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[2019] ZAWCHC 62
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Abrahams v S (A131/18) [2019] ZAWCHC 62 (23 May 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
CASE
NUMBER A131/18
In
the matter between
CASSIEM
ABRAHAMS APPELLANT
AND
THE
STATE RESPONDENT
CORAM:
BAARTMAN J; THULARE AJ
JUDGMENT
– 23 MAY 2019
THULARE
AJ
[1]
This is an appeal against sentence only. The appellant was convicted
of rape of an 11-year old girl child (the complainant)
in terms of
section 3 of the Criminal Law Amendment (Sexual Offences and Related
Matters, 2007 (Act No. 32 of 2007) read with other
applicable
provisions of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).
He was sentenced to life imprisonment in terms
of section 51(1) and
Schedule 2 of the Prescribed Minimum Sentences Act, 1997 (Act No. 105
of 1997. The State submits that there
is no merit in the appeal.
[2]
The issue is whether there were substantial and compelling
circumstances which existed and justified a deviation from the
minimum
sentence.
[3]
The appellant was a security guard at a crèche in […]
Street, Bonteheuwel, a township in the City of Cape Town.
The
residence of the complainant was in the same street as the crèche
where the appellant worked. Her home was opposite
the crèche.
The children in the neighbourhood, including the complainant, used to
play in the street. The crèche
had no perimeter front fence
and as such the games would include running, walking and occupying
part of the crèche.
[4]
The appellant was well-known to the community and the children,
including to the complainant. He occupied and lived alone in
a room
situated within the yard of the crèche. He was a common
sight to the residents, in uniform, during working
hours. He would be
seen drinking coffee in the morning outside his room. He interacted
with the community, and used to visit in
the neighbourhood and was a
frequent visitor to the complainant’s neighbours where he had a
friend.
[5]
During 2014, the complainant was playing in the street when the
appellant called her. He took her to his room. He instructed
her to
get onto the bed. Once the complainant was on the bed, he pulled off
her pants and panties up to her knees. He thereafter
pulled of his
own pants, and whilst on top of her, inserted his penis into her
vagina. After raping her, he told her not to tell
anyone what had
happened. The appellant threatened to harm her if she told anyone.
[6]
Someone had seen the complainant when she was led by the appellant
into the appellant’s room and this did not sit well.
However,
no alarm was immediately raised as an urgent matter requiring
intervention. A casual report was made to the appellant’s
father who then went looking for her. He came across her as she left
the appellant’s room. He confronted her about what she
was
doing in appellant’s room alone with him. The complainant’s
father was awake to the risk to a girl-child to be
raped. He told the
complainant about that risk. He removed his belt and hit the
complainant, ostensibly as his mark of displeasure
to her self
-exposure to that risk. The complainant did not tell her father
about what had happened to her, and did not tell
anyone about it.
[7]
The complainant’s personality and character changed for the
worst. She was at the time of her rape dealing with the sudden
death
of her mother in a motor collision and the consequent absence of her
mother in her life. She became more quiet and withdrawn
after the
rape. Her marks at school dropped. This led the complainant’s
father to have a discussion with the complainant’s
sister from
the father’s previous relationship. The sister was a student
pursuing studies as an Educator.
[8]
The complainant moved in with her sister in the beginning of 2015.
The sister lived with her own maternal grandmother at the
time. The
sister worked night-shift in a different environment to teaching
whilst she studied and was not home at night. The complainant
was
left in the care of the grandmother at night.
[9]
The grandmother experienced the complainant’s nightmares and
screams during her sleep and reported her observations to
the sister.
The sister approached the school where the complainant attended and
sought a referral of the complainant to a psychologist.
The sister,
on an occasion that she slept home, also got to experience first-
hand the complainant’s nightmares. The complainant
in her sleep
screamed and called out her father’s name, pleading and asking
her father to come and help her. The sister awoke
the complainant.
The complainant was scared and disorientated. She continued to scream
and looked very afraid of her sister. It
was only when she recovered,
noted that the person with her was her sister, that she stopped
screaming and broke down and cried.
The sister reported her
experience to the father.
[10]
The complainant would not talk when the sister and the father later
asked her about her nightmares. She only cried uncontrollably.
The
sister asked her father to leave them alone so that they can talk
about it as sisters. When the complainant was ready to talk,
she told
her sister what had happened to her, and that it was the accused who
raped her. At the time, the sister did not know the
accused and saw
him for the first time at court. The sister reported the rape to the
police and accompanied the complainant to
the doctor to whom the
police referred them.
[11]
The doctor found two old tears in the hymen and the findings,
according to him, were consistent with vaginal penetration of
the
complainant in the past. The vaginal examination was essentially
normal except for the multiple old tears that were seen in
multiple
places in the hymen. Any tearing of the hymen which examination
revealed is older than 72 hours is old, and the one before
72 hours
is fresh. It takes between six to 12 days for a hymen tear to heal.
The complainant’s vaginal injuries were consistent
with being
penetrated with a penis, which could cause the injuries that the
doctor saw.
[12]
The appellant was 50 years at the time of his sentencing and resided
at his father’s place at […], Lavender Hill,
Retreat in
the city of Cape Town. He is married and has five children aged 29,
23, 14, 10 and 8 years old including from previous
relationships. The
14 year old is the only child of his wife. The three under 18
children are living with his wife at a different
address. She
receives a child care grant for two children as the 8 year old is not
yet registered for a grant.
[13]
The appellant worked for Ithombi Ikhaya Security Services and earned
R1500 per month. The crime was committed where he was
posted as a
security guard. He contributed between R500 and R700 for the
children’s maintenance. He went to school until
standard 3. In
mitigation he expressed remorse for the crime.
[14]
The appellant has previous convictions of theft and robbery in 1986
and 1989 respectively for which he was sentenced to corporal
punishment and 3 years of which 1 year imprisonment was suspended for
5 years on conditions respectively. In 1993 he was convicted
for
indecent assault and sentenced to 2 years imprisonment of which 1
year imprisonment was suspended for 5 years on conditions.
In 1996
the appellant was convicted of indecent assault and sentenced to 4
years imprisonment. The suspended part of the 1993 sentence
was also
put into operation. In 2000 he was readmitted to prison for breaking
his parole conditions. In 2007 he was convicted of
rape and sentenced
to 10 years imprisonment.
[15] It is against this
background that when this court heard applicant on his appeal, the
court requested both the appellant and
the respondent to prepare and
address the court on the following question:
“
The
High Court is the upper guardian of minors. The Convention on the
Rights of a Child and the Constitution of the Republic enjoins
the
High Court that a child’s best interests are of paramount
importance in every matter concerning the child.
Against this
background, it would appear that section 50 of the Criminal Law
(Sexual Offences and related Matters) Amendment Act,
2007 (Act No. 32
of 2007) has reference only against those accused persons serving a
sentence of imprisonment or who has served
a sentence of imprisonment
“as the result of conviction for a sexual offence against a
child or a person who is mentally
disabled” [section
50(1)(a)(iii)].
The
wording of the Act and its general scheme appear to suggest that
persons like the accused, known by the State (Republic of South
Africa)
to have a record of previous
convictions and to have served sentence(s) for indecent assault
and/or rape (where the victim may not
be a child or a person who is
not mentally disabled) are not deemed by the State to be a danger to
children as victims of sexual
offences. If this is so, is this not a
structural and systematic gap against every child’s right to be
protected from abuse?
As it is unclear from
the record of proceedings whether exposure of the child survivor was
a casualty of structural failure (absence
of appropriate prescripts)
or a systematic and operational failure (failure at oversight and
compliance), it would appear that
the court has a duty to enquire and
speak out in the best interests of our children.
The
parties are invited to comment. The State is directed in its
response, to invite comments from interested bodies and stakeholders
in Child Law, like the Centre for Child Law, to make an input should
such bodies deem it meet.”
[16] The parties prepared
a joint Memorandum for the court, of which the salient parts read as
follows:
“
3.
The State as well as the Appellant engaged with various stakeholders
with regards to the court’s question.
4. The Department of
Justice recognized that there are various challenges with the
Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32
of 2007
as well as with the National Register for Sexual Offences
(NRSO).
5. It is submitted
that one of these challenges is that the Act does not take into
account any sexual offence convictions committed
against adult or
older persons or any other group not mentioned in the Act. According
to the Department of Justice, there is a
huge public outcry for the
amendment of Act 32 of 2007, especially with regards to whether it
should include all victims of sexual
offences.
6. It is further
submitted that the Department of Justice is of the opinion that Act
32 of 2007 is in need of amendment in order
to address these issues.
The Department of Justice and all other stakeholders are looking
at extending the scope of the Act to include all victims of sexual
offences:
“
You
will note that the Chapter 6 of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32, 2007
came into effect in June
2009, with the primary objective of protecting children and mentally
disabled persons against convicted
sexual offenders,
whether
the conviction was before or after the commencement of the Act.
The
consequence being for them not to work, have access to, adopt etc. to
children or mentally disabled persons. The Act does not
take into
account any sexual offence convictions committed against adult or
older persons or any other group not mentioned in the
Act. Therefore,
if the offender has a previous sexual offence conviction against an
adult person, his/her name would not be included
in the National
Register for Sex Offenders. Although the implications are that this
particular person may end up having to the
children/mentally disabled
persons the Act to protect, thus defeating the very objective it
seeks to achieve.
Therefore in an
attempt to address this particular challenge, the Department is
looking at extending the scope of the Act to include
all victims of
sexual offences.
C. CONCLUSION
7. In the light of the
above challenges with the NRSO, both systematically and operational,
it is evident that the said Act 32 of
2007, as it currently reads,
does not contribute to the safety of our children in the broader
community.
8. The fact that not
all sexual offences are reported, whether it’s against a child,
mentally disabled person and/or an adult
person, leaves a huge gap in
curbing and combating sexual offences crimes against children in the
broader community.
9.
It is respectfully submitted and recommended that, since the
Department of Justice is looking at extending the scope of the Act,
as mentioned above, the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007
, be referred back to Parliament for
amendment.”
[17] In
S v Hewitt
2017 (1) SACR 309
(SCA) at para 8 and 9 the principles applicable to
an appeal against sentence were restated as follows:
“
[8]
It is a trite principle of our law that the imposition of sentence is
the prerogative of the trial court. An appeal court may
not interfere
with this discretion merely because it would have imposed a different
sentence. In other words, it is not enough
to conclude that its own
choice of penalty would have been an appropriate penalty. Something
more is required; it must conclude
that its own choice of penalty is
the appropriate penalty and that the penalty chosen by the trial
court is not. Thus, the appellate
court must be satisfied that the
trial court committed a misdirection of such a nature, degree and
seriousness that shows that
it did not exercise its sentencing
discretion at all or exercised it improperly or unreasonably when
imposing it. So, interference
is justified only where there exists a
‘striking’ or ‘startling’ or ‘disturbing’
disparity
between the trial court’s sentence and that which the
appellate court would have imposed. And in such instances the trial
court’s discretion is regarded as having been unreasonably
exercised.
[9] It
is against this backdrop that the question, whether the court
a
quo
exercised its sentencing discretion
improperly or unreasonably in the circumstances of this case, must be
determined.”
[18] The approach to
sentencing in prescribed minimum sentences for serious crimes and the
interpretation of the provision for substantial
and compelling
circumstances justifying a lesser sentence was set out in
S v
Malgas
[2001] 3 All SA 220
(A) at para 8, 9 and 12 as follows:
“
[8]
In what respects was it no longer to be business as usual? First, a
court was not to be given a clean slate on which to inscribe
whatever
sentence it thought fit. Instead, it was required to approach
that question conscious of the fact that the Legislature
has ordained
life imprisonment or the particular prescribed period of imprisonment
as the sentence which should ordinarily be imposed
for the commission
of the listed crimes in the specified circumstances. In short, the
Legislature aimed at ensuring a severe, standardized,
and consistent
response from the courts to the commission of such crimes unless
there were, and could be seen to be, truly convincing
reasons for a
different response. When considering sentence the emphasis was to be
shifted to the objective gravity of the type
of crime and the
public’s need for effective sanctions against it. But that did
not mean that all other considerations were
to be ignored. The
residual discretion to decline to pass the sentence which the
commission of such an offence would ordinarily
attract plainly was
given to the courts in recognition of the easily foreseeable
injustices which could result from obliging them
to pass the
specified sentences come what may.
[
9]
Secondly, a court was required to spell out and enter on the record
the circumstances which it considered justified a refusal
to impose
the specified sentence. As was observed in Flannery v Halifax Estate
Agencies Ltd by the Court of Appeal, “a requirement
to give
reasons concentrates the mind, if it is fulfilled the resulting
decision is much more likely to be soundly based –
than if it
is not.” Moreover, those circumstances had to be substantial
and compelling. Whatever nuances of meaning may lurk
in those words,
their central thrust seems obvious. The specified sentences were not
to be departed from lightly and for flimsy
reasons which could not
withstand scrutiny. … But for the rest I can see no
warrant for deducing that the legislature
intended a court to exclude
from consideration, ante Omnia as it were, any or all of the many
factors traditionally and rightly
taken into account by courts when
sentencing offenders. The use of the epithets “substantial”
and “compelling”
cannot be interpreted as excluding even
from consideration any of those factors. They are neither notionally
nor linguistically
appropriate to achieve that. What they are apt to
convey, is that the ultimate cumulative impact of those circumstances
must be
such as to justify a departure. It is axiomatic in the normal
process of sentencing that, while each of a number of mitigating
factors when viewed in isolation may have little persuasive force,
their combined impact may be considerable. Parliament cannot
have
been ignorant of that. There is no indication in the language it has
employed that it intended the enquiry into the possible
existence of
substantial and compelling circumstances justifying a departure, to
proceed in a radically different way, namely,
by eliminating at the
very threshold of the enquiry one or more factors traditionally and
rightly taken into consideration when
assessing sentence. None of
those factors have been singled out either expressly or impliedly for
exclusion from consideration.
…
[12]
The mental process in which courts engage when considering questions
of sentence depends upon the task at hand. Subject of
course to any
limitations imposed by legislation or binding judicial precedent, a
trial court will consider the particular circumstances
of the case in
the light of the well-known triad of factors relevant to sentence and
impose what it considers to be a just and
appropriate sentence”.
[19] The triad referred
to in considering a suitable sentence in the circumstances of a case,
was set out as follows in
S v Zinn
1969 (2) SA 537
(A) at
540G:
“
What
has to be considered is the triad consisting of the crime, the
offender and the interests of society.”
[20]
It is not known how a person with the record of previous convictions
like the accused was allowed to work in the security industry
of the
Republic. It seems to me that a company whose business is provision
of security services employed the appellant without
ensuring that he
passed a background check, if any was conducted at all. Worst still,
he was deployed to patrol and monitor a crèche
which was so
popular that even children in the neighborhood who were not enrolled
played there, when his background was itself
an alarm.
[21]
The report on his previous convictions objectively assessed, without
anything more, points to him being a potential danger
that posed a
threat to all females including vulnerable girl children. It remains
a mystery as to how his employment missed the
safety nets provided by
the Department of Social Development and the Department of Education
in relation to who gets employed to
work with or in the nature of
their work have access to children.
[22]
The appellant communicated effectively with the child survivor to
disarm her of her reason. He abused her youth for her to
impulsively
and intuitively follow his invitation which led her to his room. The
appellant was quick in thinking and critically
used the moment when
no adult person was watching and the child had an error of judgment.
He was mindful of and chose an easy prey
when neither his employer
nor the community were observing. The appellant possessed knowledge
of the times, movements and family
life of the child-survivor’s
family and struck when she was most vulnerable and exposed by their
absence and lack of supervision.
He used his good judgment to present
a dangerous situation for the young girl child. The rape was
premeditated.
[23]
The child was subjected to lasting shock as a result of the
disturbing experience and the physical injury that she suffered.
The
appellant forcefully penetrated her and tore her hymen whilst she was
still a young child. This caused the young girl child
trauma in the
mind. Her childhood experience traumatised her mentally. The horrors
of what she went through caused her to have
nightmares and she woke
up many times at night too scared to even trust anyone. The child’s
school work was affected. Her
whole life was turned upside down. Her
interpersonal relationships were adversely affected as she lost
trust. Her own father, as
she left the room where she was raped by
the appellant, removed his belt and hit her several times without
hearing her. By listening
to an elder, the appellant, the child was
opened up for and suffered double jeopardy.
[24]
The parties are agreed that there is a huge public outcry in relation
to sexual offences committed against children, and the
response of
the criminal justice system to such offences. Society abhors violent
crime, and where such crime includes infringements
of privacy and is
an assault on the gender and person of the child as a girl, these
factors on their own are aggravating circumstances.
In
sentencing offenders found guilty of such crimes, courts are enjoined
to reflect acknowledgement of such crimes as intolerable.
The message
from the bench must be concise, clear, bold and have the sting that
says we will protect our children.
[25]
I am not inclined to interfere with the sentence imposed by the trial
court. In my view, the absence of appropriate prescripts,
like the
relevant provisions in Act 32 of 2007, is part of the gap that
allowed the appellant with his previous convictions to
have access to
the crèche and indirectly to the child survivor. The
systematic and operational failures, with specific reference
to
oversight and compliance with laws which regulates who should be
employed to work with children or who is to work having access
to
children, is something that require further investigation.
For
these reasons I would make the following order:
1.
The appeal against sentence is dismissed.
2.
A copy of this judgment is to be served on
the Honourable Chairperson of the Portfolio Committee on the
Department of Justice as
well as on the Honourable Speaker of
Parliament of the Republic of South Africa, for their attention.
………………………………………………………
.
DM
THULARE
ACTING
JUDGE OF THE HIGH COURT
I agree, and it is so
ordered.
………………………………………………………
..
ED
BAARTMAN
JUDGE
OF THE HIGH COURT
Counsel:
Appellant: Adv. MW
Strauss
Respondent:
Adv. DJ Els