About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2014
>>
[2014] ZAGPJHC 214
|
|
H v S (A400/2012) [2014] ZAGPJHC 214 (16 September 2014)
SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
CASE
NO: A400/2012
DATE:
16 SEPTEMBER 2014
In the matter
between:
H
.................................................................
Appellant
v
THE
STATE
............................................
Respondent
JUDGMENT
SPILG, J:
NON-DISCLOSURE
OF IDENTITIES
1. This is a proper
case to preserve the victim’s anonymity. Aside from being a
minor, as she grows up her self-esteem and
dignity may be
unnecessarily affected if she perceives that those who she comes into
contact with are aware of her identity. The
manner in which the
appellant, H, is treated by the authorities should he obtain parole
and return to society is not adversely
affected. If there is any
other possible prejudice to the public’s right to know it is
more than outweighed by the young
girl’s rights to dignity and
privacy.
2. The court
accordingly directs that neither the appellant nor the victim or her
family’s name may be revealed.
THE ISSUES
3. H appeals against
his convictions and the sentences imposed by the regional court in
respect of all three charges being;
a. count 1; rape in
terms of the provision of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007 (‘the
Sexual Offences
Act’);
b. count 2; common
law rape;
c. count 3;
indecent assault;
The applicable
minimum sentencing provisions of the Criminal Law Amendment Act 105
of 1997 (‘the CLAA’) were applied
in respect of each
count.
4. The complainant
in each case was the appellant’s step-child who will be named
B. She is a minor and was born on 26 March
1995.
5. The trial court
imposed life imprisonment in respect of each of the first two counts
and ten years imprisonment for indecent
assault, having found no
substantial and compelling circumstances present in relation to any
of the offences. Since a life sentence
was imposed all the sentences
were ordered to run concurrently in terms of
section 39(2)
(a) (i) of
the
Correctional Services Act 11 of 1998
. The appellant was also
declared unfit to possess a firearm. The learned Regional Court
Magistrate Mr P Venter granted leave to
appeal in respect of both
conviction and sentence.
6. The provisions of
the Sexual Offences Act came into effect on 16 December 2007. This
explains why the appellant was charged (under
count 2) with common
law rape in respect of a series of rapes allegedly perpetrated
against B prior to that date and covering an
extended period from
2006, when she was only 11 years of age, until November 2007. The
first charge was in respect of the subsequent
series of rapes, as
that offence is now more broadly defined under the Sexual Offences
Act, allegedly committed on B between December
2007 and March 2008,
at which stage she was 12 years old. The series of indecent assault
charges related to the period from 1997
when B was 2 years old to
March 2007.
7. ection 3 of the
Sexual Offences Act defines rape as “an act of sexual
penetration, without the consent of (the complainant)”.
In
terms of the section 1 definitions ‘sexual penetration’
is defined to include under subparagraph (a) “any
act which
causes penetration to any extent whatsoever by the genital organs of
one person into or beyond the genital organs ...
of another... and
any part of the body of another person.
8. In terms of
section 15(1) of that Act, as qualified by the Constitutional Court
in The Teddy Bear Clinic for Abused Children
v Minister of Justice
and Constitutional Development and another 2014(1) SACR 327 (CC),
consent is not a defence where a person
over the age of 16 years
commits an act of sexual penetration with a child, who for the
purposes of this provision is defined in
section 1 as a person 12
years or older but under the age of 16 years.
9. The indecent
assault charges relate to other acts of sexual molestation allegedly
committed during the course of a decade, commencing
from when B was
barely 2 years old until past her 13th birthday. These charges
related to touching her buttocks and private parts
when she was very
young and extended to kissing her private parts as she developed to
full puberty.
10. Counsel for the
appellant did not seriously challenge the credibility findings
against H nor did he persist with attempting
to diminish the weight
that could be placed on B’s testimony on the grounds that she
was an alleged victim and a single
child witness. Moreover he did
not persist with the contention that B’s evidence should carry
little or no weight given the
way in which her aunt elicited from
her the nature and extent of sexual abuse at the hands of the
appellant. In my view the magistrate
had correctly considered and
applied section 60 of the Sexual Offences Act (weight of victim’s
evidence), section 208 of
the CPA (single witness), S v Sauls and
another 1981(3) SA 172 (A) at 180E-G (single witness) and Woji v
Santam Insurance Co Ltd
1981(1) SA 1021 (A) at 1028B-D (child
witness).
11. The court a quo
properly cautioned itself regarding the assessment of the evidence of
a young child and in weighing her evidence
was satisfied that it
could be accepted as trustworthy and reliable. B had provided
in-depth details of the molestations. Despite
lengthy examination
and cross-examination, her testimony remained consistent throughout.
Her evidence provided a clear account
of the nature of the various
acts of sexual abuse, the circumstances under which they occurred,
including the place and occasions.
It was also clear that there had
not been a material contradiction between the contents of her
statement and what the doctor claimed
was related by her on the one
hand and her testimony on the other regarding whether the appellant
did penetrate her fully. On
each occasion adults interpreted what
they believed had occurred although B had never maintained that there
was full penetration
and she remained consistent in this regard.
12. Throughout her
evidence B fervently believed that she had succeeded in preventing
the appellant from penetrating fully both
by trying to keep her legs
crossed or tightly together, despite his attempts at separating them,
and by crying out in pain during
these attempts. The magistrate
accepted that there had not been full penetration.
13. In relation to
the rape convictions, the appellant contends that the magistrate
erred in finding on the evidence given by B
that she had in fact
testified to there being any penetration to support a conviction
whether under the common law or under the
Sexual Offences Act. The
appellant submitted that on the proven facts he had only rubbed his
private parts against B’s body.
14. No arguments
were advanced before us in respect of the indecent assault
conviction.
15. In respect of
sentencing it was urged that life imprisonment was shockingly
inappropriate because it is reserved only for the
“worst
category of rape”; the argument being that the offences were
accompanied with “little violence”.
It should be noted
that at the time the appellant was asked to plead, the regional
court’s sentencing jurisdiction had been
increased, enabling it
to impose life imprisonment. See section 4 of the Criminal Procedure
Amendment Act 38 of 2007.
16. It is advisable
to first set out the facts of the case relevant to both the issue of
whether there was penetration and in respect
of the evidence
affecting sentence as a whole.
THE EVIDENCE
17. B was born to L
and her previous husband. They separated and later divorced.
According to the appellant he formed a relationship
with B’s
mother when B was six months old. However B’s aunt who
testified believed that B was about eighteen months
old at the time.
B’s mother subsequently married the appellant and they have a
son. B’s mother and the appellant
separated after she became
aware of the alleged sexual molestation of B. They were divorced at
the time of the trial.
18. The first time B
informed an adult of her claim that she had been sexually molested by
the appellant, including being raped
by him, was in April 2008. It
was in response to her aunt’s questions. B had just turned 13.
19. At the time of
the trial B was 14 years old and an intermediary was appointed under
section 170A of the CPA. No issue has been
taken with regard to
either the regularity of the process or its effect on the
proceedings. B made use of anatomically correct
dolls representing a
male and a female to demonstrate what she alleged occurred. The
appellant seeks to rely on B’s demonstrations
to support his
contention that there was no evidence of penetration.
20. The first
witness was the mother’ sister, who B called “ouma”.
She related how B revealed that she had been
sexually molested by her
step-father. She claimed that the disclosure was made in early April
2008 at her daughter’s wedding
on their farm in Limpopo. B had
arrived with her mother, step-brother and the appellant to attend the
wedding. Since it was still
school holidays it was arranged that B
would remain at the farm for a few days after the wedding. However
the mother and the appellant
returned home before the wedding
reception because the mother had been slapped by him during an
altercation. B stayed on as previously
arranged. On Monday 7 April
while B was helping to pack the wedding gifts the aunt asked if the
appellant had ever touched her.
Her question was prompted by the
appellant’s behavior towards B’s mother at the reception
and also her own suspicions.
21. B replied that
he had. The aunt asked if the appellant had ever grabbed her and
touched her in places that he was not allowed
to. B initially
revealed that he had touched her in inappropriate places including
her breasts. The aunt then said that many other
children are also
molested and asked why neither she nor B’s mother had been told
about these incidents before. B replied
that the appellant threatened
that she would be taken away and would never see her mother again.
The appellant had also said that
if she revealed what occurred to her
mother he would say that it was her fault as she had led him to do
these things.
22. The aunt
believed that B had been willing to relate these events because of
the way the appellant had hit her mother on the
previous day.
According to B, the appellant had previously told her that he had
been fondling her since she was two years old.
In further
amplification, the aunt testified that on previous occasions when
enquiring about what was troubling B, she would reply
that nothing
was wrong. However it was only on the occasion in April 2008 that the
aunt expressly asked if the appellant had assaulted
her. Prior to
that she never asked about the appellant’s behavior towards B,
but focused rather on B’s general behavior
as to why she was
moody or acting in what the aunt described as a bombastic fashion.
23. The initial
accusations of sexual molestation did not surprise the aunt since, as
B was growing up, the appellant would continually
refuse to allow B
to stay over on the farm, offering lame excuses. B’s
revelations also explained her change of attitude
as she had become
more bombastic and was moody even though there remained an otherwise
close bond between the aunt and B.
24. During cross
examination the aunt explained that B’s mother was only
informed on the following day of B’s accusations
against the
appellant. The aunt considered that the mother was not emotionally
prepared for this after being humiliated at the
wedding by the
appellant. The aunt was also concerned about unsettling B’s
mother while B was not with her and further believed
that it was
preferable for B’s emotional state, which included being scared
of the repercussions of her revelations, to be
calmed by direct
contact with her mother. However force of circumstance made it
necessary to speak to her sister over the telephone
on the Tuesday.
25. The aunt also
revealed that when B was still very young, she would not want to
return home with her family at the end of their
stay on the farm and
would throw a tantrum. On these occasions the aunt would tell B to
compose herself otherwise her parents might
not allow her to visit
again. The aunt accepted that on some occasions B’s reluctance
to go home stemmed from the perception
that her step-brother was
being preferred.
26. After B
disclosed that the appellant had fondled her, the aunt tried to
establish indirectly whether the appellant had sexual
intercourse
with her. She asked whether he had done other things to her to which
she replied that he had. The aunt asked if he
had ever penetrated
her. B replied that she did not understand. The aunt then enquired if
the appellant had ever removed B’s
panties and whether his
private parts had ever entered her body. B remained silent for a
moment and then said yes.
27. The aunt
followed up by enquiring what the appellant had done. B then broke
down and cried. She said that the appellant had
sex; that he had
placed his private part inside her but did not penetrate her. She
however described how she would cry out because
his action of
entering her was painful. The appellant would stop for a moment
when she cried out. He would then resume until
she cried out when it
again became sore. The appellant would however desist if it was very
painful for her. The aunt then expressly
asked if he had inserted his
private part and B said that he had. The aunt then told her that this
was what penetration meant.
28. The aunt
understood from B’s subsequent replies that the first occasion
appellant had sexual intercourse with B was when
she was in standard
3. This therefore occurred when she had turned twelve or shortly
before. At that time their family was living
at the home of the
appellant’s mother. B claimed that on weekends when her mother
was at work the appellant would take her
to his bedroom, lock the
door and have sex with her. If the appellant’s mother enquired
about what he was doing in the bedroom,
when B cried out, he would
answer that she was being reprimanded and that he had spanked her.
29. The aunt
indicated that B appeared nervous and had not wanted to reveal these
details. The aunt explained that she had elicited
the details, a
little at a time, after assuring B that even if she had been touched
it would not be right. The aunt told her that
these things occurred
to many children, and she must talk about them because they were
wrong. In this manner B progressively revealed
what she claimed the
appellant had done to her.
30. B told her aunt
that she did not know how many times the appellant had “raped”
her. She however said that it occurred
mostly on the weekend. It is
evident that on these occasions the appellant would withdraw his
penis and then satisfy himself by
masturbating on her. B told the
aunt that after having sex he would clean up with his underpants or
her panties, hide the garment
in the cupboard and later put it in the
wash.
31. The aunt also
explained to B that the appellant would carry on unless her mother
was told and that they could then take it further.
B’s mother
was informed and it was agreed that B would not return to the
appellant’ house but remain with the aunt.
A short time later,
and after confronting the appellant with B’s disclosure, the
mother left the house and also came to
stay on her sister’s
farm.
32. The next state
witness was Dr Riester. She had mainly worked in child abuse clinics
for close to decade. Dr Riester had been
on duty at the Kidz Clinic
on 1 July 2008 when B was brought in for examination. She was 13
years old at the time and in full puberty.
She claimed not to have
experienced consensual sex. On examination her hymen demonstrated
clear evidence of past sexual abuse which
initially took the form of
fondling, digital penetration or of penetration by the tip of the
penis. This was evident from an old
tear to part of the hymen that
had now healed. According to the doctor, B readily allowed her
genitalia to be touched during the
examination. This was to be
expected in sexual abuse cases and corroborated her clinical
findings.
33. Dr Riester
confirmed that there was no evidence of “regular episodes of
full penetration”. She also accepted that
the scarring and
other forensic evidence was inconsistent with the appellant having
been raped, in the sense of there being full
penetration on a regular
basis over the two year period that B had mentioned to her aunt. In
regard to the contents of her statement,
the doctor confirmed that
during the examination B never claimed that there was full
penetration; B had told her that the appellant
would stop when she
cried with pain although he had not fully inserted his penis. The
doctor said in her testimony that:”
She told me that he only
put the tip of the penis near her” (pp15- 16 of the record).
The doctor confirmed that B had initially
claimed that he had raped
her twice a week but when the medical evidence did not indicate full
penetration B was asked again and
the reply was that when she cried,
he stopped and would not insert his penis fully even when he resumed.
34. B then
testified. This was through an intermediary as provided for in terms
of section 170A of the CPA. She testified from
a separate room via a
closed circuit television monitor. Save for the presence of B’s
mother and aunt, this part of the proceedings
was held in camera.
35. B claimed that
the appellant disclosed to her that he had been touching her since
she was two years of age. Her own recollection
was that he had
molested her since grade 1 when she would have been seven years old.
She effectively repeated the account she had
provided to her aunt (as
related by the latter in her testimony to the court) of sexual
molestation at the hands of the appellant.
She also related how the
appellant would play with her and wrestle on the bed. He would then
touch her breasts, buttocks and
private parts. This occurred at
least twice a week. Although she did not want him to do it she could
do nothing as he would punish
her by making her do extra chores
around the house. The appellant would try and manipulate her in this
way and if he did satisfy
himself with her, B would be rewarded by
not having to do the chores or was promised a gift. He also tried to
manipulate B’s
immaturity and vulnerability as a step-child by
his lowering her self-esteem or creating a feeling of being needed;
on some occasions
threatening that he would tell her mother that she
is a slut and a whore who led him on at which point he would then say
that he
would make sure that she would not see her mother again,
while on other occasions he would call her his girlfriend and attempt
to convince her that there was nothing wrong since he was not her
real father.
36. The effect of
his playing on her emotions and attempting to distort her value
system is demonstrated by the following passages
during her
testimony. When asked to confirm that she no longer wished to stay
with the appellant she said that: “Om die
waarheid te se ek
het nie eintlik ‘n probleem gehad om by hom te bly nie. My
stiefpa was nog altyd my stiefpa gewees. Die
enigste pa wat ek ….
( “ To be
truthful I do not actually have a problem to live with him. My
step-father has always remained my step-father. The
only father I
…”).
It is apparent from
what was said next by defence counsel and the court that B could not
finish the sentence because of the emotional
effect the words she was
expressing were having on her.
37. B claimed that
the appellant had stopped sexually molesting her for a while. This
occurred when an older cousin alleged that
the appellant had also
sexually molested her. The sexual molestation however resumed when
they moved into a block of flats in
about 2005 when she was in grade
4. She then effectively repeated what her aunt had related to the
court concerning what had been
told to her. B described how he would
take her panties off and undress her, kiss her in inappropriate
regions of her body and attempt
to penetrate her. This was painful
and he would stop when she cried out. He would be naked. On one
occasion he even attempted to
have her on top of him but it was too
painful and he stopped. She explained that he would lie on her and
rub his penis against
her and then attempt to penetrate her. She
would resist by crossing her legs and he would attempt to separate
them. When she pleaded
that he should not do it, it was then that he
said that there was nothing wrong as he was not her real father.
38. On the critical
issue of whether there had been penetration she said that he had not
fully inserted his penis into her vagina.
There were occasions when
he would not attempt penetration but would simulate sex on top of her
and masturbate. During cross examination
she repeated that the
appellant would on occasion insert his penis and attempt to have full
penetration but she would cry and he
would immediately withdraw. She
confirmed that on these occasions it was not simply rubbing his penis
on her body but that he would
actually insert it , although she could
not say how deeply; she did not look. B however mentioned the region
which hurt when he
penetrated.
39. When questioned
about the words used in her statement that the appellant had inserted
his penis in her vagina she said that
she had used other terms to
describe them as she did not like using these words with people.
Later under cross examination she
also explained that the appellant
had told her that she was no longer a virgin and she had conveyed to
the doctor how the appellant
had related what was taking place
between them.
40. Nonetheless she
remained steadfast that there was penetration but not fully “
omdat ek dit nie toegelaat het nie”
.Literally it means;“
because I had not allowed it ”; in context it meant “ “I
had prevented it from occurring”.
B further said under
cross examination that after she cried in pain when the appellant
attempted to penetrate further, he would
then withdraw, on occasion
attempt to penetrate again, and as he was about to ejaculate would
withdraw his penis and ejaculate
on her. She differentiated this from
a completed act of full sexual intercourse.
41. B testified that
this would take place in the main bedroom and generally occur on
Friday evenings when her mother was in the
bath and her step-brother
was already asleep. It also occurred on either a Saturday night or
Sunday morning. On the occasions when
her mother heard her cry out, B
would explain that her stepfather had reprimanded her or had hit her.
42. Aside from these
acts, on week nights the appellant would feel her private parts when
entering her room to say goodnight. He
would do the same to her niece
who slept in the same bedroom.
43. During cross
examination she used the phrase; “ dan sal hy op my kom”
(“then he would come on me”).
When asked to explain how
she came to use this term she said that the appellant had taught it
to her. She said that he had taught
her everything. Counsel enquired
how the appellant had taught her. She said that it was by watching
DVDs of couples having sex;
the appellant would show the DVDs on
Saturday mornings after her mother had gone to work and while her
step-brother was playing
outside.
44. B said that she
had told her cousin about the sexual molestations, but not to an
adult until her aunt asked her.
When asked to
explain why she told her aunt what had occurred when she would not
tell her own mother for fear of being taken away
from her, B replied
that she knew that her aunt would be able to deal with her
step-father whereas her mother was too scared to
do anything. B also
confirmed that when she was in grade 4 the appellant started
preventing her from spending school holidays with
her aunt.
45. The appellant
testified in his own defence. He denied ever indecently assaulted B
or sexually molesting her in any way. He pertinently
denied having
sexual intercourse with her or penetrating her. He claimed that B had
a motive for lying and explained that she was
angry because he had
asked her mother to leave the house. The appellant claimed that if he
had not told B’s mother to leave
the house the complaint of
sexual molestation would not have been laid. He however was forced to
concede that before his wife had
left him, or been told to leave, B
had already made the allegations of sexual molestation to her aunt.
46. Aside from
admitting that on some Saturdays he would be off work while B’s
mother was at work and that his niece claimed
to have been molested
by him, the appellant denied every allegation made against him.
47. The appellant
sought to explain the injuries to B’s vagina which indicated
that there had been some attempt to penetrate
her. He mentioned that
there had been some toys left in the bath and she had sat on one of
them. He blamed his former lawyer for
this explanation not being
previously raised. It had not been put to either the doctor or to B.
THE CONVICTION
48. The forensic
evidence is clear. B’s hymen was thick with two clefts. The
tears were old and the injuries to her vagina
were consistent with
sexual abuse in the form of fondling, digital penetration and
penetration of the tip of the penis. The learned
magistrate correctly
found that this constituted strong objective evidence which
corroborated B’s evidence of the extent
of sexual molestation.
49. In order to
prove common law rape under count 2 the state had to demonstrate
beyond a reasonable doubt that the appellant had
unlawful intercourse
with B without her consent. The appellant’s defence was that he
never had intercourse with her and that
even according to B’s
evidence he had gone no further than to rub his private parts on her
body. Moreover it was argued that
there was no rape since there was
no full penetration.
50. In regard to the
evidence, the admitted forensic report is clear. There had been tears
consistent with some penetration albeit
not fully. The only question
was how it occurred. The learned magistrate correctly rejected the
belated explanation that B had
sat on one of her step-brother’s
toys while in the bath.
The evidence of B
and its detail, as correctly found by the trial court leaves no doubt
that the internal injuries occurred because
the appellant had
penetrated her with his penis, albeit not fully. The extent of the
sexual degradation and the descriptive clarity
of her evidence were
not made up. The learned magistrate took care in appreciating all the
concerns of accepting the evidence of
a child victim in a sexual
offence case, leaving aside a court’s entitlement to weigh such
evidence in accordance with the
relevant provisions mentioned earlier
of the Sexual Offences Act and the CPA .
51. That leaves the
question of what constitutes common law rape. This was well settled
in our law. It was defined as the unlawful
and intentional act of
sexual intercourse with a female without her consent . See generally
Principles of Criminal Law (3rd ed.)
Jonathan Burchell at p706 and
the extension of the common law in Masiya v Director of Public
Prosecutions, Pretoria and another
2007(5) SA 30 (CC) at paras 39 to
44.
Our common law held
that the slightest penetration was sufficient to complete the act of
sexual intercourse. Burchell (3rd edition)
puts it as follows at
706; “it is thus irrelevant that the male does not emit semen,
nor does it matter that the woman’s
hymen is not ruptured”
. See cases such as S v K
1972 (2) SA 898
(A) at 900C where rape
occurred even though the woman’s hymen was not ruptured. The
author sites an extract at ftn 48 from
EH East in 1803 (1 Pleas of
the Crown 437) :
“The quick
sense of honour, the pride of virtue in the female heart … is
already violated past redemption and the
injurious consequences to
society are in every respect complete”.
Today we would speak
of an infringement to one of the most significant constitutional
rights which complement the right to life;
namely the right to
dignity which encompasses the entitlement not to be violated or to
suffer degradation.
52. In my view the
learned magistrate was correct to convict the appellant of common law
rape in that the State had proven beyond
a reasonable doubt that
there was sexual intercourse constituted by the partial penetration
of B on a number of occasions prior
to 16 December 2007 and when B
was between 11 and 12 years of age. It is equally clear that under
the definition of rape in terms
of the Sexual Offences Act as set
out, the appellant had repeatedly raped B since that Act came into
force until the end of March
2008 during which period B was still 12
years old.
53. There was also
overwhelming evidence of indecent assaults regularly perpetrated by
the appellant on B which included touching
her on her buttocks,
breasts and private parts at a much younger age and as she developed
during puberty by licking or kissing
her private parts and also at
this subsequent stage when she was 11 and 12 years of age by
simulating sexual intercourse on top
of her and other acts focused on
but falling short of penetrating here vagina. Although the learned
magistrate did not indicate
when the acts of indecent assault
commenced, it is apparent from reading the judgment as a whole that
he considered that it commenced
at least by the time B was in grade 1
when she would have been 8 years old.
54. The appeal
against each of the convictions fails.
SENTENCE
55. I am satisfied
that the learned regional court magistrate properly considered
whether there were substantial and compelling
circumstances to
deviate from the minimum sentences provided for in respect of each
offence under the relevant provisions of section
51 of the CLAA as
read with the Schedule 2 and also carefully considered the triad of
factors relevant to sentencing, namely the
nature of the offence, the
personal circumstances of the offender including his moral
blameworthiness and the interests of society
by which I include the
interests of the victim and her family.
56. The only real
challenges to the magistrate’s decision on sentence were the
contention that the nature of the offence did
not deserve the
severest of sentences, which it was argued was reserved for the worst
type of sexual offence where violence was
involved, and that the
sentence induces a sense of shock.
Counsel however
accepted that under Part 1 of Schedule 2 of the CLAA the minimum
sentence for rape as contemplated in section 3
of the Sexual Offences
Act where the victim is under the age of 16 years is life
imprisonment (see subpara (b)(i)) in respect of
rape). It was
therefore necessary for the court to find the existence of
substantial and compelling circumstances before it was
entitled to
impose a lesser sentence.
57. In considering
whether substantial and compelling circumstances were present, the
learned magistrate had the advantage of a
probation officer’s
pre-sentence report which contained an assessment of the appellant
and set out his personal circumstances.
.
58. The appellant
was a first offender and is the sole bread winner. He was 48 years of
age at the time of sentencing, was in a
relationship and had a young
child then aged just over a year. He also has another child from an
earlier marriage who was then
22 years old. He was brought up in a
stable family environment and had been in secure employment for 15
years until he was dismissed
after the present convictions were
handed down. The appellant had suffered two heart attacks and was on
medication.
59. The court a quo
took into account the impact a custodial sentence would have on the
rights of the appellant’s children
who were being maintained by
him (M v The State and the Centre for Child Law Institute
2008 (3)
SACR 332
(CC)and found that the girlfriend with whom he has the baby
child has not sought financial assistance even before he was
incarcerated
(which was only on conviction as he had been released on
warning until then) and that he could not claim to be a primary
care-giver.
60. The court
however accepted that the accused was in poor health and had lost his
employment as a result of the conviction. It
also accepted that there
was not full penetration but correctly found that this did not
demonstrate compassion, rather that the
appellant was still in the
process of sexually grooming B while she was not yet fully developed
to allow full penetration.
The court also took
into account the lack of remorse and the failure of the appellant to
come to terms with his crimes.
61. The nature of
the crime and its effect on the victim and society at large has been
set out in many important cases. In Carmichael
v Minister of Safety
and Security (Centre for Applied Legal Studies Intervening )
[2001] ZACC 22
;
2001 (4)
SA 938
(CC) at para 45 the Constitutional Court said that “Sexual
violence and the threat of sexual violence goes to the core of
women’s subordination in society. It is the single greatest
threat to the self determination of South African women”.
62. Earlier I
referred to rape as infringing the right to dignity, which
compliments the right to life as the most significant
of our
constitutional values (see generally the individual judgments of the
constitutional court justices in S v Makwanyane 1995(3)
SA 391 (CC)).
The right to dignity encompasses the entitlement to self-respect, not
to be violated or to suffer degradation.
63. After B had
revealed the sexual abuse to which she had been subjected, she was
assessed by the Kidz Clinic after a referral
by the South African
Police Service at Boksburg. The clinic assesses and treats abused
children. B was then 13 years old and in
grade 7.
The finding was that
B’s cognitive and communication skills were age appropriate and
she could tell the difference between
right and wrong. While the
social worker who conducted the assessment found that B had developed
attachments with significant
adults and was willing to talk freely,
she feared certain men such as the appellant, was emotionally
unstable and was “not
very confident “.
64. The social
worker also conducted a follow up assessment in March 2012 where B
claimed that she felt manipulated by the appellant
and remained
scared of him if he were to come out of prison. She felt that he had
ruined her life. . She did not wish to see him
again and was upset
and hurt by him. As appears later, she experienced a deep sense of
betrayal.
65. B revealed that
her behavior had changed, that she continued to be traumatised and
has regularly experienced flashbacks to the
rapes. Since the rapes
she suffers from nightmares and is aggressive. The social worker
confirmed that these symptoms were typical
of abused children.
66. B’s letter
written in March 2013 after the appellant was convicted provides a
significant insight into a child betrayed.
The prosecution produced
it into evidence during the sentencing phase. In the letter B
expressed her resentment and anger as well
as an entitlement to exact
what she perceived to be just punishment for having been deprived of
a normal upbringing- an upbringing
which he took away from her and
which is lost forever. It is also evident that as she has developed
and has lived outside the environment
he created she has gained a
deeper insight into how he manipulated her and the extent to which
he abused the custodial relationship
of a surrogate father:
“Ek …
was verskriklik kwaad gewees vir hom omdat hy aan my ‘goed’
gedoen het. Ek was hartseer omdat hy
my enigste pa was wat ek nooit
gehad het nie. ….. Ek voel hy verdien wat hy kry. Hy kan dan
elke dag voel en dink aan wat
hy aan my gedoen het. Hy voel dalk nou
ek het sy lewe geruineer maar wat hy aan my gedoen het was 10 keer
erger so hy verdien als
wat sy kant toe kom”
[Loosely translated:
“I... was extremely angry against him because he did ‘things’
to me. I was heart-sore because
he was my only father who I had never
had. I feel he deserves what he gets. In that way every day he can
then feel and think of
what he did to me. He no doubt feels that I
have ruined his life but what he did to me was ten times worse so he
deserves everything
that comes his way.”
67. In the bluntest
of terms H abused a child over whom he had control and whom he should
have nurtured and protected while she
was growing up. Instead he
sought to groom her for sex from early childhood and into puberty. He
engendered in her a sense of fear
and self-loathing by playing on her
vulnerability by suggesting that she may be taken from her mother and
by holding her responsible
for what she was forced to endure.
68. To suggest that
there was little violence because the appellant would stop when she
cried out is to ignore what underpins the
triad of factors that are
to be taken into account when considering sentencing. The effect on
the victim’s dignity and self-worth
in cases of sexual abuse
are as brutal as the severest lashing, if not more so; the scars they
leave may be indelible and endure
for the victim’s entire
lifetime.
69. The appellant
however contended that S v Vilakazi
2009 (1) SACR 552
(SCA) was in
point and relied on the following passage at [55];
“In this case
there was no extraneous violence and no physical injury was caused
other than physical injury inherent in
the offence. There was also no
threat of extraneous violence of any kind.”
70. In my respectful
view this would take the passage out of context. These observations
were case specific and were qualified
by a number of considerations
mentioned in that judgment and encapsulated at [54];
“'I should not
be understood to mean that the absence of any one or more of the
various aggravating features specified in
the Act necessarily
justifies a departure from the prescribed sentence for that would
suggest that the maximum sentence is reserved
for only extreme cases.
That was not so prior to the Act and it is not the case now. There
comes a stage at which the maximum sentence
is proportionate to an
offence and the fact that the same sentence will be attracted by an
even greater horror means only that
the law can offer nothing more.
Whether and if so to what extent, the absence of other aggravating
circumstances might diminish
the offender's culpability will
naturally depend upon the particular circumstances.'
71. In the recent
case of S v Kwanape
2014 (1) SACR 405
(SCA) which was only ,
reported after we heard argument and in response to reliance placed
by the appellant on a number of cases,
Petse AJA referring to the
last mentioned passage in Vilakazi said at para [16]
“But, as this
court made plain in S v Fraser 'it is an idle exercise to match the
colours of the case at hand and the colours
of other cases with the
object of arriving at an appropriate sentence'. Ultimately each case
must be decided in the light of its
peculiar facts.
The court then
continued (at [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'.”
72. In the present
case there was also the emotional manipulation of a vulnerable child.
B felt unable to communicate to her mother
what was taking place
because the appellant led her to believe that she was to blame and
that she had to bear the guilt and endure
the continued invasion of
her body because of something inherently bad within her which made
him do these things to her, or because
she was ashamed as if it was
her tainted soul that led her to be singled out and violated in such
an enduring manner. And what
of the immeasurable loss of all the
milestones a young girl in a free country is entitled to enjoy when
passing through puberty
and the effect of the degradation of her body
and psyche in the medium to long term. By whatever measure, B endured
physical and
psychological trauma and the reports make it plain that
the prognosis is not good, based on similar cases.
73. This is not the
case of a single rape, but multiple rapes committed within what
should be the sanctuary of the home by a person
on whom she was
entirely dependent and who was expected to provide guidance,
nurturing and be a role model. It is difficult to
comprehend how B
can be expected to enjoy the ordinary milestones of a girl becoming
aware of her body, finding love and being
in a settled relationship.
74. In my view the
imposition of the life sentences does not induce a sense of shock
nor is it disproportionate particularly having
regard to the values
to which we subscribe and the application of section 51 of the CLAA.
As stated earlier
there was no real challenge to the minimum sentence imposed in
respect of the indecent assault conviction under
Part 3 of the Second
Schedule as read with section 51 of the CLAA. These assaults
commenced when B was very young and were part
and parcel of her
sexual grooming by the appellant, progressing to more invasive
intrusions as she developed.
75. Accordingly
there are no grounds for upsetting the sentences imposed by the court
a quo.
GENERAL
76. In S v Matyityi
2011 (1) SACR 40
(SCA) Ponnan JA said:
“Despite our
particularly strong commitment to the promotion of the rights of
victims of sexual crimes, particularly rape,
we still do not have a
clear strategy for dealing inclusively with it, either at a primary
preventative or secondary protective
level. The result is that, as
alarmed as we may be by the reported incidence of rape, the true
extent of the scourge appears far
more widespread. (at [22])
The court continued;
“Despite
certain limited successes there has been no real let-up in the crime
pandemic that engulfs our country. The situation
continues to be
alarming.” (at [23])
77. This case was
one of three appeals heard during the course of the week that
involved the rape of an under-aged girl by someone
who either was her
custodian or whom she knew and trusted. The abuse of a custodial
relationship or position of trust in all three
cases is disturbing.
More generally speaking there appears to be no multi-disciplined
response that attempts to devise and implement
appropriate programs
at schools and within the communities that would combine the wisdom
and experience of those such as sociologists,
community and religious
leaders, educators NGOs and the local police. Ponnan JA in the
above cited passage from Matyityi referred
to the absence of an
inclusive strategy at primary and secondary levels. The incidence of
rape and other cases of sexual abuse
suggests that it is vital to
implement an orchestrated initiative that will have the broadest
reach to create respect, awareness
and provide accessible avenues of
reporting.
.
78. Finally it is
appropriate that this judgment also speaks to the victim. B was
continually subjected to sexual molestation from
the time she first
would have been able to recall events. The appellant sexually groomed
her and attempted to manipulate her psychologically.
As B poignantly
noted in her letter, the appellant was the only father figure she
knew. B’s inner strength and moral compass
should be
acknowledged and is inspirational.
ORDER
79. The appeal on
both the convictions and the sentences imposed are dismissed.
VALLY, J:
I agree.
SPILG, J VALLY, J
DATE OF JUDMENT:
16 September 2014
COUNSEL FOR THE
APPELLANT: Ms M. Botha
COUNSEL FOR
RESPONDENT: Mr P. Schutte