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[2014] ZAFSHC 70
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M v S (A276/2013) [2014] ZAFSHC 70 (15 May 2014)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A276/2013
In
the matter between:
P[…]
M[…] M[…]
….............................................................................................................
Appellant
and
THE
STATE
…...................................................................................................................
Respondent
CORAM:
VAN ZYL, J
et
JAJI,
AJ
HEARD
ON:
5 MAY 2014
JUDGMENT
BY:
JAJI, AJ
DELIVERED
ON:
15 MAY 2014
[1]
The appellant has been convicted on three counts of rape and
sentenced to life imprisonment in terms of section 51(1) of Act
105
of 1997 by the court
a quo
.
[2]
The appellant was legally represented in the court
a
quo
. The aforesaid conviction and
sentence followed from his plea of not guilty. The appeal comes
before the court on account
of the appellant’s right to
automatic appeal at the time he was sentenced by the court
a
quo
.
[3]
The appellant admitted indeed the following and were recorded as per
section 115(2)(b)
of the
Criminal Procedure Act 51 of 1977
:
(i)
that
complainant was his daughter;
(ii)
she was 17
(seventeen) years old at the time of the offence;
(iii)
repeated
sexual intercourse (at least three times) did take place albeit
appellant claimed it was consensual (complainant having
forced
herself unto him, it was alleged).
[4]
Professor Calitz, an expert with B.A. degree, Master’s degree
and Doctor of Philosophy in clinical psychology, employed
as a head
of clinical psychology at the University of Free State, as well as
working at the Free State Psychiatric Hospital, gave
evidence that:
(i)
complainant
was mentally challenged and was not able to testify;
(ii)
she would not
be able to give informed consent to sex.
[5]
The finding by the court
a quo
that the appellant more than once (actually three times) raped the
complainant, who was mentally challenged, therefore fell within
the
provisions of
Part 1
of Schedule II of the Criminal Law Amendment Act
of 2007, which mandates a compulsory or mandatory sentence of life
imprisonment
in the absence of substantial and compelling
circumstances, which justify the imposition of a lesser sentence, is
not challenged
on appeal. The grounds of appeal, which the
appellant relies on, can be summarised as per the appellant’s
head of argument
as follows:
“
11.
that the court
a quo
erred with its finding that no substantial and compelling
circumstances exist and that there was nothing warranting deviation
from the prescribed sentence;
13.
that the following circumstances be regarded cumulatively as
substantial and compelling in nature warranting a lesser sentence
than life imprisonment:
13.1
appellant was 40 years at the time of the offences;
13.2
did not attend school and is a person of low intelligence;
13.3
he is removed from the farm and does not work there anymore;
13.4
complainant did not suffer any physical harm.
14.
that therefore enough reason exists from deviation from mandatory
sentence of life imprisonment and impose a lesser sentence
of 20
(twenty) years imprisonment.”
[5]
Mr Botha, legal representative of the appellant in the court
a
quo
, could “unfortunately cannot
try and convince the court to anything else, because the facts speak
for itself”.
The complainant was a minor; was raped more
than once; she was mentally challenged and all these arose from the
fact that she was
unable to give consent. The result was that a
child was born out of the rape.
[6]
The following mitigating factors and personal circumstances of
appellant are evident from the judgment on sentence by the court
a
quo
, which factors and circumstances
were clearly taken into proper consideration by the court
a
quo
:
6.1
Appellant was 40 years of age at the time of sentencing;
6.2
Has low intelligence;
6.3
He has not been to school;
6.4
He is no longer involved in a relationship with his wife.
[7]
The aggravating circumstances are very evident from the record.
The evidence of the complainant’s aunt regarding
the state of
the complainant. The rejection of the child clearly
demonstrating the fact that she abhors the process that
led to the
birth of the child. These are some of the psychological and
emotional effects on the complainant. The appellant
was the
father of the complainant. He was in a position of trust when
he took advantage of her. Complainant was his
own mentally
challenged child requiring attention and protection. The
incident clearly left long term emotional scars not
only on her.
Her own mother is sick and traumatised by this experience. The
whole experience will remain with them
for the rest of their lives,
because a child was born and would be a stark reminder of what had
happened.
[8]
It is clear from the record that the mitigating factors are far
outweighed by the aggravating factors. The court
a
quo
wrote a detailed and well-reasoned
judgment. The judgment is justified in the circumstances.
The sentence cannot be
considered to be shockingly excessive and
cannot induce a sense of shock in these circumstances. The
court
a quo
in weighing appellant’s circumstances against the offence
stated that the sentence is not unjust given the circumstances.
Appellant complied with the provisions of Part 1 of Schedule II of
the Criminal Law Amendment Act of 2007 not just once but on
two
occasions. He raped his own child more than once and she is
mentally challenged. Appellant has no remorse; he believe
what
he did was right. His low intelligence is immaterial, because
he could still put on his clothes; know basic things about
life and
the question is why wouldn’t he know that it is wrong to have
sexual intercourse with one’s daughter.
The court
a
quo
correctly believed that injustice
would result if life imprisonment was not imposed.
[9]
The court
a quo
was on point upon quoting the case of
S
v Malgas
2001 (1) SACR 469
(SCA):
“
What
stands out quite clearly is that the courts are a good deal freer to
depart from the prescribed sentences than has been supposed
in some
of the previously decided cases and that it is they who are to judge
whether or not the circumstances of any particular
case are such as
to justify a departure… …In so doing, account
must be taken of the fact that crime of that
particular kind
has been singled out for severe punishment and that the sentence to
be imposed in lieu of the prescribed sentence
should be assessed
paying due regard to the benchmark which the Legislature has
provided.”
Indeed
a rape of the child deserves full maximum sentence permitted by law.
The record at page 90 and 91, the court
a
quo
correctly highlighted the victim’s
rights, views of broader community, courts having to show the
community that rape is unacceptable
and that all rapes deserve
exemplary punishment.
[10]
In light of all the circumstances, there is no basis upon which the
court
a quo
’s
finding could be interfered with.
[11]
The appeal against sentence is accordingly dismissed.
___________
N.P. JAJI, AJ
I
concur.
____________
C. VAN ZYL, J
On behalf of
appellant: Mr K. Pretorius
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent:
Adv M. Lencoe
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN