About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Grahamstown
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Grahamstown
>>
2022
>>
[2022] ZAECGHC 19
|
|
S v L.M (Sentence) (50/2021) [2022] ZAECGHC 19 (7 March 2022)
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, GRAHAMSTOWN)
Not
Reportable
Case
no: 50/2021
In the
matter between:
THE
STATE
and
LM
ACCUSED
SENTENCE
Govindjee,
J
[1]
L B is an intelligent young girl who
expresses her feelings in a diary. Full of life and motivation, she
hoped to become a lawyer.
She was 11 years of age when she was raped
by the accused. He was the husband of her foster mother and the child
treated him as
the grandfather of the household. She had tried to
resist him. He was found to have forcibly held her hands before
thrusting himself
into her. L B had felt pain and cried out, but he
had continued. The accused was convicted of the crime of rape.
[1]
[2]
A psychological assessment report about the
complainant, compiled by a suitably qualified social worker in
private practice, Ms
Stamper, was handed in by consent. That report
reveals that the rape experience has left the child with poor
self-esteem and feelings
of shame, anxiety, panic, fear,
helplessness, and other signs of psychological distress, including
outbursts of anger. Ms Stamper
concludes that the rape ordeal ‘stole
her childhood’, ‘killed her personality’ and will
influence her sexual
identity.
[3]
Mr M is 53 years of age, married and
educated up to grade 10 level. He has three children from a previous
marriage, two of whom
are minors living with his unemployed sister,
and dependent on a child support grant. Their mother has passed away
and Mr M is
the only surviving parent. He was employed in East
London, earning R5600 per month and maintaining his children. This is
his first
offence.
[4]
As counsel for the state argued, Mr M was
in a position of trust over the complainant and abused this in the
most egregious way.
He has not demonstrated any remorse or insight
regarding his crime, electing not to testify in mitigation of
sentence.
[2]
Despite compelling evidence implicating him, he maintained that
somebody else might have been the perpetrator. Yet it was Mr M
that
committed the act of rape of an 11-year-old child. It is L B that
will have to live with those consequences. To add insult
to injury,
she was made to relive her ordeal in court. The SCA has held that
this is a factor that should not be overlooked, resulting
in a child
having to relive a nightmarish experience.
[3]
[5]
As to society’s views, the remarks of
the court in
S v Ro and Another
[4]
are apposite:
‘
The
moral reprehensibility of rape and society’s abhorrence of this
rampant scourge are unquestioned. The most cursory scrutiny
of our
law reports bears testimony to the fact that our courts have, rightly
so, visited this offence with severe penalties. This
reprehensibility
and abhorrence are so much more pronounced in the instances of the
rape of very young children, as is the case
here. … the
complainant was an innocent, defenceless and vulnerable victim.’
[6]
Sentencing courts are obliged to consider
all these factors, known as the ‘sentencing triad’.
[5]
Punishment must be proportional to the criminal and the crime and be
fair to society. It should not be imposed out of a spirit
of anger or
retribution and should also, where circumstances permit, be blended
with a measure of mercy.
[6]
[7]
Minimum sentences have been introduced for
various reasons. The Director of Public Prosecutions relied on the
provisions of section
51(1), read with Part I of Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
in seeking life imprisonment
for the rape conviction. The legislature has determined that it is
this sanction, the gravest of all
punishments, that should
ordinarily, and in the absence of weighty justification, be imposed
for the rape of young children.
[7]
Every child is meant to benefit from the constitutional rights to be
protected from maltreatment, abuse and degradation, to freedom
and
security, which includes the right to be free from all forms of
violence and to have their privacy and dignity respected and
protected.
[8]
Society expects that courts will respond decisively to such
crimes.
[9]
[8]
While all considerations should be
carefully weighed, prescribed minimum sentences are not to be
departed from lightly and for flimsy
reasons.
[10]
Several cases have provided non-binding guidance to courts as to when
it would be appropriate to make a finding confirming that
the
‘composite yardstick’ (substantial and compelling
circumstances) has been met.
[11]
[9]
Aversion to imprisoning a first offender is
not, on its own, a factor intended to qualify as a ‘substantial
and compelling’
circumstance warranting deviation from the
prescribed minimum sentence.
[12]
Sadly, given the nature of the conviction, Mr M’s minor
children who depend upon him financially are destined to grow up
without his presence, irrespective of whether a life sentence is
imposed. The cumulative effect of the personal circumstances of
Mr M,
including his age, that he is a first offender and does not appear to
be a hardened criminal, and his financial support to
his own minor
children, are far outweighed by the seriousness of the offence and
its traumatic impact on the complainant.
[13]
The ordinary mitigating factors he has submitted pale when balanced
against the other factors to be considered.
[14]
Child rape has rightly been held to be a scourge that shames the
nation.
[15]
It has been said that:
[16]
‘
A
rapist does not murder his victim – he murders her self-respect
and destroys her feeling of physical and mental integrity
and
security. His monstrous deed often haunts his victim and subjects her
to mental torment for the rest of her life – a
fate often worse
than loss of life.’
This
was a specific form of domestic violence, stemming from a foster care
arrangement and a relationship between the complainant’s
foster
mother and Mr M. Her trust in him, as a father figure, has been
destroyed and she was raped in the sanctity of her home.
[10]
In this case, substantial and compelling
circumstances, individually or cumulatively, are not present to
justify a departure from
the prescribed minimum sentence. Life
imprisonment is not disproportionate to the crime, the criminal and
the needs of society
and I find that sentence to be just in the
circumstances.
Order
[11]
The following sentence is imposed:
a.
The
accused, LM, is sentenced to life imprisonment in respect of the
conviction of rape involving an eleven-year-old child.
b.
In
terms of
section 50(2)
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
, Mr Ms particulars, as a
convicted sexual offender, must be included in the National Register
for Sex Offenders.
c.
In
terms of
section 120(4)
of the Children’s Act 38 of 2005 and
section 41
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
, Mr M is declared to be unsuitable to work
with children, and it is directed that his particulars be entered in
Part B of the National
Child Protection Register.
d.
In
terms of
section 103(1)
of the
Firearms Control Act 60 of 2000
, Mr M
is declared unfit to possess a firearm.
_________________________
A. GOVINDJEE
JUDGE OF THE HIGH COURT
Heard:
07
February 2022
Delivered:
07 March 2022
Appearances:
Counsel for the State:
Adv H. Pienaar
Director of Public Prosecutions
Makhanda
046 602 3000
Attorney
for the Accused: Mr V.
Sojada
Legal Aid South Africa
Makhanda
046 622 9350
[1]
The accused was charged with rape in
contravention of
s 3
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
. He was found to be guilty
of this crime in that he unlawfully and intentionally committed an
act of sexual penetration of the
complainant on 8 February 2020.
[2]
See
K v S
[2014]
ZASCA 136
para 29.
[3]
MDT v S
[2014]
ZASCA 15
;
2014 (2) SACR 630
(SCA) para 2.
[4]
S v Ro and Another
2010
(2) SACR 248
(SCA) para 15.
[5]
S v Zinn
[1969]
3 All SA 57
(A) at 540G-H. On the functions to be served by
sentence, see
S v Matyaleni
[2021] ZAECGHC para 13. In this context, these factors must be
applied to consider whether substantial and compelling circumstances
exist to deviate from a prescribed minimum sentence:
Malgas
v S
2001
(1) SACR 469
(SCA) para 18.
[6]
S v Rabie
1975
(4) SA 855
(A) at 862G-H. Hastiness, the striving after severity and
misplaced pity are out of place in the sentencing exercise, as are
so-called exemplary sentences designed to use the crime to set an
example for others in society:
S v
Khulu
1975 (2) SA 518
(N) at 521-522.
The object of sentencing is not to satisfy public opinion, but to
serve the public interest:
S v
Mhlakhaza and Another
[1997] 2 All SA
185
(A) at 189.
[7]
See
S v Bull
2001
(2) SACR 681
(SCA) para 21. A meticulous weighing of all factors is
required before such a punishment can be justifiably imposed:
De
Lange v Smuts NO and Others
[1998]
ZACC 6
;
1998 (3) SA 785
(CC) para 61, quoted with approval in
S
v Dodo
[2001] ZACC 16
;
2001 (3) SA 382
(CC) para 8. Also see
S v Matyityi
2011
(1) SACR 40
(SCA) para 23 and
Malgas v
S
op cit fn 5 as quoted in
Otto
v S
[2017] ZASCA 114
para 21.
[8]
Ss 28(1)
(d)
,
12(1)
(c)
,
14 and 10 of the Constitution of the Republic of South Africa, 1996.
[9]
See, for example,
S v Jansen
1999 (2) SACR 368
(C) at
378h-379a, cited with approval in
K v S
para 25. Also
see
the recent judgment of Laing J in
Cook
v S
[2022] ZAECGHC 13 para 21. In
S
v Vilakazi
[2008] ZASCA 87
para 54,
Nugent JA noted that ‘… 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.’
[10]
S v PB
2011 (1)
SACR 448
(SCA) para 21;
S v Matyityi
op cit fn 7 para 23.
[11]
See, for example,
D
v S
[2016] ZASCA 123
para 11.
[12]
The Director of Public Prosecutions, Grahamstown v T M
2020
JDR 0652 (SCA) para 11.
[13]
D v S
op cit fn 10
para 12.
[14]
See
T M
op cit fn 12 para 11.
[15]
MDT v S
op cit
fn 3 para 7.
[16]
S v C
1996 (2)
SACR 181
(C) at 186
e-f
.