THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

REPORTABLE
Case no: 93/12

In the matter between:

EDSON NDOU

Appellant

and

THE STATE

Respondent

Neutral citation:
Ndou v S (93/12) [2012] ZASCA 148 (28 September 2012)

Coram:
MPATI P, LEWIS, VAN HEERDEN and SHONGWE JJA

and ERASMUS AJA

Heard:
11 September 2012

Delivered:
28 September 2012

Summary:
Sentence – rape of girl under the age of 16 years – imposition of life
imprisonment in terms of s 51(1) of the Criminal Law Amendment Act
105 of 1997 – whether misdirection exists – no substantial and
compelling circumstances found by high court – whether appeal court
can interfere.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Limpopo High Court (Thohoyandou) (Hetisani J sitting as court of
first instance):
1 The appeal is upheld.
2 The sentence of the court below is set aside and replaced with the following:
‘The accused is sentenced to 15 years’ imprisonment’.  This sentence is antedated
to 5 May 2004.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

SHONGWE JA (… concurring)

[1] This is an appeal against sentence only. The appellant was convicted by the
regional court in Sebasa (Limpopo) of raping a 15 year-old girl. In terms of s 52 of
the Criminal Law Amendment Act 105 of 1997 (the Act), the matter was referred to
the Limpopo High Court, Thohoyandou, for the imposition of sentence. (Section 52
has since been repealed.) The matter came before Hetisani J who sentenced the
appellant to life imprisonment in terms of s 51(1) of the Act. The appeal is with the
leave of this court.

[2] In brief the appellant contends that life imprisonment is grossly inappropriate
and induces a sense of shock. The court below found no substantial and compelling
circumstances that warranted the imposition of a lesser sentence. The appellant
argues that the court should have found substantial and compelling circumstances
and therefore that it erred. It is contended that the appellant did not use any violence
or weapon to force the complainant to submit to having sexual intercourse with him;
instead, the argument continues, she accepted money and gifts from the appellant. It
was further argued that there was no evidence of ‘post-traumatic stress suffered by
the complainant’.

[3] The State, on the other hand, argues that sentencing is pre-eminently a
matter for the discretion of the sentencing court and that such discretion should not
be lightly interfered with by a court of appeal. It may only interfere if it finds that the
sentencing court misdirected itself on the law or facts. The State further contends
that rape of a 15 year-old girl falls within the ambit of Part 1 of Schedule 2 to the Act
and therefore a court of appeal may not lightly deviate from a prescribed minimum
sentence and for flimsy reasons. That the appellant is the stepfather of the
complainant and occupied a position of trust and authority over her, the State
argues, is an aggravating factor. The State also contends that any sentence less
than life imprisonment would undermine the objectives of the Act and would make a
mockery of justice.

[4] It is not necessary to deal in any detail with the evidence on the merits.
However, one needs to have a brief backdrop in order to appreciate the ultimate
sentence. The complainant testified that she was asleep in one of the bedrooms
together with her two younger sisters. In the middle of the night the appellant entered
the bedroom laid down next to her and inserted his penis into her vagina from
behind. She did not scream or cry – she intended to tell her mother, who was asleep
in one of the other rooms, in the morning. She also stated that it was not the first
time he had done this.

[5] Her mother testified that the appellant came back from drinking and took off
all his clothes and slept next to her. In the middle of the night she discovered that he
was no longer sleeping next to her. She woke up and went to the children’s
bedroom. She found the appellant having sexual intercourse with the complainant.
She enquired what he was doing and he said that he was waking up the children so
that they could go and urinate; she then went back to their room. Later on that day
she reported the matter to the police and the appellant was arrested. The
complainant was taken to the hospital for medical examination. The mother’s
evidence in this regard differs from that of the complainant who testified that when

her mother came into the bedroom the appellant had finished having intercourse with
her and that he was fast asleep next to her as he was drunk. Other witnesses
testified but their evidence did not take the matter any further.

[6] The State did not lead the evidence of the doctor who examined the
complainant because the doctor had returned to his/her home country. However, the
State and the defence agreed that the contents of the medical report (the J88 form)
be read into the record. The clinical findings were, inter alia, that ‘she has evidence
of previous penetration with a hymen which broke long ago but evidence of recent
coitus – a discharge and small tears of the posterior fourchette’.  In terms of
s 212(4)(a) of the Criminal Procedure Act 51 of 1997, the medical report was
admitted as evidence. That concluded the State’s case. The appellant
unsuccessfully applied for his discharge in terms of s 174 of the Criminal Procedure
Act. He closed his case without testifying or calling witnesses.

[7] It is significant to record that the complainant testified that it was not for the
first time that the appellant had sexual intercourse with her. On the previous
occasion the appellant had bought her sandals, panties and had also given her some
money. He had threatened to kill her if she divulged the rape. He also told her not to
inform her mother about what had happened; indeed she did not inform her mother.
On the occasion which forms the subject of the present rape charge, it would appear
that there were no threats of violence by the appellant.

[8] When the matter came before the court below for sentencing, Hetisani J found
that the conviction was in accordance with justice and confirmed it. In considering an
appropriate sentence, the court below correctly pointed out that sexual assault on
children is prevalent in that area. The court went on to consider the triad of factors
relevant to sentence, namely the personal circumstances of the appellant, the
seriousness of the offence and the interests of society (S v Zinn 1969 (2) SA 537 (A)
at 540G-H). It was suggested by defence counsel that because the complainant’s
mother had moved on with her life, and had left the family to stay with another man,

and because the complainant is now married, leaving the appellant alone to take
care of the other three children, there were substantial and compelling
circumstances to justify a lesser sentence. The court below did not agree with this
submission and found that substantial and compelling circumstances did not exist.

[9] The question which arises on appeal is whether, in the circumstances of this
case, life imprisonment is an appropriate sentence. The appellant denied having had
sexual intercourse with the complainant. His conduct, as it was proved, attracted a
sentence of life imprisonment unless the court was satisfied that substantial and
compelling circumstances that justify a lesser sentence exist.

[10] The court below asked itself the following question. ‘In this case that we are
dealing with, the court must ask itself, is there anything that makes it different from any other
case where an adult male person has raped a minor female person? More so when one
looks at the fact that the rape was continuous when it was done, the day that it was
discovered was not the first day, there had been previous occasions when this abuse had
been going on’.
The formulation of the question is questionable, in my view, because it assumes and
suggests that the complainant was raped continuously and that there had been
previous occasions on which she was raped. This conclusion is clearly incorrect and
constitutes a misdirection. The appellant was charged and convicted of one count of
rape only. The evidence of the complainant was that it was not for the first time that
the appellant had had sexual intercourse with her and she testified under cross-
examination about one previous occasion. She said that it happened when her
mother was away and came back the following day. This suggests that when the
appellant was apprehended it was the second time.  It is therefore incorrect, as the
court below found, that the ‘rape was continuous’ and that there had been ‘previous
occasions’ on which the appellant sexually abused the complainant. It was this
reasoning that led to the misdirection that entitles this court to consider the sentence
afresh (see S v Malgas 2001 (1) SACR 469 (SCA) para 12).

[11] The court below also reasoned that ‘(i)t is not this court’s discretion to impose
a life sentence, it is the discretion of the community via the legislator that these types
of things should please stop …’. The impression created is that the minimum
sentence of life imprisonment had to be imposed regardless of the circumstances. In
Malgas (para 25) this court said:
‘Section 51 has limited but not eliminated the courts’ discretion in imposing sentence in
respect of offences referred to in Part I of Schedule 2 ….’
It is indeed the sentencing court that is empowered to exercise a discretion to depart
from the prescribed sentences. The ‘determinative test’ for departure from the
prescribed sentence was articulated in S v Dodo 2001 (1) SACR 594 (CC) para 40
where the Constitutional court, referring with approval to Malgas said:
‘On the construction that Malgas places on the concept “substantial and compelling
circumstances” in s 51(3), which is undoubtedly correct, s 51 does not require the High Court
to impose a sentence of life imprisonment in circumstances where it would be inconsistent
with the offender’s right guaranteed by s 12(1)(e) of the Constitution. The whole approach
enunciated in Malgas, and in particular the determinative test articulated in paragraph I of
the summary, namely:
“If the sentencing court on consideration of the circumstances of the particular case is
satisfied that they render the prescribed sentence unjust in that it would be disproportionate
to the crime, the criminal and the needs of society, so that an injustice would be done by
imposing that sentence, it is entitled to impose a lesser sentence.”’
The above approach was also endorsed and followed in S v Vilakazi 2009 (1) SACR
552 (SCA) paras 14 – 15.

[12] It is trite that rape is a very serious offence (see S v Chapman 1997 (3) SA
341 (SCA) at 344I-J where it was described as ‘a humiliating, degrading and brutal
invasion of the privacy, the dignity and the person of the victim’). In the present case
a 15 year-old girl who was the victim regarded the appellant as a father figure from
whom she expected protection, but he had abused that position. No evidence was
led on the effect the rape had on her. The lack of such evidence should not and

cannot be construed as absence of post-traumatic stress at all. It would be
unrealistic to think there was none.

[13] On the other hand the complainant did not suffer any serious physical injuries.
She submitted to the sexual intercourse on the occasion in question without any
threat of violence. The fact that she had accepted gifts and money from the appellant
must have played a role in her submitting to the sexual intercourse. When she was
asked whether she had screamed for help, she said that she had not resisted or
screamed but simply waited for the appellant to finish what he was doing. She also
confirmed that the appellant was drunk and fell asleep next to her after the rape.
Thus the degree of the trauma suffered by her cannot be quantified. All these factors
must be taken into account in considering whether in this case the ultimate sentence
of imprisonment for life is proportionate to the crime committed by the appellant.
A balance must be struck on all the factors to avoid an unjust sentence. In my view
the sentence imposed is disproportionate to the crime committed and the legitimate
interests of society.

[14] Trial courts take months, and in some instances years, dealing with evidence
and principles of law to establish the guilt or innocence of an accused person.
However, my observation is that when it comes to the sentencing stage, that process
usually happens very quickly and often immediately after conviction. Sentencing is
the most difficult stage of a criminal trial, in my view. Courts should take care to elicit
the necessary information to put them in a position to exercise their sentencing
discretion properly. In rape cases, for instance, where a minor is a victim, more
information on the mental effect of the rape on the victim should be required,
perhaps in the form of calling for a report from a social worker. This is especially so
in cases where it is clear that life imprisonment is being considered to be an
appropriate sentence. Life imprisonment is the ultimate and most severe sentence
that our courts may impose; therefore a sentencing court should be seen to have
sufficient information before it to justify that sentence. In S v Siebert 1998 (1) SACR
554 (A) Olivier JA at 558i - 559a said:

‘Sentencing is a judicial function sui generis. It should not be governed by considerations
based on notions akin to onus of proof. In this field of law, public interest requires the court
to play a more active, inquisitorial role. The accused should not be sentenced unless and
until all the facts and circumstances necessary for the responsible exercise of such
discretion have been placed before the court.’
(See also S v Dodo supra para 37 and S v Matyityi 2011 (1) SACR 40 (SCA) paras
15 – 17.)

[15] In S v Dodo supra para 38 Ackerman J said:
‘To attempt to justify any period of penal incarceration, let alone imprisonment for life as in
the present case, without inquiring into the proportionality between the offence and the
period of imprisonment, is to ignore, if not  to deny, that which lies at the very heart of human
dignity. Human beings are not commodities to which a price can be attached; they are
creatures with inherent and infinite worth; they ought to be treated as ends in themselves,
never merely as means to an end. Where the length of a sentence, which has been imposed
because of its general deterrent effect on others, bears no relation to the gravity of the
offence … the offender is being used essentially as a means to another end and the
offender’s dignity assailed. So too where the reformative effect of the punishment is
predominant and the offender sentenced to lengthy imprisonment, principally because he
cannot be reformed in a shorter period, but the length of imprisonment bears no relationship
to what the committed offence merits. Even in the absence of such features, mere
disproportionality between the offence and the period of imprisonment would also tend to
treat the offender as a means to an end, thereby denying the offender’s humanity.’

[16] I have already mentioned that rape is a very serious offence, especially when
perpetrated against a minor. It deserves severe punishment. However, the
circumstances under which it took place are relevant in the consideration of an
appropriate sentence. There is no doubt that there is a public outcry to stop the
scourge of rape. The appellant was 46 years of age when he committed this offence.
He is the step father of the complainant. He is a first offender and self-employed. In
my view the circumstances in this case are such that a sentence of life imprisonment

is disproportionate to the crime. I therefore find that there are substantial and
compelling circumstances justifying a lesser sentence than the one prescribed.

[17] In the result, having considered all the relevant factors and the purpose of
punishment I consider 15 years’ imprisonment to be an appropriate sentence.

[18] I make the following order:
1 The appeal is upheld
2 The sentence of the court below is set aside and replaced with the following:
‘The accused is sentenced to 15 years’ imprisonment’. This sentence is antedated to
5 May 2004.

________________________

J B Z SHONGWE

JUDGE OF APPEAL

APPEARANCES
FOR APPELLANT:
M J Manwadu
Instructed by:

Justice Centre, Thohoyandou;

Justice Centre, Bloemfontein.

FOR RESPONDENT:
R J Makhera
Instructed by:

Director of Public Prosecutions, Thohoyandou;

Director of Public Prosecutions, Bloemfontein.

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
28 September 2012
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.
* * *
EDSON NDOU V THE STATE

The SCA today upheld an appeal against a sentence of life imprisonment and substituted it
with a sentence of 15 years’ imprisonment.

The appellant the stepfather to the complainant, a girl under the age of 16 years, was
convicted of rape by the regional court in Sibasa (Limpopo). In terms of section 52 of the
Criminal Law Amendment Act 105 of 1997, the case was referred to the high court for
sentence. The high court sentenced him to life imprisonment because it concluded that no
substantial and compelling circumstances existed to justify the imposition of a lesser sentence
as prescribed by section 51(1) of the minimum sentence legislation.

The SCA having considered all the factors of this case, concluded that the high court
misdirected itself by suggesting that the child had been continuously raped on previous
occasions. It is not correct that she had been continuously raped on previous occasions; no
evidence was tendered to that effect, however, she had been raped once, by the appellant
which rape does not form the subject of this case at all. The appellant had been charged and
convicted of one count of rape.

The appellant came home one night drunk. He took off his clothes and slept next to his wife,
who was sleeping in one of the rooms. In the middle of the night the appellant woke up and
proceeded to the room where the children, including the complainant were asleep. He then
had sexual intercourse with the complainant. She did not scream or cry. Her evidence was
that she waited until he finished as she intended to tell her mother about the incident in the
morning. It was not the first time that he had had sexual intercourse with the complainant.
After the first occasion he bought her sandals and panties and also gave her money –
therefore her submission to the second encounter appears to have been influenced by the gifts
she received previously.

This court having found that the high court misdirected itself was at large to sentence afresh.
This court found that substantial and compelling circumstances existed to justify the
imposition of a lesser sentence. These are inter alia that no threats or violence was used on
the complainant. She did not sustain any serious physical injuries. She got married thereafter,
her mother went on to live with another man. However an imprisonment sentence for a long
period was considered appropriate in the circumstances. This court found that life
imprisonment was disproportionate to the crime hence it interfered.