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IN THE HIGH COURT OF THE REPUBLIC OF SOUTH AFRICA

(TRANSKEI DIVISION)

Case Number: 55/2008

In the matter between:

THE STATE

AND

ZINCAMILE MANDLA NONGINGI

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JUDGMENT ON SENTENCE

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MTHEMBU A.J.

[1] The accused in this matter was convicted in the Regional Court, Lusikisiki, on one count of rape of B M, a female 13 years old.

[2] As the accused was convicted of an offence referred to in Part 1 of Schedule 2 the matter was, consequently, referred to this Court in terms of the provisions of Section 52 (1)(b) of the Criminal Law Amendment Act, 105 of 1997 (the Act) for sentence .

[3] In terms of the provisions of the aforesaid Act, unless I am able to find that substantial and compelling circumstances exist as envisaged in Section 51 (3)(a) of the Act, I am obliged to impose the prescribed minimum sentence, which, in this case, is imprisonment for life.

[4] As I am bound to do in terms of the provisions of Section 52 (3) of the Act, I have considered the record of trial proceedings in the Regional Court in order to determine whether such proceedings were in accordance with justice.

I have listened to arguments submitted by both Counsel for the state and Counsel representing the accused as to whether they are able to point to any feature or other factor in this case which could source a doubt as to whether such proceedings were in accordance with justice.

Neither has been able so to do and indeed Counsel for the accused conceded right at the outset of the proceedings in this Court that there are no basis on which I could find that the proceedings were not in accordance with justice.

The view I take of the matter in its totality and in particular the opinion I have formed, in accordance with the provisions of the aforementioned Section, is that the proceedings were in accordance with justice.

PERSONAL CIRCUMSTANCES

[5] The accused testified in mitigation of sentence and submitted factors set out below as his personal circumstances.:

That he is 22 years old – the Court drew Counsel’s attention at that point, to a portion of the charge sheet which reflects his age as 27 years.

His highest standard of education is standard 2, he did not know the year he passed standard 2. Both of accused parents are alive. Accused comes from a family of 11 children,

2 of whom are deceased,

2 younger brothers are still at school,

2 other boys are employed,

2 girls are married, and

1 girl is employed as a domestic worker at Lusikisiki;

Accused is the 5^th child in the line of birth within his family.

[6] Before arrest the accused was employed at Illovo Sugar Millling Company, Tongat, as a labourer, earning a salary of R1 600.00 per month inclusive of extra hours or sometimes R1200.00 excluding extra hours. Accused dropped out of school to undertake a task to herd livestock mainly because his parents could not afford funds to pay school fees and related expenses. Accused is single and has a 2 year old daughter, who has always been in the custody of his fiancé.

Accused testified that he is remorseful and realizes that he did,

“Something I am not supposed to do,” and that on the afternoon day of the incident he drank a bottle of stout and brandy and got drunk.

Accused was arrested on 4^th November 2004, released on bail in January 2005, convicted and remanded in custody, pending adjudication by this Court on the question of sentence, as from 12 July 2007 to date.

[7] It appears that cross examination of the accused by Counsel for the state, elicited nothing of note which either detracted from or contradicted his personal circumstances.

SUBSTANTIAL AND COMPELLING CIRCUMSTANCES

[8] Counsel representing the accused, Mr. Kekana, submitted that there are substantial and compelling circumstances which justify the imposition of a lesser sentence than the sentence prescribed for offences falling within the purview of Part 1 of Schedule 2 of the Act.

With regard to the question of substantial and compelling circumstances Counsel only emphasized the youthfulness of the accused, at 22 years old and that he is a first offender.

[9] In arguing that substantial and compelling circumstance exist in this matter, Mr. Kekana called in aid the following cases:

S vs Zinn 1969 (2) SA 567

S vs Rabie 1975 (4) SA 855-856

S vs Nkosi 2002 (1) SA 494

As regards his age, the accused was not entirely honest when he stated his age as 22 years old, he is not certain of his date of birth, neither did he know his ID Number from which his age could be ascertained. The charge sheet reflected his age as 27 years, neither was this recordal challenged by him or his attorney at trial in the Regional Court.

As to his age, and for reasons stated above, I will proceed on the same basis as the Regional Court namely, that his age at the commission of the offence was 27 years.

[10] In aggravation of sentence, Counsel for the State, Ms Van Wyk, called Mrs N M, the biological mother of the complainant, who testified that she currently stays with the complainant, complainant’s progress at school dropped after the incident of rape, she failed standard 2, she does not talk about the incident of rape, even when other people around her talk about it. She has not received counseling or any help from Social Workers.

Cross examination of Mrs M by Mr. Kekana elicited nothing either to contradict or cast doubt upon the credibility of her evidence.

In address, Ms Van Wyk submitted that there are no substantial and compelling circumstance to justify a deviation by imposition of a lesser sentence than that prescribed in the Act. She submitted and relied on the following authorities,

S vs Maseko 1991 (1) SACR 451 T 453H – 455

S vs Abrahams 2002 (1) SACR 160 SCA

S vs de Kock 1997 (2) SACR 171 – 211F

[11] Unfortunately both counsel were not in a position to enlighten the Court as to the impact the rape may have had on the young victim. What is more disturbing is that no reports were sourced as to such impact on the complainant at the time the matter was in the Regional Court.

My anguish and dissatisfaction at this state of affairs became apparent during the hearing, for the reason that should I consider this factor, namely psychological and physical impact of rape on the victim to be of material consideration in arriving at an appropriate sentence to be imposed, I would be compelled to stand the matter down and call for such evidence.

[12] However, given the conclusions I have come to hereinafter and given the benefit of insight we have had from the record of trial proceedings as to the likely effect this conduct would have had on the young victim, I do not believe it is necessary to further postpone this matter for such evidence. It will not affect the sentence I intend to impose. I believe both the complainant, her mother and the accused, after so many years, yearn for closure.

[13] The state emphasized that accused, on his own admission, is a family member of the complainant’s family and thus had abused not only a position of trust but an existing spirit of neighbourliness.

[14] The devious manner in which the accused deceived the mother of the complainant in order to let the 2 young girls [complainant and her younger sister] to escort him to his room, where he simply assaulted the complainant with an open hand, throttled her neck and threw her on to his bed. In her veiled attempts to resist the rape, he drew a knife, pointed it at her to stop her from either crying, putting up any form of resistance or making any “noise”. By unleashing savage brutality he raped the complainant.

[15] The dialogue of interface between the accused and his young victim, which appears at Page 25 of the transcript shows clearly how that accused lack regard and respect, not only for the mother of the complainant but, for the young girl he held hostage, it reads,

“Upon enquiring as to why he was hitting me accused said, Voetsek you dog you are making noise.”

[16] In argument and during the debate with both Counsel, it was agreed that the magnitude and extent of the sexual assault on this young girl was malicious, brutal and viciously motivated. Accused unleashed demonstrable violence of disturbing proportions if regard be had to the age of a 13 year old little girl victim.

[17] The evidence indicates that the accused in order to satisfy his own selfish sexual lust had taken advantage of the naivety of both the mother and the complainant and had preyed on their innocence and trust.

[18] The evidence show further that after the rape the young girl victim could not be able to walk properly, she bled from her vagina such that blood oozed down between her legs and spilled on to her dress. The mother of the complainant, when confronted with the harsh experience of having to examine her vagina expressed the deep pain she endured, cried and described the state of her vagina at the time as, “having been torn.”

[19] The J88, Medical Report, was handed in by consent between the state and the defence, it states that the condition of her clothing was blood stained. Under the head, clinical findings, the schematic drawing of findings show that the lower abdomen, upper thighs and neck were tender. Her mental health and emotional status is described only as “worried”. The clitoris, urethral of orifice, labia majora, frenulum of clitoris, para-urethral fold and fossa navicularis were described as painful. The labia majora was tender. The hymen configuration was torn, the swelling, bleeding and discharge was sleight. The final conclusions are, “possible sexual assault.”

[20] I do not believe that these events will not have some effect on this little girl’s life as she grows up and reflect back on the ordeal which befell her when she was 13 years old. I believe that I can safely assume, from my reading of the record, and common sense dictates that there will be some detrimental impact in her life at some stage or another and I take that into account in considering the question of substantial and compelling circumstances and an appropriate sentence to impose on the accused.

[21] I have indeed carefully weighed all the above factors in coming to the conclusion with regard to substantial and compelling circumstances and the imposition of an appropriate sentence.

[22] I have also given consideration to what has been said in a recently reported case of

S vs Ncheche [2005] ZAGPHC 21; 2005 (2) SACR 386(W), which dealt with rape, the minimum sentences and questions of substantial and compelling circumstances. This was an appeal to the full bench against the judgment of a single Judge. It bears mentioning that a subsequent application for leave to appeal to the SCA against the decision of the full bench was dismissed.

I read in this a tacit approval of the sentiments and principles stated in the judgment of Goldstein J. who handed down a judgment of the full bench.

[23] In the reported judgment Goldstein J. quotes the Judge in the Court a quo, Masipa J. at Page 391 C – G, “I now deal with the interest of society. The unprecedented spate of violence, and especially rape against women and children, is escalating at an alarming rate. Helpless, defenceless women feel unsafe, even in the sanctity of their own homes, and look to these courts to protect their interests and the courts can protect these interests by meeting out harsh sentences.

It is indeed true that the modern day approach to punishment should lay emphasis on rehabilitation and prevention, especially when the accused are young.

In this particular case, however, I am of the view that deterrence should play a more prominent role because of the seriousness and prevalence of the offence. It is a sad fact that it is youngsters who commit these atrocious crimes such as rape. It is youngsters who made our streets and our homes unsafe, it is youngsters who are a danger to our society. I would be failing in my duty if I were to ignore this fact.”

[24] At paragraph 23 (also page 391, H to 392 A), he quotes Mapisa J. as saying the following:

‘Although the accused are both young, their youth, in my view, is far outweighed by the seriousness of the offence and the interests of the society’. I have indeed borne in mind the words of Marais JA in S v Malgas 2001 (1) SACR 469 (SCA) at 477d – e, where he says:

“The specified sentences were not to be departed from lightly and for flimsy reasons which could not withstand scrutiny. Speculative hypothesis favourable to the offender, personal doubts as to the efficacy of the policy implicit in the amending legislation and like considerations were equally obviously not in the amending legislation and like considerations were equally obviously not intended to qualify as substantial and compelling circumstances.”

[25] In the case of S v Malgas 2002 (1) SACR 116 (SCA), the Court held,

“Some rapes are worse than others and the life sentence ordained by the legislature should be reserved for cases devoid of substantial factors compelling a conclusion that such a sentence is in appropriate and unjust.”

The gravity of the crime, therefore plays a role, indeed an important role.

[26] At page 395 G to J (para 35) Goldstein J. himself makes the following comment:

“Rape is an appalling and utterly outrageous crime, gaining nothing of any worth for the perpetrator and inflicting terrible and horrific suffering and outrage on the victim and her family. It threatens every woman, and particularly the poor and vulnerable. In our country, it occurs far too frequently and is currently aggravated by the grave risk of the transmission of Aids. A woman’s body is sacrosanct and anyone who violates it does so at his peril and our Legislature, and the community at large, correctly expect our Courts to punish rapists very severely. In this case, the complainant lived in a shack, without the security enjoyed by many citizens in more affluent circumstances and are entitled to look to the Courts for protection.”

[27] “At Paragraph 37”: he says,

“It behoves our Courts to bear in mind that we are ‘to respect’ and not merely pay lip service to, the Legislature’s view that the prescribed periods of imprisonment are to be taken to be ordinarily appropriate when crimes of the specified kind are committed’. Moreover, the crime of rape evokes widespread outrage in communities throughout South Africa, and ‘(u)nless there are, or can be seen to be, truly convincing reason for a different response, the (crime) in question (is) . . . required to elicit a severe, standardized and consistent response from the court’. And if we fail to take account of that outrage, we risk encouraging the breakdown of law and order, and communities taking the law into their own hands.”

[28] Schreiner JA’s words in R v Karg 1961 (1) SA 231 (A) at 236B remain as relevant as ever:

“It is not wrong that the natural indignation of interested persons and of the community at large should receive some recognition in the sentences that Courts impose, and it is not irrelevant to bear in mind that if sentences for serious crimes are too lenient, the administration of justice may fall into disrepute and injured persons may incline to take the law into their own hands.”

[29] And at paragraph 38 of the judgment he refers to his previous decision, S v Zitha and others 1999(20 SACR 404 (W) and quotes the following statement,:

“The word must go out to the cities and to the suburbs, to the towns and to the townships, and to the countryside that Parliament has directed the Courts to punish the perpetrators of gang rape and child rape as heavily and severely as the law will allow in the absence of substantial and compelling circumstances dictating otherwise, and that the Courts will not shrink from their duty of carrying out this directive however painful it may be to do so.”

[30] Goldstein J. again, in a full bench appeal in State v Mthongwane 2005 JOL (Judgments on line) at 13885 (W) considers the question of a life sentence imposed for the rape of a 5 year old girl. The appellant in that case was 22 years of age. The appellant dragged the complainant into a public toilet and forcefully had intercourse with her. Factors which, no doubt, had to be weighed in considering whether there was substantial and compelling circumstances were the following:

1. The appellant was in custody for 9 months awaiting trial;

2. The crime was not shown to have been premeditated;

3. Aside from the actual rape the complainant was not subjected to violence;

4. There was no evidence of physical harm beyond that of a tear in the hymen;

5. The appellant was unarmed;

6. He had turned 22 on 8 December 1998, shortly before the incident and was thus very young;

7. He was a first offender.

8. There was no evidence of emotional damage to the complainant, as was the case too in S v Mahomotsa 2002 (2) SACR 435 (SCA) paragraph [17];

9. The appellant was a stranger to the complainant, and would thus not have traumatized her as much as he would have done, had he enjoyed her confidence and trust;

10. He was in standard 9 at school;

11. He had a deprived background and had to subsist on selling sweets and chocolates;

12. He had no children, although his mother said that he had a child of whom he may have been unaware due to his incarceration.

[31] Also in that Judgment, reference was made (at paragraph 14) to the difference in seriousness of different crime of rape and that this factor should be given recognition in the sentencing process. Goldstein J. however, deals with this by quoting Mpathi JA in the matter of S v Maholomotsa 2002(2) SACR 453 SCA. In this matter the young accused had repeated non consensual sex with other scholars “in consequence of the virility of the young man”. It was held that “A man’s virility, irrespective of his age, could never be a mitigating factor when he chose to satisfy his lust by sexually violating a woman against her will. Were virility to play a role in sentencing in rape cases, it would imply the grotesque result that the moral blameworthiness of an accused person convicted of rape would be assessed according to the strength of his libido.”

[32] The country is currently engulfed in a sea of crimes affecting the abuse of vulnerable sections of our society, women and children. The rights of children are enshrined in the Bill of Rights.

[33] Section 28 (1) (c) of the Constitution states,

“Every child has a right to be protected from maltreatment, neglect, abuse and degradation.”

[34] Section 28 (1) (d) of the Constitution states,

“Every child has a right:

(f) Not to be required or permitted to work or provide services that

(i) are in appropriate for a child’s age,

(ii) place at risk the child’s wellbeing, education, physical or mental health or spiritual, moral or social development.

[35] Having due regard to everything that has been stated above I am, of the view that there are no substantial and compelling circumstances which justify a deviation and imposition of a lesser sentence than the minimum sentence prescribed in cases falling within the purview of Part 1of Schedule 2of the Act.

I have stated that at the time of the commission of this offence accused was 27 years old. The fact that accused is a first offender is far outweighed by the overwhelming aggravation circumstances in this type of rape and the manner in which it was committed.

The arrogance shown by the accused in the commission of this rape is so disturbing that it defies one’s logic as to how could an uncle and a neighbour so despise the complainant’s mother, the complainant and her young sister.

[36] The perverted sexual acts involving little children are seemingly escalating at an alarming rate. The prosecution confirmed that they are inundated with more cases of this nature. The prevalence of offences involving young girls and the deterrent factor in sentencing, leads me to believe that the harshest penalties in dealing with those, like the accused, who continue to believe that they can molest and abuse little girls, must be imposed.

[37] The devastating effect of rape to young victims is that they become psychologically handicapped to the extent that they perceives themselves as sub-human / second class citizens who have lost self esteem, respect and integrity. In my view, Courts now need to do everything justifiably possible in their power to stem the tide.

[38] In S v Van Niekerk 1981 (3) SA239 (O) the Court held, “For serious crimes, the absence of previous convictions will be of less significance and imprisonment will probably be the only appropriate sentence anyway.”

[39] The accused caused this child pain, serious pain for that matter, he injured her in and around her genitalia. He caused not only her mother but herself and her younger sister trauma, even if this only manifests itself at a later age.

[40] It seems there is a despicable and unfortunate segment of the male members of our society that believe that young girls / children, particularly within a family context, are their goods and chattels to be sexually used and abused as and when they selfishly see fit. This insidious line of thinking, needs, in my view, to be systematically and harshly dealt with and, to the extent possible, eradicated.

[41] By sentencing accused persons convicted of these offences severely, Courts of law will be performing their duty in deterring and attempting to eliminate this scourge.

[43] Accused you are sentenced to undergo life imprisonment.

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M.M. MTHEMBU

ACTING JUDGE OF THE HIGH COURT

Date judgment delivered: 16 May 2008

COUNSEL FOR THE STATE: ADV. VAN WYK

Instructed by: Director for Public Prosecutions

MTHATHA

COUNSEL FOR THE DEFENCE MR KEKANA

Instructed by: The Justice Centre

Legal Aid Board

MTHATHA

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