S v Dithotze

• Jurisdiction: South Africa
• Court: Witwatersrand Local Division
• Judge: Willis J
• Judgment Date: 17 September 1999
• Citation: 1999 (2) SACR 314 (W)
• Hearing Date: 17 September 1999
• Counsel: K Steyn for the State N de V Duvenhage, on the instructions of the Legal Aid Board, for the accused

Willis J:

Mr Johannes Dithotze, to whom I shall hereinafter, for the sake of convenience, refer as 'the accused' was charged in the Randfontein regional court with the rape of a 12-year-old girl. He F was convicted on 7 June 1999. The offence was committed on 19 December 1998. The learned magistrate committed the accused for sentence by this Court in terms of s 52(1) of the Criminal Law Amendment Act 105 of 1997 (the Act).

Although the accused pleaded not guilty, I am satisfied, having read the record, that he was G correctly and fairly convicted. The proceedings were in accordance with justice and the accused is formally found guilty by this Court.

The accused's girlfriend is the sister of the victim's mother. On the day in question the accused and his girlfriend visited the victim's mother. All the adults consumed a fair amount of beer during the H afternoon. Supplies ran out and the accused volunteered that he should purchase some more beer from the nearby shebeen. The accused suggested that the victim should accompany him for this purpose. Her mother agreed. On the way there, she was raped once by the accused. The victim was from the evidence of the district surgeon pre-pubescent: she had not yet commenced I menstruation and her breasts had not yet developed. From this and other evidence on record, it is clear that the accused could not have been mistaken about the fact that his victim was a child. This is the kind of crime, sadly too prevalent, that fills society with revulsion. The evidence of the victim, confirmed by the district surgeon, was that she had J

Willis J

A been raped once some time before, although by someone else. From the evidence of the district surgeon, it is clear that the injuries sustained by the victim were not particularly severe. The accused did not use any weapon to force his victim's compliance. The accused's girlfriend attacked him with a knife immediately upon learning of the rape.

B The accused is 22 years of age and has no previous convictions.

In terms of s 51(1) of the Act, the Court is required to sentence a person so convicted to imprisonment for life. This provision is saved by ss (3) which, provides that, if the Court is satisfied that

'substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the C sentence prescribed . . ., it shall enter those circumstances on the record of the proceedings and may thereupon impose such lesser sentence'.

The implications of s 51(1) of the Act and the meaning of 'substantial and compelling D circumstances' have exercised the minds of a number of talented jurists.

There have been a number of judgments, unreported and reported, which have come to different conclusions as to their meaning and implication. This is hardly surprising as the Act, directly and indirectly, touches upon issues of very great moral and intellectual complexity.

E I have benefited enormously by reading the as yet unreported judgment of my Sister, Borchers J, S v Blaauw (case No 37/99) given on 2 August 1999. [*] In my respectful view it gives an excellent summary and analysis of these various decisions. As this judgment will, in all probability, be reported soon, it will be tedious and is unnecessary to repeat this exercise here. I record, however, F that it deals...