About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2011
>>
[2011] ZAFSHC 97
|
|
Seekoei v S [2011] ZAFSHC 97 (2 June 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: A266/2009
In
the appeal between:
JACKSON
SEEKOEI
Appellant
and
THE STATE
Respondent
_____________________________________________________
CORAM:
RAMPAI J
et
KUBUSHI AJ
_____________________________________________________
JUDGEMENT:
RAMPAI J
HEARD ON:
16 MAY 2011
_____________________________________________________
DELIVERED ON:
2 JUNE 2011
[1] This is an appeal.
The appellant was convicted on two counts of rape. He was then
sentenced to life imprisonment in respect
of each count. He was
aggrieved. He now comes to us on appeal against both of the
convictions and both of the sentences.
[2] The appellant was
tried in the Bloemfontein Regional Court. His trial started on 10
September 2008. He pleaded not guilty
to both charges before Ms R M
Sepato. Ms L Botha appeared for the state and Ms M Mazibukwana for
the defence.
[3] Five months later, on
February 10, 2009 to be precise, the appellant was convicted
notwithstanding his plea of not guilty.
On the same day he was
sentenced to life imprisonment on each count.
[4] The first charge was
that the appellant raped D A M, a minor girl child, 13 years of age
at Soutpan between 12
th
and 13
th
March 2006 by
having carnal intercourse with her more than once in contravention of
section 51(1),
Criminal Law Amendment Act, No. 105 of 1997
as
amended.
[5] The second charge was
that the appellant raped B M M, a minor girl child, 12 years of age
at Soutpan during or about the year
2000 to 2003 by having carnal
intercourse with her more than once in contravention of
section
51(1)
, Act No. 105 of 1997 as amended.
[6] As regards the first
count the version of the state was narrated by four witnesses,
namely: D Albertina Mbanjana – the
first victim, Ms Maria Nono
Mosoeu – the first report witness, Mr Pule Tsholofelo Sunday –
the police constable and
Sr Mogadi Johanna Tlhabang – the
examining nurse.
[7] Collectively
summarised their testimonies boiled down to the following evidence:
On Sunday the 12 March
2006 the first victim was sleeping alone at 477 Ipopeng Soutpan. Her
mother had died many years before
then. The house belonged to her
maternal grandmother. The latter was not home during the night in
question. She was visiting
her son, a certain Mr Teboho Seekoei who
lived in the same township.
[8] At or about 23:00 the
victim’s younger uncle, Mr Fikile Jackson Seekoei also known as
Rooi, in other words the appellant,
came in under a false pretext.
He later locked the door, walked into the victim’s bedroom,
slapped her, threatened her,
overpowered her and virginally
penetrated her on two occasions during that same night. He spent the
night in her bed.
[9] The next morning,
Monday the 13 March 2006 D sneaked out of the house, hurried to Ms
Mosoeu at 473 Ipopeng to whom she tearfully
reported what the
appellant did to her. Mr Oupa Mosoeu was present. He heard the
first rape report the victim made to his wife.
He called the police.
Constable Sunday came. He interviewed the victim before he and his
colleague set out to look for the suspect.
Near Kgarona Supermarket,
the appellant was arrested and taken back to the scene. The victim
identified and pointed him out as
the culprit.
[10] She further told the
police officers about a bloodstained blue sheet on her bed. The
police could find no such sheet in the
victim’s bedroom.
Instead they traced it in a box under a bed in an adjacent house 476
Ipopeng. The appellant was the sole
occupier of the house. The
house was also owned by the victim’s grandmother, Ms Tsarani
Seekoei. The victim was seen and
examined by Sr Tlhabang. With the
aide of Tolidine blue solution, she examined the victim’s
genitalia. She noted that her
hymen was elastic, swollen, freshly
torn and bruised. That completed the prosecution evidence.
[11] As regards the first
count the version of the defence was narrated by two witnesses,
namely: Mr Fikile Jackson Seekoei, also
known as Rooi – the
appellant and Mr Vani Jantjie Muller – the appellant’s
friend.
The version of the
defence was that the appellant left his home on Friday the 10
th
March 2006. He went to his friend Vani from there they went to
Sechaba where they spent the night. On Saturday the 11
th
March 2006 they went to Solly’s Tavern and Mabana’s
Place, but again returned to Sechaba on the same day. They partied
there until about 02:30 on Monday the 13
th
March 2006.
[12] From there they went
back to Vani’s. There they carried on drinking beer. Vani
then decided to sell his tape recorder,
because he needed some money.
They ventured out for that purpose. The appellant then suggested
that they should first go to his
place of residence to get a jacket.
He was feeling cold. They went.
[13] As they were
approaching his place they saw D coming out. It was about 06:00.
She told them that her grandmother was not
home. From there they
went to Teboho Seekoei’s place of residence. While they were
there Mr Oupa Mosoeu came. He reported
to his brother’s wife,
Ms Nonkosana Seekoei, that D alleged that the appellant raped her.
Nonkosana confronted him about
the matter. The appellant only heard
about D’s allegation then. He and Vani then decided to go back
home to take the matter
up with D. They never got there because the
appellant was arrested on the way.
[14] The court
a quo
analysed the two versions and concluded as follows concerning the
version of the defence that the appellant was not on the scene
of the
crime when the victim was raped:
“
I dismiss your version as well
as that of Vani as a fabrication. The evidence is just overwhelming
against you. You do not have
a defence at all. I cannot find that D
lied.”
[15] I am of the view
that the court
a quo
was justified to reject the appellant’s
alibi defence. Shortly after the incident, his sister-in-law
confronted the appellant
about the first victim’s serious rape
allegation. His immediate reaction was unnatural and inconsistent
with that which
an objective person would have expected from an
innocent person. Firstly, he did not emphatically deny the serious
accusation
by his niece. Secondly, he did not spontaneously explain
that he was never home over the entire weekend. Thirdly, he did not
ask his friend to set the record straight on his behalf. Fourthly,
his good friend did not take it upon himself to dismiss the
allegation as absolutely untrue. Finally, the same friend did not
instantly give any explanation that their common friend, Sechaba
could confirm their whereabouts at the critical time on Sunday, 12
March 2006.
[16] It is significant to
remark that instead of staying put and causing the first victim to be
called so that the family could
hear both sides of the matter, the
appellant chose to abruptly leave. He did so under the false pretext
that he was going to see
the first victim about the false allegation.
The appellant had no serious intention to meet the first victim. He
left his brother’s
home precisely because he did not want to
face D in the presence of his family and tell her she was falsely
incriminating him.
He did not want to face the moment of truth.
[17] Constable Sunday
arrested the appellant soon after he walked out of his brother’s
house. The appellant was still with
his friend, Mr Vani Jantjie
Muller. Again, the alibi was not disclosed. While the argument that
the law did not oblige him to
disclose his alibi to a police officer
remained attractive, it could not serve as a sound explanation for
the appellant’s
failure to tell: his sister-in-law, his
borther-in-law, his mother and the messenger, Mr Oupa Mosoeu, himself
the appellant’s
relative – that he was partying at
Sechaba at the critical moment when his niece was raped.
[18] She showed the
appellant the blood stained sheet before she sneaked out. She
informed Constable Sunday that the sheet was
bloodstained. The
constable entered her bedroom to collect the sheet as an important
piece of evidence but the sheet was missing.
On the first victim’s
advice, the police walked over to the appellant’s house. The
bloodstained blue sheet of the
first victim’s bed was found in
a box concealed under a bed. It was highly improbable that anyone
other than the appellant
himself would have removed the sheet from
the first victim’s bedroom to the appellant’s bedroom.
This much was evidenced
by the conversation she had with Constable
Sunday. If she had done so, she would have sent the police straight
to the appellant’s
house. But she did not.
[19] The discovery of the
first victim’s sheet in the appellant’s bedroom strongly
corroborated the first victim’s
evidence that the appellant was
in her bed and that he was still sleeping there when she stealthily
walked out and hurried to Ms
Maria Mosoeu’s (also known as
Nono). Two further important deductions can be made from this.
Firstly, the sheet was removed
from the scene of the crime.
Secondly, it was hidden. Whosoever removed and hid the sheet clearly
attempted to cover his tracks.
He knew his actions were not
innocent. He had something serious to hide. There were overwhelming
probabilities against the appellant
in favour of the first victim’s
version in this regard.
[21] The first victim was
a child. Therefore, the court
a quo
had to be doubly cautious
in its treatment of her evidence. In my view the evidence of the
first victim, a child and a single
witness, was satisfactory in all
material respects. She was a very impressive witness who gave a
credible and reliable account
of the incident. The alibi defence of
the accused was not reasonably true. It was correctly rejected by
the trial court. The
version of the state established the guilt of
the appellant beyond reasonable doubt. Again, the court
a quo
correctly accepted the version of the state.
[22] On the merits, the
appellant’s grounds of appeal were devoid of any substance.
The court
a quo
committed no appealable misdirection. In the
absence of any material misdirection we have no reason to interfere.
I would, therefore,
confirm the conviction in respect of the first
count.
[23] As regards the
second count, the version of the prosecution was narrated by two
witnesses, viz:
● Ms Buyekwa
Margaret Mbanjana – the second victim;
●
Ms Buyiswa Suzan
Sikhova – the victim’s aunt and first report witness.
The second and the first
victims were sisters. Sindile Mbanjana was their brother. Their
late mother, the appellant and Ms Sikhova
were siblings. The
victims, their brother and three other children were in the care of
the appellant’s mother. They stayed
with her at 476 Ipopeng.
[24] The appellant, the
victim’s divorced uncle, was also staying with them in the same
house. According to the second victim
the appellant sexually
penetrated her in that house for the first time during the year 2000
and for the last time during year 2003.
Between those two occasions,
he also had sexual intercourse with her on two other separate
occasions. All in all, she said the
appellant raped her four times.
She was twelve years of age when the appellant first raped her and 15
years of age when he last
raped her.
[25] She did not tell
anyone about the first rape incident because she was afraid of the
appellant. The appellant raped her for
the second time. After that
incident, she ran away from home. At first, she stayed at Brandfort
for a while, and then she returned
to Soutpan. However, she did not
go back home. Instead, she preferred to stay with her friend,
Podile, at the latter’s
parental home. She still had not
reported any of the two incidents to anyone.
She stayed with Podile’s
family for a while, from there she went to her aunt, Ms Sikhova who
lived on a farm in the Soutpan
area.
[26] She told her aunt Ms
Sikhova, who in return told her brother Sindile. Sindile telephoned
the police as did the principal but
the police never came. The
appellant pursued her. He went to the farm, fetched her from her
aunt and took her back home in the
township against her will. He
thrashed her on the way back. Soon after their arrival in the
township, the appellant raped her
one more time. This was the third
incident. At one stage she reported the matter to her grandmother
but the latter did not only
disbelieve her but actually denied her
claim against her son.
[27] Subsequent to the
third incident, B once again ran away from home. On this occasion,
she went to a lady called Mamotse on
a farm near Windmill Casino.
She also told the lady about her plight that the appellant had raped
her. At that stage, her aim
was to permanently get away from
Soutpan. She wanted to go to her uncle in Bloemfontein or her aunt
at Botshabelo. However, the
appellant tracked her down before she
could move. He again took her back to Soutpan where he raped her for
the fourth time.
[28] She found it
difficult to stay in the same house with the appellant. She started
roaming about and visiting taverns. One
night the appellant found
her at a tavern and took her home. He forced her to share a bed with
him as he had done so may times
in the past. That night, however, he
did not rape her. Not long after that incident, she ran away from
home yet again. She stayed
for a while at Soutpan with her friend
Makgele. In March 2003 B and her friend Manana together left Soutpan
with the intention
never to go back. She settled on a farm called
Diephoek in the Glen area. This completes the prosecution evidence
in respect
of the second count.
[29] The version of the
defence in connection with the second count was narrated by the same
witnesses, viz: the appellant, Mr Seekoei
and his friend Mr Muller.
The appellant denied the second victim’s allegations about the
rape. His evidence was that initially
the relationship between him
and B was very good. Then she starting visiting her aunt Buyiswa (Ms
Sikhova) and the problem started.
He and Buyiswa did not get along
well. The reason for the bad blood between him and Buyiswa was that
she claimed he was sexually
molesting the children.
[30] His further evidence
was that as a result of the bad influence she received from Buyiswa,
B became a wayward girl. She bunked
school, frequented taverns,
consumed alcohol and generally displayed bad behaviour. Her aunt, Ms
Sikhova tolerated her unbecoming
behaviour whereas he did not. B did
not listen to him. His witness also denied the allegations against
the appellant. He denied
the allegation that the appellant used to
assault B. This, in brief, was the sum total of the defence version.
[31] The court
a quo
rejected the appellant’s version and accepted the second
victim’s version. In my view those findings were justified.
The second victim was a single witness. Her evidence had to be
treated with caution. Like her little sister she was told about
the
strange instructions from her late mother. Like her little sister
she was threatened in the same way. Her account of the
circumstances
which compelled her to run away from home and ultimately to give up
attending school was more probable than the appellant’s.
The
appellant himself testified that his sibling, Buyiswa (Ms Sikhova)
once complained that he was raping the children and that,
for that
reason, she wanted to have those children taken away from Soutpan to
Bloemfontein.
[32] In my view the
version of the appellant was not possibly true whereas the version of
the second victim was materially satisfactory.
No critique was
levelled against her evidence on appeal and at the trial. Her
evidence was credible and reliable. It established
beyond a
reasonable doubt that the appellant was indeed guilty as charged. I
am therefore, inclined to uphold the second conviction
as well.
[33] Now, I turn to the
second leg of this appeal, the sentence:
“
The question that I should ask
now and I should provide an answer is, will the imposition of life
imprisonment on each of these
counts be a just and appropriate
sentence in the circumstances or will it be a sentence that is so
disproportionate that it would
induce a sense of shock?”
Per Ms R M Sepato.
The regional magistrate
concluded, in the end, that the answer to that question was in the
negative.
[34] Mr Van der Merwe,
counsel for the appellant, submitted that the court
a quo
erred when it determined that no substantial and compelling
circumstances existed to warrant any sentence less than the
prescribed
minimum sentence of life imprisonment in respect of any of
the two counts of rape. The foundation of counsel’s submission
was that the critical ruling by the court
a quo
was based on
inadequate evidence. It was argued that when the ruling was made,
the court
a quo
did not have evidence by a psychologist,
teacher or guardian. As to the real extent to which each of the
minor complainants has
been affected and was most likely to be
affected by the rape in the future. This was the first ground of the
attack. See
RAMMOKO v THE DIRECTOR OF PUBLIC PROSECUTION
2003 (1) SACR 200
(SCA).
[35] Mr Bontes, counsel
for the respondent, submitted that the court
a quo
correctly
determined that no substantial and compelling circumstances existed
to justify any deviation from the prescribed minimum
sentence in
respect of any of the two rape charges. Counsel contended that there
was evidence of the negative effects of the rape
on the minor
complainants, especially B.
[36] In sentencing the
appellant, the court below took into account certain mitigating
factors. In the first place she took into
account that the appellant
went as far as standard 1 (grade 3) only at school. He was therefore
not educationally enlightened.
He was a divorced man with one
dependent minor child. His ex wife cared for his child. He was not
the custodial parent and daily
caregiver of the child. He was 34
years of age at the time the sentences were imposed. However, at the
time he first raped the
second complainant, B, he was 26 years of age
and at the time he raped the first complainant, D, 32 years of age.
He was not gainfully
employed at the time of his arrest. He did some
casual jobs from time to time. He had no previous convictions.
[37] The court
a quo
also took into account the aggravating factors. The complainants
were the appellant’s nieces. However, they were not just
his
nieces, but they were children. They were not just children, they
were relatively small children. They were not just his
nieces but
they were motherless and fatherless. All these factors made them
very defenceless and vulnerable. First and formost
B and D were
human beings. They still are. And so they will remain. In our
society, the abiding values of human dignity, gender
equality and
individual freedom form the very essence of a human person. The
perverted sexual abuse of male power against small
girl children by
those who are expected to be in the frontline of their defence is
alarming.
[38] The appellant fully
gratified himself inside each of the two children. Each of them was
very young. As regards the second
complainant, the older of the two
girls, the appellant repeatedly satisfied his carnal desires with the
helpless child over a long
period of 4 years. The second victim in
the instant case was not only relatively young but she had neither
had a safe haven to
return after each sexual abuse nor any of the
armour caring parents often use to protect their children. Her
mother had died before
the uncle started to sexually molest her.
Nothing was said about their father. They were, therefore,
practically parentless vulnerable
children - the situation which the
appellant shamelessly exploited.
[39] She was genuinely
afraid of her uncle. He first raped her at knife-point. He
threatened to kill her. She believed he could
if she told anyone.
He persistently violated her. So much that she one day summoned
enough courage to tell her grandmother.
The grandmother did not
believe her. She scornfully dismissed her complaint. She believed
that her son, the appellant, could
not carnally take advantage of his
sister’s daughter. The second victim probably perceived the
attitude of her grandmother
as uncaring. The appellant had the
audacity of simply instructing the second victim to leave his
mother’s house and so he
could rape her in his house next door.
To rub salt into the wound, the appellant tried to justify his
reprehensible conduct by
telling the victims that their late mother
had instructed him to take away their innocence so that they could
become better wives
to their future husbands.
[40] The second victim’s
desperate situation created by her abusive uncle and aggravated by
her uncaring grandmother left
her with no other choice but to run
away from home to give up schooling and to become a wanderer. She
moved from friend to friend
and from farm to farm because the
appellant was frequently pursuing her and violating her human dignity
in a cruel sort of way.
He betrayed the trust she naturally had in
him as her uncle. By March 2003 she could no longer take it. The
abuse had become
absolutely intolerable. She ran away from home for
good and permanently settled at Glen away from her abusive uncle.
She was
then 15 years of age. Since then she has been on her own.
Her school career was ruined. So was her future.
[41] Looking back over
her life 5 years later from the witness box she wept. She tearfully
recounted the abusive events. Hers
were not crocodile tears. They
were tears of a young woman who, as a child, was deeply hurt. We may
not be able to assess the
extent of her emotional injury but we can
see what she went through and how adversely affected she was by the
appellant’s
conduct.
[42] Although she was far
from home and living in a relatively save zone, she remained deeply
concerned about her little sister.
She feared that, in her absence,
the appellant would turn to her to satisfy his sexual desires. That
is precisely what happened.
Her fears were not unfounded. Two or so
years later the appellant pounced on her little sister in the middle
of the night. She
was just 13 years of age at the time. The little
one was also threatened and enjoined to silence by the appellant.
However, she
immediately and bravely broke the silence. The appellant
was arrested. A series of further probable rape was thus prevented.
It was the bravery of the younger sister which gave the older sister
the courage to come out and to report to the police the abuses.
[43] I was at pains to
narrate the versions of the victims in connection with the merits.
It was really not necessary. I was moved
by the second victim. Her
sad story epitomizes the agony of an abused child trapped in the same
dwelling with the abuser, more
often than not a blood relative. It
clearly demonstrates that in certain circumstances internal rape can
be more horrendous than
external rape. To argue that there was
insufficient evidence to show that the rape affected any of the
victims is shortsighted.
To ignore such glaring adverse impact of
the rape series on a child merely because there was no evidence by a
psychologist, teacher
or mother would boil down to trivialising the
agony this child has gone through. This court cannot afford to fail
her in that
way. In my view the first ground on which the attack on
sentence was based, should fail as far as the second victim is
concerned.
[44] In
S v D
1995 (1) SACR 259
(SCA) at 260f – g, Van den Heever JA
correctly remarked:
“
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.”
The appellant almost got
away with it as far as the older girl was concerned.
[45] I skip the second
leg of the attack on sentence for the time being. I shall revert to
it later. I now proceed to the third
leg. On behalf of the
appellant, it was submitted that the following factors, cumulatively
considered together with the mitigating
factors, constituted
substantial and compelling circumstances to justify deviation from
the prescribed minimum sentence:
●
that none of the
two rape incidents can be fairly classified under the worst case
category;
●
that none of the
two victims sustained any serious physical injuries besides those
occasioned by the rape itself;
●
that no excessive
violence was employed to break the resistance of any of the two
girls.
[46] The trial court
dismissed the aforegoing submission. It was particularly critical
about the worst case scenario. Her worship’s
critique was:
“
Everyday I am informed that
this (sic) not the worst rape, there may be a worst one…”
[47] There are rape cases
and there are rape cases. They differ in degree and in kind. Some
are more violent than others. Some
involve single and others plural
incidents. It is important to appreciate such diverse shades of the
crime. Their significance
lies in the realisation that they enable
the courts to exercise their residual sentencing discretion to
prevent foreseeable injustices.
In exercising such a discretion we
are required to bear in mind that we have no clean slate on which to
inscribe whatever sentence
we reckon fit –
S v MALGAS
2001 (1) SACR 469
(SCA).
[48] Ensuring a severe,
standardised and consistent response by the courts does not, however,
mean that the courts should mechanically
impose the prescribe minimum
sentences, particularly the ultimate and hardest of them all –
life imprisonment, irrespective
of the moral blameworthiness of the
offender’s conduct. Accordingly we have to approach this
question mindful that sometimes
imposing the prescribed minimum
sentence may yield unjust outcomes disproportionate to the crime and
the person on the offender.
[49] The courts were
cautioned that a prescribed minimum sentence should not be lightly
assumed a
priori
to be proportionate in any given case. See
S
v VILAKAZI
2009 (1) SACR 522
(SCA) 562 par [18]. This is
understandable because doing so would erode the residual sentencing
discretion the courts have. The
sentence of life imprisonment
differs from any other prescribed minimum sentence. The gravity of
life punishment is comparable
to no other in our criminal justice
system. It infinitely deprives an offender of his natural freedom
for the rest of his natural
life. It takes away his will to live and
leaves him in an endless agony of hopelessness. For more about the
nature of this sentence
see
S v SANGWENI
2010 (1) SACR
419
(KZP) 422 from par [5] and further.
[50] The question as to
when it is just and appropriate to impose it remains a vexed issue.
The lesson that emerges from the majority
of decided cases seems to
be that the magnitude of the offender’s moral blameworthiness
has a lot to do with it. The greater
the degree of blameworthiness
the greater the chances of it being imposed. The converse also holds
truth. Here we need to go
beyond the mere structural classification
of the crime as a first schedule offence to determine whether
imposing the ultimate sentence
would be just and proportionate to the
serious scheduled crime. While we navigate in that perilous sphere,
we should vigilantly
look for sound reasons not to eternally condemn
an offender.
[51] When it was
submitted on behalf of the appellant that a set of certain factors
boiled down to substantial and compelling circumstances,
the court
was called upon to examine such factors and to say why it was not so
persuaded. I am of the view that it was not correct
for the court
a
quo
to merely dismiss the submission about the worst case
scenario simply as an old tune the court
a quo
had heard
before.
[52] Indeed, it is so
that the victims did not sustain serious physical injuries. This is
so because the appellant did not use
brutal force to break the
resistance of any of them. Although he assaulted them, he did not
employ excessive violence. The brutality
of a rapist’s action
naturally worsens the moral blameworthiness of his actions.
See
DINGANE
MABITSE v THE STATE
(A84/10) 2010 FSB (06.09.2010) 6, pars
[11] – [18] per Rampai J
et
Molemela J.
[53] In the instant case
we should not lose sight of the broader picture. The crimes were
planned. The planning was not a once
off event. The appellant
wanted the children to believe that their mother licensed him to have
sex with them. He had ample opportunity
to reflect after the first
incident in the year 2000. Yet he relentlessly pursued and tracked
down the second victim time after
time. He fetched her from wherever
she was hiding in the township and on the farms. The victims
regarded the appellant as a father
figure in the household. He was
their late mother’s biological brother. He betrayed the
natural trust they had in him as
their uncle.
[54] Shortly before B ran
away for good the appellant fetched her from a certain tavern and
detained her in his bedroom for the
night as before. Although he did
not violate her that night as he had done on four previous occasions,
can one imagine the agony
of the victim throughout that night? It
was her realisation that the appellant was not prepared to stop the
abuse, which made
her to flee from home and to start a new life
elsewhere at an unfamiliar place.
[55] It is my firm view
that the aforesaid factors commutatively considered do not survive
scrutiny. They are eclipsed by the impact
of the aggravating
factors. The magnitude of the moral blameworthiness of his actions
was very high. In my view, the court
a quo
was correct in
finding that deviation from the prescribed minimum sentence was not
justified in this instance. For these reasons,
I am not persuaded
that the court
a quo
erred as regards the second count.
[56] The courts have to
protect children against this prevalent outrage. The appellant has
callously, shamelessly and repeatedly
abused the vulnerable child.
The court was correct in deterrently, preventatively and
retributively punishing him to ensure that
he would never again have
an opportunity of repeating the offence -
S
v REAY
1987
(1) SA 873
(A) at 877 B per Galgut AJA.
”
Rape of a child is an appalling
and perverse abuse of male power. It strikes a blow at the very core
of our claim to be a civilised
society.”
S v JANSEN
1999 (2) SACR 368
(C) at 378 g per Davis J.
[57] In
S v
MATYITYI
2011 (1) SACR 40
(SCA) par [10] Ponnan JA lamented a
disturbing tendency by the courts:
“
The situation continues to be
alarming... And yet one notices all too frequently a willingness on
the part of sentencing courts
to deviate from the minimum sentences
prescribed by the legislature for the flimsiest of reasons - reasons,
as here, that do not
survive scrutiny.”
[58] As I have already
indicated the appellant turned to the younger of the two girls after
the older one had run away. Three years
after repeatedly abusing the
older girl the appellant thought he could get away with it again and
he almost did. The horrendous
manner in which he had treated B and
her subsequent misery did not deter him. He clearly believed that he
would once again easily
get away with it. His disregard of his
horrendous actions towards B and his determination to do just that
all over again in respect
of B’s little sister is a
particularly aggravating factor. When that is taken into account
together with the fact that he
raped little D twice in one night,
then one begins to understand what prompted the court
a quo
to
find that there were no substantial and compelling circumstances in
respect of the first count as well.
[59] Notwithstanding the
aforegoing determination of the appellant to abuse and whatever the
court
a quo
probably read in the appellant’s conduct –
we should not lose sight of the big difference between the two
counts.
The first complainant was 13 years of age. There was a long
spell of about three years between her rape and that of her elder
sister. The incident covered by the first count, serious though it
was, did not have similar devastating impact on D as the incidents,
described in the second charge had on her sister.
[60] The appellant was 32
years of age at the time. He still had an unblemished criminal
record. Notwithstanding what he did to
the D’s sister years
earlier, he still remained a first offender in law. He was
incarcerated for 39 months before he was
sentenced. The moral
blameworthiness of his conduct was comparatively low. Speaking for
myself this particular incident was not
the worst rape case I have
seen. Notwithstanding the case of
PATRIC BOOYSEN v THE STATE
2010 ZASCA 162
I feel uneasy about the life sentence imposed on the
appellant in these circumstances.
[61] I am convinced that
the sentence in this instance was unjust and disproportionate. This
conviction considered with the factors
outlined in the preceeding
paragraph, the huge disparity between the sentence imposed and the
sentence I would have imposed had
I been the court of first instance
as well as the general profile of the appellant warranted the finding
that substantial and compelling
circumstances were present to justify
a different response in my respectful view.
“…
The greater the sense
of unease a court feels about the imposition of a prescribed
sentence, the greater its anxiety will be that
it may be perpetrating
an injustice. Once a court reaches the point where unease has
hardened into a conviction that an injustice
will be done, that can
only be because it is satisfied that the circumstances of the
particular case render the prescribed sentence
unjust…”
S
v MALGAS
2001 (1) SACR 469
(SCA) 481 par
[22] per Marais JA.
[62] The court
a
quo
did not deal with those important factors
in the way that I have done. To the extent that the court
a
quo
did not
,
it materially erred. On account of the material misdirection we are
entitled to interfere.
“
A failure to take certain
factors into account or an improper determination of the value of
such factors amounts to a misdirection,
but only when the dictates of
justice carry clear conviction that an error has been committed in
this regard (
S v Fazzie and Others
(
supra
) at 684B -
C;
S v Pillay
(
supra
) at 535E).”
S v KIBIDO
1998 (2) SACR 213
(SCA) at 216 h – i.
[63] Accordingly, I make
the following order:
63.1 The appeal against
conviction in respect of count 1 fails.
63.2 The appeal against
the sentence in respect of count 1 succeeds.
63.3 The sentence of life
imprisonment imposed in respect of count 1 is set aside. It is
substituted with one of 15 years imprisonment.
63.4 The substitute
sentence is antedated to 10 February 2009, being a date on which the
original sentence was imposed on the appellant.
63.5 The appeal in
respect of the second count fails
in toto.
63.6 The conviction and
sentence in respect of count 2 are confirmed.
______________
M. H. RAMPAI, J
I concur.
________________
E. M. KUBUSHI, AJ
On behalf of the
appellant: Adv. P. van der Merwe
Instructed by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On behalf of
respondent: Adv. D. W. Bontes
Instructed by:
Director: Public
Prosecutions
BLOEMFONTEIN
/eb