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Lawens and Another v S (CA22/2012) [2012] ZAECGHC 61 (15 August 2012)

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9



NOT REPORTABLE


IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)


Case no: CA22/2012

Date heard: 13 August 2012

Date delivered: 15 August 2012


In the matter between


MOOS LAWENS ….............................................................................First Appellant

ERIC BEN FOSSIE …...................................................................Second Appellant


vs


THE STATE ….........................................................................................Respondent



JUDGMENT


PICKERING J:


The two appellants were convicted of rape by Plasket J in the High Court, Grahamstown. They were each sentenced, on 9 June 2008, to undergo life imprisonment. Their applications for leave to appeal against their convictions and sentences only came before Plasket J during April 2011, for reasons which are not necessary to detail here. The applications were dismissed by the learned Judge on 20 April 2011. On 2 August 2011 appellants, on petition to the Supreme Court of Appeal, were granted leave to appeal to the Full Bench of this Division against their sentences only.


In granting leave the Supreme Court of Appeal requested the Full Bench to consider the sentences in the light of S v Vilakazi, a decision of the Supreme Court of Appeal which was delivered on 2 September 2008, namely after the date on which Plasket J had sentenced the appellants. That matter has since been reported as S v Vilakazi 2009 (1) SACR 552 (SCA).


Complainant was, at the time of the incident on Saturday 17 February 2008, 12 years of age. On that day, despite her tender years, she had been drinking with her friends at a place known as Maplank in the district of Cradock and was very much under the influence of alcohol. From Maplank she proceeded with her friends to a farm known as Perledene where her aunt, Letta Williams and her aunt’s partner, whom complainant referred to as her “uncle”, the first appellant, resided together. She arrived at Ms. Williams’s house at approximately 7pm and then left with two young friends.


At some stage in the early hours of the morning, when complainant was on her way back to first appellant’s house, she was accosted by second appellant who was employed on the farm. Despite her screams and her resistance she was dragged by second appellant to a spot behind one of the labourer’s cottages where she was raped. After second appellant released her she made her way to her aunt’s house. According to Ms. Williams she and first appellant, who had earlier been drinking heavily, had gone to bed and were asleep when complainant knocked on the door. First appellant opened it. Complainant was crying and reported that second appellant had raped her. She was wearing only a shirt. Her lower body was naked and she had tied a jersey around her waist to cover herself. Ms. Williams told her to sleep on the small bed which was alongside the bed in which she and first appellant were sleeping. She then went back to sleep. Later in the night she woke up with a start. First appellant was no longer in her bed but was lying on top of complainant on the small bed and was in the process of raping her. When she asked first appellant what he was doing to complainant he swore at her in foul language and threatened to assault her. Because she was scared she did not say anything further. When he had finished raping complainant he again got into the main bed and wanted to have sexual intercourse with Ms. Williams. She refused to allow him to do so.


The following day the complainant left Perledene farm and went to her mother’s home on another farm.


Complainant was examined by Dr. Schutte on 21 February 2007. She recorded that complainant had “bruises over whole body as per diagram – dragged across coarse surface.” Dr. Schutte also testified. Plasket J summarised her evidence in this regard as follows:


Sy het kneusings ingeteken op die diagramme op die laaste bladsy van die vorm op die klaagster se regter bobeen, aan die buite gedeelte en ook voor, aan die linker sy en op die linker bors, op die buite gedeelte van die linker bobeen, op die linker skouer, linker rug onder die skouerblad, op die boude en op al twee elmboë. Toe sy die privaatdele van die klaagster ondersoek het, het sy sekere kneusings bevind, en ook dat die hymen geswel en geskeur was in vyf plekke. Sy het die skeure beskryf as vars skeure en getuig dat dit aanduidend was van penetrasie van die vagina. Sy het ‘n witterige afskeiding opgemerk. Sy het tot die gevolgtrekking gekom dat daar positiewe bewys was van ‘physical and sexual assault’ en verder dat bewys bestaan dat die klaagster verkrag was.


In their testimony both appellants falsely denied having raped complainant.


Two psychological assessment reports on the complainant were compiled by a clinical psychologist Ms. Andrews. In the first assessment report, for the purposes of determining whether complainant required the services of an intermediary, Ms. Andrews stated as follows:


Letitia presented as a thin 12 year old girl. She was notably distracted and anxious during her assessment interview. She was hesitant and nervous in response to questions and testing instructions. She felt very uncomfortable and ashamed when required to answer questions about her experience of having been raped. Her voice trembled with emotion and she became tearful.


In her second assessment report Ms. Andrews stated as follows:


Celia Williams (complainant’s mother) reports that Letitia’s behaviour regressed to that of a pre-school child, immediately after the rape. Letitia was unable to attend to her injuries and her hygiene. She complained that it was too painful to wash in the genital region. She would experience a painful burning sensation. In addition Letitia was unable to dress herself. Her mother had to wash and dress her. ... Celia says about that Letitia since the rape, ‘haar kop is nie reg nie’ whereas Letitia was attentive and obedient before the rape... She does not acknowledge what Celia has just said, nor does she execute the instruction. She has become distracted... She has become jittery and nervous. Prior to the rape, Letitia was highly spontaneous, confident and playful. Letitia described having nightmares about the rape experience itself. Her sleep is restless and disturbed. She experiences alternating phases of feeling very sad and crying when she just sits and stares and loses her interest in her surroundings on the one hand and then on the other, she becomes hyper-active and ‘wild’ ...she is frightened of men.


Ms. Andrews concluded by saying that complainant has been traumatised by the experience of having been raped. Her behaviour regressed to that of a pre-school child after the rapes. This was induced by anxiety in consequence of the rapes. Her cognitive function has been disturbed. According to Ms. Andrews these are some of the typical responses to the experience of having been raped by rape survivors of her age. With her borderline verbal intellectual ability, she is having great difficulty understanding the meaning of the rapes to her and her ability to intellectually re-organise herself is difficult. Her mood swings are another typical response to the experience of rape trauma. Ms. Andrews concludes that the symptoms of the impact of having been raped were severe and psycho-pathological. In her view complainant requires urgent psycho-social attention and treatment. The rapes constitute a significant negative life event in the life of complainant who already lives in poor socio-economic circumstances, and would leave significant scars.


The personal circumstances of the two appellants were fully set out in reports compiled by a clinical psychologist, Mr. Reid.


It can be accepted that first appellant was between forty one and fifty one years of age. He was deprived of a formal education, having left school after Sub A. He has lived his entire life on a farm and the only employment he has known has been that of a farm labourer. At the time of the incident he was earning the meagre amount of R650,00 per month.


He is not a first offender and has a number of previous convictions including convictions for assault with intent to do grievous bodily harm, malicious injury to property and rape, in respect of which latter conviction he was sentenced in 1982 to undergo five years imprisonment of which two years were conditionally suspended. His last previous conviction was in 1986. According to Mr. Reid the indications are that first appellant abuses alcohol, although he denied having drunk more than usual on the day of the offence.


Second appellant is twenty seven years of age. He completed standard six at school, being forced for financial reasons to leave school at that stage. Since then he has been employed as a farm worker and at the time of the incident earned R1000,00 per month as a tractor driver. He has one previous conviction for theft. He too indulges in excessive consumption of alcohol at weekends.


Even after conviction both appellants continued to deny having committed the offence in respect of which each was convicted and, as such, neither shows any remorse for his conduct on the night in question.


In coming to the conclusion that no substantial and compelling circumstances existed such as would justify a lesser sentence than life imprisonment, Plasket J had regard, inter alia, to S v Malgas 2001 (1) SACR 469 (SCA) and S v Mahomotso 2002 (2) SACR 435 (SCA). That he did not refer to S v Vilakazi supra is not surprising as that judgment was only delivered some two months later on 2 September 2008.


In S v Vilakazi supra the following is stated at paragraph 15:


It is clear from the terms in which the test was framed in Malgas and endorsed in Dodo that it is incumbent upon a court in every case, before it imposes a prescribed sentence, to assess, upon a consideration of all the circumstances of the particular case, whether the prescribed sentence is indeed proportionate to the particular offence. The Constitutional Court made it clear that what is meant by the ‘offence’ in that context (and that is the sense in which I will use the term throughout this judgment unless the context indicates otherwise)

consists of all factors relevant to the nature and seriousness of the criminal act itself, as well as all relevant personal and other circumstances relating to the offender which could have a bearing on the seriousness of the offence and the culpability of the offender.’

If a court is indeed satisfied that a lesser sentence is called for in a particular case, thus justifying a departure from the prescribed sentence, then it hardly needs saying that the court is bound to impose that lesser sentence.'


In S v Mqikela 2010 (2) SACR 589 (E) Jones J, with Nepgen and Plasket JJ concurring, stated, after reference, inter alia, to S v Malgas supra and S v Vilakazi supra, as follows at 592i – j:


What is required is that the trial court should test the justice and proportionality of the prescribed sentence by weighing and balancing all factors relevant to the nature and seriousness of the criminal act itself (in the light of the legitimate concerns of society), as well as all relevant personal and other circumstances relating to the offender which could have a bearing on the seriousness of the offence and the culpability of the offender. If that exercise shows that a lesser sentence than life imprisonment would be appropriate, it is not only justified, but bound, to impose the lesser sentence.


The offence of rape has correctly been described as a loathsome one. In S v Chapman [1997] ZASCA 45; 1997 (3) SA 341 (SCA) the following was stated at 344 J - B:


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 civilisation. 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 tranquillity of their homes without the fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives.


In S v Matyityi 2011 (1) SACR 40 SCA Ponnan J referred at 45i – 46b to the unreported Supreme Court of Appeal case of S v De Beer where the following was stated:


Rape is a topic that abounds with myths and misconceptions. It is a serious social problem about which, fortunately, we are at last becoming concerned. The increasing attention given to it has raised our national consciousness about what is always and foremost an aggressive act. It is a violation that is invasive and dehumanising. The consequences for the rape victim are severe and permanent.


In Director of Public Prosecutions v Thabethe 2011 (2) SACR 567 (SCA) Bosielo JA, after referring to what was said in S v Chapman supra, stated as follows at 574 G – I:


It is regrettable that, notwithstanding this observation, the rate of rape in the country has reached pandemic proportions. It is no exaggeration to say that rape has become a scourge or a cancer that threatens to destroy both the moral and social fabric of our society. What is even more disturbing is the emergence of a trend of rapes involving young children which is becoming endemic. A day hardly passes without having a report of such egregious incidents. ... In many instances such young, defensless and vulnerable girls are raped by close relatives ...


At 577g – i the learned Judge continued as follows:


Rape of woman and young children has become cancerous in our society. It is a crime which threatens the very foundation of our nascent 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 revulsion 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 which reflects the natural outrage and revulsion felt by law-abiding members of society. A failure to do so would regrettably have the effect of eroding the public confidence in the criminal justice system.

With those authorities in mind I turn then to deal with the case of first appellant.


It is, in my view, difficult to conceive of a greater breach of trust than that committed by first appellant in raping the complainant. She arrived at his home in the early hours of the morning in a distraught, dishevelled, half-naked state, seeking sanctuary after having been raped by second appellant. She was taken into what she must have imagined to be the safety of her aunt and uncle’s bedroom only to be raped again in the most despicable fashion by first appellant. The emotional trauma thereby occasioned to her was devastating.


It is so that first appellant has led a blameless life since his last conviction for rape during 1982. It is also so that earlier in the evening he had indulged in the excessive consumption of intoxicating liquor. Furthermore, he too has been the victim of a deprived socio-economic upbringing and circumstances. On the other hand, he has consistently denied his guilt and has shown no remorse whatsoever for his despicable actions on the night in question.


In my view his personal circumstances and other mitigating circumstances fade before the enormity of the offence committed by him. When the justice and proportionality of the prescribed sentence is tested in the manner set out in the authorities referred to above there can, in my view, be no other conclusion but that the only appropriate sentence is that of life imprisonment. In the circumstances there is no basis for concluding that Plasket J did not exercise his discretion on sentence in a proper manner.


With regard to second appellant Mr. de Jager, who appeared for both appellants, submitted that a comparison between his record of previous convictions as opposed to that of first appellant revealed a striking disparity that called for a differentiation in sentences between them. He submitted that second appellant’s actions on the night were completely out of character with his behaviour prior to the incident and that his moral blameworthiness was much less than that of first appellant.


It may well be that second appellant’s moral blameworthiness is less than that of first appellant but that, in my view, is irrelevant to the issue of the existence or otherwise of substantial and compelling circumstances in his own case. His actions on the night in question were also reprehensible and despicable. As was pointed out by Plasket J, the 12 year old complainant, who was at the time under the influence of alcohol and in an exceptionally vulnerable state, was set upon by second appellant, dragged over rough ground by him, thus incurring certain physical injuries, and then raped. Second appellant has also consistently denied his guilt and has shown no remorse for his actions.


In the circumstances I am entirely unpersuaded that Plasket J erred in failing to find the existence of substantial and compelling circumstances such as would justify the imposition of a lesser sentence than the prescribed sentence of life imprisonment. In my view, balancing the factors referred to in

the abovementioned authorities, that sentence is a just and appropriate sentence in the circumstances.


Accordingly the appeal of each appellant is dismissed.






__________________

J.D. PICKERING

JUDGE OF THE HIGH COURT

I agree,





_____________________

B. SANDI

JUDGE OF THE HIGH COURT



I agree,





_____________________

N. DAMBUZA

JUDGE OF THE HIGH COURT



Appearing on behalf of appellants: Adv. De Jager

Instructed by: Legal Aid, South Africa



Appearing on behalf of respondent: Adv. Sesar

Instructed by the National Director of Public Prosecutions