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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GQEBERHA)
CASE NO.: CC 37/2023
In the matter between:
THE STATE
and
[P... ] [J... ] M[...]
JUDGMENT ON SENTENCE
GQAMANA J
[1] The accused has been convicted of more than 700 counts of rape, sexual
assault, sexual grooming, human trafficking, possession, production, and procuring
of child pornography and exposing child ren and a person with mental disability to
pornography. These are all serious offences, individually and collectively. It is now
the time for the court to sentence the accused for his actions. In consideration of an
appropriate sentence, the court has to take into account the well known triad factors,
namely, the accused personal circumstances, the nature of the offences and the
interests of society. In doing so, the court should strike a balance and avoid over -
emphasising one and under -emphasising the o ther.
[2] Section 51(1) of Act 105 of 19971 provides for the imposition of life
imprisonment for rape because in this case the victim was under the age of 16 years
at the time. The sentencing court is required to impose the prescribed sentence
unless if i t finds that there are substantial and compelling circumstances which justify
a lesser sentence.
[3] In S v Malgas,2 the SCA emphasised that the prescribed sentences must not
be departed from lightly and for flimsy reasons, there must be truly convincing
reasons for imposing a lesser sentence. If the prescribed sentence is
disproportionate to the part icular offence, the court may deviate and impose a lesser
sentence.
[4] Starting with the rape offences, in Bailey v S,3 the SCA expressed concern
about the fact that the rape of young girls by their fathers have 'emerged insidiously
in recent times as a malignant concern 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. '
[5] The effect ofrape was d escribed by the SCA in Modau v S,4 as follows:
" ... rape is undeniably a degrading, humiliating and brutal invasion of a
person's most intimate, private space. The very act itself, even absent any
accompanying violent assault inflicted by the perpetrator is a violent and
traumatic infringement of a person's fundamental right to be free from all
forms of violence and not to be treated in a cruel, inhumane or degrading
way."
1 Criminal Law Amendment Act.
2 2001 (1) SACR 496 (SCA).
3 2013 (2) SACR 533 (SCA) at par 13.
4 2013 (2) SACR 292 (SCA) at para 17.
[6] Further, in Director of Public Prosecutions, North Gauteng v Thabethe,5 the
SCA held that:
"rape of young women has become cancerous in our society. It is a crime
which threatens the very foundation of our democracy, which is founded on
protection and promotion of the values of human dignity, equality and the
advancement of human rights and freedom. It is such a serious crime that it
evokes strong feelings of revuls ion and outrage amongst all right -thinking and
self-respecting members of society. Our courts have an obligation to impose
sentences for such a crime, particularly where it involves young, innocent,
defenceless and vulnerable girls of the kind of which ref lect the natural
outrage and revulsion felt by the law -abiding members of society. A failure to
do so would regrettably have the effect of eroding the public confidence in the
criminal justice."
[7] Similarly human trafficking is a dehumanising crime that reduces people to
commodities. It is also one of the most serious offences in our South African law. In
recognition of the prevalence and seriousness of human trafficking, the legislature
has also prescribed heavy penalties in terms of section 13 of Act 7 of 2013 that the
court may impose. Such penalties range from 10 years' imprisonment up to the
maximum of life imprisonment, as well as the fine not exceeding R 100 m.
[8] The child pornography offences are also serious and prevalent in our country,
to the extent that legislation with the purpose of curbing child pornography was
passed by the legislature. Pornography strikes at the dignity of children; it is harmful
to children who are used in its production. The degradation of children through child
pornog raphy is a serious harm which impairs their dignity and contributes to a culture
which devalues their worth.6
[9] I now tum to the accused's personal circumstances. He is 56 years of age. He
was unmarried but was in a cohabitation relationship with the mo ther of his children.
5 2011 (2) SACR 567 (SCA) at 577 G -I.
6 De Reuck v DPP (WLD) and others 2003 (12) BCLR 1333 (CC) at pa ra (63).
He sired three children from that relationship. Prior to his arrest, he was gainfully
employed. He was the sole breadwinner and had provided relatively well financially
for his family. His children were attending private school. His o wn mother is an
elderly person of 86 years of age and he was also financially responsible for her. He
is a first offender. He suffers from at least 6 known chronic illness and his health has
deteriorated even more while incarceration. He has been in custod y since 01
September 2022 awaiting trial. His family has been scattered since his arrest and his
children are in foster care. His partner has moved on with her life. He has shown no
remorse.
[10] Regarding the nature of the offences, it has been indicated above that rape of
children has become a pandemic in our country. What aggravates this case even
more is that the accused was the father of the victim. Further the victim was unde r
the age of 16 years at the time when the accused sexually abused her. The victim
gave detailed evidence of the psychological sequelae suffered by her as a direct
result of the accused's conduct. Despite the time period which has passed since
these offenc es were committed, but she still has nightmares and has developed
phobias. It is evident from her statement and the letter addressed to the accused that
her life has been ruined permanently. At times she resorted to harm herself by
cutting her body with a razor and only when she saw blood dripping that it daunted
her that she still has feelings. There were times that she also used psychoactive
drugs such as alcohol and illegal drugs to find solace. Although she had attended
professional counselling sessions she appeared extremely emotional about her
sexual abuse at the time she gave evidence in the main trial and even yesterday.
[11] In imposing a sentence, the court must also consider the interests of society.
Through the provisions of section 51(1) of Act 105 of 1997 as amended, the
legislature has prescribed the minimum sentence of life imprisonment for rape
because the victim was under the age of 16 years at the time she was sexually
abused. The deviation from the prescribed sentence may be justified if the court
finds substantial and compelling circumstances.
[12] Mr Erasmus, counsel for the accused submitted that the accused's personal
circumstances, his age, his health condition, the fact that he is a first offender, the
period in custody awaiting trial and the fact there was no actual intercourse
considered cumulatively amounts to substantial and compelling circumstances and
as such the court would be justified to impose a lesser sentence.
[13] In S v Malgas, ( supra ) Ponnan JA, held that the prescribed sentence must not
be departed from lightly and for flims y reasons which could not withstand scrutiny.
There must be truly convincing reasons which justify a lesser sentence. The accused
committed heinous offences. As it was submitted by Ms Cerfontein that, the accused
was in a position of trust because he was t he father of the victim. Instead of
protecting her, he sexually abused her. He exposed his children to child pornography
from an incredibly young age. Through the accused's action, his children are
scattered and are in foster care.
[14] Rape is an appal ling and outrageous crime which violates a woman's body
which is sacrosanct. In this case the seriousness is compounded by the age of the
victim and the relationship of the accused to the victim. The accused occupied a
position of power in relation to his daughter. In S v Abrahams7, the SCA stated that:
'Of all the grievous violations of the family bond the case manifests, this is the
most complex, since a parent, including the father, is indeed in a position of
authority and command over a daughter. But i t is a po"sition to be exercised
with reverence, in a daughter's best interests and for her flowering as a
human being. For a father to abuse that position to obtain forced sexual
access to his daughter's body constitutes a deflowering in the most grievous
and brutal sense. That is what occurred here, and it constituted an egregious
and aggravating feature of the accused's attack upon his daughter'
[15] These remarks apply equally here. Where a rapist's victim is within his family,
she deserves like any me mber of the public protection against the rapist. On most
occasions these incidents within the family nucleus remain concealed. Like in this
case, the sexual assault of the victim was concealed for lengthy period of time. But
at the end, the accused's evil s and horrific crimes were exposed.
7 2002 (1) SACR 116 (SCA)
[16] Ms [D] testified on the psychological effects caused by her sexual abuse. As
mentioned earlier above that, even yesterday she had to contain herself and be calm
as far as possible under the circumstances. The pain and anguish she had to endure
as a result of the accused's conduct is evident from exhibits "X" and "Y". On the
hand the accused showed no remorse at all. Even at this late hour of the
proceedings, he maintains his innocence. Without remorse, rehabilitatio n is
impossible. The sentence that I intend to impose would serve as a deterrence and
retribution and hopefully it would also shout out to society that the courts do not
tolerate sexual abuse of any kind. There would be no mercy to those who sexually
abuse children and women. Those who perform such perverse acts of terror would
be punished severely.
[17] Having considered the mitigating and aggravating factors, the evidence of the
victim and all the circumstances of this case, it is my conclusion that there are no
substantial and compelling circumstances which justify a deviation from the
prescribed sentence.
[18] With regards to the human trafficking offences, section 13 of Act 7 of 2013,
sets out the penalties for contraventi on of any of the offences under this chapter. It
prescribes the following sentences which a court may impose:
(a) a period of imprisonment including a life imprisonment or a fine not
exceeding R 100 m or both, if a person is convicted of an offence referred to in
section 4(1), or
(b) a period not exceeding 15 years 'imprisonment or a fine or both, if the
accused is convicted of an offence referred to in section 7, or
(c) a period not exceeding 10 years 'imprisonment or a fine or both, if the
accused is convi cted of an offence referred to in section 8(1).
[19] In terms of section 14 of Act 7 of 20138 the factors to be considered by the
court in sentencing a person convicted of the aforementioned offences, include inter
8 Prevention of Combating of Trafficking in Persons Act.
alia , his role in the trafficking proce ss, any previous convictions related to human
trafficking offences, the conditions in which the victim was kept, the physical and
psychological effects the abuse had in the victim, whether the victim was a child and
the nature of the relationship between t he victim and the accused. In this case the
accused was the victim's father. He has no previous convictions of any kind. He
facilitated the sleepover of the victim at the place where she was kept captive and
sexually violated her. The victim was a child. T he psychological effects arising from
her sexual violation on that specific night at Joshua's house by her half -brother is
impossible to divorce it from the entire abuse at hands of the accused within the
context of this case.
[20] Ms Cerfontein submitted that the court should impose the maximum sentence
of life imprisonment in respect of the trafficking in persons offence. However, having
considered all those factors referred to in section 14 as well as the peculiar
circumstances of this case, life imprisonment for the contravention of section 4(1) of
Act 7 of 2013 would be excessively inappropriate and disproportionate to the nature
of the offence.
[21] In relation to the pornography offenc es, the prescribed penalties ranges from
5 years' imprisonment and more. Ms Cerfontein referred me to the judgment by the
Gauteng High Court in DPP, Pretorius v Alberts,9 where it is said:
'In order to ensure appropriate sentencing of those convicted of in volvement
in child pornography acts the crime should be seen not simply as the
possession or distribution of child abuse images but as the sexual abuse,
exploitation, defamation, and impairment of the dignity of all children and the
promotion of the use of child pornography for sexual gratification through the
portrayal of children as acceptable sexual objects.'
[22] In the same judgment, it is said that, 'the online sexual abuse and exploitation
of children is a global crime ' and courts must impose severe sentences for those
convicted of child pornography. It is undeniable that the accused exposed his
9 2016 (2) SACR419 (GP).
children to horrific, explicit and graphic pornographic images. They were exposed to
pornography for a considerable long period of time.
[23] Lastly, had the sexual assault of the victim by her half -brother reported earlier,
she would not have been victimised more. Evidence was that even after she had
reported the rape incident to Louisa, she was again sexually abused.
[24] In conclusion and having conside red all the facts and evidence herein, the
accused is sentenced as follows:
1. Counts 4 - 716 - 5 years' imprisonment on each count.
2. Count 718 - 2 years' imprisonment
3. Count 719 - 15 years' imprisonment
4. Counts 720 - 723 - 10 years' imprisonment
5. Count 726 - life imprisonment
6. Count 728 - life imprisonment
7. Counts 730 and 731 - 10 years' imprisonment on each count
8. Counts 736 -738 - 2 years' imprisonment on each count
9. Counts 739 and 741 - 10 years' imprisonment on each count
10. Count 742 - 5 years' imprisonment
11. Count 743 - 5 years' imprisonment
12. Counts 744 and 745 - 5 years' imprisonment on each count
13. Counts 746 -748 - 5 years' imprisonment on each count.
Further it is ordered that the sentence imposed in respect of all the other
counts shall run concurrently with the sentences of life imprisonment.
Furthermore, in terms of section 103 (1) of the Fi rearms Controls Act 60
of 2000, the accused is deemed unfit to possess a firearm.
In addition, the accused's name must also be entered into the Register
of Sexual Offenders.
N GQA MANA
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the State : Adv I Cerfontein
Instructed by : Director of Public Prosecutions
Gqeberha
Counsel for Accused : Mr D Erasmus
Instructed by : Legal Aid South Africa
Gqeberha
Heard on : 23 April 2025
Judgment delivered on : 24 April 2025