THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case no: 695/09

THE STATE
Appellant

and

VUYISILE MATYITYI
Respondent

____________________________________________________________

Neutral citation:
State v Matyityi

(695/09) [2010] ZASCA 127 (30 September 2010)

BENCH:

NAVSA and PONNAN JJA and K PILLAY AJA

HEARD:

14 SEPTEMBER 2010

DELIVERED:
30 SEPTEMBER 2010

SUMMARY:
Criminal Law Amendment Act 51 of 1997 – s 51 - sentence –
murder and rape - minimum sentence – life imprisonment -
remorse and relative youthfulness found by high court to
constitute substantial and compelling circumstances – on
appeal – held – no such circumstances – sentenced altered to
life imprisonment.

____________________________________________________________

______________________________________________________________________

ORDER
______________________________________________________________________

On appeal from:
Eastern Cape High Court (East London)

(Matiwana AJ sitting as court of first instance).

The appeal by the State against sentence succeeds.
The sentence imposed by the court below in respect of the murder and rape is
set aside and in its stead is substituted the following:
‘a
In respect of count 2, the murder, the accused is sentenced to
imprisonment for life.
b
In respect of count 3, the rape, the accused is sentenced to imprisonment
for life.’

______________________________________________________________________

JUDGMENT
______________________________________________________________________

PONNAN  JA  ( NAVSA JA and K PILLAY AJA  concurring):

[1] At approximately 6pm on 16 April 2008, 45-year old Anthony Cannon was seated
alone in his motor vehicle enjoying a beer at Leaches Bay, East London when he
glimpsed, out of the corner of his eye, someone in close proximity to his vehicle. Before
he could react his car window was smashed and he was struck in the face. He was
robbed by three assailants of his Nokia cell phone, cash to the tune of R500 and a bank
card. A hood was placed over his head and his Honda Ballade vehicle, with him in the
back seat, was driven to a secluded spot, where his hands were bound and he was
secured to a tree.

[2] To buy himself some time, he deliberately furnished his attackers with a false
automated teller machine (ATM) pin code. They set off in his Honda Ballade in search
of an ATM. In their absence he managed to remove his hood by working his head
against the tree but was otherwise unable to free himself. His assailants returned
annoyed at not having been able to access his bank account with the pin number that
had been furnished. He was told that they had heard him scream but that he was
wasting his time because there was ‘not a soul in sight who could assist him’. Realising
that his ploy had failed he divulged the correct pin code. Once again they left in his
Honda Ballade. After they had left he eventually managed, not without a struggle, to
free himself from the tree and with his hands still tied behind his back made good his
escape. Being familiar with the area he made his way on foot to the nearby home of his
uncle where he sought assistance.

[3] Five days later, on 21 April 2008, Mr Cannon was informed that his Honda
Ballade had been recovered by the police. Upon inspecting it he noticed, aside from
other damage that it is not necessary to detail, that a JVC CD player had been
removed. Later that very day the trio struck once again. This time the victims were Ms
KD and her boyfriend Mr MF.  Ms KD a 31-year old divorcee and mother of four children
had fetched her boyfriend Mr MF from his place of employment and at approximately 5
pm they made their way in her BMW motor vehicle to the tidal pool in the vicinity of
Leaches Beach called Water World in East London. She was initially apprehensive
about their safety but being reassured by Mr MF she parked the car in a secluded spot.

[4] After they had engaged in some intimacy Mr MF alighted from the motor vehicle.
When Ms KD, who was seated in the driver's seat, became concerned that he was
taking too long to return to the vehicle, she glanced over her shoulder and observed
what she described as two men wrestling with Mr MF. She reached for her car keys that
were lying in the console of the motor vehicle but before she could insert the key into
the ignition, a third person, whom she described as Rasta, smashed the driver's window
and the key was snatched out of her hand. When she looked back once again she saw
Mr MF running followed closely by two men. She observed Mr MF fall but being pre-

occupied with Rasta could not tell what caused him to do so. She was then ushered by
Rasta onto the back seat of the motor vehicle and whilst doing so she saw Mr MF, with
blood trickling down his face, fall to his knees and beg his attackers not to harm her. On
the back seat Rasta began to fondle her breasts and touch her inappropriately. When
she tried to push him away, he told her to co-operate or he would kill her. Mr MF, who
by then was bleeding quite profusely, had been forced into the boot of the motor
vehicle. The rear exterior of the motor vehicle was then washed to remove any trace of
his blood and with Ms KD wedged between two of the three in the back seat, the vehicle
was driven by the third for what seemed like 15 minutes to a more secluded area.

[5] Once the vehicle had come to a halt the driver removed a set of JVC speakers
from the rear of the vehicle and placed it in his back pack. Thereafter each took Ms KD
into the surrounding bushes where she was raped. After being raped in turn by each the
boot of the motor vehicle was opened and after a long struggle Mr MF, who was by that
stage unconscious and soaked in blood from head to feet, was removed and placed on
the back seat. The vehicle was then driven back in the direction from whence they had
come. After ascertaining if she was familiar with their whereabouts and receiving an
affirmative response, the vehicle was stopped and the three men alighted. Ms KD then
drove to the Frere Hospital but by the time that she got there it was already much too
late for Mr MF who was pronounced dead on arrival.

[6] On 23 April 2008 acting on information received, the investigating officer, Captain
Alexander, visited an informal settlement in Fort Grey, East London, where the
respondent, Vuyisile Matyityi, allegedly lived with his girlfriend. A search of the premises
in his absence yielded the JVC speakers that had been removed from Ms KD's BMW
and the JVC CD player that was missing from Mr Canon's Honda Ballade when it was
recovered. During the early hours of the next morning the other two alleged perpetrators
were arrested. A visit to the home of the respondent then followed. Upon gaining
forcible entry to his home the police discovered that the respondent had fled. That
evening, however, the respondent handed himself over to the police.

[7] All three were indicted in the Eastern Cape High Court (East London) on one
charge each of murder and rape and two charges of robbery. At the commencement of
the trial the respondent, unlike his co-accused, expressed a willingness to tender a plea
of guilty to all of the charges and after the trials were separated he was convicted as
charged by Matiwana AJ on his guilty plea. He was sentenced to 25 years'
imprisonment on each of the murder and rape charges.  And in respect of each of the
robbery counts to 13 years' imprisonment. The sentences were ordered to run
concurrently. He was thus sentenced to an effective term of 25 years' imprisonment.

[8] Aggrieved by the sentences imposed in respect of the murder and rape that were
regarded as being too lenient, the appellant, the Director of Public Prosecutions
(Eastern Cape), appealed in terms of s 316B of the Criminal Procedure Act with the
leave of the court below. The sentence imposed in respect of the robbery is not before
us. But it matters not, for, were the appeal to succeed the sentence imposed in respect
of it will naturally be subsumed by that imposed in respect of the murder and rape.

[9] The nature of the offences brought the matter within the purview of s 51 of the
Criminal Law Amendment Act 105 of 1997 which prescribes minimum sentences,
namely life imprisonment for each of the murder and rape convictions unless substantial
and compelling circumstances were found to be present. Matiwana AJ identified the
issue thus:
'The question, therefore, that I am faced with, is whether there are any compelling circumstances in this
case, which, if present, would justify a departure from the prescribed sentences laid down by the
legislature.'
Accepting that by the epithet 'compelling' he meant 'substantial and compelling' that is a
correct identification of the issue. He answered that question as follows:
'As I have stated, in my mind, the court should not impose the prescribed minimum sentence in [this]
case, in view of the accused's age, and in the light of the remorse displayed by him during the trial here.'
On a thorough reading of the record I could find no other factors that could be relied on
as constituting substantial and compelling circumstances within the meaning of that
expression. Nor was counsel able to suggest any in argument before us.

[10] Aside from whether the trial judge was justified in his conclusion that a departure
from the prescribed minimum sentences was warranted in this case, there appear to be
at least two other respects in which he appears to have misdirected himself. First,
although the respondent had a previous conviction, it was not taken into consideration
against him on the basis that it ‘is not much related to the offences of which he has
been found guilty’. Why that was thought so is not entirely clear to me. The SAP 69
shows him to have been convicted during 2005 of being in possession of an unlicensed
firearm in contravention of the Arms and Ammunitions Act.1 He was sentenced to a fine
of R1500 or 12 months’ imprisonment. He evidently appears to have spurned the mercy
shown him by the court then. Second, the trial judge appears to have accepted that Ms
KD sustained no injuries. To the extent that he may have been referring to permanent
physical injuries one can hardly quarrel with that conclusion. But, with respect, to restrict
the enquiry to permanent physical injuries, as the learned judge appears to have done,
is to fundamentally misconstrue the act of rape itself and its profound psychological,
emotional and symbolic significance for the victim. As it was put by this court in De Beer
v S:2
‘Rape is a topic that abounds with myths and misconceptions.3 It is a serious social problem about which,
fortunately, we are at last becoming concerned. The increasing attention given to it has raised our
national consciousness about what is always and foremost an aggressive act. It is a violation that is
invasive and dehumanising. The consequences for the rape victim are severe and permanent. For many
rape victims the process of investigation and prosecution is almost as traumatic as the rape itself.’

[11] I turn now to the central issue in the appeal, namely whether, given the facts of
this case, the trial court was correct in its conclusion that substantial and compelling
circumstances as contemplated by that expression were indeed present. S v Malgas4 is
where one must start. It, according to Navsa JA, is ‘not only a good starting point but the
principles stated therein are enduring and uncomplicated' (DPP KZN v Ngcobo).5
Malgas, which has since been followed in a long line of cases, set out how the minimum

1 75 of 1969.
2Stephen Bryan de Beer v The State (121/04) (Delivered on 12 November 2004) (Unreported judgment of
the Supreme Court of Appeal) para 18.
3 A Nicholas Groth Men Who Rape – The Psychology of the Offender (1979).
4 2001 (1) SACR 469 (SCA).
5 2009 (2) SACR 361 (SCA) para 12.

sentencing regime should be approached and in particular how the enquiry into
substantial and compelling circumstances is to be conducted by a court. To paraphrase
from Malgas:6 The fact that Parliament had enacted the minimum sentencing legislation
was an indication that it was no longer 'business as usual'. A court no longer had a
clean slate to inscribe whatever sentence it thought fit for the specified crimes. It had to
approach the question of sentencing conscious of the fact that the minimum sentence
had been ordained as the sentence which ordinarily should be imposed unless
substantial and compelling circumstances were found to be present.

[12] The respondent elected not to testify. Nor was any evidence led on his behalf in
mitigation. From the bar it was placed on record that he was 27 years of age at the time
of the commission of the offences. He was married with three children, the oldest of
whom was 10 years and the youngest one month. His highest level of education was
Std 7 (Grade 9). As I have already indicated the only circumstances entered on the
record of the proceedings as substantial and compelling by the trial judge were the
remorse displayed by the respondent and his age.

[13] Remorse was said to be manifested in him pleading guilty and apologising,
through his counsel (who did so on his behalf from the bar) to both Ms KD and Mr
Cannon. It has been held, quite correctly, that a plea of guilty in the face of an open and
shut case against an accused person is a neutral factor.7 The evidence linking the
respondent to the crimes was overwhelming. In addition to the stolen items found at the
home of his girlfriend, there was DNA evidence linking him to the crime scene,
pointings-out made by him and his positive identification at an identification parade.
There is, moreover, a chasm between regret and remorse.8 Many accused persons
might well regret their conduct but that does not without more translate to genuine
remorse.9 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

6 Paras 7 and 8.
7 S v Barnard 2004 (1) SACR 191 (SCA) at 197.
8 S v Martin 1996 (2) SACR 378 (W) at 383g-i.
9 S v Mokoena 2009 (2) SACR 309 (SCA) para 9.

extent of one’s error.10 Whether the offender is sincerely remorseful and not simply
feeling sorry for himself or herself at having been caught is a factual question. It is to the
surrounding actions of the accused rather than what he says in court that one should
rather look.11 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.12 Until and
unless that happens the genuineness of the contrition alleged to exist cannot be
determined. After all, before a court can find that an accused person is genuinely
remorseful, it needs to have a proper appreciation of inter alia: what motivated the
accused to commit the deed; what has since provoked his or her change of heart; and
whether he or she does indeed have a true appreciation of the consequences of those
actions. There is no indication that any of this, all of which was peculiarly within the
respondent's knowledge, was explored in this case.

[14] Turning to the respondent’s age: What exactly about the respondent's age tipped
the scales in his favour was not elaborated upon by the learned judge. During the
course of the judgment reference was made to the respondent's ‘relative youthfulness’
without any attempt at defining what exactly that meant in respect of this particular
individual.  It is trite that a teenager is prima facie to be regarded as immature13 and that
the youthfulness of an offender will invariably be a mitigating factor,14 unless it appears
that the viciousness of his or her deeds rule out immaturity.15 Although the exact extent
of the mitigation will depend on all of the circumstances of the case, in general a court
will not punish an immature young person as severely as it would an adult.16 It is well
established that the younger the offender the clearer the evidence needs to be about his
or her background, education, level of intelligence and mental capacity in order to
enable a court to determine the level of maturity and therefore moral blameworthiness.17

10 S v D 1995 (1) SACR 259 (A) at 261a-c.
11 SS Terblanche A Guide to Sentencing in South Africa 2 ed (2007) p 203-4; S v Volkwyn 1995 (1)
SACR 286 (A).
12 S v Seegers 1970 (2) SA 506 (A).
13 S v Ngoma 1984 (3) SA 666 (A) at 674E-F.
14 Terblanche p 196.
15 S v Dlamini 1991 (2) SACR 655 (A) at 666b-f.
16 S v Mohlobane 1969 (1) SA 561 (A) at 565C-E.
17 S v Lehnberg 1975 (4) SA 553 (A) at 561A-C.

The question, in the final analysis, is whether the offender’s immaturity, lack of
experience, indiscretion and susceptibility to being influenced by others reduces his
blameworthiness.18  Thus whilst someone under the age of 18 years is to be regarded
as naturally immature19 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.20 At the age of 27 the
respondent could hardly be described as a callow youth. At best for him his
chronological age was a neutral factor. Nothing in it served, without more, to reduce his
moral blameworthiness. He chose not to go into the box and we have been told nothing
about his level of immaturity or any other influence that may have been brought to bear
on him to have caused him to act in the manner in which he did.

[15] In Dlamini21 Nicholas AJA made the following observation: ‘whereas criminal
trials in both England and South Africa are conducted up to the stage of conviction with
scrupulous, time-consuming care, the procedure at the sentencing stage is almost
perfunctory.' That by and large continues to be the position. This matter was conducted
somewhat differently. Notwithstanding the respondent's guilty plea, evidence ostensibly
in proof of aggravation was led by the state. Much of it though went to guilt not
sentence.  We thus know little, if anything, about Mr MF. Was he a breadwinner? Were
others dependent on him? If so, how many? What were his scholastic or other
achievements? What type of work did he do? What was the effect of his death on his
family, employer and community? I hazard that the value of the sum of his life must
have been far greater than the silent crime statistic that he has come to represent in
death. It surely would therefore be safe to infer that in some way or the other his death
must have had devastating consequences for others. Although she testified, we know
as little about the harm done to Ms KD by the respondent's deeds. All of those
questions regrettably remain unanswered in respect of her as well.

18 S v Van Rooi & andere 1976(2) SA 580 (A).
19 S v Machasa & andere 1991 (2) SACR 308 (A).
20 Dlamini at 666e.
21 At 666i-667a.

[16] An enlightened and just penal policy requires consideration of a broad range of
sentencing options from which an appropriate option can be selected that best fits the
unique circumstances of the case before court.22 To that should be added, it also needs
to be victim-centred. Internationally the concerns of victims have been recognised and
sought to be addressed through a number of declarations the most important of which is
the UN Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of
Power.23 The Declaration is based on the philosophy that adequate recognition should
be given to victims and that they should be treated with respect in the criminal justice
system. In South Africa victim empowerment is based on restorative justice. Restorative
justice seeks to emphasise that a crime is more than the breaking of the law or
offending against the state – it is an injury or wrong done to another person.24 The
Service Charter for Victims of Crime in South Africa25 seeks to accommodate victims
more effectively in the criminal justice system. As in any true participatory democracy its
underlying philosophy is to give meaningful content to the rights of all citizens,
particularly victims of sexual abuse, by reaffirming one of our founding democratic
values namely human dignity.26 It enables us as well to vindicate our collective sense of
humanity and humanness. The Charter seeks to give to victims the right to participate in
and proffer information during the sentencing phase. The victim is thus afforded a more
prominent role in the sentencing process by providing the court with a description of the
physical and psychological harm suffered, as also the social and economic effect that
the crime had and in future is likely to have. By giving the victim a voice the court will
have an opportunity to truly recognise the wrong done to the individual victim. (See
generally Karen Müller and Annette van der Merwe 'Recognising the Victim in the
Sentencing Phase: The Use of Victim Impact Statements in Court'.)27

22 Samuels v The State (262/03) [2010] ZASCA 113 (22 September 2010).
23 Resolution 40/34 Adopted by the General Assembly on 29 November 1985.
24 SA Law Commission Discussion Paper 7 Sentencing Restorative Justice (Compensation for Victims of
Crime and Victim Empowerment) (1997).
25 Approved by Cabinet on 2 December 2004.
26 S 7(1) of our Constitution.
27 (2006) 22 SAJHR 647 p 650.

[17] By accommodating the victim during the sentencing process the court will be
better informed before sentencing about the after effects of the crime. The court will
thus have at its disposal information pertaining to both the accused and victim and in
that way hopefully a more balanced approach to sentencing can be achieved. Absent
evidence from the victim the court will only have half of the information necessary to
properly exercise its sentencing discretion. It is thus important that information
pertaining not just to the objective gravity of the offence but also the impact of the crime
on the victim be placed before the court. That in turn will contribute to the achievement
of the right sense of balance and in the ultimate analysis will enhance proportionality
rather than harshness. Furthermore, courts generally do not have the necessary
experience to generalise or draw conclusions about the effects and consequences of a
rape for a rape victim.28  As Müller and Van der Merwe put it:
'It is extremely difficult for any individual, even a highly trained person such as a magistrate or a judge, to
comprehend fully the range of emotions and suffering a particular victim of sexual violence may have
experienced. Each individual brings with himself or herself a different background, a different support
system and, therefore, a different manner of coping with the trauma flowing from the abuse.'29

[18] The trial judge appeared not to fully appreciate that the starting point in respect of
each of the murder and rape convictions was not a clean slate upon which he was free
to inscribe whatever sentence he thought appropriate, but imprisonment for life. As
Malgas emphasised:
'[A] court was not be given a clean slate on which to inscribe whatever sentence it thought fit. Instead, it
was required to approach that question conscious of the fact that the legislature has ordained life
imprisonment or the particular prescribed period of imprisonment as the sentence which should ordinarily
be imposed for the commission of the listed crimes in the specified circumstances. In short, the
Legislature aimed at ensuring a severe, standardised, and consistent response from the courts to the
commission of such crimes unless there were, and could be seen to be, truly convincing reasons for a
different response. When considering sentence the emphasis was to be shifted to the objective gravity of
the type of crime and the public's need for effective sanctions against it.'30
. . .

28 S v Gerber 2001 (1) SACR 621 (W); S v R 1993 (1) SACR 209 (A).
29 Pages 253-254.
30 Para 8.

'The specified sentences were not to be departed from lightly and for flimsy reasons which could not
withstand scrutiny. Speculative hypotheses favourable to the offender, maudlin sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy of the policy implicit in the amending
legislation, and like considerations were equally obviously not intended to qualify as substantial and
compelling circumstances. Nor were marginal differences in the personal circumstances or degrees of
participation of co-offenders which, but for the provisions, might have justified differentiating between
them. But for the rest I can see no warrant for deducing that the legislature intended a court to exclude
from consideration, ante omnia as it were, any or all of the many factors traditionally and rightly taken into
account by courts when sentencing offenders.'31

[19] I cannot discern why the trial judge displayed such a marked reticence to impose
the prescribed minimum sentences. The two incidents were five days apart. Sufficient
time one would have thought for pause and reflection. Each was breathtakingly brazen
and executed with a callous brutality. One shudders to think of what would have
become of Mr Canon had he not succeeded in making good his escape. In each
instance the material spoils were small. Hardly worth the substantial loss and
destruction left in its wake. On both days the respondent played a prominent role in the
commission of the offences. Mr Cannon described him as the ringleader. On each
occasion he drove the motor vehicle, the subject of the robbery. According to Mr
Cannon when the respondent and his accomplices returned after their first failed
venture to the ATM, he was the most aggressive. According to Ms KD it was he who:
was armed with a knife during the attack on the deceased; shouted at the deceased to
get into the boot of the BMW; directed her to tell the deceased to enter the boot when
he refused to do so; handed the deceased’s wallet, which must have been removed
from the deceased’s person earlier, to Rasta; and removed the speakers from Ms KD's
BMW. And it was at the home of his girlfriend that the more valuable stolen items were
found. Moreover, whilst in Ms KD’s company he insisted on kissing her, professing his
love for her and treating her as one would a love-interest. When driving he turned off the
tarred road when he noticed a car behind them. It was he who supplied Ms KD with
toilet paper to clean herself after having had non-consensual sexual intercourse with
her. Before leaving her motor vehicle he first cleaned the steering wheel and door

31 Para 9.

handles to remove evidence of his fingerprints. That reflected an awareness, presence
of mind and sophistication that his co-perpetrators did not manifest.

[20] The offences in question were heinous. According to Dr Zondi, who performed
the post mortem examination, the deceased had sustained four incised wounds. The
fatal stab had been inflicted with considerable force from behind causing the deceased's
left lung to collapse. He would have been in considerable pain for all of the 30 to 40
minutes that it would have taken for him to die after its infliction. He therefore, as Dr
Zondi explained, would have suffered a slow and agonising death. Given the fact that
he was bleeding profusely, it could hardly have escaped unnoticed that he had
sustained life-threatening injuries. And yet he was forced into the boot of the car. By the
time the boot was re-opened his body was limp and his clothes were blood-soaked. In
the intervening period his female companion was frog-marched on three different
occasions into the adjoining bushes to be raped. None of her rapists used condoms.
Each ejaculated. Although not properly explored during her evidence it is obvious that
her ordeal must have been a horrific one. She had to submit to the brutal and naked
invasion of her person in the knowledge that her boyfriend may have been mortally
wounded. What we do know is that the trauma she suffered was so severe that by the
time of the trial, approximately one year after the incident, she was still receiving
counselling. According to her, the experience had made her deeply afraid and had even
impacted negatively on her relationship with her family. As this court has previously
sought to make clear, women in this country ‘have a legitimate claim to walk peacefully
on the streets, to enjoy their shopping and their entertainment, to go and come from
work, and to enjoy the peace and tranquillity of their homes without the fear, the
apprehension and the insecurity which constantly diminishes the quality and enjoyment
of their lives' (S v Chapman).32

[21] What we have not been told by the appellant is why it was necessary for the
deceased to have been killed or Ms KD raped. We know from Ms KD’s evidence that
the deceased was attempting to flee. And we know from Dr Zondi’s evidence that the

32 1997 (3) SA 341 (SCA).

fatal blow was inflicted from behind. For the rest there are significant gaps. The one
person who could have filled those gaps was the respondent. He chose not to. That was
his right.33 But it is not without its consequence, for, as the Constitutional Court has
endeavoured to stress (S v Jaipal):34
'The right of an accused to a fair trial requires fairness to the accused, as well as fairness to the public as
represented by the State. It has to instil confidence in the criminal justice system with the public, including
those close to the accused, as well as those distressed by the audacity and horror of crime.'
His silence thus leads irresistibly to the conclusion that there was nothing to be said in
his favour. But even if one were to be charitable and infer in his favour that the robbery
had been motivated by stark economic deprivation, that hardly explains the violence
meted out to both Mr MF and Ms KD, which was unnecessary to achieve that end and
therefore plainly gratuitous. Nothing in the manner in which the offences were
committed could thus have served to lessen the moral blameworthiness of the
respondent and his cohorts. It was therefore to the personal circumstances of the
respondent that the judge looked. In it he appears to have found two reasons for
departing from the sentences prescribed by the legislature. Neither, as I have sought to
show, are truly convincing. Each lacked any factual foundation and was thus more
illusory than real. Moreover, to have viewed those two factors (whether individually or
cumulatively) in isolation as the judge did, was to ignore the objective gravity of those
offences, its prevalence in this country and the legislature’s quest for severe and
standardised responses by the courts. It is thus hard to resist the conclusion that the
judge was motivated by maudlin sympathy for the respondent. Being so motivated, it
would seem that he overemphasised the interests of the respondent at the expense of
the public interest in a just and proportionally balanced sentence.

[22] Despite our particularly strong commitment to the promotion of the rights of
victims of sexual crimes, particularly rape, we still do not have a clear strategy for
dealing inclusively with it either at a primary preventative or secondary protective level.35

33 S v Dzukuda & others; S v Tshilo 2000 (4) SA 1078 (CC) para 40.
34 2005 (4) SA 581 (CC) para 29.
35 SA Law Commission Project 107 Discussion Paper 102.

The result is that as alarmed as we may be by the reported incidence of rape the true
extent of the scourge appears far more widespread. In De Beer it was put thus:
‘It is widely accepted that the statistics of reported rape reflect only a small percentage of actual offences.
NICRO estimates that only 1 out of every 20 rapes is reported, whilst the South African Police Service
puts the figure at 1 out of 35. For the first six months of 1998, 23 374 rapes were reported nationally. As
an annual indicator of rape employing the lower 1 out of 20 estimate, the figure was a staggering 934
960. Research at the Sexual Offences Court in the Western Cape, for the same period, reveals that of the
reported rape cases: 56.62% were referred to court; 18.67% were prosecuted; and, only 10.84% received
guilty verdicts.'36
Those statistics although somewhat dated offer a more accurate indicator of the extent
of the incidence of rape in this country. The reason, in part, is the introduction of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. The
sexual assaults covered by this new Act extend beyond phenomena previously covered
by the definition of rape to include male rape and sexual penetration of a whole range of
orifices. It also covers human trafficking, pornography and prostitution (including
charges against clients of sex workers).

[23] Despite certain limited successes there has been no real let-up in the crime
pandemic that engulfs our country. The situation continues to be alarming. It follows
that, to borrow from Malgas, it still is ‘no longer business as usual’. And yet one notices
all too frequently a willingness on the part of sentencing courts to deviate from the
minimum sentences prescribed by the legislature for the flimsiest of reasons – reasons,
as here, that do not survive scrutiny. As Malgas makes plain courts have a duty, despite
any personal doubts about the efficacy of the policy or personal aversion to it, to
implement those sentences. Our courts derive their power from the Constitution and like
other arms of state owe their fealty to it. Our constitutional order can hardly survive if
courts fail to properly patrol the boundaries of their own power by showing due
deference to the legitimate domains of power of the other arms of state. Here
parliament has spoken. It has ordained minimum sentences for certain specified
offences. Courts are obliged to impose those sentences unless there are truly
convincing reasons for departing from them. Courts are not free to subvert the will of the

36 Para 19.

legislature by resort to vague, ill-defined concepts such as ‘relative youthfulness’ or
other equally vague and ill-founded hypotheses that appear to fit the particular
sentencing officer’s personal notion of fairness. Predictable outcomes, not outcomes
based on the whim of an individual judicial officer, is foundational to the rule of law
which lies at the heart of our constitutional order.

[24] In this case the respondent and his cohorts conducted themselves with a flagrant
disregard for the sanctity of human life or individual physical integrity. All three of them
acted in a manner that is unacceptable in any civilised society, particularly one that
ought to be committed to the protection of the rights of all persons including women.
Had more relevant evidence been placed before the court as to: the prevalence of these
types of offences; the public desire for protection from the kind of wanton criminality
encountered here; the public interest in suitably fair, just and balanced punishment; and
the harm suffered by Ms KD and those who survive Mr MF, the traditional triad of the
crime, the criminal and the interests of society would have been better served. Instead
the trial court emphasised the personal interests of the individual respondent above all
else. In doing so it failed to strike the appropriate balance. It thus imposed a sentence
that was disproportionate to the crime and the interests of society.  In my view there
were no substantial and compelling circumstances present that warranted a departure
from the prescribed statutory norm. It follows that the contrary conclusion reached by
the high court cannot stand. Having regard to all of the circumstances encountered here
the minimum sentence is a manifestly fair and just one. To my mind this is precisely the
type of matter that the legislature had in mind when it enacted the minimum sentencing
legislation.

In the result:
The appeal by the State against sentence succeeds.
The sentence imposed by the court below in respect of the murder and rape is
set aside and in its stead is substituted the following:
‘a
In respect of count 2, the murder, the accused is sentenced to
imprisonment for life.

b
In respect of count 3, the rape, the accused is sentenced to imprisonment
for life.’

_________________
V M  PONNAN
JUDGE OF APPEAL

APPEARANCES:

For Appellant:

G G Turner

Instructed by:

The Director of Public Prosecutions

Grahamstown

The Director of Public Prosecutions

Bloemfontein

For Respondent:

E Crouse (Ms)

Instructed by:

Legal Aid Board

King William's Town

Legal Aid Board

Bloemfontein
SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

30 September 2010

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

The State v Matyityi
(695/09) [2010] ZASCA 127 (30 September 2010)

Media Statement

Today the Director of Prosecutions (Eastern Cape) succeeded before the Supreme Court of Appeal
(SCA) in an appeal against an effective sentence of 25 years’ imprisonment imposed by the East
London High Court on Vuyisile Matyityi for murder and rape. Matyityi and two accomplices were
indicted before the Eastern Cape High Court on one charge each of rape and murder and two of
robbery.  At the commencement of the trial, Matyityi, unlike his co-accused, expressed a willingness
to tender a plea of guilty to all of the charges and after the trials were separated he was convicted as
charged on his guilty plea.  He was sentenced to 25 years’ imprisonment on each of the murder and
rape charges and in respect of each of the robbery counts to 13 years' imprisonment.  The sentences
were ordered to run concurrently.  He was thus sentenced to an effective term of 25 years'
imprisonment.

Aggrieved by the sentences imposed in respect of the murder and rape that were regarded as being
too lenient, the Director of Public Prosecutions appealed to the SCA. The nature of the offences
brought the matter within the purview of s 51 of the Criminal Law Amendment Act 105 of 1997, which
prescribed minimum sentences, namely life imprisonment for each of the murder and rape convictions
unless substantial and compelling circumstances were found to be present. The trial court found that
the remorse displayed by Matyityi and his age were substantial and compelling circumstances within
the meaning of that expression and accordingly departed from the prescribed minimum sentence.
The SCA took the view that there was no evidence to support the conclusion that Matyityi was indeed
remorseful.  It held that a chasm existed between regret and remorse and that many accused persons
might well regret their conduct but that does not without more translate genuine remorse.  In respect
of the respondent's age, the SCA held that at 27 he could hardly be described as a callow youth.  At
best for the appellant therefore his age constituted a neutral factor.

According to the SCA the crimes were breathtakingly brazen and executed with a callous brutality.
The offences were committed five days apart during April 2008 in the vicinity of Leaches Bay, East

London. During the early evening of 16 April, 45-year old Anthony Cannon was seated alone in his
vehicle enjoying a beer when he was attacked by Matyiyi and his two accomplices.  He was robbed of
his cell phone, cash to the tune of R500 and his Honda Ballade motor vehicle.  He was bound and
tied to a tree in a secluded area.  Whilst his attackers were away, ostensibly in search of an ATM to
withdraw money from his bank account with his bank card and pin code that he had furnished to
them, he managed to escape.  Five days later the trio struck again. On this occasion their victims
were Ms KD and her boyfriend Mr MF.  Earlier that afternoon Ms KD a 31-year old divorcee and
mother of four children had fetched her boyfriend Mr MF from his place of employment. At
approximately 5 pm they made their way in her BMW motor vehicle to the beach. She was initially
apprehensive about their safety but being reassured by Mr MF she parked her car in a secluded spot.
After they had engaged in some intimacy Mr MF alighted from the motor vehicle.  When Ms KD, who
was seated in the driver's seat, became concerned that he was taking too long to return to the vehicle,
she glanced over her shoulder and observed what she described as two men wrestling with Mr MF.
She reached for her car keys that were lying in the console of the motor vehicle but before she could
insert the key into the ignition a third person smashed the driver's window and the key was snatched
out of her hand.  During the attack on Mr MF he sustained four stab wounds. According to Dr Zondi,
who conducted the post mortem examination, the fatal one, which was inflicted from behind with
considerable force, caused his left lung to collapse.  Mr MF was forced into the boot of the motor
vehicle and the vehicle was driven to a more secluded spot where Ms KD was raped by each of the
three men.

According to the SCA, an enlightened and just penal policy requires consideration of a broad range of
sentencing options from which the most appropriate should be chosen.  It was also necessary
particularly in matters involving sexual assault that the sentencing process be victim-centred. It made
reference to the UN Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of
Power and the Service Charter for Victims of Crime in South Africa both of which is based on the
philosophy that adequate recognition should be given to victims and that they should be treated with
respect in the criminal justice system. In South Africa victim empowerment is based on restorative
justice, which seeks to emphasise that a crime is more than the breaking of the law or offending
against the state – it is an injury or wrong done to another person. As in any true participatory
democracy its underlying philosophy is to give meaningful content to the rights of all citizens,
particularly victims of sexual abuse, by reaffirming one of our founding democratic values namely
human dignity.

In this case, according to the SCA, had more relevant evidence been placed before the court as to:
the prevalence of these types of offences; the public desire for protection from the kind of wanton
criminality encountered here; the public interest in suitably fair, just and balanced punishment; and the
harm suffered by Ms KD and those who survive Mr MF, the traditional triad of the crime, the criminal
and the interests of society would have been better served. Instead the trial court emphasised the
personal interests of Matyityi above all else. In so doing it failed to strike the appropriate balance.

Here the SCA emphasised that Matyityi and his cohorts had conducted themselves with a flagrant
disregard for the sanctity of human life or individual physical integrity and acted in a manner that is
unacceptable in any civilised society, particularly one that ought to be committed to the protection of
the rights of all persons including women.  It accordingly took the view that the minimum sentence
was a manifestly fair and just one and altered the sentence to one of imprisonment for life.

--- ends ---