About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2009
>>
[2009] ZANCHC 75
|

|

Dembe v S (CA&R 69/09) [2009] ZANCHC 75; 2010 (1) SACR 360 (NCK) (30 November 2009)

Reportable: Yes /
No
Circulate to
Judges: Yes / No
Circulate to
Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
[
Northern
Cape High Court, Kimberley]
Case
no: CA&R 69/09
Date
heard:
2009-11-23
Date
delivered:
2009-11-30
In
the appeal of
:
RONNIE
DEMBE
APPELLANT
versus
THE
STATE
RESPONDENT
Coram:
MAJIEDT
J et WILLIAMS J
JUDGMENT
MAJIEDT J:
The Appellant, a
herbalist by trade who, judging by the facts of this case,
moonlights as a backstreet abortionist, was convicted
on his plea of
guilty on six counts under the Choice on Termination of Pregnancy
Act, 92 of 1996 (“
the
Act”
).
Counts 1 to 3 were taken together for sentence as were counts 4 to
6. On counts 1 to 3 a sentence of five years imprisonment
was
imposed and a similar sentence was imposed on counts 4 to 6. The
appeal, with leave of the court below, is directed against
the
aforementioned sentences. We have, however, been requested by
Counsel for the Appellant to exercise our inherent review

jurisdiction with regard to the convictions on counts 3 and 6.
The convictions
arise from two separate incidents. The first, relating to counts 1
to 3, concerns the termination
of
the pregnancy of one Ms Agnes Louw, a 23 year old female, after the
20
th
week of the gestation period of her pregnancy. The second incident,
in respect of counts 4 to 6, concerns the attempted termination
of
the pregnancy of one Ms Monique Anthony, an 18 year old female,
between the 13
th
and 20
th
week of the gestation period of her pregnancy.
The Appellant was convicted as
follows:
On count 1, contravening
sec 10(1)(b), read with sec 2(1)(c) of the Act;
On count 2
,
contravening sec 10(1)(d), read with sec 3(1) of the Act;
On count 3,
contravening sec 10(1)(a), read with sec 2(1)(a) and
sec 1(c)(
sic
)
of the Act;
On count 4,
the
attempted contravening sec 10(1)(b), read with sec 2(1)(b)
of the Act;
On count 5, the attempted
contravening of sec 10(1)(d), read with sec 3(1) of the
Act; and
On count 6, the
attempted contravening of sec 10(1)(a) read with sec 2(1)(a)
and sec 1(c)(
sic
)
of the Act.
In both instances
the Appellant performed the abortions
at
the request of the respective complainants. The Appellant
administered cytotec to the complainants to prematurely induce
labour in order to abort the foetuses. Being unwed, both
complainants required surreptitious abortions to avoid the stigma

and scandal associated with their pregnancies. Ms Louw’s foetus
was successfully aborted at a stage when she was beyond the
20
th
week of the gestation period of her pregnancy. In Ms Anthony’s
instance, the attempted abortion occurred at a stage between
the
13
th
and 20
th
weeks of the gestation period, but the foetus survived this attempt.
In his heads of
argument
Counsel
for the Appellant submitted that counts 1 and 3 and 4 and 6 are so
closely related to each other that the Appellant’s
convictions on
counts 3 and 6 amount to a duplication of convictions. We were
accordingly requested to interfere with these
convictions by
exercising our inherent review jurisdiction. Counsel for the State
supported the convictions and sentences.
I will first consider the
correctness of the convictions on counts 3 and 6.
The convictions
on counts 2 and 5 are uncontentious
.
It would suffice to record that the Appellant was correctly
convicted on these two counts which relate to the termination of
a
pregnancy (in respect of count 2, relating to Ms Agnes Louw)
and the attempted termination of a pregnancy (in respect
of count 5,
relating to Ms Monique Anthony) at a facility not approved in terms
of sec 3(1) of the Act. Section 10(1)(d)
of the Act
establishes a statutory offence for the termination or attempted
termination of a pregnancy at a facility not approved
in terms of
sec 3(1) of the Act. Section 3(1) sets out the requirements
with which a facility must comply for the termination
of a pregnancy
to be lawfully done there.
A proper
evaluation of
the
contentions advanced on behalf of the Appellant relating to counts 1
and 4 and 3 and 6 respectively, requires a closer analysis
of the
applicable provisions. Sections 10(1)(a) and (b) of the Act creates
statutory offences in the following terms:
“
10 Offences and penalties
(1)
Any
person who-
(a) is not a medical practitioner, or a registered
midwife or registered nurse who has completed the prescribed training
course,
and who performs the termination of a pregnancy referred to
in section 2 (1) (a);
(b) is not a medical practitioner and who performs
the termination of a pregnancy referred to in section 2 (1) (b) or
(c);
(c) prevents the lawful termination of a pregnancy
or obstructs access to a facility for the termination of a pregnancy;
or
(d) terminates a pregnancy or allows the
termination of a pregnancy at a facility not approved in terms of
section 3 (1) or not
contemplated in section 3 (3) (a),
shall be guilty of an offence and liable on
conviction to a fine or to imprisonment for a period not exceeding 10
years.
Section 2(1) provides as follows:
“
2 Circumstances in which
and conditions under which pregnancy may be terminated
(1)
A
pregnancy may be terminated-
(a) upon request of a woman during the first 12
weeks of the gestation period of her pregnancy;
(b) from the 13th up to and including the 20th
week of the gestation period if a medical practitioner, after
consultation with the
pregnant woman, is of the opinion that-
(i) the continued pregnancy would pose a risk of
injury to the woman's physical or mental health; or
(ii) there exists a substantial
risk that the foetus would suffer from a severe physical or mental
abnormality; or
(iii) the pregnancy resulted from rape or incest;
or
(iv) the continued pregnancy
would significantly affect the social or economic circumstances of
the woman;”
It is plain from the aforementioned
provisions that:
The termination of a pregnancy of a
woman during the first 12 weeks of the gestation period of her
pregnancy may occur at the
woman’s request and may be performed
by a medical practitioner or a registered midwife or registered
nurse who has completed
the prescribed training course.
The termination
of
the
pregnancy of a woman from the 13
th
up to and including the 20
th
week of gestation period may only be performed by a medical
practitioner, who must consult with the pregnant woman and who
must
form an opinion that one of the four factors listed under
sec 2(1)(b)(i)-(iv),
supra
,
prevail. The termination of a pregnancy outside these parameters
would constitute a criminal offence in terms of the abovementioned

sections.
In determining
whether
there has been a duplication of convictions, our Courts have
traditionally developed the so-called evidence test, i.e.
having
regard to the evidence required to prove the different offences and
the so-called intention test, i.e. having regard to
the state of
mind of the perpetrator who committed more than one offence. In
S
v Whitehead and Others 2008(1) SACR 431 (SCA)
at 443 e-f, par [35], Navsa JA and Van Heerden JA set out
the approach to be adopted in determining whether there has
been a
duplication of convictions as follows:
“
[35] There is no infallible
formula to determine whether or not, in any particular case, there
has been a duplication of convictions.
The various tests that have
been formulated by our courts …. are not rules of law, nor are they
exhaustive. They are simply
useful practical guides and in the
ultimate instance, if these tests fail to provide a satisfactory
answer, the matter is correctly
left to the common sense, wisdom,
experience and sense of fairness of the court.”
Having regard to
the facts
and
the legislative provisions set out above, it is plain that neither
one of the two complainants could lawfully have their foetuses

aborted simply at their own request by a qualified medical
practitioner. This is so because both of them were beyond the 12
th
week of the gestation period of their pregnancies. In any event,
the Appellant is not a medical practitioner or registered midwife
or
registered nurse.
In my view t
he
problem with the convictions on counts 3 and 6 has nothing to do
with a duplication of the convictions on counts 1 and 4

respectively. The problem is simply that the Appellant should never
have been charged with counts 3 and 6. To recapitulate:
on counts
3 and 6 the Appellant was charged with a contravention of
sec 10(1)(a) read with sec 2(1)(a) and sec 1(c)(
sic
)
and an attempted contravention of the aforesaid sections
respectively. These sections are not applicable at all. They
relate
to the termination of a pregnancy upon request of a woman
during the first 12 weeks of the gestation period of her pregnancy.
In neither of the two instances before us did the abortion or
attempt thereto occur within that period. The convictions on counts

3 and 6 can therefore not stand and ought to be set aside.
I now turn to
consider the question of sentence. The State adduced the evidence
of Dr. Esmé Olivier, a medical practitioner
attached to
Kimberley Hospital involved with clinical forensic work. Dr.
Olivier testified that
,
in her capacity as manager of the specialist clinics which includes
the reproductive health clinic, she became suspicious during
the
period 2007-2008 regarding the dramatic increase in the number of
incomplete abortions and miscarriages recorded at the said
clinic.
The suspicion arose that backstreet abortionists were performing
illegal abortions and the assistance of the SAPS was
enlisted.
Certain of the patients provided information to the police that
eventually led to the arrest of the Appellant. Dr.
Olivier also
testified about the use of cytotec, which is a schedule 4 drug,
known by the scientific name of
Misoprostal
and which can only be obtained on prescription from a medical
practitioner. She explained that this particular drug is commonly

used in a maternity ward to induce labour. If the drug is used
unsupervised by unqualified persons it can lead to a uterine

rupture, particularly when the pregnancy has advanced beyond 16
weeks of the gestation period. With regard to the dangers and

complications associated with the illegal termination of
pregnancies, Dr. Olivier explained that quite often a patient is
left
with parts of the placenta which needs to be removed through a
surgical procedure. These retained parts of the placenta may become

septic and may also lead to severe sustained bleeding, causing the
patient to go into hypovolemic shock causing death.
The State also
briefly led the evidence of superintendent Loubsher who testified
that the Appellant was arrested after an undercover
operation by the
police. After the police had been alerted to the possible
activities of backstreet abortionists given the dramatic
increase in
miscarriages and incomplete abortions, the police launched
this
covert operation. One of the backstreet abortionists, known as “
Dr.
Bruno
”,
openly and brazenly advertised on lampposts all over town. Safe and
free abortions with a contact cellphone number were
detailed in
these adverts. Two undercover police officers approached the
Appellant and he was arrested whereupon cytotec tablets
were found
in his possession.
The following
mitigating circumstances in favour of the Appel
lant
can be gleaned from the record:
He pleaded guilty and expressed
remorse regarding his unlawful conduct;
He had been in custody for
approximately one year awaiting trial at the time of sentencing;
He was a first offender;
His personal
circumstances are relatively favourable in that he was 32 years of
age at the time of sentencing, had attained
the equivalent of
matric in Uganda and he had three dependants, namely his own minor
children of 5 and 7 years of age as well
as a 17 year old child of
a relative who he cared for. He earned approximately R3500 per
month as a herbalist.
The following
aggravating
circumstances count against the Appellant:
The fact that he
brazenly
and openly advertised his unlawful enterprise;
In both
instances complications arose when both complainants experienced
severe pain and had to be admitted to a medical facility
as a
consequence of the Appellant’s unlawful conduct;
The potentially
serious consequences, including death, which can flow from the
unsupervised, unlawful and unqualified termination
of a pregnancy
had been graphically illustrated by the evidence of Dr. Olivier.
The offences were rightly regarded as very
serious by the
Magistrate;
The Appellant’s
plea of guilty and expression of remorse must be assessed in the
context of him being caught in an undercover
operation. His
remorse is therefore for himself, for having been caught out,
rather than genuine regret for his misdeeds;
The Appellant
was compensated for his services and, given the fact that he was in
gainful trade as a herbalist earning R3500
per month, the inference
is inescapable that he had been actuated
by
greed and not need.
The Magistrate
misdirected himself in
a
material respect in the imposition of sentence in respect of the
second instance, relating to Ms Monique Anthony whom he wrongly

described as a minor. Ms Anthony was 18 years old at the time of
the offence (21 February 2008). In law she is regarded as
an adult
by virtue of the provisions of
sec 17
of the
Childrens Act, 38
of 2005
, which came into operation on 1 July 2007 and which
determines the age of adulthood as 18 years.
T
he
aforementioned misdirection empowers us to interfere on appeal. In
any event I am of the view that the sentences imposed are
shockingly
excessive, which would warrant interference on appeal anyway. The
setting aside of the convictions on counts 3 and
6 is a further
basis for interference with the sentence on appeal.
I have not been able to source any
decided cases on sentence in respect of the Act, nor did Counsel
refer us to any such cases.
The promulgation of the Act
precipitated a flurry of objections, protest and even legal
challenges.
See
inter
alia
Christian
Lawyers Association of SA and Others v Minister of Health and Others
1998(4) SA 1113 (T)
;
Christian
Lawyers
’
Association v National Minister of Health
[2004] 4 All SA 31
(T).
The Act has however survived these
legal challenges and its objective is, as stated in the Act itself
“
to determine the circumstances in which and
conditions under which the pregnancy of women may be terminated.
The following passages from the
preamble to the Act are instructive in the consideration of sentence:
“
Recognising that both women
and men have the right to be informed of and to have access to safe,
effective, affordable and acceptable
methods of fertility regulation
of their choice
,
and the women have the right of access to appropriate health care
services to ensure safe pregnancy and childbirth;
Recognising that the State has
the responsibility to provide reproductive health to all, and also to
provide safe conditions under
which the right of choice can be
exercised without fear or harm;
B
elieving
that termination of pregnancy is not a form of contraception or
population control.”
In
Christian
Lawyers’ Association v National Minister of Health and Others,
supra
at 36 E-F, Mojapelo J described the cornerstone of the Act
as follows:
“
The cornerstone of the regulation of the
termination of pregnancy of a girl and indeed of any woman under the
Act is the requirement
of her ‘informed consent’. No woman,
regardless of her age, may have her pregnancy terminated unless she
is capable of giving
her informed consent to the termination and in
fact does so.”
A useful
exposition of the structure and framework of the Act appears in the
dictum
of
Wunsh J in
Nourse
v Van Heerden NO and Others 1999(2) SACR 198 (W)
at
205 a-g.
For present
purposes I
would
emphasize the requirements of a safe termination of pregnancy being
carried out by a qualified person under certain conditions
at an
approved medical facility as stipulated in the Act. The adverse
consequences emanating from unqualified, unsupervised and
unlawful
terminations of pregnancy are self evident, but in any event appear
fully from the evidence of Dr. Olivier which I have
discussed above.
It seems to me that in the premises contraventions of the like
perpetrated by the Appellant are deserving of
direct imprisonment and
no other sentence would be proper in the circumstances. To hold
otherwise would detract from the gravity
of these offences.
The Act repealed
the Abortion and Sterilization Act, 2 of 1975 (“
the
repealed Act”
)
insofar as it relates to abortion. The repealed Act carried
penalties of a fine of R5 000.00 or imprisonment not exceeding

five years or both. The Act provides in sec 10(1) that
contraventions of sec 10(1)(a), (b), (c) and (d) are punishable

with a fine or imprisonment for a period not exceeding ten years.
The increase in penalties when compared with the repealed
Act is
instructive. In
S
v Collop 1979(4) SA 381 (C)
,
a sentence of six months’ imprisonment on each count for
unlawfully procuring abortion which was imposed on the accused under

the repealed Act was confirmed on appeal. The accused had a
previous conviction on sixteen counts of abortion and six counts
of
attempted abortion. On appeal the Appellate Division confirmed the
sentence (
S
v Collop 1981(1) SA 150 (A)
).
Diemont JA motivated the decision to confirm the sentence as
follows:
“
The Abortion and
Sterilization Act carries heavy penalties – a fine of R5 000.00
or imprisonment not exceeding 5 years or
both. Regard being had
to
the previous convictions, the risk to the health of the complainant
and the severe penalties prescribed by the Act, I do not
think that
it can be said that a six month gaol sentence is too severe; on the
contrary, it was an appropriate sentence.”
at 168 G-H).
The sentences
imposed by the Magistrate are
far
too severe and induce a sense of shock. In my view, upon a careful
consideration of the mitigating and aggravating features
of this
case as outlined above and having regard to the general objectives
of sentencing, an appropriate sentence would be an
effective term of
imprisonment of three years. Such a sentence would to my mind do
justice to the offences, the offender and
society. Having regard to
the increased penalties compared to the repealed Act and with
S
v Collop
,
supra
,
as a guide, such a sentence would serve as a deterrent to other
aspiring backstreet abortionists.
The following order is issued:
The Appellant’s convictions on
counts 1, 2, 4 and 5 are confirmed.
The Appellant’s convictions on
counts 3 and 6 are set aside.
The sentence imposed on the
Appellant is set aside and substituted with the following:
“
Counts 1
and 2, taken together for purposes of sentencing: three (3) years
imprisonment, eighteen (18) months of which is
suspended for a
period of five (5) years on condition that the accused is not
convicted of an offence
or an attempt thereto in terms of sec 10(1) of The Choice on
Termination of Pregnancy Act, 92 of 1996, committed during
the
period of suspension.
Counts 4 and
5
,
taken together for sentencing: three (3) years imprisonment,
eighteen (18) months of which is suspended for a period of
five
(5) years on condition that the accused is not convicted of an
offence or an attempt thereto in terms of sec 10(1)
of The
Choice of Termination on Pregnancy Act, 92 of 1996, committed
during the period of suspension.”
The sentence
is antedated to
18
February 2009.
________________________
SA MAJIEDT
JUDGE
I
concur:
___________
_____________
CC WILLIAMS
JUDGE
FOR THE
APPELLANT :
ADV
J CLOETE, JUSTICE CENTRE, KIMBERLEY
FOR THE
RESPONDENT : ADV KGATWE, DPP, KIMBERLEY