S v Genever and Othes (SS77/2006) [2008] ZAWCHC 7; 2008 (2) SACR 117 (C) (5 February 2008)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2008
>>
[2008] ZAWCHC 7
|

|

S v Genever and Othes (SS77/2006) [2008] ZAWCHC 7; 2008 (2) SACR 117 (C) (5 February 2008)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF
GOOD HOPE PROVINCIAL DIVISION)
CASE NO.: SS77/2006
In the matter between
THE STATE
vs
OMAR GENEVER
Accused 1
RIEDEWAAN
HENDRICKS
Accused 2
M.I.
Accused
3
JUDGMENT DELIVERED ON 5 FEBRUARY 2008
SAMELA, AJ
[1] This matter came before me by way of committal
of the accused to the High Court for consideration of appropriate
sentences after
conviction in the Regional Court. The alleged
offences referred to fell under Part I of Schedule 2 of the Criminal
Law Amendment
Act 105 of 1997 (hereinafter called the Minimum
Sentences Act). All three accused were charged in the Regional
Court, Wynberg,
for kidnapping, three counts of rape, indecent
assault and robbery. The allegations against the three accused were
that on 8
January 2000 at or near Grassy Park, within the regional
division of the Western Cape, the accused, all three adult males,
wrongfully
and intentionally kidnapped, had sexual intercourse with
the complainant, one N.M.P., an 18 year old female person, without
her
consent and also robbed her of her goods.
[2] All the three accused pleaded not guilty to
all the charges. However, they admitted having sex with the
complainant and insisted
that there had been consent. The court
a
quo
rejected the accused versions and
said the following:
“
Dit is verder onwaarskynlik dat die beskuldigdes weer
toestemming sal vra vir die klaagster nadat sy voor hulle gehoor het
hoe Darwood
sê sy is bereid om met almal geslagsgemeenskap te
hê en sy het nie geprotesteer nie. As hulle dit werklik
geglo
het en dit die omstandighede was, is dit tog onwaarskynlik dat
hulle weer eens sou toestemming vra voordat hulle voortgaan.”
[3] The trial culminated in the conviction of all three accused.
Accused 1 and 2 were convicted of kidnapping, rape and indecent

assault while accused 3 was convicted of kidnapping and rape. The
accused were all acquitted of the robbery charge. All three
accused
were each convicted on three counts of rape. After the conviction,
the Regional Magistrate was of the view that the offences
which the
accused were convicted of, were offences referred to in Part I of
Schedule 2 of the Minimum Sentences Act. The component
of the Act
referred to above carries punishment in excess of the jurisdiction of
the Regional Court, hence the Regional Magistrate’s
referral to
this court for consideration of appropriate sentences. After reading
the record, I addressed a letter to the Regional
Magistrate raising
my concerns regarding conviction of each accused on three counts of
rape and requested reasons thereof.
The Regional Magistrate
responded by saying:
“
Each accused has been convicted on three counts of rape, i.e.
counts 2, 3 and 4. It is the view of the Magistrate that all three

accused acted with a common purpose.”
[4] The issue here is whether the Magistrate correctly convicted each
accused on three counts of rape. Section 51(1) read together
with
Schedule 2 Part 1 of the Criminal Law Amendment Act 105 of 1997
provides:
Rape -
(a) when committed –
(i) in circumstances where the victim was raped more than once
whether by the accused or by any co-perpetrator or accomplice;
(ii) by more than one person, where such persons acted in the
execution or furtherance of a common purpose or conspiracy.
The section caries an obligatory life sentence subject to the
provisions of section 51 (3)(a) of the Act which provides that:
“
If any Court referred to in sub-section (1) or (2) is satisfied
that substantial and compelling circumstances exist which justify
the
imposition of a lesser sentence than the sentence proscribed in those
sub-sections, it shall enter those circumstances on the
record of the
proceedings and may thereupon impose such lesser sentence.”
[5] Leading the complainant on rape charges the Public Prosecutor
said the following:
STAAT: Is
dit ʼn strandgebied
GETUIE: Ja
STAAT: En
toe
GETUIE: Toe het hy vir die drie gesê hulle moet uitklim …
Toe klim hulle uit en toe trek hy vir my uit die kar uit en toe
neem
hy vir my oor die heuwel.
HOF: Wie trek vir jou uit die kar uit?
GETUIE: Darwood. … En daar het hy gesê ek moet my broek
aftrek en ek het vir hom gesê nee. … Hy het gesê
ek
moet my broek aftrek, toe sê ek vir hom nee. Toe sê hy
ek moet klaar maak toe sê ek weer nee. En toe he
thy my broek
self afgetrek.
STAAT: Hʼn?
GETUIE: En
toe hy nou my broek afgetrek het, toe trek hy sy broek af.
STAAT: Het hy gesê wat hy gaan doen as hy gaan geraas maak?
GETUIE: Ja,
hy gaan my vrek maak.
STAAT: En
toe?
GETUIE: Toe trek hy my broek af en daar het hy seks gehad met my.
STAAT: En toe?
GETUIE: Toe hy nou eintlik klaar is toe skree hy vir hulle ‘kamka’
daardie beteken kom soos ʼn bendetaal. … En hulle het toe
gekom
toe staan hulle al drie daar, toe is hulle nou vier altesaam weer.
STAAT: Waar was, net vir ons verduidelik waar was jy toe die
ander, of toe die drie beskuldigdes nou weer bykom het jy toe gestaan

of..
GETUIE: Gelê op die grond …
En
toe kom nommer 2
en met hom ook
en hy …, hy het net opgeklim en hy het ook net … op my geklim …
op my .. bo-op my gelê.
STAAT: En wat doen hy toe?
GETUIE: Toe het hy ook seks met my gehad… Sy penis in my vagina
in ..
STAAT: Het hy enigiets gesê terwyl hy dit gedoen het?
GETUIE: Nee, ek moet vir hom gesuig het .. op
sy .. penis .. En toe wat hy klaar is
en
toe kom beskuldigde nommer 3.
STAAT: Wat doen beskuldigde 3?
GETUIE: Hy het ook net opgeklim en hy het ook seks saam met my
gehad … met sy penis in my vagina en dit is net daardie gewees.
STAAT: Het hy enigiets vir jou gesê daardie tyd? Jy skud
jou kop ontkennend nê?
GETUIE: Nee …
Toe
kom beskuldigde nommer 1
. Hy
het ook met my seks gehad en hy het dieselfde gedoen wat beskuldigde
nommer 2 gedoen het … met die gesingery … om sy
penis te suig.
The witness indicated that she was gang raped and also that each
accused raped her once not three times. The conviction of each

accused on three counts of rape will have an impact on the sentence
to be handed down by this Court on each accused. This means,
that
each accused is facing three life sentences unless compelling
circumstances are found to exist on each count. Looking at
the
above factors, I am of the view that the Magistrate incorrectly
convicted each accused on three counts of rape. The Magistrate
in my
view should have convicted each accused on one count of rape. The
Magistrate incorrectly interpreted and applied section
51(1) of the
Minimum Sentences Act. The act by the accused was one continuous
act, that is, each accused raped the complainant
once (see section
51(1) read with schedule 2 of Part 1 of the Act, stated above).
[6] The main purpose for enacting the Minimum Sentence Act was
clearly stated by Marais JA in
S v Malgas
2001 (1) SACR 485
(SCA) especially at paragraph 7 when he said the following:
“That situation was and remains notorious – an alarming
burgeoning in the commission of crimes of the kind specified
resulting
in the government, the police, prosecutors and the courts
constantly being exhorted to use t heir best efforts to stem the tide

of criminality which threatened and continues to threaten to engulf
society. … The very fact that this amending legislation
has been
enacted indicates that Parliament was not content with that and that
it was no longer to be “business as usual” when sentencing
for
the commission of the specified crimes.”
[7] It is trite that prescribed sentence should be imposed in the
absence of genuine convincing reasons what Marais JA called “weighty

justification”. The learned judge said that:
“
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.”
This means that if the prescribed sentence would result in an
injustice being perpetrated against the accused, the disproportion

between the prescribed sentence and just sentence would automatically
qualify as substantial and compelling circumstances. [482
(eI)]
[8] The seriousness of rape was clearly stated by
Mahomed CJ in
S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 5, when he said:
“
Rape is a very serious offence, constituting as it does a
humiliating, degrading and brutal invasion of the privacy, the
dignity
and the person of the victim. The rights to dignity, to
privacy and the integrity of every person are basic to the ethos of
the
Constitution and to any defensibly civilization. Women in this
country are entitled to the protection of these rights. They
have a
legitimate claim to walk peacefully on the streets, to enjoy their
shopping and their entertainment, to go and come from
work, and to
enjoy the peace and tranquillity of their homes without the fear, the
apprehension and the insecurity which constantly
diminishes the
quality and enjoyment of their lives.”
[9] The victim in this matter is a young lady (who was 18 years at
the time of the incident). She was very traumatised and vulnerable.

The four men who raped this young lady showed her no mercy as they
raped her in turns. There is no doubt in my mind that the
problem
of high levels of crime, especially crimes of extreme violence and
brutality to children, elderly people and women remains
a stumbling
block in our country. This case is one of many cases which occur
daily in our society. The public or society is undoubtedly
entitled
to demand complete visible protection from the state and its organs
from the escalating criminality within the limits
of the law when
these crimes are committed. In this matter it seems from the record
that the mastermind behind these unfortunate
incidents, is Darwood,
whom I understand is now deceased.
[10] The person circumstances of the accused are as follows:
ACCUSED 1
is 29 years old and at the time of the incident he
was 21 years
old. He is married with two children whose ages are 9 and 7 years.
At the time of the arrest he worked at a butchery in Grassy
Park as a
delivery boy earning R450.00 per week. At school he passed standard
7 and left due to poverty as he had to earn money
to support the
family. He has written a letter expressing remorse of the present
crime.
ACCUSED 2
is 26
years old now and at the time of the incident was 19 years. He is
single and has one minor daughter of 4½ years
old. He worked
at Westgate Timbers earning R450.00 per week. He passed standard 7
at school.
ACCUSED 3
is 25
years old and at the time of the incident was 17 years old. He is
single and has a minor child of 5 years. At school
he passed
standard 5 and was working as a hawker earning R500.00 per month.
[11] In deciding on an appropriate sentence, Davis J emphasised in
S
v Swartz And Another
1999 (2) SACR 380
(C) at 387 h-j that:
“… the censure must have weight. The sentence of this Court
should shout to the community at large that rape is unacceptable
and
that there is no basis upon which a first offender gets a ‘free
rape’ (by virtue of a light sentence) and that only recidivists
can
expect an appropriately
heavy sentence. In
summary, the sentence must take full account of the nature of the
offence. It must look carefully at the
moral blameworthiness, while
confirming the community values of dignity, equality and freedom in
our society; in this way the
Courts can contribute to ensuring that
women should benefit equally from a society based on those values.
This latter promise
is particularly important in a society in which
male power and the abuse thereof has so perverted our communal life
and threatens
to make a mockery of our promise of gender equality.”
I must take into account each accused’s personal circumstances
while not forgetting the victim: I must also take into account
the
crimes which the accused have been convicted of, the interest of the
society while simultaneously exercising a measure of mercy.
I am
mindful of purposes of punishment which are prevention, retribution,
rehabilitation and deterrence. My duty is to impose
sentences on
all three accused to ensure that the community is satisfied and that
it is unnecessary for the community to take the
law into their own
hands. Also to ensure that the crime victims and other member of
the civil society have confidence in our
courts. The sentences must
also have deterrent factors as the court in
Chapman
case above
said:
“The Courts are under a duty to send a clear message to the
accused, to other potential rapists and to the community: We are

determined to protect the equality, dignity and freedom of all women,
and we shall
show no mercy to those who seek to
invade those rights.”
[13] In this matter, I am of the view that cumulative effect of a
number of circumstances qualify them to be regarded as substantial

and compelling and their presence justify the imposition of sentences
less than life imprisonment. These factors are the following
in
respect of the accused:
ACCUSED 1
is a first offender. He has been in custody for
almost 3½ years now. At the time of the incident he was also
under the
influence of drugs, namely, dagga. The socio-economic
background of the accused will also be taken into account.
ACCUSED 2
was 19
years at the time of the incident. He has been in custody for 4
years and 2 months now. He is also a first offender.
Also accused
socio-economic background will be taken into account.
ACCUSED 3
was a
juvenile at the time, that is, he was only 17 years of age. He has
been in custody for 3½ years now, minimum sentence
will not be
applicable, instead usual sentence criteria will be applied.
[14] In
the result,
Accused 1 and 2
are sentenced as follows:
Count 1 (Kidnapping) – Each accused is sentenced to four (4) years
imprisonment.
Count 2 (Rape) - Each accused is sentenced to fifteen (15) years
imprisonment.
Count 3 (Indecent Assault) – Each accused is sentenced to two (2)
years imprisonment.
Sentences on count 1, 2 and 3 to run concurrently.
Accused 3
who was
a juvenile at the time, as he was 17 years of age, will be sentenced
as follows:
Count 1 (Kidnapping) – Accused is sentenced to two (2) years
imprisonment.
Count 2 (Rape) – Accused is sentenced to twelve (12) years
imprisonment.
Sentences on both counts to run concurrently.
____________________
SAMELA, AJ