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[2022] ZAECMKHC 43
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S v SN (CC16/2022) [2022] ZAECMKHC 43; 2022 (2) SACR 149 (EC); [2022] 3 All SA 497 (ECG) (20 April 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO: CC16/2022
In
the matter of:
STATE
v
S
N
Accused
JUDGMENT
Date
: 20 April 2022
NORMAN J :
1
The Director of Public Prosecutions
for the Eastern Cape Division, prosecuting for and in the name
of the State preferred
a rape charge against Mr S N ( who shall be
referred to hereinafter as the accused) , a 46 year old male person.
The charge
is premised on the contravention of section 3, read with
sections 1
,
56
(1),
58
,
59
and
60
, of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 32 of 2007
, read with
section 94 of the Criminal Procedure Act, 51 of 1977 ( the “CPA”)
.
2
The State alleged in the indictment
that on divers occasions between 11 and 13 October 2021
and at or near No. [4……….],
Stutterheim , the
accused did unlawfully and intentionally commit acts of sexual
penetration with AM, a ten year old girl, by having
repeated sexual
intercourse with her
per vaginam
without her consent and against her will. The Director of
Public Prosecutions further requested that in the event of a
conviction
she will rely on the provisions of section 51(1) of the
Criminal Law Amendment Act, 105 of 1997 (as amended) read with Part 1
of
Schedule 2 relating to a discretionary minimum sentence of life
imprisonment in that the victim was a person under the age of 16
years and was raped more than once by the accused. Attached to
the indictment was a summary of substantial facts upon
which
the State relied which was furnished in terms of section 144(3) of
the CPA. It is common cause that the minor girl child
was born on
20 November 2011.
3
Before me, Ms Hendricks
appeared for the State and Mr Sojada appeared for the accused.
After the charge was put to the
accused, he pleaded guilty and a
statement in terms of section 112(2) of the CPA signed by the
accused was read into the
record.
3.1
The State accepted the following facts
which were stated by the accused in his statement filed in support of
the guilty plea. They
are :
”
I
hereby plead guilty to the following charge:
4.1
Rape:
In
that on the 11 and 13 October 2021 and at House No [4………],
Stutterheim, in the District
of Stutterheim, I did unlawfully and
intentionally commit acts of sexual penetration with
AM
, a 10
years old girl, by repeatedly having sexual intercourse with her per
vaginam without her consent and against her will.
I am
therefore guilty of contravening Section 3 of Act 32 of 2007, read
with section 51(1) of Act 105 of 1997, in that I raped
the
complainant, who is under the age of 16 years without her consent and
against her will. I understand that a discretionary
minimum
sentence of life imprisonment is applicable.
The facts on which I plead guilty are
as follows:
5.1 On 11 and
13 October 2021 I was staying at house No. [45….. ],
Stutterheim. I slept
at house No. [447….] Location,
which house is next door to house No.[ 450….] and sometimes
spent the day at house
No. [476…] where the incidents
happened.
5.2
The complainant, AM, who was 10 years old when the incidents
occurred, is my brother’s child and
lives at house No. [450…
…] with her paternal grandmother ,
Mrs
[NN….]
5.3 The
complainant and her younger brother used to visit me at house No.
[447….] where they played.
5.4 On the
11
th
day of October 2021 I was at house No. [447..] as
usual. I asked the complainant to fetch water for me after
school came
out that day. She put the water in the cupboard.
I then undressed her panties and engaged in sexual intercourse with
her. I knew very well that she was 10 years old and did not
have capacity to consent to sexual intercourse.
5.5 I did not
promise the complainant anything other than using my position of
power and trust to get her
to submit to my demand to have sexual
intercourse with her.
5.6 On the
13
th
day of October 2021 the complainant again came to my
house, No. [447…], after school came out to fetch water for
her grandmother.
I called her over and asked her to fold my
clothes. I then undressed her panties and had sexual
intercourse with her.
5.7 After I
had sexual intercourse with the complainant, BH, an 18 year old girl
who kept her clothing at
house No. [447…], entered the shack
where I was with the complainant.
5.8 I covered
the complainant with a blanket so that BH could not see her on the
bed with me.
5.9 I realised
that BH was suspicious as she enquired why I was still covered by
blankets during the day.
5.10 I told her that I was
resting and she left.
5.11 I immediately asked the
complainant to go to her grandmother’s house.
5.12 I later learnt that BH saw
the complainant leaving my shack and reported the matter.
5.13 The father of the
complainant, who is my brother, approached me after he learnt of the
incidents. He asked me what
I had done to his child. We
were in the presence of our sister S N N.
5.14 I told him that I was
overwhelmed by sexual urges and raped his child as a result.
5.15 My brother drew a knife and
stabbed me. The community also assaulted me thereafter.
5.16 I was taken to hospital
where I was admitted for 14 days (from 22 October to 4 November
2021).
5.17 The Investigating Officer,
Warrant Officer Mhlambiso, arrested me in hospital on 24 October
2021.
I wish to make the following
admissions in terms of Section 220 of Act 51 of 1977
6.1 I admit
that my actions were unlawful, intentional and punishable in terms of
the law.
6.2 I admit
the content of the birth certificate of the complainant, AM, to the
effect that she was born
on the 20
th
November 2011 and was
10 years old at the time of the commission of the offence.
6.3 I further
admit that the complainant lacked capacity to consent to sexual
intercourse at the date of
the commission of the offences.
6.4 I admit
and understand that my conduct on the days in question was rape.
6.5 I admit
that I used my position of power and trust against the complainant to
get her to submit to my
demands for sexual intercourse.
6.6
I admit the contents and correctness of the medical report (J88)
compiled by Dr. P P. Conjwa.
”
4
Thereafter I put certain questions
to the accused inorder to satisfy myself whether he confirmed,
understood and appreciated the
nature and
import
of
the statement including the facts contained therein , which he
confirmed. The State accepted the plea and the facts upon which
it
was premised. Upon being satisfied that the accused intended to plead
guilty, I accordingly found him guilty as charged.
5
The State proved certain
previous convictions against the accused which related to ,
inter
alia,
theft and assault with intent to
do grievous bodily harm. It was conceded by the State that for
the purposes of sentencing
herein those previous convictions are not
relevant.
Evidence
in mitigation
6
The accused testified under oath in
mitigation of sentence. He was born on 3 June 1975. He is 46
years of age. He left school
at Standard 5. He is unemployed and has
been unemployed for many years. He is not married and does not have
children of his own.
He resided at house no. [450..] with
his grandmother Mrs N N. He apologised for his actions to his
grandmother, his
family, the victim and to the members of his
community. He spent approximately five months in prison awaiting
trial. He suffers
from high blood pressure which is under
control. He confirmed that the complainant is his niece and
acknowledged that he
was supposed to protect the complainant and not
be the person who hurt her. He took responsibility for
his actions.
7
He further testified that on
20 October 2020 he was stabbed by his brother below the left shoulder
after he confronted him about
the rape incidents. He was
further assaulted by the community on 22 October 2020 which
resulted in him sustaining
fractures to his jaws . At the
hospital they put in
jaw
wiring
that
was taken off on 15 December 2021. He was hospitalised for
a period of fourteen (14) days. He asked for forgiveness
and
mercy from the court.
He
asked for a sentence of twenty years instead of life
imprisonment .
8
Under cross-examination by Ms
Hendricks it transpired that he was staying in a shack at house 4476
where the offences took place
because he had been asked to look after
the house.
He was not paying any rental for it. He stated that he did not
have an opportunity to apologise to his brother and
to the child
because his brother simply fought and stabbed him. The reason he
committed the offence was that he had sexual urges.
At the time of
the commission of the offence he did not have a girlfriend. He
knew that the child was young and he also knew
that the child looked
up to him as her uncle for protection. He acknowledged that
what he did was wrong because he concealed
his actions from people.
He undertook not to commit the offence again.
He
denied that he threatened the child as reported in the social
worker’s report to which I shall refer later.
He felt sorry that the child
was experiencing nightmares. He understood the consequences of
his actions. It was put
to him that the complainant’s father
and his sister do not accept his apology. He confirmed that he had
laid a charge against
his brother for stabbing him and that case
is pending before the district court in Stutterheim. He
confirmed that the
five year suspended sentence in relation to the
assault with intent to do grievious bodily harm charge had not lapsed
when he committed
the offence of rape. He accepted that according to
his statement there was a day in between the rape incidents.
The
defence closed its case in mitigation of sentence.
Evidence
in aggravation of sentence
9
The State called the evidence of Dr
Pilela Patience Conjwa who examined the child at the Stutterheim
Hospital where she has been
employed since 2020. She testified
that this was her first paediatric rape case. She qualified
from the University
of the Free State and has a MBCHB degree.
She is registered with the Health Professions Council and is
currently employed
at the Stutterheim District Hospital. At
university , she dealt with anatomy as part of her degree courses.
She examined
the minor child on 20 October 2021 and completed a
medical report. She recorded that the complainant weighed 22,5 kg and
her
general body build was normal for her age but she was petite.
Her breasts were still developing. The minor child did not know
what
a condom was. She did not observe any injuries or abrasions on her
skin . She noted a white thick discharge coming from the
child’s
vagina but she did not investigate it. She observed slight redness in
the para- urethral folds. In conclusion
she stated the
following:
“
Presents
with history of sexual assault by uncle. Uncle raped her,
penetrating vagina only. Incident occurred Monday
11 October
2021. Again she was raped on Tuesday 12 October 2021 and
again Wednesday 13 October 2021 by same
uncle.
”
10
In describing her observations on
the hymen she wrote “
mostly intact
micro perforated
”. She did
not observe any tears or swelling. She explained that a
hymen itself does have one perforation
which will allow a blood to
come out when a child reaches the stage when she menstruates. She
found that the small holes that were
on the hymen were normal because
the hymen differs from person to person. She was not able to admit
any fingers into the victim’s
vagina because the victim was in
pain and was uncomfortable. There was no bleeding or bruising
observed. There were no signs of
injury noted on anal examination.
Under- cross
examination she testified that because the hymen was not torn that
does not mean that there was no penetration.
She stated that
because the
child was very young the
healing process in the vaginal area took place very quickly.
11
She explained
the
reason why the hymen would remain intact although there was
penetration. She stated that during penetration the victim
could
experience what she referred to as thickening of the hymen itself,
that the hymen can stretch with certain activities and
if the patient
is sweet-talked there would be less damage during penetration.
The other reason is that if the victim was more relaxed and the
pelvic muscles were relaxed then the victim would not experience
brutal tearing. She indicated there was no evidence that any
force was used due to the quick healing process that happened.
She testified that penetration does not necessarily mean that the
hymen should be torn because that depends on how deep one penetrated
the child.
12
Although this was her first
paediatric rape case, she did perform examinations on adult rape
victims. She did not concede that this
was not a brutal rape case
because of the healing process that had intervened prior to the child
approaching the hospital.
She stated that the healing process
during trauma is quite rapid it takes between four to seven days.
She only examined the
child using her naked eye. The medical
report had been accepted by the accused and the evidence of Dr Conjwa
was not seriously
challenged. I accept her evidence as it
reflected her findings at the time of examination. I am satisfied
that the child
sustained injuries consistent with having been
sexually assaulted by the accused. Dr Conjwa did not exaggerate or
speculate on
the gravity of the injuries and was consistent in her
responses in relation to her observations and findings.
13
The next witness called was Captain
Jiya. Captain Eunice Jiya is registered with the South African
Council for Social Service
Professions. She qualified at the
University of Fort Hare with a Bachelor of Social Work and a Masters
degree in social work
in forensic practice completed at the
University of North West. She has a certificate in advanced
forensic training (managing
difficult and complex cases in child
sexual abuse investigations). She was appointed as a social
worker by the Department
of Social Development in Port St Johns from
23 February 2009 up to 31 March 2017. She was also
appointed by the
High Court , Mthatha , as an intermediary in some
child sexual abuse cases and was appointed as a principal social
worker by the
South African Police Services and is based in King
William’s Town . Her duties entailed conducting special
forensic
social work related investigations in cases of child sexual
abuse and to compile scientific based reports and testify as an
expert
witness in court.
14
In respect of this case the
child was referred to her by Sgt Thomson to assist with the impact of
the offence on the child .
She assessed the child on two
occasions being 2 March 2022 and 4 April 2022. The
sessions were conducted at the
King William’s Town FCS Unit and
at the Stutterheim Detective Unit. She assessed,
inter
alia,
the developmental
capabilities, cognitive language and memory development of the child
. She found that the child was
in the third cognitive
developmental stage known as concrete operational stage which applies
to children between the ages of 7
and 12. She relied in her
report on various authors . She testified that :
14.1
She found that the complainant was able to
differentiate between the truth and a lie and verbalised that it is
not good to lie.
She could identify different colours.
She understood that she was a girl and knew the difference between a
girl and a boy.
She was able to communicate in isiXhosa in a
manner that was understandable by adult listeners. Her
vocabulary and conversation
skills were assessed. She freely
narrated the alleged rape incidents during the assessment. The
competency assessment that
was done showed that the minor child was
able to recall and relay the information about the rape incidents.
14.2 The minor child was
greatly affected by the rapes.
She had
been deprived of her childhood and she was not performing well at
school. She was not able to state whether
the child would ever
recover from the emotional trauma . She recommended that the child
should receive ongoing therapy to cope
with the trauma and to deal
with the anger that she was exhibiting when she was playing with
other children as she was beating
them .
14.3 The child informed
her that she was angry with the accused and
wanted to beat
him when she saw him. The child also
informed her
that the accused
told her not to tell anyone about what
happened and if she did he would kill her.
She was
experiencing stomach aches after the incidents.
14.4
She also
interviewed the child’s mother , grandmother and cousin. The
mother reported that after she had taken the child to
hospital the
child was vomiting and not eating. Her cousin SN observed that
the child was not doing well at school. She had
to repeat herself
when talking to the child. She was always beating other children when
playing with them. The grandmother
of the minor child reported
that the child had nightmares.
14.5
Captain Jiya
testified that it became evident to her that the child was very
angry and she needed therapy to manage that anger.
Captain Jiya relying on several authorities in her
findings, found relying on one
Lewis
(1999)
, that sexual abuse does not only
result in the loss of childhood but also gives rise to the more
serious symptoms of a complex
post-traumatic disorder. She
defined this disorder as a prolonged, repeated trauma where there is
often a relationship between
the victim and the perpetrator.
14.6
Since young children are egocentric by
nature they mistakenly accept responsibility for other people’s
action towards them.
This could be exacerbated by what the
alleged perpetrator said to the victim during the abuse. In
this case , the minor child
blamed herself that her uncle was
arrested because she does not have the mental capacity to understand
that he was arrested because
of what he did to her. Relying on
the work of
Finkelhor v Brown (1995)
quoted by Holly and Miller 2009 developed a systematic model that
conceptualises the impact of sexual abuse which can be used in
both
further research and for the purposes of treatment.They refer to this
model as Traumagenics. Traumagenics suggest that
the experience
of sexual abuse can be defined in terms of four Traumagenic dynamics.
The traumagenic dynamics alter a child victim’s
cognitive and
emotional orientation to the world. These distortions often
result in behavioural problems that are commonly
noted in victims of
sexual abuse.
14.7
She further dealt with the issue of
betrayal and relied in this regard on certain literature. She
observed that the child
realized that someone she loved or whose
affection was important to her treated her with total disregard.
A complainant whose
feelings of betrayal are intense often show signs
of grief and depression over the loss of a trusted person. The
minor child
voiced that she was hurt by what her uncle did.
Relying on literature she found that complainants tend to show
aggressive
behaviour in response to anger stemming from feelings of
betrayal. This aggressive behaviour is argued to be a primitive way
of
trying to protect oneself against future betrayals and can develop
into more serious antisocial behaviour and delinquency if untreated.
She found that the child was experiencing fear and had reported that
she felt that she felt hurt after her uncle threatened to
kill her if
she told anyone about the incidents.
15.
Captain Jiya recommended that the
child should attend therapy sessions. Under - cross examination it
was put to her by defence counsel
that she was biased because she had
indicated that the child might not heal from the trauma. The State
objected to the suggestion
of bias. I found that the suggestion was
unwarranted and I accordingly disallowed it.
16.
I found Captain Jiya to have carefully
analysed the circumstances of the minor child and her reliance on
literature was
not
made in general
but
referred to specific matters pertaining to the child. She is
adequately qualified to report on matters contained in her report.
I
find that she was objective in her assessment. I am satisfied with
her evidence and I accept it.
17.
Mr Sojada for the accused made the
following submissions: That :
(a) The accused took
the court into his confidence, pleaded guilty and displayed genuine
remorse. That the rapes
do not fall into the category of the rapes
that are regarded as worse.
(b) There is no DNA and
the accused chose to plead guilty and not to subject the minor child
to secondary victimisation
where she would be exposed to cross-
examination and he admitted that he used his position of power.
(c ) The accused is a
suitable candidate for rehabilitation and relied on
S v Chowe
(2010) (1) SACR 141
North Gauteng High Court , Pretoria
.
He is willing to attend certain programs in prison to deal with
his sexual urges. He is not a repeat offender. He submitted
that a sentence of 20 years imprisonment will be adequate. In
sentencing the offender the court should not serve the public opinion
over the interests of justice.
(d)
He submitted that there is a difference
between regret and remorse. In this regard he referred the
court to
S v Matyityi
2011 (1) SACR
40
SCA
. In addressing the
issue of remorse he submitted that the accused chose to come clean,
he made his own decision. He
submitted that in this matter
there was no eye witness. The only direct witness is the
complainant who is a minor. He submitted
that the evidence of the
medical doctor does not corroborate the evidence of the victim.
(e ) He submitted that rape is a
serious offence and in this case the victim is a minor. He relied in
this regard on the case of
S v Malgas
2001 (1) SACR 469
SCA
for
the submission that this court has a discretion to decide whether
there are substantial and compelling circumstances.
He further
submitted that the differences in the nature of the rape should
receive recognition when considering a proper sentence.
In this
regard he relied on
Rammoko v DPP
2003
(1) SACR 200
SCA
. He submitted further that as
in
S v
Abrahams
2002 (1) SACR 116
SCA
the
emphasis is that the court must look at the degree of the
seriousness that needs to be attached to each case based on
its own
merits.
18.
He further referred the court to
S
v Mahomotsa
2002 (2) SACR 435
SCA
where the accused faced two counts of rape. The second rape
offence was committed whilst the accused was out on bail. There
was
use of a firearm and a knife but the court reduced the sentence to 8
years and 12 years imprisonment on the second count.
Further,he
argued, that the court cannot turn a blind eye to the fact that the
accused did not ask for too lenient a sentence because
20 years is a
long-term sentence and he acknowledged that he deserves punishment.
19.
He submitted that the evidence of the
social worker indicated that she was not sure whether the child will
overcome the ordeal ,
however, with therapy that will be given
to the child as indicated by the court he believes that the child
will get better.
The accused offered an apology to the child
and that would assist the child at a later stage.
20.
Ms Hendricks , on the other hand,
submitted that this is a very serious offence and it is trite
that the court should
take into account the triad when considering
sentence , namely, an accused person being the offender, the
offence, the interests
of community which all remain relevant.
She highlighted the following as aggravating factors: That :
a.
The child is ten years old. She
was raped twice by the accused and that on its own falls foul of the
discretionary sentence twice
. Even if the court accepts that the
accused called the child and raped her there was an element of
planning at least. They
are related and these family rapes are
prevalent and particularly insidious because of the general taboo
attached to them. He is
the uncle to the complainant and by virtue of
that he had easy access to her as a result of the familial link, they
lived in the
same house.
b.
The accused breached the
trust of the complainant and that of his brother. The complainant’s
vulnerability due to age and
family relationships was exploited. He
was also in a position of authority relative to the complainant and
he abused that position
to commit the acts in question.
c.
She urged the court to create consistency
by not departing lightly from the minimum sentence that the
legislature has promulgated.
She submitted that the guilty plea
was not a plea of remorse because the accused realised that he faced
a strong case.
d.
He blamed his action on sexual urges.
She submitted that we are all human beings and that we all learn to
control our urges.
He simply said he will do his best to make
sure that his urges do not get the better of him. That, she
submitted, was not
good enough reason to depart from the minimum
sentences. She submitted that insofar as the medical evidence
is concerned,
the court must have regard to the fact that although
the hymen was still intact when the doctor testified that was because
no force
was employed during the rape. However, she submitted, that
we do not know what injuries were there during the time when the
incidents
occurred. The psychological
sequelae
will continue for years.
e.
In looking at the injuries one has to
consider, she submitted, the quick healing process that the vaginal
area especially of a minor
child goes through between the period of 4
to 7 days. She relied on the case of
S
v PB
(2011) (1) SACR 448
SCA
for
the submission that the accused has not worked for a long time.
He has not been a productive member of society.
Where he was
staying he was not paying any rent. She submitted that this is
an appropriate case to impose a life sentence.
f.
This court could have regard to the
previous convictions only to the extent of establishing the character
and the prospects of rehabilitation
of the accused. She
submitted that whatever mitigating factors are there do not rise to a
level where life imprisonment ought
not to be imposed.
g.
She relied on the decision in
S
v Booysen 2009 JDR 0273 ( ECG)
for her submission that life imprisonment will be adequate because in
that case the complainant was ten years old , a tiny
child , slender
and was incapable of offering resistance to a sexual assault by an
adult.
21.
In reply it was submitted on behalf
of the accused that when he was confronted by his brother, he
admitted that he had committed
the offence. After receiving
argument the matter was adjourned to 20 April 2022 for judgment
on sentence.
Discussion
22.
Section 51
of the
Criminal Law Amendment
Act 105 of 1997
provides:
“
51
Discretionary minimum sentences
for certain serious offences
1
Notwithstanding any other law, but
subject to subsections (3) and (6), a regional court or a high court
shall sentence a person
it has convicted of an offence referred to in
Part 1
of Schedule 2 to imprisonment for life.
”
23.
Section 51(3)(aA)reads:
“
When
imposing a sentence in respect of the offence of rape the following
shall not constitute substantial and compelling circumstances
justifying the imposition of a lesser sentence:
(i) the
complainant’s previous sexual history;
(ii) an
apparent lack of physical injury to the complainant;
(iii) an accused
person’s cultural or religious beliefs about rape; or
(iv)
any relationship between the accused person and the complainant prior
to the offence being committed.
”
24.
In
The
Director of Public Prosecutions, Grahamstown v Mantashe (131/2019)
[2020] ZASCA 05
(12 March 2020) at paragraph 13
the Supreme Court of Appeal stated:
“
13
The high court found in the respondent’s
favour that there was no gratuitous violence although threats were
made to the child
not to disclose the rapes. Presumably,
because there was no physical injury to the child, other than the
rapes, this was
held to be a mitigating factor. Lack of
physical injury as constituting a substantial and compelling
circumstance when imposing
a sentence on a conviction of rape is
specifically excluded in terms of section 51(3)(aA) of the Act.
This is precisely because
rape itself is an act of violence and has
such devastating long-term sequelae.
”
25.
Section 8 of the Children’s Act 38 of
2005 provides that:
“
8
Application
(1) The rights
which a child has in terms of this Act supplement the rights which a
child has in terms of
the Bill of Rights.
(2) All organs
of state in any sphere of government and all officials, employees and
representatives of
an organ of state must respect, protect and
promote the rights of children contained in this Act.
9
Best interest of child paramount
In all matters
concerning the care, protection and wellbeing of a child the standard
that the child’s best interest is of
paramount importance must
be applied.
”
26.
Section 28(2) of the Constitution provides
that:
“
(2)
A child’s best interests are of paramount importance in every
matter concerning the child.
”
27.
If one has regard to the popularly known
triad principles applicable when a court sentences an accused person
, the interests of
minor children do not feature as a separate
consideration especially where the children affected are victims of
crime or abuse.
The triad involves the accused, the crime and the
interests of society. Athough the courts do take into account
the interests
of the children ( for example, where a breadwinner is
to be sentenced to a term of imprisonment S v M (CCT 53/06) [2007]
ZACC18;
2008(3) SA 232 ( CC)) : in criminal matters those interests
are not standalone interests but are more often than not lumped
together
with those of the society. Davis J in S v Jansen
1999
(2) SACR 376
( CC) at 378 g-379 stated :
“
Rape of
a child is appalling and perverse abuse of male power. It strikes a
blow at the very core of our claim to be a civilised
society ….
The community is entitled to demand that those who perform such
perverse acts of terror be adequately punished
and that the
punishment reflect the societal censure. It is utterly terrifying
that we live in a society where children cannot
play in the streets
in any safety; where children are unable to grow up in the kind of
climate which they should be able to demand
in any decent society,
namely, in freedom and without , fear. In short, our children must be
able to develop their lives in an
atmosphere which behoves any
society which aspires to be an open and democratic one based on
freedom, dignity and equality, the
very touchstones of our
Constitution. “
28.
In my view , the interests of the children
where they are victims of crime or abuse, must be addressed prior to
the conclusion of
the trial inorder to ensure that the well being of
an abused child is taken into account by the trial court. That , in
my view
, will pave the way for those children to grow and
become emotionally , mentally and physically strong future members of
society. Once sentence is imposed on an accused person that is
the end of the trial . If nothing is said about the child victim
other than condemning the unlawful act itself ,the child will go back
home with no support from the justice system. I deal
with this
issue later in this judgment.
Are
there substantial and compelling circumstances
?
29.
Before answering the question I wish to
seek guidance from the
Rammoko case,
above, at page 205 paragraph 13 , where
Mpati JA stated : “
Life
imprisonment is the heaviest sentence a person can be legally obliged
to serve. Accordingly , where s51(1) applies, an accused
must not be
subjected to the risk that substantial and compelling circumstances
are, on inadequate evidence, held to be absent.
At the same time the
community is entitled to expect that an offender will not escape life
imprisonment- which has been prescribed
for a very specific reason-
simply because such circumstances are, unwarrantedly , held to be
present.”
30
.
At paragraph 22 in the Malgas case, above, the court stated :
“
The
greater the sense of unease a court feels about the imposition of a
prescribed sentence , the greater anxiety will be that it
may be
perpetrating an injustice. Once a court reaches the point where
unease has hastened into a conviction that an injustice
will be done,
that can only be because it is satisfied that the circumstances of
the particular case render the prescribed sentence
unjust , or as
some might prefer to put it , disproportionate to the crime, the
criminal and the legitimate needs of society. If
it is the result of
a consideration of circumstances the court is entitled to
characterise them as substantial and compelling and
such as to
justify the imposition of a lesser sentence.”
31
.
I find that in this case there are substantial and
compelling circumstances which warrant deviation from the imposition
of life
imprisonment. I record them below.
32.
I am enjoined by law that if I am to impose sentence that accords
with justice I must decide this case on its own merits. I
could
embark on an exercise of drawing parallels and similarities between
the various authorities relied upon by both Counsel but
those should
simply be used as a guide.
33.
The accused in his section 112 (2) statement gave a very detailed
account of his actions. Those facts were accepted by the State
and
that demonstrated that they were truthful or at least reliable
otherwise the state would have rejected them and tendered evidence.
He pleaded guilty and having regard to the summary of substantial
facts that the State relied on and the details given by the accused
in his statement, I am satisfied that he gave a frank account of the
events. He testified under oath and apologised throughout
in
his evidence about what he did to the complainant. He
apologised to the complainant, to his brother, his family and the
community. I observed him and I am satisfied that not only did
he verbalise his remorse but he displayed it as he was testifying.
34.
He was intent on tendering apologies as aforementioned, and he
did. He appeared and demonstrated sincerity as he
was
apologising to his brother, the victim, his family and the community.
I find that he displayed genuine remorse. I am satisfied
that and as
indicated by Captain Jiya that the fact that he tendered an apology
to the victim was good. In many instances victims
of rape are
confronted by perpetrators who make them feel that they brought the
rape upon themselves . I have no doubt that an
apology from a
perpetrator will positively contribute to the healing journey that
the minor child is to embark upon.
35.
In the
Booysen case
, above at paragraph 4 the court
stated :
“
I think
there is merit in Mr Brisley’s submission that the trial judge
may well have gone further than merely rejecting the
defence
argument. The wording of his judgment suggests that he found by
inference that the appellant , knowing that he was alone
in the house
with the child , could well have planned to rape her if the
opportunity arose , and that he had probably done so.
If that is so,
it was a finding that should not have been made. The inference of
premeditation was not the only reasonable inference
to be drawn from
the facts , and it should not have been held against the appellant
for purposes of sentence.”
The
submission by the State that I must find that there was some planning
at least before the commission of the offence is not supported
by the
plea and the facts that were accepted by the State. The State
is bound by the plea and the explanation accepted by
it ( Sv
Moorcroft
1994 (1) SACR 317
(T) at 320.
36.
I am alive to the provisions of section 51 (3) (aA) that lack of
physical injury shall not constitute substantial and
compelling
circumstances justifying the imposition of a lesser sentence. In this
case the circumstances are different. The medical
evidence is that
the perforation on the hymen was normal. It also revealed that no
force was used and that the hymen remained intact
demonstrating that
the perpetrator did not penetrate the child deeper and forcefully.
In
casu,
it is not lack of physical injury that is a consideration
but the gravity of those injuries. The medical doctor did not wish to
speculate on the gravity of the injuries due to the intervention of
the healing period. I am not at liberty to speculate without
medical
evidence.
37.
The complainant suffered injuries
associated with an act of rape. It is so that a 46 year old man who
penetrates sexually a girl
of ten years would injure her . The
gravity of the injuries is not known to me and I can only relate to
those that Dr Conjwa testified
to. She suffered emotional trauma. The
doctor testified that the child was in pain and uncomfortable hence
she could not perform
digital vaginal examination.
38.
The accused was stabbed by his brother when
he confronted him about the incident. A few days later the
community also assaulted
him and he was hospitalised for (14)
fourteen days having sustained fractured jaws. I find that the attack
on the accused by the
community is not and cannot be to advance
legitimate needs of society
.
I
cannot disregard this evidence because when people take the law into
their own hands that is breeding ground for anarchy.
The
accused has been punished by his brother and the community and
sustained physical injuries. Such evidence was not challenged
.
39.
In the cases relied upon by the state I
have not come across a case where the community took the law into
their hands as in this
case. That , in my view, ought to be a factor
to be considered as forming compelling and substantial circumstances.
40.
The accused does not have previous
convictions that related to sexual offences. He should be regarded as
a first offender. The
State conceded that his previous
convictions were not relevant for the purposes of sentence but could
be considered when considering
his character. It is common cause that
in relation to , the assault with intent to do grievous bodily harm
conviction , the
five year suspended sentence had not lapsed
when he committed rape . He was convicted during the years 2001
(theft) , 2002
(theft) , 2003 ( theft and house breaking) , 2019 (
assault with intent to do grievous bodily harm) 2021 ( rape) .
There
is a period of at least 15 years between 2003 and 2019
and one year between 2019 and 2021 where he committed no offences.
This means that the accused is a candidate for rehabilitation.
For fifteen years he did not commit any offence. He
is 46 years
old and I do not have any evidence upon which I could find that
he cannot be rehabilitated if given a sentence
other than life
imprisonment.
41.
Although it has been submitted on behalf of
the State that he is not a useful member of the community because he
has been unemployed
for a long time, I am not able to make that
assumption based only on the fact that he is unemployed. No
evidence was presented
about his behaviour within the community. In
any event being unemployed does not render a person not useful.
42.
The doctor testified that she could not
conclude that the thick white discharge observed from the complainant
was as a result of
an infection. There were no swabs taken to
investigate the discharge. She testified that the healing
process of between
4 to 7 days is rapid and allows healing during
trauma.The medical evidence was that no force was used.
43.
The accused apologised to the victim,
his brother and his family and displayed genuine remorse. Captain
Jiya recognised that the
apology was a good thing. That is something
that should be considered in his favour when imposing sentence.
44.
The fact that these are factors that are
substantial and compelling circumstances to deviate from the
imposition of life imprisonment
does not mean that a lighter sentence
should be imposed. The minor child was introduced to the adult world
in a harsh manner. She
is suffering from psychological trauma . The
accused had easy access to her because of familial relations. He
breached the trust
that this child had in him. I agree with Ms
Hendricks that “
these family rapes
are prevalent and particularly insidious because of the general taboo
attached to them.”
45.
I had regard to the decision in
S
v Sekiti
(2010) (1) SACR 622
ECG 622 at 626
where the accused person was convicted on his plea for sodomising the
complainant. He had sexually assaulted 14 people while
he was
an inmate at a psychiatric hospital. He had also threatened
staff with physical harm. He was declared a dangerous
criminal
and was sentenced to imprisonment for an indefinite period. He
was ordered to be brought before court for reconsideration
of
sentence on the expiry of five years from the date of sentence. This
case does not exhibit the gravity of the offences
committed in the
Sekiti case
.
46.
In
Director
of Public Prosecutions, Free State v Mashune 2018 JDR 0687 (SCA)
an effective term of 22 years was imposed on appeal. Where the
conviction related to two rape convictions, the court found
that
there were no substantial and compelling circumstances and imposed 15
years imprisonment in respect of each count with the
second 15 year
imprisonment to run concurrently with the sentence that was imposed
in respect of count 1.
47.
In the
Booysen
case , supra
the trial court imposed
life imprisonment which was upheld on appeal by the Full Bench
. The accused in that matter had raped
a ten year old victim.
In that case the court had found that the complainant did not suffer
physical injuries other than
those which followed upon the act of
rape. She was a tiny child, slender and slightly built, and
quite incapable of offering
resistance to a sexual assault by an
adult. The medical report showed virtually no signs of sexual
development. Unlike in
this case , the child in
Booysen
was examined by the doctor four days after the rape. The
medical evidence tendered reflected that there were still signs
of
redness to the labia majora, bleeding in the vagina and pre-fresh
tears of the hymen. The doctor noted no signs of emotional
instability and there was no psychological assessment done of the
effects of the rape on the child. The facts of that case differed
materially from the facts of this case , especially when it comes to
the medical evidence. I have already dealt with the findings
by the
clinician which differ from the
Booysen
case. I am satisfied that this is not a case that warrants the
ultimate sentence of life imprisonment based on the findings
I made,
above. The sentence which I intend to impose fits the crime and
is fair in the circumstances of this case.
Before I do so , I
wish to deal with the following:
Therapy
Order
48.
In contemplation of the order relating to
therapy that I intended to make, I recalled Captain Jiya whom I had
instructed to investigate
and prepare a proper schedule of the
therapy for the minor child. Indeed, on 13 April
2022 she returned to court
and informed the court that after the
adjournment she made enquiries from King William’s Town and had
liased with Ms
Thozama George who is the Regional Service
Office Manager, of the Department of Social Development in
Stutterheim. She spoke to
her and then arrangements were made that
the child will receive therapy from Ms Nkabi.
49.
They also investigated a possibility of
such therapy being rendered in Port Elizabeth, however, they
discovered that the organisation
that used to assist the State was no
longer doing so. It was for that reason then that they settled
for therapy within the
district where the child resides which is in
Stutterheim. Ms Hendricks for the State confirmed the
arrangements and that
they then prepared a draft order which contains
the schedule to be undertaken by the child. Mr Sojada did not object
to the proposed
order.
50.
I called S N who is the person who
will be responsible for taking the minor child to the therapy
sessions. . She is
25 years old. She went up to Grade 10
at school. She is not employed. She confirmed that the
complainant is her
brother’s child and that she is the
caregiver. She resides with the child. The child attends
[……..]
Primary School in Stutterheim and she comes back
from school at 13h30. She indicated that the place where the
counselling
will take place in Stutterheim, although it is
within a walking distance , is quite far and that they will
need to
use a taxi to get to therapy. She agreed to take the
child to therapy on the dates contained in the schedule and undertook
to adhere to the order that the court will issue. She indicated
that she was not in a position to indicate whether they will
always
have taxi fare as that was the responsibility of the father of the
child.
51.
As a result I enquired from Mr L N who
confirmed that he is the father of the minor child. He agreed that he
will ensure that there
were sufficient funds in the amount of R36.00
per month to enable S N to take the minor child to therapy.
Therapy
order
52.
I accordingly make the following order
:
a.
It is ordered that AM should undergo
counselling at the Department of Social Development at 34 Marais
Street, Stutterheim,
for two years from date of this order.
b.
Her first session will commence on
Wednesday, 4 May 2022, at 15h00 and will continue on a monthly
basis on the same day and
time for at least two years the last
session being Wednesday 8 May 2024 at 15h00.
c.
It is further ordered that the guardian of
the child during the period in question at this stage SNN will ensure
that the said AM
attend the sessions as arranged.
d.
Ms Nikiwe Nkabi, the social worker tasked
with the therapy sessions or any other social worker assigned to the
case in due course
as may be required by reasonable operational
requirements, shall be entitled to exercise her discretion in
mandating further sessions
as required by the best interests of the
child concerned.
e.
The Regional Service Office Manager at
office no. 1 at the Department of Social Development in Stutterheim,
Ms Thozama George or
her successor or successors in the event that Ms
George does not remain at the said Department for the duration of the
counselling,
is and are ordered to arrange and manage AM’s
sessions with the assigned social worker, Ms Nkabi as required.
f.
Ms Nkabi shall file progress reports with
the Court every six months.
g.
A copy of this Order must be served on Ms
Thozama George and Ms Nkabi.
SENTENCE
53.
Having had regard to the personal
circumstances of the accused, the seriousness of the crime ,
the interests of the community
and those of the minor child , the
authorities placed before me by both Counsel and the evidence placed
before me, I am satisfied
that the sentence to be imposed must send
out a strong message to would be offenders that rape of minor
children is a serious violation
of the child’s body , mind and
soul.It shall be treated by the courts in a manner that will
demonstrate that this unlawful
conduct should not be tolerated.
54.
The sentence I will impose will be
relative to the crime itself. Unfortunately such is not a
mathematical calculation hence
the Legislature deemed it appropriate
to afford the courts a discretion in this regard.
I
accordingly sentence the accused to undergo
TWENTY
FIVE (25) YEARS IMPRISONMENT.
T
V NORMAN
JUDGE
OF THE HIGH COURT