H v S (A496/08) [2009] ZAGPPHC 170 (14 August 2009)

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[2009] ZAGPPHC 170
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H v S (A496/08) [2009] ZAGPPHC 170 (14 August 2009)

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Note: Certain personal/private details of parties or witnesses
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IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH AND SOUTH
GAUTENG HIGH COURT, PRETORIA)
Case Number: A496/08
DATE: 14 AUGUST 2009
REPORTABLE
In the matter between:
[F……………]
[J………]
[H……]
..............................................
Appellant
And
THE
STATE
...........................................................................
Respondent
JUDGMENT
SOUTHWOOD J
[1] After pleading guilty in the
Pretoria regional court to a charge that he had raped his 11 year old
stepdaughter, CdP, the appellant
amended his plea to not guilty and
was eventually tried in the Pretoria High Court (per Els J). On 7
October 2003 the Pretoria
High Court convicted the appellant of rape
and sentenced him to life imprisonment. After the High Court refused
the appellant leave
to appeal, on 1 March 2007 the Supreme Court of
Appeal granted leave to appeal to this court against sentence only.
[2] It is unfortunate that the Supreme
Court of Appeal did not grant leave to appeal against the conviction.
The relevant facts
were not fully or properly investigated and the
proceedings were conducted in unseemly haste. All this appears from
the record
and the judgment of the court a quo. As pointed out by the
court in S v Vilakazi
2009 (1) SACR 552
(SCA) paras 21 and 22:
‘[21] The prosecution of rape
presents peculiar difficulties that always call for the greatest care
to be taken, and even
more so where the complainant is young. From
prosecutors it calls for thoughtful preparation, patient and
sensitive presentation
of all the available evidence, and meticulous
attention to detail. From judicial officers who try such cases it
calls for accurate
understanding and careful analysis of all the
evidence. For it is in the nature of such cases that the available
evidence is often
scant and many prosecutions fail for that reason
alone. In those circumstances each detail can be vitally important.
From those
who are called upon to sentence convicted offenders such
cases call for considerable reflection. Custodial sentences are not
merely
numbers. And familiarity with the sentence of life
imprisonment must never blunt one to the fact that its consequences
are profound.
[22] The case that is before us is
characterised by superficiality from beginning to end with the result
that it exhibits several
disturbing features. Nothing was done to
enquire into material matters before the trial commenced. The
complainant’s evidence
was presented with little care for
completeness or accuracy. The evidence was subjected to little
analysis and the process of sentencing
was perfunctory.’
[3] Apart from summarising the evidence
of the four witnesses the court a quo did not comment on their
demeanour or their credibility
and did not consider the probabilities
or find that the appellant’s version was not reasonably
possibly true and give reasons
for such finding. The court’s
reasoning is contained in two short paragraphs. In one, the court
says it is satisfied that
the complainant and her mother, although
differing in small respects, were telling the truth. In the other,
the court says that
it is satisfied that the appellant’s
evidence that the complainant approached him and started fondling him
is untrue and
that the appellant’s evidence that there was no
penetration is rejected. No reasons are given for either conclusion.
See
S v Guess
1976 (4) SA 715
(A) at 718E-719A. The statement of the
court a quo that the evidence of the complainant and her mother
differs in only small respects
cannot be supported. As will appear
later there are substantial differences. The court a quo also erred
in summarising the evidence
in at least two important respects.
First, the court a quo said that Dr. Grabe, who examined the
complainant, found that the complainant
had been raped because there
had been deep penetration. This is not correct. Dr. Grabe concluded
that only remnants of the hymen
were present and that the crack in
the vaginal wall at 6 o’clock indicated previous vaginal
penetration. There is no evidence
to relate either finding to the
incident in March 2000, at least one month earlier. Second, the court
a quo recorded that the appellant
conceded in cross-examination that
he possibly told the attorney, Pansegrouw, that he had inserted the
tip of his penis. This is
also not correct. The appellant denied that
he had inserted the tip of his penis but admitted that he had tried
to push the tip
of his penis into the complainant’s vagina.
This is consistent with the appellant’s statement when he
pleaded guilty
in the regional court some two years earlier. All that
he said then was that he had penetrated the complainant. When
questioned
by the regional magistrate about the meaning of this
statement Mr. Pansegrouw added, with the consent of the appellant,
‘by
pushing my private part into her private part’ (‘deur
my geslagsdeel in haar geslagsdeel te druk’).
[4] In view of the court a quo’s
judgment, which on the face of it is unsatisfactory, the appellant’s
counsel was asked
whether the appellant would like an opportunity to
petition the Supreme Court of Appeal again for leave to appeal
against the conviction
with a recommendation by this court that leave
be granted. This was done because this court cannot investigate the
correctness
of the conviction. Despite the observation by the Supreme
Court of Appeal in Vilakazi at para 8 ‘that the appeal might be

broadened to include the conviction if upon reflection on the
evidence we were to be of the view that the appellant should not
have
been convicted’ the full court of this division held in S v
July Nkosinathi Majola (TPD Case No A50/2007 delivered 21
May 2009)
that without leave to appeal against conviction the appeal court
cannot decide whether the appellant was wrongly convicted.
After
taking instructions the appellant’s counsel informed the court
that the appellant did not wish to petition the Supreme
Court of
Appeal again. He also informed the court that the appellant wishes to
have the appeal finalised even if the conviction
for rape must stand.
The appellant’s counsel pointed out that when he was sentenced
by the court a quo on 7 October 2003
the appellant had been in
custody awaiting trial for three and a half years and that since 7
October 2003 the appellant has served
5 years and 10 months of his
sentence: a total of almost nine and a half years. The appellant
wishes to avoid any further delays
in finalising the appeal. Unlike
Vilakazi the respondent is not prepared to agree that this court may
broaden the enquiry into
the correctness of the conviction. A
potential difficulty for the appellant in such an enquiry is that
during the trial in the
court a quo the appellant’s counsel did
not put to any of the state witnesses the lengthy version the
appellant testified
to in his defence. It is not clear why the
appellant’s counsel failed to observe this elementary rule of
practice but the
usual consequence of such failure is that the court
ignores the version not put – see President of the Republic of
South
Africa v South African Rugby Football Union
2000 (1) SA 1
(CC)
paras 58-65 and S v Boesak
[2000] ZASCA 112
;
2000 (3) SA 381
(SCA) paras 50-54.
[5] Another matter considered at the
hearing was the failure of any party to introduce in evidence the
Psycho Social Report dated
9 October 2001 and the Impact Report dated
1 October 2001 which were prepared for the High Court after the
regional court referred
the case to the High Court for sentence.
During the trial none of the advocates seemed to be aware of the
existence of these reports.
They were not referred to in evidence or
argument and the court a quo did not refer to them in its reasons for
sentence. The court
a quo also did not see fit to ask for such
reports to be made available. During the hearing of this appeal the
state and the appellant
agreed that the reports be placed before this
court for the purpose of assisting this court to arrive at an
appropriate sentence
in the event of it upholding the appeal. The
Psycho Social Report is to be found in the first volume of the record
at 30-38 and
the Impact Report at 28-29.
[6] At all relevant times the appellant
was married to B.... C...... H...... (‘H......’) and they
lived together with
H’s...... 11 year old daughter, CdP, the
complainant, who was born from H.......’s previous marriage.
The incident
occurred during an evening in March 2000 when the
appellant, the complainant and H.... were lying on a bed in the main
bedroom
watching television. The complainant had just bathed and was
wearing a nightie. Broadly, the state’s evidence was that the

appellant first caressed the complainant and after fondling her
breasts and inserting a finger into her vagina had informed H.......

that he wished to have intercourse with the complainant. After H.....
failed to object strenuously the appellant proceeded to have

intercourse with the complainant, penetrating her vagina fully with
his penis. They had intercourse again on about five occasions.
[7] In his plea explanation the
appellant denied that he had intercourse with the complainant but
admitted that he had touched the
complainant’s private parts
and was guilty of indecent assault.
[8] The state called three witnesses:
Jacobus Stephanus Pansegrouw, the attorney who represented the
appellant in the regional court,
to explain why the appellant pleaded
guilty; H....... and the complainant. The appellant formally admitted
the contents of the
medico-legal report, form J88, prepared by Dr.
S.M. Grabe on 2 May 2000. Dr. Grabe recorded that the complainant
told her that
her stepfather raped her and that it bled and burned
afterwards. Under ‘clinical findings’ (re injuries and
wounds)
Dr. Grabe noted no abnormalities, he recorded that the
complainant’s health and emotional status were good although
she was
tearful and cried when she talked about the incident; that
nothing abnormal was found on gynaecological examination except that

only pieces of the hymen remained and that there was a crack in the
vaginal wall at 6 o’clock. Dr. Grabe noted that the crack
in
the vaginal wall indicated previous vaginal penetration. The doctor
did not express an opinion as to whether the complainant
had been
raped or not.
[9] The state’s evidence is not
consistent. Pansegrouw testified that after a number of
consultations, some of them quite
lengthy, the appellant decided to
plead guilty and a formal plea of guilty was entered in the regional
court. According to Pansegrouw,
during these consultations, the
appellant first admitted indecent assault but he later conceded that
he had inserted the tip of
his penis but said that he did not proceed
because the complainant was too small. According to Pansegrouw the
appellant told him
that he had ejaculated on the complainant’s
stomach. On the strength of this information Pansegrouw advised the
appellant
to plead guilty to rape and the appellant agreed to do so.
The appellant confirmed this in the regional court after Pansegrouw
had tendered the plea of guilty. The appellant also signed the plea
of guilty. As already mentioned, the appellant’s counsel
did
not put the appellant’s version to Pansegrouw during
cross-examination.
[10] H........ testified that they had
been lying on the bed watching television when the appellant started
to caress the complainant’s
breasts. He then inserted his
finger into the complainant’s vagina. In the process of
caressing the complainant the appellant
removed her nightie. The
appellant then told H...... that he wished to have intercourse with
the complainant. After H...... objected
the appellant proceeded to
have intercourse with the complainant in the presence of her mother.
There is no suggestion that her
mother objected again or did anything
to prevent this. The appellant lay on top of the complainant and
inserted his penis into
her vagina. According to H....... nobody
forced the complainant. She simply did as the appellant requested and
opened her legs
to allow him to insert his penis. This was difficult.
The complainant complained that the insertion of the appellant’s
penis
was painful and said that the appellant must stop but he
carried on. Eventually the appellant ejaculated on a towel. According
to H...... the appellant again had intercourse with the complainant
on two or three occasions when she, H......, was present but
she
furnished no details. H.......... testified that the intercourse
caused a small amount of bleeding. She said that she permitted
the
intercourse to take place because the appellant had told her that if
she did not do so it would mean that she did not love
him and she
should take her belongings and leave. H...... knew that the appellant
wished to divorce her and that the appellant
had had a relationship
with another woman who had told him to divorce her after she, the
other woman, became pregnant. H..... was
originally charged as a
co-accused and she pleaded guilty and was sentenced before the
appellant’s trial in the High Court.
In cross-examination the
appellant’s counsel did not dispute Human’s evidence
about the rape.
[11] The complainant’s evidence
differed in material respects from her mother’s evidence
particularly with regard to
the role her mother played. The
complainant testified that she, H......., and the appellant were
lying on the bed. The appellant
told H......... that he wanted to
have sexual intercourse with the complainant. When the complainant
refused her mother said to
her that she should not be afraid and that
when she, her mother, was 11 years old precisely the same thing had
happened to her.
According to the complainant her mother said that if
she did not have sexual intercourse with the appellant they would
throw her
off the roof of the building. The appellant said that she
then gave in. She could not refuse and she did not know what to do.
At
the time she was wearing a nightie and pants and the appellant and
her mother told her to undress. She then lay on the bed and her

mother opened her legs so that the appellant could have intercourse
with her. The appellant first inserted a finger into her vagina
and
then had intercourse with her. He never touched her breasts. She
testified that the appellant had intercourse with her on each
of the
next five days. She gave no details. The complainant said that
intercourse was extremely painful and that she did not like
it. She
bled after each act of intercourse. Eventually she went to her
grandmother for help and she was removed from her mother’s

custody. In cross-examination she confirmed that there were no more
than five occasions when the appellant had intercourse with
her and
that her mother was only present on three of those occasions. The
appellant’s counsel did not put the appellant’s
version
to the complainant as to what happened on the night in question.
[12] The appellant testified to a
version which was not put to any of the state witnesses. He admitted
that he had touched the complainant’s
private parts but he
testified that she had fondled him and had said that he must fondle
her. He admitted that he had caressed
her private parts but stated
that she had been wearing pants. According to the appellant, the
complainant then got off the bed
and took off her pants; he did not
tell her to do so. According to the appellant the complainant then
took off her nightie. He
then succeeded in inserting his finger in
her vagina without causing any pain or bleeding and he said to his
wife: ‘C has
already been penetrated by someone’. He
continued to caress her private parts and the complainant opened her
legs to make
it easier for him. She did not want him to stop. She
held his hand so that he could not pull it away. Eventually he
removed his
hand and at about 8 pm they all went to sleep. Later the
complainant got up and came to him and asked him to penetrate her as
she
wanted to feel what it was like. According to the appellant he
told her that she was too small and he would hurt her. They then
went
no further. The appellant testified that the complainant was so
insistent that he lay on top of her and when he saw that it
was not
possible he stopped. He does not know why it is alleged that there
was penetration. According to the appellant the complainant
would
walk around the house naked and refused to put on clothes. H.......
allowed this, he said, because she knew he wanted to
get divorced and
she did not. According to the appellant, H....... used her daughter
to get a hold over him so that they would
not get divorced. He also
testified that the complainant was in love with him and was very
jealous. At the end of his evidence
the appellant admitted that he
had tried to insert the tip of his penis into the complainant’s
vagina.
[13] It has already been mentioned that
it was of the utmost importance that the fact and circumstances of
the sexual intercourse,
if any, be properly established. The
appellant’s version should have been put to each of the state
witnesses and this version
should have been tested in the
cross-examination of the witnesses. The differences between the
complainant’s and H...........’s
evidence should also
have been investigated. After the evidence had been properly
canvassed the court a quo should have made specific
findings as to
how the intercourse took place. The court a quo did not do this and
simply found that an act of intercourse had
taken place and
accordingly that the appellant was guilty of rape. This court must
therefore do the best it can with the evidence
available taking into
account the nature of the evidence and the probabilities.
[14] It is clear that both H...... and
the appellant had a motive to misrepresent the facts. H....... failed
in her duty to protect
her child and did so for selfish reasons (she
did not want to be divorced from the appellant). She downplayed her
role. On her
version she was passive and simply did nothing to
protect her child. The appellant also downplayed his role. On his
evidence there
was no penetration. At worst for him he had attempted
to penetrate the complainant (i.e. attempted rape) and at best for
him he
had improperly fondled the complainant’s private parts
(i.e. indecent assault).
The complainant obviously has reason to
be angry with both her mother and the appellant yet she does not seem
to have attempted
to misstate the facts or exaggerate. She was
clearly a vulnerable little girl abused by the people who should have
protected and
not abused her and she simply recited the facts as she
understood them. She is obviously inexperienced and even when she
testified
in October 2003 she was not capable of describing the
intercourse and she did not understand what ejaculation was. The lack
of
detail about the incident and the other acts of intercourse is
troubling. Furthermore, if a full grown man has proper intercourse

with an 11 year old child it is probable that she will have fairly
extensive and serious injuries. The absence of such injuries
seems to
indicate that whatever penetration there was was of limited and short
duration. On the evidence I do not think that the
state proved that
further acts of intercourse took place. The evidence is simply too
vague to support a finding that they took
place. This view is
reinforced by the fact that the state did not charge the appellant
with six counts of rape. If the state considered
that the
complainant’s evidence indicated that the appellant had raped
the complainant six times the overwhelming probability
is that the
state would have charged the appellant accordingly.
[15] This appeal will therefore be
determined on the complainant’s version of the incident. On
that version there was one
act of sexual intercourse, probably of
limited duration and extent, on the night in question. Furthermore,
on that version, the
complainant’s mother made no attempt to
stop the appellant from having intercourse with her daughter, did not
even attempt
to persuade him not to have intercourse with her
daughter and in fact assisted the appellant to overcome the
complainant’s
resistance to having intercourse with the
appellant.
[16] After the conviction no attempt
was made by the state, the defence or the court to ascertain the
psycho social circumstances
of the appellant or why the appellant
should think that he was entitled to have intercourse with his wife’s
11 year old daughter
or why the child’s mother would allow this
to take place in her presence or at all. It has already been
mentioned that the
trial court proceeded in unseemly haste and
clearly considered that it was obliged to impose a sentence of life
imprisonment simply
because the complainant was under the age of 16.
The court a quo did not refer to the provisions of Act 105 of 1997, S
v Malgas
2001 (3) SA 1222
(SCA) or other cases dealing with
appropriate sentences in terms of the Act or the relevant
circumstances of the crime itself.
The court approached sentence from
the simple premise that the court is obliged to impose a sentence of
life imprisonment unless
it is satisfied that there are substantial
and compelling circumstances which would justify the imposition of a
lighter sentence.
After finding that there were no such circumstances
the court stated that even if the Act did not exist the court would
have imposed
life imprisonment. It is striking that the court a quo
did not consider the question of why the appellant committed the
crime or
why the complainant’s mother assisted him to do so.
[17] In sentencing the appellant the
court a quo did not apply the principles set out in S v Malgas and
accordingly misdirected
itself. This court is therefore entitled to
interfere with the sentence if this is justified. This court will do
so in accordance
with the principles formulated in Malgas and
explained in Vilakazi and other cases.
[18] The Act provides that ordinarily a
sentence of 10 years imprisonment should be imposed for rape. However
it provides for eight
circumstances where the sentence for rape is
imprisonment for life. One of these circumstances is where the victim
is a girl who
is under the age of 16 years. As pointed out in
Vilakazi paras 13-15 the Act is a blunt instrument and must be
applied with circumspection
to ensure that unjust sentences are not
imposed:
‘[13] What is striking about that
regime is the absence of any gradation between 10 years imprisonment
and life imprisonment.
The minimum sentence of 10 years imprisonment
progresses immediately to the maximum sentence that our law allows
once any of the
aggravating features is present, irrespective of how
many of those features are present, irrespective of the degree in
which the
feature is present, and irrespective of whether the
convicted person is a first or a repeat offender. On the face of it a
first-offending
18-year-old boy who rapes his 15-year-old girlfriend
on one occasion must receive the same sentence as a recidivist serial
rapist
who repeatedly gang-rapes and beats senseless a disabled
victim whom he consciously infects with HIV. The 18-year-old boy who
rapes
his 15-year-old girlfriend must also receive the same sentence
as the adult recidivist who rapes an infant. The offender who
imprisons
and rapes his victim repeatedly every day for a week is
considered to be no more culpable than one who rapes his victim twice
within
10 minutes. It requires only a cursory reading of the Act to
reveal other startling incongruities. And when the sentences that are

prescribed for rape in various circumstances are related to sentences
prescribed for other crimes even more incongruities emerge.
It is not
surprising that the leading writer on the subject of sentencing in
this country, professor Terblanche, advanced the following
acerbic
observation on the Act 10 years after it took effect:
I have criticised the Act elsewhere
and, if anything, have become more critical with time. There is
hardly a provision in sections
51-53 that is without problems. The
number of absurdities that have been identified and which will no
doubt be identified in future
is simply astounding. The Act’s
lack of sophistication disappoints from beginning to end. There are
too many examples of
disproportionality between the various offences
and the prescribed sentences.
[14] It is only by approaching
sentencing under the Act in the manner that was laid down by this
court in S v Malgas – which
was said by the Constitutional
Court in S v Dodo to be “undoubtedly correct” –
that incongruous and disproportionate
sentences are capable of being
avoided. Indeed, that was the basis upon which the Constitutional
Court in Dodo found the Act to
be not unconstitutional. For by
avoiding sentences that are disproportionate a court necessarily
safeguards against the risk –
and in my view it is a real risk
– that sentences will be imposed in some cases that are so
disproportionate as to be unconstitutional.
In that case the
Constitutional Court said that the approach laid down in Malgas, and
in particular its “determinative test”
for deciding
whether a prescribed sentence may be departed from,
Makes plain that the power of the court
to impose a lesser sentence … can be exercised well before the
disproportionality
between the mandated sentence and the nature of
the offence become so great that it can be typified as gross [and
thus constitutionally
offensive].
That “determinative test”
for when the prescribed sentence may be departed from was expressed
as follows in Malgas and
it deserves to be emphasised:
If the sentencing court on
consideration of the circumstances of the particular case is
satisfied that they render the prescribed
sentence unjust in that it
would be disproportionate to the crime, the criminal and the needs of
society, so that an injustice
would be done by imposing that
sentence, it is entitled to impose a lesser sentence.
[15] It is clear from the terms in
which the test was framed in Malgas and endorsed in Dodo that it is
incumbent upon a court in
every case, before it imposes a prescribed
sentence, to assess, upon a consideration of all the circumstances of
the particular
case, whether the prescribed sentence is indeed
proportionate to the particular offence. The Constitutional Court
made it clear
that what is meant by the “offence” in that
context (and that is the sense in which I will use the term
throughout
this judgment unless the context indicates otherwise)
Consists of all factors relevant to the
nature and seriousness of the criminal act itself, as well as all
relevant personal and
other circumstances relating to the offender
which could have a bearing on the seriousness of the offence and the
culpability of
the offender.
If a court is indeed satisfied that a
lesser sentence is called for in a particular case, thus justifying a
departure from the prescribed
sentence, then it hardly needs saying
that the court is bound to impose that lesser sentence. That was also
made clear in Malgas,
which said that the relevant provision in the
Act
vests the sentencing court with the
power, indeed the obligation, to consider whether the particular
circumstances of the case require
a different sentence to be imposed.
And a different sentence must be imposed if the court is satisfied
that substantial and compelling
circumstances exist which “justify”
… it.’
[19] It has already been held that the
rape was of limited extent and duration. No violence was used to
overcome the complainant’s
resistance, only the threat of
violence. The complainant sustained no injuries but was obviously
emotionally affected. This is
dealt with in the Impact Report which
lists the following problems which presented after the incident (I
translate and paraphrase):
(1) Serious scholastic problems: a
decline in academic performance; identifying with the wrong friends;
truancy and lack of motivation
to attend school;
(2) Exposure at school to questions and
comments from fellow students and teachers who know about the
incident. The complainant
felt that other people’s regard for
and attitude towards her had changed since the matter had become
public knowledge;
(3) Emotional trauma: the complainant
still has feelings of fear, guilt, embarrassment, depression and
distrust;
(4) Guilt about the tremendous impact
the publication of the incident and the court case had on the family.
This was aggravated
by the fact that her mother and stepfather were
in prison. The complainant has a great need for support;
(5) Suppressed anger changed to
aggression. The complainant causes trouble by being pugnacious,
rebelling against her superiors
and sometimes refusing to subject
herself to authority;
(6) Disturbed sleep pattern and
nightmares about the sexual incident;
(7) Sexually precocious. The
complainant shows unseemly interest in the opposite sex. She says
that people now see her in a negative
light and act differently
towards her;
(8) Fear of the alleged transgressor
and feelings of guilt and anxiety.The fact that her stepfather is the
alleged transgressor
and that her mother has been charged as an
accomplice intensifies her feelings of guilt and anxiety;
(9) Difficulty in working through the
sexual molestation. Nevertheless the complainant is motivated to
become involved in therapy.
The social worker concluded that the
complainant was already showing serious emotional and behavioural
problems.
[20] The Psycho Social Report deals
extensively with the appellant’s dysfunctional background and
upbringing. The most important
aspects are (once again I paraphrase
and translate):
(1) The appellant was born on 27
February 1963 and was therefore about 37 years old at the time of the
incident. He grew up in a
dysfunctional family where his father
abused alcohol and neglected him physically and emotionally and
sometimes abused him physically.
The appellant could not progress at
an ordinary school and he completed his school career at a special
school. (It will be remembered
that Pansegrouw testified that the
appellant was slow to understand and Pansegrouw was worried that the
appellant did not properly
understand what was happening.) The
appellant passed Standard 9 and then qualified as a machine turner.
At school he was hyperactive
and this retarded his academic progress.
The appellant performed well at sport and won Northern Transvaal
colours for wrestling;
(2) After he left school the appellant
served for 2 years in the Defence Force doing his national service.
During that period he
repeatedly requested to be sent to the border.
The appellant regarded the Defence Force as a great challenge until
he was injured
in a land mine explosion which seriously impaired his
hearing;
(3) The appellant met his first wife
while he was in the Defence Force and married her when he was 20
years old. They have 3 children.
It was a stormy marriage. The
appellant was manipulated and abused by his wife. They were twice
married and divorced, the last
time in 1994. According to the
appellant’s first wife the marriage was characterised by a
number of extra marital relationships,
physical abuse and the
appellant’s instability. The appellant met his present wife in
1994 and they married in 1995. They
have no children. After a few
happy years the marriage started to disintegrate. This was caused by
his wife’s extra marital
affairs and the fact that she became
pregnant and lost the child and the appellant’s own extra
marital relationship from
which a child was born. The appellant
believes that the fact that he made another woman pregnant and wanted
to divorce his wife
caused his wife and the complainant to conspire
against him. On the other hand the appellant planned to make another
woman pregnant
so that he could escape from a possessive marriage;
(4) The appellant’s parents did
not satisfy his emotional needs and the appellant, as an adult,
attempts to satisfy these
unfulfilled needs by various sexual
relationships. The appellant’s perception of himself is very
negative and this makes
him unhappy. He experiences little personal
fulfilment or satisfaction and experiences feelings of fear, guilt
and inferiority.
The report notes that the appellant has two
personalities: one is good and caring: the other is aggressive,
irrational and impulsive,
tells lies, has no sense of responsibility
and is manipulative;
(5) According to the assessment the
appellant comes from a dysfunctional family where both parents abused
alcohol and where he was
physically assaulted. The appellant
demonstrates the characteristics of the product of such homes which
include a lack of responsibility;
a tendency to extreme behaviour;
unexpressed anger vis-à-vis his parents which is internalised
and leads to self-destructive
emotions and behaviour and other
manipulative behaviour. The appellant’s strong sexual urges and
extra marital relationships
are clear symptoms of feelings of
inferiority, rejection and deprivation. The appellant compensates for
these feelings by sexual
relationships and activity: i.e. he
satisfies his unfulfilled emotional needs by means of intimate sexual
relationships;
(6) The report states that the present
rape can be compared to incest. It concludes that the complainant
played the mother’s
role as sexual mate within the marriage and
formed part of the marriage system. At the time of the incident the
appellant’s
marital relationship was weak and unsatisfactory.
The complainant was used to save the marital relationship by being
used in sexual
activity. The complainant’s mother kept quiet
about these activities to save the marriage. There was a change of
roles and
the complainant became a marriage mate who satisfied the
appellant’s needs in alternative ways;
(7) The fact that the appellant shows
no remorse and does not accept responsibility for his actions is an
aggravating factor;
(8) The appellant knows that what he
did was wrong.
[21] The family relationships were, to
say the least, very complicated. The appellant seems to have an
overpowering libido. He has
three children from his first marriage.
He has no children from his second marriage to Human but he has
fathered a child out of
wedlock during that second marriage and he
clearly considered that he was entitled to have intercourse with his
wife’s minor
child. This seems to be the result of the change
of roles within the family and was a view promoted by his wife.
Instead of disabusing
the appellant of the idea his wife helped the
appellant to commit the crime.
[22] All these factors and particularly
the appellant’s lack of intellect and understanding of his
situation and his wife’s
behaviour must be taken into account
in determining whether life imprisonment is appropriate.
[23] It is important to bear in mind
that the Supreme Court of Appeal has stated that the life sentence
ordained by the Legislature
should be reserved for cases devoid of
substantial factors compelling the conclusion that such sentence is
inappropriate and unjust.
See e.g. S v Abrahams
2002 (1) SACR 116
(SCA) para 29; S v Mahomotsa
2002 (2) SACR 435
(SCA) paras 17-19;
Rammoko v Director of Public Prosecutions
2003 (1) SACR 200
(SCA)
para 12; S v Sikipha
2006 (2) SACR 439
(SCA) paras 17-19 and S v
Nkomo
2007 (2) SACR 198
(SCA) paras 13-21. Cases marked by extreme
violence and humiliation are usually regarded as such cases. See e.g.
S v Swartz supra
and S v Nkomo supra. In the present case there was
no violence, there were no injuries and it is not possible to
ascertain the
degree of humiliation experienced by the complainant.
She does not say she was humiliated and no-one else comments on her
humiliation.
These factors were also not considered by the court a
quo and must be considered by this court.
[24] Other factors not considered by
the court a quo include the appellant’s personal circumstances.
He is a first offender.
He is employed and supports a wife and
possibly the complainant. He is relatively young and probably capable
of rehabilitation
now that the seriousness of what he has done has
been brought home to him. The appellant was detained in prison
awaiting trial
in the High Court for three and a half years. He has
since served about 6 years of his sentence.
[25] I am accordingly of the view that
taking into account all the circumstances of this case the prescribed
sentence of life imprisonment
is unjust and a lesser sentence should
be imposed. In my view justice would be served if the appellant was
sentenced to 10 years
imprisonment and an order was made that when
calculating the date upon which the sentence is to expire three and a
half years must
be deducted. See Vilakazi para 61.
Order
[26] I, The appeal is upheld. The
sentence of life imprisonment is set aside and replaced with a
sentence of 10 years imprisonment
from which 31/2 years are to be
deducted when calculating the date upon which the sentence is to
expire.
II In terms of section 282 of Act 51 of
1977 it is ordered that the substituted sentence of 10 years
imprisonment be deemed to have
been imposed on 7 October 2003.
B.R. SOUTHWOOD
JUDGE OF THE HIGH COURT
I agree
P. ELLIS
ACTING JUDGE OF THE HIGH COURT
I agree
S. POTTERILL
ACTING JUDGE OF THE HIGH COURT
CASE NO: A496/08
HEARD ON: 5 August 2009
FOR THE APPELLANT: MR. H.L. ALBERTS
INSTRUCTED BY: Legal Aid Board
FOR THE RESPONDENT: ADV. C. KERSTEN
INSTRUCTED BY: Director of Public
Prosecutions
DATE OF JUDGMENT: 14 August 2009