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[2019] ZAWCHC 79
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S v C.D (CC36/2018) [2019] ZAWCHC 79 (25 June 2019)
SAFLII
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Certain
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OFFICE
OF THE CHIEF JUSTICE
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case
No.:
CC36/2018
In
the matter between:
THE STATE
and
MR
C
D
Accused
JUDGMENT ON SENTENCE
DELIVERED ON 25 JUNE 2019
SALIE-HLOPHE,
J:
[1]
Mr. De Kock, on the 20t h of March 2019, this Court found you guilty
and convicted you as charged, namely, the kidnapping, rape,
murder of
your niece, 10 year old C M. You were also convicted of the offence
of defeating the ends of justice in that you disposed
of the victim's
body by dumping it at a nearby field and that you cleaned up the
blood from your dwelling where you had committed
the aforementioned
offences.
[2]
Now is the time for me to meet out an appropriate sentence to you for
the crimes of which you had been convicted. The determination
of a
suitable sentence does not entail a mechanical process in which
predetermined sentences are imposed for specific crimes. In
each case
the sentencing Court has to take into account all relevant factors,
afford the appropriate weight thereto and strike
a balance between
the various interests to consider. In determining a sentence which is
just and fair, I have regard to the triad
of factors that have to be
considered as set out in the case of
S v Zinn
1969 (2) SA 537
(A).
The Court must therefore take into account your personal
circumstances as the accused and being the person convicted of the
crimes,
the nature of the crime including the gravity and extent
thereof and the interests of the community.
[3]
In deciding on such a sentence the Court must tinge it with a measure
of mercy and strive to meet the objectives of punishment
being
retribution, prevention, deterrence and rehabilitation.
[4]
In mitigation of sentence, your counsel called your aunt Ms. A and
also addressed the Court
ex parte apropos
factors which I
should take into account in order to impose a lesser sentence to you
in respect of the crimes of which you had been
convicted. Counsel for
the State on the other hand led evidence in the form of two (2)
witnesses, namely, the late C's class teacher
at the time of her
death, Ms. B C and Dr. Mandy Date-Chong, the state pathologist,
whom
performed the post-mortem examination on the body of the deceased.
Furthermore submissions were addressed
ex
parte
which in the view of the State are so
aggravating the only appropriate punishment would be the prescribed
sentences and that no
justification exist for departing therefrom. A
petition by the Manenberg Community Members were also handed in at
the inception
of sentencing proceedings, with no objection by the
defence, marked as exhibit N.
[5]
The legislature otherwise known as the lawmakers have recognized that
certain serious crimes must be met with a minimum sentence.
In this
regard the
Criminal Law Amendment Act 105 of 1997
, commonly referred
to as the minimum sentence legislation is of application and is the
'Act' which will be referred to herein.
[6]
The prescribed minimum sentence in respect of the conviction of rape
of a minor child is that of life imprisonment.
Section 51(1)
of the
Act sets out that a sentence of life imprisonment is prescribed in
respect of circumstances where the victim had been under
the age of
16 years and apart from that, in circumstances where grievous bodily
harm was inflicted in the course of the act of
rape.
[7]
The murder which you had committed and convicted of also attacts a
sentence of life imprisonment. The provisions of
Section 51(1)
read
with schedule 2,
Part 1
of the Act are applicable in these
circumstances in that the victim was a person who was likely to give
material evidence in criminal
proceedings against you in respect of
the act of rape. In addition thereto, imprisonment of life is also
prescribed because the
death of the victim was caused by you after
having raped the victim.
[8]
In a nutshell, the convictions of rape and murder together with the
circumstances in which you had committed it attracts the
imprisonment
of life any number of ways.
[9]
The law, as laid down in a number of leading cases on that aspect,
(See: S v Malgas
2001 (2) SA 1222
(SCA)) is trite and settled that a
prescribed minimum sentence cannot be deviated or departed from for
flimsy reasons unless the
sentencing Court is satisfied that there
exists substantial and compelling circumstances which justifies the
imposition of a sentence
other than prescribed by the law.
Differently put, this Court retains a discretion in the imposition of
sentence, however, can
only impose a sentence lesser than the life
sentences which you face if it is persuaded that the circumstances
are of such an extent
that it would be woefully inappropriate to
punish you accordingly.
[10]
I will now turn to the triad factors which need be considered herein,
starting with your personal circumstances as had been
set out by your
counsel and certain factors relating to your childhood which had been
attested to by your aunt, Ms. A.
P
E
RSONAL
CIRCUMSTANCES:
[11]
You are 34 years old, married and you have 3 children, aged 16, 11
and 8 years old. Your children are in the primary care of
their
mother. You completed Grade 9, had previously worked as a general
worker in the construction industry, however, you were
unemployed at
the time of the commission of the offences.
[12]
Your parents passed away during your youth in an environment where
you had no example to guide you. Mrs. A testified, where
possible she
offered you a form of stability during your childhood, however, she
had lost contact with you over the past 13 years,
having last been in
your life up until the age of 19. Drug use by you since your early
twenties had caused you and your family
an unstable life. You have
been incarcerated for just over 20 months, whilst awaiting the
finalisation of this matter, having been
arrested the day after the
incident in October 2017.
[13]
Although you are no stranger to breaking the law, having previous
convictions, your counsel correctly argued that you stand
before this
Court as a first offender for these type of offences, which he sought
of this Court to take into account with the aforesaid
other personal
factors in mitigation of sentence. In conclusion of his submissions,
he argued that the factors so highlighted by
him on your behalf forms
part of the cumulative weight which justifies departing from the
imposition of the sentence of life imprisonment.
I will deal with
that aspect later in this judgment.
[14]
I turn now to the second factor to be considered, that being the
crimes of which you had been convicted, the manner of execution
thereof as well as the nature, seriousness and impact thereof.
THE
OFFENCES:
[15]
The victim of these offences was non other than your niece. You were
her uncle and in a position of trust. You lived in the
same home
environment and in fact on the day when you raped and murdered her,
she came to you looking for your children, her cousins,
to walk to
school together as had been their routine. They had left earlier that
morning, you grabbed her around the neck in a
deathhold position,
pulled her into your home and pushed her to the ground. She fell onto
the ground but without any care for your
victim and careful not to be
detected or disturbed, you closed the door of your home and proceeded
with your attack unhindered
by any conscience.
[16]
Dr. Date-Chong testified as to the contents of her crime scene and
post mortem reports that the deceased victim was discovered
at 08h30
on Friday, 20 October 2017, alongside a dam at or nearby Primrose
Park off Vygieskraal Road. The body had flies present
on it and was
covered in a bloodstained curtain with the corner of the fabric tied
around the neck which had been used to strangle
her. The victim's
vagina was forcefully sexually penetrated, injured and lacerated
causing her to bleed profusely from the wound.
The injuries were
extensive , including a severe skull fracture, a large vaginal
laceration, the lungs contained aspirated blood
and gastric content
indicative that the victim had vomited and coughed up blood during
the attack which in turn was inhaled after
sustaining the injuries.
It goes without saying that all the while, C was alive. The cause of
death was determined to be as a result
of multiple blunt force
injuries to the head, neck and genitalia. In the opinion of the
pathologist the skull fracture was caused
by severe blows inflicted
to the head of the victim, consistent with a brick or concrete block
hit repeatedly over her head and
to the face a number of times. She
concluded that this rape and murder was an extremely traumatic event
and that the child clearly
suffered physically and psychologically in
the last moments of her life. The doctor further testified that she
had performed in
excess of 4000 autopsies, however, the extent of the
victim's vaginal laceration was the worst form of injury sustained to
this
area compared to any other autopsy which she had performed in
similar cases. Death was not instant as her findings are that some
time would have passed between infliction of the injuries until the
moment of death.
[17]
The evidence is clear that you did not spare your victim nor her
loved ones any pain and suffering. After raping and murdering
C, you
went about your business in a matter of fact way devoid of emotion or
conscience, to escape any wrongdoing and prosecution
for the rape and
murder of your niece. With methodical planning you placed the black
wheelie bin right in front of the door of
your home and you placed
the child's body in the bin, carefully assessed the bustle of the
morning passers-by to carry on with
execution of your plan at an
appropriate time. When the traffic had subsided some 2 or 3 hours
later, enhancing your chances of
being undetected, you pushed this
bin to a secluded bush area about 10 minutes' walk away, an area
known to you as a popular spot
for discovering of dead bodies. You
dumped your young victim's body, returned the wheelie bin to your
home, proceeded to clean
the victim's blood from both the bin and the
house as well as the concrete brick you used to bash her skull in.
[18]
The day had turned into night, leaving your family to worry about had
happened to their loved one. When the inevitable search
and panic
erupted for the family and together with members of the community and
the police a frantic search for C pursued, you
too pretended like a
concerned uncle to search for her, knowing full well what you had
done to her, that you violated her, murdered
her and where you had
dumped her remains. In the end, you were linked to the offences by
way of evidence, which included your DNA
in the form your semen on
the victim's school pants worn at the time of her discovery. Her
blood was found inside your home and
the curtain wrapped around the
deceased belonged in your home, the place where you had murdered her.
[19]
When this Court follows the unfolding of events as well as the
exhibits of record, which include the crime scene photos, post
mortem
photos, reports setting out the impact on the family of the victim as
well as the pre-sentence report, the idiom
'Like
a
wolf in
sheep's clothing',
springs to mind. You sat by Mr. D, pretending
to be a trusted family member. However, you were anything but that.
You are a sexual
predator that violated a child of your family and
inflicted horrifying violence on her until you not only sexually
violated her
but also murdered her in the most brutal way. She was
vulnerable and defenceless and stood no chance against you. You are
the evil
that lurks amongst our communities. You are the monster that
parents warn their children of.
[20]
The record before this Court through testimony as well as the report
setting out the sentiments of various family members indicate
that C
was a beautiful child. She was a respectful and sweet child, she
loved dancing, she was loved and adored by her peers and
family.
Throughout the record before me, I note that C dreamt of being a
teacher. This was her life's ambition. She animated being
a teacher
to other children, mimicking the environment of a classroom in the
company of her friends and cousins, pretending to
be teaching them.
She would teach dancing routines to neighbourhood children at the
school aftercare.
[21]
Her friends, her family (which includes your family and children),
her teachers as well as the community are shocked and saddened
by
your despicable and wicked actions to a child, let alone a child
belonging to your own family. C's death has had a reeling effect
on
everyone. Your family not only struggle to accept her death but they
are also devastated in the wake of discovering that you
had killed
her and the manner in which you had executed it. C's dream of being a
teacher had been taken away from her in the most
brutally shocking
way. However, through her death, she continues to teach her fellow
classmates, her cousins, her friends and children
of her community an
important aspect, namely, that violence against children will not be
tolerated: that the life of a child is
precious, that their lives and
their safety are of utmost importance and in no way will the
violation of a child become the order
of the day.
INTERESTS
OF THE COMMUNITY:
[22]
The community has been unnerved and outraged by this brutal crime. It
is another heinous reminder that our children are under
attack and
detonation. The petition placed before this Court by the community of
Manenberg where this horrific rape and murder
of their child had
happened laments the extent of their concerns and fears. It is
undeniable that we are experiencing high levels
of violent crime and
in particular with reference to this case, violent crime against
children. As we build a cohesive society
within our communities and
in our country, we need to send a clear and an even louder message to
our youth that violence has no
place in our society and that it is
strongly condemned. It can never be seen to be the order of the day
and in that way, by way
of social fatigue, become an acceptable form
of life. Our Courts need to continue to send a very strong message
that this conduct
is morally and legally reprehensible and that
offenders will be punished accordingly, for if not, it could and
would also result
in society losing faith in the justice system and
taking the law into their own hands to administer justice. It is thus
important
and the duty of the Courts to contribute in their role as
the justice system to impose appropriate sentences, particularly
where
children are the victims of violent crimes, sexually violated
and murdered.
[23]
Section 28
of the Bill of Rights in our Constitution states that in
addition to basic nutrition, shelter and care, every child has:
'the
right to be protected from maltreatment, neglect, abuse or
degradation.'
The inclusion in the
Constitution of a special section on the rights of the child was an
important development for South African
children to secure their
safety and protection. Unfortunately children continue to be
exploited physically and sexually, notwithstanding
the inclusion of
their fundamental rights to safety and protection. The Court must
take these rights into account when meting out
punishment for
offences, such as the ones of which you, Mr. D, had been convicted.
[24]
Children have the right to feel safe and protected wherever they go,
to play happily in their playgrounds, to walk to and from
school
freely without fear of violation or attack. Children have the right
to be nurtured within their homes and community; to
expect a haven in
which they can put all of their enquiring minds to the fascinating
world around them; to explore the innocence
of their youth and to
draw strength from the memories of their childhood to become
fulfilled and balanced adults. In short, they
have the right to look
to the world around them to create an environment free and protected
from crime and violence. The late Chief
Justice Mahomed echoed
similar sentiments regarding the rights of women and the acts of
violence and crime that they are subjected
to in the well-known and
oft quoted dictum of
S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
SCA at 345 A-8 .
[25]
As the accused, you cannot be sacrificed at the altar of deterrence
for other would-be offenders, nor can it impose punishment
on you
anger. However the interests of the community must be satisfied that
offenders of serious crimes such as these be punished
accordingly. If
offenders are punished too lightly for serious offences, society
would lose confidence in our Courts and so too
would law and order be
undermined. Serious crimes of this nature therefore compel that the
objectives of retribution and deterrence
weigh more than the
objectives of rehabilitation of the offender and accordingly the
interests of the accused would recede to the
background.
CONCLUSION:
[26]
Your counsel submitted that, inter alia, your youth, prospects of
rehabilitation, the fact you are a first offender for this
type of
offence, that you had expressed remorse through pleading guilty and
that you had spent time awaiting trial as cumulative
justification
for departing from the life sentences you face. However taking into
account the excessive and brazen nature of the
violence you had
inflicted in the course of raping and murdering your young victim as
well as other aggravating features of these
offences, I can find no
other suitable sentence other than to remove you from society for the
duration of your life. I can find
no justification to depart from the
prescribed minimum sentences of life. No other sentence would be just
and equitable other than
to imprison you for life and accordingly I
sentence you as follows in order of the charges in respect of which
you had been convicted:
(i)
Count 1:
Kidnapping of C M
from the lawful custody of her mother, H M, I sentence you to
five
years direct imprisonment;
(ii)
Count 2:
Raping of C M, I
sentence you to
life imprisonment
;
(iii)
Count 3:
Murder of C M, I
sentence you to
life imprisonment
;
(iv)
Count 4:
Defeating or
obstructing the course of justice by disposing of the deceased body
of C M, and cleaning of the crime scene, I sentence
you to
5
years direct imprisonment
.
(v) In terms of
Section 50(2)(a)
of the
Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007
, the particulars of the accused, as a convicted sexual
offender, must be included in the National Register for Sex
Offenders;
(vi) In terms of Section 120(4) of the
Children's Act 38 of 2005 (the '
Children's Act') and
Section 41
of
the Criminal law (Sexual Offences and Related Matters) Amendment Act
32 of 2007 you are declared to be unsuitable to work with
children.
In terms of
Section 122(1)
of the
Children's Act, the
Registrar of
this Court is directed to notify the Director-General: Department of
Social Development in writing of the findings
of this Court in terms
of
Section 120(4)
supra;
(vii) Finally, in terms of the
Firearms Control Act 60 of 2000
, you are declared to be unfit to
possess a firearm.
_____________________
SALIE-HLOPHE,
J