S v Ntozini

• Jurisdiction: South Africa
• Judge: Pickering J
• Judgment Date: 23 April 2008
• Citation: 2009 (1) SACR 42 (E)
• Docket Number: CC40/2008
• Hearing Date: 23 April 2008
• Counsel: H Pienaar for the State. A de Jager (attorney) for the accused.
• Court: Eastern Cape Division

Pickering J:

B The accused was charged with and pleaded guilty to raping his 13-year-old niece at Elliot on 27 January 2007. Ms Pienaar for the State accepted the plea on the basis on which it was tendered as set out in the accused's plea explanation which was handed in to court by Mr De Jager on behalf of the accused.

C In that plea explanation the accused stated, inter alia, as follows [p 36 - 7]:

On the day of the incident I drank intoxicating liquor with two of my friends. We consumed brandy. I estimate that between the three of us we consumed approximately one and a half bottles of brandy. It was the first time for me to have consumed brandy and I was intoxicated D although I was still able to distinguish between right and wrong.

The complainant arrived at my house a short while later. We had stopped drinking by that stage and it was only the two of us at my house. I became overcome by my sexual urges and asked her for sexual intercourse. She refused and I then threatened to assault her, whereupon she acceded.

E I then proceeded to have sexual intercourse with her. Members of the community arrived almost immediately and I was arrested.

I know that my actions were wrong and I regret every minute of it. I never assaulted the complainant during the incident.

I apologise for my actions to the people who had arrived there at my F house and I repeat my apology to the complainant today.

At my prompting, with what was stated in Rammoko v Director of Public Prosecutions 2003 (1) SACR 200 (SCA) ([2002] 4 All SA 731) in mind, Ms Pienaar produced the complainant's birth certificate as well as the medico-legal report compiled on form J88 by the medical practitioner G who examined the complainant at 20h30 on 27 January 2007. It appears that the complainant was 13 years old at the time of the incident. It appears further from the medico-legal report that complainant had no injuries whatsoever to her private parts or indeed to any other part of her body. Surprisingly enough her hymen was still intact. There was, H however, semen found in the vestibule of the vagina which was consistent with there having been partial penetration.

Ms Pienaar stated further that the complainant had been in grade 3 at the time of the rape and that she is still attending school. Ms Pienaar stated further that having herself interviewed the complainant it could be I accepted that there was no positive evidence of any exceptional emotional trauma sustained by the complainant other than that which would obviously result from the circumstances of the rape itself. The complainant appeared to have put the trauma of the rape behind her and was continuing with her life. Her ability to do so was no doubt assisted by the fact that she had received counselling, something which regrettably is J denied to so many impecunious complainants.

Pickering J

For his part the accused's birth certificate reflects his date of birth as being A 6 January 1953, thus making him 55 years of age. The accused himself is entirely illiterate and does not know his date of birth or the basis upon which the date of birth attributed to him in his identity document came to be assessed. As pointed out by Mr De Jager the accused certainly appears to be considerably older than 55 years and I will accept for purposes of this B case that he is aged anywhere between 55 and 60 years. He was born at Elliot where he spent his working life up until 1994 as a farm labourer. He never attended school. During 1994 he sustained severe injuries in a tractor accident which left him permanently disabled to the extent that he presently walks with a limp. He receives a disability grant of R940 per month. He is married with three children, the two youngest still at school. C He has a number of previous convictions, commencing in 1975 and ending in 1986. Four of these were for assault, in respect of which in each case a minimal fine was imposed upon him. More serious, however, is a previous conviction for rape during 1980 for which he was sentenced to undergo 2 years' imprisonment.

The provisions of s 51(1) of the Criminal Law Amendment Act 105 of D 1997 are of application to this matter. Mr De Jager submitted that having regard to the accused's personal circumstances, as well as the circumstances in which the rape was committed, substantial and compelling circumstances were present justifying a lesser sentence than the prescribed minimum sentence of life imprisonment. He stressed in particular E that the accused's previous conviction for rape had occurred 27 years prior to the present offence...