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[2024] ZAECELLC 32
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S v A.M and Another - Sentence (CC 27/2022) [2024] ZAECELLC 32 (5 April 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT)
Case
No: CC 27/2022
In
the matter between:
THE
STATE
and
A[…]
M[…]
Accused
1
N[..]
N[…]
Accused
2
SENTENCE
MALUSI
J
:
[1]
It is my onerous task to impose an appropriate sentence after accused
1 has been convicted of
rape of a minor child aged thirteen
(13)
at the time of the commission of the offence and also a count of
sexual assault with two
(2)
incidents involved. Accused
2 has been convicted of the statutory offence of failing to report
the commission of a sexual
offence against a child.
[2]
Due to the nature of the offence in the rape count the provisions of
sec
51(1) of the Criminal Law Amendment Act 105 of 1977 (the Act)
relating to a minimum sentence of life imprisonment are applicable.
The discretionary minimum sentence must be imposed unless
the court
finds that there are substantial and compelling circumstances which
justify the imposition of a lesser sentence.
The court is
required to look at all the traditional mitigating and aggravating
factors and consider the cumulative effect thereof
in deciding
whether substantial and compelling circumstances exist. The
court would be entitled to impose a lesser sentence
if it concludes
that the discretionary minimum sentence is disproportionate to the
sentence which is appropriate. The discretionary
minimum
sentence is however not to be departed from ‘
lightly
and for flimsy reasons’
.
[1]
[3]
Accused 1 is 53 years old. He has nine
(9)
children of
whom five
(5)
are minors. The minor children are in the
primary care of their respective mothers. He was formerly a
police officer
from 2002 until he was dismissed in 2021 after a
disciplinary hearing emanating from the same facts as in this case.
He was
also a pastor at the
United Presbyterian Church in
Mdantsane
. The accused was involved in a five
(5)
year relationship with the complainant’s mother who is accused
2. Though they were formerly married for only for eighteen
(18)
months in that relationship, in my view it is correct to consider the
entire duration of that relationship as having been a marriage
due to
the fact that they conducted it as if a husband and a wife.
[4]
The evidence throughout this trial has clearly indicated that accused
1 was regarded as an upstanding
citizen in the community due to his
position as a police officer and a pastor. He presented a
facade of an ideal citizen
who is law abiding and morally upstanding
as a man of faith. However, the evidence and the submissions
from the legal representatives
clearly indicate that he was a terror
at home. He was physically abusive to his wife and was sexually
abusive to his stepdaughter,
the complainant in this case. He
is currently divorced from accused 2 ostensibly due to the physical
abuse he inflicted.
[5]
Accused 2 is 35 years old. She was 29 years at the time of the
offence. She is a first
born daughter of five
(5)
children. Her mother and her siblings save for one depend on
her for financial sustenance. She is currently employed
as a
Constable in the
South African Police Services (SAPS)
stationed at
Fleet
street police station. She has eight
(8)
years’ experience and earns a nett salary of
R12 000.00 with extra financial benefits depending on the work
allocated
to her. She is divorced from accused 1. She is
a mother of two
(2)
children the complainant in this case and
K[…]
who is currently eleven
(11)
years old.
K[…]
is currently enrolled in Grade 6. The
complainant is in the primary care of her father. The accused
is providing financial
support to her. It is not disputed that
she is a primary caregiver for
[..]
as provided in the
Children’s Act
and numerous court precedents. She
is currently enrolled for a
Bachelor of Education Degree at Fort
Hare University
.
[6]
Dr Fezekile Mgwedli
was called as a witness. He is a
physician with a private practice in
East London
. He
testified that accused 2 has systematic lupus. She had also
contracted
TB
due to her compromised immune system. The
TB
has resulted in lung damage. Her condition is under
control with the current medication prescribed for her. She
faces
a serious risk if she were to be exposed to pulmonary
tuberculosis due to the damage in her lungs and the lupus condition.
[7]
Rape is ‘
an
appalling and utterly outrageous crime, gaining nothing of any worth
for the perpetrator and inflicting terrible and horrific
suffering
and outrage on the victim and her family’
.
[2]
The rape in this case was particularly odious and
abominable as the victim is a stepchild of accused 1who lived in
the
same home as him and the rest of their family unit.
[8]
Without detracting from the horror of rape,
Majiedt
JA
has
made the important point that there are categories of the severity of
rape. This requires that the court assess each
case on its own
peculiar facts and circumstances and the need for proportionality
must never be overlooked.
[3]
[9]
On the aspect of rape within the family unit,
Bosielo JA
writing for a unanimous court stated the following:
“
It
can hardly be disputed that rape of young girls by their fathers is
not only scandalous; it has become prevalent as well.
To all
right thinking people, it is morally repugnant. It has emerged
insidiously in recent times as a malignant cancer seriously
threatening the well-being and proper growth and development of young
girls. It is an understatement to say that it qualifies
to be
described as a most serious threat to our social and moral
fabric.”
[4]
The
court went on to endorse the views expressed in
Abrahams
about a rape of a child by her father constituting ‘
deflowering
in the most grievous and brutal sense’
;
it being ‘
peculiarly
reprehensible and not subordinate in the scale of abhorrence of any
other crime’
[5]
.
There
can be no doubt in anyone’s mind that the law views this
particular kind of rape in a serious light.
[10]
Though less serious, sexual assault is not a minor offence as it has
deleterious effects on the complainant.
The protection of
society and the deterrence of others are important determinants of
the interests of society. The Constitutional
court took
judicial notice of the fact that generally levels of crime are
enormously and unacceptably high throughout the Republic
especially
those crimes in the scheduled categories. [see:
Centre for
Child Law v Minister of Justice and Constitutional Development &
Others
2009 (11) BCLR 1105
(CC) at para 59]. That court was
of the view that public disquiet and anger about the state of affairs
was warranted.
[11]
The interest of society require that the weak and infirm amongst us
must be protected.
Plasket J (as he then was)
has aptly
stated:
“
It
goes without saying that society considers rape, and particularly the
rape of a child as young as the complainant in this case
to be a very
serious matter indeed and one in respect of which a measure
retribution is called for.”
[6]
[12]
It has been held that a just and an enlightened penal policy
considers the victim amongst the range of other
factors. It
gives the victim a prominent role in the sentencing process.
[7]
The consequences of the offences in the present matter
have been devastating on the victim and the
N[…]
family.
Ms
Nomonde Stamper
has prepared a victim-impact report and she also testified in
aggravation of sentence. That evidence has catalogued a slew
of
severe after effects of the rape the most serious being petulant
behaviour, high state of tension, self-isolation, a propensity
to
outbursts of anger, suicide ideation or self-harm, misplaced feelings
of guilt and shame, persistent fear of leaving her home,
anxiety
leading to spates of dizziness and panic attacks, ongoing fear of
males.
[13]
Ms
Stamper
reported that the child was so overcome with anger that
she misguidedly attempted to harm accused 1 by spraying his bed
pillow
with excessive amounts of perfume in an apparent attempt to
cause suffocation due to accused 1 being a chronic sufferer of a
sinus
condition. On another occasion she crushed a high number
of pills into a powder with the intention of mixing this with the
food prepared for accused 1. The complainant has relocated from
her mother and the
N[…]
family and now permanently
resides with her father, stepmother and other members of that
family. Based on the evidence it
is clear that it has not been
a smooth resettlement for her particularly with regard to a difficult
relationship with her stepmother
and half siblings.
[14] It
is clear that the sexual offences have had a serious psychological
and emotional impact on the complainant.
It is further clear
from the evidence by
Mrs Stamper
that the complainant is
devastated by the betrayal by his mother in failing to report the
commission of the sexual offences by
accused 1. This failure
and the subsequent misguided blame of the complainant by members of
the
N[…]
family has psychologically damaged the
complainant.
[15]
The court must acknowledge the fact that accused 2 was herself a
victim of physical abuse by accused 1.
It also appears that the
N[…]
family was heavily dependent on accused 2 for
financial sustenance. However, none of the two aforementioned
considerations
can justify blame being imputed on the child.
The complainant suffered injury on her vaginal area. Bad as the
injuries
were noted in the
J88
, it appears they are within the
range and scope expected of a victim of a rape.
Mrs Stamper
persuasively testified about the need for therapy for the complainant
and her family.
[16]
Ms
B[…] N[…]
had testified about tensions within her
family as a result of the offences in this case and the failure of
accused 2 to report
the offences to the police. The relations
within the family were reported to be strained by
Busiswa
.
The judgment on conviction had alluded to the profound emotional
distress suffered by
Mrs N[...]
. She has continued to
support accused 2, a daughter she clearly loves dearly and the
complainant her granddaughter for whom
it appears she has the same
feelings. She has been seating prominently in the public
gallery for most of the trial.
On numerous occasions she has
been crying silently. It is not hard to imagine the depth of
the heartache and pain members
of the
N[...]
family have
endured as a result of these offences.
[17]
Mr
Skade
, who appeared on behalf of accused 1, submitted that
substantial and compelling circumstances exists to depart from the
discretionary
minimum sentence. He submitted that the personal
circumstances of accused 1 and the other mitigating factors
cumulatively
amount to substantial and compelling circumstances.
He relied in particular on a submission that the December 2018 and 25
August 2021 sexual assaults offences were both opportunistic crimes.
These sexual assault offences and the rape did not result
in any
permanent physical injuries of the complainant. He further
submitted that the psychological impact of all the offences
is within
the range ordinarily expected on a victim.
[18]
Mr Nokhwali,
who appeared on behalf of accused 2, submitted
that a consideration of all the factors relevant in sentencing her
indicate that
she is a candidate for rehabilitation. He argued
that any kind of direct imprisonment will affect not only the
complainant
but her last born child,
K[...]
for whom she is a
primary caregiver. He pointed to the fact that
Mrs Stamper
had highlighted that it is in the best interest of the complainant
that the relationship with accused 2 be mended and improved.
He
argued that a non-custodial sentence would also be favourable to the
complainant. He correctly conceded that she had been
convicted
of a serious offence though a non-custodial sentence was the
appropriate sentence. He highlighted the risk of serious
illness presented if accused 2 were to be incarcerated in light of
her lungs already been damaged according to
Dr Mgwedli
.
[19]
Mr Mgenge
, who appeared on behalf of the
State
,
highlighted that rape was a serious and a prevalent offence in the
Republic
. He argued that a deterrent and a retributive
aspect of sentencing has to come to the fore when considering the
sexual offences.
He submitted that this rape was particularly
abhorrent as it involved a stepfather turning predator on her
stepdaughter.
He pointed out that accused 1 had showed no
remorse as he denied liability forcing the complainant to relieve the
experience by
testifying in court. He particularly emphasised
that the rape amounted to a breach of trust and that the complainant
was
raped in the sanctity of her own home. He stated that the
age gap of 39 years between the complainant and accused 1 was an
aggravating factor. He argued that accused 1 had carefully
planned the offences. He pointed out to the debilitating
effects the sexual offences have had on the complainant. He
argued that the status of accused 1 as a police officer and a
pastor
who must have been viewed as a role model in the community was an
aggravating factor.
[20]
Mr
Mgenge
submitted that accused 2 had betrayed the trust of the
complainant as her biological mother. He pointed out that had
she
acted as required by the law and reported the first sexual
assault in December 2018 when later reported to her the complainant
would have been spared being a victim of the further sexual
offences. As a mother accused 2 had failed to protect the
complainant.
He argued that this was a prevalent offence where
parents and other relatives fail to report the sexual abuse of
children in their
care by members of the family. The message
needed to be conveyed to the wider community that if a person
committed such offences
they would be severely punished. He
correctly conceded that due to the peculiar circumstances of accused
2 a non-custodial
sentence was appropriate.
[21]
I have anxiously considered the issue of substantial and compelling
circumstances. It is imperative
that one disabuses his or her
mind of the evidence relating to all the incidents of sexual abuse
related by the complainant.
One needs to keep in mind that
accused 1 has only been convicted of a single instance of rape and
two instances of sexual assault.
As I stated in the judgment on
conviction I had a strong suspicion that accused 1 had committed all
the year 2020 sexual acts the
complainant related though not proved
to the legal standard. However, in sentencing him I must only
concentrate on the acts
on which he has been found guilty.
[22] I
find myself in the circumstances eloquently described by
Marais JA
in
Malgas
:
“
the
greater the sense of unease a court feels about the imposition of a
prescribed sentence, the greater its anxiety will be that
it may be
perpetrating an injustice. Once a court reaches the point where
unease has hardened into a conviction that an injustice
will be done,
that can only be because it is satisfied that the circumstances of
the particular case render the prescribed sentence
unjust or, as some
might prefer to put it, disproportionate to the crime, the criminal
and the legitimate needs of society.
If it is the result of a
consideration of circumstances the court is entitled to characterised
them as substantial and compelling
and such as to justify the
imposition of a lesser sentence.”
[8]
[23] In
my view to impose the discretionary minimum sentence on the rape
count will be disproportionate and therefore
unjust. I have
considered the type of sentence imposed in similar circumstances by
other courts before coming to the above
decision. However, on
the peculiar facts of this case it appears to me it will be unjust to
impose the minimum sentence on
accused 1. After balancing all
the relevant circumstances in this case it appears to me that accused
1 is not deserving of
punishment with the harshest sentence on our
statute books. I have considered the character of accused 1
albeit that he was
abusive at home, the deplorable circumstances of
the complainant and her family and the interests of society. It
weighed
heavily with me that accused 1 has already been severely
punished by losing his employment and all the other mitigating and
aggravating
factors persuade me that it will be unjust to impose the
discretionary minimum sentence.
[24]
However, rape is such a serious crime that the element of retribution
has to come to the fore. The
interests of society and the
aggravating factors require that a long term of imprisonment be
imposed.
[25]
Likewise, the sexual assault offences are serious offences.
They also require that a term of imprisonment
be imposed. The
court needs to take into consideration that though accused 2 has been
convicted of two
(2)
instances of sexual assault the way the
charge sheet has been framed and his conviction it is clear that they
amount to a single
count though there are two
(2)
different
and separate instances.
[26]
The failure by accused 2 to report the commission of the sexual
offences is likewise a serious offence.
However, the need of
the complainant to rebuild her life by having the relationship with
her mother restored weighed heavily in
my mind. Another
significant factor is that accused 2 is a primary caregiver as
defined in our law. She is also a breadwinner
for the broader
N[...]
family. If she were to be sent to direct imprisonment without
an option of a fine it would have a devastating effect on the
complainant and the rest of the
N[...]
family. The issue of accused 2 ill-health is also a substantial
factor militating against direct imprisonment. I am
alive that
illness on its own does not
per
se
entitle a convicted person to escape imprisonment.
[9]
[27] I
am satisfied that the following are just and appropriate sentences.
Accused 1
:
27.1
Sexual Assault
The accused is
sentenced to undergo five
(5)
years’ imprisonment.
27.2
Rape
The accused is
sentenced to undergo twenty-five
(25)
years’
imprisonment.
Accused 2
:
27.3
Failing to report a sexual offence committed against a child to
the police
The accused is
sentenced to undergo five
(5)
years’ imprisonment
alternatively a fine of five thousand
(R5 000.00)
rand.
T MALUSI
JUDGE OF THE HIGH
COURT
Appearances
:
For
the State:
Advocate
Mgenge
instructed by
Director
of Public Prosecutions
MAKHANDA
For
the Accused 1:
Mr
Skade
instructed by
Workerslife
PGC
House
273
Paul Kruger Street
PRETORIA
For
the Accused 2:
Mr
Nokhwali
instructed by
Private
instructions
TSOLO
Heard:
13,
14, 15 & 16 February 2023
15,
16, 17, 18 & 19 May 2023
12,
13 & 14 June 2023
18,
19, 20 & 21 September 2023
26,
27 & 28 February 2024
04 &
05 April 2024
Delivered:
05
April 2024
[1]
S
v Malgas
2001
(2) SA1222 (SCA) at para 8;
S
v Dodo
[2001] ZACC 16
;
2001
(3) SA 382
(CC) at para 40;
S
v Vilakazi
2009
(1) SACR 552
(SCA) at para 15.
[2]
S
v Nchenche
[2005] ZAGPHC 21
;
2005
(2) SACR 386
(W) at 395H.
[3]
S v SMM
& Others
2013 (2) SACR 292
(SCA) at para 18.
[4]
Bailey
v The State
[2012]
ZASCA 154
(1 October 2012) at para 13.
[5]
S
v Abrahams
2002
(1) SACR 116
(SCA) at paras 17 and 23.
[6]
S
v Nkawu
2009
(2) SACR 402
(ECG) at para 9. Similar sentiments were
expressed in
S
v GK
2013 (2) SACR 505
(WCC) at para 20.
[7]
S
v Matyityi
2011
(1) SACR 40
(SCA) at par 16.
[8]
S
v Malgas
2001
(1) SACR 469
(SCA) at para 22.
[9]
S
v Magida
2005
(2) SACR 491
(SCA) at para 16.