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[2014] ZAGPJHC 204
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Moyo v S (A435/2013) [2014] ZAGPJHC 204 (4 April 2014)
REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG
LOCAL DIVISION,
JOHANNESBURG
CASE
NO. A435/2013
DATE:
04 APRIL 2014
In the matter
between:
MOYO, DANISA
…................................................
Appellant
And
THE
STATE
.........................................................
Respondent
JUDGMENT
OPPERMAN AJ
INTRODUCTION
[1] This is an
appeal against both conviction and sentence. The appellant, Danisa
Moyo, was convicted in the Johannesburg regional
court of one count
of rape in contravention of section 3, read with sections 1, 56(1),
57, 58, 59, 60 and 61 of the Criminal Law
(Sexual Offences and
related matters) Amendment Act, 32 of 2007. He was sentenced to
imprisonment for life.
[2] Leave to appeal
against both conviction and sentence was granted by the court a quo
on 15 February 2013.
SUMMARY OF THE
EVIDENCE
[3] The State
applied for the use of an intermediary in terms of section 170A of
Act 51 of 1977. This application was not opposed
by the appellant
and was granted by the Court a quo having found that it would be in
the interests of justice to receive the evidence
of the complainant,
who was 7 years old at the time of the commission of the offence.
[4] The complainant
testified that during 2010 she stayed in a home at Regents Park with
her mother and father. Their family occupied
the main house.
Outside in the yard was a garage which had been converted into living
quarters for the appellant (‘the
garage’). Ordinarily,
the appellant’s wife would reside in the garage with him but on
the day of the incident, she
was not there.
[5] She testified
that the appellant had called her to give her some sweets. When she
complied, he dragged her into the garage.
He placed her on the bed
and covered her mouth with a pillow.
[6] With the aid of
two anatomically correct dolls, she demonstrated that the female doll
was lying on her back and the male doll
was lying on top of the
female doll. She stated that at that stage she wasn't wearing any
underwear nor was the appellant.
She demonstrated that the
appellant had inserted his penis into her vagina. After this act,
he gave her sweets, R2 and told her
not to tell her parents. She said
that she had thrown the R2 away.
[7] She testified
that he had raped her a second time. She says that she was in the
house, that the appellant had grabbed her and
that he had then taken
her to the garage. Thereafter, he threw her onto the bed and
undressed her and himself and that he then
started with, what she had
labelled, "the bumping". He also covered her face with a
pillow. This he did to stop her
from screaming.
[8] After finishing
he gave her R1 and said that she should not tell her parents. She
said she gave the R1 to a friend.
[9] She explained
that her mom had seen her panties and that they had blood on them.
Her mother asked her what had happened and
she had told her.
[10] She explained
that her mother had bathed her after the second incident.
[11] She said that
the appellant was the only "Malumi", translated meaning
“Uncle”, who was staying in the
garage. She said the
"Uncle" who had done this to her, was Ndlovo.
[12] The
complainant’s mother had testified that the complainant had
made a report to her regarding the two incidents. This
happened
whilst she was bathing her as she had complained that her abdomen was
tender and that it was painful when touched.
[13] The complainant
told her mother that the uncle had fetched her and had taken her to
the garage where he stayed. The complainant
had explained to her
mother that he had taken his penis and had inserted it inside her.
She said that he had made "bumping"
movements on top of
her.
[14] The father of
the complainant had gone to church on the evening of the incident and
was not at home. The complainant's mother
was at work.
[15] The
complainant's mother had examined her panties and had found blood on
the front and the back of them.
[16] She then phoned
the complainant’s father and they went to the police station to
make a report.
[17] Dr Sibongile
Nkobi, the Chief District Surgeon in Soweto, based at the
Medical-Legal Clinic, testified that she had examined
the complainant
on 12 March 2010, and had completed a form J88 that was received as
evidence.
[18] After the
examination Dr Nkobi concluded that the injuries were consistent with
forceful penetration. She explained that the
injuries were recent
and had occurred within a period of 72 hours prior to the examination
which time estimate, she could give
by virtue of the fresh tears. The
injuries she found included: redness of her clitoris, frenulum of
clitoris, urethral orifice,
para-urethral folds, labia majora, labia
minora, the posterior fourchette and fossa navicularis. Her hymen was
swollen with fresh
tears at 3 and 9 o’clock
[19] The complainant
had a discharge which Dr Nkobi was very reluctant to say was natural
due to the fact that she was only seven
years of age. She expressed
the view that a child of seven, should not have an infection of that
kind. She described the child
of small build, she measured the
child at 118 centimetres, weighing only 21,8 kilograms.
[20] The appellant
testified that he knew the complainant and that he worked with her
father at the same workplace. He denied
having had sexual
intercourse with her. He stated that the garage was partitioned and
that another man occupied the one side of
the garage. This man was
from Zimbabwe but he could not provide the name of this person
despite having shared the garage for a
considerable period of time.
ASSESSMENT OF THE
EVIDENCE
[21] The record was
incomplete and certain evidence was missing including most of the
appellant’s evidence in chief. However,
the parties accepted
that the appeal could be argued on the record as it stood and the
matter proceeded on that basis. I too hold
the view that the record
is adequate for a proper consideration of the appeal,see S v Chabedi,
2005 (1) SACR 415
(SCA) at paras [5] and [6]. `
[22] It is common
cause that the complainant was raped. The medical evidence supports
this conclusion and this fact was not disputed
by the appellant.
[23] The only
question which falls for determination is whether the appellant has
been reliably identified as being the perpetrator.
[24] The evidence of
the complainant is that of a single witness. The court a quo had due
regard to the cautionary rules applicable
when assessing this type of
evidence. It is clear that the court a quo was acutely aware of the
fact that it could only convict
on the evidence of a single witness,
if the evidence was satisfactory in every material respect, see R v
Mokoena,
1932 OPD 79
at 81 and Maemu v S
[2012] JOL 28585
(SCA) :
24.1. It took into
account the contradiction which existed in respect of the amount of
times the appellant had been arrested.
The complainant had
testified that the appellant had been arrested twice. Both the
complainant's mother and the appellant testified
that he was only
arrested once. The court, quite correctly, held that this was not
material. The court found that the child might
have been mistaken.
No reason was advanced on appeal how this inconsistency could have a
bearing on the complainant's evidence
in relation to her
identification of the appellant.
24.2. Much was made
of the fact that there might be two men resident in the garage. In
my view, the magistrate, quite rightly,
paid little heed to this
criticism. As far as the complainant was concerned, it was only the
appellant who was resident there.
If, objectively, somebody else had
stayed there, she was unaware of this fact and could thus not have
confused the actual perpetrator
with the other resident. It is,
however, common cause that there was no other person resident on the
property with the name of
Ndlovo. The appellant did not deny that
he worked with the complainant's father, nor did he deny that his
name was Ndlovo. Nor
did he suggest that there was another person by
the name of Ndlovo on the premises or that her father had another
friend by the
name of Ndlovu who worked with him and who stayed at
the premises.
24.3. It was argued
on appeal that something had been suggested to the complainant during
an adjournment of the complainant's evidence-in-chief.
Prior to the
adjournment she had testified that she did not know what the
appellant was doing on top of her and she did not feel
that she had
anything inside of her. After the adjournment she had testified
that the appellant had put his manhood into her.
The court a quo
quite correctly, had placed on record that the child had used the
word "pipi" for penis/manhood
and "koekoe"
for vagina. The intermediary when translating had used court
appropriate language. In respect of the
so-called "coaching"
the State argued, that there was no indication on record, that she
had been coached. This feature
was certainly not explored during
cross-examination. The court’s attention was also not drawn to
this aspect. Further,
even if the complainant had consulted
someone, she was testifying in chief. In any event, her evidence in
respect of whether or
not she had been raped, was not disputed and
was, in any event, corroborated by Dr Nkobi. The issue in the trial
was not whether
or not the child had been raped. The issue was
whether or not the appellant had properly been identified.
24.4. The
complainant was criticised for not being clear about the whereabouts
of her father at the time of the rape and this, so
the argument ran,
impacted on her credibility. Such criticism is devoid of merit. All
the child knew was that her father was
not at home during the attack
on her. Had he been, the incident would not have occurred. There
were two incidents. She explained
that her father had been at church
and later that he had been at work. She might well have referred to
the two respective incidents,
but this "contradiction" is
certainly not material and does not have a bearing on her
identification of the appellant.
24.5. Similarly, the
child was criticised for saying that her aunt Judy was home and then
for saying she had locked herself into
her bedroom. Once again, she
might well be referring to the two different incidents. This aspect
of her evidence was used to
demonstrate that the child could not
distinguish between fantasy and reality. I disagree. She was raped.
How her recollection
of the whereabouts of the aunt (who did not come
to her assistance and thus clearly was not around at the time of her
ordeal) would
have a bearing on assessing the reliability of the
complainant’s identification of the appellant, is uncertain.
[25] The following
factors all point to the court a quo having correctly relied on the
evidence of the complainant :
25.1. The
complainant knew the appellant well.
25.2. The appellant
and the complainant stayed on the same property and had been doing so
for a considerable period of time.
25.3. The appellant
was a colleague of the complainant's father.
25.4. No reason
could be advanced why the complainant would falsely incriminate the
appellant.
25.5. No reason
could be advanced how she could have been mistaken.
25.6. Independent
corroboration that the rape had taken place existed in the evidence
of Dr Nkobi. She found the injuries consistent
with forced
penetration.
25.7. The
complainant did not change her version.
25.8. The
complainant had been cross-examined at length by the legal
representative of the appellant.
25.9. The
complainant's mother corroborated her version in that she had found
her panties with blood on them.
[26] In the
Commentary on the Criminal Procedure Act by Du Toit and Others, Vol
2, the learned authors comment as follows in Chapter
24, p 8A:
"That even the
testimony of a child who was only three years of age at the time of
the alleged offence may pass muster was
demonstrated in Cele v S
[2012] 4 All SA 182
(KZP), where there was need for "double
caution" in view of the fact that she was a single witness in a
rape case.
The complainant, who was five years old at the time of
trial, had re-enacted the event using male and female dolls; had
described
pain in her vagina; and her injuries were established by
medical evidence. She gave a detailed and logical account of the
rape,
and her story was considered to be one that could not credibly
emerge from the fantasy of a three-year old girl, as the "details
were too graphically realistic and precise". She could, said
the court, not have fantasised about the event as she had no
idea
about the nature of sexual acts and could not imagine something of
which she had no idea or experience. Further, she had
told her
grandmother about the matter at the first opportunity; had blamed the
appellant without hesitation in that complaint;
had adhered to a
version throughout; and had remained unshaken throughout
cross-examination. She was an intelligent five-year
old at trial,
who gave her evidence in a clear and convincing manner."
[27] The court a quo
was also fully conscious of the principle that satisfaction of the
cautionary rule will not necessarily warrant
a conviction and that
the ultimate requirement remains proof beyond a reasonable doubt
which depends upon an appraisal of all the
evidence.
[28] Appellant
denied having raped the complainant. He admitted that he was known to
the complainant and her family as Ndlovu. The
appellant called his
wife as a witness who was sworn in as ‘Mrs Amelia Ndlovu’.
This notwithstanding, she denied having
ever heard anybody calling
the appellant Ndlovu. She said that the appellant’s name was
Danisa Moyo and that everybody used
to call him ‘Malume’.
The complainant identified the perpetrator by name. She said it was
‘uncle Ndlovu’.
The appellant’s wife clearly
distanced herself from the name ‘Ndlovu’ to protect her
husband. He, by contrast
though, admits being known as Ndlovu to the
family of the complainant. Appellant’s counsel argued that the
evidence of his
wife took the matter no further. I disagree. She
testified that the two families were quite close, that she would at
times take
care of the complainant and that they would go to church
together. When the complainant thus identifies the appellant by name,
she knows exactly who she is talking about. It is also significant
that the complainant had testified that the appellant’s
wife
ordinarily resided with him but that on the day in question, she was
not there. This fact, is corroborated by the appellant’s
wife.
She testified that she was in Zimbabwe at the time. It was also not
suggested that the other ‘Malume’ who stayed
in the other
part of the garage, stayed there with his wife. The complainant did
not mistake the appellant for the other occupant.
She said it was
uncle Ndlovu, who ordinarily stays in the garage with his wife but
whose wife, on the night of the incident, was
not there.
[29] The complainant
could not have fantasised about the event. There is no evidence to
suggest that she had any idea about the
nature of sexual acts. In any
event, it was not disputed that she had been raped. Also, she is
corroborated by Dr Nkobi’s
evidence. She had blamed the
appellant without hesitation and had adhered to a version throughout
the trial. No motive exists for
this child to identify the appellant
as the perpetrator other than that he was the person who had in fact
raped her.
[30] Having regard
to all the elements which point to the appellant’s guilt, all
those which are indicative of his innocence
and having regard to the
inherent strengths, weaknesses, probabilities and improbabilities on
both sides, I have come to the conclusion
that the balance weighs so
heavily in favour of the respondent as to exclude any reasonable
doubt about the appellant’s guilt.
See S v Chabalala,
2003 (1)
SACR 134
(SCA) at para [15]. S v Shackell,
2001 (4) SA 1
(SCA) at
para [30] and Maemu v S,
[2012] JOL 28585
(SCA).
[31] The appeal
against the conviction is dismissed.
SENTENCE
[32] Having been
convicted of rape of a minor, the court a quo sentenced the appellant
to the minimum prescribed sentence, being
life imprisonment. The
court a quo held that there existed no substantial and compelling
circumstances to deviate from the minimum
sentence.
[33] The issue
before me, thus, is whether or not the court a quo was correct in
this finding. Whether or not substantial and compelling
circumstances
exist, is, essentially, a factual enquiry. The appellant's
submissions in respect of the existence of substantial
and compelling
circumstances were focussed on: (a) his age; (b) the fact that he is
a first offender; (c) that he has never clashed
with the law at all;
(d) that he had lived a relatively stable life up to the commission
of the offence; (e) that he had stood
trial for a long period before
sentencing took place. In this regard it was submitted that he had
been arrested on 13 March 2010
and had been sentenced on 13 December
2012. He was thus in custody awaiting trial for two years and nine
months.
[34] In S v
Matyityi,
2011 (1) SACR 40
(SCA) at 46D-E Ponnan JA held as follows:
"S v Malgas is
where one must start. … Malgas, which has since been
followed in a long line of cases, set out how
the minimum sentencing
regime should be approached, and in particular how the enquiry into
substantial and compelling circumstances
is to be conducted by a
court. To paraphrase from Malgas: the fact that Parliament had
enacted the minimum sentencing legislation
was an indication that it
was no longer 'business as usual'. A court no longer had a clean
slate to inscribe whatever sentence
it thought fit for the specified
crimes. It had to approach the question of sentencing, conscious of
the fact that the minimum
sentence had been ordained as the sentence
which ordinarily should be imposed, unless substantial and compelling
circumstances
were found to be present."
[35] In S v Kwanape,
[2012] ZASCA 168
, Petse JA cautioned as follows:
"[15] Recently
this court reiterated in S v Matyityi
2011 (1) SACR 40
(SCA) that
‘the crime pandemic that engulfs our country’ has not
abated. Thus courts are duty-bound to implement the
sentences
prescribed in terms of the Act and that ‘ill-defined concepts
such as “relative youthfulness” or other
equally vague
and ill-founded hypotheses that appear to fit the particular
sentencing officer’s personal notion of fairness’
ought
to be eschewed."
APPROACH BY A COURT
ON APPEAL AGAINST A SENTENCE IMPOSED IN TERMS OF THE ACT
[36] In S v PB
(supra), Bosielo JA formulated the approach as follows:
"[20] What
then is the correct approach by a court on appeal against a sentence
imposed in terms of the Act? Can the appellate
court interfere with
such a sentence imposed by the trial court's exercising its
discretion properly, simply because it is not
the sentence which it
would have imposed or that it finds shocking? The approach to an
appeal on sentence imposed in terms of
the Act should, in my view, be
different to an approach to other sentences imposed under the
ordinary sentencing regime. This,
in my view, is so because the
minimum sentences to be imposed are ordained by the Act. They cannot
be departed from lightly or
for flimsy reasons. It follows therefore
that a proper enquiry on appeal is whether the facts which were
considered by the sentencing
court are substantial and compelling, or
not."
[37] S v Vilakazi,
2009 (1) SACR 552
(SCA), Nugent JA said at 562G : " it is
enough for the sentence to be departed from that it would be unjust
to impose it
". To determine whether or not it would be unjust
to impose the sentence the court is entitled to consider factors
traditionally
taken into account in sentencing and referred to as
"mitigating factors".
[38] In S v Nkomo,
2007 (2) SACR 198
(SCA) Lewis JA at 201e-f held as follows:
"But it is for
the court imposing sentence to decide whether the particular
circumstances call for the imposition of a lesser
sentence. Such
circumstances may include those factors traditionally taken into
account in sentencing - mitigating factors - that
lessen an accused's
moral guilt. These might include the age of an accused or whether or
not he or she has previous convictions.
Of course these must be
weighed together with aggravating factors. But none of these need be
exceptional."
CONSIDERATION OF
FACTS PERTAINING TO SUBSTANTIAL AND COMPELLING CIRCUMSTANCES
[39] I turn now then
to the central issue and consider all the circumstances available to
the court a quo to assess whether the
facts which were considered are
substantial and compelling or not, or, put differently, whether it
would be unjust to impose life
imprisonment in casu.
[40] A Victim Impact
Report was received, and the probation officer who had prepared it,
testified in respect thereof. The Victim
Impact Report records the
complainant's date of birth at 15 January 2003. The date of the
offence was 10 March 2010. The complainant's
mother did not advise
the school about the incident as she was concerned about
stigmatisation of the child. Although the complainant
is doing well
at school she is withdrawn and does not play with other children.
She prefers to be by herself. The probation officer
observed the
complainant as being emotional. According to the complainant's
mother, her behaviour has drastically changed as she
isolates herself
from other children and does not want to play with other children.
Her mother says that the complainant is always
tired and prefers to
sleep most of the time. The probation officer gathered that the
complainant had felt very vulnerable and
powerless during her ordeal.
The probation officer referred to certain studies in her report that
the long-term effects of rape
can include low self-esteem and
depression. The complainant's mother had reported to the probation
officer that the complainant
had attended counselling but that it had
not assisted her much. I quote her professional opinion verbatim:
"The victim was
seven years at the time of the incident. The
perpetrator is known to the victim. He abused the victim's trust in
him, he was
selfish and inconsiderate as he only focused on
satisfying his needs and in the process he failed to think about the
future of
the child concerned and the impact on the family of the
victim. She experienced psychological trauma as a result of rape and
her
self-esteem seems to be low. The victim has a sense of
insecurity and instability. She might struggle to trust people as
she
was repeatedly violated by someone who is known to her. Some of
the rapists do not murder their victims but one destroys their
self-respect, self-esteem and their feelings of physical, mental
integrity and security."
[41] Her
recommendation reads as follows: "As already indicated in the
report, the victim stated that she needs further therapeutic
intervention as she is still not coping with the ordeal. The
Probation Officer has made arrangements with the Social Worker at
Teddy Bear Clinic for the victim and her mother to attend further
counselling."
[42] The appellant
did not testify in mitigation. A pre-sentence investigation report
prepared by a forensic criminologist, Dr
Eon Frederick Sonnekus, was
received as evidence and he also testified. He found that the
appellant still possessed reform abilities.
He stated that the
appellant had consented to attending the non-admitters sexual
offenders' program. He said that he had a good
vocational history
and that he had also interviewed his previous employer as well as his
wife. The appellant's wife still wants
to maintain a marriage
relationship with the appellant. He stated that he found that the
appellant's profile did not fit in with
that of a very dangerous
paedophile that fixates on sexual gratification mostly with children.
He could, however, not exclude
such possibility. Dr Sonnekus
testified that he had spoken to the appellant's employer, Mr Baker,
and that he had stated that
the appellant had been a very good
employee. He had recruited him from the level of a gardener to become
an assistant welder in
his business. He had completed approximately
three years of successful employment within the factory and he would
be more than
willing to re-employ him eventually, even after a
20-year sentence. He recorded the following further facts in respect
of the appellant:
[43] The appellant
was born on 25 February 1970 in Zimbabwe. His father passed away
when he was about two years old. He is the
second child of a family
of four children. His older brother was interviewed and indicated
that the appellant was a well-mannered
child and that no complaints
had been lodged against the appellant with regard to his behaviour
towards girls during his teenage
and juvenile years. He has been
married to his wife for thirteen years and has three children. The
appellant passed Grade 7
and did not receive and secondary or
tertiary education. The appellant came to South Africa during 1991.
He initially worked
as a gardener. He has become a South African
citizen.
[44] He was
eventually recruited by Mr Baker who employed him on a permanent
basis as an assistant welder. Mr Baker indicated
that he was
willing to re-employ the appellant in the event of parole being
granted in the distant future. Dr Sonnekus then proceeded
to list
and discuss possible mitigating factors. They included:
44.1. the appellant
is a first offender both in South Africa and in Zimbabwe;
44.2. the appellant
has three dependents a son, aged 19, a daughter, aged 9 and another
son, aged 4. All the appellant's children
live in Zimbabwe. The
two younger children live with their grandmother;
44.3. the appellant
was employed and earned a monthly salary in the sum of R2 900 of
which he sent R1 000 per month to Zimbabwe
for the maintenance of his
three children;
44.4. the appellant
has been in custody from 13 March 2010;
44.5. the appellant
suffers severe mental anguish as an inevitable result of his crime
notwithstanding the fact that he denies that
he committed the crime;
44.6. he had drunk a
bottle of Autumn Harvest wine on the day of the crime.
[45] I interpose to
caution that a substantial portion of the factors listed under
"Mitigation" by Dr Sonnekus, falls
within the category that
would qualify as "flimsy" grounds that S v Malgas,
2001 (1)
SACR 469
(SCA) cautions should be avoided.
[46] Also, in S v
Vilakazi (supra) Nugent JA at 574D commented as follows: "Once
it becomes clear that the crime is deserving
of a substantial period
of imprisonment the question whether the accused is married or
single, whether he has two children or three,
whether or not he is in
employment, are in themselves largely immaterial to what that period
should be, and those seem to me to
be the kind of 'flimsy' grounds
that Malgas said should be avoided."
[47] The time spent
in prison awaiting trial, being 2 years and 9 months, certainly does
not qualify as ‘flimsy’ grounds
but will return to the
issue of whether or not, in view of the circumstances of this case,
it can be considered to constitute substantial
and compelling
circumstances which could warrant a deviation from the imposition of
a life sentence .
[48] Dr Sonnekus
then summarised and discussed the possible aggravating factors as
follows:
48.1. Under the
heading "The seriousness of the crime", he records: "The
seriousness of the crime of rape against
a minor girl can never be
underestimated. (b) The fact that the victim was approximately only
seven years old when the rape took
place left her almost totally
vulnerable. … The seriousness of the crime does not only
pertain to the age of the victim,
but also to the application of the
brutal force that the offender allegedly used. The painful and
irritated genital areas of the
victim, accompanied by a recent tear
in her hymen, according to the medical evidence before the court,
confirms the seriousness
of the rape. The same applies to the
bloodied panties of the victim that her mother discovered
approximately two days after the
rape took place."
48.2. The appellant
served within a position of trust as a co-worker of the complainant's
father who also worked for Mr Baker.
The appellant rented a space
in a garage on the premises and was known to the complainant. The
complainant respected the appellant
and called him "Malume",
meaning "Uncle".
[49] As to the
prevalence of the crime, Dr Sonnekus quite correctly points out that:
"The victim vulnerability of especially
women and children as
victims of sexual crimes is of great importance and the protection
thereof remains a national priority."
[50] Dr Sonnekus
records the possible distribution of the HIV virus by sex offenders
that could shorten the lifespan of victims.
TREND TO SUBSTITUTE
TERMS OF IMPRISONMENT IN THE PLACE OF THE ORDAINED LIFE IMPRISONMENT
[51] To use as a
starting point, past sentencing patterns as a provisional standard
for comparison when deciding whether a prescribed
sentence should be
regarded as unjust, is an acceptable method. See S v Malgas (supra)
at 480H-481A.
[52] The cases of S
v Abrahams,
2002 (1) SACR 116
(SCA), S v Sikhipha,
2006 (2) SACR 439
(SCA) and S v Nkomo,
2007 (2) SACR 198
(SCA) do not constitute
bench-marks or precedents binding on other courts. That such a view
is a misconception was stated in S
v PB,
2013 (2) SACR 533
(SCA) at
539. In paragraph [16] Bosielo JA addressed the so-called trend to
substitute terms of imprisonment in the place of
the ordained life
imprisonment as follows:
"Can this
trend, if it can be called that, qualify to be elevated to the status
of a precedent which is intended to bind all
the courts which have to
consider sentence whilst sentencing an accused who has been convicted
of rape read with s 51(1) of the
Act? Is a court expected, without
proper consideration of the peculiar facts of this case, to slavishly
follow the so-called trend
not to impose life imprisonment for rape?
By doing so, a court would be acting improperly and abdicating its
duty and discretion
to consider sentence untrammelled by sentences
imposed by another court, albeit in a similar case. It follows in my
view that
such a sentence would be appealable on the basis that the
sentencing court either failed to exercise its sentencing discretion
properly or at all."
APPROACH TO YOUNG
RAPE VICTIMS
[53] In S v Kwanape,
[2012] ZASCA 168
, Petse JA held as follows in paragraph 17:
"[17] Rape is
undeniably a despicable crime. In N v T it was described as ‘a
horrifying crime and is a cruel and selfish
act in which the
aggressor treats with utter contempt the dignity and feelings of
[the] victim’. In S v Chapman this court
said it is ‘a
humiliating, degrading and brutal invasion of the privacy, the
dignity and the person of the victim’.
Its gravity in this
case is aggravated by the fact that the victim was a 12 year-old
child. In S v Jansen rape of a child was
said to be ‘an
appalling and perverse abuse of male power’. The court there
went on to say:
[I]t is sadly to be
expected that the young complainant in this case, already burdened by
a most unfortunate background . . . and
who had, notwithstanding
these misfortunes, performed reasonably well at school, will now
suffer the added psychological trauma
which resulted in a marked
change of attitude and of school performance. The community is
entitled to demand that those who perform
such perverse acts of
terror be adequately punished and that the punishment reflect the
societal censure.
It is utterly
terrifying that we live in a society where children cannot play in
the streets in any safety; where children are unable
to grow up in
the kind of climate which they should be able to demand in any decent
society, namely in freedom and without fear.
In short, our children
must be able to develop their lives in an atmosphere which behoves
any society which aspires to be an open
and democratic one based on
freedom, dignity and equality, the very touchstones of our
Constitution.’"
[54] In S v GK,
2013
(2) SACR 505
(WCC) Matthee AJ in a minority judgement, makes the
following observations in respect of a victim, 7 years of age, which
I endorse.
He observes:
"[56] The
victim in the present matter was 7 years old when she was raped by
appellant. The mere fact, that I can imagine a
worse rape than the
present one, does not assist appellant. A crucial consideration is
the age of the victim. The minimum sentencing
provision germane to
the present matter stipulates the age of the victim as needing to be
younger than 16 years. The victim in
the present matter was less than
half that age. In my opinion that in itself makes it 'horrendous
enough to justify the imposition
of the maximum penalty'.
[57] I recognise the
danger of a degree of arbitrariness when drawing a line at one age,
as opposed to another age - for example
15 years old, as opposed to
11 or 12 years old. In this regard a reading of the Child Justice Act
75 of 2008 (hereafter the Act)
is instructive.
[58] Dating back to
Roman law, the age when a child was deemed to be doli incapax was set
at children below 7 years old. Between
7 years old and 14 years old a
child was deemed to be doli capax - in other words, there was a
rebuttable presumption that the
child lacked criminal capacity. The
Act has retained this distinction between doli incapax and doli
capax. However, it has increased
the age from 7 years old to 10 years
old of children deemed to be doli incapax.
[59] Quite clearly
the legislature was of the view that children less than 10 years old
need to be distinguished from children older
than 10 years old and
needed added special protection as a result of their age. Similarly,
the Act provides children between 10
years old and 14 years old with
more protection than children older than 14 years old.
[60] No doubt,
underpinning these distinctions, inter alia, are the different
developmental stages of children at different ages.
Although in the
present matter the legislature has not drawn a distinction between a
15-year-old child and a 7-year-old child,
it would fly in the face of
the rationale of the said distinctions in the Act, and indeed in the
common law before the Act, not
to draw a distinction between such
children when assessing the gravity of a rape and the need to give
protection to them against
rapists."
APPLICATION OF ALL
THE AFOREGOING PRINCIPLES TO THE CURRENT APPEAL AGAINST A SENTENCE
IMPOSED BY THE ACT
[55] The facts
reveal a young girl, in effect devoid of any means, physical or
intellectual, to protect herself against the appellant.
He enticed
her with sweets and then dragged her little frame, weighing less than
22 kilograms, and standing 118 cm tall, into
the garage where the
appellant raped her. Her tender years would compromise her ability
to give meaningful evidence pertinent
to the issue of long-term
damage to herself. Her mother testified though that subsequent to
the ordeal, she has changed dramatically.
She has become a withdrawn
child preferring to sleep rather than go out and play as children of
her age should be doing. This
Court should protect her and other
children of 7 years old. Indeed, children younger than 10 years of
age, should receive added
protection.
[56] The appellant,
a 40-year old man at the time of the commission of the offence, was
known to the complainant and lured her to
the garage before forcibly
dragging her into the garage. He covered her head with a cushion to
muffle her screams. He then gave
her money to buy her silence. This
nightmare he inflicted upon her twice.
[57] The rape by the
appellant has forever changed the life of the complainant. In effect
she has been given a life sentence by
the appellant.
[58] When it comes
to sentencing rapists, especially of children as young as 7 years
old, it cannot be "business as usual"
(S v Malgas (supra))
and the protection of possible future victims must be taken into
consideration into any decision on an appropriate
sentence. The
appellant has shown no remorse. His offer to attend a
"non-admitters: sexual offenders program" rings
hollow and
offers very little comfort. On record there exists not a shred of
remorse or insight by the appellant as regards his
monstrous
treatment of the victim. The failure by the appellant to in any way
[59] grasp the evil
of what he has done, militates against the possibility of his future
rehabilitation
[60] The court a quo
very carefully analysed all the facts placed before him by Dr.
Sonnekus and the probation officer. He looked
at the authorities and
concluded that he could not find any substantial or compelling
circumstances justifying the imposition of
a lesser sentence, other
than that prescribed in terms of section 51(1) of the Act.
[61] Although the
period awaiting trial might under different circumstances have
qualified as constituting substantial and compelling
circumstances,
in casu, the other factors mentioned herein, neutralise such a
finding.
[62] I am
unpersuaded that the court a quo erred in its conclusion that
substantial and compelling circumstances were absent.
I hold the
view that to come to a contrary decision in this case would
constitute a failure to heed the caution in S v Malgas (supra)
that
"the specified sentences are not to be departed from lightly or
for flimsy reasons" and that "speculative hypothesis
favourable to the offender, undue sympathy, aversion to imprisoning
first offenders … are to be excluded." ( See S
v Kwanape
(supra)).
[63] In the result
the appeal against the sentence of imprisonment for life is
dismissed.
I OPPERMAN
Acting Judge of
the High Court
Gauteng Local
Division, Johannesburg
I Agree
B MASHILE
Judge of the High
Court
Gauteng Local
Division, Johannesburg
Heard: 25 March
2014
Judgment
delivered: 4 April 2014
Appearances:
For Appellant:
Adv.C Van Veenendaal
Instructed by:
Johannesburg Justice Centre
For Respondent:
Adv JG Wassermann
Instructed by:
Office of the Director of Public Prosecutions