S v Van Wyk

• Jurisdiction: South Africa
• Judge: Davis J
• Judgment Date: 27 September 1999
• Counsel: P van Zyl for the accused A Bouwer for the State
• Citation: 2000 (1) SACR 45 (C)
• Court: Cape Provincial Division

Davis J:

Jacobus van Wyk has been found guilty by this Court on four separate charges:

1.

Kidnapping.

2.

E Rape.

3.

Indecent assault.

4.

Theft.

All of these convictions arise out of gruesome events which took place on 7 May 1998 in the early hours of that morning, in Wellington.

F For the purpose of sentence it is perhaps as well to recapitulate, albeit briefly, on the circumstances which gave rise to these acts which have justified the conviction on the charges as set out.

The complainant, a 22-year-old woman, returned home from an evening of relaxation at a club. As the G figures to which I shall make reference later indicate, all too often such enjoyment turns into a nightmare. This is exactly what happened to the complainant. She was accosted by Van Wyk who was armed with a knife. He forced her to have repeated sex. Not satisfied with having repeatedly raped her he extended the trauma by compelling her to have oral and anal sex and then marched her, at knifepoint, to her flat.

H It is important to note that this aspect of the crime took place because of the remarkable presence of mind shown by complainant in persuading Van Wyk to accompany her to her flat to obtain the keys of her motor car. His intent, by contrast, was to ensure that this nightmare was going to continue by forcing her I by knifepoint to use the motor car to take her to some unknown destination.

The Court found Van Wyk to be guilty on all four charges: rape, kidnapping, indecent assault and the theft of certain items which he stole pursuant to the events which I have outlined.

Mr Bouwer, who appeared on behalf of the State, and who most ably presented a range of argument J relating to sentence, for which the Court is

Davis J

indebted, referred to the horrific statistics with respect to rape in this part of the country, namely the A Western Cape.

Incidence of rape

According to the statistics presented by Mr Bouwer, in the last six months of 1998 in the Western Metropole, Boland and South Cape, there were 2 783 reported rapes. Of these, 372 occurred where the B victim was under 12 years old. In the first six months of 1999 there were 2 535 reported rapes, of which 340 involved victims under the age of 12.Ms Friedman, who testified on behalf of the State, and who is a clinical psychologist with considerable experience in the area of rape counselling, informed the Court that most rape counsel agencies consider that the statistic of one reported rape to every 20 unreported rapes C reflects the present picture of the sheer cancer of rape which has ravaged the body of South Africa. It is perhaps time that rigorous research was undertaken to obtain accurate figures of the incidence of rape in the country.

One is entitled to ask questions about the pathology of South African society which allows these crimes to D occur. It is not only a question of rape, brutal as that is on its own, but it is the sheer savagery of so many of the rapes which are reported and the complete lack of care for fellow citizens which causes reasonable people to despair for the future of this country, and particularly of the children who will inherit this future. E

Within this context I wish to direct some remarks to the nature of press reporting of this epidemic. Our present legal system promises to create a vibrant constitutional society in which every organ of government is required to justify its decisions on rational and clearly understandable grounds. The criminal justice system is not excluded from such a rational imperative, notwithstanding the epidemic of rape to which I have made reference. En passant I would observe that the savagery of the crime wave which has F hit South Africa unquestionably threatens to undermine the very constitutional enterprise which was launched in 1994. However, by inaccurate, sometimes hopelessly incompetent, reporting, the press has failed to convey the difficulties with which courts are confronted in dealing with such situations and hence G have played into the hands of an increasingly hysterical law-and-order lobby who have little desire to ensure the development of a constitutional State and, as their history reveals, have even less regard for human rights in South Africa.

The task of the judicial officer in such cases is difficult enough without having to be subjected to inaccurate H reporting, sometimes by reporters who are not even in court when sentences are passed. It is vital that the public be provided with accurate information of that which occurs in courts in order to ensure that a rational debate can take place as to how to tailor the criminal justice system to the imperative of a constitutional State and the need to control crime. These considerations are uppermost in the Court's mind I in the sentencing of Mr Van Wyk.

There are four factors of which this Court must take account in...