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[2014] ZAWCHC 11
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L.P v S (A492/13) [2014] ZAWCHC 11 (7 February 2014)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO.: A492/13
In
the matter between
L
P
Appellant
versus
THE
STATE
Respondent
JUDGMENT
DELIVERED: 7 FEBRUARY 2014
SAMELA, J
[1]
The Appellant was charged with two counts, Ad count 1, for
contravening Section 3
of Act 32 of 2007, and Ad count 2, Common Law
Crime of Rape.
[2]
The Appellant pleaded not guilty on both counts. After evidence
was led he was
found guilty of contravening Section 12 of the Sexual
Offences and Related Matters Act 32 of 2007 (incest). He was
sentenced
to 6 years imprisonment. He now appeals to this court
against the sentence only.
Legal
Principles
[3]
Section 12 of the Sexual Offences and Related Matters Act 32 of 2007
provides:
“
12 Incest.
[1]
Persons
who may not lawfully marry each other on account of consanguinity,
affinity or an adoptive relationship and who unlawfully
and
intentionally engage in an act of sexual penetration with each other,
are, despite their mutual consent to engage in such act,
guilty of
the offence of incest.
[2]
For the purposes of
subsection (1)-
(a)
the prohibited
degrees of consanguinity (blood relationship) are the following:
(i)
Ascendants and
descendants in the direct line; or
(ii)
Collaterals, if
either of them is related to their common ancestor in the first
degree of descent;
[4]
Mr Sebueng on Appellant’s behalf argued that the court a quo
erred in not taking
into account the following factors when
sentencing the Appellant:
(i)
by over-emphasizing
the offence over the Appellant’s circumstances, consequently,
failed to properly balance the interests
of the community, the nature
of the offence and the offender;
(ii)
failed to attach
proper weight to the Appellant’s personal circumstances;
(iii)
the Complainant
played a role in the commission of the crime of incest in that she
willingly kept on going back to the Appellant’s
place of
residence and both indulged in sexual activities;
(iv)
there was no
evidence in court of the actual effects of this crime (incest);
(v)
the Appellant had
showed true remorse when he testified on mitigation of the sentence;
and
(vi)
the sentence
imposed on the Appellant clearly lacked a blend of mercy and that the
Appellant was punished to a point of being broken,
given the
circumstances in this case.
[5]
Mr Swart argued on behalf of the prosecution that the court a quo
accorded due weight
to all factors raised by the defence. He
submitted further that the appeal against the sentence should be
dismissed.
[6]
In
DPP v Prins (Minister of Justice and Constitutional Development
& two amici curiae intervening
) (369/12)[2012] 106 ZASCA (15
June 2012), the court said:
“
No
judicial officer sitting in South Africa today is unaware of the
extent of sexual violence in this country and the way in which
it
deprives so many women and children of their right to dignity and
bodily integrity and, in the case of children, the right to
be
children; to grow up in innocence and, as they grow older, to awaken
to the maturity and joy of full humanity. The rights to
dignity and
bodily integrity are fundamental to our humanity and should be
respected for that reason alone. It is a sad reflection
on our world,
and societies such as our own, that women and children have been
abused and that such abuse continues, so that their
rights require
legal protection by way of international conventions and domestic
laws, as South Africa has done in various provisions
of our
Constitution and in the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007 (the Act)”.
I
fully agree with the comments made by the court above.
Factual
Background
[7]
From the Record of the Regional Magistrate, the following factors are
clear:
(a)
the Complainant loved having a father figure in her life;
(b)
the Appellant had asked the Complainant via SMS which he sent to her:
“
-
- - if she could sleep with him and have sexual intercourse, and then
she [I] said no”, and said further:
“
-
- - what if I buy you few ciders to calm your nerves . . .”;
(c)
the Complainant testified that the Appellant forcefully had sexual
intercourse with her for the first time one Friday in December
2007
when she came from a social outings with her friends and came home
drunk, fell asleep, and woke up with the Appellant on top
of her;
(d)
the Complainant testified inter alia:
“
-
- - I felt disgusted, I felt violated, to think that I have trusted ,
I trusted my own father after 18 years, after he came to
me and asked
me to give him a chance to be in my life, . . . (crying). I never
went to him, I never asked him to be a part of my
life of 18 years,
and I accepted the fact that he is not part of my life. He is suppose
to be the man, the man that I am suppose
to run to as to protect me.
Do stuff that human beings do not do stuff like that, man. It is
uncivilised, there is no words to
describe what, it is sick! It is
sick. Sick do not even describe it;
-
- -I felt violated by my own father, disgusted, I felt dirty. And I
did not want my family to see that I actually feel that way.
Because
I felt that I
could
deal with it on my own;
-
- - I asked him to stay out of my life, I told him that I do not need
a father not if he could do something like that to me. Not
if he
could rape me and then he said that, - - - he would not stay out of
my life until he destroyed it. And what he meant was
that he would
send SMSs to my friends and family telling them that I actually
agreed to sleep with him;
-
- - I did not know how my family and friends would react and that is
the reason why I did not tell them in the first place. And
I could
not live with my family rejecting me, that was what I thought would
happen;
-
- - Even though, my father had sent the messages to my family, that
wasn’t the only reason why I feared, - - - my father
always
said that, I will never get him out of my life. He will make sure
that he destroys my life. And I was afraid of him. He
took away my,
my power, he took away my self-confidence, he took away everything
and I feared him. I was afraid of him. I was afraid
of what he was
capable of. He threatened my life as well. He told me many times that
he would kill me and then he will take his
own life as well.”
(my own emphasis).
(e)
The Appellant testified inter alia:
“
-
- - It didn’t feel like I kissed my daughter and her response
was that it didn’t feel like she is kissing her father
either;
-
- - We had intercourse every weekend after the first time, we had
intercourse every weekend. And I say the weekend, I am talking
about
from the Friday till the Sunday;
-
- - Behind closed doors we were sort of dating and I say sort of
because we were lovers”.
[8]
I may add the following which were common cause:
(i)
the Complainant is
the Appellant’s biological daughter. The Appellant denied this
and only accepted it when paternity test
results were presented in
court;
(ii)
the sexual
relationship between Complainant and Appellant commenced in December
2007 until the Complainant laid a charge against
the Appellant in
2010;
(iii)
the Complainant and
Appellant communicated via Mxit;
(iv)
sexual intercourse
occurred on many occasions at the Appellant’s house;
(v)
the Complainant did
not tell anyone about the sex with her father;
(vi)
Appellant paid
maintenance for the Complainant, he stopped and consequently was
imprisoned;
(vii)
Appellant
threatened to send an SMS message to her family and colleagues which
read: “I was sleeping with my father and that
I am a father
fuck”.
(viii)
Complainant
attempted to commit suicide on two occasions, 1
st
by using a belt
offered by Appellant and had lost consciousness in the process, and
when she took a lot of tablets and was helped
by a doctor.
Discussion
[9]
The Appellant instead of restoring his “father figure” to
the Complainant
he abused his position by preying on her while he
ought to have set an example to his child. He destroyed the
trust between
a parent and a child. He deprived the Complainant
the right to her dignity, bodily integrity, the awakening to the
maturity,
joy of full humanity, and responsibility The
big age difference should have rung a bell to him that the
Complainant
looked up to him to show her the right direction in
life. He had sexual intercourse with the Complainant over
numerous occasions
over a period of ±3 years. He indeed
had sufficient time to come to his senses. He treated the
Complainant with
contempt, disrespect and disgust. The manner
he handled the Complainant’s suicide attempt was callous in
that he offered
her a belt to hang herself with. He sent SMS
messages to the Complaint’s family and friends describing her
as “
- - - a father fuck”.
[10]
The systemic abuse of women, children and elderly persons in South
Africa has reached an astronomical
level. A loud and a clear
message should be sent to the community that this disgusting conduct
by a father will never, ever
be tolerated by our courts.
[11]
The Appellant had surely suffered emotional distress and probably
will also have emotional challenges/problems
in future. I have
no doubt in my mind that the scar that she received from her father’s
treatment will be an indelible
mark in her life. I am of the
view that she should undergo counselling which will assist her to
cope with such scar in her
life. The incidents will always come
back to haunt her, however, I hope that once she received
counselling, the damage will
not be great. Externally, she
might look alright, but inside her, I believe she is damaged.
[12]
It is easy for us to adopt an arm chair critic approach by asking why
she went back to her father
again and again. That approach begs
an important consideration, namely, the effect of trauma she
experienced during the unfortunate
period of sexual abuse. We
should not lose sight of the fact that the Complainant testified that
she was scared of the Appellant.
Above all, the Appellant had
threatened to take her life as well as his.
[13]
Equally, the Appellant should undergo prison programme/s that deals
with anger and vengeance.
This would assist him to cope with
the unfortunate, disgusting conduct, and that he should not revenge
himself against the Complainant
when he comes out of prison.
[14]
Although she was a “consenting participant”, it was the
Appellant’s responsibility
as her father to take steps to
prevent such a situation from arising and continuing. The
Appellant was not remorseful at
all as he pleaded not guilty and
denied paternity of the Complainant until paternity test was done and
presented in court.
He knew that the Complainant was his child
as he paid maintenance for her.
[15]
The imposition of an appropriate sentence falls entirely within the
discretion of the trial court.
Unless the trial court has
misdirected itself, which misdirection should appear
ex facie
the record, a court of appeal would not lightly interfere with the
sentence imposed by the trial court. See
R v Dhlumayo and
Another
1948 (2) SA 677
(A). In the present case, there
is no misdirection and the sentence cannot be regarded as shockingly
inappropriate.
In all the circumstances, I believe that the
Magistrate was fair in sentencing the Appellant. The sentence,
therefore, does
not appear to be shockingly inappropriate to the
extent that it warrants interference.
Order
[16]
I would propose the following order:
The appeal is
dismissed. The conviction and sentence are confirmed.
______________
_
SAMELA J
I agree
and it is so ordered.
__________________
FOURIE J