RAPE CASES:

 

S v Abrahams[1]

Facts and the Judgments

 

Here, the SCA overturned the sentence of the High Court (judgment by Foxcroft J) where it was found that the accused who had raped his own 14-year-old daughter was not a threat to society as a whole and that this was a mitigating factor that could be considered in deciding whether or not to impose life imprisonment.  The judgment seemed to say that the fact that the rape had been committed in the family context was a factor constituting “substantial and compelling circumstances” justifying the court’s departure from the prescribed sentence of life imprisonment. 

 

The SCA held that the High Court had materially misdirected itself in imposing a sentence of seven years.  He had erred in failing to take into account the sexual jealousy and possessiveness that, in part, motivated the attack.  The SCA asserted that any suggestion that rape within a family was less reprehensible was untenable.[2]  Foxcroft J had also failed to take into account the extent of damage suffered by the complainant.  The SCA accordingly substituted the original 7-year sentence for one of 12 years.

 

Concerns:

 

While overturned by the SCA, the trend seems to be that judges will find assaults in the familial context to be less blameworthy (see Mvamvu above).  In stark contrast to perceptions of certain sentencing adjudicators, sexual offences committed by close friends, family, or prior spouses can feel more violative to a survivor. 

 

 

S v Mahomotsa[3]

Facts and the Judgments

 

Here, two women under the age of 16 were raped by a 23-year-old man.  Both were raped more than once by the accused.  The second rape had occurred while the accused was awaiting trial on the first count.  During the first rape he had threatened the complainant with a firearm and during the second he had threatened her with a knife. At the High Court, Kotze J firstly listed a number of mitigating factors, which included the fact that the complainants did not lose their virginity as a result of the incidents.  They had already been sexually active, and one of them, although only at school, had sexual intercourse with another person two days before the incident.  In addition, the complainants had not sustained any physical injuries or psychological harm.  The court then held that the following constituted a “substantial and compelling circumstance”:

 

Although there was intercourse with each complainant more than once, this was the result of the virility of a young man still at school who had intercourse with other school pupils against their wishes, and, note, school pupils who had previously been sexually active.  Where one is dealing with school pupils, and where, in addition, it appears that the two girls concerned had already had intercourse before, one really shouldn’t lose perspective, especially not in relation to the first count, which dealt with a complainant who had in any event been naughty a few days earlier and had intercourse with someone else. The injustice which she suffered in this case does not demand an unusually severe sentence.[4]

 

Concerns:

 

Inherent in the reasoning of the High Court is the myth that rape is not traumatic unless there are physical scars and injury, that there are no psychological consequences where a woman was sexually active prior to the rape, and that so-called “rape” is often merely a matter of misunderstood male virility.

 

The SCA held that Kotze J had materially erred in finding that the accused’s “virility” as “substantial and compelling circumstances” for departure from the minimum sentence.[5]  The court disagreed with the factoring in of the complainants’ sexual history in favour of the accused.

 

What the SCA still failed to address were the norms of teenage sexuality inherent in the High Court judgment.  Underlying Kotze J’s judgment is the idea that it is somehow abnormal for teenagers to engage in sexual relations and that they were “naughty” for having done so. 

 

The NPA has criticised the judgment of the SCA based on the fact that the SCA found “substantial and compelling circumstances” to exist in (1) the youth of the accused;  (2) the absence of serious violence; and (3) the fact that the rapes did not fall within the worst category. 

 

This decision has led many judges to now deviate from the prescribed sentence of life imprisonment based on the argument that the rapes do not fall within the worst category.

 

S v Njikelana[6]

 

The Facts and Judgment

 

 

Here the accused was charged and convicted of raping a 16-year-old complainant twice.  In committing the attack on the complainant, he pushed her off a bridge and she was injured, albeit “not seriously.”  The accused used considerable force in raping the complainant. 

 

In finding that a departure from the life sentence was warranted, the court took into account the fact that the accused was “uneducated and unsophisticated,” and had been drinking, that the complainant was not “seriously injured,” her lacerations were “superficial” and in terms of physical injuries, she had “only one small scar on her forehead, which is hardly visible.”

 

 

S v G[7]

 

The Facts and Judgment:

 

The accused was convicted in regional court on a charge of raping a ten-year-old girl and was referred to the High Court for sentencing.  The accused abused his position of trust as a father-figure (he was the mother’s boyfriend) in committing the rape.  Though Borchers J found that the accused showed no remorse for his actions and that trauma persists for the complainant, he found that this “is not among the worst cases of rape that appear before the courts in South Africa.”[8], he found the following to be “substantial and compelling” circumstances justifying a departure:

·       The accused was a first-time offender;

·       the violence he employed “was not excessive, and he therefore did not inflict serious physical injuries on the complainant”; and

·       The accused had already been in custody for two years

 

The judge doubted that these factors “can be said to amount to substantial and compelling circumstances as envisaged by Act 105 of 1997,” however, the judge felt bound by the decisions of the Supreme Court of Appeal (including Mahomotsa, Abrahams, and Rammoko) in which life sentences for rape were not imposed for the reason, inter alia, that “the complainants were not seriously physically injured as no excessive violence was employed.”[9]

 

Concerns:

 

There are many problems with this judgment.  First, it creates a sort of double exception to the minimum sentencing legislation.  Where the court cannot fit the case into the “substantial and compelling” exception, it will look at precedents and if it concludes that this is “not one of the worst rapes” it will avoid application of the minimum sentence.  This befuddled two-pronged test fails to acknowledge that minimum sentences were meant to recognize that all rapes are inherently abhorrent and serious, and those falling into listed offences should as a default be treated as such and subjected to the imposition of a minimum penalty.

 

The judges reference to the violence the rapist used as “not excessive” misses the point that rape, by definition, is excessive force.  Further, the reliance on the fact that the rape did not inflict “serious physical injuries” also fails to recognise the distinct nature of rape whereas the most serious (yet invisible) injuries are often those to the dignity and psychological well-being of women. 

 

S v Mvamvu[10]

 

The Facts and Judgment:

 

This was a decision of the Supreme Court of Appeal.  Here the State appealed an effective 5-year prison sentence imposed on the accused for the multiple rape, abduction and assault of his estranged customary law wife.  Here Mvamvu, who had a domestic violence protection order against him, held the complainant against her will for three days during which he raped her on six occasions before she managed to escape.  Two weeks later he forcibly removed the complainant from her home and again assaulted and raped her twice.

 

The SCA found that the court a quo had misdirected itself in certain respects of sentencing and so it reconsidered the appropriate sentence.  In finding that substantial and compelling circumstances existed justifying the imposition of a lesser sentence than life imprisonment, the SCA considered as mitigating:

·       that the Complainant and Mvamvu were not strangers and that they had lived together in a customary marriage for a number of years before the rape;

·       there was no evidence that the Complainant suffered any lasting psychological trauma;

·       she only suffered minor injuries;

·       Mvamvu honestly believed he had a “right” to conjugal benefits;

·       Mvamvu grew up and lived in a world of his own, shaped by the norms, beliefs and customary practices by which he lived his life; and

·       it did not appear that the prime objective of the rapes was to do harm to the Complainant.

 

Though the SCA noted that rape is a serious offence, it was not convinced that this case warranted the imposition of mandatory life imprisonment.

 

Concerns:

 

In addition to some of the concerns about the stereotypes discussed above, there are a number of other important concerns arising from this judgment, which one author has termed a “retrograde step” for the recognition of marital rape.

 

S v Swart[11]

 

Facts and finding

The accused had been convicted of housebreaking with intent to rape, two counts of rape and two counts of indecent assault. There was evidence that the accused had been heavily under the influence of alcohol. Substantial and compelling circumstances having been found to   exist, the trial Court took into account that unless the accused was cured of his drinking problem he might well offend again when he was released from prison, that it was doubtful whether a sentence of imprisonment would convey the message to those of the general public who drank heavily that they would be imprisoned if they committed rape while heavily intoxicated and that retribution was a worthless and perhaps primitive objective if it left the offender unrehabilitated, and society as a result in danger on his release from prison. The accused was sentenced to seven years' imprisonment, suspended on various conditions, inter alia relating to his treatment for alcohol abuse and including a three year period of correctional supervision.

 

In an appeal against sentence by the State the SCA held as follows:

Held, that the sentence imposed on the accused had been directed towards curing the accused of his drinking problem, while the grave crimes that he had committed had faded far into the background. The trial Court had been materially misdirected in the approach that it took. In the case of serious crimes society's sense of outrage and the deterrence of the offender and other potential offenders deserved considerable weight. Amongst the permissible sentencing options that the Legislature had made available to the courts, imprisonment was pre-eminently designed to fulfil those purposes and it was not open to a court to dismiss it perfunctorily, as the trial Court had been inclined to do. The result in the present case had been that the sentence imposed had been startlingly inappropriate and the misdirection allowed the Court on appeal to reconsider the sentence.

 

Held, further, that while the accused's state of intoxication was also a consideration to be taken into account in determining a proper sentence, it was not one that could be permitted to obscure the gravity of the crimes.

 

Held, further, that the offences, taken together, in the circumstances warranted a sentence of 12 years' imprisonment. Taking into account that the respondent had been imprisoned for 21 months while awaiting trial, and that he had already served a substantial portion of the sentence of correctional supervision that had been imposed by the trial Court, the appropriate sentence to be served by the accused was imprisonment for eight years.

 

Concerns:

From a reading of the facts (not the summary above but what actually happened) and from the impact that the acts had on the victim who stated that “I had no confidence in myself.  I have not been able to work.  I have not been able to look for work, I could not bring myself to it.  In the first few weeks after it if I went outside I wore dark glasses.  I wore this skirt that I am wearing today.  I hardly go anywhere without it because it covers me up.  I did have a breakdown within the Lynnmed.  I could only stay in for a week because our medical aid, we did not have enough money on our medical aid.  I have been on Prozac and I have been on Urbanol.  I had to give those up because our medical aid ran out towards the end of the year.  When my husband was having to work the shifts that he started that night I was lying in bed with every light in the flat on with all my clothes on, with three kitchen knives and my husband’s gun in the bed.  That is how badly I felt.  I was a wreck”.

Notwithstanding the victims suffering the SCA took into affect the 21 months spent by the accused awaiting trial in delivering a sentence wholly inappropriate to the crimes committed and in direct contrast to the minimum sentence prescribed under Part I of Schedule 2.

 



[1] 2002(1) SACR 116 SCA.

[2] Ibid. at 124g-125g.

[3] 2002 (2) SACR 435 (SCA).

[4] Translation of the Women’s Consortium from the Afrikaans original.

[5] Mahomotsa, supra note 20 at 442d-f.

[6] 2003 (2) SACR 166 (C).

[7] 2004 (2) SACR 296 (W).

[8] Page 299.

[9] Ibid. at 299.

[10] 2004 SCA (Case No: 350/2003).

[11] 2004 (2) SACR 370 (SCA).