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[2018] ZAFSHC 27
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S v Frederiksen (33/2016) [2018] ZAFSHC 27 (15 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: YES
Circulate
to Magistrates: YES
Case number:
33/2016
In
the matter between:
THE
STATE
and
PETER
FREDERIKSEN
Accused
HEARD
ON:
13 MARCH 2018
SENTENCE
BY:
DAFFUE, J
DELIVERED
ON:
15
MARCH 2018
[1]
Mr Frederiksen, it is now time to sentence you. In order to
achieve a balanced sentence I shall consider firstly you as
a person
and your personal circumstances, secondly the nature and severity of
the crimes and thirdly, the interests of the community.
The
objects of punishment, to wit retribution, prevention, deterrence and
rehabilitation will also be kept in mind.
Your personal
circumstances
[2]
You are 66 years old. You and your first wife, Vivian, have
been living together since 1977. You married her in
1987, but
got divorced the next year for tax purposes. However, you were
still staying together until you left Denmark for
South Africa in
2004. You remarried in 2004, but were again divorced in 2015.
One daughter and two sons were born from
your first marriage.
They are 40, 28 and 26 years old respectively. They, like your
ex-wife, Vivian, are Danish citizens
as is the case with you.
You married a young Sotho woman from Lesotho – aged 22 at the
time - on 22 January 2010, a
few days after you had met her. At
that stage you were still married to Vivian. Your new wife has
been referred to
as Tshidi throughout the trial and therefore also in
my judgment in convicting you. Two sons, Paul and Christiaan,
were born
in 2011 and 2013 respectively from this marriage
relationship. They are presently in temporary care of
caretakers and I have
been assured that once these proceedings are
finalised, permanent orders will be made. I am satisfied that
their best interests
will be taken care of. I understand your
longing for the two boys as this is a normal reaction of any parent.
You indicated
to me earlier that you really wanted to have contact
with the boys and I suggested then that I believed the necessary
arrangements
might be made, once these proceedings have been
finalised.
[3]
Your father passed away some time ago, but your mother that is 91
years old, is still alive. Your brother financed your
legal
expenses to an extent and I accept that through him, you would have a
support system in Denmark. None of your family
members attended
any of the proceedings before me and I do not know how tight the
bonds between you and your children are.
You have had little
contact with your Danish sons since your incarceration. Your
ex-wife, Vivian, is apparently not interested
to remain in contact
with you. Your Lesotho in-laws are from my observation not keen
to be associated with you. You
cannot bank on any of them to
support you in future. Your sister-in-law, Ms Dimpho Molise,
stated in her Victim Impact Statement
– Exhibit “RR”
– that you did not even contribute to Tshidi’s funeral
and furthermore, the family
live in constant fear as they believe you
have
“
eyes
and ears everywhere.”
[4]
Your first venture in this country was a failure, but you invested
money to buy a well-known and established firearms dealership
in
Bloemfontein, to wit Impala Arms. You even expanded the
business by opening a branch under the same name in Maseru, the
capital of the Kingdom of Lesotho. According to information
provided by you to Mr Van der Merwe, the social worker employed
by
the Department of Correctional Services instructed by the court to
consult with you and to prepare a report, you were running
this
business until 2017 and well beyond your incarceration.
[5]
I do not want to say too much about your life in Denmark and later in
Kenia. Mr Van der Merwe mentioned this in his report
accepted
as Exhibit “NN”. He testified and confirmed the
contents. You accepted the report, save the conclusion
pertaining to sentence. His version of your background is
therefore not in dispute. Clearly, you were rather rebellious
from a school-going age and consequently, you had two brushes with
the law in your country of birth, both in respect of illegal
possession of firearms. I refer to Exhibit “AA”. In
fact, you are a fugitive of justice in that you failed to
serve the
sentence imposed on you in your absence on 17 September 2010.
Previously, and on 5 February 1997, you were also
sentenced to 3
months’ imprisonment for violation of the Danish Weapons Act.
Therefore, when you applied for residency
in this country and for the
certificates and licences in terms of the Firearms Control Act, 60 of
2000, you were a convicted criminal
which information you failed to
tender to the authorities.
[6]
You are what some may call a man’s man. You are a hunter
and you love firearms. You are charming and managed
to take
Tshidi to bed the same day you met her. You had at least two
romantic relationships with a certain Maria and Michelle
ex
facie
your
own diaries at the time you were married to Tshidi and Vivian.
You were described by Ms Peiso Maime as “
a
very welcoming person”
and
you had the ability to persuade her to subject herself to a
circumcision which she later described as
“
something
terrible”
that
had happened to her. You and Ms Sarah Sekhabisa, your
ex-employee, were on the verge of having sexual intercourse one
night
as a result of your endeavours. You had friends in the South
African Police Service as well as in the Lesotho Police
Service.
W/O Terblanche, who testified on behalf of the State, comes to my
mind. There are other examples which I do
not need to deal
with. You apparently have the ability to manipulate and/or
influence officials in the employ of the Department
of Correctional
Services to illegally supply you with cellphones, alternatively to
turn a blind eye, allowing cellphones to be
smuggled in to you.
Several cellphones have been confiscated from you.
[7]
You used the opportunity before sentence to inform the court through
Mr van der Merwe that you are totally innocent, save in
respect of
some minor charges. Even in those cases you claimed that
notwithstanding your convictions, even where you made
formal
admissions, you are in actual fact innocent. You believe that
you have done no wrong, trying to rationalise your deeds.
You
have shown no remorse at all and are unrepentant. When you
became emotional during your evidence, it was in my view not
a sign
of remorse, but a matter of pitying yourself for the mess you found
yourself in.
[8]
You are not a first offender. I refer to your firearm
convictions, but I do not intend to rely on these convictions
for
purposes of sentencing you, save to mention that seeds for your moral
blameworthiness have been planted much earlier in your
life. On
28 May 2015 you were convicted of being in illegal possession of an
elephant tusk for which a fine of R2 500
was imposed in the
Bloemfontein Magistrate’s court. You have been acquitted
on the charges relating to circumcision
for the reasons set out in my
ruling in terms of
s 174
of the
Criminal Procedure Act, 51 of 1977
.
I deem it necessary to make remarks about the videotaping of the
procedure on Ms Peiso Maime and the inscriptions in your
diaries.
Your personality became clear from your appearance on the video
footage. Anyone who has to consider this judgment
in future
will do the right thing to watch that video and read your diaries
first. I have seen many pictures of horrible
scenes in my life,
but I have never felt so much disgust and unease when I watched the
video. I referred to your apparent
satisfaction and sexual
pleasure in paragraph 63 of the judgment on the merits and do not
intend to repeat what I have said.
Your diaries confirm that
you made contemporaneous notes of several incidents, but in
particular your sexual achievements with
several females, including
the minor NNM. You boasted about all this and the inscriptions
are in many cases excessively proud
statements.
[9]
You are suffering from
hypertension and gout, but as Me Sonti, the Operational Manager at
the Department of Correctional Services,
stated in her evidence, you
receive medication and these conditions are under control.
Although inscriptions of suicidal
behaviour appear from your
file, she believes that sufficient care is taken that you and any
other inmates suffering from
depression – which is quite normal
– are properly managed to avoid such dire outcome. Your
ailments are often
found in middle-aged people, but over and above
that, you appear to be a fit, strong, lean and healthy man.
The seriousness of the
offences
[10]
You have been convicted of several offences, some much less serious
than rape, child pornography and conspiracy to commit murder.
I
start off with the less serious offences. You were convicted of
contravening
s 49(14)
of the
Immigration Act, 13 of 2002
.
Unlike as Ms Bester has submitted, the maximum sentence is not a fine
or 2 years’ imprisonment as provided for in
ss 49(1)
, but a
fine or 8 years’ imprisonment. I am satisfied that
although you made a false representation to the authorities,
you
clearly had the intention to start a new venture in South Africa and
that you in actual fact did commence with business later
on through
the company known as Danish Thatching (Pty) Ltd. You cannot be
regarded as the typical illegal immigrant that
has flocked to this
country with no hope to obtain work and then become involved in
illegal activities. The sentence will
take into consideration
that your goal was to become involved in the mainstream economy and
that you intended to do business legally.
[11] The next offence to
be considered is the assault on Tshidi. Ms Bester submitted
that a sentence of 12 months’ imprisonment
should be imposed.
I already accepted that you and Tshidi were involved in a stormy
relationship. An altercation broke
out the particular night
between you. Although there were no visible signs of a physical
assault, you instilled so much fear
in her that she fled with the
children and decided to sleep in her vehicle in the Bainsvlei police
station’s parking area
that night. You should receive a
harsh sentence and not only a tap on the wrist.
[12]
The next convictions relate to the possession of child pornography as
well as the production thereof. Ms Bester referred
the court to
DPP
v Alberts,
case
no A835/14, an unreported judgment of the Gauteng North High Court
delivered on 30 June 2016, dealing specifically with child
pornography. I have to emphasize that the court in
Alberts
referred
to several judgments from other jurisdictions and in particular the
effect of online sexual abuse.
In
casu
there
is no evidence that you ventured into the arena of online child
pornography,
i.e.
that
you posted any of the photographs found in your possession on the
internet. This case must be evaluated and considered
on the
facts presented and accepted by me. No doubt, child pornography
is extremely harmful to children and the broader community.
It
is universally condemned and the recent amendments to the
Films and
Publications Act, 65 of 1996
serve as proof that our legislature is
committed to curb this serious crime. I again accept that you
were in a position of
trust and that you were in serious breach of
such relationship when you took the photographs. You even
arranged for the enlargement
of some of these photographs. Your
actions are nothing less than vulgar and morally reprehensible.
It must be treated
as such by meting out severe penalties. Mr
Bruwer conceded the seriousness of the offences, but submitted that
there are
varying degrees of pornography. According to him,
these pictures are not the worst one may imagine. They do not
depict,
e.g.
sexual
intercourse between adults and children and may be regarded as
“
soft
porn.”
I
wish to make it clear at this stage that I agree with Mr Bruwer’s
submission that the pornographic material presented to
the court is
of a low intensity, but more importantly, it was not produced for the
eyes of the general public and therefore not
distributed on social
media
ex
facie
the
available and accepted evidence.
[13]
Having said all this, Mr Frederiksen you cannot escape long term
imprisonment. This court’s repugnance of your actions
must be
reflected in the sentences to be imposed. The
Films and
Publications Act does
not provide for penalties in the event of
crimes committed as described in
s 24B.
The court is therefore
at large to impose penalties which it deems fit. Ms Bester
submitted 5 years’ imprisonment
for possession
(s 24B(1)(a))
and
2
years each in respect of the counts dealing with production of
the pornographic material
(s 24B(1)(b))
, such sentences to run
concurrently so that you are sentenced effectively to a period of 10
years’ imprisonment. The
sentences to be imposed will
signify my repugnance.
[14]
The seriousness of the offences relating to conveyancing and
possession of unregistered medicine must be considered.
I
merely need to refer to the evidence of Dr PN van Zyl. Xylocain
is not a registered medicine in this country and can be
extremely
dangerous if used by a layman on others in uncontrolled conditions as
you apparently did, Mr Frederiksen. The mere
fact that there is
no proof that people died or fell seriously ill as a result of your
injections, is immaterial. You used
the medicine, whilst in
illegal possession, to conduct your reprehensible circumcision
practice on women. In terms of
s 30
of the relevant Act you may
be sentenced to the payment of a fine or imprisonment not exceeding
10 years. Ms Bester submitted
that a cumulative sentence of 8
years should be imposed and that the medicine be declared forfeited
to the State for destruction
purposes.
[15]
You have been convicted on three counts of fraud relating to your
applications for competency certificates, a firearms dealers’
licence and the renewal of these. Ms Bester suggested sentences
of 5 years’ imprisonment each, although portions should
be
ordered to run concurrently. Mr Bruwer conceded the seriousness
of these offences. The SAPS should have been much
more alert
than
in
casu.
I
cannot believe that they did not regard it as absolutely necessary to
contact the authorities in Denmark to establish your status.
In
the case of South African citizens the word of the applicant is not
sufficient. His/her fingerprints are taken to establish
whether
the applicant has a clean criminal record. However, the
loopholes in the SAPS system cannot be relied upon by you
to obtain a
lenient sentence. You have been convicted of serious offences
and must be sentenced appropriately.
[16]
Ms Bester requested me to take counts 58 and 59 together for purpose
of sentencing and to impose 15 years’ imprisonment.
These
counts are in respect of the illegal possession of firearms and
ammunition. Mr Bruwer submitted that many of the firearms
were
old weapons and/or parts of firearms only and he doubted whether the
firearms were still in a working condition. The
sentence of 15
years is the maximum provided for in the Act and it needs to be
considered whether it is an appropriate sentence.
Fact of the
matter is that we are confronted with a relatively high number of
firearms. The conviction in respect of
count 60 is about
the loss of nearly a thousand firearms. The maximum sentence to
be imposed in terms of the Act is 5 years’
imprisonment.
I wonder whether the legislature ever considered that so many
firearms may be lost by one dealer at any given
moment. It is
perhaps necessary to reconsider the maximum sentence in this regard.
Obviously, it should be taken into
consideration that the form of
fault (
mens
rea
)
is mere negligence and not intent.
[17]
The conviction in respect of s 18(a) of the Prevention and Combatting
of Corrupt Activities Act, 12 of 2004 must now be considered.
Ms Bester suggested 8 years’ imprisonment. Mr Bruwer
indicated that the maximum sentence to be imposed is life
imprisonment.
As in all other cases, he did not suggest what
sentence shall be imposed. I have no doubt that particular
behaviour and its
consequences may call for extreme sentences, but
this is not such a case. I have indicated
supra
that
your personality is such that you can easily influence, if not
manipulate, people, Mr Frederiksen, but I shall consider the
value
that Ms Numbi Pelepele could have added to the State’s case.
It is really minimal and perhaps only in respect
of count 7. In
any event, I have convicted you on that count. However, the
evidence tendered showed your manipulative
streak and strong
personality. Your attempts to manipulate other State witnesses
were unsuccessful, save perhaps in the case
of Michelle who refused
to testify.
[18]
I shall now deal with rape.
It
was aptly stated by the Supreme Court of Appeal in
De
Beer v S
(121/04),
an unreported judgment of the SCA delivered on 12 November 2004 at
paragraph [18] as follows:
‘
Rape
is a topic that abounds with myths and misconceptions.
It
is a serious social problem about which, fortunately, we are at last
becoming concerned. The increasing attention given to it
has raised
our national consciousness about what is always and foremost an
aggressive act. It is a violation that is invasive and
dehumanising.
The consequences for the rape victim are severe and permanent. For
many rape victims the process of investigation
and prosecution is
almost as traumatic as the rape itself.
[19]
With regard to sentence, the nature of the multiple rapes of NNM, and
her age - she being 6 or 7 years old at the time - brought
the matter
within the purview of
s 51(1)
of the
Criminal
Law Amendment Act, 105 of 1997
,
read with
Part
I
of Schedule 2 thereof
which
prescribes a minimum sentence of life imprisonment, unless
substantial and compelling circumstances are present. Clearly,
the legislature had in mind to provide for harsh sentences in the
belief that these kind of offences deserve severe sanctioning.
Rape has been labelled by several judges as a despicable crime and
rightly so.
[20]
The
Supreme Court of Appeal found in
MDT
v S
(548/2013)
[2014] ZASCA 15
(20 March 2014), delivered on 20 March
2014 at paragraph [6] that one can rightly ask what could be
considered more heinous than
the rape of a child by a father.
The SCA referred with approval to the remarks of Cameron JA in
S
v Abrahams
2002 (1) SACR 116
(SCA) at paragraphs [17] – [23].
[21]
As
mentioned in paragraph [7] of
MDT
supra
“
child
rape is a national scourge that shames us as a nation”
.
The courts have a serious duty to prevent young girls from being
abused. Sachs, J stated the following in a unanimous
judgment
of the Constitutional Court in
Bothma
v Els
2010
(2) SA 622
(CC) at paragraph [47]:
“
Child
rape is an especially egregious form of personal violation….
By its very nature it is frequently characterised by secrecy
and
denial. There is accordingly a special public interest in
taking action to discourage and prevent rape of children.
Because it often takes place behind closed doors and is committed by
a person in a position of authority over the child, the result
is the
silencing of the victim, coupled with difficulty in obtaining
eyewitness corroboration.”
[22]
Conspiracy to commit a crime is regarded as serious as the crime
itself. Mr Frederiksen, you were incarcerated
and not
supposed to be in possession of a cellphone. However, you
managed to get hold of one and arranged with a willing
partner in
crime – a paraplegic – to carry out your mandate to kill
Tshidi. You had a clear motive to do so and
this is in line
with your declared intention – communicated to the Sallings -
that you will get rid of someone
in order to survive.
Tshidi’s death was crucial for you to stand a chance to survive
and you knew it. Ms Bester
asked for life imprisonment, whilst
Mr Bruwer submitted that a lesser sentence would be appropriate,
emphasizing the destructive
relationship between the parties. I
am satisfied that an abhorrent crime was committed and that you
should be sentenced appropriately,
Mr Frederiksen.
The interests of the
community
[23]
The community must be protected.
I
wish to refer to the remarks of the Appeal Court in
S
v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(AD) at 5(c-e) and several other judgments of eminent
judges thereafter. I quote from
Chapman,
acknowledging
that the
dicta
relate
to women as a group and not to small children as
in
casu
:
“
They
(females) have a legitimate claim to walk peacefully in the streets,
to enjoy their shopping and entertainment, to go to and
come from
work and to enjoy the peace and tranquillity of their homes without
the fear, the apprehension and the insecurity which
constantly
diminishes the quality and enjoyment of their lives.
The courts are under a duty to send a
clear message to the accused, to other potential rapists and to the
community: we are determined
to protect the equality, dignity and
freedom of all women and we shall show no mercy to those who seek to
invade those rights.”
[24]
The
Chapman judgment led to the promulgation of Act 105 of 1997.
Notwithstanding the minimum sentences legislation the spate
of crime
in our country, especially involving female and child victims, has
not abated. Prior to Chapman and Act 105 of 1997,
the former
Appeal Court emphasized that the community and children in particular
should be protected. See the judgment of
Corbett JA in S v E
1979 (3) SA 973
(AD) at 978 A – B. Also, in S v D
1995 (1) SACR 259
(AD), Van den Heever JA stated the following at 260
f - j:
“
Children are vulnerable to
abuse, and the younger they are the more vulnerable they are.
They are usually abused by those
who think they can get away with it,
and all too often do….. Appellant’s conduct in my view
was sufficiently reprehensible
to fall within the category of
offences calling for a sentence both reflecting the Court’s
strong disapproval and hopefully
acting as deterrent to others minded
to satisfy their carnal desires with helpless children.”
[25]
The crimes relating to conspiracy to commit murder, child pornography
and firearms to mention just these, have a serious impact
on our
community. Too many people are killed with unlicensed or stolen
firearms. Our communities must be protected
against criminals
that want to kill their loved ones. They also need protection
against people that carelessly deal with
firearms and/or should never
have been allowed to deal with them in the first place. Child
pornography has become one of
the most popular crimes and it appears
as if men, especially older men, find this an attractive hobby.
It is a disgusting
crime and should be combatted with vigour.
The young mother, Tshidi, would have been alive, was it not for your
heinous deed
to obtain willing partners and instruct them how to
execute your wife. This kind of action should not be allowed in
a civilised
society. As indicated, Mr Frederiksen, you had
instilled fear in the Molise family who believe that you are able to
harm
them even whilst you are incarcerated. Action like yours,
you being in essence the general, boss or gang leader, manoeuvring
your troops from the safety of your prison cell, must be rooted out
by imposing heavy sentences.
Sentences in respect
of crimes, excluding rape and conspiracy
[26]
I do not want to downplay the seriousness of the offences, other than
rape and conspiracy, or your liability in that regard,
but my
sentences will show that I am not in full agreement with Ms Bester in
respect of some of the sentences proposed. I
believe that the
sentences to be imposed will do justice to the purposes of sentence
and should be regarded as the result of a
balanced approach to
sentencing. It is necessary to consider the cumulative effect
of the sentences which may be shocking
if no order is made in terms
of
s 280
(2) of the
Criminal Procedure Act, 51 of 1977
. It is
deemed appropriate to order the sentences to run concurrently to
prevent an injustice to the accused. If it is not
done, the effective
sentence would be in excess of fifty years. That would be
unfair and ridiculous.
The search for
substantial and compelling circumstances
[27]
I shall deal with substantial and compelling circumstances in a
moment. Let me say this at this stage. When a balanced
sentenced is considered, your personal circumstances need to take a
backseat in the event where the court is confronted with serious
offences such as
in
casu.
The
purposes of punishment are also considered with more emphasis on
deterrence and prevention and less on rehabilitation.
You may
be sentenced more lenient than the prescribed minimum sentence of
life imprisonment if I find substantial and compelling
circumstances. I accept that a number of factors may
cumulatively be considered to be substantial and compelling, although
each of them does not on its own qualify as substantial and
compelling.
[28]
The following was emphasised in
S
v Malgas
2001
(3) All SA 220
(SCA) at paragraph 8:
‘
[8]
[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,
standardised, 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.’
[29]
In terms of the provisions of
s 51(1)
, read with
Part I
of Schedule 2
of the
Criminal Law Amendment Act, 105 of 1997
, the prescribed
minimum sentence for the rape of NNM, she being under the age of 16,
is life imprisonment. Although you are
not the father of NNM,
Mr Frederiksen, you are her stepfather insofar as you have been
married to her mother. NNM in all
probabilities accepted you as
her father and therefore trusted you as children trust their own
parents.
[30]
In
S
v PB
2013 (2) SACR 533
(SCA), in line with
S
v Matyityi
2011(1)
SACR 40 (SCA),
the Supreme Court of Appeal emphasised in paragraph [20] that
prescribed minimum sentences should not be departed from lightly
or
for flimsy reasons. The SCA refused to interfere with the
prescribed sentence of life imprisonment imposed on a father
who had
raped his 12 year old daughter.
[31]
I am conscious that life imprisonment is the ultimate penalty that
the courts can impose and should not be imposed lightly.
Even where
life imprisonment is prescribed as a minimum sentence, the fact that
it is the ultimate penalty must also be taken into
account; therefore
it must not be imposed lightly.
[32]
The sentiments of the Supreme Court of Appeal expressed in
S
v EN
2014(1) SACR 198 (SCA) paragraph [14] are apposite to remind
prosecutors and presiding officers of their responsibility during
the
sentencing stage, particularly in rape cases:
‘
Sentencing
is the most difficult stage of a criminal trial…Courts should
take care to elicit the necessary information to
put them in a
position to exercise their sentencing discretion. In rape case for
instance, where a minor is a victim, more information
on the mental
effect of the rape on the victim should be required, perhaps in the
form of calling for a report from a social worker.
This is especially
so in cases where it is clear that life imprisonment is being
considered to be an appropriate sentence. Life
imprisonment is the
ultimate and most severe sentence that our courts may impose; justify
that sentence.’
[33]
I wish to refer to some authorities to deal with your reliance on old
age, Mr Frederiksen. The ailments you complain
of are often
found in much younger persons. You still look healthy and
strong for a man of 66. I also refer to what
I shall record
infra
pertaining
to your enjoyment of life until incarceration. A few decades ago 60
years was considered old. Twenty years ago
70 was considered
old. Nowadays people are still enjoying life in their eighties;
therefore age is a relative concept depending
on many factors.
In
S
v Zinn
1969 (2) SA 537
(AD) at 541 and 542 the court dealt with old age.
The court said the following on 542 A – D and I paraphrase:
“…
but generally
speaking old age is not a ground for leniency,….Having regard
to his age and the fact that he deliberately
committed fraud over a
period of eight years, ….the appellant’s claim to a
sentence which would give him the opportunity
to reform and start
life afresh is necessarily greatly weakened. ….. The
interests of society … demand that
a man like the appellant
must be put away for a long time, not only to protect society against
a man who has no conscience …
, but also as punishment for
crimes committed over an extended period and as a warning to
businessmen who might feel inclined to
abuse the confidence that must
necessarily exist in a civilised state …”.
In
S
v Barendse
2010
(2) SACR 617
(EC) the full court found that the advanced age of the
appellant was a factor to interfere with a sentence of life
imprisonment
whereupon the sentence was reduced to ten years’
imprisonment. The appellant was 72 years old and the offences
of indecent
assault and rape were committed some years earlier.
In
S
v Kearns
2009
(2) SACR 684
(GSJ) the appellant’s sentence of life
imprisonment in respect of rape of a 9 year old girl, causing serious
psychological
and physical injuries, was dismissed by the full
court. He was 59 years old at the time of sentencing.
[34]
I also used the opportunity to do further research and wish to refer
to the following recent and not so recent judgments of
the SCA.
(a)
In
Hewitt
v The State
637/2015
[2016] ZASCA 100
(9 June 2016) a 75 year old offender’s appeal
against his sentence of 6 years’ imprisonment for rape and
indecent assault
of young girls committed three decades ago, was
dismissed. It must be reiterated that prior to the promulgation
of Act 105
of 1997 rape accused were not sentenced nearly as severely
as now. The SCA dealt with the appellant’s old age and
stated
in paragraph [15] that it was certainly not a bar to a
sentence of imprisonment.
(b)
In Sikhipa
v
The State
[2006] SCA 71 (RSA) a sentence of life imprisonment was set aside and
substituted with a sentence of 20 years’ imprisonment.
Although the court mentioned at paragraph [18] that no evidence was
led about the psychological consequences for the complainant,
it accepted that there was no doubt that the rape was traumatic for
her. The SCA blamed the court
a
quo
for
not considering the appellant’s personal circumstances in
mitigation. These were quite different from that of you,
Mr
Frederiksen. In
S
v PB supra
at
paragraphs [15] to [21] Bosielo JA, writing for a unanimous full
bench of the SCA, criticized what he called a trend to substitute
sentences of life imprisonment with other sentences. Reference
was made to
Sikhipha
supra
and
S v
Nkomo
2007 (2) SACR 198
(SCA). I respectfully agree with the
sentiments expressed.
(c)
In
Moses
Tshoga v The State
(635/2016)
[2016] ZASCA 205
(15 December 2016) the SCA bench was
split. The majority found that the sentence of life
imprisonment in respect of the rape
of a 10 year old girl was in
order. In that case a report from a counselling psychologist of
the Teddy Bear Clinic was presented
as evidence by agreement with the
appellant. The majority found at paragraph [34] that the rape
was regarded as extremely
serious as the complainant was raped by a
relative who was trusted by the family, causing her devastating
psychological life-long
consequences. The appellant was not a
first offender and has raped before.
(d)
In
Shawn
Palmer v The State
(599/2016)
[2017] ZASCA 107
(13 September 2017) life imprisonment for
rape was substituted by a sentence of 15 years’ imprisonment.
The complainant
was a 13 year old girl. The facts in that case
differ totally from the matter
in
casu.
The
SCA stated that it was not necessary for the court
a
quo
to
find so-called exceptional circumstances in order to deviate from the
prescribed minimum sentence. It found at paragraph
[20] that
when the aggravating and mitigating factors were taken into account,
the prescribed minimum sentence was inappropriate.
(e)
In
De
Beer v The State
(1210/2016)
ZASCA 183 (5 December 2017) the SCA reinstated the sentence of 15
years ( 5 years was suspended) imposed by the
Regional Court
and set aside the High Court’s sentence of life imprisonment
imposed on appeal. The appellant committed
acts of sexual
penetration by inserting his fingers into an 8 year old girl’s
private parts on numerous occasions over a
period of four months.
The SCA warned in paragraph [19] that courts should
“…
guard against an injustice being
perpetrated by adhering slavishly to the prescribed minimum
sentences.”
I
also wish to refer to the explanation in paragraph [20] pertaining to
the proportionality of life sentences in rape cases
.
(f)
In
Ngcobo v
S
(1344/2016)
2018 ZASCA 06
(23 February 2018) an appeal against the imposition of
a life sentence was dismissed. The court found at paragraph
[18] that
the court
a
quo
was
correct in finding that there was an absence of substantial and
compelling circumstances. At paragraph [20] it found that
the
sentence was not disproportionate with the severity of the offence.
A 16 year old girl was physically assaulted and raped
twice at
different locations.
(g)
In
D v
The State
(89/16)
[2016] ZASCA 123
(22 September 2016) the court found on appeal that a
sentence of life imprisonment was in order. The biological
father of
a 16 year old daughter raped her on two occasions, causing
her to fall pregnant. He pleaded guilty.
(h)
In
Kaywood
v S
(394/2016)
[2016} ZASCA 179
(28 November 2016) the SCA did not interfere with
the sentence of life imprisonment imposed in respect of rape.
No doubt,
the complainant in that case was gruesomely assaulted, so
much so that appellant was also convicted of attempted murder and
sentenced
to 16 years’ imprisonment. The case is
therefore distinguishable on the facts. The following was said
at paragraphs
[15] and [16]:
“
[15] The appellant’s
personal circumstances pale against the abhorrent nature and level of
cruelty with which he committed
the crimes under consideration…….
[16] Consequently, it is my view
that in this case a departure from the minimum prescribed sentence
would be nothing short
of maudlin sympathy.”
[35]
The evidence presented by the State by means of Victim Impact
Statements of NNM and her aunt in respect of the trauma experienced
and their evidence was not disputed. I do not intend to repeat
the evidence, and merely wish to state that their ordeals
had a
severe traumatic impact on them. Victim Impact Statements were
obtained from Ms Dimpho Molise, Tshidi’s sister
and NNM and
accepted without objection as Exhibits “RR” and “SS”.
The versions are to
a certain extent repetition of what they
testified under oath. I do not deem it necessary to quote from
these statements.
[36]
Mr Bruwer submitted that the court should find substantial and
compelling circumstances. He referred to your age, Mr
Frederiksen. In respect of the rape, he argued that one gets
varying degrees of rape and that
in
casu
the degree is less than found in many other cases. Pertaining
to the conspiracy conviction he argued that the destructive
relationship between you and Tshidi should be considered, together
with your age, as substantial and compelling circumstances.
Over and above the factors mentioned, you have been incarcerated for
two and a half years and therefore, so he submitted, the cumulative
effect is sufficient for a finding that substantial and compelling
circumstances exist, warranting a lesser sentence than life
imprisonment. Mr Bruwer conceded that a long term imprisonment
will take into account the
objective
gravity of these offences and their prevalence in this country.
[37]
I thought long and hard in order to arrive at appropriate sentences
in respect of the rape on NNM and conspiracy to commit
murder.
I accept that courts should be entitled in exercising their
discretion to consider the vast difference between the
minimum
sentence of 10 years prescribed for rape in Part III of Schedule 2
read with s 51 (2) of Act 105 of 1997 and life imprisonment
prescribed in Part I of Schedule 2, read with s 51(1) of that Act.
However, it would be wrong to impose life imprisonment
only in the
most severe rape cases. The question to be imposed will always
be: what is the most severe case? Is it
only when the
complainant’s private parts were torn open and she was so
severely assaulted and left in the veld that she
succumbed of her
injuries two days later, or does a less serious incident of rape
qualify as well. I believe the answer should
be an emphatic
“yes.”
[38]
I accept that NNM experienced the ordeal as traumatic. The
social worker, Mr Van der Merwe, did not consult with NNM,
but
provided unchallenged evidence of his experience relating to the
emotional trauma experienced by rape victims. The Victim
Impact
Statement presented as evidence is just what it is called: a version
of the complainant. It is not supported by expert
evidence.
Ms Bester submitted that it is apparent from facts presented in
similar cases that psychological effects often
materialise at a much
later stage and that psychologists will in many times not be in a
position to make any relevant conclusion,
especially in the case of
young children. No doubt, NNM will take a long time to
get over the emotional trauma.
Mr Van der Merwe testified that
rape victims do not really recover emotionally from the trauma of
being raped.
[39]
I do not believe that any responsible person can hold the view that
NNM could survive the various incidents of
rape without suffering
severe emotional trauma. In
Kearns
supra
the
full court commented as follows in paragraph [15]:
“
Rape is not merely a physical
assault, it is often destructive of the whole personality of the
victim. A murderer destroys
the physical body of his victim; a
rapist degrades the very soul of the helpless female. The
physical scar may heal, but
the mental scar will always remain.
When a woman is ravished, what is inflicted is not merely physical
injury, but the deep
sense of some deathless shame … By the
very nature of the offence it is an obnoxious act of the highest
order.”
At paragraph [17] the
court continued as follows:
“
To impose anything less than
the punishment as contemplated by our law, in the circumstances of
this case, would be to render the
justice system of our country
suspect.”
I
immediately accept that the complainant in
Kearns
sustained serious physical injuries which is not the case in this
matter.
[40]
Having mentioned all this, the question still remains whether life
imprisonment would be disproportionate with the seriousness
of the
crimes with reference to the lack of expert evidence pertaining to
the after-effects suffered by the complainant. Mr
Frederiksen,
I am convinced that NNM was subjected to your illegal actions over a
period of time whilst you were supposed to care
for her and that this
caused her severe trauma and emotional shock. You were in
a position of trust, but you failed
your responsibilities due to your
fixation with females’ private parts.
[41]
Mr Frederiksen, I am not prepared to find that your age, the duration
of your incarceration, the lack of physical injuries,
other
mitigating factors, or even the lack of expert evidence to prove that
NNM suffered emotional trauma, individually or cumulatively,
should
be regarded as substantial and compelling circumstances in order for
me to deviate from the prescribed sentence. You
were clearly
still an active person conducting your own business and were so
energetic that you not only married a 22 year old
girl, but
apparently enjoyed an active sex life with her and at the same time
with other women as well. I take cognisance
of the authorities
quoted
supra,
but in
my view you cannot now rely with success on old age. You caused
the case to be delayed in that numerous pre-trial procedures
had to
be held in order for you to eventually obtain the services of your
present attorney. Mr Van der Merwe
did not consult
with NNM, but his evidence based on his many years of experience was
not challenged. NNM and MM were so afraid
of you, Mr
Frederiksen, that they did not even tell their mother. It was
really by co-incidence that information was obtained
from them after
your arrest and their mother’s death. The rape on
NNM, committed over a period of time by a person
who was in a trust
relationship with her, should be penalised by imposition of the
prescribed minimum sentence.
[42]
Life imprisonment would not be disproportionate to the seriousness of
the crimes of the rape of the minor and conspiracy to
kill your
wife. I shall impose a sentence which I deem appropriate.
I am of the view that life imprisonment is required
notwithstanding
the tendency by some judges to substitute life sentences imposed by
the lower courts on appeal to
e.g.
15
years’ imprisonment as mentioned
supra
.
[43]
The murder of Tshidi was committed in Lesotho and this court does not
have jurisdiction to adjudicate that. You
were not charged for
the crime of murder. The murder was pre-meditated and planned.
You were the general and you orchestrated
the murder. The
prescribed minimum sentence for a pre-meditated and planned murder is
life imprisonment. In accordance
with s 18(2) of Act 17 of 1956
you are liable to the same punishment to which the person convicted
of actually committing the murder
would be liable. Having
considered all aggravating and mitigating factors, I am satisfied
that life imprisonment is the only
suitable sentence. I
earnestly considered whether long term imprisonment of say 20 years
would not be appropriate and
achieve the purposes of punishment.
The only way in which I could have decided
not
to impose two sentences of life imprisonment would be to show
“
maudlin sympathy”
towards you and that I am
not prepared to do, bearing in mind the seriousness of the offences
and the interests of the community.
The court room is filled
with mainly female members of our community. This is not
strange. They are, together with
their children, valuable, but
also vulnerable, members of our society. They, in particular,
must be protected against persons
like you. Long term
imprisonment will not suffice. You must be removed permanently
from society.
ORDERS:
[44.1]
You are sentenced as follows:
Count
1
-
Payment
of a fine of R5 000 or 6 months’ imprisonment.
Count
7
–
12
(twelve) months’ imprisonment.
Count
28
–
3
(three) years’ imprisonment.
Counts
29 - 47
–
Taken
together for purposes of sentence: 8 (eight) years’
imprisonment.
Count
48
–
You
are sentenced to life imprisonment.
Counts
49 – 53
–
Taken
together for purposes of sentence: 8 (eight) years’
imprisonment.
Count
54
–
You
are sentenced to life imprisonment.
Counts
55 – 57
–
Taken
together: 8 (eight) years’ imprisonment.
Counts
58 and 59
–
Taken
together: 15 (fifteen) years’ imprisonment.
Count
60
–
5
(five) years’ imprisonment.
Count
61
-
3 (three) years’ imprisonment.
[44.2]
All sentences imposed herewith shall run concurrently in accordance
with
s 280
(2) of the
Criminal Procedure Act, 51 of 1977
.
[44.3]
It is ordered in terms of
s 50(1)
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 32 of 2007
that
accused’s name shall be included in the Register established in
terms of
s 49
of that Act.
[44.4]
It is declared that all Xylocain, the medicine in respect of which
the offences in counts 49 to 53 have been committed,
shall be
forfeited to the State for destruction.
____________
JP
DAFFUE, J