THE SUPREME COURT OF APPEAL SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 1344/2016
In the matter between:
PATRICK VUSIMUZI NCGOBO

APPELLANT
and
THE STATE

RESPONDENT
Neutral Citation: Ngcobo v S (1344/2016) 2018 ZASCA 06 (23 February
2018)
Coram: WALLIS JA and PILLAY and SCHIPPERS AJJA
Date of Hearing : 15 February 2018
Date of Judgment : 23 February 2018
Summary: Rape – sentence – life imprisonment - appellant and complainant
aged 23 and 16 years respectively – period awaiting trial one of several
factors to be considered cumulatively in determining whether substantial and
compelling circumstances exist and proportionality of sentence – interference
only if misdirection or trial court‟s sentence grossly disproportionate.

ORDER

On appeal from: KwaZulu-Natal Division of the High Court, Pietermaritzburg
(K Pillay J, McLaren J concurring, on appeal from the Regional Court, Ixopo), it is
ordered that:
The appeal is dismissed.
JUDGMENT

Pillay AJA (Wallis JA and Schippers AJA concurring)

[1] On 18 September 2006 the complainant then aged sixteen years was
studying in her room in Mangwaneni, Bulwer in the KwaZulu-Natal Midlands. She
was expecting her boyfriend W to bring her a book. She heard a knock at the door.
Assuming that it was W she opened the door. Instead it was the appellant.

[2] The appellant grabbed her and covered her mouth with his hand so that
she could not scream. Pulling her to him he told her that he had returned from
prison. He hit her with clenched fists many times demanding that she call her sister
with whom he previously had a relationship. The complainant refused to do so. He
threatened to shoot her. After asking her whom she had been expecting he said that
they must go to W. She refused to go with him. He pulled her away saying that they
were no longer going to W‟s house. He forced her onto the ground and raped her.
Then he dragged her to his house some two or three kilometres away. There he
pushed her onto a bed and raped her again. She sustained bruises on her legs and
swelling of her face.

[3] When the appellant fell asleep the complainant escaped. She made her
way to a bar owned by her brother-in-law. Someone telephoned for her brother-in-
law. He arrived shortly thereafter with his father. The matter was reported to the
police. The appellant was arrested that day. He was 23 years at the time.

[4] In his defence the appellant alleged that he was in a secret relationship
with the complainant who did not want her parents to know about their affair.
Because her sister was his girlfriend, her parents would have „expelled‟ her from their
home if they found out about their affair. Therefore, fearing her parents, she lied that
he had raped her when they had sexual intercourse only once at his house.

[5] On 5 September 2008, the regional court in Ixopo convicted the appellant
of two counts of rape falling under ss 51 and 52 of the Criminal Law Amendment Act
105 of 1997 (the Act) and sentenced him to a term of life imprisonment for both
counts taken together. On an automatic appeal in terms of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 38 of 2007 the KwaZulu-Natal
Division of the High Court, Pietermaritzburg, (McLaren and K. Pillay JJ) confirmed
the conviction and sentence of life imprisonment. On 3 November 2016 this court
granted special leave to appeal against sentence.

[6] The appellant‟s grounds of appeal were that the courts below had over
emphasised the seriousness of the crime without sufficient regard to his personal
circumstances, in particular, that he was gainfully employed and supported two
dependants. Significantly, they did not emphasise sufficiently the two years he had
spent in custody awaiting trial; for this the appellant relied on S v Seboko 2009 (2)
SACR 573 (NCK) at 583 and S v Radebe and Another 2013 (2) SACR 165 (SCA) at
168-169. Moreover it was contended that the sentence of life imprisonment was
disproportionate to the crime taking into account the age of the complainant; for this
he relied on S v Sangweni 2010 (1) SACR 419 (KZP).

[7] For the State, counsel submitted that the only issue for the court to decide
was whether the sentence induced a sense of shock and was disproportionate in the
circumstances. As for time spent in custody it was not on its own a substantial and
compelling circumstance but went to determining whether the sentence was
proportionate and just. Counsel relied on Radebe and Director of Public
Prosecutions North Gauteng, Pretoria v Gcwala and Others 2014 (2) SACR 337
(SCA).

[8] The evidence is limited providing little background into the appellant‟s
reasons for committing the crime. As in many cases like this one there were no pre-
sentencing and victim impact reports. Such reports, properly prepared, would have
given the court deeper insights into the personality and identities of the appellant
and the complainant, why he committed the crime and how she reacted to it.1
However, procuring useful pre-sentencing reports is both unaffordable and time-
consuming especially when the appellant wants a speedy trial.2 In the
circumstances, the courts have to do their best with what is presented to them.

[9] After considering the evidence submitted in mitigation, the trial court found
that there were no substantial and compelling circumstances present justifying a
deviation from the prescribed minimum sentence and imposed a term of life
imprisonment. On appeal, the full bench, relying on S v Malgas 2001 (1) SACR 469
(SCA) and S v Matyiti 2011 (1) SACR 40 (SCA) on the approach to sentencing,
found that that there was no evidence before the trial court to suggest that the
appellant was „immature to such an extent that his immaturity [could] operate as a
mitigating factor‟. Mindful of his lack of remorse, the full bench found that the
magistrate had not committed any misdirection in imposing life imprisonment. Even
though no evidence was presented of physical or psychological trauma that the
complainant would have endured, the full bench insightfully accepted that „common
sense dictates that [the trauma] could not have been trifling‟.

1 S v Mhlongo 2016 (2) SACR 611 (SCA) para 22-23; SS Terblanche „A guide to sentencing in South
Africa’ 3rd edition p117 para 8.2.
2 S v Mhlongo; Terblanche p117 para 8.3.

[10] I turn to the two grounds of appeal advanced before us:
(a) the delay of about two years before the trial commenced; and
(b) the proportionality of the sentence to the crime, the interests of the appellant and
of society.

[11] At the outset this is an appeal in which interference with the sentence will
be justified only if the trial court is shown to have misdirected itself in some respect
or if the sentence imposed was so disturbingly inappropriate or disproportionate that
„no reasonable court would have imposed it.‟ The test is not whether the trial court
was wrong but whether it exercised its discretion properly.3

[12] As to the first ground, the appellant was arrested on 18 September 2006,
just hours after he had raped the complainant. On 18 January 2008, he appeared for
the first time in the regional court. He applied for bail unsuccessfully in the district
court and twice thereafter in the regional court. At his request, the third bail
application was adjourned several times to enable him to secure the attendance of
his witness and his choice of legal representation. As at 13 November 2007, the
appellant was still awaiting the outcome of his application for legal aid. On 29 May
2008, his preferred counsel who represented him in the first bail application refused
to represent him in the trial.

[13] Adjournments at the instance of the State were initially for purposes of
investigation; on 20 July 2007 for a decision by the Director of Public Prosecutions;
and, eventually on 8 October 2007 for a regional court date.  On 29 May 2008, the
State declared its readiness for trial. But the appellant had still not secured legal aid.
Eventually, the matter was remanded for trial on 17 July 2008.

3 S v Romer 2011 (2) SACR 153 (SCA) para 22-23.

[14] Typically some delays seem to have been at the instance of the State and
others at the instance of the appellant. Primarily the appellant remained in custody
because his three bail applications failed. Even if there were delays this court said in
Radebe:
„the test was not whether on its own that period of detention constituted a “substantial and
compelling circumstance”, but whether the effective sentence proposed was proportionate to
the crime or crimes committed: whether the sentence in all the circumstances, including the
period spent in detention prior to conviction and sentencing, was a just one.‟
Furthermore:
„the period in detention pre-sentencing is but one of the factors that should be taken into
account in determining whether the effective period of imprisonment to be imposed is
justified.‟4
In short, a pre-conviction period of imprisonment is not, on its own, a substantial and
compelling circumstance; it is merely a factor in determining whether the sentence
imposed is disproportionate or unjust. After applying Malgas, S v Dodo 2001 (3) SA
382 (CC) and S v Vilakazi 2012 (6) SA 353 (SCA), this court in Radebe5 confirmed
the minimum sentence and dismissed the appeal.

[15] So to the second ground of appeal I turn. Two years earlier, and probably
unknown to the court below, a differently constituted full bench of the KwaZulu-Natal
Division of the High Court applied a proportionality test to reduce a life sentence for
rape of a child to 18 years.6 Counsel for the appellant urged the court to apply the
approach to proportionality in Sangweni to arrive at a lesser sentence.7

[16] This appeal serves before us approximately 20 years after the
promulgation of the Act commonly referred to as the minimum sentence legislation.
Ten years ago in sentencing the appellant the trial court lamented the prevalence of
the crime of rape of women and children. It noted the personal circumstances of the
appellant to include his age being 25 years at the time of sentencing, his having two
minor children and his employment that earned him R900 per week. It accepted that

4 S v Radebe para 14.
5 S v Radebe para14-16.
6 S v Sangweni was decided on November 10, 2009.
7 S v Sangweni.

he had no previous convictions relevant to this case. However, it viewed the
aggravating features of his conduct in a „very serious light‟; not only did he rape the
complainant twice but he also dragged and assaulted her. It noted the age of the
complainant and rejected the proposition that the complainant „was not
psychologically affected by the incident.‟ Noting the lack of medical evidence it
remarked that such evidence would have assisted in assessing the psychological
impact on the complainant. On this basis it found no substantial and compelling
circumstances to deviate from the prescribed minimum sentence of life
imprisonment. Not even the appellant‟s time in custody for two years moved the
court to consider a lesser sentence.

[17] When the full bench heard the matter on 8 November 2011 Matyiti had
recently been decided. In Matyiti the SCA concluded that neither the age of the
appellant, nor his background circumstances, constituted substantial and compelling
circumstances. It held that the circumstances of the crimes were heinous and that
the statutory minimum term of life imprisonment was not disproportionate. It
accordingly altered the sentence of 25 years imprisonment imposed by the trial court
to one of life imprisonment on each count.

[18] In this case the full bench applied Malgas and Matyiti. Not only was it alive
to the requirement that sentences must be proportionate but also that it „may only
interfere if an injustice would result, which [was] a fairly high test.‟ It found that the
appellant had failed to advance any evidence that his immaturity should count in
mitigation. Nor did he show remorse. Endorsing the trial court‟s finding about the
absence of substantial and compelling circumstances the full bench found no
misdirection in the trial court‟s sentence. Accordingly it upheld in the sentence of life
imprisonment.

[19] Before us counsel for the appellant urged that a sentence of between 20
and 25 years would be proportionate, mitigated appropriately by the 2 years
awaiting trial. These considerations should be viewed cumulatively with other factors
previously advanced in mitigation.

[20] In Dodo the Constitutional Court held that not only must the length of
sentences be proportionate to the offence but sentences must not be „grossly
disproportionate‟ to what an offender deserves.8 A grossly disproportionate sentence
would be a lengthy term of imprisonment that bears no relationship to what the
offence merits.9  In summary:
„On the construction that Malgas places on the concept „'substantial and compelling
circumstances'‟ in s 51(3)(a), which is correct, s 51(1) does not require the high court to
impose a sentence of life imprisonment in circumstances where it would be inconsistent with
the offender's right guaranteed by s 12(1)(e) of the Constitution.‟ 10

[21] Sentencing is the prerogative of the trial court.11 In my view the difference
that the two years would make to the sentence of life imprisonment is so marginal
that it does not render the sentence shockingly disproportionate. Nor would it be,
without remorse on the appellant‟s part, inconsistent with his countervailing
constitutional rights. Whether members of this bench would have arrived at a lesser
sentence is not the test. For this court to interfere with the sentence it must first find
a misdirection by the courts below. It can find none. Accordingly, the appeal is
dismissed.
_________

Pillay AJA

8 S v Dodo para 26, 31-41.
9 S v Dodo para 38.
10 S v Dodo para 40.
11 S v Romer above para 23.

Appearances:
For Appellant:

Z Anastasiou
Instructed by:

Pietermaritzburg Justice Centre
For Respondent:

C Kander

National Director of Public Prosecutions, KwaZulu-Natal.