Quote of the week
Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Submission on Mogoeng’s handling of child sexual abuse cases
Submission prepared by Nicole Fritz at the Southern Africa Litigation Centre based on a review of Justice Mogoeng Mogoeng’s rulings in cases of child sexual abuse
August 2011
S v Mathule (CA 243/03) [2004] ZANWHC 6 (19 March 2004)
This case involved an appeal to the Full Bench of the High Court, presided over by Hendriks J, Landman J and Mogoeng JP. The case concerns an appeal against a conviction of rape of a 7 year old girl and the life sentence imposed.
The conviction was upheld. However, the sentence was reduced from life imprisonment, the minimum sentence imposed by law, to 18 years. While rape is a serious offence, the rape of a young child is a particularly egregious act. Nowhere in the judgment did the court appreciate the serious nature of the offence, or reflect on the prevalence of child rape. Hendricks J, writing for the court, in which Mogoeng JP concurred, found that substantial and compelling circumstances existed to justify a departure from the sentence imposed by the court a quo.
The Supreme Court of Appeal has found that the prescribed sentence is life imprisonment in cases of rape of girls under the age of 16 unless “weighty justification” exists justifying a departure.[1] In Mathule the following grounds were listed as serious and compelling circumstances justifying departure from the imposition of life imprisonment –
– Apellant is 31 years of age;
– He is unmarried;
– He is unemployed;
– He is suffering from chronic epilepsy;
– His highest qualification is standard 7;
– He is staying with his unemployed mother.
Yet no explanation was provided for why these factors constitute “substantial and compelling circumstances”. In the main, these factors, apart from the appellant’s illness, do not obviously call for leniency on the part of the criminal justice system. At best, an impression of arbitrariness is created: at worst, that child rape is not among the most egregious crimes in our country deserving the law’s full effect.
S v Sebaeng (CA 16/2007) [2007] ZANWHC 25 (22 June 2007)
This case concerned an appeal against conviction of rape of a 14 year old girl. The appeal was dismissed. Yet certain observations by Justice Mogoeng give rise to apprehension as to his ability to comprehend the full and devastating impact of sexual violence. In his evaluation of the evidence, he pointed to certain “shortcomings” in the victim’s evidence:
“She claims that the sexual intercourse was very painful but there was clearly nothing about her to suggest that she was in any pain when she arrived home and even during her stay there at her grandmother’s home … When she arrived at her grandmother’s home, the only strange things observed and spoken about by those who saw her were the Simba chips, the R30.00 and the 9 o’clock appointment with the Appellant.”
Justice Mogoeng fails to acknowledge that victims react to rape in different ways. More disturbingly, he appears to suggest that rape might be perpetrated with solicitous regard:
“One can safely assume that [the accused] must have been mindful of her tender age and thus so careful as not to injure her private parts, except accidentally, when he penetrated her. That would explain why the child was neither sad nor crying when she returned from the shop notwithstanding the rape. In addition to the tender approach that would explain the absence of serious injuries and the absence of serious bleeding, he bought her silence and cooperation with Simba chips and the R30.00.”
S v Serekwane (175/05) [2005] ZANWHC 52 (1 August 2005)
Mogoeng JP, concurring in judgment concerning an appeal of conviction and sentence for the attempted rape of a 7 year old girl, found that the evidence wasn’t sufficient to justify the conviction of attempted rape and instead substituted the conviction with that of indecent assault and reduced the sentence from 5 years to 3.
This case also evinces a disquieting misunderstanding of the responses to rape and the consequences thereof.
The case turned on the evaluation of the medical evidence. The doctor found bruising in the entrance of the victim’s vagina and this was indicative of “something coming into contact with [the victim’s] genitals” Because the victim’s dress was covering her head she was unable to confirm whether the accused used his finger or penis to abuse her. The court however found that because the victim “did not feel pain whatsoever … at the time of being touched” that this “militates against the Magistrates conclusion that the Appellant’s penis caused the injury”. Yet the complainant testified to the accused using his hands to hold her around the waste during the course of the attack.
The conviction of attempted rape was set aside and substituted with a conviction of indecent assault. In reducing the sentence to three years the following were considered relevant –
– The accused was 30 years old and a first time offender
– He is married with two children
– The accused is a soldier who earns R1800.00 per month.
The relevance of these factors was not explained.
In relation to the harm suffered the court found that
“The complainant is seven years old, the injury she sustained is not serious. She sustained a bruise on her vestibule. Although there was no direct evidence led, she must have suffered some psychological trauma, as a result of this incident.” (emphasis added)
It is hard to see how an injury to a seven year old which results from sexual abuse, perpetrated by a “friend of the [victim’s] father”, can ever be classified as “not serious”.
S v Maluleka (CA 20/2008) [2008] ZANWHC 23 (4 August 2008)
This case involved an appeal against a sentence of life imprisonment imposed on a man for murdering his wife. The judgment written by Landman J, in which Mogoeng JP concurred, upheld the appeal and reduced the sentence to 18 years on the basis that “substantial and compelling circumstances” had been shown. The circumstances in which the murder took place, and which were taken into account by the appeal court, include:
– The accused murdered his wife in front of two of his children, aged 9 and 13;
– He asked the children if he should kill his wife;
– The murder took place in the course of a domestic quarrel in which the wife was accused of spending too much money;
– The accused expressed remorse;
– The accused had no previous convictions;
– The accused had four young children;
– The accused handed himself over the police;
– The accused believed, “albeit unjustifiably”, that his wife was having an affair.
Again, no justification was provided as to why these factors might be classified as “substantial and compelling”, meriting reduction in sentence. Several of the factors cited appear particularly aggravating, not least that he sought to involve his children in the killing and that he required them to bear witness to their mother’s death.
