12
proper determination of sentence in light of this judgment. This is, however, not
expressly provided for in s 311 of the CPA. But in Attorney-General (Transvaal) v
Steenkamp 1954 (1) SA 351 (A) at 357F-G, this court – in the course of dealing with
the predecessor to s 311 – said that in a situation such as the present the case could
be remitted as ‘it could hardly have been the intention of the legislature that, where
the order of this court does not finally dispose of the issues raised in the first Court of
Appeal, some of those issues must . . . be left hanging in the air’. Furthermore,
having regard to the lapse of time since the imposition of sentence by the trial court,
the course suggested by counsel seems to me to be eminently reasonable as the
sentence will have to be considered afresh. The respondent may well have already
served the whole or part of the sentence imposed by the High Court. Accordingly,
whatever fresh sentence will be imposed on him, will necessarily have to take this
factor into account.
[31]
Before concluding I am constrained to say that the High Court appears to
have overemphasized the respondent‘s personal circumstances at the expense of
the gravity of the crimes and the interests of society, including those of the
complainant.
[32]
It has repeatedly been said that rape is unquestionably a despicable crime. Its
enormity in the context of the facts of this case is aggravated by the fact that the
complainant was sexually abused by her stepfather. In S v Jansen 1992 (2) SACR
368 (C) at 378G, rape was rightly described as ‘an appalling and perverse abuse of
male power’. In N v T 1994 (1) SA 862 (C) at 863C-D, 10 the court said that rape is ‘a
horrifying crime and . . . a cruel and selfish act in which the aggressor treats with
utter contempt the dignity and feeling of [the] victim’. In this case the respondent
abused his ‘position of authority and command’ over his stepdaughter.
[33]
In S v D 1995 (1) SACR 259 (A) the vulnerability of young children was
underscored. There this court said the following (at 260F-I):
‘Children are vulnerable to abuse, and the younger they are, the more vulnerable they are.
They are usually abused by those who think they can get away with it, and all too often do. .
10 The court also found (at 378E-F) that ‘an argument which seeks to invoke the consent of a nineyear old girl borders on obscene’.
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