---

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH

CASE NO: CC 58/2013

Delivered: 15 August 2014

In the matter between

THE STATE

And

SHANE LINDSAY WEIDEMAN                                                                                    Accused

JUDGMENT ON SENTENCE

GOOSEN, J.

[1] The rape of women and children is horrifyingly prevalent in our country.  It is a crime causes irreparable harm to its victims and to our society as a whole. The rape of children is especially destructive of the values that we cherish. It is for this reason that legislative provision has been made for the imposition of life imprisonment for an offender convicted of the rape of a child unless there are substantial and compelling circumstances to impose a lesser sentence.

[2] In this instance the victim was raped by an adult family member who, in the ordinary course, ought to have functioned as a protector of the vulnerable child. The rape occurred during a family gathering when a large number of family members had gathered to celebrate the achievement of a great aunt. The rape occurred within the sanctity of the home when the accused’s wife was in the near vicinity. Following the rape, having violated the victim the accused further undermined her by referring to her as “my vrou”.

[3] The victim has been deeply traumatized and affected by the rape. Her young life has been shattered. She has difficulty relating to other children, a factor which has resulted in her experiencing some measure of victimization because she is withdrawn. She struggles at school and her educational development has been severely affected. She has twice attempted to commit suicide. She is a child filled with despair and anger at the world and although she tries very hard to forget the experience she is unable to do so. It affects her everyday life. She said in evidence that she has tried, in her heart, to forgive the accused and although she said that she has forgiven him she cannot face him.

[4] The family has also been deeply affected by the accused’s appalling act. What was a close knit family has been torn apart.

[5] In deciding on an appropriate sentence a court is required to take into account the nature and seriousness of the crime, the interests of the society and the interests of the person upon whom the sentence is to be imposed. The sentence decided upon must seek to balance these competing interests, and must, of necessity, meet the objects and purpose of punishment. Those include the requirement of appropriate retribution for the offence committed against the interests of the society as well as the requirement of corrective rehabilitation of the offender.

[6] It is for this reason that sentencing courts are required to ensure that the sentence is proportionate, both in relation to the crime and its effect the victim, and the impact of the sentence upon the criminal. This requirement of proportionality applies equally in relation the sentences prescribed by legislation (see S v Vilakazi 2009 (1) SACR 552 (SCA) at 560g-h and 561b, see also S v Fatyi  2001(1) SACR 485 (SCA) at 488f-g).

[7] In determining whether the prescribed sentence is indeed proportionate, all of the traditional factors regarded as mitigating factors are to be considered and the court is required to assess whether there are substantial and compelling circumstances to depart from a prescribed sentence. The fact that a prescribed sentence is disproportionate is itself a basis to find that there are substantial and compelling circumstances to warrant a departure from a prescribed sentence. When this assessment is made the court is also required to take into account the legitimate interests of society as reflected in the legislation prescribing a minimum sentence and should not for flimsy and insubstantial reasons depart from such prescribed sentence (see S v Nkunkuma and others (101/13) [2013] ZASCA 122 (23 September 2013); S v Malgas 2001 (1) SACR 469 (SCA)).

[8] The accused is [……] years old. He completed standard 6 at school. He has been employed for 14 years at a pharmaceutical company. He commenced as a general labourer and has over the years advanced himself into a position as a quality controller. He is married and lives with his wife and elderly mother in his mother’s home. He supports them both financially. He has two children from another relationship,   a son aged [….] and a daughter aged […..] years. They live with their biological mother. The accused however, also maintains them financially.

[9] The accused is an active member of his community. He belongs to a prayer group within his church and plays a role as a youth leader in the context of his church community. He is also a member of an athletics club and, it appears, is an accomplished long distance runner, having competed in and completed a number of ultra-marathon events including the well-known Two Oceans and Comrades marathons. He has no previous convictions.

[10] He testified in mitigation of sentence. He was unable to explain his conduct on the day in question. He said that he had consumed five or six beers and that since he is a long distance runner who is very fit the alcohol affected him quickly. He accepted that what he had done was profoundly wrong and he tearfully apologised to both the victim and her family. He also apologised to his own family and he accepted that his conduct had broken the family and caused severe trauma to the victim and her family.

[11] Under cross examination he was asked to explain why it was that he had alleged facts in his plea explanation which sought to place some measure of responsibility for the event on the victim of the rape. He stated that this was wrong and that those facts which the complainant testified to were correct. In making this concession he accepted that some of the facts set out in his plea explanation were false.

[12] The prosecution argued that his expression of remorse was not a genuine expression of remorse but rather a function of the fact that he had an unanswerable case to meet. In this regard it was submitted that his conduct at trial, notwithstanding a tendered plea of guilty, could not be said to evidence true remorse because it compelled the victim to come to court to testify and thereby re-live the horror of the rape ordeal. There is considerable force in the argument.  As  was noted by Ponnan JA in S v Matyityi 2011 (1) SACR 40 (SCA) at para 13:

There is, moreover, a chasm between regret and remorse. Many accused persons might well regret their conduct, but that is not without more translated to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. Thus genuine contrition can only come from an appreciation and acknowledgement of the extent of one’s error. Whether the offender is sincerely remorseful, and not simply feeling sorry for him or herself as having been caught, is a factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens, the genuineness of the contrition alleged to exist cannot be determined. After all, before court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia: what motivated the accused to commit the deed; what has since provoked his or her change of heart; and whether he or she does indeed have a true appreciation of the consequences of those actions.

[13] The prosecution nevertheless accepted that the accused’s personal circumstances and the evidence tendered in support of him by his sister, pointed to an essentially decent person who had committed an unspeakable act. The prosecution accepted that the imposition of life imprisonment, notwithstanding the profoundly damaging effect that the rape has had and continues to have on the victim, would in the circumstances of this case be disproportionate. The prosecution therefore did not seek imposition of the prescribed minimum sentence of life imprisonment.

[14] This concession was one that was rightly and properly made. Life imprisonment is the most severe sentence that can be imposed by a court. For this reason it is, generally speaking, reserved for the most serious and egregious criminal acts. It is also reserved for those instances where the criminal poses a clear and present danger to the society and where there is little or no prospect of rehabilitation of the criminal and reintegration of that individual into society. This does not however mean that a court should keep something in reserve on the basis that some more serious manifestation of the crime can be imagined (see S v Mahamotsa 2002 (2) SACR 435 (SCA) par. 19). It means only that the sentence of life imprisonment must be proportionate to the nature of crime for which it is imposed.

[15] There can be no doubt that life imprisonment is an appropriate sentence to impose upon a criminal who rapes child. The question, however, remains whether it is the appropriate sentence in this case.

[16] In the view I take of the matter, it is not. Whilst the accused’s assertion of the remorse does not accord with his conduct of the case, I do accept that the accused has come to a realisation of the full impact of his criminal conduct. That, in my view, is a starting point for effective rehabilitation. In addition I accept that the accused has demonstrated, thus far in his life, many of the attributes of a well socialized and committed member of the community who is capable of making a positive contribution to society. These are attributes which suggest that he can be rehabilitated and reintegrated into society.

[17] When all of these factors are considered then, it seems to me, the retributive purposes of punishment for so appalling a crime as that committed by the accused can be met by an appropriately lengthy period of imprisonment short of the prescribed period of life imprisonment. For these reasons I am of the view that there are indeed substantial and compelling circumstances present which warrant a departure from the prescribed sentence.

[18] The period of imprisonment imposed can of course never restore the victim to her state of being prior to this incident. No act of punishment can do so. We can at best hope that the fair and reasonable administration of justice in this case, will serve as a basis for the restoration of the victim as a valued and cherished member of the society whose rights are properly protected and whose security is assured. It is to be hoped too that the terrible damage to family and community relations brought about by the accused’s criminal conduct may, over time, be repaired.

[19] Having taken into account all of the relevant circumstances in this case, the accused is sentenced to TWENTY (20) YEARS IMPRISONMENT.

_______________________

G. GOOSEN

JUDGE OF THE HIGH COURT

Appearances:                     Adv. Loots

                                                Director of Public Prosecution

 

                                                Mr. Saziwa

                                                For the Accused

---