THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable
Case No: 962/2013

In the matter between:

NETSHIVHODZA NDIVHUWO CALVIN
APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Calvin v The State (962/2013) [2014] ZASCA 145 (26
September 2014)

Coram:

Cachalia and Willis JJA and Schoeman AJA

Heard:

9 September 2014

Delivered:
26 September 2014

Summary:
rape – complainant 6 years old – life imprisonment –
youthfulness of the appellant – whether substantial and compelling
circumstance justifying lesser sentence

________________________________________________________________

ORDER
________________________________________________________________

On appeal from: Limpopo High Court, Thohoyandou (Lukoto J sitting as
court of first instance):
The appeal is upheld.

The sentence imposed upon the appellant is set aside and the following
sentence is substituted:
‗The accused is sentenced to undergo 20 years‘ imprisonment.‘
The sentence is antedated to 5 October 2005.
________________________________________________________________
JUDGMENT
________________________________________________________________

Schoeman AJA (Cachalia and Willis JJA concurring)

[1] The appellant was charged with the rape of a six year old girl in the
Limpopo High Court. This crime was committed on 10 March 2005 in
Thohoyandou.  The appellant pleaded not guilty on 4 October 2005, but was
subsequently convicted on 5 October 2005 at the conclusion of the trial in the
high court.  The provisions of s 51 of the Criminal Law Amendment Act 105 of
1997 (the Act) read with Part 1 of Schedule 2 of the Act were applicable, as the
victim was under the age of sixteen years. The appellant was sentenced to
undergo life imprisonment on the same day. He appeals against his sentence
with leave of the high court (Makhafola J).

[2] The evidence established that on 10 March 2005 the appellant offered the
complainant sweets when she was on her way from school. She refused the
offer as she was afraid that the sweets might be poisoned.  The appellant then
grabbed her and dragged her into a nearby orchard where he undressed and
raped her. A young man was drawn to the scene by the complainant‘s cries.
When the appellant saw the young man, he got off from the victim and left.
The appellant handed himself over to the police the next day when he heard the
police were looking for him.
[3] The salient grounds of appeal are that: (a) the sentence of life
imprisonment is shockingly inappropriate and it induces a sense of shock; and
(b) the court below should have found that there were substantial and
compelling circumstances present that justified a deviation from the minimum
sentence.
The judgment on sentence
[4] The appellant did not testify during the trial.  No evidence was led during
the sentence proceedings and the appellant‘s personal circumstances were
placed on record from the bar. Furthermore, no pre-sentence report was
obtained in respect of the appellant nor was an assessment made of the impact
of the crime on the complainant or her family.
[5] The court below did not refer to the provisions of the Act at all in the
judgment on sentence. There was no investigation to determine whether or not
substantial and compelling circumstances were present to deviate from the
prescribed minimum sentence of life imprisonment, nor was it established
whether the prescribed sentence was proportionate to the particular offence.
[6] In the judgment on sentence the trial court stated that the following
personal circumstances were placed on record: ‗. . . your age, your social
standing at home, the number of people with whom you stay, your own number

in that family hierarchy, what you do with yourself and how you help to keep
the family alive‘.  This was the only time that the appellant or his circumstances
were mentioned in the judgment on sentence.
The legal position
[7] In terms of s 274(1) of the Criminal Procedure Act 51 of 1977, ‗a court
may, before passing sentence, receive such evidence as it thinks fit in order to
inform itself as to the proper sentence to be passed‘.  This court has in the past
stressed the importance of placing as much evidence before the court as
possible in respect of the perpetrator, the victim and the circumstances
surrounding the commission of the offence.1 If the defence and the prosecution
fail to adduce such evidence, the court is obliged to take steps to receive such
evidence in order to determine whether there are substantial and compelling
circumstances present.
[8] This court in S v Malgas2 set out the approach to be followed when
sentencing an accused in terms of s 51 of the Act. It was established that the
usual, traditional factors that were taken into consideration when imposing
sentence are still to be taken into account in determining whether there are
substantial and compelling circumstances present. Furthermore, if the
sentencing court is satisfied that the circumstances of the case are such that the
prescribed sentence would be unjust as it would be disproportionate to the
crime, the criminal and the needs of society, it is entitled to impose a lesser
sentence. The minimum sentence has been set as a benchmark prescribing the
sentence to be ordinarily imposed for specific crimes and should not be
departed from for superficial reasons.

1 S v Olivier 2010 (2) SACR 178 (SCA) para 8.
2  S v Malgas 2001 (2) SA 1222 (SCA) para 25.

[9] In S v Vilakazi3 it was set out that the duty of a sentencing court is inter
alia to establish whether the prescribed sentence is indeed proportionate to the
particular offence, having taken into consideration all the circumstances.
Nugent JA set out this duty as follows:
‗It is clear from the terms in which the test was framed in Malgas and endorsed in Dodo [S v
Dodo 2001 (3) SA 382 (CC)] that it is incumbent upon a court in every case, before it
imposes a prescribed sentence, to assess, upon a consideration of all the circumstances of the
particular case, whether the prescribed sentence is indeed proportionate to the particular
offence. The Constitutional Court made it clear that what is meant by the ―offence‖ in that
context (and that is the sense in which I will use the term throughout this judgment unless the
context indicates otherwise) —
―consists of all factors relevant to the nature and seriousness of the criminal act itself, as well
as all relevant personal and other circumstances relating to the offender which could have a
bearing on the seriousness of the offence and the culpability of the offender.‖
If a court is indeed satisfied that a lesser sentence is called for in a particular case, thus
justifying a departure from the prescribed sentence, then it hardly needs saying that the court
is bound to impose that lesser sentence. That was also made clear in Malgas, which said that
the relevant provision in the Act —
―vests the sentencing court with the power, indeed the obligation, to consider whether the
particular circumstances of the case require a different sentence to be imposed. And a
different sentence must be imposed if the court is satisfied that substantial and compelling
circumstances exist which ‗justify‘. . . it‖.‘
It is clear that the trial court failed to approach sentence in this way and thereby
misdirected itself.
On appeal
[10]  The judgment in the court below did not mention all the facts that were
submitted from the bar. These omitted facts are: the appellant had just turned
twenty when the crime was committed; he suffers from asthma; he has no
relevant previous convictions and should therefore be considered a first

3 S v Vilakazi 2012 (6) SA 353 (SCA) para 15.

offender; and he had been in custody as an awaiting trial prisoner for close on
seven months before the trial commenced.
[11] As stated earlier, in this instance there was no enquiry to determine
whether substantial and compelling circumstances were present and there was
no finding that those factors were absent. The court below furthermore failed to
consider whether the prescribed sentence was proportional to the offence. I am
of the view that the trial court had insufficient information before it to properly
assess, prior to passing sentence, what a suitable sentence should be taking into
consideration all the relevant factors. It is not apparent what factors the trial
court in fact took into account when passing sentence.
[12] Ordinarily the matter would be remitted to the trial court to gather all the
necessary information to enable it to sentence the appellant afresh. Due to the
fact that the appellant‘s case was finalised nine years ago, it would not be
feasible to obtain a pre-sentence report at this time.  Similarly an impact study
into the circumstances of the complainant might also not render an accurate
reflection of her position.  We have also been informed from the bar that the
trial judge had passed away, although this is not a bar to remittal in view of the
provisions of s 275(2) of the Criminal Procedure Act. In the interests of justice
it would be appropriate to sentence the appellant with the limited information at
our disposal at this stage.  This approach was accepted by both counsel for the
State and the appellant.

[13] In S v Mabuza & others4 Cachalia JA said the following when discussing
the position of youthful offenders who have attained the age of 18 years in the
light of s 51(2) of the Act:
‗. . . . So while youthfulness is, in the case of juveniles who have attained the age of 18, no
longer per se a substantial and compelling factor justifying a departure from the prescribed

4 S v Mabuza & others 2009 (2) SACR 435 (SCA) para 23.

sentence, it often will be, particularly when other factors are present. A court cannot,
therefore, lawfully discharge its sentencing function by disregarding the youthfulness of an
offender in deciding on an appropriate sentence, especially when imposing a sentence of life
imprisonment, for in doing so it would deny the youthful offender the human dignity to be
considered capable of redemption.‘
[14] In S v Matyityi5 Ponnan JA said the following when dealing with the
‗relative youthfulness‘ of an appellant.
‗The question, in the final analysis, is whether the offender‘s immaturity, lack of experience,
indiscretion and susceptibility to being influenced by others reduce his blameworthiness.
Thus whilst someone under the age of 18 years is to be regarded as naturally immature the
same does not hold true for an adult. In my view a person of  20 years or more must show by
acceptable evidence that he was immature to such an extent that his immaturity can operate
as a mitigating factor.‘
[15] The aspect of the appellant‘s youthfulness was not explored to determine
the degree of his maturity and the influence, or lack thereof, of his family and
home environment and in that way to assess his moral culpability.  It was clear
however that the appellant did not live the life of an adult: he lived at home,
the income from his temporary work of washing cars at a local school was
ploughed back into his large family and was not used to support himself or any
dependants. This sense of obligation might also be indicative that the appellant
is a useful member of society that fulfils his obligations to his family and
thereby to society as a whole.
[16] The appellant is young and there exists a real possibility of rehabilitation.
There has been no other indication that he is a recidivist without hope of
becoming a useful member of society. He indicated through his legal
representative that he will not place himself in a similar position again.

5 S v Matyityi 2011 (1) SACR 40 (SCA) para 14.

[17] The rape of a girl of six years is always a very serious crime.  The fact
that an impact report regarding the effect the rape had on her was not obtained,
does not detract from the severity of the crime and the fact that it can be
accepted that the complainant has suffered psychological harm. But then it must
also be taken into account that there were no other physical injuries to the
victim apart from a bruise on the labia minora and a partial tear of the hymen
with a bit of blood next to the tear. It is fortuitous that the rape was interrupted
otherwise her injuries might have been much more serious and the
psychological harm might have had a more severe impact if the attack was
prolonged.
[18] In Rammoko v Director of Public Prosecutions6 Mpati JA stated:
‗Life imprisonment is the heaviest sentence a person can be legally obliged to serve.
Accordingly, where s 51(1) applies, an accused must not be subjected to the risk that
substantial and compelling circumstances are, on inadequate evidence, held to be absent.‘
[19] Furthermore, in S v Mahomotsa7 it was set out that there are bound to be
different degrees of seriousness of rape even in cases where life imprisonment
is the prescribed minimum sentence in terms of the Act. It is the duty of the
court to consider all those factors before it imposes sentence.

[20] The appellant is considered to be a first offender and was in custody for
seven months before being sentenced. There was no gratuitous violence in
addition to the rape. The aggravating factors that are taken into account are the
age of the complainant, the fact that the appellant tried to entice her by offering
her sweets and chips and when that did not work, he grabbed and dragged her
into the orchard whereupon he raped her. It must have been a terrifying
experience as is evident from her screams and the fact that the complainant
distrusted the appellant even before he raped her.  The appellant violated a

6 Rammoko v Director of Public Prosecutions 2003 (1) SACR 200 (SCA) para 13.
7 S v Mahomotsa 2002 (2) SACR 435 (SCA).

young innocent girl and invaded her person without regard to her privacy,
dignity and bodily integrity.
[21] However, it should be remembered that ‗. . . Custodial sentences are not
merely numbers. And familiarity with the sentence of life imprisonment must
never blunt one to the fact that its consequences are profound‘.8 I am of the
view that a severe sentence is appropriate, taking into consideration all the
circumstances of the offence. But the youthfulness of the appellant as a first
offender, the time he has spent in custody prior to being sentenced and the
possibility of rehabilitation are of paramount importance when assessing the
proportionality of the sentence to the offence.
[22]  Life imprisonment in my view would be disproportionately harsh in the
circumstances.
[23] In the result the following order is made:
The appeal is upheld.
The sentence imposed upon the appellant is set aside and the following
sentence is substituted:
‗The accused is sentenced to undergo 20 years‘ imprisonment.‘
The sentence is antedated to 5 October 2005.

I Schoeman
Acting Judge of Appeal

8 Vilakazi  para 21.

Appearances:

For the Appellant:

A L Thomu

Instructed by:

Thohoyandou Justice Centre, Thohoyandou

Bloemfontein Justice Centre, Bloemfontein

For the Respondent:

A I S Poodhun

Instructed by:
The Director of Public Prosecutions,
Limpopo High Court, Thohoyandou
The Director of Public Prosecutions,
Bloemfontein