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[1994] ZASCA 151
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S v S (658/93) [1994] ZASCA 151; [1995] 4 All SA 368 (A) (8 November 1994)
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CG
CASE
NUMBER: 658/93
IN THE
SUPREME COURT OF SOUTH AFRICA
(APPELLATE
DIVISION)
In the matter between:
G.S.
Appellant
and
THE
STATE
Respondent
CORAM:
NESTADT, VAN DEN HEEVER JJA et NICHOLAS AJA
HEARD
ON:
19 SEPTEMBER 1994
DELIVERED
ON:
8 NOVEMBER 1994
J U D G
M E N T
VAN DEN
HEEVER JA
2
I have
read the judgment of Nicholas AJA but disagree, with
respect, that the magistrate misdirected himself or that the sentence
imposed, (namely 3 years' imprisonment in terms of sec 276(l)(i) of
Act
51 of 1977, plus a further two years' imprisonment
conditionally
suspended)
is inappropriate.
Two versions were tendered to the trial
court of the events underlying the charges brought against appellant.
Complainant alleged
that she
was raped on two occasions by her father, and that she resisted
by struggling and screaming. She was afraid to tell her mother or
grandmother, and his conduct came to light months later when she was
questioned by her sister (apparently on her mother's instructions) as
to
why she was so
withdrawn and wan. Appellant's version, put to L.
by his attorney in cross-examination and preferred by appellant in
evidence, was that it was she who seduced him and sought intercourse,
which they indulged in at her instigation on a number of occasions -
at
least six times,
according to him; and that he put a stop to this when he
3
discovered
that she was prostituting herself since she began demanding
money
from him because of her favours.
The
magistrate's reasons for judgment are perhaps not elegant, but
are
in my view charitable towards appellant in acquitting him of rape on
the basis of a defence that was
not explicitly raised on appellant's behalf.
Although
the magistrate found L. generally to be a good witness,
moreover
corroborated by her mother, and appellant a poor one, he found
her
evidence of the physical resistance she offered to be exaggerated; so
that the reasonable
possibility existed that appellant may not have
appreciated
that she was an unwilling party to his activities. It follows
that
he found that the state had not established beyond reasonable doubt
that appellant (who was under the influence of liquor on the
first
occasion to which she
testified) had the requisite mens rea for rape. His
finding
that appellant was a poor witness, and his rejection of appellant's
tale of seduction by his
daughter, are amply justified by the record. On
his
own evidence it is clear that he made the first sexual advance
towards
4
her.
The evidence elicited from his wife by his attorney in
cross-
examination
corroborated complainant in material respects. The picture
of
appellant that emerged, is one of a self-centred bully who imposes
his
will by force on the
family he maintains inadequately when obedience is
not
forthcoming voluntarily.
I list the
more important facts which have a bearing on the question of
sentence.
I
have already mentioned that appellant corrupted his daughter, not
she
him. Although his attorney put it to complainant in cross-
examination
that she started being provocative and exposing her breasts
to
her father (which she vehemently denied) his own evidence did not
support this. In the
cramped quarters where privacy was impossible, all
the members
of the family were accustomed to washing themselves
without
benefit of that privilege. His evidence in chief reads:
"MNR
WEBER: Hoe het dit gebeur dat u en L.
gemeenskap
gehad het? --- Dit was in die tyd, as ek in die
aande
by die huis kom, dan maak sy vir my gewoonlik tee
5
want
ek kry nooit gewoonlik my vrou by die huis as ek by
die
huis kom in elk geval nie. Dan net sy altyd my kos
voorgesit,
my tee gebring. Nes ek klaar geëet net dan gaan
lê
ek op die bed, dan bring sy my tee. Soos ek gesê het,
my
vrou was maar altyd, gewoonlik nooit by die huis nie en
toe
het sy een aand begin was, verstaan, en dit is toe net
daar,
soos hulle sê, die japon aangetrek en wat sy onder aangehad het
kan ek nie weet nie want hier was net so 'n
knopie
hier en verder hier was alles oop. So het ek dit maar laat aangaan,
verstaan. En so het dit die volgende keer weer
gebeur,
verstaan en toe het dit op 'n stadium gebeur, soos 'n
man
nou maar gewoonlik is, jy sien hier is die besigheid
voor
jou en toe het ek op 'n stadium aan haar bors gevat en
so,
verstaan."
Even
had her conduct been intentionally provocative, this could not
excuse
such reaction on the part of a father.
There
is no suggestion in the record of any "genuine affection on
the
part of (appellant) rather than the intention to use the girl simply
as
an outlet for his
sexual inclinations" (Attorney General's Reference (No
1
of 1989),
[1989] 3 AER 571
, 576 c-d). His own turn of phrase is that
"ek haar maar net gebruik [het]".
6
L.
was a virgin, and her first experience of intercourse, with
her
father, was no tender episode.
Appellant
conceded that he disapproved of complainant's having
any
male friends. "Daar kan niemand gekom bet nie en hy dreig
hulle",
according to Mrs S..
Appellant
is a heavy drinker and also smoked dagga. His wife
says
"(A)s hy gedrink is is hy bale vatterig, hy vat en klou aan
almal".
L. testified
"My sister's friends that used to come there, he used to
interfere with them, like
touch their private parts or whatever. And
mommy
just told them, 'take your friends out of here'. Even my friends
as
well. They were too scared to come in there".
According
to both mother and daughter, appellant was accustomed
to
beating his wife and children. He tried to make light of this. Under
cross-examination he had
given a vague and rambling account of alleged
episodes
where his daughter invaded his bed seeking sex - "ek sal nou
eers weer moet nadink.
Dit sal moes gebeur het... Man dit kan 'n sterk
7
moontlikheid
wees ... Dit moet maar net sy gewees het ..." He then
clutched happily at the straw offered him by the prosecutor, that
possibly
his consumption of liquor accounted for his poor
memory of these
events:
"...
Korrek? â Daar is 'n sterk moontlikheid.
So u kan selfs nie eers met haar stry as sy sê, 'My pa het 'n
bietjie
hardhandig gewerk met my?' ---Ag nee,
daai ou
slaan
stohetjie
. Man, om
eeilik met jou te wees, kyk dit is
my
dogter wat ek die liefste voor gewees het, om eerlik te
wees. Daar sit my vrou, sy kan dit vir jou sê is dit so of is
dit
nie so nie. Sy het gewerk hier onder in Claremont of
hier in Wynberg het sy gewerk. Ek het nooit geweet waar
presies sy
werk nie. Ek weet net sy het gewerk as 'n
verkoopsdame in 'n skoenewinkel. Dit is omtrent al. Toe
kom
sy een aand vreeslik laat daar aan. Ek dink dit was oor
tien ..." (My emphasis.)
And
then the prosecutor interrupted the appellant, (who was so concerned
about his daughter that
he did not even know where she worked) in his
tale
of the "slaan storietjie". He brooked, and so expected, no
opposition
from his
womenfolk. His wife said "Ek het vir horn gevra, dan lag hy,
8
want hy
slaan vir ons as - ". When he was confronted with the
allegation that he had raped L., he challenged them to go to the
police.
When they did, he threatened complainant with violence and "toe
het hy begin te wil slaan aan ons, toe draai ons terug. ... hy het
aan ons
begin
slaan". So they turned back and the police were contacted by
telephone.
Appellant's
evidence as to L.'s moral turpitude in not only
seducing
him but trying to turn her success to financial advantage, is as
poor
as the rest of it; but is very revealing as to both the manner of man
he is, and the total absence of remorse on his part. Appellant's
attorney
had put it
to complainant in cross-examination that she had asked
appellant for R50 to enable her to go to the doctor. She replied
"I
am not denying that but I never asked for the doctor.
He
told me I must ask it for his boss, that he can take it and
he
can drink it out and he used to smoke buttons like the
people
say.
But
now just a minute. Are you then admitting that you did
ask
him for R50? --- Yes, but he told me to ask him. He
told me to
phone the work".
9
Her
version, that he had put her up to getting an advance from his
employer for his own purposes, not hers, has the ring of truth where
the
record
hardly shows her capable of thinking up a story like this on the
spur of the moment. Moreover he volunteered a revealing concession in
cross-examination. In chief he said that he put a stop to her coming
to
his bed where
"ek
maar net vir haar gebruik (net) ... Want sy het - op 'n
stadium
bel sy na my werk toe, toe vra sy geld. Toe gee ek
-
toe bel sy, toe sê ek, 'Wel, ek sal vir jou die geld kry'.
Toe
kry ek vir haar die R50-00. Toe vra ek, 'Wat wil jy maak daarmee?'
Toe sê sy sy wil dokter toe gaan. Toe sê
ek
goed, toe bring ek vir haar die geld, daar is die geld.
Maar
natuurlik het die ma nie gesien ek gee vir haar die
geld
nie, verstaan. En sy is dokter toe. Of sy ooit dokter
toe
gegaan het, ek sal nie weet nie. Ek het nie weer gevra
nie.
En toe het sy weer op 'n stadium ook vir my gebel.
Toe
sê ek nee. Dit is nou al hier van November af tot daai
tyd.
Toe voel ek nee, nee, nee hierdie juffroutjie soek nou
geld
en of sy nou dink ek doen dit nou - ek gaan nou net
geld
gee. Of sy nou dink ek betaal nou, soos dit, toe het ek
sommer
net die ding gestop".
Under
cross-examination this collapsed to fit in far better with the
10
version
she had given when cross-examined. Pressed as to the reason
she gave for asking him for money on the alleged second occasion, he
could not remember.
"En
u besluit toe nou sommer nee, u gaan nou nie meer
geld gee
nie. â Nee reg.
U
moet darem ten minste se wat die rede was, hoekom het
sy
gesê sy wil geld he? â Man ons sal sê dit was op 'n
naweek. Dit was 'n Donderdag. Datums kan ek nie so
mooi
onthou nie, maar ek dink dit was 'n Donderdag.
Was
dit nog in hierdie jaar? â En toe het ek geweet ek
gaan
die naweek, daai naweek gaan ek Mitchell's Plain toe
en ek het
myself geld nodig".
I
disagree that L. should be faulted for "freely exposing her
body
to view". Her father was neither a good provider nor a good
example and spent money that may have eased the accommodation
problems of the family on liquor
and drugs. To suggest that she lacked
modesty
under the circumstances in which she of necessity lived is both
unrealistic and unkind.
In any event appellant did not suggest that it was
seeing
his daughter's body that led him to sin. His version was that she
11
actively
sought intercourse by coming into his bed and arousing him.
So
too I cannot agree that there is no evidence that L. suffered
harm
as a result of her experience. Appellant himself confirms that she
was withdrawn: "Nee,
sy het haar net vreeslik begin - sy net die netnou
gesê
sy het haai eenkant gehou. Sy het nie veel gepraat nie". That
was
in December. In January
things were worse, and he suspected that she
was
pregnant.
The fact that
appellant did not share a bed with his wife, or rather
she with him, was prima facie due to his own habit of getting drunk
at
night. His drinking
problem is a factor to be considered, but hardly a
mitigating factor; and a stint in prison may have as good a prospect
as
any, of "curing" this. According to the social
worker from whom a
welfare
report was obtained at the request of the defence, appellant had -
according to him - given up dagga at the time of the trial. There was
no
suggestion that he had
given up liquor. She told the court that "die
gevangenis beskik oor 'n behandelingsprogram vir alkoholiste en die
12
beskuldigde
kan by die behandelingsprogram ingeskakel word". His
employer, who gave evidence in mitigation of sentence, attempted to
assist him by stating that if appellant were to be discharged "sal
ek een
of twee of drie
mense moet afbetaal ... hy is betroubaar ... Ek kan my
werkswinkel
los by horn, hy sal na alles kyk". However he was honest
enough to admit that appellant drank a good deal though not during
working hours, felt a bit ill or was sometimes still under the
influence on
Mondays but
was nevertheless capable of working
under
supervision
:
"As
die beskuldigde onder die invloed van drank is op
Maandagoggend,
sal u u besigheid in sy
verantwoordelikheid
los? --- Mevrou, ek myself werk fisies
saam
met Greg en ek is altyd langs horn om vir horn te wys
waar
hy verkeerd gaan. So hy is nie so dronk dat hy nie
kan werk
nie."
Appellant's
counsel in argument referred us to a number of
reported
cases dealing with offences of a sexual nature, in each of which
the
court appeared to have dealt with the relevant accused more gently
than appellant was dealt with here. He stressed that in S
v D 1989
(4)
13
SA
709 (T) a sentence of 12 months' imprisonment was set aside where
a
stepfather had been convicted of having indecently assaulted his two
little step-daughters.
Comparison
with other cases - in which the facts are never exactly
the same as those in the matter presently before court - is often a
pointless exercise. I would stress that in S v D, supra, (in which
the
conviction in any
event was not in respect of incest) the sentence was set
aside
because it had been imposed without proper inquiry, not because
it was necessarily inappropriate or excessive (see p 716 I).
In a case
of incest such as we have here it would in my view
ordinarily be both inadequate and inappropriate to impose a wholly
suspended sentence, or one of correctional supervision in terms of
sec
276(l)(h) of Act 51
of 1977. The offence itself is a serious one and
directed against and affecting the family unit. In our case any
attempt
to keep the
family intact would merely extend appellant's opportunity to
repeat his
conduct (which of course also constitutes adultery) which, it
14
goes
without saying, could not be effectively monitored. It would
penalize complainant, who is not prepared to share what family home
there is with appellant any longer. There is nothing to suggest that
appellant, who showed no remorse, is motivated to alter his ways
which
he regards as only
mildly wrong, if wrong at all, since he attempts to
shift all the moral blame onto complainant.
I
confess to no surprise that in South Africa reported judgments on
incest are few, and old. The reason is not that incest between
consanguines has become acceptable to society since the days when
"bloedschande, tusschen
ouders en kinderen bedreven, te meermaalen met
den
dood gestraft (was)" (V.d. Linden 2.7.8) although clearly
punishment
for crimes
generally is not what it used to be. It is an offence almost
impossible to prevent
save by attempts at deterrence; difficult to
discover,
and even more difficult to prosecute successfully, for a number
of
reasons. Where it occurs between a father and his own child, as here,
it constitutes an abuse of power - whether physical, financial
or
15
emotional
- and a betrayal of trust.
The
English case reported in [1989] 3 AER and referred to by my
colleague and earlier herein, quotes (on p 573) the Wolfenden
Committee's report as identifying the function of the criminal law in
the
field of sexual
offences, as being -
"To
preserve public order and decency, to protect the citizen
from
what is offensive and injurious and to provide
sufficient
safeguards against exploitation and corruption of
others,
particularly those who are specially vulnerable
because they
are young, weak in body or mind,
inexperienced
or in a state of special physical, official or
economic
dependence."
A
recognition of the need for the court to have a compassionate
understanding for human frailty
does not in my view extend to instances
where
the selfish exploit or corrupt the weak, since deterrence of others
of like mind is more
often than not the best weapon of the law, though
still
a poor one, to safeguard potential future victims.
16
The appeal
is dismissed.
L VAN DEN
HEEVER JA Concur:
NESTADT
JA)
J U D G M
E N T
NICHOLAS
AJA
:
This
is an appeal against sentence. The appellant, G.S.
,
was charged in the regional court sitting at Wynberg Cape on
two
counts of raping his 17-year old daughter, L.S., in
December
1991 and January 1992. He pleaded not guilty but in a
statement
made in terms of
s 115
of the
Criminal
Procedure Act
51 of
1977
he admitted having
had sexual intercourse with L. on a few
occasions
during November 1991. He was found guilty on two counts
of
incest, which in terms of s 261(l)(d) of the Act is a competent
verdict
on a charge of
rape. Taking the two counts as one for the purposes of
3
sentence,
the magistrate sentenced him in terms of s. 277(1) (i) of Act 51
of
1977 to 3 years imprisonment, and in addition to 2 years
imprisonment
suspended for 5 years on condition that he was not again
convicted
of rape or incest committed during the period of suspension .
S.'s
appeal to the Cape Provincial Division against the sentence was
dismissed, but he was
granted leave to appeal further to this court.
The
facts may be briefly summarized. At the end of 1991 S.
was
staying with his wife and 4 of his 5 children (L., another
daughter
aged 14, and 2 sons aged 11 and 3 respectively) in Mitchell's
Plain.
They lived in two rooms in the backyard of a home belonging to
Mrs
S.'s mother: a garage, in which they all slept, and a small room
which was used as a
kitchen and eating place. There was no bathroom;
4
they all
did their ablutions in the garage.
Giving
evidence for the State, L. said that the first occasion
on
which her father had sexual intercourse with her was on a Saturday
evening in November 1991.
She had been washing herself. Her father
and
small brother, who were also in the room, were apparently asleep.
When she had finished
washing, she dried herself and wrapped a towel
around
her. S. got up from where he had been lying and pulled her on to her
mother's bed and took off the towel. She resisted and
kicked
at
him. She screamed, but he put his hand over her mouth. He forcibly
had intercourse with her.
When he had finished he said that if she told
her mother, he
would just do it again.
The second
occasion was on an evening at the end of January
5
1992.
S. had sent his wife to buy him cigarettes. L. was busy
washing
up in the kitchen. He called to her to make him some tea. When she
took the tea to him he pulled her onto what she called
a
sleeping
chair. He pulled her clothes off and he did what he had done
before.
It
was not until March 1992 (when apparently it was suspected that
she
might be pregnant), that L. told her mother what had happened
to
her. She said she had been afraid to tell her mother -
"I
did not actually know how to tell my mother, because my
mother
is a person ... if you tell her something, it is almost
like
you are telling a lie."
Under
cross-examination she denied that intercourse took place
6
with
her consent. She said that it did not bother her that she washed
herself in her father's presence -
"No,
I mean he is my father. What would he do wrong? I
mean,
my sisters and brothers wash, everybody in front of
him,
even my mother. ... I mean usually I bathe myself in front of
everybody. ... I am used to undressing myself in front of"
him,
dressing myself, ironing. I mean I used to
walk
like that. That was my normal thing ... - all of us used
to
do."
In his
evidence S. said,
"Ek
ontken dat ek haar verkrag net, maar wel ek het gemeenskap met haar
gehad. ... Dit was op 'n paar
geleenthede
... tussen November en Januarie."
He said
that over a period she behaved provocatively towards him. One
7
night
she lay down next to him. She had nothing on. She caressed him
and lay on top of him. He said,
"En
toe het ek maar net vir haar gebruik en daama is sy toe
daar
weg."
This
happened on about 6 occasions between November and January.
The
magistrate's judgment was brief. He said:
"Weens
die tydfaktor, gaan die Hof nie volledige redes gee
nie.
Volledige redes kan gegee word indien dit nodig is, net kort
en
kragtig. Of die Staat se relaas nou korrek is en of die
beskuldigde
se relaas korrek is, hy is skuldig aan bloedskande op
sy
dogter. Die klaagster sê beskuldigde het haar verkrag. Sy was
'n goeie getuie gewees. Die moeder kom en sover soos [sy]
moontlik kan ondersteun sy haar.
Beskuldigde daarenteen het nou
vir
die Hof kom vertel dat die dogter van horn, het horn verkrag,
hy
het haar nie verkrag nie. Hy was duidelik 'n swak getuie
8
gewees
maar dit sal nie help om daarop in te gaan nie, want
natuurlik
is dit bloedskande op sy dogter. Hy word skuldig bevind
aan
twee aanklagte van bloedskande."
It
is apparent from these remarks that although the magistrate
favoured
the evidence of L. over that of the accused, he did not
make
a finding that her version was true and that of the accused was
false: he said in effect
that whichever version was correct, the accused
was guilty of
incest.
Little
guidance in regard to the appropriate sentence for incest is
provided
by South African reported cases or text books. De Wet en Swanepoel,
Strafreg
4th ed, p 282, state only -
"Die
straf berus in die diskresie van die hof, en ons howe
straf
gewoonlik nie so swaar nie."
9
The
learned authors cite three cases in support, but only one of them S
v
M
1968(2) SA 617 (T))
is of a fairly recent vintage. There the accused
had
been found guilty on appeal of incest with his adoptive daughter. He
was sentenced to 3 months imprisonment conditionally
suspended. *
Marais
J said in his judgment at 621 F-G.
|
"Dit
bly natuurlik 'n oortreding wat sterk morele
afkeur
sal geniet en verdien. Die beskuldigde is 46 jaar
oud,
staan in 'n vertrouens-patriargale posisie teenoor die
klaagster,
wat maar 16 jaar oud was, en hy behoort dus sy
verantwoordelikheid
beter te besef het as om horn in so 'n
situasie
en in so 'n verhouding te begewe. Desnietemin,
gesien
al die omstandighede wat nou te voorskyn gekom
het,
is ons van mening dat 'n opgeskorte vonnis reg sal laat
geskied
in hierdie geval."
Reference
may however usefully be made to the English case of
Attorney
10
General's
Reference (No 1 of 1989)
[1989] 3 All ER 571
(CA), in which
the
judgment was given on a reference for review of a sentence of 3
years
imprisonment imposed for incest committed by a father on a
daughter
on the ground that it was unduly lenient. Lord Lane CJ said
that
the question of the appropriate sentence for incest "always
presents
the sentencing
judge with formidable problems" (at 573 g). He observed:
(at
574)
"...
[It] is stating the obvious to say that the gravity of the
offence
of incest varies greatly according, primarily, to the
age
of the victim and the related matter, namely the degree
of
coercion or corruption."
He
distinguished three classes of case:
11
"At
one end of the scale is incest committed by a father
with
a daughter in her late teens or older who is a willing
participant
and indeed may be the instigator of the offences.
In
such a case the court usually need do little more than
mark the
fact that there has been a breach of the law and
little,
if anything, is required in the way of punishment."
Other
classes were cases where the girl has achieved the age of 13,
and
those involving girls under the age of 13.
Lord
Lane CJ then proceeded (at 575 f) to make suggestions as a
broad
guide to the level of sentences in various categories of the crime
of
incest. For present purposes only the first category is relevant -
"(1)
Where the girl is over Jo"
Generally
speaking a range from three years' imprisonment
down
to a nominal penalty will be appropriate depending, in
particular,
on the one hand on whether force was used, and
12
on
the degree of harm, if any, to the girl, and on the other
the
desirability, where it exists, of keeping family disruption
to
a minimum. The older the girl the greater the possibility that she
may have been willing or even the instigating party
to
the liaison, a factor which will be reflected in the
sentence.
In other words, the lower the degree of corruption, the lower the
penalty."
I
do not think that the range of sentences mentioned by Lord Lane CJ
are
necessarily
appropriate in South Africa, but the considerations mentioned
in
this passage are in my opinion matters to which the sentencer should
properly have regard.
On
the question whether force was used in the present case, the
magistrate said when sentencing the accused,
"Daar
was sekere redes voor waarom die Hof u net skuldig
13
bevind aan
bloedskande,
maar dit was baie na aan
verkragting."
(My
emphasis) The magistrate did not disclose the "sekere redes",
and
it is impossible to
ascertain from the judgment why the magistrate
considered the offences were "baie na aan verkragting."
Absent a finding
that
L.'s version was true and the accused's version was false, there
was no basis for such an opinion.
The
magistrate's written reasons for judgment, furnished after the
notice of appeal was filed, did not clarify the matter. He said,
"Aangesien
hierdie 'n appel teen die vonnis is gaan die hof
nie
volledige redes vir uitspraak geen nie. In ex tempore
redes
het die hof daarop gewys dat die klaagster 'n goeie
getuie
was en dat haar moeder haar steun en dat appellant
'n swak
getuie was maar het nogtans appellant aan
14
bloedskande
en nie verkragting skuldig bevind nie. Dit was
geensins
'n geval dat die hof appellant se weergawe as
redelik
moontlik aanvaar het nie. Hoewel appellant nie met
die verweer
gekom het nie, wil dit blyk dat in die
omstandighede
waaronder hulle gelewe het, die vrees wat sy
duidelik
vir haar vader het, dat sy bale minder weerstand
gebied het as
wat sy voorgee en dat appellant wel kon
gemeen
het sy stem toe. Die waarheid lê dus tussen die
twee
weergawes voor die hof wat in beide gevalle die
appellant
nog steeds skuldig aan bloedskande maar nie aan
verkragting is
nie."
It
is difficult to see how the truth can lie between two
irreconcilably
conflicting stones. Nor does the magistrate say what he
found
the truth to be. In these circumstances it seems to me that the
magistrate misdirected
himself when he said that the case was very close
15
to
rape. In the result he did not exercise a proper discretion in
imposing
the sentence
which he did. Consequently this court is entitled to
interfere.
The
question of what is an appropriate sentence in this case must be
approached on the basis that it was not proved that intercourse
took
place without L."s
consent, and that it is reasonably possible that
S.
did not use force to effect his purpose. L. was 17 years old.
She
was accustomed to behave without modesty in the family context,
freely exposing her body
to view. There is a reasonable possibility that
she
was not an unwilling party. There is no evidence that as a result of
her experience L.
suffered any harm, either physically or
psychologically.
16
The
magistrate said in his judgment on sentence:
"Bloedskande
is nie net 'n baie ernstige misdaad nie, maar
is ook 'n niters
laakbare misdaad."
Nevertheless
a court should still, in the words of Holmes JA, have a
compassionate
understanding for human frailty. The fact that the conditions under
which the S. family lived created a breeding
ground
for sexual irregularities (the promiscuous sleeping and bathing
arrangements, and the stimulus provided by a nubile young
girl who
was
wont to display
herself before a 37-year old man, who, it appears, did not
share
a bed with his wife), should not be ignored. His wife said in
evidence, "As hy
gedrink is, is hy vatterig. Hy vat en klou aan almal!"
There
are personal factors which are mitigating. At the age of 37
17
he
had no previous convictions. He had a steady employment record,
and at the time of the trial occupied a responsible position: his
employer
regarded him as
an honest and responsible employee.
The
magistrate did not impose correctional supervision in terms of
s 276(l)(h)
of the
Criminal Procedure Act 51 of 1977
, because he
considered
that such a sentence would be too light. He added:
"...
verder is daar die volgende:
(i)
Appellant speel nie heeltemal oop kaarte en aanvaar voile
verantwoordelikheid nie. Hy probeer dinge in
die beste lig vir
homself stel.
(ii) Hy net
vermoedelik 'n drank probleem.
Die
beste is dus dat die gevangenisowerheid 'n tyd het om
18
hom
behoorlik te kan evalueer en dan op daardie
voorwaardes
los te laat as om hom direk los te laat en bul
dan
moontlik nie die korrekte benadering by sy korrektiewe
toesig
toepas nie. In die geval van appellant is artikel
276(l)(i)
meer gepas om 'n beter persoon aan die
samelewing
terug te gee as artikel 276(l)(h) wet 51/1977."
My
judgment in the case of
Davids v The State
which is also
delivered today discusses the
question whether a sentence of correctional
supervision
may be appropriate in a case of a sexual offence involving
a
child. In my view such a sentence may be appropriate in the
circumstances of the present
case. It does not seem to me that on the
facts as they appear
from the record S.'s removal from the
19
community
is imperatively called for in this case. It is so, that the factor
of
the desirability of imposing a sentence which would avoid family
disruption does not seem
to arise in this case. The family has already
been
disrupted. It appears from the evidence of the mother that since
March 1992, when his offence was disclosed, S. went to live
with
his
mother. L. has said that if her father were allowed back into the
house, she would leave it. On the other hand the family could
be
severely disadvantaged if by
his imprisonment they were deprived of the
support
which would be provided by S. if he continued to work.
I
do not think that the first factor mentioned by the magistrate
(namely, that S. was not
open with the court) militates against the
imposition
of correctional supervision. And his drinking problem would
20
not
be helped by imprisonment. It is more likely that S. could be
assisted if he were placed under correctional supervision. In terms
of s
84(1) of
the Correctional Supervision Act 8 of 1959.
"84.
- (1) Every probationer shall be subject to such monitoring,
community service, house
arrest, placement in employment,
performance
of service, payment of compensation to the
victim
and rehabilitation or other programmes as may be
determined
by the court or the Commissioner or prescribed
by or under
this Act, and to any such other form of
treatment,
control or supervision, including supervision by
a
probation officer, as the Commissioner may determine
after
consultation with the social welfare authority
concerned
in order to realize the objects of correctional
supervision."
In terms
of s 276 A(l) of the
Criminal Procedure Act
punishment
21
shall
only be imposed under
s 276(l)(h)
after a report of a probation
officer or a correctional
official has been placed before the court. What
is
contemplated is a report dealing
inter alia
specifically
with
the question whether the imposition of correctional supervision is
appropriate. No such report is so far available. Moreover the
|
magistrate's sentence was
imposed in September 1992 and in the two
years
which have since passed the whole picture may have changed.
In
my view therefore the following order should be made:
The
appeal is upheld.
The
sentence imposed by the magistrate is set aside.
The
matter is referred back to the magistrate to impose
sentence
afresh after considering a report submitted in terms
22
of
s 276
A(l)(a) of the
Criminal Procedure Act and
any
further
evidence relevant to sentence which may be received
by
the trial court.
HC
NICHOLAS
JUDGE OF
APPEAL