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[2016] ZAWCHC 161
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M.B v S (A447/2015) [2016] ZAWCHC 161 (9 September 2016)
IN THE HIGH COURT OF SOUTH AFRICA
(
WESTERN CAPE DIVISION, CAPE TOWN
)
CASE
NUMBER
: A447/2015
DATE
: 9
SEPTEMBER 2016
In the
matter between:
M
B
Appellant
and
THE
STATE
Respondent
JUDGMENT
BOQWANA,
J
:
The
appellant was convicted of rape of his 9 year old daughter by the
Khayelitsha Regional Court and sentenced to life imprisonment
on 20
August 2015. He had pleaded not guilty to the charge but later
made formal submissions in terms of
s220
of the
Criminal Procedure
Act, 51 of 1977
effectively admitting to all the elements of the
crime. In view of these admissions witnesses were not called, a
J88 and
the child’s birth certificate were handed in and he was
convicted on the strength of his admissions. He has exercised
his automatic right of appeal.
The
conviction arose from an incident that took place on 16 November 2013
at Mandela Park in Khayelitsha. The appellant states in
his
admissions that on the day of the incident the complainant’s
mother was not at home. He was left alone with the
complainant
and her four year old sister. The three of them all slept on
the same bed. While the complainant was asleep,
the appellant
undressed her and inserted his penis in her vagina. The
complainant told him it was painful and he immediately
stopped what
he was doing. He further states that on a previous occasion he
indicated that he would not plead guilty but
his conscience did not
allow him to subject his child to secondary traumatisation by
testifying in court. In the J88 the
doctor stated that there
were external injuries and that the child was withdrawn and quiet.
He concluded that the child had
clinical findings that were in
keeping with previous attempt to penetrate her vagina with a blunt
object. The Magistrate
held that because the doctor was not
called to clarify his findings, she would not put much emphasis on
the J88.
Having
considered the record of the proceedings and the admissions, I am
satisfied that the appellant was convicted correctly.
As
regards sentence, it is submitted on behalf of the appellant that the
Magistrate misdirected herself, firstly, by finding that
no
substantial and compelling circumstances existed to deviate from the
prescribed minimum sentence even though the appellant was
regarded as
a first offender for the purposes of sentence, was kept in custody
for the duration of the trial for 1 year 9 months
and had admitted to
all the elements of the crime. Secondly, by finding that the
interest of the child and the society outweighed
the personal
circumstances of the appellant.
The
State also submitted that the sentence is disproportionate and the
appeal must be upheld, the State however retracted that position
during oral argument. In any event, the Court is not bound by
the State’s concession. It is entitled to make
its own
findings based on what it deems just and appropriate in the
circumstances.
In
Director of Public Prosecutions v Thabethe
2011 (2) SACR (SCA)
at para 16 the Court held thus:
“
As far as back as 1997 the late Mohamed, CJ
described rape in
S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 5b as follows: ‘rape
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’.
It is regrettable that notwithstanding this
observation the rate of rape in the country has reached pandemic
proportions.
It is no exaggeration to say that the rape has
become a scourge or a cancer that threatens to destroy both the moral
and social
fabric of our society.
What is more disturbing is the emergence of a
trend of rapes involving young children which is becoming endemic.
A day hardly
passes without a report of such egregious incidents.
Public demonstration by concerned members of the society condemning
such acts has become a common feature of our every day news through
the media. In many instances such young, defenceless and
vulnerable girls are raped by close relatives, like in this case, a
person whom she looked upon as a father. Cameron, JA
describes
this kind of rape as follows in
S v Abrahams
2002 (1) SACR 116
(SCA) para 17 as follows: ‘…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 in command over a daughter. But it is a position
to be
exercised with reverence, in a daughter’s best interest, and
for her flowering as a human being. For a father
to abuse that
position to obtain forced sexual access to his daughter’s body
constitutes a deflowering in the most grievous
and brutal sense.
That is what occurred here, and it constituted an egregious and
aggravating feature of the accused’s
attack upon his daughter”.
Ms
Kuun submitted that the appellate Court’s powers are not
fettered to reconsider the issue of a disproportionate sentence.
In the alternative she referred us to a number of cases which she
argued had similar facts where the sentence imposed was found
to be
shocking or startling. It has become common to cite this line
of cases. While it may be useful to look at how
other cases
treated sentencing, it must be remembered that the sentencing depends
on the circumstances of a particular case and
lies within the
discretion of a trial court. As it was held in the often quoted
case of
S v Malgas
2001 (1) SACR 469
(SCA) at 478D-E:
“…
A court exercising appellate
jurisdiction cannot, in the absence of material misdirection by the
trial Court, approach the question
of sentence as if it were the
trial court and then substitute the sentence arrived at by it simply
because it prefers it.
To do so would be usurp the sentencing
discretion of the trial Court….”
With
regard to the personal circumstances of the appellant, the following
are relevant. He is a first offender. He originates from
Genadendal
in the Western Cape. He was 44 years old at the time of sentencing.
He grew up with his parents before leaving them
for Cape Town in
search for job opportunities. He is married to the complainant’s
mother having met her in 2003. The couple
have two children and the
complainant is the older of the two. He was working as a security
officer when the incident happened
and reported to have been the
breadwinner. He left school in Grade 9.
A
victim impact report was submitted. In
S v Matyityi
2011
(1) SACR 40
(SCA) paras 16 and 17, the Supreme Court of Appeal
emphasised the importance of accommodating the victim during the
sentence process.
It is conveyed in the report that from the
psychological impact point of view, the complainant’s mother
reported that ever
since the incident, the complainant would scold
her younger sister when she is not wearing a panty at home; her
mental health and
that of her mother appear to be good; the family
was in shock about what happened but there were no conflicts.
The family
has kept the matter private from the community to avoid
gossip. According to the social worker the victim is coping
well
and does not show signs of traumatic stress. She was
however shy to talk about the incident but did speak out. She
did not want her mother to leave the interview room when she was
talking about the incident. The complainant had only been
to
one counselling session before the interview but the social worker
re-referred her and the mother for more sessions.
Something
disturbing is revealed in the report although I cannot dwell on it as
it was not led in evidence. The child told the social
worker that it
was not the first time that the father raped her, even on the
previous occasion her mother had left her with the
appellant she told
the social worker that when the incident of 16 November 2013
happened. The appellant undressed himself; he took
off her panties
and raped her. She cried and the younger sister woke up and
that is when the appellant stopped. Rape
of a daughter by her
father is appallingly ghastly. A daughter shares a close bond
with a father. He is the man she
should look up to for
nurturing and for him to provide her with security, dignity,
stability and protection.
In
this case it was reported that the complainant was close to her
father and by raping her he had betrayed her trust.
His
wife also trusted him, as she should because he is the father of the
child, by leaving him with the children, not knowing that
she was
giving him an opportunity to violate one of them. It must be a
horrifying experience for a child to be raped by her
father inside
her home, whilst sleeping on the same bed, who ought to be her number
one protector and shield from criminals and
thugs.
The
act of rape by itself is heinous but it is more dreadful when a
person the child is expected to run to is the one who betrays
the
trust by breaking her right to dignity in the privacy of their home.
Where should children go if they cannot be safe
in their own home?
What precautions can anyone take when they are inside their home?
These offences happen all too frequently in our communities.
Our courts hear these matters ever so often. What is becoming
of our society where adults attack defenceless children who are in
subservient positions, stripping them of their innocence?
A
tendency has developed where it is often argued that rapes that do
not involve physical injuries or that did not involve violence
or
where no apparent emotional scars are shown is less heinous.
Sight is lost to the fact that even though no violence is
used to
threaten the victim, like in this case, a child would often relent
because the person committing the act on her is in a
position of
authority. Thus, the argument that circumstances under which
the rape occurred, such as those in this case, must
favour the
appellant because it is less heinous must be rejected. To the
contrary, they are more horrendous.
Although
the victim impact report may appear not to note any serious
psychological impact, the fact that the complainant shouts
at her
sister when she is not wearing a panty at home since the incident
occurred, indicates how she was affected by the ordeal,
to the point
that she feared that her younger sister might also be vulnerable at
home. It must be accepted that this horrifying
experience would
have deep and lasting psychological scars for the complainant.
She was robbed of her innocence at a very
young age in a cruel
manner. While she was reportedly coping, she was shy to talk
about the incident. An assumption
cannot be made that she was
left less unscathed emotionally. See
S v GN
2010 (1)
SACR 93
(T).
Minimum sentences were introduced for a reason. The legislature
ordained life imprisonment for the rape of young children.
As
has been stated by our Courts many times, following
S v Malgas
,
the prescribed minimum sentences should ordinarily and in the absence
of weighty justification, be imposed. The Court may
impose a
lesser sentence if on consideration of circumstances of the
particular case, it is satisfied that they render the prescribed
sentence unjust in that it would be disproportionate to the crime,
the criminal and the needs of society, so that an injustice
would be
done by imposing that sentence. In my view the cumulative
effect of the personal circumstances of the appellant,
including that
he is a first offender, are far outweighed by the gravity and the
circumstances of the offence. I therefore agree
with the conclusion
of the Regional Court that substantial and compelling circumstances
are not present to justify a departure
from the prescribed minimum
sentence. The appellant has made himself guilty of a very
serious crime and he must face the
consequences. Perpetrators
need to be held responsible for their deeds, if this scourge is to be
fought. Such offences
should never reach a level where they are
accepted as normal in our society. For those reasons,
I AM OF
THE VIEW THAT THE APPEAL SHOULD FAIL.
__________________
BOQWANA,
J
I
agree and it is so ordered.
__________________
LE GRANGE, J