IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE DIVISION – GRAHAMSTOWN CASE NO: CC 93/2011 In the matter between: STATE and MICHAEL HUTE Accused ____________________________________________________ SENTENCE ____________________________________________________ MAGEZA AJ: 1 [I] In this matter the accused has been found guilty by this court on one count of rape of his minor daughter who was 7 years of age at the time. At the outset, it is appropriate that this court expresses its appreciation for the commendable efforts of a non-governmental agency named the National Association of Child and Youth Care Workers Association situate within the Alexandria area. This Youth Care Workers Association employs one Ms Nomzikazi Cynthia Geleba, whose commendable selflessness led to the discovery of the victim’s predicament. [2] This court in convicting Mr Hute of the rape, commented that Ms Geleba’s work involves going door to door within the community assessing each family’s state of means or levels of poverty. Her work includes assessing possible instances of the abuse of children and women in the local households. She knew the family of the victim and they lived in a two roomed shack in Jikololo Street, Kwa-Nonkqubela Township in Alexandria. She was also familiar with the victim’s parents including the unemployed mother, one Kaytie Du Plessis, herself (as was Mr Hute), unfortunately an honeybrew beer– ‘Iqhilika’ addict. [3] The dire existential reality of this family has already been canvassed in the principal findings of this court. She said there are a significant number of poor households in the area where this young bright victim and her parents live and that her parents are addicted to ‘Iqhilika’, (honey- brewed beer) which they drink and acquire from different places within the community all the time. The complainant’s parents were in the habit of taking her along during their daily drinking binges throughout the day. [4] As a result of this, she had initially arranged with the parents for the child victim to stay over at her home each Friday and she thereafter enrolled her at the Khayalethemba Centre, this until the complainant came to stay with her after the 7th of May 2011 and following the sexual assault first coming to light and being reported to the Police. [5] When the victim failed to attend the Centre for some days and only attended on the Friday 6th May 2011, she noticed that the child could not walk properly and kept brushing and scratching her private parts and the witness realised something was seriously amiss. [6] Ms Geleba described the child prior the incident as by nature generally very active, jovial and intelligent. I noted in my principal findings that whilst testifying through an intermediary, she impressed me as bright, talkative and playful. She was obviously a very intelligent little girl who related her version of events with comfort. This may be so because she may have felt safe after being assured subsequent to being admonished. From the psychological assessment done by the clinical psychologist, it may well be that, as we shall see, this was not indicative of her real day to day responses to the sexual violation by her father. [7] In aggravation of sentence, Ms September for the state introduced into evidence, the Victim Impact Report compiled by Clinical Psychologist, Ms Pumza Sakasa who interviewed and assessed the victim. The report does not provide for optimism and expanding on the effects of the rape, it details behavioural and emotional changes as follows: “She is tearful most of the time. They find her very sensitive and touchy. She reported feeling sad and unhappy most of the time. She appears depressed. She is absent-minded and forgetful at 3 times. She is withdrawn and keeps to herself most of the time. She reports feelings of shame and embarrassment.” There are many more symptoms outlined such as ‘nightmares’; headaches, stomach cramps and abdominal pains regularly experienced by the child. The conclusion of Ms Sakasa is that: “Miss Hute impressed as clinically depressed. Her clinical presentation and description of her behaviour since the incident suggests that the rape has affected her significantly…” In her testimony, Ms Sakasa emphasised the gravity and long-term effects of rape at such a tender age before the child has had the ability to form and develop her own character and the impediments this introduces prior to this necessary phase in the life of a girl child. She said she thereafter becomes fearful not only of the father, but also of male persons in general, thereby becoming ultimately incapable of nurturing trust in relationships with men. She said to overcome this, the child would require consistent and continuous counselling, a service not available in the resource-strained Alexandria neighbourhood in which she was born. [8] This immediately brings to mind the words of Cameron JA (as he then was) in S v Abrahams 2002 (1) SACR 116 (SCA), where at para 17 he stated: “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 within reverence in the daughter’s best interest, and for her flowering as a human being. For a father to abuse the position to obtain forced sexual access to his daughter’s body, constitutes deflowering in the most grievous and brutal sense” Furthermore he went on to say: “… the fact that family rape generally also involves incest … grievously complicates its damaging effects … Deep social and religious inhibitions surround it and stigma attends it. What is grievous about incestuous rape is that it exploits and perverts the very bonds of love and trust that the family relation is meant to nurture.” [9] The Medico-Legal (J88) findings noted by Dr Nadker were that although the posterior fouchette was inflamed and with fresh bruising, there was sufficient indication of force applied to the vagina without penetration. The hymen still remained intact but there was penetration past the labia majora at the entrance of the vagina. [10] Section 51(1) of the Criminal Law Amendment Act 105 of 1997 5 provides for a sentence of life imprisonment in the case of the rape of a girl under the age of 16 years, save where there exist substantial and compelling circumstances (which must be entered on the record) justifying the imposition of a lesser sentence than that prescribed – section 51(3)(a) of the Act. [11] It is also universally accepted that courts are required to regard the prescribed sentences as being appropriate for crimes specified and enjoined not to depart unless there is weighty justification. –see S v Malgas 2001 (1) SACR 469 (SCA); S v Nchenche 2005 (2) SACR 386. [12] “The greater the sense of unease a court feels about the imposition of a prescribed sentence, the greater its anxiety will be that it may be perpetuating an injustice. Once a court reaches the point where unease has hastened into a conviction that an injustice will be done, that can only be because it is satisfied that the circumstances of the particular case renders the prescribed sentence unjust, or as some might prefer to put it, disproportionate to the crime, the criminal and the legitimate needs of society. If it is the result of a consideration of circumstances the court is entitled to characterise them as substantial and compelling and such as to justify the imposition of a lesser sentence.” – Marais JA in S v Malgas (supra) para 22. [13] What are these relevant broad circumstances that the court must evaluate in this matter? 13.1 Mr Xozwa appearing for Mr Hute put in a commendable effort and left little in his representation of the accused unattended. I do not think the accused himself took advantage of this opportunity and throughout the trial he appears to have viewed the proceedings almost as an act of Ms Geleba, the child victim and mother lining up to accuse him with lie after lie. This was his attitude to the end and he made no concession on even the most benign observations such as their addiction to ‘Iqhilika’ and the constant visits by Ms Gelebha at their home. 13.2 The state has proved a long catalogue of some 15 previous convictions involving theft and assaults against the accused. I will accept that these date back to his early childhood starting from the age of 18 and the last of these was a conviction in October 1993 relating to the theft of livestock for which he was sentenced to a two year term of imprisonment. 7 Whilst he commendably managed to keep away from the clutches of the law until the present rape in 2010, the underlying psychological foundation of these historical offences displayed itself before this court from inception to the conclusion of these proceedings. Mr Hute is simply unable to own up to any of his detrimental misdeeds. 13.3 The pre-sentence report compiled by Ms Fundiswa Matisi, a senior probation officer and handed into court by agreement reflects a long list of persons interviewed. All of these people are associated with the accused as relatives, previous employers and neighbours both in Alexandria and at Rocklands in Uitenhage where he was at some stage employed. His entire life appears to have been lived in a turbulent bubble. He is described in the interviews conducted by all and sundry as someone who has always been untruthful and dishonest. The probation officer reports that he displayed a knack for being untruthful even on his background.