follow if a non-custodial sentence were to be imposed.

S v TABETHE 2009 (2) SACR 62 (T) Held, that there were a number of substantial and compelling circumstances that F justified the
imposition of a lesser sentence than that prescribed by s 52 of the Criminal Law Amendment Act
2009 (2) SACR p62
105 of 1997. [The Court proceeded to list 24 such circumstances, relating to the accused, the
complainant, the offence, and the interests of the complainant's family and of society in
Citation 2009 (2) SACR 62 (T) general.] This was the first rape case that had come before the court in which restorative justice
could be applied in full measure in order to ensure, G firstly, that the offender continued to
acknowledge his responsibility and guilt; secondly, that he apologised to the victim and helped
Case No CC468/06 her to find closure; thirdly, that he recompensed the victim and society by supporting the former
and by rendering community service to the latter; and fourthly, that he continued to support his
family. (Paragraphs [35] and [36] at 67c–68f.)
Court Transvaal Provincial Division
Held, further, that although the court had to impose sentence fully conscious of H the
legislature's wish that severe minimum sentences should be imposed on rapists in virtually all
Judge Bertelsmann J circumstances, it was also obliged to impose a lighter sentence when the circumstances of a
particular case dictated it. Restorative justice was a concept that had received judicial
recognition, and there could be little doubt, in light of the challenges faced by the criminal justice
Heard January 23, 2009 system, I including perennial prison overcrowding, that the concept must find application not
only in minor offences, but in suitable matters of a grave nature. The present case was such an
instance. (Paragraphs [37]–[40] at 68f–69a.)
Judgment January 23, 2009
Accused sentenced to ten years' imprisonment, suspended for five years on condition, inter alia,
that he remain in designated fixed employment; that J
Annotations Link to Case Annotations
2009 (2) SACR p64
BERTELSMANN J
A he contribute at least 80% of his income to the maintenance of the victim and her family; and
that he perform 800 hours of community service.
Flynote : Sleutelwoorde Cases Considered
Sentence - Imposition of - Factors to be taken into account - Rape - Complainant wishing
Annotations:
accused to be sentenced in way that would enable him to continue supporting her and
family - Numerous substantial and compelling I reasons not to impose prescribed Reported cases
minimum sentence - Suitable case in which to apply principles of restorative justice -
B Dikoko v Mokhatla 2006 (6) SA 235 (CC) (2007 (1) BCLR 1): referred to
Accused sentenced to ten years' imprisonment, suspended subject to strict conditions
relating to support of complainant and her family, and subject to completion of 800 hours' S v Abrahams 2002 (1) SACR 116 (SCA): referred to
community service.
S v Genever and Others 2008 (2) SACR 117 (C): referred to
Sentence - Imposition of - Restorative justice - Rape - Concept of restorative J justice
finding application not only in minor offences, but in matters of S v M 2007 (2) SACR 60 (W): referred to

2009 (2) SACR p63 S v Maluleke and Others 2008 (1) SACR 49 (T): referred to
grave nature - Numerous substantial and compelling reasons not to A impose prescribed S v Moipolai 2005 (1) SACR 580 (B): referred to
minimum sentence - Complainant wishing accused to be sentenced in way that would
enable him to continue supporting her and her family - Accused sentenced to ten years' C S v Mvamvu 2005 (1) SACR 54 (SCA): referred to
imprisonment, suspended subject to strict conditions relating to support of complainant and S v Nkomo 2007 (2) SACR 198 (SCA): referred to
her family, and subject to completion of 800 hours' community service.
Rape - Sentence - Restorative justice - Concept of restorative justice finding B application S v Shilubane 2008 (1) SACR 295 (T): referred to.
not only in minor offences, but in matters of grave nature - Numerous substantial and Statutes Considered
compelling reasons not to impose prescribed minimum sentence - Complainant wishing
accused to be sentenced in way that would enable him to continue supporting her and her Statutes
family - Accused sentenced to ten years' imprisonment, suspended subject to C strict The Criminal Law Amendment Act 105 of 1997, s 52: see Juta's Statutes of D South Africa
conditions relating to support of complainant and her family, and subject to completion of 2007/8 vol 1 at 1-523.
800 hours' community service.
Case Information
Headnote : Kopnota
The accused pleaded guilty to a charge of raping the 15-year-old daughter of his life companion, Imposition of sentence. The facts appear from the judgment of Bertelsmann J.
and was duly convicted. The matter was referred to the D High Court for sentencing, where it Judgment
became apparent that both the complainant and her mother regarded it as desirable that the
accused should not be sent to prison; rather, he should be sentenced in such a way that he could Bertelsmann J:
continue to support them and other members of the family, as he had been doing both before E [1] The accused was found guilty of the rape of N, the daughter of his life companion.
and since the incident. At the court's request a victim/offender programme was conducted prior
to the imposition E of sentence, with the aim of determining whether the complainant's wishes [2] He raped her 18 days before her 16th birthday.
regarding sentence were genuine and capable of benefiting those affected by the crime. It was [3] N was emotionally and psychologically traumatised, but was not F physically injured.
also ascertained that a suitable community service programme existed which the accused could
[4] At the time the accused had been staying for some years with N's mother.
[5] He was and still is in steady employment. He has been in the service of the same employer
throughout.
G [6] For some years before the rape the accused had been providing for the family consisting
of himself, N's mother, the victim N, the victim's younger sister S, and a boy that was born of the
union between the accused and N's mother prior to the offence, J.
[7] It took four years to finalise the trial before this court that H commenced in the regional
court during 2004. Shortly before the proceedings drew to a close, another son was born to the
victim's mother, G.
[8] The accused is also the father of this child.
[9] Immediately after the rape the accused was shown the door by the I victim's mother, but
continued to support the family as he had done before he committed the offence.
[10] The victim stayed for some time with her maternal grandmother before moving back into
the family home.
[11] This home is a modest RDP house that was apparently bought by J the victim's mother.
The evidence is not quite clear regarding the exact
2009 (2) SACR p65
BERTELSMANN J
nature of this transaction. In any event, all rentals or instalments - if A these were indeed paid
- and other household expenses have been provided for by the accused at all relevant times.
[12] The accused was arrested shortly after the offence was committed and duly charged in the
regional court.
[13] He pleaded guilty. B
[14] The case was referred to this court for sentencing in terms of s 52 of Act 105 of 1997. It
was placed on the circuit court roll for 2006.
[15] The accused was granted bail by the regional court shortly after his arrest and remained on
bail throughout the time his trial took to wend its way to finality in 2008. He attended every
court session. C
[16] The accused repeated his plea of guilty when the sentencing proceedings started in this
court. He was clearly remorseful. The conviction was confirmed.
[17] The matter had to be postponed on several occasions to finalise the D victim-impact
report and to present the findings thereof in evidence.
[18] When the victim's mother testified for the first time, she pleaded strongly that the accused
should be sent to jail for a long period. It was apparent, however, that she was uncomfortable in
the witness stand, and became more so when confronted in cross-examination with the fact that
E she was dependent upon the accused. Eventually it became clear that she felt obliged to plead
for the incarceration of the accused because she was under the impression that the authorities
expected her to do so, while her true feelings were much more ambivalent.
[19] The matter had to be postponed again in order to lead the evidence F of the victim
herself.
[20] She entered the witness stand, by now a young adult, very clearly under considerable
stress and torn by conflicting emotions. She stated that she was still deeply hurt by the fact that
she had been subjected to a violent offence by a man she had trusted. On the other hand she
G pleaded that the accused should not be sent to jail because the entire family, including herself,
depended upon his income. One of her siblings was chronically ill and the accused provided for
her medical treatment. She herself was still attending school and needed his support to continue
her education.
[21] Because of the obvious conflict of emotions she was experiencing, H and because the
court suspected that she might have been influenced against her will to present a plea on behalf
of the accused that her mother had been too wary to raise, I invited her to see me in chambers
in the company of my clerk only, who speaks her mother tongue fluently.
[22] I impressed upon her that she had an inalienable right to convey her I own emotions,
feelings and convictions, her own view of a suitable sentence for the accused, that the court was
obliged to pay attention to her wishes and that she was free to tell the court whatever troubled
her. She was advised that she was under no duty to convey the views of third parties as her own
in the witness box. J
2009 (2) SACR p66
BERTELSMANN J
A [23] She was also informed that, if necessary, she could testify in the absence of the
accused or through an electronic device if necessary. She declined the offer.
[24] After a long discussion the complainant returned to the witness stand and reiterated that
she regarded it as being in the best interests of B her family and herself and her further
schooling that the accused should not be sent to a correctional institution.
[25] She quite obviously assumed that the accused and her mother would continue their
cohabitation and that the accused would continue C to provide for the family.
[26] The matter could not be finalised at that juncture and the court requested that a
victim/offender programme be launched, involving the accused and the victim, under the
guidance of the local probation officer and supervised by the Restorative Justice Centre in
Pretoria, which D kindly agreed to make its good services available to assist in this regard.
[27] Neither the defence nor the prosecution objected to the programme being implemented at
that somewhat unusual stage, prior to sentence being imposed.
[28] The court was of the view that the programme was essential to E determine whether the
wishes expressed by the complainant regarding the sentence of the accused were indeed
genuine and had a realistic prospect of being realised for the benefit of every individual affected
by the crime.
[29] After a somewhat uncertain start, the programme was successfully F concluded, as was
testified by Ms Nyundu, the probation officer who acted as facilitator thereof.
[30] During this programme a meeting was arranged between the offender and the victim,
during which the accused formally apologised for his misdeed, which apology was accepted.
G [31] A formal agreement was drawn up between the accused and the victim, in which the
parties agreed upon the way they would regulate their interaction in the family in future. The
agreement provides, inter alia, for a referral to this court if the accused should ever again act in
an untoward fashion toward the complainant.
H [32] It was clearly conveyed to all involved that participation in the programme would not
necessarily result in a non-custodial sentence for the accused, as was evident from the notes
kept of the proceedings by the probation officer.
[33] During the programme the accused and the complainant discussed I the crime that the
former had committed. These discussions were recorded by the probation officer. When an
appropriate sentence for the accused was discussed, the record reads as follows:
(The victim) indicated that she was satisfied that the offender used the program(me) effectively to apologise
for what he did to her. She further J indicated that she will be satisfied with any sentence that the court
2009 (2) SACR p67
BERTELSMANN J
might impose on the offender, although her wish is not to see the A offender being sentenced to
imprisonment. . . .'
In the light of this report the court enquired from the probation officer whether a suitable
community service programme existed in her jurisdiction, that the accused could follow if the
court were to consider a sentence of correctional supervision rather than imprisonment. B
[34] A suitable programme was available in Delmas that included a sexual offender programme.
[35] After establishing the accused's disposable monthly income and the fact that the victim was
still at school in grade 10, the court found that C there were a number of substantial and (u)
compelling circumstances that, individually and collectively, justified the imposition of a lesser
sentence than the minimum sentence of life imprisonment prescribed by Act 105 of 1997 in Part
I of Schedule 2 thereto, read with s 51 of the Act. The substantial and compelling circumstances
are the following: D (v)
(a) The accused is a first offender;
It was also not in the interests of society to create secondary victims C by the
imposition of punishment upon the accused, that would leave at least five indigent
persons dependent upon social grants;
The accused represents no threat to the community or society at large, as it is highly
unlikely that he will reoffend;

(b) The accused exhibited remorse throughout; and (w) The accused is a good candidate for rehabilitative therapy and is D able to render
community service at a suitable facility that is available;
(c) Pleaded guilty at both stages of the trial;
(x) He spent four years on bail while the trial was in progress, attended every single court
(d) Genuine remorse should be taken into account, S v Genever and Others 2008 (2) date and observed his bail conditions.
SACR 117 (C);
[36] In the light of these facts, the court was of the view that this case was E the one rape
(e) Although the victim was under 16 when the offence was committed, E she reached case - certainly the first this court has dealt with - in which restorative justice could be applied in
that age within a few days of that date; full measure in order to ensure that the offender continued to acknowledge his responsibility and
guilt; that he apologised to the victim and cooperated in establishing conditions through which
(f) The rape was not preceded by grooming of the victim but occurred on the spur of the she may find closure; that he recompensed the victim and F society by further supporting the
moment; former and rendering community service to the latter; and that he continued to maintain his
family.
(g) Although rape is always a heinous crime, particularly if it occurs within the family, S v
Abrahams 2002 (1) SACR 116 (SCA), and F ought to attract a severe sentence, S [37] Although the court is obliged to sentence a convicted rapist fully conscious of the fact that
v M 2007 (2) SACR 60 (W), it is not irrelevant that the victim was not injured the legislature has expressed its wish that severe minimum sentences should be imposed on
physically; such offenders under virtually G all circumstances, S v Mvamvu 2005 (1) SACR 54 (SCA), the
court is obliged to impose lighter sentences when the circumstances of the particular case
(h) The rape was therefore not one of the worst kind of rape, S v Nkomo 2007 (2) SACR exhibit the substantial and compelling circumstances that dictate a lesser sentence, S v
198 (SCA); Moipolai 2005 (1) SACR 580 (B).
(i) The accused had remained involved in the family of which he and the victim were [38] Restorative justice is a concept that has received judicial recognition H in recent
part; G judgments. See the minority judgments of Mokgoro J and Sachs J in Dikoko v Mokhatla 2006 (6)
SA 235 (CC) (2007 (1) BCLR 1); S v Shilubane 2008 (1) SACR 295 (T); and S v Maluleke and
(j) The accused continued to support the family, including the victim, throughout the Others 2008 (1) SACR 49 (T).
period from the commission of the offence to the end of the trial;
I [39] If restorative justice is to be recognised in South Africa - and in the light of the serious
(k) The accused and the victim's mother resumed their cohabitation during the trial and challenges faced by our country's criminal justice system and the perennial overcrowding of our
another child was born from this union before H the sentencing process was correctional institutions there can be little doubt that its application and integration into our law
concluded; is essential - then it must find application not only in respect of minor offences, but also, in
appropriate circumstances, in suitable matters of a J grave nature.
(l) The family was entirely dependent upon the accused;
2009 (2) SACR p69
(m) The victim was fully aware of this fact and came to the conclusion that it would not be
in the family's interest that the accused be incarcerated; BERTELSMANN J
[40] If this statement is correct, the present case is an instance in which A restorative justice
(n) This conclusion was reached in spite of the fact that the victim was I suffering
provides a just and appropriate sentence that punishes the accused, restores the victim, helps to
obvious emotional trauma as a result of the invasion of her physical, emotional and
heal the damage done by the commission of the crime and benefits society by ensuring the
psychological integrity to which she had been subjected;
rehabilitation of the offender and the rendition of community service.
(o) This conclusion was reached by the victim independently and without obvious outside [41] In the light of the extraordinary circumstances of this case the court B imposed the
influence; J following sentence:
Ten years' imprisonment, suspended for five years on condition that:
2009 (2) SACR p68

BERTELSMANN J (a) The accused is not convicted, during the period of suspension, of a crime involving
A (p) The accused and the victim participated in a successful victim/offender violence or a sexual element or both;
programme; (b) That he remain in the employment of Mr Roussow unless he is C laid off through no
(q) The accused maintained his employment and fulfilled his obligations in that regard fault of his own;
throughout the trial; (c) In such event he must immediately do everything necessary to find alternative
(r) If the accused were to be sentenced to imprisonment, he would lose B his employment;
employment and income and the family would lose its only source of support; (d) From his income, at least 80% must be devoted to the support of the victim and her
(s) This might lead to the loss of the family home; family. In particular, the accused must accept responsibility for the victim's
schooling and, if applicable, for her D tertiary education;
(t) It was clearly not in the family's interest to remove the accused from their lives;
(e) Such support for the family is to continue even if his relationship with the victim's
 mother is terminated for whatever reason;

(f) The accused must report on one day each weekend (subject to his work programme,
which normally entails working one day each E weekend) to the probation officer
at Delmas and participate in any programme that such officer might prescribe;

(g) Such programmes must include a Sexual Offender's Programme to be attended at the
accused's cost;

(h) The accused is to perform 800 hours of community service of a F nature to be

determined by the probation officer during the period of suspension. (This
represents the maximum number of hours the accused can serve, as he is only
available on one day of every weekend.)

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