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[2018] ZAECPEHC 10
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S v April (CC32/2017) [2018] ZAECPEHC 10 (2 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, PORT ELIZABETH)
CASE NO.: CC32/2017
In
the matter between:
THE
STATE
v
SIMPHIWE
APRIL
JUDGMENT
SEPHTON
AJ:
[1]
The accused is guilty of one count of contravening section 15 of the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act
32
of 2007
in that he had consensual sexual intercourse with a thirteen
year old child.
[2]
In sentencing the accused, I have to take into account his personal
circumstances. He is 35 years old. He is not married
but has
two children who are 12 and 5 years old. He lives with the mother of
his five year old child and both the child and the
mother are
dependent on him. The accused left school at standard six due
to financial constraints.
[3]
The accused has the following previous convictions:
i.
In
1999 he was convicted for escaping or attempt to escape and was
imprisoned for six months;
ii.
In
1999 he was also found guilty of 2 counts of robbery and one of
housebreaking with intent to rob. The charges were taken together
for
purpose of sentencing and he was sentenced to 10 years imprisonment
suspended for five years.
iii.
In
2012 he was convicted of contravening
section 4
of the
Drugs and Drug
Trafficking Act 140 of 1992
and sentenced to a fine of R1000 or 150
days imprisonment.
[4]
The accused spent one month in custody prior to being released on
bail in respect of this offence.
[5]
The accused did not show any remorse for his actions and did not
express any regret that he had consensual intercourse with
a young
child whose family was well known to him. He also did not appear to
appreciate that he had abused a position of trust.
It is well known
that it is not safe for children to walk around at night alone and so
the complainant’s mother always made
sure that she was
accompanied by her friends or one of her brothers. According to
the accused, the complainant requested
him to accompany her home from
the tavern for purpose of safety. He abused this positon of trust.
[6]
He was not alive to the dangers of sexually transmissible diseases or
the prevalence of HIV/Aids and unwanted pregnancy. The
complainant
had to take anti-retroviral medication and the incident in question
caused great emotional distress for her and parents.
[7]
The
Criminal
Law (Sexual Offences and Related Matters) Amendment
Act
was
the culmination of a lengthy process of research and consultation
by the South African Law Reform Commission. Parliament has made
an
unequivocal choice of a uniform age of consent …and opted to
achieve the legitimate government purpose of protecting
children.
[1]
[8]
Both Mr van der Spuy for the accused and Ms Cerfontein for the
Prosecution confirmed that the accused had been found guilty
of a
serious offence and that a custodial sentence is the only appropriate
sentence. Mr van der Spuy did suggest that I consider
suspending a
part of the custodial sentence.
[9]
The Court in Dube
[2]
stated that
sexual
crimes are regarded as serious because in the present times sexual
molestation of children has become quite a serious social
problem,
giving rise as such to a legitimate uproar in the community (see the
matter of
S
v M
1998
(1) SACR 463
(SCA)).
[10]
The State has a duty to protect children against sexual exploitation
and the consequences thereof where such children have
not reached an
age at which, in the majority of cases, the child in question will
have the requisite cognitive development and
intellectual maturity to
fully understand and appreciate the nature and consequences of sexual
activities and to be able to give
an informed consent to such
activities.
[3]
[11]
Section 15
does not provide for any penalty for the contravention
thereof. To consider an appropriate sentence I need to consider other
cases
where the accused was convicted of contravening
section 15(1).
In all of these cases a custodial sentence was imposed even though in
some instances the perpetrator was a first offender.
11.1 In the Dube
[4]
matter,
the accused was convicted of statutory rape prior to the introduction
of the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act. He
received
a custodial sentence of 12 months imprisonment. Here the court took
into account that he was a first offender,
that
he admitted sexual intercourse; that at the time of sentencing
he had been in custody for just short of four years and
that at the
time of his arrest the appellant was gainfully employed as a taxi
driver and was responsible for his dependents including
his wife and
five minor children. The court also took into account that the
complainant was only one week away from the consenting
age at the
time of the incident.
With
respect I do not agree with Mr van der Spuy that the only difference
between the accused in this matter and Dube is the length
of the time
spent in custody. In this matter the accused only admitted that he
had had consensual intercourse with the complainant
when the
complainant had given evidence. He is not a first offender although
none of his previous offences are of a sexual nature
and he has only
spent one month in custody.
11.2
Similarly in Fhetani
[5]
where the accused’s conviction of rape was overturned on appeal
and replaced with one of statutory rape the court imposed
a sentence
of 3 years on the accused.
11.3
In Nelson
[6]
the court overturned a conviction of rape and replaced it with a
conviction of statutory rape in terms of the
Sexual
Offences Act No 23 of 1957. This act prescribed a sentence of
imprisonment for a period not exceeding six years with or without
a
fine not exceeding R12 000 in addition to such imprisonment.
The appeal court imposed a sentence of
three
years imprisonment of which two years and two months are suspended
for a period of five years on condition that the Accused/
Appellant
is not convicted of the crime of rape, sexual intercourse with a
child or any other offence under the Sexual Offences
Act No 23 of
1957 as amended or under the Criminal Law Sexual Offences and Related
Matters Act No 32 of 2007.
11.3
In Gwadi
[7]
a sentence of five years for contravening section 15(1) was confirmed
on appeal.
11.4
In
Sheldon-Lakey
[8]
the appeal court upheld a sentence of four years for
contravening section 15(1).
11.5
In the
Fisher
[9]
matter the appellant was convicted in the Regional Court, Mitchell’s
Plain on 6 charges under the Criminal Law (Sexual Offences
and
Related Matters) Amendment Act, 32 of 2007 (“SORMA”) and
sentenced to 5 years imprisonment in terms of s276 (1)(i)
of the
Criminal Procedure Act, 51 of 1977 (“the CPA”). The
appeal to the Western Cape High Court was against conviction
only,
the conviction was upheld.
[12]
While due weight must be given to the appellant's personal
circumstances, the offence he committed remains a serious one.
The
accused gave evidence that he has known the complainant and her
family since 2009 when the complainant was 7 years old. She
has grown
up before his eyes with him regularly visiting her home and
interacting with her family. He was placed in a position
of trust and
he abused this trust. As stated above he showed no remorse for his
actions.
[13]
Right thinking members of society expect adults to protect children,
not to abuse them. The sentence imposed upon the accused
must clearly
indicate that sexual intercourse by an adult with a child will not be
tolerated.
[10]
[14]
In my view an appropriate sentence would be five (5) years'
imprisonment. I accordingly sentence the accused to five (5) years'
imprisonment.
_____________________________
S
SEPHTON
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
For
the State:
Advocate Cerfontein, Director of Public Prosecutions,
Port Elizabeth
For
the Defence: Adv van der Spuy, Legal Aid
South Africa, Port Elizabeth
Date
heard 28 February 2018
Date
delivered: 02 March 2018
[1]
S
v Geldenhuys 2009(1) SACR 1 at 69
[2]
Dube
v S [
2004]
JOL 13221 (W),
[3]
S
v Geldenhuys 2009(1) SACR 1 at 63
[4]
Dube
v S [
2004]
JOL 13221
(W),
[5]
S
v Fhetani
[2007]
JOL 20663 (SCA)
[6]
Nelson,
unreported Western Cape High Court case no. A250/10 delivered on 8
February 2011
[7]
Sv
Gwadi [2014] JOL 31687 (ECG)
[8]
S
v Sheldon-Lakey 2016(2) SACR 632
[9]
Fisher
v
S (A51/2016)
[2018] ZAWCHC 15
(9 February 2018)
[10]
Gwadi
v S
[2014] JOL 31687
(ECG)