IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

REPORTABLE
CASE NO: 88/2000

In the matter between:

THE STATE

Appellant

and

BERNARD ABRAHAMS

Respondent

BEFORE:

Nienaber, Cameron and Mthiyane JJA

HEARD:

5 November 2001

DELIVERED:

Friday 23 November 2001

Appropriate sentence for the rape by a father of his fourteen year-old
daughter
—
application
of
‘substantial
and
compelling
circumstances’ criterion under Act 105 of 1997

______________________________________________________
___

JUDGMENT

______________________________________________________
___

CAMERON JA:

1.

The State appeals against a sentence of seven years’
imprisonment imposed on the respondent (‘the accused’) for the rape
of his daughter.  The accused who was represented by counsel stood
trial in the regional court at Cape Town.  Despite his plea of not guilty he
was convicted as charged.  The rape occurred three weeks after the
minimum sentence provisions of the Criminal Law Amendment Act 105
of 1997 (‘the Act’) came into force on 1 May 1998.  Since the victim was
a girl under the age of 16 years, the sentencing provisions of that Act
applied, and the accused was committed for sentence in the High
Court.1  Foxcroft J confirmed the accused’s conviction.2  Evidence was
led and submissions made both in mitigation and aggravation of
sentence.  Foxcroft J concluded that ‘substantial and compelling
circumstances’ as contemplated by the Act3 were present.  The
prescribed minimum sentence of life imprisonment for the rape of a girl
under 16 years4 was therefore not applicable.  Instead he imposed a

1Section 52(1) of the Act.  The trial in the regional court was concluded in November 1998.
2Section 52(2).  The High Court proceedings took place in September 1999.
3Section 51(3)(a).
4Section 51(1).

sentence of seven years’ imprisonment.  The State sought to appeal
against this sentence as too light.  The judge refused, but this Court on
petition granted, leave to appeal.

2.

After the appeal was lodged the Rape Crisis Cape Town
Trust applied to be admitted to the proceedings as an amicus curiae
under the rules of this Court.  These permit ‘any person interested in
any matter before the Court’5 to be granted such status.  The Acting
Chief Justice granted the Trust leave to submit written argument on the
sentence, and we are indebted to it for its assistance in doing so.

3.

The accused was convicted on the evidence of his
daughter, Doreen, her mother (his wife) and of the district surgeon for
Cape Town.  Doreen testified about the events of a Friday afternoon in
May 1998.  She was fourteen at the time, the family’s youngest child,
and in grade nine at school.  On that afternoon, she said, her father
returned home after drinking at a nearby shebeen, and went to sleep in
her room.  On awakening he found her cleaning the kitchen.  He started
meddling with her.  She pushed him away, saying ‘Daddy, hou op met
my, wat probeer Daddy met my te doen?’  He persisted, pushing her

5Rule 16(1).

against the sink.  Unable to run away, since her father had locked the
verandah gate, she pleaded once more: ‘Daddy, hou net op asseblief.’
When he did not relent, she seized the knife she was washing, thinking
she could somehow defend herself with it.  But the accused struck it
from her hand.  It fell to the ground.  She picked it up, but he pulled her
to her room and flung her to the floor.  He tried to pull down her school
tracksuit pants.  She began to cry and scream, but he would not desist:
‘En nadat hy so aangegaan het met my en toe, toe begin ek te huil en te skree en hy wil nie my
af, hy sê ja hy kan eerste seks hê met my en dan ... [...] en dan kan ek ‘n man vat, ‘n
“boyfriend” ..., dan kan ek maar maak met die “boyfriend” wat ek wil, so het hy bedoel.’

4.

At this point during the attack Doreen’s friend, Esmerelda,
came to the gate and called for her to come and play with their friends.
The accused was then lying on top of Doreen on her bed.  He lifted
himself slightly and shouted to Esmerelda that he was resting and that
Doreen was busy with her school work.  In fact, he was trying to pull
down her tracksuit pants.  He had already pulled his own trousers down.
Doreen, who still had the knife in her hand, resisted.  But he hit the knife
from her hand.  She held onto her pants.  She begged him: ‘Daddy, los
my en hou op so aangaan met my.’  But with his weight on top of her
she became numb with fear and fright.  He jerked her pants and
underclothes down and proceeded to have intercourse with her.  She

was unable to get away or to cry for help because he was holding her
hands and gagging her mouth with his hand.

5.

After he had ejaculated inside her she lay crying on the bed.
He fetched his face-cloth and told her rudely, ‘Dê, vat dit, vee vir jou af.’
The bed he wiped himself.  Doreen went to run a bath to wash herself.
She called a little boy who frequented their home to come and sit
outside close to the locked gate.  Her father then entered the bathroom.
He told her not to tell her mother.  He promised to give her anything she
wanted ‘want ek was nou klaar by jou en nou kan jy maar maak soos jy
wil’.  When she emerged from the bathroom he took money and left for
the shebeen.  On her mother’s return Doreen told her what had
happened.  Her mother called the police.  Doreen was taken to the
hospital and examined.  Though she had no marks or injuries she
testified that her whole body was painful because this had been her first
time.

6.

The accused’s wife confirmed her daughter’s report on her
arrival home, and corroborated her evidence in other material details,
not only about the family’s circumstances and relationships but about
the damp patch that was still present on Doreen’s bed.  The district

surgeon testified that when she examined Doreen on the Friday
evening, the girl reacted with pain.  From the tearing of the hymen and
the abrasion of the perineum it was evident that she had ‘just lost her
virginity’.  There were no other injuries.  The doctor’s report, admitted at
the trial, recorded that the perineal injury was indicative of forced sexual
assault.  Her evidence was not challenged.

7.

The accused’s defence as presented during the cross-
examination of Doreen and her mother and in his own evidence has
some bearing on the question of sentence.  He blamed his arraignment
on Doreen, her mother and her older brother, the former two for falsely
accusing him, the latter as perpetrating the sexual assault upon Doreen.
The accused’s account was that while sleeping in Doreen’s room on the
afternoon in question he had a wet dream.  When he awoke he had his
penis in his hand, having ejaculated onto the bed.  While wiping the bed
with his handkerchief, he noticed Doreen standing in the doorway
watching him.  He told her to come and sit next to him because he did
not want her to tell her mother what had happened.  She refused.  He
got up and took her by the hand, explaining that his wet dream had
soiled her bed.  He promised to give her something for her silence.
She asked how much.  He offered R10,00.  She demanded more.

Despite his entreaties she announced that she would tell what had
happened.  In pleading with her he put his hands on her shoulder and
pressed her back onto her bed.  He told her that he loved her.  While
trying to kiss her his cheek grazed hers.  He again begged her not tell
her mother, and gave her R10,00.  He went to fetch a face-cloth, but
when he tried to wipe the bed she grabbed the cloth from him and did
so herself.  Since she had sat in his sperm, she said that she would
wash herself.  It was he who asked the little boy to sit close by.  As for
the rape allegations, his wife and his daughter had conspired to
fabricate them.  Indeed, when on an earlier occasion he disciplined
Doreen with a hiding, she threatened to send him to jail.  Doreen’s loss
of her virginity he explained on the basis that his son had confessed
some time before to molesting her.

8.

This evidence, apart from coming across as palpably
figmented, was illogical and inconsequential, since it failed to account
for the medical evidence that Doreen had ‘just’ lost her virginity, at a
time when it was not suggested that her brother or indeed any other
man had been anywhere near her.  It was clear that the sibling abuse the
accused sought to invoke related to a long-past incident of innocent and
relatively uninvasive exploration by the brother upon Doreen — an

instance (as the accused’s wife put it) of children playing ‘housey-
housey’, to which the brother confessed years later after a religious
conversion.  The accused’s cynical attempt to invoke this family history
to deflect the charge against him shows the extent of his callousness.
The magistrate found Doreen to be a credible and honest witness and
her mother a ‘notably consistent and responsible’ person who gave
honest and reliable evidence.  He accepted their testimony and rejected
that of the accused as completely unconvincing and obviously
fabricated.

9.

Before Foxcroft J, nearly a year after his conviction in the
regional court, the accused remained unrepentant.  His counsel did not
contend that he had been wrongly convicted and the judge confirmed
the conviction.  Thereafter a social worker testified to the effect of the
rape upon Doreen and her mother was called again, for the same
purpose.  The social worker’s uncontested evidence was that Doreen
herself could not be called because a second testimony, nearly a year
after her first, would have damaging effects.  The accused for his part
was adamant in expressing no remorse:  ‘Ek kan nie sê dat ek jammer
voel, want soos ek hierso staan, weet ek dat ek onskuldig is, dat ek nie

die ding met haar gedoen het nie, maar soos die Hof my skuldig gevind
het, weet ek [dat] ek niks daaraan [kan] doen nie.’

10.

In passing sentence the judge rightly found that alcohol had
not played a significant role: indeed, the accused himself in evidence
disavowed its effect.   While the accused’s age — 53 at the time of the
rape and 54 at the date of sentence — was not an excuse, the fact that
he had reached that age without any previous convictions was ‘of great
importance’.  As far as the offence itself was concerned, the judge did
not consider it to be ‘one of the worst cases of rape’.  While rape of
one’s daughter was naturally a very reprehensible matter, in this
instance ‘fortunately the damage was not as great as in many cases’:
‘Daar is wel getuienis in hierdie saak dat hierdie jong dogter haar konsentrasie verloor het;  dat
sy ‘n bietjie opstandig geraak het, maar ek weet nie of dit so buitensporig is nie, en ‘n mens
weet dat seuns en dogters van daardie ouderdom daardie soort tekens toon.  Ek weet nie, want
daar was nie volledige psigiatriese getuienis voor my oor presies wat die gevolge van hierdie
daar was nie ...’

11.

Foxcroft J rejected the State’s submission that this was
almost ‘a textbook case’ for the imposition of imprisonment for life.  He
invoked S v B,6 a judgment before the Act’s minimum sentencing
provisions came into force, in which he had concurred.  There a father
over a six-year period had sexual intercourse with his teenage

61996 (2) SACR 543 (C).

daughters against their will and was convicted of rape.  The magistrate’s
eleven-year sentence was set aside and replaced with eight years’
imprisonment of which two were suspended.  Van Reenen J stated:
‘Die misdryf waaraan die beskuldigde skuldig bevind is is slegs tot sy eie dogters beperk en
daar was selfs nie eens 'n suggestie van seksueel afkeurenswaardige gedrag buite die
familieverband nie. Omdat al die beskuldigde se dogters alreeds hulle ouerhuis verlaat het is die
kanse op 'n herhaling van die misdrywe waaraan die beskuldigde skuldig bevind is bykans
nie-bestaande. Dit synde die posisie skyn daar nie enige dwingende rede te wees om die
publiek teen die beskuldigde te beskerm of hom van die pleging van soortgelyke misdade af te
skrik nie.’7

12.

In the light of the accused’s age and clean record and  the
fact that the deterrent element and protection of the public were of
minimal concern, the judge concluded that substantial and compelling
circumstances justifying a departure from life imprisonment as
prescribed were present, and he imposed a sentence of imprisonment
for seven years.

13.

Foxcroft J’s approach in taking into account all these factors,
and considering whether they justified deviation from the prescribed
sentence, was subsequently vindicated in S v Malgas,8 where this Court
held that the Act did not prohibit weighing all considerations traditionally
relevant to sentence.9 Nor was the legislation so prescriptive that it

71996 (2) SACR 543 (C) 555b.
82001 (2) SA 1222 (SCA), 2001 (1) SACR 469.
9Paras 9-10.

permitted a sentencing court effectively no discretion at all.  Instead, the
statutory framework left the courts free to continue to exercise a
substantial measure of judicial discretion in imposing sentence,10
though the prescribed sentences required a severe, standardised and
consistent response from the courts unless there were, and could be
seen to be, ‘truly convincing reasons for a different response’.11  In S v
Dodo12 the Constitutional Court in rejecting a Bill of Rights challenge to
the Act’s sentencing provisions confirmed as ‘undoubtedly correct’ the
operational construction of the statute enunciated in Malgas.

14.

The result is that Foxcroft J’s general approach to the duties
the legislation cast upon him in sentencing the accused was by no
means misconceived.  The question the State’s appeal raises, however,
is whether the manner in which he applied that approach was so
misguided as to warrant intervention on appeal.  The State contended
that the judge had misdirected himself and that he had erred in finding
that substantial and compelling circumstances were present.  The
amicus, while emphasising that under the Constitution and in terms of

10Para 3.
11Paras 8 and 25C, per Marais JA.
122001 (3) SA 382 (CC), paras 11 and 40 (Ackermann J).

international law the courts have a duty ‘to act more stringently against
offenders who commit crimes that invade the equality, dignity and
freedom’ of women and children, especially rape, did not explicitly
contend that circumstances justifying a sentence less than life
imprisonment were absent.  Counsel for the accused submitted that
while another court might well feel inclined to impose a higher sentence,
Foxcroft J’s exercise of discretion was not impeachable.

15.

The circumstances entitling a court of appeal to intervene in
a sentence a trial judge has passed were recapitulated by Marais JA in
Malgas:
‘A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the
trial court, approach the question of sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it.  To do so would be to usurp the
sentencing discretion of the trial court.  ... However, even in the absence of material
misdirection, an appellate court may yet be justified in interfering with the sentence imposed by
the trial court.  It may do so when the disparity between the sentence of the trial court and the
sentence which the appellate court would have imposed had it been the trial court is so marked
that it can properly be described as “shocking”, “startling”, or “disturbingly inappropriate”.’13

The question therefore is whether the manner in which Foxcroft J
weighed the factors relevant to determining sentence was materially
misdirected or, if not, whether the sentence he imposed was in any
event so shockingly inadequate as to give rise to the inference that he
failed to exercise his discretion properly.  In my view the first leg of the

132001 (2) SA 1222 (SCA) para 12.

test for intervention is satisfied, and it is unnecessary to consider the
second.  The record suggests that the learned judge erred in three
respects in his approach to sentence, and the conclusion is
inescapable that he materially misdirected himself in imposing the
sentence of seven years.  He omitted to consider one important
aggravating factor that emerged from the evidence, gave insufficient
weight to another, and finally failed to specify adequately what his
invocation of S v B14 entailed, while erroneously conceiving that the
sentence there applied provided a benchmark for the present case.  I
deal with these in turn.

16.

As indicated earlier, a feature of the complainant’s evidence,
corroborated by that of her mother, was the accused’s sexual jealousy
and possessiveness of his daughter.  It was obvious from Doreen’s
evidence that the accused was determined to be the first person to
have sexual intercourse with her.  Once during the attack, and again
immediately after it, he intimated that he wanted to be the first to have
sex with her.  Each time he added that once he had accomplished this
she was free to do as she wished with others.  This attitude seems to
have sprung from his jealousy of her other potential young male friends,

141996 (2) SACR 543 (C).

which he frequently and unreasonably expressed.  Both the complainant
and her mother testified that the accused prevented Doreen from
having boyfriends.  When she went to church with her friends, and the
accused had been drinking, he would ask her mother, ‘Waar is die
teef?’, and on her return home beat her.  His possessive jealousy also
found expression in inappropriate physical touching of Doreen (though
neither mother nor daughter anticipated that this would culminate in
rape).  What is clear is that the accused was determined to precede
other young males in any possible carnal access to his daughter.  Her
evidence to that effect was not specifically challenged under cross-
examination.

17.

This attitude reflects an approach to women, and to
daughters in particular, as objects or chattels, not merely to be used at
will, but once the first entitlement has been exercised, to be discarded
for further similar use by others.  Of all the grievous violations of the
family bond the case manifests, this is the most complex, since a
parent, including a father, is indeed in a position of authority and
command over a daughter.  But it is a position to be exercised with
reverence, in a daughter’s best interests, and for her flowering as a
human being.  For a father to abuse that position to obtain forced sexual

access to his daughter’s body constitutes a deflowering in the most
grievous and brutal sense.  That is what occurred here, and it
constituted an egregious and aggravating feature of the accused’s
attack upon his daughter.  The judgment on sentence accords it no
mention.  The sentencing judge in my view thus misdirected himself in
failing to take into account a most material aspect of the crime.

18.

Second, there are the after-effects of the attack upon
Doreen.  Doreen’s mother testified during the regional court trial that
after the rape Doreen was reluctant to enter her own room and insisted
on sleeping with her.  She complained that if she slept alone she woke
in fright, sitting straight up.  Before the incident, Doreen was a ‘normale
kind gewees ... skoolkind en ‘n kerkkind’.  But the rape had changed not
only her but the whole household:  ‘Ons is niemand meer dieselfde in
die huis nie.’  With Doreen in particular it was sometimes no longer
possible to communicate.  Whereas there had been intimacy between
mother and daughter, now Doreen rejected her mother and repelled
physical contact.

19.

In the High Court the accused’s wife testified that since the
rape her daughter’s schoolwork had deteriorated.  As parent she

received regular messages and letters from the school principal
complaining of rebelliousness and disobedience.  The regional court
trial had prevented Doreen from sitting her examinations the previous
year;  when re-sitting in January, she failed.  This was the first time she
had failed her examinations (though her teachers promoted her to grade
ten on her past performance).  At home she snubbed her mother and
brother.  She had cast aside all the dolls with which she formerly played.
She had withdrawn from the neighbourhood children and no longer
played with them in the street: ‘Sy het sommer kom grootword net in ‘n
paar maande tyd.’

20.

The State also called a social worker, who prepared a report
in September 1999 after interviewing family members.  Her findings,
upon which she elaborated in her evidence, were that Doreen could not
work through the rape. She was still having nightmares and had
developed a phobia about her home.  She was unable to concentrate
for long.  Her family members now found her ill-tempered, aggressive
and rebellious, and she had withdrawn from them.  She resisted
discussion of the event.  The social worker concurred with the school
psychologist’s
assessment
that
Doreen
needed
long-term
psychotherapy.

21.

None of this was seriously challenged. The judge’s apparent
equation of the complainant’s conduct with other teenagers’ similar
behaviour did not justly state its import.  It is true that no psychiatric
evidence was led, but in the circumstances of the case — particularly
the absence of challenge to the mother’s and the social worker’s
evidence — none was required.  An appropriate assessment entails the
unsurprising and indeed obvious conclusion that Doreen had been
deeply and injuriously affected by the rape.  This was an aggravating
factor.  In failing to accord it greater weight the judge misdirected
himself.

22.

Third, there is the learned judge’s allusion to S v B,15 where,
he said, the accused’s conduct ‘was confined to his own daughters and
there was not even a suggestion of sexually reprehensible conduct
outside the family context.’  This, the judge said, ‘was a similar case’.  It
appears to have been found in S v B that the accused’s conduct
displayed a very specific familially-confined pathology that, with the
passing into adulthood of his victims years later and their departure from
home, showed no sign of being repeated, at home or elsewhere.  If the

151996 (2) SACR 543 (C).

judge intended to express this proposition, a fuller exposition may have
averted much misunderstanding.  Unfortunately the proposition would
not have been apposite to the present case, since at the time of the trial
Doreen (unlike the daughters in S v B) was still an adolescent in her
parental home and likely to remain so for a number of years (her
unmarried older brother of 23 still lived at home).  To the extent,
therefore, that the judge may have considered S v B (explained as
above) applicable to the present case, it seems to me that he further
misdirected himself.

23.

The suggestion that rape within a family is less
reprehensible than rape outside it is of course untenable and I am
satisfied that Foxcroft J’s comments, though incautiously expressed,
did not intend to convey anything to this effect.
(a)
First and obviously, a family member is also a member of the
wider public and equally obviously as deserving as the rest of the
public of protection against rapists, including those within the
home.  Indeed, where a rapist’s victim is within his family, she
constitutes the part of the public closest to, and therefore most
evidently at risk of, the rapist.

(b)
Second, rape within the family has its own peculiarly reprehensible
features, none of which subordinate it in the scale of abhorrence
to other rapes.  The present case illustrates them with acute force.
The rapist may think the home offers him a safe haven for his
crime, with an accessible victim, over whom he may feel (as the
accused did) he can exercise a proprietary entitlement.  Though
not the case here, a family victim may moreover for reasons of
loyalty or necessity feel she must conceal the crime.  A woman or
young girl may further internalise the guilt or blame associated with
the crime, with lingeringly injurious effects.16  This is particularly so
when the victim is the rapist’s own daughter, and the more so
when the daughter is of tender years.
(c)
Third and lastly, the fact that family rape generally also involves
incest (I exclude foster and step-parents, and rapists further
removed in family lineage from their victims) grievously
complicates its damaging effects.  At common law incest is still a
crime.17  Deep social and religious inhibitions surround it and
stigma attends it.  What is grievous about incestuous rape is that it

16See Anne V Mayne and Ann Levett ‘The Traumas of Rape — Some Considerations’ (1977) 1 SACJ
163 165f  and Unit for Gender Research in Law, Unisa Women and the Law in South Africa —
Empowerment through Enlightenment (1998) p 117.
17See JRL Milton South African Criminal Law and Procedure Vol II Common Law Crimes 3 ed (1996) ch
12 people 234-247.

exploits and perverts the very bonds of love and trust that the
family relation is meant to nurture.  The present case illustrates
this.  It is clear that Doreen loved her father.  In fact, in denying
under cross-examination that she was lying, she explained:  ‘Ek is
nog steeds lief vir my pa en vir ‘n feit kan my pa weet dat ek sal
nie so iets opmaak nie’.  That the rape should have driven her to
raise a knife to him in her own defence must clearly have entailed
agonising conflicts.  His love for her, on the other hand, included
its
corrupted
expression
in
sexual
possessiveness and
inappropriate physical advances, culminating in the rape.  When
cross-examined about their interaction, she stated: ‘Ek en my pa
het ‘n goeie verhouding gehad, want hy was baie geheg aan my,
en ek kon nie eintlik dink dat my pa dit aan my sou kon doen nie,
want hy is baie lief vir my en hy het nie toegelaat dat ek met
jongetjie vriende, ... hy was te veel oor my, maar [...] is hy die een
wat eintlik vir my wou gehad het.’  ‘Love’ thus expressed becomes
the negation of love, and the violation of the trust that should
sustain it extreme.  Its effects may linger for longer than with an
extra-familial rape.
These features clearly required particular attention in regard to
deterrence and retribution in the sentencing process.

24.

The judge’s allusion to S v B entailed a further misdirection.
The judge described that as ‘a much worse case of rape’.  There it will
be recalled a sentence of eight years was imposed.  The judge appears
to have inferred that a lighter sentence was therefore justified in the
present case.  In refusing leave to appeal the judge considered that the
only debatable question was whether the Act requires a court, once it
has found that substantial and compelling circumstances exist, ‘to
impose a heavier sentence than it would normally impose’.  This the
judge concluded was ‘incorrect’.  It is therefore clear that the judge
considered
that,
having
found
substantial
and
compelling
circumstances, he was at liberty to impose a sentence consonant with
those applied before the Act came into force — hence the sentence
one year lighter than that in S v B.

25.

This approach was incorrect.  The prescribed sentences the
Act contains play a dual role in the sentencing process.  Where factors
of substance do not compel the conclusion that the application of the
prescribed sentence would be unjust, that sentence must be imposed.
However, even where such factors are present, the sentences the Act
prescribes create a legislative standard that weighs upon the exercise

of the sentencing court’s discretion.  This entails sentences for the
scheduled crimes that are consistently heavier than before.

26.

This was made clear in Malgas.  Even when substantial and
compelling circumstances are found to exist, the fact that the
Legislature has set a high prescribed sentence as ‘ordinarily
appropriate’ is a consideration that the courts are ‘to respect, and not
merely pay lip service to’.18  When sentence is ultimately imposed, due
regard must therefore be paid to what the Legislature has set as the
‘bench mark’.19  The Constitutional Court has held that the approach
enunciated in Malgas steers an appropriate path —
‘which the Legislature doubtless intended, respecting the Legislature’s decision to ensure that
consistently higher sentences are imposed in relation to the serious crimes covered by s 51 and
at the same time promoting ‘the spirit, purport and objects of the Bill of Rights’‘.20

27.

The judge’s approach to the application of the statute was
therefore misdirected.  In consequence, this Court faces the duty of
itself imposing sentence on the accused.  (It is unnecessary to decide
whether the seven-year sentence the judge imposed would in the
circumstances of this case in any event have been inadequate even

182001 (2) SA 1222 (SCA) para 25 (introduction).
192001 (2) SA 1222 (SCA) para 25J.
202001 (3) SA 382 (CC) para 11.

before the Act came into force.)  As indicated earlier, the general
manner in which the judge determined whether substantial and
compelling circumstances existed was correct.  He took into account all
factors traditionally relevant to sentencing.  These included the
accused’s personal circumstances, the nature of the crime and the
circumstances attending its commission.  In my view, the judge
correctly concluded that factors of substance compelled the conclusion
that a sentence other than life imprisonment is appropriate.  The
accused’s age is not in itself a mitigating factor;21  that he reached his
middle years without a criminal conviction certainly is.22 The fact that the
accused’s daughter, apart from the ultimate intrusion and violation that
are the essence of rape, was not physically injured, is also of
importance.

28.

A further factor emerges from the record.  It is clear from
the evidence of both Doreen and her mother that the accused’s
downward spiral started with the death, by suicide, of the family’s
younger son at the end of 1996.  Doreen volunteered during cross-
examination that her parents had had a good relationship until he started

21S v Nkambule 1993 (1) SACR 136 (A) 144i, per Harms JA.
22S v Fatyi 2001 (1) SACR 485 (SCA) para 6, applying Malgas.

drinking again.  It became clear from her mother’s evidence in the
regional court that a turning point in the accused’s conduct occurred
after her young son’s suicide.  In the regional court the accused did not
himself allude to the tragedy, but explained during his evidence in the
High Court that the family’s seventeen year-old son had shot himself at
the end of 1996, with serious consequences for his work and
concentration.  Given its corroboration in the evidence of both the
complainant and her mother, the State did not dispute this in cross-
examination.  The conclusion is therefore warranted that the accused’s
son’s suicide less than two years before the rape adversely influenced
his conduct within the family and led to a diminution in the judgment he
brought to bear as a father.

29.

This in no way excuses the accused’s conduct.  But it does
weigh further toward the conclusion that a sentence of life imprisonment
would be unjust.  In addition, I agree with Foxcroft J that this is not one
of the worst cases of rape.  This is not to say that rape can ever be
condoned.  But some rapes are worse than others, and the life
sentence ordained by the Legislature should be reserved for cases
devoid of substantial factors compelling the conclusion that such a

sentence is inappropriate and unjust.  As Davis J stated in S v Swartz
and another:23
‘As controversial a proposition as this is bound to be, as not all murders carry the same moral
blameworthiness, so, too, not all rapes deserve equal punishment.  That is in no way to
diminish the horror of rape; it is however to say that there is a difference even in the heart of
darkness.’

30.

The amicus rightly pointed out that our Constitution, as well
as international treaty obligations, require the government and the courts
to take special steps to protect the public in general and women in
particular against violent crime.  The Constitutional Court has given
these obligations emphasis in recent decisions (S v Baloyi (Minister of
Justice and another intervening)24 and Carmichele v Minister of
Safety and Security),25  and in the sentencing process in they must be
accorded appropriate weight.  But Ackermann J has also sounded a
timely reminder to sentencing courts:
‘To attempt to justify any period of penal incarceration, let alone imprisonment for life as in the
present case, without inquiring into the proportionality between the offence and the period of
imprisonment, is to ignore, if not deny, that which lies at the very heart of human dignity.
Human beings are not commodities to which a price can be attached; they are creatures with
inherent and infinite worth; they ought to be treated as ends in themselves, never merely as a
means to an end.  Where the length of a sentence, which has been imposed because of its
general deterrent effect upon others, bears no relation to the gravity of the offence ..., the
offender is being used essentially as a means to another end and the offender’s dignity
assailed.  So too where the reformative effect of the punishment is predominant, and the
offender sentenced to lengthy imprisonment, principally because he cannot be reformed in the
shorter period, but the length of imprisonment bears no relationship to what the committed
offence merits.  Even in the absence of such features, mere disproportionality between the

231999 (2) SACR 380 (C) 386b-c.
242000 (2) SA 425 (CC) para 13.
252001 (4) SA 938 (CC) paras 30, 45, 57 and 62.

offence and the period of imprisonment would also tend to treat the offender as a means to an
end, thereby denying the offender’s humanity.’26

31.

Weighing all the circumstances of this case, giving due
weight to the legislative benchmark the Act creates, and taking into
account in particular that at the time he was sentenced in September
1998 the accused had already been in prison for sixteen months, it
seems to me that a sentence of twelve years’ imprisonment would be
appropriate.
1.
The appeal succeeds.
2.
The sentence imposed on the accused is set aside.
3.
In its place, the accused is sentenced to twelve years’
imprisonment, antedated in terms of s 282 of the Criminal
Procedure Act, 51 of 1977 to 20 September 1999.

E CAMERON
JUDGE OF APPEAL

NIENABER JA)
MTHIYANE JA) CONCUR

26S v Dodo 2001 (3) SA 382 (CC) para 38.