George Rammoko v Director of Public Prosecutions

The appellant was convicted in the regional court sitting at Welkom on 6 April 1999 for raping a 13-year-old girl on 23 September 1998. The complainant lived with her grandfather in Lusaka Park, Theunissen. After returning from school (Grade 4), she was called by the appellant, who lived in a house behind her home and was known to her. When she entered his house, he closed the door, grabbed her hands, struck her multiple times on her back with a belt when she screamed, pushed her onto a bed, and had full sexual intercourse with her. Medical examination on 24 September 1998 revealed at least five weals on her back, a bruise on her external genitalia, and a previously perforated hymen. The appellant was 34 years old at trial, had completed only standard one at school, had no fixed employment, and had one previous conviction for theft in 1991. The rape occurred almost four months after the minimum sentencing provisions of the Criminal Law Amendment Act 105 of 1997 came into force on 1 May 1998. The appellant was sentenced to life imprisonment by Cillie J in the Orange Free State Provincial Division on 12 August 1999.

• Whether the court a quo applied the correct test for determining the existence of 'substantial and compelling circumstances' under section 51(3) of the Criminal Law Amendment Act 105 of 1997
• What constitutes substantial and compelling circumstances justifying departure from the prescribed minimum sentence of life imprisonment for rape of a child under 16 years
• The role and responsibility of the presiding officer in ensuring adequate evidence is presented for determining whether substantial and compelling circumstances exist
• Whether the sentence of life imprisonment was appropriate in the circumstances of this case

1. The appeal succeeded to the extent that the sentence of life imprisonment imposed on the appellant was set aside. 2. The matter was remitted to the court a quo (Orange Free State Provincial Division) for reconsideration of the question of sentence in line with the principles set out in the judgment.

The binding legal principles established are: (1) Under the minimum sentencing legislation (Criminal Law Amendment Act 105 of 1997), 'substantial and compelling circumstances' need not be 'exceptional' and the prescribed sentence need not amount to a 'shocking injustice' before a departure is justified - that it would be an injustice is sufficient (following S v Malgas); (2) The presiding officer in a sentencing hearing bears an active responsibility, not merely a passive role, to ensure that adequate evidence is presented to properly determine whether substantial and compelling circumstances exist; (3) A presiding officer may exercise powers under section 186 of the Criminal Procedure Act to summon witnesses or direct that evidence be obtained (such as psychological assessments) if such evidence is necessary for the just adjudication of the sentencing question; (4) In cases involving the rape of children where life imprisonment is prescribed, evidence regarding the effects of the rape on the victim (present and future) is relevant and important for determining whether substantial and compelling circumstances exist; (5) Both the prosecution and the presiding officer share responsibility for ensuring that proper evidence is placed before the sentencing court in minimum sentencing cases.

The Court made several non-binding observations: (1) That even within categories of rape specified in the Act, there are bound to be differences in the degree of seriousness - all will be serious but some will be more serious than others, and these differences in seriousness should receive recognition when meting out punishment (citing S v Abrahams); (2) The objective gravity of the crime plays an important role in sentencing, even under the minimum sentencing regime; (3) Life imprisonment should be reserved for cases devoid of substantial factors compelling the conclusion that such a sentence is inappropriate and unjust; (4) The fact that a victim may be under 16 years of age is not the only criterion necessary for imposition of life imprisonment for rape; (5) The Court expressed scepticism about the probation officer's assessment in another case that complainants suffered no after-effects, observing that 'the fact remains that there is no positive evidence to the contrary'; (6) The Court criticized the casual manner in which the case was presented both in the regional court and in the court a quo, with no evidence led before the sentencing judge; (7) The Court noted that the community is entitled to expect that an offender will not escape life imprisonment - prescribed for a very specific reason - simply because substantial and compelling circumstances are unwarrantedly held to be present.

This case is significant in South African sentencing jurisprudence for: (1) Reinforcing and applying the principles established in S v Malgas regarding the interpretation of 'substantial and compelling circumstances' under the minimum sentencing legislation; (2) Clarifying that the prescribed minimum sentence need not amount to a 'shocking injustice' before departure is justified, and that circumstances need not be 'exceptional'; (3) Establishing the active role and responsibility of presiding officers in ensuring adequate evidence is presented for sentencing purposes, particularly in minimum sentencing cases where life imprisonment may be imposed; (4) Recognizing that even within categories of rape specified in the Act, there are differences in degrees of seriousness that should receive recognition in sentencing; (5) Emphasizing that both the prosecution and the court have responsibilities to ensure proper evidence regarding victim impact and other relevant circumstances is placed before the sentencing court; (6) Providing guidance on the type of evidence that should be led in rape cases involving child victims, including evidence from psychologists, family members, and teachers regarding the effects of the crime on the victim.