. At the time of his arrest he
was unemployed but he performed odd jobs as and when opportunities arose. He is
the father of three minor children.
[7]
Eksteen J, in his judgment on sentence, took into account the personal
circumstances of the appellant, as well as the facts relating to the rape, which he
described as ‘disturbing’. He also accepted that, ‘as a matter of logic’, the type of
experience to which the complainant had been subjected would ‘inevitably leave a
lasting and devastating scar upon the psychological wellbeing of a young child’. He
commented that the complainant had been fortunate to have had access to
counselling to assist her to come to terms with what had been done to her.
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[8]
As far as the third leg of the Zinn triad1 was concerned, Eksteen J held:
‘The offence of which [the appellant] has been convicted is, however, a very serious one.
The rape of young children is a scourge in our community. The frequency with which cases
of child rape comes before this Court is a serious indictment of the morals of our society.
Society is entitled to look at the justice system to impose heavy sentences on offenders who
abuse innocent young children to satisfy their perverse desires. . . In the circumstances the
interests of society must weigh heavily in the case of an offence of this nature. In making
these comments I do not, however, lose sight of the fact that the imposition of sentence in
any civilised society should always be tempered by a measure of mercy.’
[9]
Eksteen J did not have a free hand to impose whatever sentence took his
fancy. In terms of s 51(1) of the Criminal Law Amendment Act 105 of 1997, read with
Part I of Schedule 2, the prescribed sentence, when a person has been convicted of
raping a child younger than 16 years of age, is life imprisonment. It is only if
substantial and compelling circumstances are present to justify a less severe
sentence that a court may depart from the prescribed sentence. A departure from the
sentence prescribed by the legislature is not to be undertaken lightly: the prescribed
sentence is the sentence that should ordinarily be imposed.2
[10]
When Eksteen J was required to consider whether substantial and compelling
circumstances were present, he held:
‘The accused is a first offender. This is a feature which does militate in favour of greater
lenience and I take that into consideration. On behalf of the accused, it is argued that I
should consider that the accused, having regard to his age, has reasonable prospects of
rehabilitation. I can find no basis in the evidence which could lead me to this conclusion. He
is a mature, adult man who surreptitiously lured the complainant to the bush in order to rape
her. He has shown no remorse for his conduct. He has consistently denied any wrongdoing
and refused to accept responsibility for his conduct in the face of overwhelming evidence
against him. I think that this militates against a conclusion of rehabilitative prospects. When I
weigh up his personal circumstances, in particular the favourable consideration that he is a
first offender, against the interests of society and the nature and circumstances of the
1
See S v Zinn 1969 (2) SA 537 (A). The triad consists of the personal circumstances of the accused,
the nature and seriousness of the crime committed and the interests of society.
2
See generally on the approach to sentence when the Criminal Law Amendment Act applies Sv
Malgas 2001 (1) SACR 469 (SCA) paras 8, 9 and 25.
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offence, I cannot in all conscience conclude that there are substantial and compelling
circumstances which would justify a deviation from the prescribed sentence.’
[11]
It was argued by Mr Bodlo, who appeared for the appellant, led by Ms Crouse,
that Eksteen J ought to have found that the following constituted substantial and
compelling circumstances: the appellant’s personal circumstances, especially his
age and the fact that he was a first offender; the fact that he was gainfully employed,
albeit in the informal sector, at the time of his arrest; that he maintained his children
and lived with two of them; and that he had prospects of rehabilitation.
[12]
It is clear that Eksteen J took into account the personal circumstances of the
appellant, particularly that he was a first offender. His age is a neutral factor. As he is
not an immature youth, it does not serve to reduce his moral blameworthiness. 3 He
found, however, that the appellant’s prospects of rehabilitation were not good, given
his lack of remorse and his refusal to take responsibility for his actions. I can see no
basis for upsetting these findings of Eksteen J.
[13]
We were referred, by Mr Bodlo to S v Sikhipha 2006,4 a case in which the
appellant, who had raped a 13 year old girl, had succeeded in having his life
sentence set aside and replaced with a sentence of 20 years imprisonment. As Mr
Nyendwana, who appeared for the State, pointed out in his heads of argument,
however, the facts of that case are distinguishable from the facts of the present case.
In Sikhipha, the victim was 13 years of age, considerably older than the victim in this
case; in Sikhipha, the court found that the appellant was capable of rehabilitation,
whereas in this case, Eksteen J expressly arrived at a contrary conclusion for the
reasons set out in the passage from his judgment that I quoted in paragraph 10
above; and in Sikhipha, the court found that the complainant had not been seriously
injured whereas in this case, the complainant had been throttled until she lost
consciousness and left for dead.
[14]
I can see no evidence of a misdirection on the part of Eksteen J in his
approach to whether substantial and compelling circumstances were present to
3
4
S v Matyityi 2011 (1) SACR 40 (SCA) para 14.
S v Sikhipha 2006 (2) SACR 439 (SCA).
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justify a departure from the prescribed sentence of life imprisonment. I do not
consider the sentence he imposed to be disproportional to the crime, the criminal
and the needs of society. That being the case, the appeal cannot succeed.
[15]
The appeal is dismissed.
__________________________
C Plasket
Judge of the High Court
I agree.
___________________________
GNZ Mjali
Judge of the High Court
I agree.
____________________________
N Redpath-Molony
Acting Judge of the High Court
APPEARANCES
For the appellant: Ms L Crouse and Mr ‘X Bodlo, instructed by the Grahamstown
Justice Centre
For the respondent: Mr MD Nyendwana, office of the Director of Public Prosecutions,
Grahamstown