About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Makhanda
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Makhanda
>>
2023
>>
[2023] ZAECMKHC 60
|
|
S v Mpeni (Sentence) (CC13/2023) [2023] ZAECMKHC 60 (18 May 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO: CC13/2023
In
the matter between:
THE
STATE
and
NDITHINI
MPENI
Accused
JUDGMENT
: SENTENCE
SMITH
J:
1.
Rape is a horrendous crime. It
involves conceivably the most violent invasion of the victim’s
right to privacy and bodily
integrity and often leaves him or her
both physically and emotionally scarred for life. And as the
facts of this case demonstrate,
when the victim is a young child and
the rape occurred in a familial context, the ramifications are even
more far-reaching and
extensive. Apart from the psychological trauma
suffered by the young and impressionable victim, other members of the
family are
also profoundly affected in ways that are often overlooked
by the dispassionate observer. For, when that odious pebble is cast
into the placid waters of family life, the resultant concentric waves
of consequences often move quickly and inexorably to engulf
also the
mother, siblings and other family members.
2.
The child, wrecked by
conflicting feelings of guilt and anger, is invariably alert to the
harsh financial consequences resulting
from his or her decision to
report the rape. In addition to the incongruous but nevertheless
heart-rending sense of loss caused
by the perpetrator’s
incarceration, the child also has to struggle with the mistaken,
though compelling illusion that he
or she is to blame. Then of course
there is the possibility of social denunciation by peers and
siblings, who invariably do not
know how to relate to the victim. And
in a deprived socio-economic context, where the perpetrator is often
also the family’s
only provider, the victim’s mother is
agonisingly torn between her maternal instinct to nurture and protect
her offspring
and the financial hardship that will be caused by the
prosecution of the perpetrator.
3.
Sadly, those
considerations were the furthest away from the accused’s venal
mind when he decided to rape his ten year old
step-daughter on 7
October 2022, at M[....] V[....] in S[....]. He has explained the
harrowing circumstances of that fateful day
in his statement in terms
of section 112(2) of the Criminal Procedure Act as follows.
4.
At about 17h30 on that
day, after having spent some time at a tavern consuming alcohol, he
returned to the house where he lives
with his girlfriend, who is the
complainant’s mother. There he found his girlfriend, their two
year old child and the complainant.
After some time his girlfriend
left the house, leaving him alone with the two year-old and the
complainant. At some point the complainant
went outside to urinate.
He then also went outside and called the complainant back to the
house. As soon as she had entered the
house he grabbed her by the
hand, undressed her and then threw her onto the bed. He then raped
her vaginally. According to the
accused the complainant pleaded with
him to stop crying out: ‘stop father, stop father’. He,
however, did not stop
and continued to rape her until he ejaculated.
5.
His girlfriend returned
and found him still on top of the complainant. He admitted that he
had ejaculated into the complainant’s
vagina, did not wear a
condom and had known that he was HIV positive at the time. He
confessed to the rape immediately upon his
arrest.
6.
The discretionary
minimum sentence of life imprisonment is applicable in this case for
two reasons: first, because the victim was
under the age of 16 years
and second, because the accused had unprotected sexual intercourse
with the victim while knowing that
he was HIV positive.
(Section 51
(1) of the
Criminal Law Amendment Act, 105 of 1997
, read with
Part 1
of Schedule 2).
7.
That sentence must be
the point of departure and I can only deviate from it if I find that
there are substantial and compelling
circumstances which justify the
imposition of a lesser sentence than that of life imprisonment. In
the enquiry as to whether such
circumstances exist, I must have
regard to the traditional triad of factors that usually play a role
in sentencing, namely the
accused’s personal circumstances, the
nature and severity of the crime and the interests of society. I am
only at liberty
to depart from the prescribed sentence if, having had
regard to the abovementioned factors, I am of the view that the
imposition
of the sentence will be so disproportionate that it will
amount to an injustice. However, the prescribed sentence cannot be
departed
from lightly or for frivolous reasons. (
Sv
Malgas
2001 (1)
SACR 469
(SCA)).
8.
It is with the
aforementioned legal principles in mind that I now turn to consider
the accused’s personal circumstances.
9.
The accused is 52 years
old, a first offender, and at the time of his arrest, on 7 October
2022, he was employed by the local municipality,
where he earned
approximately R11 900 per month. He left school after completing
Standard 5. He was in a relationship with
the complainant’s
mother and at the time of his arrest they were living together with
their two year old child, the complainant
and her elder sister. He
also has two children from his previous marriage, a 22 year daughter
and a 16 year old boy. His daughter
is studying towards a university
degree and her sibling is still at school. They are both living with
their maternal grandmother.
He was the sole provider for both
families.
10.
Mr
Sojada
,
who appeared for the accused, has urged me to give due consideration
to the fact that he did not only plead guilty in court, but
has also
made a full confession soon after his arrest. He submitted that this
is proof that the accused is genuinely remorseful,
and despite the
fact that he was under the influence of liquor when he committed the
crime, he accepted full responsibility for
his deed. His honesty has
meant that it was not necessary for the complainant to go through the
trauma of having to recount her
experience in the hostile environment
of a court of law. Mr
Sojada
also submitted that it is evident from the Victim Impact Assessment
Report that the complainant has regarded the accused as a good
father
and that it was only on the few occasions when he was under the
influence of alcohol that he has behaved violently. He is
therefore a
good candidate for rehabilitation. He submitted that these factors,
when considered together with the accused’s
personal
circumstances, constitute substantial and compelling circumstances.
He nevertheless conceded that the seriousness of the
crime calls for
long-term imprisonment and submitted that, having regard to the fact
that the accused had been in custody since
his arrest, a sentence of
20 years’ imprisonment will be fair and just in the
circumstances.
11.
Those mitigating
factors must, however, be weighed against the aggravating features
which are evident from the Victim Impact Assessment
Report prepared
by Ms Nomonde Stamper, a social worker in private practice.
Unsurprisingly the report paints a disturbing picture
of a
traumatized young girl who struggles to come to grips with her
horrific experience. Ms Stamper testified that the complainant
has
clearly suffered long term psychological harm as a result of her
experience. She has become distant, suffers from hallucinations
and
has developed a fear of male persons. She is also being
socially rejected by her peers, who refuse to play with her.
12.
According to Ms
Stamper, the whole family have been affected by the incident. The
complainant’s mother, concerned about the
daunting prospect of
the family’s breadwinner being incarcerated, has attempted in
vain to withdraw the case. She is struggling
to come to terms with
the fact that her partner, whom she loved, could have done such a
terrible thing to her child. And to make
matters worse, she has been
blamed and rejected by the accused’s family.
13.
It is evident from the
report that the complainant regarded the accused as her father and
told Ms Stamper that he always provided
for the family and made sure
that he kept some money for rainy days. It was only when he was under
the influence of alcohol that
he was prone to violence and would
threaten her mother. Ms Stamper also testified that the complainant
poignantly reported how,
during a hallucinatory trance, she heard a
mocking voice declaring that her father will never return from
prison.
14.
Ms Stamper further
concluded that:
‘
The
minor complainant regarded the accused as her father. [She] does not
know her own biological father, She described the accused
as the
breadwinner within the family and the also the daunting (sic) father
she ever had. The rape ordeal adversely effected the
minor child to
greater extent in that it brought distorted beliefs to her as a
child. Trust had been broken. The internal working
model of trust had
been distorted. The child feels the world is not safe also around
people she can trust. She is hyper-vigilant
and always expecting
danger to happen. She is avoiding men in general when approaching
them on street. She is starting to exhibit
psychological effects of
the trauma as she is hearing voices, becoming distant, withdrawal
symptoms and feeling frightened when
she is called. She is
experiencing rejection within the community as her peers are
prevented from playing with her.’
15.
And regarding the
impact on the complainant’s mother Ms Stamper said the
following:
‘
[N]
is struggling to comprehend that her partner that she loves and trust
has committed rape to her daughter. She experienced shock,
disbelief,
sorrow and ambivalent feelings. Her ambivalent feelings were
displayed when she wanted to withdraw the rape charges
against the
accused. She is facing lots of confusion as she is financially
dependent upon the accused at the same time she has
got a duty to
protect her daughter from further traumatic events. [N] is currently
in a process of grief. The traumatic event is
a double crisis to her.
It questions her competence as a mother and make her doubt her own
self-concept.’
16.
It is thus manifest
that the complainant and her entire family have been profoundly
affected by her experience. The overwhelmingly
aggravating impact of
this fact is self-evident. Unsurprisingly, Ms Stamper recommends
psychotherapy and counselling for the whole
family.
17.
The complainant has
also suffered physical injuries to her private parts. She suffered
superficial abrasions and lacerations to
the posterior fourchette,
her hymen was open with clefts and bruises and there was clear
evidence of forced penetration. What renders
the accused’s
conduct even more reprehensible is the fact that he was aware of his
HIV status but nevertheless exposed the
complainant to the
possibility of infection.
18.
I am also mindful of
the fact that the accused was in a position of trust vis-à-vis
the complainant, who regarded him as
a father. He betrayed that trust
in the most brutal and tragic manner conceivable by raping her in the
sanctity of her own home,
a place where she was supposed to feel safe
and protected. It is not surprising then that according to Ms Stamper
she has become
irrationally fearful and distrustful of others.
19.
I must also have regard
to the fact that offences of this nature come before our courts with
alarming frequency. In fact, sexual
abuse of young and vulnerable
children has become a societal scourge. It is indeed a matter of
great concern that despite severe
sentences being meted out by courts
on a regular basis, the rate of recurrence of these crimes still
shows no sign of abating.
20.
To my mind the
aggravating features of this case are overwhelming and compelling.
The fact that the accused has pleaded guilty is
a neutral factor. He
was caught in the act of raping the complainant and on his own
version had ejaculated into her vagina. He
accordingly had no choice
but to admit guilt. It can therefore not be said that his guilty plea
was a show of genuine remorse,
and as Ponnan JA explained in
S
v Matyityi
2011 (1)
SACR 40
(SCA), at para 13, an indication of ‘that gnawing pain
of conscience for the plight of others’.
21.
And in my view any
mitigating impact that his clean record might have had is also
attenuated by the serious nature of his crime.
His personal
circumstances are ordinary and in my view they cannot, either on
their own or when considered collectively with other
mitigating
factors, constitute substantial and compelling circumstances.
22.
There can be little
doubt that society expects courts to impose sentences that will
reflect its abhorrence and outrage at these
type of offences, as well
as send a clear message to other would-be offenders. The crime thus
calls for the ‘severe, standardised
and consistent response’,
expounded in
Malgas
,
(supra at para 9).
23.
I am consequently of
the view that there are no substantial and compelling circumstances
that can justify a departure from the prescribed
minimum sentence.
24.
Before I proceed to
pass sentence I must express my concern about the fact that there is
no indication of any arrangements to ensure
that the complainant -
and for that matter her mother and elder sibling - receive
counselling or psychotherapy. I have considered
making the type of
prescriptive order which Norman J made in
S
v Nongogo
(Case no:
CC16/2022), but after having read that judgment, I realized that I do
not have sufficient information before me to justify
such a detailed
and prescriptive order. I therefore intend instead to request the
state counsel, Mr
Nohiya
,
to investigate the possibility of such an arrangement and to report
back to the court within a specified time period. I have noted
that
Norman J ordered the counselling sessions to take place at the
offices of the Department of Social Development in Stutterheim.
Since
the complainant and her family live in a village close to
Stutterheim, such an arrangement may well also be possible in this
case. I have little doubt that Mr
Nohiya
will pursue this
request with the same vigour and thoroughness with which he presented
the state’s case in this matter.
25.
In the result I make
the following order:
1.
The accused is
sentenced to life imprisonment.
2.
The state counsel, Mr
Nohiya
,
is requested to investigate the possibility of psychotherapeutic and
counselling sessions for the complainant, her mother and
elder
sister, and to submit a written report in this regard to the court by
16H00 on Friday, 30 June 2023.
J.E.
SMITH
JUDGE
OF THE HIGH COURT
Appearing
for the State: Mr.
Nohiya
Appearing
for the Accused: Mr.
Sojada
Date
of sentence: 18
May 2023