THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No:  422/12
Not reportable
In the matter between:

PIET KWANAPE

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
Kwanape v The State (422/12) [2012] ZASCA 168
(26 November 2012).

Coram:

Nugent and Petse JJA and Erasmus AJA
Heard:

14 November 2012
Delivered:

26 November 2012

Summary:
Sentence ─ prescribed sentences ─ minimum sentence ─
imposition of in terms of Criminal Law Amendment Act 105 of 1997 read
with Part 1 of Schedule 2 ─ whether ‘substantial and compelling
circumstances’ as contemplated in s 51(3)(a) existed.
Life imprisonment on a charge of rape ─ complainant 12 years of age.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from:   North Gauteng High Court, Pretoria (Legodi J sitting as court
of first instance):

The appeal against the sentence of imprisonment for life is dismissed.

________________________________________________________________

JUDGMENT
________________________________________________________________

PETSE JA (Nugent JA and Erasmus AJA concurring):

[1] The appellant was arraigned before a regional magistrate in Modimole,
Limpopo on a charge of rape read with ss 51(1) or 51(2) of the Criminal Law
Amendment Act 105 of 1997 (the Act). Consequent upon his conviction he was
committed to the Northern Circuit District of the North Gauteng High Court sitting
at Polokwane for sentence in terms of s 52 of the Act.

[2] Section 521 as it then stood required a regional court, when it has
convicted an accused person of an offence for which life imprisonment is the
prescribed sentence, to stop the proceedings and commit the accused for
sentence by a high court. The high court (Legodi J), having concluded that the
appellant’s conviction was supportable on the evidence, proceeded to consider
whether substantial and compelling circumstances as intended in s 51(3)(a) of
the Act existed. It found that none existed and therefore imposed a sentence of
imprisonment for life. The high court subsequently granted the appellant leave to
appeal against the sentence to this court.

1 Repealed by s 52 of Act 38 of 2007.

[3] In granting leave to appeal the high court alluded to two factors: first, it
stated that this was not the worst rape imaginable; and second, it said that there
was no evidence suggesting that the complainant had suffered serious physical
injury as a consequence of the rape. I shall revert to these later.

[4] Before considering the merits of this appeal it is necessary to say
something about the disturbing features emerging from the record. The appellant
was sentenced on 20 September 2007. On 27 November 2008 he filed, without
legal assistance, an application for leave to appeal against his conviction and
sentence with the registry clerk at the magistrate’s court, Polokwane which was
accompanied by an application for condonation of the late filing of such
application.

[5] In May 2009, disgruntled at the lack of progress, the appellant wrote to the
Minister of Justice and Constitutional Development and the Chief Legal Officer in
the minister’s office wrote to the Registrar of the North Gauteng High Court
requesting the registrar to investigate what had become of the appellant’s
application for leave to appeal. Similarly the Head of the Prison in which the
appellant was incarcerated addressed an enquiry to the registrar. Ultimately,
these interventions bore fruit and on 15 October 2010 the application for leave to
appeal was heard by Legodi J, which by then was confined to the sentence only.

[6] Once leave to appeal against the sentence had been granted, further
delays in prosecuting the appeal occurred. The record of appeal was filed with
this court only in June 2012. It appears from the appellant’s affidavit in support of
his application for condonation of the late filing of the record that the delay was in
part attributable to the Registrar of the North Gauteng High Court who seemingly
had remained supine until he was prompted by the appellant’s legal
representatives to prepare the record. Section 316(7)(a) of the Criminal
Procedure Act 51 of 1977 imposes a duty on the registrar of the court, granting
leave to appeal, to cause a notice to be given to the registrar of this court without

delay and to cause to be transmitted to this court a certified copy of the record.
That statutory injunction is also echoed in rule 52(1) of the Uniform Rules of
Court.

[7] In the result the determination of this appeal has taken longer than would
have been the case had the matter been dealt with expeditiously.

[8] It goes without saying that the delays experienced in this matter are
entirely unacceptable for obvious reasons. In terms of s 35(3)(o) of the
Constitution2 the appellant has a right to a fair trial which includes  the right of
appeal to a higher court. Consequently the delays experienced in this case
undermined or compromised those rights in circumstances where there can be
no justification therefor in an open and democratic society.

[9] I now turn to the merits of the appeal. The crucial issue before this court is
whether the high court should have found that substantial and compelling
circumstances existed, justifying a departure from the mandatory minimum
sentence of life imprisonment. This is a factual enquiry.

[10] The facts of this case are relatively straightforward. On 1 January 2004
the complainant, K, a 12 year-old girl, was playing in the street with her friends
when the appellant, who was well-known to her, emerged. Having asked them
what they were doing the appellant grabbed the complainant and dragged her to
a bush. One of K’s friends tried to intervene and enquired of the appellant as to
what the latter was doing. The appellant instead pelted the two friends with
stones causing them to run away.

[11] When K tried to scream, the appellant closed her mouth with his hand. He
pushed her to the ground, undressed her, and after undressing himself, he raped
her three times albeit at different spots. K said that she felt pain as the appellant

2 Constitution of the Republic of South Africa Act 108 of 1996.

was raping her. The appellant subsequently took her to his home where she slept
with the appellant’s sister. The next day, whilst returning home, K met her father
enroute. She then reported the incident to him and upon reaching home she
made a report to her mother. She was taken to Tabazimbi Hospital where she
was examined by Dr Schreuder who described the complainant’s vaginal
examination as having been painful. The doctor also recorded that the
complainant sustained, inter alia, scratch marks on her knees and elbows and a
small tear at the posterior angle of her vestibule.

[12] The gravamen of the appellant’s submissions in this court is that the
cumulative effect of the mitigating factors weighed against the aggravating
features, of which the court below should have taken cognisance, constituted
substantial and compelling circumstances. Consequently, concluded the
submissions, the court below should have found that it was free to depart from
the prescribed minimum sentence of life imprisonment under s 51(3) of the Act.
These factors were that the appellant was:
(a)
a first offender;
(b)
24 years of age when the rape was perpetrated;
(c)
gainfully employed and earning R500 fortnightly;
(d)
had attended school up to grade 5;
(e)
HIV positive;
(f)
a primary care giver;
(g)
running a tuck-shop from which he generated R400 per month;
(h)
capable of being rehabilitated.

[13] The circumstances in which an Appellate Court will interfere with a
sentence imposed by a court of first instance are trite. They were restated by this
court in S v Sadler 2000 (1) SACR 331 (SCA).3 But as the appellant was
sentenced in terms of s 51(1) of the Act it is important to keep the objectives of

3 At 334d-335g.

the Act uppermost in one’s mind. These were described by Marais JA in S v
Malgas 2001 (1) SACR 469 (SCA)4 as a measure aimed at responding to:
‘[A]n alarming burgeoning in the commission of crimes of the kind specified resulting in
the government, the police, prosecutors and the courts constantly being exhorted to use
their best efforts to stem the tide of criminality which threatened and continues to
threaten to engulf society.’

[14] As to the approach that must be adopted in a case such as the present
Malgas is instructive. There Marais JA stated the following:5
‘It was of course open to the High Courts even prior to the enactment of the amending
legislation to impose life imprisonment in the free exercise of their discretion. The very
fact that this amending legislation has been enacted indicates that Parliament was not
content with that and that it was no longer to be 'business as usual' when sentencing for
the commission of the specified crimes.
[8] In what respects was it no longer to be business as usual? First, a court was not
to 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. But
that did not mean that all other considerations were to be ignored. The residual
discretion to decline to pass the sentence which the commission of such an offence
would ordinarily attract plainly was given to the courts in recognition of the easily
foreseeable injustices which could result from obliging them to pass the specified
sentences come what may.
[9] Secondly, a court was required to spell out and enter on the record the
circumstances which it considered justified a refusal to impose the specified sentence.
. . .

4 S v Malgas 2001 (1) SACR 469 (SCA); (SA 1222; [2001] 3 All SA 220) para 7.
5 At  476e-477f.

Moreover, those circumstances had to be substantial and compelling. Whatever
nuances of meaning may lurk in those words, their central thrust seems obvious. 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.’

[15] Recently this court reiterated in S v Matyityi 2011 (1) SACR 40 (SCA)6
that ‘the crime pandemic that engulfs our country’ has not abated. Thus courts
are duty-bound to implement the sentences prescribed in terms of the Act and
that ‘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’ ought to be eschewed.

[14] Before us counsel for the appellant placed much store in some decisions
of this court in support of his contention that the sentence imposed by the court
below was out of kilter with sentences imposed in those decisions.7 Discussing
the value of decided cases on sentence in Malgas Marais JA stated at 480h-
481a:
‘[21]
It would be foolish of course, to refuse to acknowledge that there is an abiding
reality which cannot be wished away, namely, an understandable tendency for a court to
use, even if only as a starting point, past sentencing patterns as a provisional standard
for comparison when deciding whether a prescribed sentence should be regarded as
unjust. To attempt to deny a court the right to have any regard whatsoever to past

6 At 53c-g.
7 S v Mahomotsa 2002 (2) SACR 435 (SCA); S v Sikhipha 2006 (2) SACR 439 (SCA); S v Nkomo
2007 (2) SACR 198 (SCA).

sentencing patterns when deciding whether a prescribed sentence is in the
circumstances of a particular case manifestly unjust is tantamount to expecting someone
who has not been allowed to see the colour blue to appreciate and gauge the extent to
which the colour dark blue differs from it. As long as it is appreciated that the mere
existence of some discrepancy between them cannot be the sole criterion and that
something more than that is needed to justify departure, no great harm will be done.’
But as this court made plain in S v Fraser 1987 (2) SA 859 (A)8 ‘it is an idle
exercise to match the colour of the case at hand and the colours of other cases
with the object of arriving at an appropriate sentence’. Ultimately each case must
be decided in the light of its peculiar facts.

[15] Rape is undeniably a despicable crime. In N v T 1994 (1) SA 862 (C)9 it
was described as ‘a horrifying crime and . . . a cruel and selfish act in which the
aggressor treats with utter contempt the dignity and feelings of [the] victim’. In S v
Chapman10 this court said it is ‘a humiliating, degrading and brutal invasion of the
privacy, the dignity and the person of the victim’. Its gravity in this case is
aggravated by the fact that the victim was a 12 year-old child. In S v Jansen11
rape of a child was said to be ‘an appalling and perverse abuse of male power’.
The court there went on to say:
[I]t is sadly to be expected that the young complainant in this case, already burdened by
a most unfortunate background . . . and who had, notwithstanding these misfortunes,
performed reasonably well at school, will now suffer the added psychological trauma
which resulted in a marked change of attitude and of school performance. The
community is entitled to demand that those who perform such perverse acts of terror be
adequately punished and that the punishment reflect the societal censure. It is utterly
terrifying that we live in a society where children cannot play in the streets in any safety;
where children are unable to grow up in the kind of climate which they should be able to
demand in any decent society, namely in freedom and without fear. In short, our children
must be able to develop their lives in an atmosphere which behoves any society which

8 At 863C-D.
9 At 864G.
10 S v Chapman 1997 (2) SACR 3 (SCA) at 5a-d (1997 (3) SA 341) (at 345A-B).
11 1999 (2) SACR 368 (C) at 378h-379a.

aspires to be an open and democratic one based on freedom, dignity and equality, the
very touchstones of our Constitution.’
I wholeheartedly align myself with these sentiments.

[16] In similar vein S v D12 underscored the vulnerability of children and went
on to say:
‘Children are vulnerable to abuse, and the younger they are, the more vulnerable they
are. They are usually abused by those who think they can get away with it, and too often
do.
. . .
Appellant’s conduct in my view was sufficiently reprehensible to fall within the category
of offences calling for a sentence both reflecting the Court’s strong disapproval and
hopefully acting as a deterrent to others minded to satisfy their carnal desires with
helpless children.’
Pretty much the same situation obtains in his case.

[17] Accordingly, it is in the light of the foregoing backdrop that this appeal
must be considered. The court below did not consider the appellant’s mitigating
factors to constitute substantial and compelling circumstances. Those mitigating
factors must of course be weighed against the aggravating circumstances of the
case. The following may be mentioned. The appellant steadfastly maintained that
he was innocent even in the face of overwhelming evidence against him. He
brazenly abducted the complainant in the presence of her friends to satisfy his
sexual desires without using a condom. He subjected the complainant to the
agony, pain and indignity of rape. The age of the complainant when she was
raped, coupled with her immaturity and anatomical under-development render
this rape a dreadful one. The complainant was effectively held hostage the whole
night thus exacerbating her anguish.

[18] The Victim Impact Report handed in by consent in the court below also
reflects a sad account of the devastation suffered by the complainant and her

12 S v D 1995 (1) SACR 259 (A) at 260f-i.

family. The complainant was forced to drop out from school, compelling her
mother to give up employment to offer her emotional support. The complainant
has been driven to becoming a recluse to avoid being ridiculed by her peers, thus
exacerbating the consequential emotional and psychological trauma she
suffered.

[19] Counsel for the appellant argued that the complainant did not sustain any
permanent physical injuries and even advanced a speculative contention that the
period that has elapsed since the rape was perpetrated was long enough for the
complainant to emotionally heal. To my mind this submission manifests a
misconception about the psychological and emotional consequences of rape for
the victim. In S v De Beer13 this court said the following:
‘Rape is a topic that abounds with myths and misconceptions. It is a serious social
problem about which, fortunately, we are at least 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.’

[20] It was further submitted on behalf of the appellant that this was not the
worst rape imaginable. Thus, concluded the argument, that consideration, viewed
with other mitigating factors, justifies a lesser sentence. I do not agree. In S v
Mahomotsa14 this court made plain that the fact that more serious cases than the
one under consideration are imaginable is not decisive. Mpati JA said:
‘[19]
Of course, one must guard against the notion that because still more serious
cases than the one under consideration are imaginable, it must follow inexorably that
something should be kept in reserve for such cases and therefore that the sentence
imposed in the case at hand should be correspondingly lighter than the severer
sentences that such hypothetical cases would merit there is always an upper limit in all
sentencing jurisdictions, be it death, life or some lengthy term of imprisonment, and there

13 At para 18 (unreported judgment, SCA case no 121/2004).
14 S v Mahomotsa  2002 (2) SACR 435 (SCA) para 19.

will be cases which, although differing in their respective degrees of seriousness,
nonetheless all call for the maximum penalty imposable. The fact that the crimes under
consideration are not all equally horrendous may not matter if the least horrendous of
them is horrendous enough to justify the imposition of the maximum penalty.’
Accordingly this case, on its facts, is indeed horrendous enough to justify the
imposition of the maximum penalty.

[21] In S v Vilakazi 2009 (1) SACR 552 (SCA), Nugent JA put it thus:
‘[I] should not be understood to mean that the absence of any one or more of the various
aggravating features specified in the Act necessarily justifies a departure from the
prescribed sentence for that would suggest that the maximum sentence is reserved for
only extreme cases. That was not so prior to the Act and is not the case now. There
comes a stage at which the maximum sentence is appropriate to an offence and the fact
that the same sentence will be attracted by an even greater horror means only that the
law can offer nothing more. Whether, and if so to what extent, the absence of other
aggravating circumstances might diminish the offender’s culpability will naturally depend
upon the particular circumstances.’15 (My underlining.)

[22] This brings me to the final argument advanced on behalf of the appellant,
namely, that he was a primary care giver to his minor son born out of wedlock on
22 August 2003 whose mother is deceased. It appears from the record that the
minor child was previously in the care of its deceased mother’s family who cared
for it. The appellant took over the care of the child after his family had paid the
customary damages. When this occurred is, however, not apparent from the
record. The appellant has been in incarceration since 20 September 2007. It is
now more than five years since the appellant was separated from his minor son.

[23] In S v M16 the Constitutional Court made plain that whilst the sentencing
court must ensure ‘that the form of punishment imposed is the one that is least
damaging to the interests of the children, given the legitimate range of choices in

15 Para 54.
16 S v M (Centre for Child Law as amicus curiae) 2007 (2) SACR 539 (CC) paras 33-35.

the circumstances available to the sentencing court’, this obligation does not
avail parents who invoke it ‘as a pretext for escaping the otherwise just
consequences of their own misconduct’. (My emphasis.) In the context of this
case the court below did not enjoy any legitimate range of choices in regard to
the sentence given that the prescribed period of imprisonment for life was the
sentence ordinarily to be imposed. Moreover the little information apparent from
the record suggests that the incarceration of the appellant could not have left his
minor child destitute.

[24] Whilst persisting in his argument in this regard counsel for the appellant
nevertheless accepted that long term imprisonment is called for on the facts of
this case. In dealing with a similar argument in Vilakazi this court said:
‘[O]nce it becomes clear that the crime is deserving of a substantial period of
imprisonment the questions whether the accused is married or single, whether he has
two children or three, whether or not he is in employment, are in themselves largely
immaterial to what that period should be, and those seem to me to be the kind of ‘flimsy’
grounds that Malgas said should be avoided.’17
Thus the appellant’s argument on this score cannot be upheld.

[25] For all the foregoing reasons I am not persuaded that the court below
erred in its conclusion that substantial and compelling circumstances were
absent. To come to a contrary decision in this case would constitute a failure to
heed the caution in Malgas that the ‘specified sentences are not to be departed
from lightly or for flimsy reasons’ and that ‘speculative hypotheses favourable to
the offender, undue sympathy, aversion to imprisoning first offenders . . . are to
be excluded’.18 Although the court below did not say so in terms, it is evident
from the tenor of its judgment that before it imposed the prescribed sentence, it
had assessed, upon a consideration of all the circumstances of this case,
whether the prescribed sentence was indeed proportionate to the offence
charged (see eg S v Vilakazi 2009 (1) SACR 552 (SCA) para 15).

17 At 574d-e.
18 At 481j-482a.

[26] In the result the appeal against the sentence of imprisonment for life is
dismissed.

_________________
X M PETSE
JUDGE OF APPEAL

Appearances:

Appellant:

M P Legodi

Instructed by:

Legal Aid, Polokwane

Legal Aid, Bloemfontein

Respondent:

P Vorster

Instructed by:

The Director of Public Prosecutions, Pretoria

The Director of Public Prosecutions, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
26 November 2012
Status:
Immediate

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

Piet Kwanape v The State

Today the Supreme Court of Appeal (SCA) dismissed an appeal by the appellant against a
sentence of life imprisonment imposed by the Northern District Circuit of the North
Gauteng High Court on 20 September 2007.

On 21 November 2006 the appellant was convicted of rape of a twelve year-old girl by the
Modimole Regional Court sitting in Polokwane.

Section 52 of the Criminal Law Amendment Act 105 of 1997 required, at the time, a
regional court, if it has convicted an accused person of an offence for which life
imprisonment is prescribed, to stop the proceedings and commit the accused for sentence
by a high court.

The appellant had abducted the complainant whilst she was playing in the street with two
friends and dragged her to a bush where he raped her three times. Once the appellant had
finished having intercourse with the complainant he took her to his home where she
remained for the night.

The appellant argued that, given his personal circumstances, the high court should have
found that substantial and compelling circumstances existed that justified the imposition of
a lesser sentence.

The SCA rejected this argument and held that the gravity of the crime coupled with the fact
that the complainant was a child, brazenly abducted from the street, raped more than once
and held against her will at the appellant’s home for the whole night rendered the sentence
imposed by the high court proportionate to the crime.