SCA finds “disproportionately high levels of violence against women and children” in South Africa

Director of Public Prosecutions, Grahamstown v TM [2020] ZASCA 5

Date of judgment: 12 March 2020

Court: Supreme Court of Appeal (SCA)

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Factual background

The respondent was convicted of three counts of rape in terms of section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Act), pertaining to the rape of a child under the age of 16. Section 51(1) of the Act provides that a person who has been convicted of such an offence shall be sentenced to imprisonment for life unless there are substantial and compelling circumstances to justify a lesser sentence. In the present matter, the High Court had sentenced the respondent to an effective 22 years’ imprisonment, instead of imprisonment for life.

In imposing a lesser sentence, the High Court had regard to the role played by alcohol, finding that “the offence was completely opportunistic and occurred because [the child’s] aunt would be drunk and seemingly unable to decipher what was going on within the house with the child.” The High Court also took into consideration that the respondent, at 31 years old, was a first time offender who had left school in grade 10, who did odd jobs “commensurate with his lack of superior skills and was thus a contributing member of society”. The High Court found these factors to be “meaningful” in light of the many young men who have previous convictions and those who are unemployed.

The issue for determination before the SCA was whether the High Court was correct to depart from the sentence of life imprisonment prescribed by the Act.

Findings by the SCA

In respect of the factors taken into account by the High Court, the SCA noted that “the role of alcohol can hardly be considered as a mitigating factor, let alone a substantial and compelling circumstance when, as here, it was used as cover to facilitate the commission of the offences.” The SCA further noted that the High Court had failed to pertinently list the substantial and compelling circumstances, as it was enjoined to do by section 51(3) of the Act. Instead, according to the SCA, the High Court relied on ordinary mitigating factors, if indeed they could be described as such.

The SCA, therefore, held that the High Court had misdirected itself by failing to spell out and enter into the record the substantial and compelling circumstances relied upon to warrant a lesser sentence than that prescribed by the Act. As such, the SCA was at large to consider the sentence afresh. Importantly, in doing so, the SCA noted as follows:

There can be no greater crime, in my view, than to deprive a child of her innocence, especially a vulnerable child such as the complainant here. This heinous act was not perpetrated by a stranger, but by a person who said he considered the child to be his own daughter. For a child to be violated in the sanctity of the only place she can call home is the most egregious breach of trust. Can she ever feel safe again? Unsurprisingly, the psychologist’s report diagnosed the child with post-traumatic stress. Apart from the fears, the nightmares, the diminished social and scholastic functioning exhibited at the time the report was compiled, there will be long term psychological consequences. It is stated that these will have a negative impact on her psychological growth and psychosexual development into adulthood – no amount of counselling can counteract this. In short, this young girl’s life has been irreversibly damaged.

The reality is that South Africa has five times the global average in violence against women. There is mounting evidence that these disproportionally high levels of violence against women and children, has immeasurable and far-reaching effects on the health of our nation, and it’s economy. Despite severe underreporting, there are 51 cases of child sexual victimisation per day. UNICEF research has found that over a third (35.4%) of young people have been the victim of sexual violence at some point in their lives. What cannot be denied is that our country is facing a pandemic of sexual violence against women and children. Courts cannot ignore this fact. In these circumstances, the only appropriate sentence is that which has been ordained by statute.

Accordingly, the SCA upheld the appeal, and sentenced the respondent to life imprisonment.

The full judgment is accessible (via Saflii) here.

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