About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2014
>>
[2014] ZASCA 15
|
|
MDT v S (548/2013) [2014] ZASCA 15; 2014 (2) SACR 630 (SCA) (20 March 2014)
IN
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE
NO: 548/2013
Reportable
In
the matter between:
MDT
..............................................................................................................
Appellant
and
THE
STATE
................................................................................................
Respondent
Neutral
Citation:
MDT
v S
(548/2013)
[2014] ZASCA 15
(20 March 2014).
Coram:
NAVSA,
SHONGWE & LEACH JJA
Heard:
20
March 2014
Delivered:
20
March 2014
Summary:
Rape by father of 14 year old daughter – minimum sentence
imposed by high court – heinousness of crime emphasised
–
no substantial and compelling circumstances – appeal against
sentence dismissed.
ORDER
On
appeal from
:
The Limpopo High Court (Snyman AJ sitting as court of first
instance):
1.
The
appeal against sentence is dismissed.
JUDGMENT
THE
COURT
[1]
This is an appeal with the leave of the Limpopo High Court directed
against sentence only. The appellant, a then 55 year old
man, was
convicted of raping his 14 year old daughter during the night of 7
September 2007 and sentenced to life imprisonment in
terms of the
provisions of s 51(1) read with Part 1 of Schedule 2 of the
Criminal
Law Amendment Act 105 of 1997
. Put simply, the court imposed the
prescribed minimum sentence. The rape occurred whilst her brother was
asleep in the next room.
The details of how this occurred are set out
in the judgment of the court below and need not be repeated.
[2]
What should not be lost sight of is that the appellant had pleaded
not guilty and had put his two children through the trauma
of
testifying in a trial. For his daughter, this meant reliving a
nightmarish experience.
[3]
The appellant was entirely without remorse and maintained his
innocence throughout the trial, stating that he was elsewhere
at the
time of the alleged offence. He accused his former wife of
manipulating his daughter into lodging a false complaint.
[4]
The appellant chose not to testify in mitigation of sentence. The
bases of the appellant’s appeal against his sentence
as set out
in the notice of appeal are as follows:
(a) The sentence of life
imprisonment for the offence of rape is shockingly inappropriate and
induces a sense of shock;
(b) The court a quo erred
by not taking into account that the personal circumstances of the
appellant cumulatively constitutes substantial
and compelling
circumstances;
(c) The court a quo erred
by imposing life imprisonment when the rape in question was not the
worst kind of rape;
(d) The court a quo erred
by imposing the sentence of life imprisonment in light of the
appellant being a first offender;
(e) The court a quo erred
by not taking into account that the appellant was 55-years of age
when he was sentenced to life imprisonment;
(f) The sentence of life
imprisonment is disproportionate to the offence; and
(g)
The court a quo erred by over emphasising the interests of the
community.
[5]
It is recorded by the court below that counsel for the appellant
relied on two aspects, apart from the personal circumstances
of the
appellant, as constituting substantial and compelling circumstances,
namely that the accused was a first offender and that
the victim did
not sustain any physical injuries. It is necessary to record that
although the appellant admitted a previous conviction
for assault,
that was not held against him by the court below.
[6]
In a carefully reasoned and detailed judgment the court below had
regard to the fact that the appellant had shown no remorse
and that
he had elected not to testify. The court had regard to his personal
circumstances, the brief particulars of which were
tendered from the
Bar. The appellant was 55 years old, unemployed and separated from
his wife. He has four minor children in respect
of which their mother
was in receipt of child support grants. Their mother was caring for
them. In respect of injuries, the doctor
had regard to the fact that
the medical evidence indicated that there was a tear in the victim’s
vagina and to the complainant’s
testimony that she experienced
pain during the rape. The court below correctly regarded the offence
as a serious. One can rightly
ask what could be considered more
heinous than the rape of a child by a father. See the remarks of
Cameron JA in
S
v Abrahams
2002
(1) SACR 116
(SCA) paras 17-23.
[7]
In remarkably similar circumstances, this court in
S
v PB
2013
(2) SACR 533
(SCA), after stressing that a prescribed minimum
sentence cannot be departed from lightly or for flimsy reasons,
refused to interfere
with a prescribed sentence of life imprisonment
imposed on a father who had raped his 12 year old daughter. While
this can only
serve as a guideline, it emphasises the necessity to
impose heavy sentences in cases such as the present, to prevent young
girls
from being abused. Before us counsel for the appellant was
constrained to concede that child rape is becoming prevalent in
Limpopo.
[1]
Indeed, child rape
is a national scourge that shames us as a nation.
[8]
In imposing punishment for rape relative to the circumstances one is
evaluating degrees of heinousness. Furthermore, counsel
accepted that
the record shows that the court below had carefully considered the
appellant’s personal circumstances. In short,
counsel for the
appellant was unable to point to substantial and compelling
circumstances justifying a departure from the prescribed
minimum
sentence. In our view the court below cannot be faulted for imposing
life imprisonment. Consequently the appeal against
sentence is
dismissed.
M S NAVSA
JUDGE
OF APPEAL
J
B Z SHONGWE
JUDGE
OF APPEAL
L
E LEACH
JUDGE
OF APPEAL
APPEARANCES:
FOR
APPELLANTS: Mr A L Thomu.
Instructed
by
Thohoyandou
Justice Centre, Thohoyandou
Bloemfontein
Justice Centre, Bloemfontein
FOR RESPONDENT: Mr N R Nekhambele
Instructed
by
The
Director of Public Prosecutions, Thohoyandou
Director
of Public Prosecutions, Bloemfontein
[1]
For recent cases
see
S
v MM
2012
(2) SACR 18
(SCA),
S
v SMM
2013 (2) SACR 292
(SCA),
S
v M
2013 JDR 2747 (SCA).