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[2022] ZAECMKHC 122
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S v S.N (CC16/2022) [2022] ZAECMKHC 122 (20 April 2022)
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Certain personal/private details of parties or witnesses have been
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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