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[2011] ZAECMHC 21
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S v Van Rooyen (CC128/2010) [2011] ZAECMHC 21 (12 October 2011)
1
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MTHATHA
CASE
NO.: CC128 / 2010
In
the matter between
THE
STATE
vs
BRADLEY
VAN ROOYEN
…...........................................................
THE
ACCUSED
JUDGMENT
ON SENTENCE
MTHEMBU
A J
INTRODUCTION
1]
The accused,
BRADLEY
van ROOYEN,
an adult male, 35 years old, has been
convicted of sexual assault, of his niece, S H, a 10 year old step
daughter of his younger
brother, N, and his wife, Barbara van Rooyen,
in contravention of
Section 5 (1)
read with the provisions of
Sections 1, 56 (1), 57,
58, 59, 60 and 61 of the CRIMINAL
LAW [SEXUAL OFFENCES AND RELATED MATTERS] Amendment Act 32 of 2007.
CRIMINAL LAW AMENDMENT ACT, 105 OF
1997
AS AMENDED
2] At the outset I would like to deal
with the question, whether the State is correct in invoking and
relying on the
Criminal Law Amendment Act in
the prosecution of the
offence of sexual assault against the accused.
In the last paragraph of the
indictment the State intimates that it seeks to invoke and rely on
the provisions of
Section 51
of the
Criminal Law Amendment Act,
105 of 1997
as amended, in that,
“
the complainant was
under the age of 16 years at the time the offence was committed.”
It is common cause that the
promulgation of the
Criminal Law Amendment Act 105 of 1997
predates
the
CRIMINAL LAW [sexual offences and related matters] Amendment
Act, 32 of 2007
. THE CRIMINAL LAW (SEXUAL OFFENCES AND RELATED
MATTERS) AMENDMENT ACT was assented to on 13 December 2007 and came
into operation
on 16 December 2007.
The
Criminal Law Amendment Act came
into operation on 1 May 1997, it details a catalogue of certain
“serious offences” that fall within its purview and
their
corresponding prescribed minimum sentences.
The offence of sexual assault is not
one of those offences which are specified to fall within the purview
of the
Criminal Law Amendment Act.
3] On that aspect and in that
respect, the indictment is incorrectly couched, in that it seeks to
invoke and rely on the
Criminal Law Amendment Act in
the prosecution
of an offence [sexual assault] which does not fall within the aegis
of the
Criminal Law Amendment Act.
Both
Counsels for the state and the
defence, in their submissions, agreed that a charge of sexual assault
cannot, in its prosecution,
be read with the provisions of the
Criminal Law Amendment Act, given
that it is not one of the offences
specified to resort within the provisions of the
Criminal Law
Amendment Act.
4] Before
coming to the difficult
task of determining the appropriate sentence to impose on the
accused, I wish to thank the legal representatives
of the State [Mr
Joubert] and the defence [Mr Hanise] for the responsible and
competent manner in which they conducted this case
and the
considerable assistance they provided to the court by means of their
arguments and submissions.
5] The facts upon which the
conviction is based are fully set out in the written judgment of the
court. I do not propose to repeat
those facts when dealing with the
question of sentence, except only in so far as it may be necessary to
refer to them for the purpose
of sentence.
Coming to the question of sentence
this is, undoubtedly, the most difficult part of the whole trial.
This so because there are so
many disparate interests and
considerations which the court must take into account when
determining the appropriate sentence to
impose on the accused in any
particular case.
6] In the old and well known passage,
HOLMES JA, in S vs RABIE
1975 (4) SA 855
A,
held ;
“
punishment must fit the
crime as well as the criminal, be fair to society, and be blended
with a measure of mercy according to the
circumstances.”
This old dictum captures the 3
elements of the triad, the crime, the offender, the interest of
society and the element of mercy
which must be considered and applied
according to the circumstances of the case.
PERSONAL CIRCUMSTANCES
7] The mitigating factors submitted
on behalf of the accused, which arise for consideration are that the
accused was born on 24
April 1977, which makes him 35 years old and
resides at No.16 Swift Street, Southernwood, Mthatha. This residence
is his parent’s
home, he stays there with his parents, who are
old and pensioned, his brother, Nicholas and his niece, Bridget. He
is a mechanic
by trade and has been employed as such by Five Star
Motors, Mthatha, from July 2011 to date, earns a salary of
R 3000,00 per month, out of which he
supports his parents and his 2 children, namely;
- Nikehill; and
- Brownwyn
The mother of his 2 children, Renne,
is the caregiver and exercises parental rights over them. The
children attend school at St
Johns Primary School in East London.
Renne is not of good health, unemployed and the accused is the only
parent responsible for
the maintainace and support, financially and
otherwise of the 2 children. The accused passed Std 10 (matric) at
Kokstad College
in 1994. He is a first offender and has no cases
pending against him.
CRIME COMMITTED
THE DEFENCE SUBMISSIONS
8] Counsel for the accused, Mr
Hanise, submitted that in the commission of this offence, on the day
in question, the accused had
consumed alcohol to such an extent that
it affected him and played a major contributing role in the
commission of this offence.
He submitted that sexual assault is a
serious offence and prevalent in this division. He conceded that the
accused breached and
betrayed the trust bestowed on him, as an uncle,
to protect, the complainant, who is his niece.
Counsel explained the effects of
committing this offence to the accused himself, the family members
and how it destroyed the unity
and good family relations among
members of his family.
9] The court was advised by Counsel
that because of the sexual violation he committed against the
complainant, the accused, has
learnt a lesson and this experience
made him to mend the ways of his behaviour towards the community and
his family. It was urged
upon the court to note that a conviction for
the crime for sexual assault spells failure and doom for the
accused’s future
in that a previous conviction of sexual
assault has the effect to hinder progress in securing employment,
since the enquiry, whether
the accused has previous convictions, has
become a standard question, requiring disclosure if anyone applies
for employment, both
in private or public sectors.
10] Counsel submitted that the
accused craves for “forgiveness” from the complainant,
his brother, N, and his wife Barbara.
It was recounted to the court
that this matter commenced in 2009 and has been hanging like a sword
over his head from 2009 –
2011 [2 years]. The arrest and trial
of the accused for this offence has already made the accused to
suffer the loss of friends,
loss of his family, his children, loss of
providing a father figure to his children, loss of employment and an
income to be derived
from his work, which could be utilized to
maintain his children, himself and his parents. Counsel described the
accused as the
type of a first offender, who is capable of
rehabilitation. Counsel conceded that sexual assault is a very
prevalent offence in
this division and in particular, that the sexual
assault of a 10 year old girl child, in circumstances where liquor
had a role
to play in the commission of the offence, becomes
reprehensibly offending to society.
11] Counsel suggested that the
appropriate sentence to impose on the accused would be;
(i) A fine; or
(ii) A fine coupled with a suspended
sentence; or
(iii) A wholly suspended sentence.
He emphasized that the accused is not
a candidate for a term of imprisonment, but a good candidate for
rehabilitation, given that
in the exercise of its discretion, the
court could impose a suspended sentence which has rehabilitative
effects, rather than a
term of imprisonment, which could lend and
subject the accused to teachings of harden criminals in prison.
12] Responding to criticism from Mr
Joubert, who appears for the state, that restorative justice would
demand that the accused should
have apologized openly to the
complainant and her parents, by actually taking the stand in court,
give evidence and make a solemn
plea and an apology to them, Mr
Hanise, submitted that the reason why the accused could not
apologize, as a measure to show remorse
to the complainant and her
parents is because the bail conditions precluded him from any contact
or communication with state witnesses.
13] As regards the issue of a clear
demonstration of remorse to satisfy the demands of restorative
justice, by actually giving evidence
and apologizing, in an open
court to the complainant and her parents, Counsel for the accused
elected, understandably, given some
considerations of the appeal
process in our law, not to deal with that question. I will not make
any ruling, comment or inference
on that aspect of his case, save to
record that aspect.
14] The version submitted by Barbara,
that she, at one stage laid a charge of assault at Mthatha Police
Station against the accused
for assaulting his father, was denied by
Counsel, Counsel submitted, on the contrary, that the correct version
is that the accused’s
father assaulted the accused, and at the
time the accused was under the influence of liquor. Counsel conceded
that the accused
has a drinking problem (liquor addiction) and he
does not know if the accused has stopped his drinking habit.
15] Mr Hanise referred the court to
the following cases, to consider in determining the appropriate
sentence in the matter.
S vs E
1967 (3) SA 500N
, 503E –
D
S vs HARISON 1970 (2) SACR AD.
That concluded the submissions made
by Counsel on behalf of the accused in mitigation of sentence.
B] THE STATE SUBMISSIONS
16] Counsel for the State, Mr
Joubert, called Barbara van Rooyen, the complainant’s mother,
to take a stand and give evidence
in aggravation of sentence in the
matter. She testified that after the sexual violation incident, a
school teacher told her that
S was not doing well at school, not
paying attention, not concentrating and not doing her work. She then
related to the teacher
the whole sexual violation ordeal that S
endured. The teacher assisted her to get a psychiatrist to consult,
counsel and treat
Shannon. S consulted with Dr Kruger, a psychiatrist
in private practice, her treatment was based on the visible symptoms
demonstrated
by the lack and /or failure to cope with her school
work. Dr Kruger could not continue with the counseling or to prepare
and compile
a written report containing his findings for 2 reasons;
(i) Dr Kruger relocated from Mthatha
to Pretoria, where he is in private practice now;
(ii) The medical fees for counseling,
consultation, preparation and submission of a written report on the
condition of Shannon,
quoted to her was ± R 10 000,00;
(iii) Barbara and N could not afford
to raise such amount of money to pay Dr Kruger.
17] Barbara testified that the
accused has not been employed for quiete a long time. He lost
employment with a company called MTN
and has just secured a new job
this year, 2011. She testified that N and her are in constant touch
with the mother of the accused’s
children, Renne Myburgh.
According to Renne Myburgh the accused does not visit nor support his
children and does not know where
and how they stay, survive or live.
She stated that, with her husband, they attempted to secure a job for
Renne with a family friend’s
business, but because of the state
of the economy they did not succeed in getting her a job.
Barbara described the accused as
someone who could be very nice and can also be a very violent person.
18] Questioned by Counsel about her
knowledge of the accused and her description of his character, she
said she knows the accused
very well and bases her conclusions on the
past personal encounters between the accused, herself and N.
In an attempt to demonstrate the
violent nature of the accused, she narrated an incident when the
accused demanded money from his
parents to buy alcohol and drugs,
where he screamed, performed and shouted at his parents, demanding
money to buy liquor and drugs.
He made so persistent demands to his
parents that they relented and gave him money to purchase alcohol and
drugs.
19] When invited by Counsel to give
her opinion on what sentence she would consider as appropriate for
the accused, she suggested
that a term of imprisonment would be
appropriate. Barbara lamented that since the date of the commission
of this offence in 2009,
the accused has not apologized to her, her
husband or the complainant, and that if he did, it would have made a
great difference
to them.
Barbara testified that after brief
counseling by Dr Kruger, there was some improvement in the life and
school work of Shannon, but
after Dr Kruger left for Pretoria, she
was left with no one to assist her. She stated that S still endures
some moments of relapse
and, resultedly, she has approached a friend
to assist her find another doctor she could engage to counsel and
treat Shannon.
20] Mr Joubert submitted that crime
statistics show that crime generally has sky rocketed out of control
in South Africa because
courts do not impose severe enough sentences
to address the rampant spate of crime in the country. He submitted
that;
(i) A 1991 crime survey showed that
in every 30 minutes a crime is committed in South Africa;
(ii) In 2006, 150 women were raped
every day.
21] Counsel urged the court to take
into account the following factors;
(i) That the accused is a first
offender;
(ii) Seriousness of the offence;
(iii) Accused’s complete lack
of remorse;
(iv) Abuse of a position of trust by
the accused; and
(v) Abuse of alcohol by the accused.
He submitted that in the Criminal Law
by Snyman, 5
th
Edition, Page 48, Snyman deals with the
principle of legality in punishment
and argues that great
emphasis is placed on the exercise of the discretion vested in the
courts in sentencing offenders.
22] Counsel submitted that the
offence of sexual assault has become a common offence, is increasing
at an alarming rate in South
Africa, that increase calls for severe
sentences to be brought back and imposed on offenders. He emphasized
that public expectations,
on the sentencing regime are dealt with in
an article, titled,
PUBLIC EXPECTATION, 2000, SOUTH AFRICAN LAW
JOURNAL.
The article demonstrate that the expectations of society
are that severe sentences should be imposed, with the rampant
increase
of crime in society and that the escalation of crime is the
direct result of failure by courts to exercise the discretion that
vest in them of imposing sentences which are severe enough to stem
the tide of rampant crime that ravages society in the country
.
23] He submitted that the description
of the accused as an arrogant man is correctly befits him in that, if
he were remorseful,
he would bow to the demands of the concept of
restorative justice, by taking a witness stand, give evidence, plead
and apologize
openly to the complainant and her parents for the
sexual violation of their daughter. He submitted that the accused has
shown no
remorse at all.
Counsel disputed a suggestion made by
the defence, that it is a fabrication to suggest that S was ever
consulted by Dr Kruger.
24] It was submitted that the
consumption and / or the effects of alcohol consumption in the
commission of the offence is not a
mitigating factor. The conduct of
the accused, in committing this offence on S was described by Counsel
as reprehensible to society
by virtue that the accused enjoyed a
position of trust and familial power relative to S and he abused such
trust and power.
Mr Joubert submitted that sexual
assault is any act of a sexual nature which excludes penetration.
Sexual penetration is penetration
by any part of the body. He
submitted that according to the evidence, the accused touched the
complainant’s vagina in a massage
way and that conduct could
easily have led to the actual penetration, which would constitute a
crime of rape, a serious offence
which would have called for the
imposition of a sentence of imprisonment for life.
25] Counsel suggested that a term of
imprisonment for 10 years, 3 years of which is suspended for 5 years,
is an appropriate sentence
in the circumstances of this case and
referred the court to the following cases and authorities;
(i) Criminal Law – Synman
5
th
Edition at page 21;
(ii) S v L
1998 (1) SACR 63
;
(iii) S vs Mc MILLAN 2003 (1)
SACR;
(iv) S vs B 1994 (2) SACR;
(v) S vs D
1995 (1) SACR 98
;
That concluded the submissions made
on behalf of the state.
26] Almost all the submissions made
by the accused at the sentencing stage of the trial were disputed by
the state, through the
oral evidence of Barbara van Rooyen. The
written report by a psychiatrist, Dr Kruger, who consulted the
complainant was not available
to enable the court to assess and
determine the psychological effects, if any, of this ordeal on S or
its short or long term effect
in future on Shannon.
Clearly without a medical report,
which details the findings by a psychiatrist, the court would be
unable, in determining the appropriate
sentence, to take into account
the effects, short or long term, of the sexual violation on Shannon.
The court can only take into
account only those effects of this
ordeal on S which have been stated by Barbara in her testimony.
27] “
It is trite that
rape [sexual assault] is a very serious offence constituting, as it
does, a humiliating, degrading and brutal invasion
of the privacy,
dignity and the person of the victim [S vs Chapman 1997(2) SACR 3
SCA], a cancer within the society [ S vs Swartz
and Another
1999 (2)
SACR 380
C at 385 C] and an appalling and utterly outrageous crime
which violates a women’s body, which is sacrosanct [ S vs
Mcheche
2005 (2) SACR 386W
at 395 H]
The seriousness of the present
instances of rape [sexual assault] are compounded by the age of the
victim, the relationship of the
accused to the victim and the rape of
the child in her own bedroom”
S vs M
2007 (2) SACR 60
W
28]
S vs M
2007 (2) SACR 60
W,
presents an accurate description of sexual assault as;
“
The involvement of
dependant, developmentally immature children in sexual activities,
that they do not fully comprehend or to which
they are unable to give
informed consent, and that violates social taboos concerning family
roles.”
29] It has been explained that the
sex offender tends to rely on befriending a child and gaining a hold
over him / her, thus allowing
the offender to control the victim.
Grooming is a very difficult concept to define, but it is explained
as an on-going process,
aimed at the child accepting sexual
activities from the offender. Grooming is a transient feature that is
difficult to capture,
and virtually impossible to decide when it
begins and ends.
What is more certain is that grooming
is neither new nor restricted to on – line behaviour. It is
generally seen as a cycle
of abuse, and can include for an example,
befriending a potential victim to allow the child to acquiesce to
sexual activity. The
grooming aspect involves an aspect of deceptive
trust created by the offender and a manipulation of the child by the
adult.
S v M
2007 (2) SACR 60W
Barbara testified that while they sat
at the kitchen, preparing lunch S sat on the accused’s lap, the
accused promised to
buy S a memory card for her new cellular phone.
Could this be considered as grooming?
Throughout the trial no evidence was
presented or emerged, from which it could be concluded that the
accused groomed the complainant
to acquiesce to sexual activities
with him.
30] The relationship between the
accused and the complainant places the accused in such a position of
power and trust over the complainant,
which renders such sexual
activity to be morally wrong, punishable within the realms of
criminal law and socially reprehensible.
It became notable throughout
the trial that the complainant referred to the accused as “uncle
Bradley”, “
an appellation that signifies, not
merely a generational gap, but respect and deference to the authority
of elders.”
31] The accused occupied a position
of familial power and standing in relation to Shannon, his younger
brother’s step daughter.
S was vulnerable to his seniority in
age and familial standing, his affinity with her own mother, father,
grandparents and his
role as a
paterfamilias
in the home and
family. The accused selfishly exploited, to the full, the position of
power and trust, which he held over the complainant.
32] A particularly disturbing feature
of this case has been the family dynamics attendant upon the sexual
assault of the girl child
and the prosecution of the accused. The
child found herself painfully thrown at the centre of this bitter
battle and an agonizing
quarrel between the adults who are, not only
related to her, but senior members of the only precious institution
she cherishes,
the family.
“
It may be that rape /
[sexual assault] of children is now viewed more seriously than it was
in the pre – constitutional stage
of our criminal legal
process. It is now recognized that rape / [sexual assault] victims’
fundamental rights to dignity,
privacy, security of the person and
freedom of abuse are all infringed. It may be argued that the
Constitution provides some impetus
towards greater recognition of the
interests of the victim in the sentencing stage. South African Courts
do reflect the views of
the broader community, when stating that the
courts must show no mercy to those who seek to invade those rights,
the communities
at large expect the courts to punish rapists and
sexual offenders of children severely.”
33] “
The sentence of this
court should shout to the community at large
that rape / [sexual assault] is
unacceptable. The courts in punishing such offenders, should ensure
that the sentences adequately
reflect the censure, which society
should and does demand, as well as the retribution, it is entitled to
exact, and the community
is entitled to demand that those who
performed such perverse acts be adequately punished, a clear message
must be sent to society,
both by parliament and the courts alike,
that serious crimes will be punished severely.”
-
S vs M
2007 (2) SACR 60
W
34] What weighs heavily in favour of
the accused, when the court considers the question of the appropriate
sentence, is that he
is a first offender, in particular, at the age
of 35, has no previous conviction/s or pending cases against him.
Of great concern to the court,
though, is that the accused is not remorseful and has shown no
remorse, even to Shannon. Counsel
submitted that the accused has
shown remorse, but defence Counsel contended that the accused has
shown remorse. To decide the issue
the court should investigate the
intensity, longevity and foundation of the proclaimed remorse, to
determine if it is sincere,
and whether it is just regret at having
been caught by Barbara, or whether it is contrition for what was
done, and constitute part
of an undertaking not to commit the offence
again. The only yardstick by which the court could judge the
genuineness or otherwise
of the accused’s proclaimed remorse,
is only a submission made by Counsel. By itself, this is an
insufficiently demonstrable
manifestation of genuine remorse.
35] On the conspectus of all the
evidence before court and the submissions made by Counsels, there
does not appear to be any facts
upon which the court could conclude
that the accused experienced any regrets for what he did or that any,
“
feelings of self – reproach compelled him to take
any action to expiate his guilt or avoid any further such acts of
assault
and violation.”
Accordingly, I cannot find that the
accused is genuinely remorseful for committing the offence of sexual
assault against Shannon.
36] Counsel for the accused
submitted, as a mitigating factor, that no violence was used by the
accused and the complainant suffered
no injuries because the accused
merely placed his hand on her vagina and moved it in a massage way.
It is difficult to comprehend
how this could be relevant or
mitigating in circumstances where no violence or threat of violence
was needed or necessary from
the accused to commit the offence of
sexual assault on a 10 year old girl child. What further militate
against this submission
is precisely that, the legislature sought to
criminalize that very same conduct of placing a hand on the vagina
and moving it in
a massage way and defined it as sexual assault.
37] In
S v G
2004 (2) SACR 296
W,
BORCHERS J,
held;
“
A physically immature
child of 10 is no match for an adult man, and little violence was
needed to achieve this purpose.”
I think, similar considerations apply
in this case, where the victim of sexual assault is a 10 year old
girl child, and the assailant,
a mature man of 35, who is also armed
with the additional power of familial and paternal standing.
38] The
SOUTH AFRICAN LAW
COMMISSION REPORT ON A NEW SENTENCING FRAMEWORK PROJECT 82 (NOVEMBER
2000) AT PARAGRAPH 1.1 AND 1.2
states that the decisions of our
courts on sentencing are announced to a critical public, who analyse
them against a variety of
expectations. They ask whether the
sentences express such public condemnation of crime adequately and
protect the public against
future crimes by the reform and
incapacitation of offenders and other potential offenders. It also
enquires whether the sentences
are just in the sense that similar
sentences are being imposed for offences that are of equal
seriousness or heinousness.
In addition there is a growing
expectation that sentences must be restorative in the sense of
compensating the individuals who suffered
as a result of crime and of
repairing the social fabric that criminal conduct damages. All these
concerns are inevitably prominent
among the victims of crime, who
have a special interest in the offenses that they themselves have
suffered.
S vs M (CENTRE FOR CHILD LAW AS
AMICUS CURIAE)
[2007] ZACC 18
;
2008 (3) SA 232
C.
39] In
S vs MALGAS
2001 (2) SACR
469
,
it was held that a mere placing of over emphasis on the
nature of the crime at the expense of the personal circumstances of
the
offender was regarded as a misdirection, rendering a sentence
susceptible to be set aside by the Court of Appeal.
40] By sentencing accused persons
convicted of such serious offences severely, the courts of law will
be performing their duty in
deterring and attempting to eliminate the
scourge of crimes committed against the innocent, helpless and
defenseless women in our
society.
41] There are mitigating factors,
that the accused is a first offender, at 35, has a clean record, is
single, but has 2 children
to support and maintain, is employed and
earns a salary of R 3000,00 per month, out of which he maintains his
old and pensioned
parents and his 2 children.
Although Barbara testified that the
accused has not been in employment for quite sometime, neither assist
nor maintains his children
or his parents, but, I intend to take into
account these factors as mitigating factors in favour of the accused
in this case, because
Barbara, surely, may not know how the accused
expends his salary or meets his monthly commitments, such facts would
normally and
properly emerge in the maintenance court inquiry.
These are mitigating factors, but
when viewed and weighed against the gravity and seriousness of sexual
violation, on a 10 year
old girl child, with its chilling effects on
her, whether on long or short term basis, the force of personal
circumstances and
other mitigating factors in favour of the accused
pale into insignificance.
In my view, they are, by far,
outweighed by the societal considerations and the demands of the
sentencing regime.
42] In
S vs HOWELLS 1999(1) SACR
675 C,
1999 (2) ALLSA 233
, VAN HEERDEN J,
held that, on the facts
of that case, although there was a real risk, that, should the
appellant be imprisoned, her children would
have to be taken into
care, the nature and magnitude of the appellants’ offence and
the interest of society outweighed the
interest of the appellant and
her children.
VAN HEERDEN J,
in this case,
stated that this is obviously highly regrettable and makes the court
reluctant to condemn the appellant to imprisonment,
but punishment in
the way of imprisonment are prospects which, a person embarking on
this sort of crime, must always forsee.
43] The preamble to the
Criminal Law
(Sexual Offences and Related Matters)
Amendment Act, 32 of 2007
[an Act
under you have been convicted],
states;
The commission of sexual offences in
the Republic is of grave concern, as it has a particularly
disadvantageous impact on vulnerable
persons, the society as a whole
and the country;
(ii) Women and children, being
particularly vulnerable, are more likely to become victims of sexual
offences, including participating
in adult prostitution and sexual
exploitation of children;
The prevalence of the commission of
sexual offences in our society is primarily a social phenomena,
which is reflective of deep
– seated, systemic
dysfunctionality in our society, and that legal mechanisms to
address this social phenomenon are limited
and are reactive in
nature, but, nonetheless, necessary;
Several international legal
instruments, including the
UNITED NATIONS CONVENTION ON THE
ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN, 1979 and
the UNITED NATIONS CONVENTION
ON THE RIGHTS OF THE CHILD,
1989,
place obligations on the Republic towards the combating and,
ultimately, eradicating the abuse and violence against women
and
children;
The Constitution of the Republic
places the rights of children and other vulnerable persons to have
their best interest considered
as a matter of paramount importance.
44] Accused you sexually assaulted
your younger brother’s step daughter,
Shannon. S now suffers from certain
relapses in her school work and needs to secure psychiatric treatment
and her parents cannot
afford to meet those medical bills. You showed
no remorse for such conduct, in particular, inconvenienced,
financially and otherwise,
her parents, caused turmoil, disharmony
and disunity among members of your own family.
I can only hope that S will recover
because children, by their own nature, are endowed with the capacity
sometimes to recover from
such or similar painful ordeals.
45] The sentence I intend to impose
on you, I believe acknowledges the deterrent, retributive,
rehabilitative components of punishment,
it also captures and
acknowledges the outrage and revulsion of society and the community
demands in a balanced manner.
SENTENCE
46] Accused you are sentenced to
undergo;
- 8 years imprisonment;
- ½ of which is suspended for
a period of 5 years;
- On condition that you are not
convicted of
Rape;
Compelled rape;
Sexual assault;
Compelled sexual assault; and
Compelled self sexual assault,
committed during the period of
suspension.
It is ordered that this sentence is
ante – dated to and shall commence as from
5 October 2011, the date on which the
accused was first remanded in custody.
_________________________________________________________________
MM MTHEMBU
ACTING JUDGE OF THE HIGH COURT,
MTHATHA
HEARD ON 5 OCTOBER 2011
DELIVERED ON 12 OCTOBER 2011
COUNSEL FOR THE STATE ADV/S NEL &
JOUBERT
INSTRUCTED BY THE DIRECTOR OF
PUBLIC PROSECUTIONS - MTHATHA
COUNSEL FOR THE DEFENCE Mr HANISE
INSTRUCTED BY THE LEGAL AID BOARD,
MTHATHA