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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case Number: A201/2019

A L                                                                                                      Appellant

and

THE STATE                                                                                    Respondent

CORAM: MBHELE, J et MOLITSOANE, J

JUDGEMENT BY: MBHELE, J

HEARD ON: 3 FEBRUARY 2020

DELIVERED ON: 9 APRIL 2020

 

[1] The appellant, following his plea of guilty, was convicted by the Regional Magistrate, Hoopstad, of 2 counts of rape of  two 14 years old twin sisters. He was sentenced to life imprisonment on 13 November 2018 on each count. The appellant is the complainants’ biological father. Aggrieved by the sentences, the appellant exercised his right to automatic appeal, due to the sentence of life imprisonment imposed, and approached this court on appeal.

[2] The offences took place on 03 March 2018.  The appellant drove with the complainants to Smithkraal farm in Hertzogville where he drank until very late that evening. He thereafter had non-consensual sexual intercourse with the complainants one after the other. The following morning he apologised to the complainants for his conduct.

[3] In his notice of appeal the appellant contended that the court a quo erred by not finding that there are substantial and compelling circumstances warranting deviation from the prescribed minimum sentence of life imprisonment and further that he was a first offender.

[4] Before us, Ms. Kruger, counsel for the appellant, submitted that the absence  of physical injuries on the complainants and  the victim impact reports detailing the extent to which the complainants were affected by the incident called for deviation from the prescribed sentences. She contended further, that excessive consumption of alcohol by the appellant mitigates against the imposition of the prescribed sentences.

[5] The issue in this appeal is whether the trial court erred in concluding that there were no substantial and compelling circumstances present that justified the imposition of a lesser sentence than the prescribed minimum sentence of life imprisonment for the rape of a child under the age of 16.

[6] Before us, Mr Steyn, counsel for the respondent, conceded that the court a quo should have found that the appellant’s remorse and guilty plea  constituted substantial and compelling circumstances justifying a departure from the prescribed minimum sentences.

[7] The sentencing powers are pre-eminently within the judicial discretion of the trial court, the court of appeal should be careful not to erode such discretion. The court sitting on appeal will interfere if the sentencing court exercised its discretion unreasonably or in circumstances where the sentence is adversely disproportionate. See S v Rabie 1975 (4) SA 855 (A) AT 857 D-E also S v De Jager and Another 1965 (2) SA 616 (A)

[8] In S V Pillay 1977 (4) SA 531(A) at 535 E-F the court said the  following  regarding an appeal against sentence:

"as the essential inquiry in an appeal against sentence, however, is not whether the sentence is right or wrong, but whether the Court in imposing it exercised its discretion properly and judicially, a mere misdirection is not by itself sufficient to entitle the Appeal Court to interfere with the sentence; it must be of such a nature, degree, or seriousness that it shows, directly or inferentially, that the Court did not exercise its discretion at all or exercised it improperly or unreasonably. Such a misdirection is usually and conveniently termed one that vitiates the Court's decision on sentence. That is obviously the kind of misdirection predicated in the last quoted dictum above: one that "the dictates of justice" clearly entitle the Appeal Court "to consider the sentence afresh".

[9] The fact that the Constitution regards a child’s best interests as of

paramount importance must be emphasized. It is the single most important factor to be considered when balancing or weighing competing rights and interests concerning children. All competing rights must defer to the rights of children unless unjustifiable. Whilst children have a right to, inter alia, protection from maltreatment, neglect, abuse or degradation, there is a reciprocal duty to afford them such protection. Such a duty falls not only on law enforcement agencies but also on right thinking people and, ultimately the court, which is the upper guardian of all children. See De Reuck v DPP WLD 2003 (1) SACR 448 (WLD)

[10] In S v Abrahams 2002 (1) SACR 116 (SCA) Cameron JA remarked as follows with regards to sexual violation of minor children in the domestic sphere:

“of all the grievous violations of the family bond the case manifests, this is the most complex, since a parent, including a father, is indeed in a position of authority and command over a daughter. But it is a position 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.”

[11] It is clear from the above dicta that the rape of minor children must be viewed in a serious light, worst if committed by those entrusted with the care and safety of the child. Sexual violence against children evokes communities’ indignation and often prompts them to resort to self-help to keep their children safe. Home is supposed to be a place where children are cared for and protected. It is considered a sanctuary and a place of safety.

[12] The trial court correctly considered the appellant’s personal circumstances and found no weighty justification to depart from the prescribed minimum sentence. There was nothing unique about his personal circumstances. He was 42 years of age at the time of sentencing, married with six children. His current wife is not the complainants’ mother.

[13] The appellant went drinking with his own children. He raised the complainants single handedly after separating with their mother who had not had contact with her daughters. The appellant remains the only parent that the complainants have and yet he failed to play the role that he was entrusted with. The appellant held the position of power and authority over the complainants and abused it.

[14] The complainants were violated by someone they trusted at a place they called home, a place that was supposed to be their sanctuary. They had nowhere else to run to. The form of violence they endured took away their innocence. Instead of being properly nurtured they were forced to tend to the appellant’s insatiable desire for sex.  I cannot imagine how the second complainant felt when she had to watch her sister being violated by her father while awaiting her turn.

[15] The sexual abuse in domestic sphere often goes undetected and unreported because the victims are forced to choose between maintaining the family unity and seeking justice. More often they are left with a burden of seeing their predator daily, disguise the pain and pretend like everything is in order.

[16] Ms. Kruger contended that absence of injuries on both complainants warrants deviation from the prescribed minimum sentences.

Section 51(3) (aA) of the Criminal Law Amendment Act, No. 105 of 1997  reads:

“(a A ) When imposing a sentence in respect of the offence of rape the following shall not constitute substantial and compelling circumstances justifying the imposition of a lesser sentence:

(i) The complainant's previous sexual history;

(ii) an apparent lack of physical injury to the complainant;

(iii) an accused person's cultural or religious beliefs about rape; or

(iv) any relationship between the accused person and the complainant prior to the offence being committed.”

[17] It is clear from the above that the absence of physical trauma cannot in isolation be regarded as the substantial factor warranting deviation from prescribed sentences. It must be considered cumulatively with other factors. Rape is on its own an act of violence. Most rapes succeed with victims uninjured because victims succumb upon threats of violence from the perpetrators. The complainants might have not suffered physical injuries but the pain of being violated by the man they trusted will remain with them for a long time into the future. The memory of this ordeal will endure with them for the rest of their lives.

[18] In S v Malgas 2001 (1) SACR 469 SCA  it was held  that courts are required to regard the prescribed sentences as “being generally appropriate’ for crimes of the kind specified and enjoined not to depart from them unless they are satisfied that there is weighty justification for doing so.

[19] Punishment must be proportionate to the offence. There is no doubt that the appellant committed very serious offences. When weighing up the mitigating factors against the aggravating circumstances, this matter as well as the interest of community, I am not persuaded that the sentences imposed are unjust.  I am of the view that the trial court exercised its discretion judiciously.  There is no justifying cause for us to interfere with the sentences. The appeal ought to fail.

 

ORDER

[20] The following order is made:

The appeal fails and sentences are confirmed.

 

 

______________

N.M. MBHELE, J

 

 

I concur.

                                                               _________________

P.E.MOLITSOANE, J

 

 

On behalf of the appellant: Ms. S. Kruger

Instructed by:

Justice Centre

BLOEMFONTEIN

On behalf of the respondent: Adv. Steyn

Instructed by:

Director: Public Prosecution

BLOEMFONTEIN

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