THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case No: 533/2017
In the matter between:
DIRECTOR OF PUBLIC PROSECUTIONS, GRAHAMSTOWN
APPELLANT

and

MZUKISI PELI

RESPONDENT

Neutral citation: Director of Public Prosecutions, Grahamstown v Mzukisi Peli
(533/2017) [2018] ZASCA 40 (28 March 2018)
Coram:
Swain and Mbha JJA and Hughes AJA
Heard:
16 February 2018
Delivered:  28 March 2018
Summary: Criminal Procedure Act 51 of 1977 - Section 316B - appeal by State –
rape of 6 year old boy – sentence imposed of 10 years imprisonment of which 4
years suspended – shockingly and disturbingly lenient – no substantial and
compelling circumstances present – sentence of life imprisonment substituted.

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ORDER
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On appeal from: Eastern Cape Division, Grahamstown (Tilana-Mabece AJ sitting as
court of first instance):

1. The appeal against sentence succeeds.
2. The sentence imposed by the court below in respect of the conviction of rape is
set aside and is substituted by the following:
‘a) In respect of the conviction of rape the accused is sentenced to imprisonment for
life.
b) The sentence is antedated to 23 March 2017.’
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JUDGMENT
___________________________________________________________________
Hughes AJA (Swain JA and Mbha JA concurring):

[1] Mr Mzukisi Peli, the respondent, pleaded guilty in the Eastern Cape Division,
Grahamstown (the High Court), to a charge of rape in contravention of section 3 of
the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
(the Act) before Tilana-Mabece AJ. He was convicted and sentenced on 23 March
2017. In terms of section 51(1) read with Part 1 of Schedule 2 of the Criminal Law
Amendment Act 105 of 1997 (the Minimum Sentence Act) the prescribed minimum
sentence to be imposed was that of life imprisonment. However, the High Court
found substantial and compelling circumstances justifying the imposition of a lesser
sentence and instead sentenced the respondent to ten years imprisonment, of which
four years were suspended on condition that he was not found guilty of the same
offence during the period of suspension.

[2] Dissatisfied with the sentence imposed, the appellant, the Director of Public
Prosecutions (the DPP), with the leave of the High Court, filed a notice of appeal in
terms of section 316B of the Criminal Procedure Act 51 of 1977 (the CPA). This
section reads:
‘(1) Subject to subsection (2), the attorney-general [DPP] may appeal to the Appellate
Division [Supreme Court of Appeal] against a sentence imposed upon an accused in a
criminal case in a superior court.’
In this court the DPP contends that the sentence of six years imprisonment for the
rape of a six year old child is shocking, startling and disturbingly inappropriate and
that the High Court erred in finding that there were substantial and compelling
circumstances which justified the imposition of a lesser sentence than that of life
imprisonment. The DPP asserts that this finding constitutes a misdirection on the part
of the High Court which justifies this court’s interference.

[3] Briefly, the facts giving rise to the plea of guilty are as follows: On 2 April 2012
the complainant, a six year old boy, whilst in the company of his four year old friend
was on the way to the shop when they came across the respondent. The respondent,
then 24 years of age, verbally threatened and compelled them to follow him, and the
boys complied. He took them to a secluded spot where he physically assaulted them
with an open palm. He instructed the complainant to remove his trousers and lie on
his stomach. Thereafter he raped the complainant anally. After the ordeal, they all left
the secluded spot and parted ways in an open field close to the road.

[4] On the same day of the rape, the complainant was medically examined. It was
noted on the J88 that his underwear was soiled with blood and faeces, whilst his T-
shirt was soiled with blood. His mental health and emotional status was recorded as:
‘crying, withdrawn, grimacing when walking’. It was further recorded that the injuries
he sustained were consistent with forceful handling and there were signs of anal
penetration. The clinical findings documented were:
‘Left eye redness with peri-orbital swelling. Swollen left aspect of upper lip. (f) 3cm area (rt)
anterior upper thigh with bruising and associated abrasions. (lt) buttock abrasion and
associated bruising.’

[5] Some four years later the respondent was eventually arrested for this offence.
In his section 112(2) statement, that details the facts upon which he pleaded guilty,
he states that the day after the rape took place, he ‘felt bad’ about what he had done,
so he went back to the area to look for the boys to apologise. However, he was not
successful in finding them and he attributes his conduct on the day of the rape to his
excessive consumption of alcohol. However, in his plea he clarifies that although he
was heavily under the influence of alcohol, he could appreciate the wrongfulness of
his conduct at the time of the offence.

[6] The High Court relied on the following factors placed before it cumulatively as
constituting substantial and compelling circumstances to justify the sentence it
imposed. It reasoned that the respondent was a young first offender under the
influence of alcohol when he committed the offence, which in itself was not shocking
and lacked brutality. Further, that he had indicated his remorse by pleading guilty and
had spent almost a year in prison awaiting his trial.
[7] Turning to the question whether the appropriate sentence has been imposed,
it is trite that this court can only interfere if the sentence imposed is vitiated by
irregularity or misdirection, or is disturbingly inappropriate or creates a sense of
shock. The aforesaid approach was endorsed by this court in S v Hewitt 2017 (1)
SACR 309 (SCA) para [8] where Maya DP said:
‘It is a trite principle of our law that the imposition of sentence is the prerogative of the trial
court. An appellate court may not interfere with this discretion merely because it would have
imposed a different sentence. In other words, it is not enough to conclude that its own choice
of penalty would have been an appropriate penalty. Something more is required; it must
conclude that its own choice of penalty is the appropriate penalty and that the penalty chosen
by the trial court is not. Thus, the appellate court must be satisfied that the trial court
committed a misdirection of such a nature, degree and seriousness that shows that it did not
exercise its sentencing discretion at all or exercised it improperly or unreasonably when
imposing it. So, interference is justified only where there exists a “striking” or “startling” or
“disturbing” disparity between the trial court’s sentence and that which the appellate court
would have imposed. And in such instances the trial court’s discretion is regarded as having
been unreasonably exercised.’ (Footnotes omitted)

[8] Before us counsel for the respondent submitted that the fact that the
respondent was a young first offender having consumed alcohol prior to the
commission of the offence constitute substantial and compelling circumstances
justifying a lesser sentence. Counsel persisted that the sentence imposed was
correct and that there had been no misdirection on the part of the High Court.
However, in the alternative, it was submitted on behalf of the respondent that the
sentence of 20 years imprisonment initially proposed and sought at the trial be
imposed instead.

[9] The fact that the respondent was a first offender and had consumed alcohol
before committing the offence, which however did not affect his appreciation of the
wrongfulness of his conduct at the time he committed the offence, pales into
insignificance when the gravity of the offence, being the rape of a six year old child, is
considered. It is trite, that for intoxication to be considered as a substantial and
compelling circumstance in mitigation, it must be shown that the consumption of
alcohol had impaired or affected the respondent’s mental faculties or judgment and
thereby diminished the respondent’s moral blameworthiness: see S v Cele 1990 (1)
SACR 251 (A) at 254h-i & 255b-c;S v Makie 1991 (2) SACR 139 (A) at 143c-d and S
v Eadie 2002 (1) SACR 663 at 673j-674f together with the cases mentioned therein.
That the respondent appreciated the wrongfulness of his conduct and was
accordingly able to distinguish right from wrong, but nevertheless proceeded to rape
the complainant, cannot on the facts of this case serve to diminish his moral
blameworthiness to the extent that it may be regarded as a substantial and
compelling circumstance.
[10]     The submission that the appellant was remorseful is not borne out by the
facts. In examining whether the respondent was truly remorseful one looks at his
conduct after the offence and during the trial. The respondent failed to submit himself
to the police and confess his wrong-doing. It was only after the lapse of a period of
four years and when he was arrested that he confessed. His plea of guilty did not
arise as a result of remorse but rather because there was overwhelming evidence
against him in the form of DNA evidence linking him to the offence. In my view, the
respondent’s actions and conduct did not show true remorse. This is a case of regret

instead of remorse. See S v Matyityi 2011 (1) SACR 40 (SCA) para [13] where
Ponnan JA states:
‘Remorse is a gnawing pain of conscience for the plight of another. Thus genuine contrition
can only come from an appreciation and acknowledgement of the extent of one’s error . . . In
order for the remorse to be a valid consideration, the penitence must be sincere and the
accused must take the court fully into his or her confidence.’

[11] In Hewitt (para [9] at 313f-314a), this court pronounced that rape of a child
was usually committed by those perpetrators who believed that they could get away
with it. The complainant in this instance is an innocent, defenceless and vulnerable
victim of the respondent’s despicable and cruel act. The respondent even in addition
threaten and assault the complainant to achieve his purpose.  The complainant will
have to live with the emotional scars and stigma of having been humiliated and
violated for the rest of his life. The curse in our society of rape is considered by the
courts and society alike, as deserving of severe punishment. The rape of young
children is considered as being a very serious offence, especially so if the child is
under the age of sixteen: see S v Chapman 1997 (2) SACR 3 (SCA) at 5a-c; S v RO
2010 (2) SACR 248 (SCA) para [15] at 256e-g. Against this backdrop, I fail to
comprehend the High Court’s characterisation of the rape of a six year old child as
not being severe so as to induce a sense of shock (see Hewitt at 314a-b where the
court said that the rape of a child is ‘more horrendous’ than other forms of rape).

[12] In conclusion, the High Court committed a serious misdirection when it
unjustifiably decided that the general or neutral factors advanced in mitigation
constituted substantial and compelling circumstances sufficient to impose a lesser
sentence than the prescribed sentence.  In my view, no substantial and compelling
circumstances are present to justify the imposition of a lesser sentence than the
prescribed sentence of life imprisonment. The sentence of an effective six years
imprisonment imposed by the High Court is shockingly and disturbingly lenient,
amounting to trivialising the offence committed by the respondent.

[13] In the result:
1. The appeal by the State against sentence succeeds.

2. The sentence imposed by the court below in respect of the conviction of rape is
set aside and substituted by the following:
‘a) In respect of the conviction of rape the accused is sentenced to imprisonment for
life.
b) The sentence is antedated to 23 March 2017.’

___________________
W Hughes
Acting Judge of Appeal

APPEARANCES

For the Appellant:
H Obermeyer
Instructed by:
Director of Public Prosecutions, Grahamstown

Director of Public Prosecutors, Bloemfontein

For the Respondent:
P W Nel
Instructed by:
Legal Aid South Africa, Grahamstown

Bloemfontein Justice Centre