THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT
Reportable
CASE NO 469/2007
In the matter between

WANDISILE NTAKA

Appellant
and
THE STATE

Respondent
Coram:
Cameron, Maya et Cachalia JJA
Heard:
19 FEBRUARY 2008
Delivered:  28 MARCH 2008
Summary: Sentence – appeal against effective sentence of six years’ imprisonment
imposed on 17 year-old boy on conviction of rape of fellow pupil – correctional
supervision not appropriate in the circumstances – majority finding custodial sentence
under s 276(1)(i) of Act 51 of 1977 appropriate – appeal allowed – order in para [46].

Neutral citation: This judgment may be referred to as Ntaka v The
State (469/2007) [2008] ZASCA 30 (28 March 2008)
___________________________________________________________
MAYA JA /

MAYA JA:
[1] The appellant was convicted of rape in the Regional Court, East
London (Mr IJC Kitching) and sentenced to undergo ten years’
imprisonment of which four years were conditionally suspended. An
appeal against both the conviction and sentence was dismissed by the
Grahamstown High Court (Froneman J, Mathee AJ concurring). With the
leave of that court he appeals further but only against sentence.

[2] The essence of the appellant’s attack on the sentence in this court is
that the magistrate’s rejection of correctional supervision without a full
investigation of the practical circumstances relating to such possible
option was a vitiating, material misdirection and that the sentence is so
excessive that it induces a sense of shock.

[3] The events giving rise to the charge are these. The appellant and
the complainant, both aged 17 years, attended the same high school and
were friends. They lived in the same neighbourhood, about 300m apart,
and occasionally walked together from school. Sometimes the appellant
visited the complainant at her home where she lived with her mother and
a younger sister. The complainant had previously suffered serious
psychological problems seemingly arising from her parents’ divorce and
her mother’s liaison with another man. She had even attempted suicide
and consequently received treatment for depression, a fact which she had
confided in the appellant.

[4] The appellant, on the other hand, was a highly popular and
confident pupil held in high esteem for his prowess at sport and hard
work at his studies by teachers and fellow scholars alike at his school. His
mother had, in 2003, left the country to pursue a nursing career in the
United Kingdom leaving the appellant and his siblings in their father’s
care. A decision was, thereafter, taken to relocate the entire family to the
United Kingdom. The appellant’s father had recently joined his wife
there, leaving the children with their grandfather, to follow in due course,
when the rape occurred.

[5] Shortly before 20h00 during the evening of 5 July 2004, the
complainant was visiting a girlfriend’s home when she received a
message from the appellant on her cellular phone asking her to come to
his house as he ‘needed to talk’. Against the advice of her friend and her
mother, who did not consider it safe to go out so late, she went to see
him. Her mother had relented but requested her to return home by 22h00.
It is during that visit that the appellant assaulted the complainant into
submission and raped her in his room despite her protestations. Thereafter
he drove her home in his parents’ motor vehicle. Afraid to disclose her
ordeal to her mother for fear of censure, the complainant merely called
out to her that she was home. She washed her bloodied underwear and
pants. The appellant sent her another message telling her that she should
not get excited as there was nothing in it for her and that he did it to make
her happy. Overwhelmed by these events, she cut her wrist with a razor
and took an overdose of pills but, fortunately, suffered no serious harm.

[6] She reported the incident to her friend on the following morning.

She was distraught and, at the friend’s urging, she told her mother that
afternoon that she had been raped. A subsequent medical examination
revealed that in addition to neck bruises, her hymen was freshly torn and
that she had sustained injuries to her genital organs which were consistent
with forced penetration.  The matter was reported to the police and the
appellant was then arrested.

[7] Upon his conviction, two pre-sentence reports were obtained in
respect of the appellant from a probation officer and a correctional
officer. Both social workers reported that the appellant showed no
remorse for his action as he denied guilt. In the correctional officer’s
opinion, the appellant seemed to have no ‘insight into the extent of harm
he has inflicted on the victim’ and she concluded that he would not
benefit from correctional supervision. According to the probation
officer’s report the appellant refused to cooperate with her stating that ‘he
has already informed the court [and] refused to repeat the same thing’.
Her recommendation was that a sentence of imprisonment would be
appropriate because of the seriousness of the crime but that the appellant
could be ‘referred to correctional supervision for assessment’ if the court
was so minded.

[8] The magistrate rejected the option of correctional supervision and
the suspended sentence requested by the appellant’s representative. He
concluded that a term of direct imprisonment, which would have been
higher than the one he imposed but for the appellant’s young age, was the
only suitable sentence in the circumstances.

[9] The basis of the appeal against this conclusion in the court below
was that the magistrate erred in accepting the recommendations against
correctional supervision in the pre-sentence reports which were premised
on the appellant’s refusal to admit his guilt even after conviction. Whilst
the contention found favour with the court below, the court nonetheless
found that the magistrate had given ‘proper, serious and anxious
consideration’ to the appellant’s personal circumstances and held that
there were present in the matter, other factors which justified the sentence
imposed by the magistrate, including the possibility of the appellant
continuing to live in close proximity to the complainant which would be
intolerable to her, the seriousness of the offence, the appellant’s lack of
remorse and the apparent lack of suitable persons to oversee a
correctional supervision program in view of his family’s relocation.

[10] In this court, it was contended that the reasons cited by the court
below for upholding the magistrate’s decision did not warrant the
rejection of correctional supervision, particularly as the practicalities of
such a sentence were never investigated, and that the sentence imposed
by the magistrate was, in any event, excessive. It was further argued that
the magistrate had materially misdirected himself in the exercise of his
sentencing discretion by concluding, first, that the social workers found
the appellant to be an unsuitable candidate for correctional supervision
when the correctional officer had, in fact, not ruled out the possibility of
an exploration of this option and then blindly following that
recommendation without exercising his own discretion by considering
whether or not the option of correctional supervision was viable. It was
urged upon us that any custodial sentence would be inappropriate and that

only correctional supervision in terms of s 276(1)(h) of the Criminal
Procedure Act 51 of 1977 (the Act) would be the suitable sentence for the
appellant.

[11] The well-established test for interference with a sentence on appeal
was restated by this court in S v Malgas1 where Marais JA said:
‘A Court exercising appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the question of sentence as if it were the trial
court and then substitute the sentence arrived at by it simply because it prefers it. To
do so would be to usurp the sentencing discretion of the trial court. Where material
misdirection by the trial court vitiates its exercise of that discretion, an appellate Court
is of course entitled to consider the question of sentence afresh … However, even in
the absence of material misdirection, an appellate Court may yet be justified in
interfering with the sentence imposed by the trial court … when the disparity between
the sentence of the trial court and the sentence which the appellate Court would have
imposed had it been the trial court is so marked that it can properly be described as
‘shocking’, ‘startling’ or ‘disturbingly inappropriate’.

[12] It should be said at the outset that although the magistrate clearly
gave due consideration to the findings set out in the pre-sentence reports
relating to the appellant’s personal circumstances, he misconceived the
import of the probation officer’s recommendation. Whilst the probation
officer obviously had misgivings about the appellant’s attitude towards
the offence, she nevertheless did not reject correctional supervision as a
sentencing option. Furthermore, as the court below pointed out, the
magistrate’s
seemingly
unquestioning
reliance
on
a
negative
recommendation in the reports based on the appellant’s persistent denial

1 2001 (2) SA 1222 (SCA) para 12.

of his guilt was another misdirection on his part. I would add that the
reference by the court below to the absence of the appellant’s family from
the country (and hence a lack of supervision) as a further reason for
doubting the propriety of a non-custodial sentence was, in my view,
wrong. Evidence showed that he had been left in the care of family
friends and his grandfather and remained close with his family despite the
distance.

[13] That said, however, it must be borne in mind that an error
committed by a court in determining or applying the facts for assessing
the appropriate sentence does not necessarily spell the end of the enquiry.
A mere misdirection is not by itself sufficient to entitle the appeal court to
interfere; it must be of such a nature, degree or seriousness that it shows
directly or inferentially, that the court did not exercise its discretion at all
or exercised it improperly or unreasonably such as to vitiate its decision
on sentence.2 Assuming, without deciding, that the misdirections are not
of a vitiating nature when proper regard is had to all the relevant factors,
it must nonetheless be considered whether the sentence was appropriate
in the circumstances of the case.

[14] The submissions advanced on the appellant’s behalf for a non-
custodial punishment were based on a principle prescribed by various
relevant international instruments dealing with the administration of child
justice3 and the provisions of s 28(1)(g) of the Constitution4 which a court

2 S v Pillay 1977 (4) SA 531 (A) at 535E-G; S v Siebert 1998 (1) SACR 554 (A).
3 The United Nations Convention on the Rights of the Child (1989) ratified by South Africa on 16 July
1995; The United Nations Guidelines for the Prevention of Juvenile Delinquency (1990) (The Riyadh
Guidelines); The United Nations Standard Minimum Rules for the Administration of Juvenile Justice
(1985) (The Beijing Rules); The United Nations Rules for the Protection of Juveniles Deprived of their

sentencing a child is enjoined to consider in addition to the traditional
aims and elements of sentencing. Further to these legal instruments is the
Child Justice Bill on juvenile justice drafted by the South African Law
Commission Project Committee on Juvenile Justice (Project 106).5

[15] The fundamental principle in these instruments is that a child6
offender should not be deprived of his or her liberty except as a measure
of last resort, for the shortest appropriate period7 and where detention is
unavoidable, it must be individualised with the focus on the child’s
rehabilitation. In addition to these guiding standards, the sentencing court
must take into account the child’s best interests in accordance with s
28(2) of the Constitution.8 Notably, regardless of the requirement of
limited use of deprivation of liberty, the trite principle of proportionality,
which is now required by the Constitution itself, namely that the sentence
imposed must fit the nature and seriousness of the offence of which the
accused was found guilty and must be fair to both the offender and
society, is also applicable to child offenders.9

[16] In DPP, KwaZulu-Natal v P10 this court, determining an

Liberty (1990) and the African Charter on the Rights and Welfare of the Child ratified by South Africa
on 7 January 2000.
4 In terms of s 28(1)(g) ‘[e]very child has the right not to be detained except as a measure of last resort,
in which case … the child may be detained only for the shortest appropriate period of time’.
5 This Bill was released in the National Assembly in August 2000 and its explanatory summary
published in Government Gazette No 23728 of 8 August 2002. Its recommendations have not yet been
adopted by Parliament.
6 A ‘child’ is defined in s 28(3) of the Constitution as ‘a person under the age of 18 years’.
7 What ‘the shortest possible period’ can be decided only on a case by case basis having regard to the
requirement of an individualised, tailor-made sentence for each offender.
8 Section 28(2) of the Constitution decrees that ‘[a] child’s best interests are of paramount importance
in every matter concerning the child.’
9 See S v Kwalase 2000 (2) SACR 135 (C) at 139e-f; S v Brandt 2006 (1) SACR 311 (SCA); DPP,
KwaZulu-Natal v P 2006 (1) SACR 243 (SCA) para 16.
10 2006 (1) SACR 243 (SCA) para 19.

appropriate sentence in respect of a 12 year-old girl convicted of
murdering her grandmother, highlighted the fact that the Constitution and
the international instruments do envisage imprisonment of children who
have been convicted of serious and violent offences. Mthiyane JA said:
‘It must be remembered that the Constitution and the international instruments do not
forbid incarceration of children in certain circumstances. All that it requires is that the
‘child be detained only for the shortest period of time’ and that the child be ‘kept
separately from detained persons over the age of 18 years’. It is not inconceivable that
some of the courts may be confronted with cases which require detention. It happened
in the United Kingdom not so long ago in the case of R v Secretary of State for the
Home Department, Ex Parte Venables; R v Secretary of State for the Home
Department, Ex Parte Thompson [1997] 3 All ER 97 (HL) where two boys aged ten
were convicted of the murder of a two-year-old boy in appalling circumstances [and]
they were sentenced to ten years.’

[17] With that background in mind, I must determine what an
appropriate sentence is, in this particular case of rape, for an industrious
17 year-old youth with a clean record, raised in a stable, religious and
relatively privileged family environment.

[18] Precisely what does correctional supervision entail and is it an
appropriate sentence in the circumstances of this case? Section 1 of the
Act defines this form of sentencing as ‘a community-based punishment’
which has been interpreted to mean a form of punishment executed
within the community and in co-operation with and/or to the benefit of
the community.11 It encompasses a wide range of measures executed
within the community such as house arrest, community service,

11 SS Terblanche A Guide to Sentencing in South Africa 2 ed p 281.

monitoring, rehabilitation programmes etc.12 Its value lies mainly in that
it is lighter than direct imprisonment and offers an offender an
opportunity of remaining within the community without the negative
influences of prison whilst serving a substantial punishment. These
features render it especially useful in the case of child offenders as it
emphasizes the rehabilitation of the offender and allows for an
individualised punishment.

[19] Section 276A sets out the procedure to be followed by a court
imposing correctional supervision. The relevant provisions thereof read:
‘(1) Punishment shall only be imposed under section 276(1)(h) –
(a) after a report of a probation officer or a correctional official has been placed
before the court; and
(b) for a fixed period not exceeding three years…
(2) Punishment shall only be imposed under section 276(1)(i) –
(a) if the court is of the opinion that the offence justifies the imposing of
imprisonment, with or without the option of a fine, for a period not exceeding five
years; and
(b) for a fixed period not exceeding five years.
(3) …
(4) …’.

[20] Correctional supervision under s 276(1)(h) is, therefore, an
appropriate sentencing alternative in cases where direct imprisonment of

12 S v R 1993 (1) SACR 209 (A) at 220h.

more than three years is not necessary.13 In S v Ingram14 this court said:
‘As correctional supervision under s 276(1)(h) can … only be imposed for a
period not exceeding three years, it is not a sentence that readily lends itself to the
very serious category of crimes (which would normally call for higher sentences)
and should therefore not be too lightly imposed in such cases.’

[21] The more stringent option in terms s 276(1)(i) provides for
imprisonment from which the prisoner can be released on correctional
supervision by the Commissioner or parole board without the court’s
further involvement. As regards its nature and effect, the comments of
this court in S v Scheepers,15 dealing with sentence in a matter involving
two counts of theft of R130 and R1 000, are apposite. This court said:
‘[Section] 276(1)(i) … permits the discretionary conversion of the prison sentence
into correctional supervision. The particular advantage of s 276(1)(i) should always be
in the foreground when the sentencer considers that a custodial sentence is essential,
but the nature of the offence suggests that an extended period of incarceration is
inappropriate. In such cases, s 276(1)(i) achieves the object of a sentence
unavoidably entailing imprisonment, but mitigates it substantially by creating the
prospect of early release on appropriate conditions under a correctional supervision
programme.’ (Emphasis added.)

[22] It must be pointed out that in that case the trial court did not
consider the nature of the offence to warrant imprisonment; the custodial
sentence was necessitated by the accused’s previous convictions.

13 See, for example, S v Nel 1995 (2) SACR 362 (W) at 366H per Streicher J.
14 1995 (1) SACR 1 (A) at p 9e-f.
15 2006 (1) SACR 72 (SCA) paras 9-10.

[23] Despite the apparent advantages, it has often been cautioned by the
courts that the imposition of correctional supervision should be exercised
with care, to maintain its credibility,16 and certainly not where the crime
is too serious. In S v Blank17 E M Grosskopf JA stated:
‘The Legislature set limits of three and five years respectively in the case of sentences
[of correctional supervision] under paras (h) and (i). These cut-off points are
significant. They give an idea of the seriousness of the crimes for which these
sentencing options would be appropriate. But in the same way as the Appellate
Division emphasised in Van Vuuren’s case [1992 (1) SACR 127 (A)] that the options
constituted by those paragraphs should be used in appropriate cases, so a court should
not be seduced by the availability of these new options to impose a sentence which
would be unbalanced and inappropriate when proper regard is had to the (often
competing) purposes of judicial punishment. In serious crimes, including crimes of
the nature considered in Van Vuuren’s case [theft of money], imprisonment also falls
to be considered as an option and the more serious the crimes, the greater the
possibility that imprisonment will be the only suitable sentence.’18

[24] Expressing the same views in a case involving the offences of
murder, attempted murder and public violence, S v Ningi19  Scott JA held:
‘The question is, therefore, whether in all the circumstances a sentence of correctional
supervision would be appropriate. It is unnecessary to repeat what has been said
before of the advantages of correctional supervision. They are well known. What I
think must be acknowledged, however, is that insofar as a first offender in particular
is concerned and leaving aside for the moment the practicalities of administering a
non-custodial sentence, whether correctional supervision as opposed to direct
imprisonment is to be imposed must depend ultimately on the seriousness of the

16 See S v Sinden 1995 (2) SACR 704 (A) at 708c-i; S v Farmer 2001 (2) SACR 103 (SCA) para 11; S
v Schutte 1995 (1) SACR 344 (C).
17 1995 (1) SACR 62 (A) at p 76d-e.
18 See also S v Volkwyn 1995 (1) SACR 286 (A) at 289d-e; SS Terblanche A Guide to Sentencing in
South Africa 2 ed pp 290-291.
19 2000 (2) SACR 511 (A) para 8.

offence and the particular circumstances in which it was committed. This is so
because, whatever its advantages, correctional supervision remains a lighter sentence
than direct imprisonment. Any contention to the contrary I think would be
unrealistic.’

[25] There are serious aggravating features present in the matter, which
must be weighed against the factors favourable to the appellant. As
regards the effect of the rape on the complainant who was a virgin at the
material time, her drastic reaction – the attempt to kill herself, her relapse
into depression, her inability to sleep and fear to sleep alone, the
nightmares and the consequent fear of males – dispenses with the need to
articulate the devastation wreaked by the excruciating rape she described,
perpetrated by a trusted friend and confidant upon her.

[26] Although lack of remorse may not be taken as an aggravating
factor, the appellant’s conduct and attitude towards the incident and the
proceedings that followed must certainly be considered in determining a
proper sentence. It begins with the message he sent to the complainant
after the rape which, in the circumstances, can only mean that he believed
that he had somehow done her a favour. He did not stop at his ill-
conceived attempt to escape criminal liability by denying any
wrongdoing, but persistently exhibited an arrogant and unrepentant
attitude which pervades the record and which his own counsel was
constrained to concede – in the manner he responded to questioning
during the trial, his blatant disdain for the pre-sentence investigation
evidenced by his refusal to cooperate with the probation officer and his
boorish conduct towards the complainant who testified, without

challenge, that a few days before sentencing in the trial the appellant and
his friends whistled and pointed at her in the street.

[27] To my mind, this shows clearly that the enormity of his deplorable
deed and its horrible effect on the complainant simply never dawned on
the appellant. It is, in my view, an extremely disturbing feature which
inexorably draws one to question the mindset towards sexual violence in
the home, the community and indeed the greater society from which the
appellant comes.

[28] In addition to these aggravating factors is the nature of rape. In S v
Chapman20 this court described the offence as follows:
‘Rape is a very serious offence, constituting as it does a humiliating, degrading and
brutal invasion of the privacy, the dignity and the person of the victim. The rights to
dignity, to privacy and the integrity of every person are basic to the ethos of the
Constitution and to any defensible civilisation.’
Women in this country are entitled to the protection of these rights … The courts are
under a duty to send a clear message to the accused, to other potential rapists and to
the community: We are determined to protect the equality, dignity and freedom of all
women, and we shall show no mercy to those who seek to invade those rights.’

[29] In S v Swart21 Nugent JA qualified these comments by observing
that the court no doubt did not intend to suggest that the quality of mercy,
an intrinsic element of civilised justice, should be altogether overlooked,
but rather meant to emphasise that retribution and deterrence will come to

20 1997 (2) SACR 3 (SCA) at 5a-e.
21 2004 (2) SACR 370 (SCA) at para 17.

the fore (and that the rehabilitation of the offender will play a smaller
role) in relation to such serious crimes.22 I agree with this qualification.

[30] Bearing in mind that a sentence does more than deal with a
particular offender in respect of the crime of which he has been convicted
– it constitutes a message to the society in which the offence occurred23 –
the interests of society must thus also be taken into account. The sense of
outrage justifiably roused by the offence of rape in the right thinking
members of a South African society in which sexual violence is so
endemic and hardly shows any sign of abating, must, in my view, be a
critical factor in the imposition of a suitable sentence here.

[31] Having said that, it is well to bear in mind that too harsh a
punishment serves neither the interests of justice nor those of society.
Neither does one that is too lenient. Courts should therefore strive for a
proper balance that has due regard to all the objects of sentencing. A
proper balance of those objects in this case informs me that the interests
of society – these include the interests of the complainant, herself a child
when violently introduced into womanhood by the appellant, which very
nearly ended her life, who must now pick up the pieces and contend with
the adverse and obviously long-term psychological and emotional
consequences of the rape – and the nature and gravity of the offence
demand that the elements of retribution and deterrence must take
precedence over the appellant’s interests, including his young age. An
extended custodial sentence is, without doubt, the only appropriate
punishment.

22 See also R v Karg 1961 (1) SA 231 (A) at 236A-C; S v Williams 1995 (3) SA 632 (CC) para 87; S v
Mhlakaza 1997 (1) SACR 515 (SCA) at p 519d-e.
23 S v Sinden supra at 709b-c.

[32] As to the suitability of correctional supervision, it appears clearly
from the authorities dealing with correctional supervision set out above,
regardless of the fact that none of them dealt with the offence of rape
committed by a child offender,24 that correctional supervision is woefully
inadequate in this case. It lacks the appropriate punitive impact demanded
by the gravity of the offence and does not carry the requisite strong
deterrent message to other would-be rapists in the community that rape is
repugnant and shall be severely punished no matter who commits it. This,
in my judgement, includes the option under 276(1)(i) which, as indicated
above, although also aimed at serious crimes, excludes very serious
crimes, which rape is, by its limit in duration.25

[33] I am satisfied, taking all relevant considerations into account, that
whilst undoubtedly a robust punishment, the effective sentence of six
years’ imprisonment imposed by the magistrate is fitting in the
circumstances of the case and will not deny the appellant the possibility
of rehabilitation. The appeal should, therefore, fail.

_________________
MML MAYA

24 In Kwalase, the High Court substituted a sentence of twelve months’ correctional supervision under
(i) for one of three years’ imprisonment with 18 months thereof conditionally suspended imposed by a
magistrate on a boy aged 15 years, 11 months with a previous conviction of housebreaking and theft,
who expressed remorse and pleaded guilty to the offence of robbery of goods which were immediately
recovered by the police. In Brandt this court substituted a sentence of 18 years’ imprisonment for life
imprisonment imposed on a young offender for the murder of an elderly woman he had committed at
the age of 17 years, seven months. In DPP, KZN v P – the facts are discussed at para [16] – this court
expressed a strong view contrary to that of the High Court, which had imposed a sentence of 36
months’ correctional supervision under (h), that the murder warranted a prison term for the 14 year-old
girl but because it was too late to impose it in the circumstances of the case, substituted the sentence
imposed by the High Court with a conditionally suspended seven year-term of imprisonment and 36
months’ correctional supervision under (h).
25 According to SS Terblanche A Guide to Sentencing in South Africa 2 ed pp 252-253, this form of
sentencing is appropriate where correctional supervision is considered insufficient punishment, but
imprisonment of longer than five years is unnecessary.

JUDGE OF APPEAL

CAMERON JA:

[34] My colleague Maya JA has set out the facts and her reasoning with
fair-mindedness and care, for which I am grateful to her.  Only after
hesitation do I differ from her conclusion that the appeal against the six-
year effective sentence must fail.

[35] As Maya JA indicates (para 12), there are cognisable errors in the
regional magistrate’s approach to sentencing the appellant.  Principal is
that he thought both pre-sentence reports shut the door on correctional
supervision, when only one did.  This attenuation of the options he
conceived as available to him in my view entitled the high court to
intervene, should it have been minded to; and now entitle this court to do
so.  But the high court considered despite the magistrate’s mistake that
six years’ imprisonment was right for what the appellant did, and Maya
JA agrees.  With deference to the care with which my colleagues in each
instance have come to that conclusion, I cannot share their view.

[36] The appellant’s crime was horrible.  Maya JA’s exposition (paras
25ff) if anything grants him the benefit of understatement.  He preyed on
his school-friend, a vulnerable young girl with a history of instability,
who had drawn close to him and looked to him for the respect and
support she was entitled to seek in friendship.  Instead, he took by force
from her ultimate sexual intimacy after she refused to grant it.  He did so
in a wilful act of domination and bodily intrusion that left her physically
bruised and psychically shaken.  And some of his actions afterwards

displayed a bare arrogance that makes it hard to warm to him as a
sentencing subject.

[37] But that it is hard to say anything in his favour does not mean that
there is nothing.  His crime was unplanned.  It seems to have stemmed
from a terrible, but impulsive, error of judgment.  The magistrate rightly
observed in his judgment:
‘Here I can state that your initial intentions perhaps were not to rape this young girl,
but to create an opportunity in your room where you could make some romantic
advances to her, … to test the air so to speak.  But alas, to your disappointment and
surprise, she was totally unprepared and unwilling …’

And in the High Court Froneman J said:
‘[W]hat appears to have been a budding and sensitive friendship went awfully awry
during the evening of 5 July 2004’.

[38] And then, connected intricately with the ‘awful awryness’ and
impulsivity of the crime, there is his youth.  Three months before the
rape, on 5 April 2004, he turned seventeen.  Constitutionally, he was still
a child.26  What does this mean for sentence?  Youth gives us no warrant
to sentimentalise him or any other child.  He was a fit and able young
man, with the capacities of choice, who had earned the admiration of his
peers and teachers through his achievements at school, but who on this
occasion grossly violated another.

[39] But the clear constitutional injunction is that we must weigh in the
mix the fact that he was only seventeen.  Prison must therefore be a ‘last

26 Bill of Rights s 28(3): a child ‘means a person under the age of 18 years’.

resort’.27  This bears not only on whether we choose prison as a
sentencing option, but on the sort of prison sentence we impose, if we
must.  So if there is a legitimate option other than prison, we must choose
it; but if prison is unavoidable its form and duration should also be
tempered.  Every day he spends in prison should be because there is no
alternative.

[40] Together with the magistrate, the judges in the High Court and
Maya JA, I do not think that prison can be avoided.  We were urged to
send the matter back for the regional court to impose correctional
supervision under s 276(1)(h) of the Criminal Procedure Act, 51 of 1977
(the Act).  That would avoid prison altogether, and place the appellant (on
good behaviour and under the threat of a suspended sentence) on a
supervised community-related work scheme.  I do not think we can.
Every rape sentence sends a public message.  This option would be so
soft that its message would be misunderstood.  It would enable the courts’
seriousness in seeking to punish and deter rapes to be called into
question.

[41] To this extent, the appellant must bear the brand and carry the
burden of these times, in which rape is a mass circumstance – more than
50 000 were reported in 2004/5, the year of his crime (over 7 000 in the
Eastern Cape).28  The face of public policy, from the executive, the
legislature and the courts, must be set unmistakably against its
perpetration.  Even for a child offender over 16 but not yet 18, where this
court has held that the sentencing court ‘starts with a clean slate’, it must

27 Bill of Rights s 28(1)(g): every child has the right ‘not to be detained except as a measure of last
resort’.
28 Statistics for April 2004 to March 2005 accessed on 26 March 2008 from
http://www.saps.gov.za/statistics/reports/crimestats/2005/crime_stats.htm.

nevertheless take into account the weighting effect29 of the statutorily
prescribed minimum sentences (ten years for rape by a first offender).30
Pure correctional supervision cannot be.

[42] A prison sentence is therefore unavoidable.  But what sort of prison
sentence?  Maya JA considers that six years, while robust, is fitting.  I
respectfully disagree.  To me, that sentence disregards the youthfulness of
the appellant when he committed the crime.  It treats him too much like
the adult he was not when he raped his victim.  It may set him up for ruin,
while foreclosing the possibility, embodied in his youth, that he will still
benefit from resocialisation and re-education.31  It fails to individualise
the sentence with the emphasis on preparing him, as a child offender, for
his return to society.32  I would rephrase that: for his first entry into
society, for a seventeen year old schoolboy in grade 11 has hardly entered
society.

[43] In my respectful view, a five-year prison sentence imposed under s
276(1)(i) of the Act comes closer to doing justice.33  It ensures that the
appellant goes to jail.  But the term he serves is variable, depending on
his behaviour.  He is incarcerated for a minimum one-sixth of the time
imposed (ten months).  Thereafter, he becomes eligible for the
Commissioner of Correctional Services to place him out on correctional
supervision.  If his arrogant behaviour continues, he risks forfeiting that
option, and serving his entire sentence.  The sentence takes the matter out
of the hands of the courts, and places it in his, and in the Commissioner’s.

29 S v B 2006 (1) SACR 311 (SCA) para 11, per Ponnan AJA for the court.
30 Criminal Law Amendment Act 105 of 1997 s 51(2)(b), read with Part III of Schedule 2.
31 S v B 2006 (1) SACR 311 (SCA) para 15.
32 S v B 2006 (1) SACR 311 (SCA) para 19.
33 Compare S v Scheepers 2006 (1) SACR 72 (SCA).

[44] Is this too soft?  I cannot say No with any assurance.  But I am less
unsure that it may be too soft than I am sure that an undifferentiated
sentence of direct imprisonment is too harsh.  And if we are to risk erring
at all, the Constitution requires us to err by recognising the possibility of
promise that may still flower from his youth, rather than fixing on the
destruction that was immanent in his crime.

[45] It is true that if the rape had been committed just nine months later,
the appellant would have been eighteen, and would not have had the
benefit of any extra mercy.  But it is at least equally true that if he had
been just nine months older, he might not have made the awful error that
led to his crime.  That is the premise on which the Constitution
differentiates him from older offenders.  We distinguish child offenders
from adults because we recognise that their crimes may stem from
immature judgment, from as yet unformed character, from youthful
vulnerability to error and to impulse.  We recognise that imposing full
moral responsibility for a misdeed might be too harsh.  In that we allow
them some leeway of hope and possibility.  That is not maudlin or
sentimental, but necessary if we are to have any belief in our future.

[46] In my view the appeal must succeed.  The judgment of the High
Court is set aside and in its place substituted an order allowing the appeal
against the magistrate’s sentence, and in its stead imposing the following
sentence:
‘Five years’ imprisonment in terms of s 276(1)(i) of the Criminal Procedure
Act, 51 of 1977.’

___________________
E CAMERON

JUDGE OF APPEAL

CONCUR:
CACHALIA JA
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 March 2008

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

Wandisile Ntaka v The State

In a judgment delivered today, the Supreme Court of Appeal has
upheld an appeal against a judgment of the Grahamstown High
Court which confirmed an effective sentence of six years’
imprisonment imposed by the Regional Magistrate, East London
on a 17 year-old boy for the rape of a school friend of the same
age.

The appellant invited the complainant, who had a troubled history
stemming from her parents’ divorce and whom he had befriended,
to his home, where he raped her.  The trial court indicated that his
crime, which was unplanned, stemmed from an impulsive error of
judgment.  The magistrate found that the appellant’s initial
intentions were not to rape, ‘but to create an opportunity’ in his
room where he could ‘make some romantic advances’ to his friend.
The High Court found that what appeared to have been ‘a budding
and sensitive friendship’ went ‘awfully awry’. The rape had a
devastating effect on the young girl who was a virgin. It re-
triggered a history of suicide attempts but fortunately she survived

although she subsequently had to undergo psychological
treatment for depression and other symptoms of trauma.

The SCA held that a prison sentence was unavoidable having
regard to the nature of the offence and its prevalence and other
factors relevant to sentencing. All the judges therefore rejected the
argument on behalf of the appellant that the case should be sent
back to the sentencing court to impose correctional supervision.

In a split decision, the majority of the court (Cameron and Cachalia
JJA) however held that the six-year sentence imposed by the
magistrate was inappropriate as it disregarded (a) the fact that he
was very young when he committed the crime – in terms of the
Constitution he was still a child (under 18), and had to be treated
as a child offender; and (b) that the crime, although horrible, was
unplanned and resulted from an impulsive error of judgment,
connected to his youthfulness.

The majority expressed fear that the six-year sentence foreclosed
the possibility, embodied in his youth, that he would benefit from
re-socialisation and re-education and concluded that a suitable
sentence would be a five-year prison sentence imposed under s
276(1)(i) of the Criminal Procedure Act 51 of 1977.  This provision
permits the Commissioner of Correctional Services to place a
prisoner on correctional supervision after serving at least one-sixth
of a sentence.  This would ensure that the appellant served a
minimum jail sentence of ten months, which would thereafter be
variable depending on his behaviour.

The minority of the court (Maya JA) acknowledged the
constitutional imperative to avoid incarcerating young offenders
except as a measure of last resort and for the shortest possible
period. She however held that a proper balance of the factors
relevant to the process of sentencing, including the nature of the
crime involved, especially in the light of the prevalence of sexual
violence which shows no signs of abating in South Africa, the
appellant’s disturbing arrogant and unrepentant attitude, and the
interests of society which include those of the young victim (whose
life nearly ended as a result of the rape and who has to contend
with adverse and long-term psychological and emotional effects of
the rape), demanded that the elements of retribution and
deterrence override the appellant’s interests, even his young age.
In the view of the minority judge, a sentence of correctional

supervision lacked the appropriate punitive impact and did not
carry the requisite, strong deterrent message to other would-be
rapists that rape will be severely punished, no matter who commits
it. Maya JA concluded that the sentence imposed by the
magistrate did not induce a sense of shock and was fitting in the
circumstances.