Court name
High Court
Case number
CA 109 of 1998

S v Rudath (CA 109 of 1998) [1999] NAHC 13 (21 September 1999);

Media neutral citation
[1999] NAHC 13



Sentence - rape - seriousness of the
crime – Interest of the victims, of women and of society in general
in retributive, deterrent and preventative sentences - prevalence
justifying emphasis of society's interest.

Appeal - Sentence - righteous anger
clouding judgment - resultant failure to consider certain mitigating
factors -"mercy" as element in dispensing justice -
requires that it should be done in a judicially balanced, soberly
objective, morally elevated and humane fashion - severity of 17 year
sentence reduced by suspending 5 years thereof.

NO. CA 109/98


J.P. et Maritz, J.

CASE NO. CA 109/98






Heard on:

Delivered on: 1999-09-21


Regional Court convicted the appellant of the crime of rape and
sentenced him to 17 years imprisonment. This appeal is against that

Mr. Mostert, who appeared for the
appellant, contended that the sentence was totally inappropriate,
shockingly disproportionate and inconsistent with sentences
generally imposed for crimes of that nature. In addition, he
submitted that the regional magistrate had not given due
consideration to the personal circumstances of the appellant; had
placed too much emphasis on the interest of society and, as a
consequence thereof, had failed to exercise his discretion
judicially. The trial court, so he argued, should have given more
weight to the mitigating factors on record: The appellant was at the
time gainfully employed, married, the father of three children, the
sole breadwinner of the family and a first offender at the age of

Of course, the combined weight to be
given to mitigating factors cannot be determined in isolation. They
must be weighed together with all aggravating factors to assess
their comparative weight for purposes of sentence. All those factors
should be considered as interrelated components of
oft-applied triad
(i.e. the crime,
the offender, and the interest of society) in designing a suitable
sentence that satisfies the objectives of punishment.

In this context, it is only
appropriate that I refer to some of the aggravating factors present
in this case.

Rape is, by its nature, generally
regarded as a vile and serious crime. The brutal sexual violation of
a fellow being's physical integrity, human dignity, security of
person and psychological well-being to satisfy the assailant's most
primitive and bestial urges of lust, sexual domination and power
should not be tolerated in any society - least in ours, which has
constitutionally committed itself to the recognition and protection
of the dignity, freedom and equality of all its members.

Women, in
general, have been the suffering prey of this crime for too long and
too often. Those who have fallen victim to it have a legitimate
expectation to seek just retribution against the offenders though
our judicial system. Moreover, as a class of persons constituting a
significant portion of society, women have the most immediate,
compelling and direct interest that the courts of this country
should impose deterrent sentences to discourage potential offenders.
The Namibian society shares those sentiments and demands that, in
appropriate cases, offenders be incarcerated and rehabilitated to
prevent recurrence of their crimes.

I find
myself in respectful agreement with the strong views expressed in S
(2) SACR 3 (SCA):

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. They 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."
(at p 5A-C) and

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
the equality,
dignity and freedom of all women, and we shall show no mercy to
those who seek to invade those rights." (at p 5E).

To aggravate the already serious
nature of the crime, it and other crimes manifesting a
and flagrant want of respect for the life and property of fellow
human beings",
become increasingly prevalent in this country. There is a public
outcry for more effective and more stringent measures to reduce the
occurrence thereof. So universal and compelling has public opinion
rallied against perpetrators that legislation is presently under
consideration in Parliament to address and combat crimes of that
nature more effectively. In the circumstances the trial magistrate
justifiably emphasised the interest of society as an important
consideration in the determination of the appellant's sentence. Such
emphasis is also done in other jurisdictions: See for example the
attitude of Lombard, J. expressed in
v Matolo en 'nAnder,
(1) SACR 206 (O):

"In cases like the present the
interests of society is a factor which plays a material role and
which requires serious consideration. Our country at present suffers
an unprecedented, uncontrolled and unacceptable wave of violence,
murder, homicide, robbery and rape. A blatant and flagrant want of
respect for the life and property of fellow human beings has become
prevalent. The vocabulary of our courts to describe the barbaric and
repulsive conduct of such unscrupulous criminals is being exhausted.
The community craves the assistance of the courts: its members
threaten, inter alia, to take the law into their own hands. The
courts impose severe sentences, but the momentum of violence
continues unabated. A court must be thoroughly aware of its
responsibility to the community, and by acting steadfastly,
impartially and fearlessly, announce to the world in unambiguous
terms its utter repugnance and contempt of such conduct."

Furthermore, the manner in which the
appellant committed the rape has several aggravating elements. The
appellant, driving a vehicle, found the complainant walking to her
father's house early on a Saturday evening. He offered her a lift.
When she declined, he forcibly and unexpectedly pulled her into the
vehicle and drove off. She loudly protested her abduction and later
in tears pleaded with him to release or return her, but to no avail.
After making one stop near his brother's house, where the
complainant's cries for assistance fell on the ears of a deaf or
disinterested neighbourhood, the appellant eventually stopped the
vehicle somewhere in the veldt on the outskirts of Windhoek. There
he dragged the complainant from the car, tore the clothes off her
body and raped her. He did so whilst her humiliation was witnessed
in the glow of the vehicle's parking lights by two boys, aged 12 and
18 respectively, who were passengers in the car. Raping her was,
however, not enough for the appellant. He then, telling the boys
that he had "torn her up" demanded that they too should
rape her. They declined. The appellant collected a revolver from the
vehicle, cocked it and threatened, in the crudest of language, to
shoot them should they persist with their refusal to comply with his
demand. The complainant tried to get back into the vehicle but was
again pulled out of it by the appellant. She then suffered the
devastating indignity of being raped by a 12-year-old boy she knew
by name - he was attending the same school as her own child.
Thereafter it was the other boy's turn. He was similarly threatened
and at gunpoint had to violate her again. The boy, afraid of the
consequences, at first merely pretended to have intercourse with the
complainant, but the appellant, not to be denied macabre
satisfaction of his demands, insisted and closely observed that he
too violated her. To add insult to injury, the appellant then zipped
up his fly and told the boys that they would not get into trouble
because the complainant was "rubbish". Distraught, she
eventually managed to run away to a not too distant neighbourhood
where an unknown Samaritan eventually heeded her calls and took her
to her father's house.

This brief summary cannot adequately
describe the horrific experience suffered by the complainant. The
complainant was also from time to time during her evidence at a loss
for words to adequately relate her ordeal at the hands of the
appellant and, on occasion, she could do no better than to compare
his conduct to that of a "dog" and a "pig". The
rape left the complainant, who was described by the magistrate as "a
lady with good upbringing", emotionally devastated. So
tormented was she by the events that she attempted suicide by taking
an overdose of pills. To a certain extent, the emotional
consequences of the complainant's ordeal is similar to those
described by Van Deventer, J. and Prest, A.J. in S
SACR 181 (C) at 186E:

"A rapist does not murder his
victim - he murders her self-respect and destroys her feeling of
physical and mental integrity and security. His monstrous deed often
haunts his victim and subjects her to mental torment for the rest of
her life - a fate often worse than loss of life."

And the appellant? He did not show
any remorse. He sat smiling when the complainant tearfully related
to the court particulars of her terrible experience at his hands. On
one occasion he had to be admonished by the magistrate and on
another the complainant had to remark on his demeanour in court.
Even his legal representative, it appears, had to ask for an
adjournment to counsel the appellant about the callous impression
caused by his conduct. His demeanour must have given the magistrate
some insight into his personality and character. The appellant
showed a significant lack of appreciation for the gravity of the
crime he had committed: He advanced in mitigation (through his legal
representative) that he was going to be in a lot of trouble at work
for being two days absent from work because of the trial and
suggested a total suspension of his sentence!

It is perhaps the appellant's
unrepentant and callous attitude that, more than anything, stung
and, it appears, angered the experienced and sensible regional
magistrate. That much appears from the last part of the magistrate's
judgment on sentence:

could not help to observe this morning that you were laughing when
the complainant was testifying. You were actually laughing at her,
so that she had to turn to you and reprimand you for that. Now, a
person who approaches a serious matter like this laughing needs a
serious reprimand. A very serious one, otherwise you will think that
you can come away with jokes. This is a joke? It is not a joke. You
are sentenced, sir, to 17 years imprisonment. Nothing is suspended."

The approach
to be adopted by this court in an appeal against sentence is trite:

being pre-eminently a matter for the discretion of the trial Court,
the powers of a Court on appeal to interfere with sentence are
limited. Such interference is only permissible where the trial Court
has not exercised its discretion judicially or properly. This occurs
when it has misdirected itself on facts material to sentencing or on
legal principles relevant to sentencing. It will also be inferred
that the trial Court acted unreasonably if

exists such a striking disparity between the sentences passed by the
learned trial Judge and the sentences which this Court would have
passed (Berliner's case supra at 200) - or, to pose the enquiry in
the phraseology employed in other cases, whether the sentences
appealed against appear to this Court to be so startlingly (S v
Ivanisevic and Another (supra at 575)) or disturbingly (S v Letsolo
1970 (3) SA 476 (A) at 477) inappropriate - as to warrant
interference with the exercise of the learned Judge's discretion
regarding sentence'

S v
Whitehead 1970 (4) SA 424 (A) at 436D-E. Compare also S v Anderson
1964 (3) SA 494 (A); S v Letsoko and Others 1964 (4) SA 768 (A) at
777D-H; S v Ivanisevic and Another 1967 (4) SA 572 (A) at 575G-H and
S v Rabie 1975 (4) SA 855 (A) at 857D-F.

justice should be dispensed in a civilised and just society. (See
v V,
1972(3) SA 611
(AD) at 614D - F). "It is a balanced and humane state of
thought" and "eschews insensitive censoriousness in
sentencing a fellow-mortal, and so avoids severity in anger" -
Holmes, J.A. in S v
1975 (4) SA
855 (A) at 682D - F. By its consideration, we remind ourselves that
justice should be dispensed in a judicially balanced, soberly
objective, morally elevated and humane fashion - and that the court
is neither a sledgehammer to exact a victim's revenge nor a deity
capable of absolving a perpetrator of his or her crimes.

Anger, occasioned by the offender's
demeanour and conduct in or out of court, however righteous,
justified or understandable it might be in the circumstances, "should
not becloud judgement"
v Karg,
1961 (1) SA
231 (A) at 236B). Should the trial court sentence in anger, it would
be a misdirection justifying the court of appeal to consider the
sentence afresh.

Having carefully considered the
magistrate's judgment on sentence, I am left with the distinct
impression that, angered by the accused's conduct, the element of
mercy was not blended into the other relevant considerations when
meting out sentence to the appellant.

Furthermore, it is not apparent from
the judgment that the magistrate considered the following mitigating
factors at all: The appellant was, according to the accepted evidence
of the complainant, heavily under the influence of liquor at all
relevant times during the incident. Intoxication, as Holmes, J.A. has
said in S v
1965(4) SA 692
(AD) at 695C-D, "is one of humanity's age-old frailties, which
may, depending on the circumstances, reduce the moral blameworthiness
of a crime, and may even evoke a touch of compassion through the
perceptive understanding that man, seeking solace or pleasure in
liquor, may easily over-indulge and thereby do the things which sober
he would not do. On the other hand intoxication may, again depending
on the circumstances, aggravate the aspect of blameworthiness ... as,
for example, when a man deliberately fortifies himself with liquor to
enable him insensitively to carry out a fell design." I should
point out that there is no indication on record that the
complainant's abduction and rape were planned or that liquor was
consumed to bolster the appellant's resolve with such purposes in
mind. Other factors apparently not considered are that the revolver
was not used as part of any threat made against the complainant and
that there is no evidence of any real physical injuries sustained by
her as a result of her treatment at the hands of the appellant.

I have no doubt that the imposition
of a long term of imprisonment is appropriate in the circumstances of
this case. However, imprisonment for an effective period of 17 years
is indeed a very long time. Although sentences of such (and longer)
duration are often fully justified, especially where it is necessary
for the protection of society that the accused be removed from its
midst and be placed in preventative custody for such a period, one
should always be mindful of the cautionary remarks of Nicolas, J.A.
in Si;
1985(3) SA 51 (AD)
at 541 to 55D when it comes to the sentencing objectives of
deterrence, retribution and rehabilitation:

"My personal view is that the
public interest is not necessarily best served by the imposition of
very long sentences of imprisonment. So far as deterrence is
concerned, there is no reason to believe that the deterrent effect of
a prison sentence is always proportionate to its length. Indeed, it
would seem to be likely that in this field there operates a law of
diminishing returns: a point is reached after which additions to the
length of a sentence produce progressively smaller increases in
deterrent effect, so that, for example, the marginal deterrent value
of a sentence of 20 years over one of say 15 years may not be

Similarly in regard to the aspect of
retribution. This has tended to yield ground to the aspects of
deterrence and reformation, but it is not wrong that, in determining
a proper sentence, the Courts should give some recognition to the
natural indignation and the fears and apprehensions of interested
persons and the community at large. (See R v Karg 1961 (1) SA 231 (A)
at 236A-B.)... But that demand may well be satisfied by the
imposition of less than the most severe sentence.

Nor is it in the public interest that
potentially valuable human material should be seriously damaged by
long incarceration. As I observed in S v Khumalo and Another 1984 (3)
SA 327 (A) at 331, it is the experience of prison administrators that
unduly prolonged imprisonment brings about the complete mental and
physical deterioration of the prisoner. Wrongdoers "must not be
visited with punishments to the point of being broken." (Per
HOLMES JA in S v Sparks and Another 1972 (3) SA 396 (A) at 410G.)"

As a first offender at the age of 35
who in all probability acted at the time with a diminished capacity
to exhibit good judgement (due to his state of intoxication), I would
have suspended 5 years of his sentence. Such a partial suspension
will, in my view, benefit the appellant's rehabilitation and serve as
a deterrent not to commit a similar crime after his release from
prison, yet, leave a sufficiently long effective term of imprisonment
to impress upon him the gravity of his crime and to otherwise satisfy
both the complainant's and society's interest in just punishment and
the objectives thereof.

But even if the magistrate has not
misdirected himself in the manner I have mentioned earlier, I am
nevertheless of the view that the partial suspension of the
appellant's sentence I would have ordered, had the matter come before
me in the first instance, is sufficiently disparate from the actual
sentence to justify interference by this court on appeal.

I the result I would confirm the
sentence of 17 years imprisonment but suspend 5 years thereof for a
period of 5 years calculated from the date of the accused's release
from prison on the condition that the

is not convicted during the period of suspension of the crime of rape
or indecent assault or of the statutory offence of carnal intercourse
with a girl under the age of 16 in contravention of s. 14(l)(a) of
Act 21 of 1980.