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[2006] ZAWCHC 82
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S v Duna (CC 182/05) [2006] ZAWCHC 82 (13 June 2006)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: CC 182/05
In
the matter between
THE
STATE
and
MNCEDI
DUNA
…..................................................................................
Accused
JUDGMENT
DELIVERED ON 13 JUNE 2006
ZONDI,
AJ
[1]
On 17 June 2005 you were convicted on one count of rape by the
Regional Court, sitting at Wynberg. According to the charge sheet
it
is alleged that on or about 9 August 2004 and at or near Gugulethu
you unlawfully and intentionally had sexual intercourse with
a
complainant while she was below consenting age, namely 10 years old.
The provision of section 51 of Act 105 of 1997 applied.
[2]
You were referred to this court for sentence in terms of section
51(2) of the Criminal Law and Procedure Act No 105 of 1997
("the
Act"). In terms of section 52(3)(b) of the Act I found that the
proceedings in the regional court were in accordance
with justice and
accordingly confirmed the conviction.
[3]
I consider it necessary to set out the provisions of the Act which
are relevant to this matter.
Section
52(1) provides:
"Notwithstanding
any other law but subject to subsection (3) and (6), a High Court
shafl:-
(a)
if it has convicted a person of an offence referred to in part 1 of
schedule 2; or
(b)
if the matter has been referred to in under section 52(1) for
sentence after the person concerned has been convicted of an offence
referred to in part 1 of schedule 2, sentence the person to
imprisonment for life".
Subsection
(3) provides as follows:
"(a)
If any court referred to in subsection (1) or (2) is satisfied that
substantial and compelling circumstances exist which
justify the
imposition of a lesser sentence than the sentence prescribed in those
subsections, it shall enter those circumstances
on the record of the
proceedings and may thereupon impose such lesser sentence."
The
offences referred to in Part 1 of schedule 2 of the Act include,
inter alia,
"RAPE-
(b)
Where the victim-
(i)
is a girl under the age of 16 years;
(ii) ..."
[4]
In terms of the Act I have to sentence you to imprisonment for life
unless I am satisfied that substantial and compelling circumstances
exist which would justify the imposition of a lesser sentence than
the prescribed sentence of life imprisonment. I have to decide
whether to impose the prescribed sentence or a lesser sentence. In
deciding this question I shall be guided by the decisions and
views
expressed by various courts in cases such as
S
v Malgas
2001
(1)
SACR 469
(SCA),
S
v Gqamana
2001
(2)
SACR 28
(CPD),
S
v Nkosi
2002
(1)
SACR 135
(WLD) and
S
v Abrahams
2002
(1)
SACR 116
(SCA).
[5]
In all these cases the courts expressed the view that sentences
enacted in terms of the Act are prescribed sentences but not
mandatory sentences. A lesser sentence may be imposed if a court
finds that substantial and compelling circumstances are present
or
where the court on an examination of all the facts of the case
concludes that a sentence of life imprisonment would be
disproportionate
to the offence committed and therefore unjust.
[6]
However, the prescribed sentences should not be departed from lightly
or for flimsy reasons which cannot withstand scrutiny
(S
v Malgas
supra).
[7]
In sentencing you I have to consider your personal circumstances, the
nature of the offence and the interests of the community,
including
that of a victim
(S
v
Zinn
1969
(2) SA 537
(A)). I should decide on the sentence which will give
effect to the objectives of punishment: namely deterrence,
prevention, retribution
and rehabilitation.
[8]
As far as your personal circumstances are concerned, they were
indicated by
Mr
Ballem,
acting
on your behalf, to be as follows: you are 45 years old, unmarried,
but have four dependants. Due to financial constraints
you were
forced to leave school in standard 4. At the time of your arrest, you
were employed as a taxi driver earning R350-00 per
week. You have
previous convictions. However, they are not related to the present
offence. According to a SAP69 your last conviction
was in September
1990. This may tend to indicate that you learned from your past
mistakes.
[9]
It was also indicated by
Mr
Ballem
that
you were drunk when you committed this offence and that you tested
HIV positive in December 2004.
Mr
Ballem
urged
this court not to sentence you to life imprisonment because of your
HIV status and due to the fact that you had had something
to drink
when you committed this offence.
[10]
As far as the nature of the offence is concerned, there is no doubt
about its seriousness and this fact should be reflected
in the type
of a sentence which this court will eventually impose.
[11]
In aggravation the State presented the oral evidence of Mr Patrick
Simane, the complainant and Constable Zamikhaya Mbali. The
probation
officer's report was handed in by agreement between the State and the
defence.
[12]
Mr Patrick Simane is the complainant's biological father. The
complainant was born on 29 December 1993. He testified that you
were
his friend and you would visit him whenever you had an occasion to do
so. You were known to his family members. On the day
in question at
about 10h30 you paid him a visit at his house.
[13]
Mr Simane further testified on how you lured the complainant out of
her home on 9 August 2004. You sent her twice to a nearby
shop to buy
you some drinks. On the third occasion you did not wait for her to
return from the shop. You left the complainant's
father pretending
that you were going to see your friend while you were aware that you
were going to persuade the complainant to
go with you to your house.
[14]
You never returned to his house and neither did the complainant.
[15]
Mr Simane further testified that he became concerned when the
complainant failed to turn up and he decided to go to the police
to
report the matter. With the help of the police he managed to track
the complainant down at your house at about 22h30. When the
police
first confronted you about the whereabouts of the complainant you
lied to them, telling them that you did not know where
she was. But
when he and the police entered your house they found the complainant.
The police arrested you and took the child to
the doctor for medical
assistance. Mr Simane observed that his child's face was swollen and
she appeared to him to have been emotionally
affected.
[16]
He testified on how the whole ordeal has affected the complainant's
scholastic performance. The standard of her school work
deteriorated
after this incident and she had to be taken for counselling.
[17]
The complainant testified on how you made her to travel with you to
your place on 9 August 2004 at about 14h00. You started
by sending
her twice to buy you some drinks at the nearby shops. On the third
occasion you sent her to a distant shop. You had
come to visit her
father. On the third occasion you did not await her to return with
the cold drink you had sent her to buy for
you. You met her on her
way home whereupon you deceptively asked her to accompany you to your
house to collect a pair of trousers
which her mother had allegedly
agreed to mend for you. She agreed to do so and boarded a taxi to
your place.
[18]
When you arrived at your place you took her inside your house. You
thereupon closed the door and ordered her to lie down. When
she
refused you started hitting her on the face. She then complied.
Thereafter you ordered her to take her clothes off and when
she
refused
you pulled her pants off and started raping her. She cried. You told
her to keep quiet and threatened her with a knife.
She bled through
the nose and you told her to wash blood off in the bath. You
proceeded raping her until 22h30 when you heard a
knock on your door.
At first you did not respond to the knock. You kept quiet and when
the knock persisted you asked the caller
who it was. When the caller
identified himself as the police it was only then that you opened the
door.
[19]
You told the complainant to hide at the foot of the bed while you
were responding to the knock. Her father and the police
entered the
house and found her inside. The police took her to the doctor for
medical examination. According to the medical report
(J88) on
examination she was found to have bruising and swelling below the
right eye. The doctor concluded that based on his
findings there
were signs compatible with alleged vaginal penetration.
[20]
Under cross-examination by
Mr
Ballem
the
complainant denied that you were under the influence of liquor when
you raped her.
[21]
Constable Zamikhaya Mbali testified on how he, together with the
complainant's parents found the complainant in your house
on 9
August 2004. He testified that after removing the child from your
house he arrested you for rape.
[22]
A report, compiled by the probation officer, was also presented.
It
deals with the complainant's condition before and after the
incident.
At
para 11 of her report, the probation officer based on her
experience,
makes the following remarks:
"Rape
has long-term effects on the victim. In some instances reactions
towards
the effects of this offence manifest later in life, more especially
with young children. Despite the fact that she seems
stable, she
might display behavioral problems such as prostitution, distortion
of one's development of normal pleasure with sexual
activities, and
overprotection of one's children during parenting."
[23]
She accordingly recommends that the complainant be referred for
therapeutic counselling.
[24]
I now turn to consider the interest of the community. Rape is a very
serious offence and is on the increase these days. And
it is for
this reason that Parliament has seen it fit to enact legislation
prescribing minimum sentence for rape. The message
is clear. Society
must be protected against people who commit serious offences such as
rape.
[25]
In
S
v
Chapman
[1997] ZASCA 45
;
1997
(2) SACR 3
the SCA has had an occasion to consider the impact and
ills which the crime of rape brings to the victim. What was said by
the
SCA in this case is very instructive. At page 5 A-E the
following was 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 defensible
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 tranquility
of their
homes without the fear, the apprehension and the insecurity which
constantly diminishes the quality and enjoyment of
their lives...
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."
[26]
I am in full agreement with the views and sentiments expressed by
the SCA in this case.
[27]
Turning to the facts of the present case, it is clear that you were
in a position of trust. The complainant's family trusted
you. The
complainant also trusted you as a friend of her parents. She always
thought she was in safe hands while under your care.
You breached
that trust relationship which existed when you violated her dignity
and womanhood. Your conduct displayed a total
lack of
"Ubuntu".
Within
the context of the spirit of
Ubuntu
"your
child is my child and my child is your child". Perhaps it is
more apposite to refer to the remarks made by
Mokgoro
J
in
S
v Makwanyane and Another
[1995] ZACC 3
;
1995
(3) SA 391
(CC) at para 308 where the following was said regarding
notion of
Ubuntu:-
"Generally,
ubuntu
translates
as 'humaneness'. In its most fundamental
sense
it translates as personhood and 'morality'. Metaphorically, it
expresses itself in
umuntu
ngumuntu ngabantu,
describing
the significance of group solidarity on survival issues so central
to the survival of communities. While it envelops
the key values of
group solidarity, compassion, respect, human dignity, conformity to
basic norms and collective unity, in its
fundamental sense it
denotes humanity and morality. Its spirit emphasizes respect for
human dignity, marking a shift from confrontation
to conciliation."
[28]
The question is whether there are substantial and compelling
circumstances in this matter which would justify imposition
of a
lesser sentence than the prescribed life imprisonment.
[29]
I was urged by
Mr
Ballem
to
find that there are substantial and compelling circumstances in this
matter. He cited the fact that you were drunk and that
you are now
HIV positive as constituting substantial and compelling
circumstances.
Mr
Badenhorst
for
the State argued otherwise.
[30]
I have fully considered your personal circumstances and weighed them
against the nature of the offence and the interest of
the community.
In my view they do not constitute substantial and compelling
circumstances. What makes this case even more worse
is the fact that
you were the complainant's family friend and because of this
relationship an element of trust had developed
between you and the
complainant. You violated the dignity of your friend's child. She
regarded you as a father and was entitled
to feel safe and secure in
your presence. You physically and emotionally assaulted her and her
cries and pleas for help landed
on deaf ears. She went through a
traumatic experience from 14h00 until 22h30 when she was rescued
from you by her father with
the help of the police.
[31]
Women and children must be protected against the offences of this
nature and it is the duty of the Court to do so. This can
only be
done by imposing appropriate sentences on perpetrators who are found
guilty of these offences.
[32]
It is accordingly my view that the prescribed minimum sentence will
be an appropriate sentence in this case having regard
to the absence
of substantial and compelling circumstances.
[33]
In the result you are sentenced to life imprisonment.
ZONDI,
AJ