S v Tabethe

• Jurisdiction: South Africa

S v Tabethe
2009 (2) SACR 62 (T)

2009 (2) SACR p62

Citation	2009 (2) SACR 62 (T)
Case No	CC468/06
Court	Transvaal Provincial Division
Judge	Bertelsmann J
Heard	January 23, 2009
Judgment	January 23, 2009

Flynote : Sleutelwoorde

Sentence — Imposition of — Factors to be taken into account — Rape — Complainant wishing accused to be sentenced in way that would enable him to continue supporting her and family — Numerous substantial and compelling I reasons not to impose prescribed minimum sentence — Suitable case in which to apply principles of restorative justice — Accused sentenced to ten years' imprisonment, suspended subject to strict conditions relating to support of complainant and her family, and subject to completion of 800 hours' community service.

Sentence — Imposition of — Restorative justice — Rape — Concept of restorative J justice finding application not only in minor offences, but in matters of

2009 (2) SACR p63

grave nature — Numerous substantial and compelling reasons not to A impose prescribed minimum sentence — Complainant wishing accused to be sentenced in way that would enable him to continue supporting her and her family — Accused sentenced to ten years' imprisonment, suspended subject to strict conditions relating to support of complainant and her family, and subject to completion of 800 hours' community service.

Rape — Sentence — Restorative justice — Concept of restorative justice finding B application not only in minor offences, but in matters of grave nature — Numerous substantial and compelling reasons not to impose prescribed minimum sentence — Complainant wishing accused to be sentenced in way that would enable him to continue supporting her and her family — Accused sentenced to ten years' imprisonment, suspended subject to C strict conditions relating to support of complainant and her family, and subject to completion of 800 hours' community service.

Headnote : Kopnota

The accused pleaded guilty to a charge of raping the 15-year-old daughter of his life companion, and was duly convicted. The matter was referred to the D High Court for sentencing, where it became apparent that both the complainant and her mother regarded it as desirable that the accused should not be sent to prison; rather, he should be sentenced in such a way that he could continue to support them and other members of the family, as he had been doing both before and since the incident. At the court's request a victim/offender programme was conducted prior to the imposition E of sentence, with the aim of determining whether the complainant's wishes regarding sentence were genuine and capable of benefiting those affected by the crime. It was also ascertained that a suitable community service programme existed which the accused could follow if a non-custodial sentence were to be imposed.

Held, that there were a number of substantial and compelling circumstances that F justified the imposition of a lesser sentence than that prescribed by s 52 of the Criminal Law Amendment Act 105 of 1997. [The Court proceeded to list 24 such circumstances, relating to the accused, the complainant, the offence, and the interests of the complainant's family and of society in general.] This was the first rape case that had come before the court in which restorative justice could be applied in full measure in order to ensure, G firstly, that the offender continued to acknowledge his responsibility and guilt; secondly, that he apologised to the victim and helped her to find closure; thirdly, that he recompensed the victim and society by supporting the former and by rendering community service to the latter; and fourthly, that he continued to support his family. (Paragraphs [35] and [36] at 67 c–68f.)

Held, further, that although the court had to impose sentence fully conscious of H the legislature's wish that severe minimum sentences should be imposed on rapists in virtually all circumstances, it was also obliged to impose a lighter sentence when the circumstances of a particular case dictated it. Restorative justice was a concept that had received judicial recognition, and there could be little doubt, in light of the challenges faced by the criminal justice system, I including perennial prison overcrowding, that the concept must find application not only in minor offences, but in suitable matters of a grave nature. The present case was such an instance. (Paragraphs [37]–[40] at 68f–69 a.)

Accused sentenced to ten years' imprisonment, suspended for five years on condition, inter alia, that he remain in designated fixed employment; that J

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A he contribute at least 80% of his income to the maintenance of the victim and her family; and that he perform 800 hours of community service.

Annotations:

Cases cited

Reported cases

Dikoko v Mokhatla 2006 (6) SA 235 (CC) (2007 (1) BCLR 1): referred to B

S v Abrahams 2002 (1) SACR 116 (SCA): referred to

S v Genever and Others 2008 (2) SACR 117 (C): referred to

S v M 2007 (2) SACR 60 (W): referred to

S v Maluleke and Others 2008 (1) SACR 49 (T): referred to

S v Moipolai 2005 (1) SACR 580 (B): referred to

S v Mvamvu 2005 (1) SACR 54 (SCA): referred to C

S v Nkomo 2007 (2) SACR 198 (SCA): referred to

S v Shilubane 2008 (1) SACR 295 (T): referred to.

Legislation cited

Statutes

The Criminal Law Amendment Act 105 of 1997, s 52: see Juta's Statutes of D South Africa 2007/8 vol 1 at 1-523.

Case Information

Imposition of sentence. The facts appear from the judgment of Bertelsmann J.

Judgment

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...