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[2016] ZAWCHC 204
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S v Amerika (CC22/2016) [2016] ZAWCHC 204; 2017 (1) SACR 532 (WCC) (13 December 2016)

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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
REPORTABLE
CASE
NUMBER:
CC22/2016
In
the matter between:
THE
STATE
versus
JEROME
AMERIKA
ACCUSED
JUDGMENT
ON SENTENCE DELIVERED ON 13 DECEMBER 2016
Henney,
J:
Introduction
[1]
The court in considering an appropriate sentence must have regard,
and take into consideration the aims of punishment, which
are
deterrence, retribution, rehabilitation and prevention. During the
sentencing process the court should never lose sight of
the element
of mercy. In
S
v Rabie
[1]
1975 (4) SA 855
A.D.
at
862
D-F
Holmes
JA
said
the following in this regard:
“
[…] with
particular reference to the concept of mercy-
(i)
It is a balanced and humane state of
thought.
(ii)
It tempers one’s approach to the
factors to be considered in arriving at an appropriate sentence.
(iii)
It has nothing in common with maudlin
sympathy for the accused.
(iv)
It recognises that fair punishment may
sometimes have to be robust.
(v)
It eschews insensitive censoriousness in
sentencing a fellow mortal, and so avoids severity in anger.
(vi)
The measure of the scope of mercy depends
upon the circumstances of each case.”
[2]
The court further has to strive to balance, which means it has to
consider all the facts, factors and circumstances evenly for
the
attainment of the aims of punishment as set out above. These facts,
factors and circumstances should furthermore include the
personal
circumstances of the accused; the offence, taking into account all
the things which had been committed (which includes
the circumstances
under which it had been committed); as well as the interest of
society. In considering the aforementioned factors,
the court, should
at all times strive to impose a proportionate sentence without over
or under emphasising any of these circumstances
at the expense of the
other.
The
personal circumstances of the Accused
[3]
The accused is 23 years of age. He was born and grew up in Riebeeck
West, with his mother. At a later stage, he moved to Paarl
and came
to live with his father. He is the youngest of 4 children and has no
contact with his mother. During his evidence in court,
he testified
that he did not go to school, but when his cousin Charlotte Adams
came to testify on his behalf, she said that he
attended the same
primary school as her. According to her when he came to Paarl, he was
in grade 7, or standard 5 and she was in
grade 9, or standard 7.
Further, according to her, if he says that he did not go to school he
is not telling the truth.
[4]
During the sentencing proceedings, the court took this up with his
legal representative Advocate Theunissen who conveyed to
this court
that he took instructions from the accused regarding this issue. He
informed the court that the accused told him that
although he was
enrolled at school, he did not attend school.
[5]
The accused is the father of a child that was born out of a
relationship with H. Claassen, the complainant on count 1, 2 and
3,
who is also the stepsister of the deceased. It seems that this child
is well cared for by H. and the other members of her family.

According to the evidence which is uncontested, the accused also did
not pay any maintenance or supported this child. He has two
previous
convictions, one for possession of dagga and one for housebreaking
with the intent to steal and theft. These offences
were committed
respectively on 31 December 2012 and 18 June 2013. In both instances
he was sentenced to a non-custodial sentence
as reflected on his SAP
69’s.
The
offences in respect of H. C.
[6]
In my view, a distinction should be drawn between the offences
committed against H., and those which were committed by the accused

against the deceased, S., especially with regards to the
circumstances under which these respective offences were committed.
These
offences, in respect of both incidents and in respect of both
persons, are very serious. All of the offences, except that of
kidnapping,
attract a prescribed sentence in terms of the
Criminal
Law Amendment Act 105 of 1997
. I will deal with the offences
committed against the deceased, S., at a later stage.
[7]
It is common cause that in or during 2012 the accused and H. became
involved in a romantic relationship out of which a child
was born.
According to H.’s evidence, after the birth of the child, the
accused started to physically abuse her on a regular
basis. This
consisted of slapping, kicking her, and physically assaulting her by
other means, as described in her evidence. As
a result of this,
during 2013, she went to the Magistrate’s court to obtain a
protection order to prevent the accused from
further abusing her.
[8]
At that stage, she only went so far as to obtain an interim
protection order and did not seek to have the order made final.
She
said that she did this because the accused promised not to engage in
any act of assault or abuse against her. Notwithstanding
these
promises, according to her evidence, such incidents recurred again.
There were times when she ended the relationship, but
each time
thereafter he would come back and promise that he would not abuse her
again. She testified in court that she was afraid
of him, at the
times this happened.
[9]
At the time when the accused kidnapped and raped H. during April
2015, he first came to her house, on the evening of 6 April
2015, and
threatened her with an axe that he had in his possession. He wanted
to resume the relationship that he previously had
with her.
Thereafter he left and the following day, 7 April 2015, while she was
on her way to work, he once again approached her
and told her that
she must shut up or otherwise, he is going to assault her with the
axe. Then he assaulted her with a stick, before
forcing her to walk
with him, where after he proceeded to rape her, twice.
[10]
The following day, 8 April 2015, she went to the Magistrate’s
court to obtain a protection order that was granted to
her.
Thereafter she did not have any contact with him until they resumed
their relationship in November 2015. Shortly after that,
the accused
moved in at […] I. Street, Groenheuwel, Paarl East. In her
evidence in court, she said that after he asked her
to take him back
and made promises to her, she once again had forgiven him for what he
had done to her.
[11]
The rape, assault and kidnapping of H. were a gross violation of her
freedom of movement, physical integrity, dignity and privacy.
The
accused showed no regard for her rights. He thought, even in court,
with the attitude he displayed when testifying, that he
could do with
her as he pleases. This was evident when he was asked what he thought
after he had assaulted and forced her to accompany
him and there
after he had sexual intercourse with her.
[12]
He thought there was nothing wrong in demanding that she have sexual
intercourse with him. This was the type of attitude the
accused
displayed towards H.. This treatment of her was inhumane and callous.
I agree with the prosecutor that the accused is a
serial abuser and
that little regard should be given to the feeble apologies he had
made to H. every time he had abused her. By
displaying this attitude,
he clearly regarded H. as his property. When H. testified what became
evident was the fact that she was
humiliated by this incident and
felt a sense of betrayal, through the actions of the accused.
[13]
This is clearly a case that is akin to what is known as spousal
abuse, even though the accused and H. were in an extramarital

relationship. Many studies and research has been conducted on this
kind of abuse, such as has been evident in this case, between
spouses
as well as people involved in dating relationships. In a paper
entitled
Spousal
Abuse
dated
May
2011
[2]
the following has been said:  “
Spousal
abuse often occurs in relationships that are romantic in nature and
where when one partner seeks to dominate and exert power
over the
other. In doing so, the relationship often deteriorates and may
become violent. Emotional, verbal, psychological, financial,
physical
and sexual abuse is common in such relationships.  Spousal abuse
can occur in husband-wife relationships, dating
relationships, with
common-law spouses and also in same-sex relationships.”
[3]
And
further: “
Many men have come to believe that violence
against a women, child or another man is an acceptable way to control
another person.
Historically,
women were considered the property of men. It was only decades ago
that a husband was legally able to beat his wife
with a stick as long
as it was not thicker than his thumb. It has only been 20 years that
it has been a crime for a man to rape
his wife”
[4]
As
to why men behave in this manner, in the same study, it has been
concluded that: “
Many
theories have been developed to explain why some men use violence
against their partners. These theories include: family dysfunction,

inadequate communication skills, stress, chemical dependency, lack of
spirituality and economic hardship. These issues may be associated

with battering of woman, but they are not the causes. The batterer
begins and continues his behaviour because violence is an effective

method for gaining and keeping control over another person and he
usually does not suffer adverse consequences as a result of his

behaviour. In other words, it gets him what he wants. It ensures his
partner will not leave him.”
[5]
[14]
In this study, they also reflect on some of the reasons why women are
unable to leave violent relationships. These include
fear, shame,
lack of resources, lack of finances/economic reality, lack of
housing, children, feelings of guilt, promises of reforms,
sex-role
conditioning, societal acceptance/reinforcement of violence to
women/wives, and love for the spouse.
[6]
In this particular case, H. indicated these were some of the reasons
as to why she went back to the accused, more particularly,
where he
promised that he would change and she also said that one of the
reasons why she went back to the accused was that she
loved him, at
one stage.
[15]
I also agree with the notion as pointed out in the study that it is a
myth that women stay in violent relationships because
they are
masochistic and that such a theory is insulting to victims of abuse
because no one wants to be beaten by someone who is
supposed to love
and support them.
[7]
In in this
particular case, the accused exhibits some, if not most, of the
characteristics of a batterer or abuser, while H. on
the other hand,
exhibits some characteristics of a person that is a victim of abuse.
[16]
The consequences and effects of spousal abuse or partner abuse,
albeit in another context, had been given judicial recognition
in
this country in
Ferreira
and others v S
[8]
as a consideration to determine whether there are substantial and
compelling circumstances to deviate from a prescribed sentence,
in
the case where a victim who had been found guilty of murder had been
subject to spousal abuse over a prolonged period of time,
and who
murdered her partner.
[17]
In
Ferreira
,
the Supreme Court of Appeal in recognising the plight of abused women
said the following at para 40: “
It
is something which has to be judicially evaluated not from a male
perspective or an objective perspective but by the court’s

placing itself as far as it can in the position of the woman
concerned, with a fully detailed account of the abusive relationship

and the assistance of expert evidence […]”.
And
further goes on to say that “’
Sexual
violence and the threat of sexual violence goes to the core of
women’s subordination in society.’
[9]
It also, therefore, means having regard to an abused woman’s
[…] constitutional rights to dignity, freedom from violence

and bodily integrity that the abuser has infringed.”
[10]
In
this particular case, and in contrast to the
Ferreira
case, the perpetrator is the abuser and not the victim of abuse.
[18]
This is not an ordinary rape case, where the rapist would usually not
be as intimately involved with his victim; where the
victim did lay a
charge with the police; where the victim had not forgiven the rapist;
where the rape victim immediately wanted
the rapist to be prosecuted
and pay for his deeds. Instead, this is a case where the victim did
not desire that a prosecution be
instituted against the perpetrator.
It is a case that seldom or ever lands before the court and the very
first of the numerous
rape matters, I as a judicial officer, had
dealt with, due to the relationship between the perpetrator and
victim. The complainant
in this matter rather sought to deal with
this matter in a different manner by acquiring a protection order
against the accused.
[19]
This is a situation in which many woman in this country find
themselves in, and that is why spousal rape or rape between partners

are seldom, if ever, reported to the police. In this particular case
the crime of rape was committed by the accused, and the mere
fact
that it had not been reported by the complainant to the police does
not normalise or decriminalise the conduct of the accused
or other
perpetrators like him. It also does not decriminalise or normalise
the act of rape, where he or other perpetrators like
him in similar
situations where women in an abusive relationship did not report the
incident after it had been perpetrated on them.
Where they had
forgiven the perpetrator and continued to live with him as if nothing
had happened.
[20]
This is indeed a rare case which would not ordinarily have found its
way into a criminal court in which the rapist would be
prosecuted. In
Holtzhauzen
v Roodt
,
[11]
Satchwell
J
says
the following in the context of an “
ordinary
rape”
and
the unique characteristics and nuances underlying the crime of rape:
“
Rape
has frequently been described as a crime which seldom sees the light
of day, let alone comes before the scrutiny of our
courts. Rape
victims or rape survivors have usually endured their experience in
silence, and the particular and somewhat unique
character and
features of rape have long gone unstudied. They have certainly gone
unappreciated by our courts.
In
the United States of America new legislation pertaining to the
admissibility of evidence of previous rape allegations has

recently been passed by the US congress. In an interesting article
entitled 'Once a Rapist, Motivational Evidence and Relevancy
in Rape
Law' in the 1997 (110) No 3 Harvard Law Review, Professor Baker
of Chicago Kent College of Law commented as follows.
What she says is
not new, is obvious and yet it deserves repeating:
'All
rapes are not alike. They are not alike in the eyes of the men who
commit them, and they are not alike in the eyes of the jurors
and the
public who judge them. The degree to which different kinds of rape
adversely affect victims is still an open enquiry, but
it is all too
obvious that the perpetrators of rape and the public at large
view rape along a complex spectrum of permissibility.
All rapes are
in part about sex and masculinity and domination. But some rapes are
predominantly about sex. Some rapes are predominantly
about
masculinity, and some rapes are predominantly about domination.'
This
article argues that we cannot adequately address either the
evidentiary problems in rape cases or the issues central to
rape
reform unless we begin to recognise and incorporate the rather
obvious insight that not all rapes are the same.
Indeed
it is probably trite to say that the capacity for human experience is
so infinite and unpredictable that no crime is
quite the same as
another. Each case must be assessed and an attempt must be made to
understand it on its own particular and unique
facts.
However,
rape is an experience of the utmost intimacy. The victims or
survivors thereof are largely confined to the female sex.
I have
heard the response of such survivors generically described as 'a
scream from silence'. The result has been a paucity
of South African
legal and judicial understanding and commentary on the full
parameters and implications of this phenomenon. Rape
is an experience
so devastating in its consequences that it is rightly perceived as
striking at the very fundament of human, particularly
female,
privacy, dignity and personhood. Yet, I acknowledge that the
ability of a judicial officer such as myself to fully
comprehend the
kaleidoscope of emotion and experience, of both rapist and rape
survivor, is extremely limited.”
I
agree with the above sentiments expressed by the learned judge. In my
view the remarks are very pertinent and applicable to this
case.
[21]
Given the unique and somewhat unusual circumstances of this case an
argument may therefore be made out that, due to the situation
in
which the victim found herself, in firstly deciding not to lay a
criminal complaint against the perpetrator, secondly by having

forgiven the perpetrator, and by subsequently having resumed the
relationship with the perpetrator, that such conduct may serve
as a
mitigating factor or a consideration to conclude whether there are
substantial and compelling circumstances to deviate from
the
prescribed sentence. Would it be in the interests of justice for a
court do so, where the victim acted in such a manner due
to the abuse
that she had been subjected to?
[22]
In my view, I do not think it can be regarded as a mitigating factor
or as a consideration to conclude whether there are substantive
and
compelling circumstances to deviate from the prescribed sentence.
This would clearly send out the wrong message and would be
contrary
to the values of the Constitution. It would furthermore undermine the
dignity and humanity of abused women in this country.
It would send
out the message that men who make themselves guilty of spousal abuse
or partner abuse by raping their partners will
escape the full might
of the law. In my view, rape committed in the context of an abusive
relationship, should be regarded as an
aggravating factor in the
consideration of an appropriate sentence.
The
offences perpetrated against the deceased
[23]
It is difficult to find words to describe the conduct of the accused,
when he perpetrated the murder and rape of this young
and innocent
child. It is only a coward and someone with no conscience who can act
in such an inhumane manner. It borders on predatory
behaviour. The
only inference that one can draw from the facts and circumstances of
this case is that the accused waited like an
opportunistic predator
for the deceased, a young defenceless girl to be left on her own, so
that he can pounce upon her, after
which he committed these
abhorrent, callous and horrendous deeds.
[24]
I have referred to the medical evidence during my earlier judgment in
respect of the serious and gruesome injuries the deceased
has
sustained especially to her private parts. The accused clearly
smothered the deceased and there after strangled her so that
she
could not scream for help or assistance. He perpetrated the offences
in the most conniving and underhand manner so that he
could not be
detected. He kept the lifeless body of this young child, under his
control and hid it away in such a manner, that
no other person after
having searched the premises could find her body. It was only after
the body started to decompose and there
was a strong smell that it
was found. This he did full well knowing that the family of the
deceased were aguishly trying to find
her. This is nothing but
inhumane and barbaric conduct on the part of the accused and shows
the utter disregard he had for the
sanctity of human life.
Interests
of society
[25]
It has almost become a daily occurrence in this country of ours that
young children are brutally murdered, after they had been
sexually
abused in a violent manner, as happened in this case. It is something
that has to come to a stop sooner rather than later.
No
self-respecting society can allow children to be killed and maimed in
such a brutal manner. The accused has not only murdered,
this young
child, but the soul and being of her parents and relatives. The court
could feel the emotion and felt deep empathy for
the hurt and sorrow
they have suffered, and that where they are still trying to come to
terms with this awful tragedy which was
caused at the hands of the
accused. Whatever punishment this court should impose will not and
cannot make up for the deep loss
they have suffered and are still
suffering.
[26]
Society demands that wanton criminal acts as displayed by the accused
should not be left unpunished. It demands of the courts
to send out a
clear and strong message that such acts of criminality will not be
countenanced and further demands that the strictest
and severest
punishment should be meted out to individuals such as the accused. It
is also for these reasons that the law has prescribed
certain
sentences that the court should impose in cases like these.
[27]
In respect of the rape committed against H., which is “rape”
in terms of section 3 of SORMA,
[12]
where the victim was raped more than once by the accused and which
also included the infliction of grievous bodily harm a sentence
of
life imprisonment is prescribed. If the court finds that there are no
substantial and compelling circumstances to deviate from
such a
sentence.
[28]
In respect of 2 counts of rape of the deceased, S., as contemplated
in section 3 of SORMA,  where the rape was committed
were the
victim is a person under the age of 16 years and also involving the
infliction of grievous bodily harm, a sentence of
life imprisonment
is also prescribed in terms of Act 105 of 1997. This is also the case
where the victim was raped more than once
by the accused.
[29]
In respect of the murder charge, it seems according to the evidence
that the murder of the victim was caused after the accused
had
committed the offence of rape as contemplated in section 3 of SORMA.
In such a case, just as in the rape of the deceased, a
sentence of
life imprisonment should also be imposed.
[30]
In terms of
section 51
(3) of the
Criminal Law Amendment Act, the
court must impose the prescribed sentence unless there is substantial
and compelling circumstances to deviate from such prescribed

sentence. The approach a court should follow in determining whether
there are substantial and compelling circumstances present,
had been
laid down in the oft quoted
S
v Malgas
:
[13]
“
B.
Courts
are required to approach the imposition of sentence conscious that
the Legislature has ordained life imprisonment (or the
particular
prescribed period of imprisonment) as the sentence that should
ordinarily and in the absence of weighty justification
be imposed for
the listed crimes in the specified circumstances.
C. Unless there are,
and can be seen to be, truly convincing reasons for a different
response, the crimes in question are therefore
required to elicit a
severe, standardised and consistent response from the courts.
D. The specified
sentences are not to be departed from lightly and for flimsy reasons.
Speculative hypotheses favourable to the
offender, undue sympathy,
aversion to imprisoning first offenders, personal doubts as to the
efficacy of the policy underlying
the legislation, and marginal
differences in personal circumstances or degrees of participation
between co-offenders are to be
excluded.
E. The Legislature has
however deliberately left it to the courts to decide whether the
circumstances of any particular case for
a departure from the
prescribed sentence. While the emphasis has shifted to the objective
gravity of the type of crime and the
need for effective sanctions
against it, this does not mean that all other considerations are to
be ignored.
F. All factors (other
than those set out in D above) traditionally taken into account in
sentencing (whether or not they diminish
moral guilt) thus continue
to play a role; none is excluded at the outset from consideration in
the sentencing process.
G. The ultimate impact
of all the circumstances relevant to sentencing must be measured
against the composite yardstick (‘substantial
and compelling’)
and must be such as cumulatively justify a departure from the
standardised response that the Legislative
has ordained.
H. In applying the
statutory provisions, it is inappropriately constricting to use the
concepts developed in dealing with appeals
against sentence as the
sole criterion.
I. 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 needs of
society, so that an injustice
would be done by imposing that
sentence, it is entitled to impose a lesser sentence.
J. In so doing,
account must be taken of the fact that crime of that particular kind
has been singled out for severe punishment
and the sentence to be
imposed in lieu of the prescribed sentence should be assessed paying
due regard to the bench mark which
the Legislature has provided.”
[31] The accused has not
taken the court into his confidence. He tried to mislead the court,
and the court had difficulty in accepting
what the true circumstances
and facts of this case was which led to the rape and murder of the
deceased. The accused has shown
no remorse for his actions, in
respect of all the offences he has committed. In
S
v Matyityi
,
Ponnan
JA
had
the following to say on this aspect:
[14]
“
There is,
moreover, a chasm between regret and remorse.  Many accused
persons might well regret their conduct, but that
does not without
more translate to genuine remorse. Remorse is a gnawing pain of
conscience for the plight of another. Thus genuine
contrition can
only come from an appreciation and acknowledgement of the extent of
one's error. Whether the offender is sincerely
remorseful, and
not simply feeling sorry for himself or herself at having been
caught, is a factual question. It is to the
surrounding actions of
the accused, rather than what he says in court, that one should
rather look. In order for the remorse to
be a valid consideration,
the penitence must be sincere and the accused must take the court
fully into his or her confidence. Until
and unless that happens,
the genuineness of the contrition alleged to exist cannot be
determined. After all, before a court can
find that an accused person
is genuinely remorseful, it needs to have a proper appreciation of,
inter alia: what motivated the
accused to commit the deed; what has
since provoked his or her change of heart; and whether he or she
does indeed have a true
appreciation of the consequences of those
actions.”
[32]
None of these circumstances and facts are applicable because the
accused has steadfastly refused to take responsibility for
his
actions especially in regard to the deceased. In both instances, the
violence was perpetrated towards a woman and a girl child.
And in
considering an appropriate sentence, the court takes into
consideration what
Wallis
JA
said
in
Director
of Public Prosecutions, Western Cape v Prins and Others
:
[15]
“
No judicial
officer sitting in South Africa today is unaware of the extent of
sexual violence in this country and the way in which
it deprives so
many women and children of their right to dignity and bodily
integrity and, in the case of children, the right
to be
children; to grow up in innocence and, as they grow older, to awaken
to the maturity and joy of full humanity. The rights
to dignity and
bodily integrity are fundamental to our humanity and should be
respected for that reason alone. It is a sad reflection
on our world,
and societies such as our own, that women and children have been
abused and that such abuse continues, so that their rights

require legal protection by way of international conventions and
domestic laws, as South Africa has done in various provisions
of our
Constitution and in the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007 (the Act).”
[34]
This court is not convinced that there are substantial and compelling
circumstances to deviate from the prescribed sentence
of life
imprisonment in respect of all the offences for which such a sentence
prescribed. Given the totality of the circumstances
of this case
which includes his personal circumstances as well as the
circumstances relating to the offence and the interests of
society,
the only appropriate sentence, the court can impose is one of
long-term imprisonment which would have the effect to permanently

remove the accused from society. In fact in cases like this,
retribution and deterrence to comes to the fore, whilst
rehabilitation,
will play a relatively smaller role.
[35]
I, therefore, impose the following sentence on the accused:
Count 1: kidnapping of
H.: The accused is sentenced to Three (3) years’ imprisonment;
Count 2: the first Rape
of H.: life imprisonment;
Count 3: the second Rape
of H.: life imprisonment;
It is ordered that the
sentences imposed on counts 1 to 3 run concurrently.
Count 4: the kidnapping
of the deceased, S.: Three (3) years’ imprisonment;
Count 5: the first Rape
of the deceased, S.: life imprisonment;
Count 6: the second Rape
of the deceased, S.: life imprisonment;
Count 7: the Murder of
the deceased, S.: life imprisonment.
It is ordered that the
sentences imposed on counts 4 to 7 run concurrently.
In terms of
section 103
of the
Firearms Control Act 60 of 2000
the accused is declared unfit
to possess a firearm.
In terms of the
provisions of
section 50
(2) (a) (i) of the SORMA, I make an order
that the particulars of the accused be included in the register of
sexual offenders.
_____________________
JUDGE
OF THE HIGH COURT
RCA
HENNEY
[1]
1975 (4) SA 855
(A) at 862D-F.
[2]
Issued by the Canadian Resource Centre for Victims of Crime: May
2011 at 2.
[3]
Spousal Abuse
n
2 at 2.
[4]
Spousal Abuse
n 3 at 2, which refers to the position in Canada. For the South
African perspective, see G Hancox ‘Marital Rape in South

Africa: Enough is Enough’ (25 October 2012)
BUWA!
A Journal on African Women’s Experiences
70-74 at 72, where it states:
“
It
was not until 1993 that South Africa passed the Prevention of Family
Violence Act, which, among other things, criminalised
martial rape.
The law stated that ‘Notwithstanding anything to the contrary
contained in any law or in the common law,
a husband may be
convicted of the rape of his wife.’”
[5]
Spousal Abuse
n 3 at 3.
[6]
Spousal Abuse
n 3 at 6-8.
[7]
Spousal Abuse
n 3 at 9.
[8]
[2004] 4 All SA 373
(SCA) para 43.
[9]
Ferreira
n 8 para 40 quoting
Carmichele
v Minister of Safety and Security and Another (Centre for Applied
Legal Studies Intervening)
[2001] ZACC 22
;
2001
(4) SA 938
(CC) para 45.
[10]
See
Ferreira
n 8 para 40 footnote 13.
[11]
1997 (4) SA 766
(W) at 778A-H.
[12]
Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32
of 2007 (“SORMA”).
[13]
2011 (1) SACR 469
(SCA) para 25.
[14]
2011 (1) SACR 40
(SCA) para 13.
[15]
2012 (2) SACR 183
(SCA) para 1.