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[2023] ZAGPPHC 353
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Grobbler v S [2023] ZAGPPHC 353; A 214/2022 (23 May 2023)

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Note:
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION
PRETORIA)
Case No: A 214/2022
(1) REPORTABLE: NO.
(2) OF INTEREST TO OTHER
JUDGES: NO
(3) REVISED.
DATE: 23/05/2023
SIGNATURE:
In
the Matter between:
Jessica
Grobbler
Appellant
and
The State
JUDGMENT
Maumela J.
1.
This matter came before court as an appeal
which is opposed. The appellant is Jessica Grobbler, a female who was
23 years of age
at the time she was arraigned. She was legally
represented throughout the trial. Before the Regional Court for the
District of
Pretoria seated in Pretoria; the court
a
quo
. The appellant was charged with the
following:
1.1.
On Count 1.
Rape in contravention of section 3, read
with sections 1, 55, 56, 57, 58, 59, 60, 61 of the Sexual Offences
Act: (Act No 32 of
2007) read with sections 256 and 257 of the
Criminal Procedure Act 1977: (Act No: 51 of 1977) - CPA.
1.2.
Count 2.
Distribution of child pornography
in
contravention of section 49 28, 24 (b) (1) of the Films and
Publications Act
1996: (Act No 65 of 1996) as amended and read
with section 92 (1) of the Magistrates Court Act 1944: (Act No 32 of
1944 as amended
and also read with section 1, 2, 16, 18… 18
a), 22, 24 (c), and 30 of the said Act and also read with sections
256, 276,
337, of the CPA.
ALLEGATIONS.
2.
The allegations against the appellant were as follows:
2.1.
On Count 1
. In that upon or during May 2018, at or near East
Lynn in Pretoria in the Regional Division of Gauteng, the appellant
did unlawfully
and intentionally commit an act of sexual
penetration
with a female person to wit, […..] who was born on the 12
th
of October 2016, by putting her tongue in her vagina without her
consent.
2.2.
On Count 2
. In that upon or during May 2018, at or near East
Lynn in Pretoria in the Regional Division of Gauteng, the appellant
did unlawfully
and intentionally, knowingly made available, exported,
broadcast, distribute or caused to be distributed and made available
any
film, publication by storing and/or saving it on a cell phone or
sending it to  another person for financial gain which contains

depictions, descriptions or scenes of child pornography or which
advocates, advertises, encourages or promotes child pornography
or
sexual exploitation of children, to wit, images and/or video of the
child victim in count 1
3.
Later, by agreement, the charge sheet was
amended and the date on which the offences are alleged to have been
committed was noted
to be between May 2017 and May 2018.
4.
When the charges were put, the appellant
pleaded Guilty to both. In terms of section 112 (2), a plea statement
was submitted on
her behalf. In that statement, the appellant stated
that she is aware of the implications of section 51 (1), read with
Schedule
2 of the Criminal Law Amendment Act 1997: (Act No 105 of
1997) – CLAA.
5.
She also stated that she is aware of the
fact that upon conviction on the charge of Rape involving an infant,
a minimum sentence
of Life Imprisonment stands prescribed. She
understood that there may be a deviation from the imposition of that
minimum prescribed
sentence if substantial and compelling
circumstances justifying deviation from the imposition thereof are
found to be attendant
to her person.
6.
The Appellant stated further that in 2017,
her sister, Bianca Grobbler planted an idea in her mind and persisted
as a result of
which she ended up capitulating and doing what her
sister asked her to do. She said that Bianca told her that a certain
male known
as Carl requires pornographic photos of an infant and is
prepared to pay an amount of money for it.
7.
She said that her sister offered to capture
the sexual act involving her own infant daughter known as C[...]
G[...] who was born
on 12/10/2016. She committed the suggested sexual
act on her daughter while her sister Bianca filmed it on her cell
phone. After
a short while she stopped because she felt bad about
doing what she was doing.
8.
On the same day if not on the following,
the video depicting her performing a sexual act on her infant
daughter was relayed to Carl
in return for payment at an amount of R
350-00. She knew at all relevant times that what she is doing is
against the law. She stated
that she knows that she has no defence
regarding what she did.
9.
Concerning
Count
1
, the appellant conceded that her
tongue penetrated the child’s vagina. Concerning
Count
2
, she admitted that early in 2017, on
a date she can no longer recall, her sister Bianca recorded a video.
In that video she is
captured while performing acts of a sexual
nature on her infant daughter. She admitted that she knew well that a
video is being
generated to capture the sexual acts she was
performing on her infant daughter. At all relevant times, she was
also aware that
the video shall be forwarded to one Carl who shall in
turn distribute it to third parties.
10.
The appellant stated that Carl did pay for
the video and she believes that he distributed it, much as her sister
Bianca will also
have distributed the video. The video was
distributed without being edited. She has no defence for the crime
she committed.
11.
In terms of section 112 (2) of the CPA, a
statement being a plea explanation was prepared and read into the
record of the proceedings
of this case. The appellant confirmed
knowledge of the contents of the statement, much as she confirmed
having signed it. In the
statement, the appellant stated the
following under oath:
11.1.
On Count 1, She admitted:
11.1.1.
That she is aware that she stands charged
with rape of a minor as contemplated in section 51 (1), read with
Schedule 2 of the CLAA;
contravention of the provisions of section 28
of the Films and Publications Act
1996: (Act No 65 of 1996) -
Films and Publications Act.
11.1.2.
That
the offence of sexual assault only lasted for a short
while after which she felt bad and stopped.
11.1.3.
On the same day, she handed over a video recording of the
offences committed to a person she remembers by the name Carl. That
Carl
paid money to a person by the name of Elsie Bannister via a
ShopRite stop order after she gave her a pin-code and number.
11.1.4.
She believes that her sister Bianca is the one who handed over
the video recording to a phone inventory Elsie Bannister and that
she
was not involved in the process of handing over the video recording
to Elsie Bannister.
11.1.5.
She admitted that her actions amount to penetration within the
meaning of Act 32 of 2007 and that the said act constitutes rape of
a
minor child.
11.1.6.
She knew at all
relevant times that what
she is doing is wrong. She further concedes that she has no defence
to the charge of rape read with Act
32 of 2007.
11.2.
On
Count 2
: Distribution of pornographic material, she
admitted:
11.2.1.
She admits that the video was taken on her
Samsung JI cell phone
11.2.2.
She admits that the video which was handed
over to the police was in no way edited or changed. She further
concedes that thereafter,
without being edited or changed, the video
was exported into a compact disc marked ‘Villieria CAS
14705/2018 video’.
11.2.3.
She confirms that thereafter without being
edited or changed, the video was handed over to the Investigating
Officer, and was kept
under his control without editing, corruption,
damages or alteration.
11.2.4.
She knew all material times that the video
would be distributed to accept person in exchange of payment by such
third person.
11.2.5.
She confirms that she allowed a video to be
taken capturing her sexual attack on her infant daughter and that she
acted in co-operation,
association and common purpose with her sister
Bianca Grobler and a male person known to her as Carl.
11.2.6.
She signed this document with amendments on
the 23
rd
of January 202020 in confirmation of her agreement with its contents.
12.
In answer to questions by the court
a
quo
, the appellant stated that Carl was
paid an amount of R 350-00. She said she doesn’t have
particulars of Carl anymore. She
said however that she stored the
said particulars on her cell phone which is in the possession of the
police. She thinks that nothing
happened to Carl or her sister
Bianca. The child; (her infant daughter) was immediately placed under
foster care and she has no
right of access to the child.
13.
After the charge sheet was amended by
agreement, the state accepted the plea tendered by the appellant. The
birth certificate of
an infant child C[...] was accepted by agreement
into the record of the proceedings of this case as “Exhibit A”.
14.
On the basis of the pleas tendered by the
appellant and the statement tendered in in terms of section 112 (2)
of the CPA, the appellant
was found Guilty as charged. It was agreed
that a pre-sentence report and a victim impact report be obtained.
The following reasons
were advanced to motivate for the appellant to
be on extended bail pending the said reports:
14.1.
That despite knowing that she will plead
guilty and knowing what nature of sentence might be imposed on her,
the appellant dutifully
attended court each time she was supposed to
do so.
14.2.
That the appellant no longer has access to
the child who is the victim in the offences committed.
14.3.
That the appellant is heavily reliant on
her mother due to a condition of intellectual disability with which
she is laden. The condition
is recorder in the psychiatric report as
well as in the report of the GP and
14.4.
That there shall be no further interference
with the victim since the child has been taken away into foster care.
The appellant
no longer has access to the child.
15.
Taking into consideration that the
appellant was convicted and that she was facing a possible sentence
of Life Imprisonment the
subtle little appellant reported, the court
a quo
dismissed the application for the extension of the appellant’s
bail.
16.
In mitigation of sentence, the following
submissions were made on behalf of the appellant.
16.1.
That the appellant is 33 years of age.
16.2.
She is unmarried.
16.3.
She has one child who
16.4.
happens to be the victim of the
offences which were committed.
16.5.
The appellant passed Grade 10 at
Magaliesburg Special School.
16.6.
She has no previous convictions to her
name.
16.7.
She is unemployed and she is effectively
unemployable and
16.8.
She is considered to be too slow.
17.
Before her incarceration, the appellant
used to live with her parents. She was dependant on them financially
for purposes of maintenance.
She has remained in custody from the 5
th
of March 2020. Although the appellant started at a normal school,
when it emerged that she is laden with mental challenges, she
was
moved to a special school where she progressed up to Standard 10.
18.
A mental report by Dr. Saulus, a
psychologist report by Dr. Mathabela as well as the pre-sentence
report by a doctor whose name
is inaudible on the record as well as
the pre-sentence report by R.H. Nel, reflect the personal
circumstances of the appellant.
It was stated that the offences were
committed in the presence of a sister to the appellant known as
Leandra Grobbler. Leandra
recorded a video which was forwarded by the
appellant and another person to a third party in exchange of payment
at an amount of
about R 300-00.
19.
It was stated that the appellant’s
sister Leandra continuously pestered the appellant with requests for
her to commit the
sexual acts on her daughter. Eventually, the
appellant capitulated and committed the act. The offences committed
are serious and
they were motivated by a desire to gain financially.
It was stated in a report that the child-victim has shown some
disturbing
abnormal behaviour.
20.
It is submitted that the child victim will
experience long-term emotional and mental scars because of the sexual
assault she suffered.
While the appellant did not show remorse for
what she has done, it is also submitted that she lacks the necessary
cognitive ability
to enable her to appreciate the wrongfulness of her
act. This was also confirmed by Dr. Saulus and the psychiatric
people. It was
submitted that they appellant is not like any normal
person who has the ability to act in line with her knowledge of what
is right
or wrong and what the consequences of her action may be.
21.
It was submitted that as a result, the
appellant is not able to display remorse or a sense of guilt in the
ordinary or normal way.
It was submitted however that this does not
mean that the appellant does not feel a sense of guilt in her own
way. It is that feeling
of guilt which caused her not to prolong the
unlawful act. She cries frequently cries because she lost custody of
her child. This
shows that she appreciates the wrongfulness of what
she did. In pleading guilty and fully disclosing her actions, the
police and
before court, the appellant was displaying her
appreciation of the wrongfulness of the acts.
22.
It was also pointed out that the appellant
is gullible and can be influenced and manipulated. She was also
influenced by Bianca,
her sister. There is not clear explanation on
the record regarding why charges against Bianca, the appellant’s
sister, were
withdrawn. At the same time, there is no clear
explanation on why Bianca’s influence on the appellant does not
seem to have
contributed in increasing mitigation against her
sentence.
23.
If the appellant committed these offences
while a video was being recorded with a cell phone, it clearly means
that she was not
alone in committing the unlawful acts. If she had no
other use for the video clip other than to distribute it in return
for money,
then clearly she should not have stood trial alone. From
the record, there is no clarity about what happened to all the other
people
who were directly or indirectly involved.
24.
If the appellant was scientifically proven
to be of a compromised mental condition, then her blameworthiness
would have been somewhat
reduced at the time of the commission of the
crimes. All the factors listed either to demonstrate that the
appellant was to a certain
extent influenced by another if not others
to commit the offences or to demonstrate that her mental capacity was
not capable of
fully appreciating the wrongfulness of her actions
when taken together should have the effect of mitigating notably
against the
sentence imposed upon her.
25.
It
is trite that there is no exhaustive list of circumstances that
fulfil a definition of what is referred to as ‘substantial
and
compelling’ circumstances. In the case of
S
v H
[1]
,
Labe J held as follows:
“
I
do not think that one should attempt an exhaustive definition of what
is meant by the word exceptional circumstances.”
It
was submitted on behalf of the appellant that the court
a quo
should find that substantial and compelling circumstances are
attendant to the person of the appellant and therefore that a
sentence
lesser than the minimum prescribed ought to be imposed.
26.
It was submitted that the appellant’s diminished
criminal capacity was notably reduced by her intellectual impairment.
The
appellant herself has been a victim of sexual abuse. It was
further submitted that the fact that the appellant was using drugs at

the time of the commission of the crimes should also mitigate against
sentence.
27.
Ms. R. H. Nel, the social worker who had opportunity to assess
the appellant reported that she regards her to be like someone who

functions at the level of a young teenager. She reported that she
finds the appellant to be of a mental development age of about
16
years. The fact that the appellant lost custody of her child because
of the crimes she committed imposed on her the worst punishment
a
mother should ever endure. It was pointed out that when the offences
in issue in this case, were committed, the child-victim
suffered
neither violence no scars. It is submitted that the rape committed in
this case compares better to others. Although one
can hardly talk of
any rape being better, it is so that there are instances where the
violence, the cruelty and the effect of the
rape is worse when
compared to others.
28.
In
the case of
S
v Mahomotsa
[2]
,
the court stated the following:
“
Even
in cases falling within the categories delineated in the Act there
are bound to be differences in the degree of their seriousness.
There
should be no misunderstanding about this: they will all be serious
but some will be more serious than others and, subject
to the caveat
that follows, it is only right that the differences in seriousness
should receive recognition when it comes to the
meting out of
punishment. As this Court observed in S v Abrahams
[3]
some
rapes are worse than others and the life sentence ordained by the
Legislature should be reserved for cases devoid of substantial

factors compelling the conclusion that such a sentence is
inappropriate and unjust.
(para 29).
29.
The state argued that at the time of the
commission of the crimes, the appellant was able to distinguish
between right and wrong.
It pointed out that the commission of the
offences was motivated by the urge to gain financially. The state
emphasized that in
determining a fitting sentence to be imposed, the
court has to take into consideration the interest of the victims of
the crimes,
especially where those victims are children. The State
urged the court take a dim view of the fact that the victim of the
crimes
in this case was only 18 months old.
30.
In the case
of
S v
Malgas
[4]
,
where the court had to consider the imposition or otherwise of a
prescribed minimum sentence, it stated as follows:
“
The specified
sentences are not to be departed from lightly and for flimsy reasons.
Speculative hypotheses favourable to the offender,
undue sympathy,
aversion to imprisoning first offenders, personal doubts as to the
efficacy of the policy underlying the legislation
and marginal
differences in personal
circumstances
or degrees of participation between co-offenders are to be excluded.”
31.
The court imposed the following sentences upon
the appellant:
31.1.
On Count 1, the Appellant was sentenced to undergo 25 (twenty-five)
years imprisonment.
31.2.
On Count 2, the appellant was sentenced to
undergo eight years’ imprisonment.
31.3.
In terms of section 280(2) of the Criminal
Procedure Act 1977: (Act No 51 of 1977) – CPA, the sentence of
eight (8) years
imprisonment was ordered to run concurrently with the
sentence in Count 1.
31.4.
No order was made in terms of Section 103 (1)
(g) of the CPA.
32.
In
S
v Katman
[5]
,
a decision which was repeated in
S
v Promo
,
the court stated the following:
“
Remorse was
said to be manifested in pleading guilty and apologizing through the
counsel, who did so on his behalf from the bar,
to both Ms. KD and
Mr. Canon. It has been quite correctly that to plead guilty, even in
the case of an open and shut case against
the accused person is a
neutral factor. There is moreover a chasm between the … Many
accused persons might well regret their
conduct but but that does
not, without more translate to genuine remorse. Whether the offender
is sincerely remorseful in not seeking
even … on herself …
is a factual question. In order for the remorse to be really a
consideration the context must
be sincere and the accused must take
the court fully into his or her confidence,”
33.
The court
a quo
took into consideration the harsh effects of
rape against the victim. it also took into consideration the fact
that the appellant
was using drugs around the time when she committed
the offences. Because of this crime, the child now has to be brought
up by people
other than her biological mother.
34.
On count 1, the appellant was sentenced to undergo twenty-five (25)
years imprisonment. On count
2 the accused was sentenced to undergo
eight (8) years imprisonment. It was ordered that the eight (8) years
imprisonment imposed
in respect of counts 2 shall run concurrently
with the sentence of twenty-five 25 years imposed in respect of Count
1.
35.
The sentences imposed against the appellant do not exceed what the
relevant
minimum sentences legislation
provided for. Loss of the custody of her infant child, has a punitive
effect on the appellant. She
constantly cries about it. It is not
clear why the appellant’s sister who influence her to commit
the crimes faced no consequences.
36.
The opinion of the social worker who assessed the appellant is that
viewed that the mental development
age of the appellant is about 16
years. This evidence has not been disputed. The court takes into
consideration the inferior mental
quality of the appellant. It views
that such consideration should lead to the imposition of a sentence
which is less than a sentence
that should be imposed upon someone
whose mentality is fully developed.
37.
It also
takes into consideration the reality that the appellant is not likely
to subject the child-victim, or any other child the
kind of abuse,
especially sexual abuse to which the child in this case was
subjected. While the sentences imposed upon the appellant
are of
magnitudes that are within what the prescribes minimum sentence
legislations provides for, it is necessary in this case
to look at
the crime committed, the circumstances of the accused and the
interests of the community. The court in the case of
S
v Zinn
[6]
stated that in imposing the sentence, courts have to take into
consideration, the crimes committed, the interests of the accused,

and the interests of the community.
38.
The appellant is a person with limitations in that her mental
development had limitations. Her
uncontroverted evidence is that she
did not commit the offences as soon as the idea of doing so was
planted in her mind. She took
time pondering over whether she does it
or not. Compared to her sister, her capacity to make sound decisions
was weaker. The sister
kept on influencing and goading her until she
got convinced to do it when promises of financial gain were made to
her.
39.
Our courts
have always viewed that the consideration of sentences to be imposed
on offenders should be tinged with a measure
of
mercy. In the case of S v V ,
[7]
at page 614D-E, Holmes JA emphasised that:
“
the element of
mercy, a hallmark of civilised and enlightened administration
,
should
not be overlooked
”.
Holmes JA added that mercy was an element of justice and referred
with approval to
S
v Harrison
[8]
at
686A, where the learned judge had said that, “
justice
must be done; but mercy, not a sledge-hammer, is its concomitant”
.
40.
The appellant is a first offender. Mentally, she is not as developed
as a normal person of her
age should be. Her capacity to reason is
compromised. For the commission of the offence in Count 1 to be
captured on a video, more
than one person was required to
participate. Yet the appellant was tried, convicted and sentenced
alone. It is not clear how that
came about. Evidence suggests that
manipulation by the appellant’s sister also played a role in
driving her to commit this
offence.
41.
I view that the cumulative set of circumstances surrounding the
appellant should influence towards
a lesser sentence than that which
was imposed upon the appellant for purposes of Count 1. For that the
reason, the sentence of
25 years imprisonment imposed upon the
appellant in respect of Count 1 stands to be reduced in recognition
of the influence she
was under at the time of the commission of the
offensive Count 1.
42.
Given the overall circumstances of the appellant, the court views
that the court
a quo
did not give sufficient consideration to
her circumstances. I find that the sentence imposed upon the
appellant in respect of the
offence in Count 1 is overly harsh. I
find that whereas the court a quo exercised its discretion in
imposing the sentence it did
upon the appellant, the manner in which
it did so is unreasonable. As a result, I find that in determining
sentence, the court
a court
a quo
misdirected itself with
serious consequences..
43.
In the case
of
S v
Pillay
[9]
,
at page 535E-F, the court stated the following concerning whether a
sentencing court exercised its discretion correctly
:
“
Now the word
“misdirection” in the present context simply means an
error committed by the court in determining or applying
the facts for
accessing the appropriate sentence. As the essential inquiry in an
appeal against sentence, however, is not whether
the sentence was a
right or wrong, but whether the court in imposing it exercised its
discretion properly and judicially, a mere
misdirection is not by
itself sufficient to entitle the Appeal Court to interfere with the
sentence; it must be of such a nature,
degree, or seriousness that it
shows directly or inferentially, that the court did not exercise its
discretion at all or exercised
it improperly or unreasonably. Such a
misdirection is usually and conveniently termed one that vitiates the
court’s decision
or sentence”
44.
I therefore find that there is cause to interfere with the sentence.
Consequently, the court makes
the following order:
ORDER:
44.1.
The appeal against sentence in respect of Count 1 is upheld.
44.2.
The appeal against sentence in respect of Count 2 is dismissed.
44.3.
The sentence in respect of Count 1 is set aside and is substituted by
the following sentence:
44.3.1.
On Count 1; the accused is sentenced to undergo 12 (twelve) year’s
imprisonment.
44.4.
In terms of Section 280 of the Criminal Procedure Act 1977: (Act No
51 of 1977), the sentence
in respect of Count 2 is ordered to run
concurrently with the sentences in Count 1.
44.5.
No order is made in terms of section 103 of the Firearms Control Act,
2000: (Act No 60
of 2000).
T.A. Maumela.
Judge of the High Court
of South Africa.
I agree.
P. D. Phahlane.
Judge of the High Court
of South Africa.
Date
of hearing:       07 March 2023
Date
of judgment:    23 May 2023
[1]
.
1999 (1) SACR 72
(W), at 77 c – e.
[2]
.
2002 (2) SACR 435
(SCA).
[3]
.
2002 (1) SACR 116 (SCA).
[4]
.
2001 (2) SA 1222 (SCA).
[5]
.
(1) SALR 286
[6]
.
1969 (2) SA 537 (A).
[7]
.
1972 (3) SA 611 (A).
[8]
.
1970 (3) SA 684 (A).
[9]
.
1977 (4) SA 531
(A).