S v Tabethe

• Jurisdiction: South Africa
• Judge: Bertelsmann J
• Judgment Date: 23 January 2009
• Docket Number: CC468/06
• Hearing Date: 23 January 2009
• Court: Transvaal Provincial Division
• Citation: 2009 (2) SACR 62 (T)

Bertelsmann J:

E [1] The accused was found guilty of the rape of N, the daughter of his life companion.

[2] He raped her 18 days before her 16th birthday.

[3] N was emotionally and psychologically traumatised, but was not F physically injured.

[4] At the time the accused had been staying for some years with N's mother.

[5] He was and still is in steady employment. He has been in the service of the same employer throughout.

G [6] For some years before the rape the accused had been providing for the family consisting of himself, N's mother, the victim N, the victim's younger sister S, and a boy that was born of the union between the accused and N's mother prior to the offence, J.

[7] It took four years to finalise the trial before this court that H commenced in the regional court during 2004. Shortly before the proceedings drew to a close, another son was born to the victim's mother, G.

[8] The accused is also the father of this child.

[9] Immediately after the rape the accused was shown the door by the I victim's mother, but continued to support the family as he had done before he committed the offence.

[10] The victim stayed for some time with her maternal grandmother before moving back into the family home.

[11] This home is a modest RDP house that was apparently bought by J the victim's mother. The evidence is not quite clear regarding the exact

Bertelsmann J

nature of this transaction. In any event, all rentals or instalments - if A these were indeed paid - and other household expenses have been provided for by the accused at all relevant times.

[12] The accused was arrested shortly after the offence was committed and duly charged in the regional court.

[13] He pleaded guilty. B

[14] The case was referred to this court for sentencing in terms of s 52 of Act 105 of 1997. It was placed on the circuit court roll for 2006.

[15] The accused was granted bail by the regional court shortly after his arrest and remained on bail throughout the time his trial took to wend its way to finality in 2008. He attended every court session. C

[16] The accused repeated his plea of guilty when the sentencing proceedings started in this court. He was clearly remorseful. The conviction was confirmed.

[17] The matter had to be postponed on several occasions to finalise the D victim-impact report and to present the findings thereof in evidence.

[18] When the victim's mother testified for the first time, she pleaded strongly that the accused should be sent to jail for a long period. It was apparent, however, that she was uncomfortable in the witness stand, and became more so when confronted in cross-examination with the fact that E she was dependent upon the accused. Eventually it became clear that she felt obliged to plead for the incarceration of the accused because she was under the impression that the authorities expected her to do so, while her true feelings were much more ambivalent.

[19] The matter had to be postponed again in order to lead the evidence F of the victim herself.

[20] She entered the witness stand, by now a young adult, very clearly under considerable stress and torn by conflicting emotions. She stated that she was still deeply hurt by the fact that she had been subjected to a violent offence by a man she had trusted. On the other hand she G pleaded that the accused should not be sent to jail because the entire family, including herself, depended upon his income. One of her siblings was chronically ill and the accused provided for her medical treatment. She herself was still attending school and needed his support to continue her education.

[21] Because of the obvious conflict of emotions she was experiencing, H and because the court suspected that she might have been influenced against her will to present a plea on behalf of the accused that her mother had been too wary to raise, I invited her to see me in chambers in the company of my clerk only, who speaks her mother tongue fluently.

[22] I impressed upon her that she had an inalienable right to convey her I own emotions, feelings and convictions, her own view of a suitable sentence for the accused, that the court was obliged to pay attention to her wishes and that she was free to tell the court whatever troubled her. She was advised that she was under no duty to convey the views of...