S v a

• Jurisdiction: South Africa
• Judge: Findlay AJ
• Judgment Date: 15 December 1989
• Citation: 1990 (1) SACR 534 (C)
• Hearing Date: 21 November 1989
• Counsel: S P Rosenberg for the appellant W A King for the State
• Court: Cape Provincial Division

Findlay AJ:

The appellant was charged with rape before the regional court. He pleaded not guilty and was defended by an attorney. Admissions were placed on record by the defence in terms of s 220 of the Criminal F Procedure Act 51 of 1977, that the appellant was guilty of a contravention of s 14(1)(a) of the Sexual Offences Act 23 of 1957 in that during the period 1985 to 1986 he had sexual intercourse with the complainant on several occasions and that to his knowledge she was, at the time, under the age of 16 years. A plea of guilty to this lesser offence was tendered by the defence but not accepted by the State.

It was common cause at the trial that the complainant was one of a G family of three children who were placed in the foster care of the appellant and his wife (they having four children of their own). On the complainant's version she was allegedly raped several times, whereas on the appellant's version she consented on these occasions to intercourse.

The magistrate found there was a doubt as to the absence of consent and acquitted him of rape, but convicted him of a contravention of s H 14(1)(a) of the Sexual Offences Act. Appellant was then sentenced to two years' imprisonment of which 15 months were suspended for five years on condition that appellant was not again convicted during the period of suspension of contravening the same provision, rape, attempted rape or indecent assault and in respect of which he was sentenced to imprisonment without the option of a fine. His appeal is against the sentence on the ground that it was inappropriate and shocking in the circumstances. Before I the appeal came before the Court for hearing, counsel for the appellant and the State were both notified that this Court wished to consider whether or not the sentence should be increased and that argument should also be addressed to that question.

When the matter was called, Mr Rosenberg, who appeared for the appellant, handed in a notice of motion supported by affidavit from attorney Le Riche (who had defended the appellant at the trial) wherein J an application was made

Findlay AJ

A for the setting aside of the sentence and remittal of the matter to the trial court for the hearing of expert evidence from a social worker of the Department of Health and Welfare (House of Representatives), together with such other expert evidence as the trial court or the social worker might consider appropriate relative to the appellant, the complainant and the B family of the appellant. Mr King, who appeared for the State, had no objection to the application being brought and it was accordingly heard at the outset. After argument, counsel were invited to and did deal with the appeal on the record as it stood upon the hypothesis that the application might fail, although Mr Rosenberg made it plain that he was arguing without in any way conceding that the appeal could be so decided in all the circumstances. Although no evidence was led in mitigation, the record C shows that the defence attorney addressed the court. The judgment on sentence makes reference to several aspects of the accused's personal circumstances, many of which had been canvassed with the appellant in the initial stages of his evidence-in-chief. Those that were not I infer were put before the magistrate in the course of the address in mitigation without objection from the State.

Mr Rosenberg argued that especially in a matter such as the present, D where there was a possibility of an increase in the sentence, without the further evidence foreshadowed in the notice of motion, the question of sentence could not be properly addressed.

His argument was based largely upon the recent judgment of Kriegler J (concurred in by Moll JP) in S v D1989 (4) SA 709 (T). Mr Rosenberg contended that the present matter, being one involving a sexual offence E committed with a minor within the family unit, fell to be regarded as a peculiar and most complex form of social deviancy and accordingly expert evidence, if at all possible, should be obtained. For this he relied upon the dicta to be found in D's case supra at 714C-J. He contended that the following questions (which were also set out in his supplementary written heads of argument) presented themselves and did F not appear to have been addressed by the trial court:

(a)

What is the true nature of appellant's deviancy - is it a case of paedophilia, or can it more properly be considered, in the words of Kriegler J in D's case supra at 714G, as being "'n manifestasie van gesinspatologie", or some other condition?

(b)

What are the prospects for the particular type of deviancy in question? In particular is there a likelihood of repetition of G the offence now that the complainant has been removed from the foster care of appellant?

(c)

What type of treatment would be appropriate and under what conditions?

(d)

What are the future prospects of appellant's family unit, more particularly -

(i)

H What is the nature and gravity of the cancer appellant's wife is suffering from?

(ii)

To what extent is appellant's lame mother dependent on him?

(iii)

Is there any source of income other than appellant?and

(iv)

Would the family unit be able to continue as such I should appellant be imprisoned?and

(v)

If so, for how long?'

Mr Rosenberg also accepted that what was now sought constituted the leading of further evidence after the conclusion of the trial and that it was incumbent upon the appellant to satisfy the test laid down in S v J De Jager1965 (2) SA 612 (A) by Holmes JA as follows:

Findlay AJ

'(a)

A there should be some reasonably sufficient explanation, based upon allegations which may be true, why the evidence which it is sought to lead was not led at the trial;

(b)

there should be a prima facie likelihood of the truth of the evidence;

(c)

the evidence should be materially relevant to the outcome of the trial.'

The reasons why no such evidence was led before the trial court are B set out in the affidavit of Le Riche as follows:

'4.

Die hoofsaaklike rede hiervoor was prakties van aard. Eerstens is daar nie op Bredasdorp of Caledon of enige van die omringende dorpe praktiserende sielkundiges wat sou kon...