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[2015] ZAWCHC 179
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Williams v S (A118/2015) [2015] ZAWCHC 179 (27 November 2015)
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IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case No: A118/2015
DATE: 27 NOVEMBER 2015
In the matter between:
FOEAART
WILLIAMS
...........................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT DELIVERED ON 27 NOVEMBER
2015
RILEY, AJ
[1]The appellant was convicted in the
Regional Court sitting at Parow on two counts of rape of a girl under
the age of sixteen (16)
years old in contravention of s3 of the
Criminal Law Amendment Act (Sexual Offences and Related Matters) Act
32 of 2007 read together
with the provisions of ss 51, 52 and
Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
as amended.
[2] The appellant who was legally
represented during the proceedings in the court a quo pleaded not
guilty.
[3] On 6 February 2015 the appellant
was convicted on both counts of rape and on 12 February 2015 he was
sentenced to life imprisonment,
counts 1 and 2 being treated as one
for the purpose of sentence.
[4] The appellant now appeals against
both the conviction and sentence in terms of s309(1)(a) of the
Criminal Procedure Act 51 of
1977.
[5] The accepted facts are that the
complainant who was fourteen (14) years old lived her parents,
grandparents and other family
members on the same property as the
appellant at the time of the incident. The appellant is the
complainant’s grandmothers’
brother. On the day of the
incident the complainant accompanied the appellant to Bellville as he
intended to buy her clothes.
They left for Bellville at about 07h00.
When they arrived at Bellville, the clothing shops were closed and
the appellant told
her that he needed to take something to one of his
friends. They then left Bellville and walked through a bush behind
Karl Bremer
Hospital. When they reached a particular point the
appellant stopped and told her that the place he was going to was
dangerous
and that she should wait there until he returned. The
appellant did however not leave immediately. He sat down, lit up a
cigarette
and smoked. He told her that he would leave after he had
finished smoking and that she should sit. When she did not want to
sit,
he told her not to be ‘hardegat’ (stubborn) and
insisted that she sit down. As she did not know the area and as she
had nowhere to go, she sat down next to appellant on a towel provided
by him.
[6] After appellant was finished
smoking, he took a folded newspaper from his bag, unfolded the
newspaper, produced a knife and
then ordered her to take off her
clothes. When she refused, he pushed the knife against her throat
and told her that if she did
not do so he would kill her. She then
took off her clothes. Appellant then lowered his trouser and then
inserted his penis in
her vagina and had sexual intercourse with her.
When she shouted for help, appellant told her to keep her mouth shut
as the passing
motorist would hear her. When he was done, he took a
black plastic round cylindric shaped object which was about 15cm in
length
with a round front end from his bag. He then inserted this
object into her vagina and moved it in and out of her vagina in a
thrusting
motion simulating the act of intercourse. After he was
done doing this, he told her to dress.
[7] They then went to Bellville where
he bought her clothes. On their way home, he told her that she
should tell no one. When
they arrived home, her family was there but
she did not say anything. One of the chief reasons she did not tell
her grandmother
what had happened, was because when she had
previously reported to her grandmother that the latter’s
brother had raped her,
the grandmother did not believe her and
accused her of lying. Later when she and her niece went to the
library, she told her
what appellant had done to her. Her niece told
her to tell her grandmother. On their return from the library she
told her grandmother.
By then the appellant had already packed his
bags and left the premises. He did not return.
[8] [Z…….] [W…….],
the niece of the complainant, confirmed that they were on their way
to the library
when the complainant became emotional, started crying
and then reported to her that the appellant had raped her and that he
had
inserted an object in her vagina. Although the complainant had
asked them not to tell anyone, she nevertheless told her grandmother.
[9][D……] [J…….],
the complainant’s father, testified that he arrived home
from night shift
at 06h00 and then went to sleep. During the course
of the morning his wife woke him and told him that the complainant
and appellant
were gone. He was concerned about the complainant’s
well-being and tried to find money to go to Bellville in search of
them,
but was unsuccessful and returned home. He then went to sleep.
He did see the complainant briefly on her return from Bellville
but
observed nothing untoward and went to sleep again. He was awoken by
screaming in the house. His wife and his mother- in-law
then
reported to him that the complainant had been raped by the appellant.
He was very upset and searched for the appellant but
could not find
him. According to him the issue relating to the appellant taking
complainant to buy clothes, was discussed a few
days before the
incident occurred. Although he did not have any objection to the
complainant accompanying appellant to Bellville
to buy clothes, he
was only prepared to allow the complainant to go on condition that he
or his wife accompanied them as he did
not trust the appellant.
[10] Dr Immanuel Mensah testified that
on 28 November 2013 he examined the complainant at Karl Bremer
Hospital. With reference
to the form J88, which he completed at the
time of examining the complainant, he testified that he found fresh
bruises in the fossa
navicularis of the complainant’s vagina
which in his view supported his conclusion that penetration of the
vagina had taken
place beyond the labia with a hard object. When he
was questioned about whether the fresh bruises could have been caused
by the
complainant inserting her finger into her vagina, he testified
that it would depend on how violently the finger was inserted in
the
vagina and that it would be very unpleasant for someone to want to
inflict such injuries to themselves. He testified that
it was
possible that the bruises could be caused by a person inserting her
finger if the person could withstand the pain that such
activity
would cause.
[11] I pause to mention here that Dr
Mensah had found old tears of the complainant’s hymen. It is
not in dispute that the
complainant testified that she was previously
raped by her grandfather when she was much younger and it is accepted
that the old
tears were caused on that occasion.
[12] In his testimony the appellant
denied that he had raped the complainant. According to him, he
agreed to take the complainant
to Bellville with him as he knew she
wanted him to buy her clothes. She had suggested she could help him
as he walked with difficulty
and was on crutches. According to him
she had been bothering him for weeks to buy her clothes. He
testified that as he did not
have money to buy the clothes, he
decided to go to Durbanville to buy cellular telephones which he
would resell to enable him
to buy the clothes. En route whilst
they were walking in the bush near Karl Bremer Hospital, the
complainant suddenly grabbed
hold of him; kissed him; pulled down her
pants and inserted her finger in her vagina while she was seated in
front of him. He
testified that he was shocked and astounded by the
complainants conduct and had words with her. Even though he was
angered by
her conduct, he nevertheless decided to take her to
Bellville to buy the clothes so that, as he put it, ‘…
ek wil
haar so eenkeer van my - met my rug afkry’. The
appellant denied that he had left the place where he lived as a
result
of what he had done to the complainant and testified that he
had decided to go to a friend at Brooklyn as he had argued with his
sister about the rent he had to pay for living there. According to
him the complainant was lying and that his family must have
told the
complainant to make up this story against him.
[13] It was contended on behalf of the
appellant that the trial magistrate had erred in placing reliance on
the evidence of the
complainant as she was a single witness and her
evidence was not satisfactory in all respects as she contradicted
herself materially
and that there were contradictions between her
evidence and that of the witnesses.
[14] Ms De Jongh who appeared on behalf
of the appellant, also criticised the complainant because she did not
run away at the time
that the rape incident occurred and because she
willingly went with the appellant after the rape and allowed him to
buy her clothes
in circumstances where she had ample opportunity to
ask for help. She also criticised the fact that the complainant did
not tell
her parents of the incident. She submitted that Dr Mensah
did not exclude the possibility that the injuries to the
complainant’s
vagina could have been caused by the complainant
inserting her finger into her vagina as averred by the appellant.
[15] After summarising the evidence of
the state witnesses and referring to the relevant legal principles,
the trial magistrate
found that the complainant had given a
‘sinvolle, kronologiese weergawe …van die gebeure’
and that ‘…
ten spyte van deurdringende
kruisondervraging nooit haarself weerspreek nie’.
[16] It is common cause that the
complainant is a child and a single witness who testified in respect
of a sexual offence. It is
trite law that an accused may be
convicted of any offence on the single evidence of any competent
witness. It is now accepted
law that when considering the
credibility of a single witness that a trial court should weigh the
evidence of the single witness
and should consider its merits and
demerits and, having done so, should decide whether it is satisfied
that the truth has been
told despite shortcomings, defects or
contradictions in the evidence. See S v Sauls
1981 (3) SA 172(A)
180. In R v Manda
1951 (3) SA 158(A)
163 the then AD held that
imaginativeness and suggestibility are only two of a number of
reasons why the evidence of children should
be scrutinised with care
amounting perhaps to suspicion’. In S v V
2000 (1) SACR 453
(SCA) at para [2] Zulman J expressed the view that “…
although there is no statutory requirement that a child’s
evidence must be corroborated, it has long been accepted that the
evidence of young children should be treated with caution …”
Although our law no longer recognises a cautionary rule in sexual
offences matters, it is accepted that the evidence in a particular
case may call for a cautionary approach. See S v Jackson
1998 (1)
SACR 470
(SCA) 476f. It is also generally accepted that when
courts scrutinise and weigh the evidence of young children,
complainants
in sexual cases and the evidence of a single witness,
that the court should not allow the exercise of caution to displace
the exercise
of common sense. See S v Snyman
1968 (2) SA 582(A)
585
G – H and S v Artman
1968 (3) SA 339(A)
340.
[17] On a consideration of the record
of the proceedings I am satisfied that the trial magistrate was very
much alive to the fact
that she was dealing with the evidence of a
child who was a single witness in a sexual offence and that the court
was required
to find certain safeguards or guarantees for the
reliability of the evidence of the complainant. See S v Pistorius
2014 (2) SACR 314
(SCA). I am further satisfied that the magistrate
was mindful that due to the nature of the charges that the evidence
of the complainant
had to be approached with caution. The trial
magistrate found guarantees for the reliability in the complainant’s
version
in the fact that she reported the rape to her niece and in
the medical evidence which corroborated a finding of forced sexual
intercourse.
See S v Gentle
2005 (1) SACR 420
(SCA) and S v S
1990
(1) SACR 5(A).
The trial magistrate further found that even though
there are discrepancies and or contradictions in the evidence between
the
complainant and the other witnesses that the discrepancies or
contradictions are not of such a nature so as to result in the
rejection
of the whole of the complainant’s or the evidence of
the witnesses. See S v Oosthuizen
1982 (3) SA 571(T)
19 576.
[18] There is no merit in the criticism
levelled against the complainant that she did not cry for help and or
that she did not run
away at the time that the rape occurred. On the
evidence, the complainant did scream for help. She further testified
that she
could not flee as appellant was next to her. He had
produced a knife, threatened her with it and told her to undress.
When she
refused, he held the knife against her throat and told her
he would kill her. During the time that he raped her, he had the
knife
in his hand and held it next to her head. Considering the
situation that she found herself in, she can hardly be criticised for
not running away.
[19] She further gave a plausible
explanation as to why she went with the appellant to Bellville. She
testified that she was scared
and that although she wanted to get
away, she did not have money and did not know which way to go. It is
not unreasonable to conclude
that she was still shocked and
traumatised by the events that she had been subjected to and had
resigned herself to the situation
she found herself in. No adverse
inference can accordingly be made from her conduct. She testified
that when they at arrived
home, she was reluctant to report the
incident as she was scared that the appellant, who was still there,
would cause harm to the
people at home as he had the knife. It is
further clear that she left the house to go to the library so that
she could use this
as an opportunity to report the rape to her niece,
which she then did. I pause to mention at this stage that there is
no rule
of law that the complainant was obliged to report the rape
immediately to her father, mother or even her grandmother when she
arrived
home. The fact of the matter is that she reported the rape
to her niece on the day that it happened and within a short period
after she arrived home.
[20] On evidence the complainant and
the appellant had a good relationship at the time that the rape
occurred. Appellant described
the complainant as a lovely child who
respected him. According to him they had a fantastic relationship.
There is no evidence
that the complainant held a grudge against the
appellant and or that she had a motive to falsely implicate him. Nor
is there evidence
that the complainant had conspired with any of her
family members against the appellant. The conspiracy argument must
therefore
be dismissed.
[21] The appellant was a poor witness
who did not make a favourable impression at all. His version that he
was completely shocked
and taken aback by the complainant’s
behaviour when she allegedly attempted to solicit him with, or into a
sexual act to
convince him to buy her clothes does not make sense.
On the evidence, the decision to buy the complainant the clothes was
made
some time before the incident occurred. There was therefor no
need for the complainant to perform the sexual acts to get him to
buy
her clothing. Appellant gives no reasonable explanation why,
considering her shocking behaviour, he still proceeded to take
her to
Bellville and buy her the clothes. Nor is he able to properly
explain why he did not report the complainant’s behaviour
to
her parents particularly if he was so shocked by her behaviour. In
my view the appellant fabricated the version of the alleged
solicitation in a pathetic attempt to place the complainant in a bad
light in circumstances where the overwhelming evidence pointed
to his
guilt. I am accordingly satisfied that the trial magistrate
correctly rejected the appellant’s version as highly
improbable
and false. S v Jochems
1991 (1) SACR 208(A)
at 211 E – G.
[22] On a consideration of the
complainant’s evidence as a whole, I am satisfied that her
evidence was satisfactory in material
respects and that she was a
credible and reliable witness. I cannot find that the trial
magistrate misdirected herself with regard
to the evaluation of the
evidence of the complainant bearing in mind that the trial magistrate
had the advantage of seeing, hearing
and appraising the complainant
when she testified. There is accordingly no basis to interfere with
the trial magistrate’s
evaluation of the complainant’s
evidence. See S v Robinson and Others
1968 (1) SA 666(A)
at 675 F –
H, S v Pistorius (supra) at para [28].
[23] In deciding whether the state has
proved its case beyond a reasonable doubt a court does not look at
the evidence implicating
the accused in isolation in order to
determine whether there is proof beyond a reasonable doubt and so too
does it not look at
the exculpatory evidence in isolation in order to
determine whether it is reasonable possible that it might be true.
See S v Van
der Meyden
1999 (1) SACR 447
(W) at 448(i). I am on the
whole satisfied that if one weighs up all the evidence which point
towards the guilt of the appellant
against those which are indicative
of his innocence and taking proper account of the inherent strengths
and weaknesses, probabilities
and improbabilities on both sides, that
the balance weighs so heavily in favour of the state as to exclude
any reasonable doubt
about the appellants guilt.
[24] The appeal against the conviction
must therefore be dismissed.
[25] I now turn to deal with the appeal
on sentence. It is trite law that sentencing is primarily in the
discretion of the trial
court and the power of a court of appeal to
interfere with a sentence properly imposed by the trial court are
strictly circumscribed.
Ms De Jongh essentially contended that the
trial court had misdirected itself in that the sentence imposed is
shockingly inappropriate
considering the appellants personal
circumstances.
[26] In the present matter the life
sentence is prescribed as the complainant was under the age of
sixteen (16) when the rapes occurred.
The trial magistrate had
regard to the appellant’s personal circumstances, the crime and
the interest of society but found
that substantial and compelling
circumstances did not exist which justified a departure from the
prescribed minimum sentence.
[27] The crime of rape is repulsive and
has been described as an invasion of the most private and intimate
zone of a woman and strikes
at the core of her personhood and
dignity. See S v Vilakazi
2009 (1) SACR 552
(SCA) at 555. In S v
Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) the SCA called it a ‘humiliating,
degrading and brutal invasion of the privacy and the person of the
victim’.
In Bailey v The State (454/11) [22012] ZASCA 154 (01
October 2012) Bosielo JA described the rape of young girls by their
fathers
as not only scandalous but morally repugnant to all right
thinking people. He expressed concern about the fact that rape of
young
girls by their fathers have ‘emerged insidiously in
recent times as a malignant cancer seriously threatening the
well-being
and proper growth and development of young girls. It is
an understatement to say that it qualifies to be described as a most
serious
threat to our social and moral fabric’. In S v SMM
2013 (2) SACR 292
(SCA) at 297 Majiedt JA expressed concern that our
country is facing a crisis of epidemic proportions in respect of rape
of particularly
young children and that there was increasing pressure
on our courts to impose harsher sentences to exact retribution and to
further
deter criminal conduct. In S v Abrahams
2002 (1) SACR 116
SCA at para [[17] Cameron JA in dealing with the rape of a minor by
her father was of the view that ‘of all the grievous
violations
of the family bond the case manifests, this is the most complex,
since a parent, including a father, is indeed in a
position of
authority and command over a daughter. But it is a position to be
exercised with reverence in the daughter’s
best interest, and
for her flowering as a human being. For a father to abuse the
position to obtain forced sexual access to his
daughter’s body,
constitutes deflowering in the most grievous and brutal sense’.
The learned judge emphasises later
in his judgment that rape within
the family has its own peculiarly reprehensible features, none of
which subordinate it in the
scale of abhorrence of other crimes.
Although the appellant was the uncle of the complainant, the above
sentiments find equal
application in the present case. Violent
crimes like rape and abuse of women and children in various guises
still occur unabated.
See Mashigo and Another v The State
(20108/2014)
[2015] ZASCA 65
(14 May 2015).
[28] It is now accepted law that where
there are no substantial and compelling circumstances in crimes like
the present, which fall
under s51(1), courts must not hesitate to
impose the ultimate sentence prescribed. In S v Malgas
2001 (1) SACR
469
(SCA) the SCA made it clear that a court should not permit itself
to be influenced by flimsy reasons, undue or maudlin sympathy
with an
accused or personal doubt regarding the effectiveness of the sentence
that has to be imposed as the legislature has decreed
that these
crimes warrant a ‘severe, standardised and consistent response
from the courts’. It is however important
to emphasise that
‘If the sentencing court on consideration of the circumstances
of the particular case is satisfied that
they render the prescribed
sentence unjust in that it would be disproportionate to the crime,
the criminal and the need of society,
so that an injustice would be
done by imposing that sentence, it is entitled to impose a lesser
sentence’. See Malgas supra
at par [25]. The crucial issue to
decide is whether the sentence of life imprisonment imposed by the
trial court was proportional
to the offence.
[29] In the present matter the trial
court took into account that the appellant was sixty-one (61) years
old and therefore of advanced
age and that he was unmarried.
Appellant had advanced to standard 3 at school and left school to
work to supplement his family’s
income. He has never had fixed
employment and was reliant on income from casual work. The trial
magistrate further took into
account that the appellant had suffered
a stroke and he had problems with epilepsy, ashma and arthritis.
[30] It is so that certain decisions of
our courts hold the view that the life sentence ordained by the
legislature should be reserved
for cases devoid of substantial
factors compelling the conclusion that such a sentence is
inappropriate and unjust. See S v Abrahams
(supra), S v Mahomotsa
2002 (2) SACR 435
(SCA), S v Nkomo
2007 (2) SACR 198
SACR, S v GN
2010 (1) SACR 93
(TPD), S v SMM (supra), S v Sikhipha
2006 (2) SACR
439
(SCA). All the cases referred to above involved rapes that fall
under s51(1) of the Act. In those cases the court, having considered
the facts, came to the conclusion that a sentence of life
imprisonment was disturbingly disproportionate to the offence to a
point
where it could be described as unjust. The court then imposed
various terms of imprisonment in respect of each of the cases in
place of the prescribed life imprisonment. It is however necessary
to emphasise that the cases referred to above ‘provide
guidelines not straightjackets’. See S v D
1995 (1) SACR
259(A)
at 260e. It is further important to bear in mind that no two
cases present exactly the same factual matrix and it is hard to
imagine
two accused persons who have exactly the same personal
circumstances. As stated by Bosielo JA in Bailey v The State (supra)
that
in cases involving rape ‘…it is unthinkable that
two different complainants in two different cases would manifest the
same physical, emotional or behavioural problems after the rape.
Evidently, these are important matters which must be considered
in
the determination of an appropriate sentence as they have direct
bearing on what an appropriate sentence should be. It follows
in my
view that the sentence in such matters will be different because of
the variation in personal circumstances of the accused,
the nature
and gravity of the offences and all other factors germaine to
sentencing’.
[31] When the aforesaid principles are
applied to the facts of this case then the following aggravating
features stand out. The
complainant was fourteen (14) years old at
the time of the rapes. The appellant was her uncle and occupied a
position of trust
with both herself and her parents. He flagrantly
abused his position of trust. The indications are that he planned
the rape.
He had left the house with the complainant at 07h00. He
must have known that the shops would not be open to buy the clothing
by the time they reached Bellville. On the pretext of going to a
friend, he lured her into the bush behind the Karl Bremer Hospital.
He had a knife and the plastic object in his backpack. He threatened
her with death and brutally raped her. I have no doubt
that the
complainant was severely traumatised by the incident. The
complainant suffered bruises to her vagina. Although no
expert
evidence was presented about the emotional and psychological impact
of the rapes on the complainant, there can be no doubt
that she was
not left unscathed by the brutal rape that she suffered at the hands
of the appellant.
[32] What is undoubtedly aggravating
is that the appellant has several previous convictions. Due to the
fact that he committed
diverse offences habitually over the years
from 1972 onwards, he was declared a habitual criminal in terms of
s286 of the Criminal
Procedure Act, Act 51 of 1977 on 13 December
1984. Of greater concern is the fact that he has three previous
convictions for rape
and one for attempted rape for which he was
respectively sentenced on 19 October 1977, 11 December 1979 and 5
June 2000. In addition
the appellant has been convicted and
sentenced for sodomy committed on 31 August 1984 and indecent assault
on 5 June 2000. In
regard to the rape and indecent assault which he
was convicted and sentenced for, the appellant was sentenced to
fifteen (15) years
and ten (10) years imprisonment respectively.
According to the form SAP69’s which contains his list of
previous convictions,
the sentencing court recommended at the time
that appellant not be considered for release on parole until he
served at least twenty
(20) years of the effective twenty-five (25)
years imprisonment imposed upon him. The appellant was released on
parole supervision
on 14 August 2012 until 8 September 2014. The
rapes in this matter was committed on 28 November 2013 whilst
appellant was on parole
supervision. On a consideration of his
previous convictions, it is clear that the appellant has a tendency
to commit rape and
other serious sexually related offences.
[33] The appellant’s previous
convictions indicate that he poses a serious threat to women and
children in society. He has
further shown that he is not deterred by
the lengthy terms of imprisonment that courts have imposed on him in
the past. According
to the form SAP69 the appellant was readmitted
to prison due to parole violations on four occasions since 10 July
1984. All the
indications are that he is unable to rehabilitate
himself within society. If consideration is given to the serious
aggravating
factors and the need to protect women and children in
society, I must agree with the trial magistrate that notwithstanding
the
appellants advanced age and his various illnesses, that those
circumstances do not qualify as substantial and compelling as
envisaged
by s51(3) of the Act. In the circumstances I am satisfied
that the sentence imposed is not shockingly inappropriate nor is it
so disproportionate as to be constitutionally offensive. It follows
that I am unable to find any misdirection on the part of the
trial
magistrate in regard to the life sentence imposed on the appellant.
In the result there is no basis to interfere with the
sentence.
[34] There is an aspect of this matter
which in my view warrants some comment. It is now accepted law that
a sentencing court must
be proactive and ensure that he or she is
fully informed of all the facts which impact on the accused, for
example his family history,
upbringing, career, his psycho emotional
well-being, his moral and ethical standards and any other factors
which may have had an
influence on him or her committing the crime
for which he or she is convicted. See Mashigo and Another v The
State (supra) para
35. It is however also necessary for the
sentencing officer to have a complete and balanced picture about the
impact of the crime
upon the victim and his/her family. For this
reason a sentencing officer must as a matter of course, in matters
such as this,
request a victim impact report, to inform him or her of
the victim, her family history, upbringing, career and crucially, the
impact
and effect of the offence on his or her family. There can be
no doubt that such reports enable a sentencing officer to give proper
consideration to a whole range of sentencing options to enable
him/her to decide on a sentence which is balanced, fair to both
the
accused and the victim, whilst taking into account the moral
indignation of the community.
[35] In matters of this nature the
victim is the focal point and the goal must be to give proper
consideration to the physical,
emotional, psychological impact of the
crime on the victim. On a consideration of the record it is
disturbing that notwithstanding
the seriousness of the offence and
particularly considering that life imprisonment is prescribed by the
legislature, that no victim
impact report was prepared for the court,
nor was proper evidence presented by an expert on the emotional and
psychological impact
of the rape on the complainant or her family.
It does not appear that the complainant was assessed for trauma
arising from the
rapes nor was she or her family subjected to therapy
by suitably qualified experts. It is with great concern that I have
noted
that in appeals which have come before me in recent times that
prosecutors in the regional courts have adopted the practice of
substituting victim impact reports, prepared by experts, with what is
known as a victim impact statement, at the sentencing stage.
In the
present matter, the victim impact statement was signed by the victim
on 8 December 2014 even though the offence was committed
on 28
November 2013. Of course it is important that the victim is allowed
to express his/her personal views of the impact of the
rape or sexual
assault on him/her and that the sentencing court must give proper
consideration to the views of the victim when
considering an
appropriate sentence. There can however be no doubt that a victim
impact statement and a victim impact report prepared
by an expert can
never be placed on the same footing. In the present matter the
prosecution gave no explanation as to why a victim
impact report was
not prepared or presented to the court nor did the trial magistrate
request one. In S v Ganga (A345/2015
[2015] ZAWCHC 171
(18 November
2015), an appeal to this court against the imposition of a life
sentence by the same regional court, I expressed concern
about this
worrying trend of relying on victim impact statements instead of
properly prepared expert victim impact reports at the
sentencing
stage. In this matter the complainant should have been assessed by a
suitably qualified expert to determine the impact
of the
psychological, emotional, physical and other trauma that she suffered
on the date the rape was reported or at the least
very shortly
thereafter. In the event where follow up treatment or therapy was
required, it should have been implemented and the
complainant and/or
victim should have been monitored so that whatever reports were
prepared could be supplemented or amended so
that they could be
presented to the court at the sentencing stage. Depending on the
circumstances of the case, it may also be
necessary that victim
impact reports be prepared in respect of the family members of the
victims.
[36] Considering the constitutional
principle that the best interest of the child is paramount,
prosecutors have an obligation to
obtain a properly prepared victim
impact report in respect of a child victim of rape or sexual assault
and they are required to
approach matters of this nature with
thoughtful preparation, patient and sensitive presentation of all the
available evidence with
meticulous attention to detail. See S v
Vilakazi (supra) at para [21]. Failure to do this will result in a
disservice to the
victims of such crimes and result in a situation
where a sentencing court will be unable to make a proper assessment
of the psychological
and emotional trauma suffered by victims in
cases of this nature for the purposes of deciding on an appropriate
sentence.
[37] In the result I propose the
following order:
1. The appeal against the conviction
and the sentence of life imprisonment is dismissed.
2. The Registrar of this court is
directed to send a copy of this judgment to the Director of Public
Prosecutions, Western Cape.
3. The Director of Public Prosecutions,
Western Cape is hereby directed to cause the complainant and her
family to be assessed immediately
by a suitably qualified expert with
the view to preparing a report on the psychological, emotional and
other related trauma suffered
as a result of the crime and with the
involvement of the Department of Social Services and Welfare put in
place such program of
therapy as may be required by the complainant
and or her family.
4. Once effect has been given to the
direction contained in paragraph 3 hereinbefore, the Director of
Public Prosecutions is requested
to provide this court with a report
about its implementation.
RILEY, AJ
I agree and it is so ordered.
SALDANHA, J