- S V Amerika 2017 (1) SACR 532 (WCC)
In Pollex in Servamus: March 2017, there appears a discussion entitled "Something to ponder over for all our ladies - Dlamini v Minister of Police 2016 (2) SACR 655 (GJ)”. In this case, Mr Dlamini allegedly committed rather serious offences against his wife, Ms Turnbull, with whom he was embroiled in divorce proceedings, although they were still living together.
However, in due course the case (which was the subject of the offences referred to supra) was eventually withdrawn against Dlamini at the instance of Ms Turnbull.
At the conclusion of the Dlamini discussion supra, Pollex remarked as follows:
"With this in mind [withdrawal of cases of this nature], victims (complainants) of domestic violence of whom many are females must be careful that they are (as the song goes) not being branded as 'fickle' (Afrikaans: 'wispelturig) and, in the process, lose sympathy when they withdraw such cases, despite the violence perpetrated against them."
In S v Amerika 2017 (1) SACR 532 (WCC), Mr Amerika was convicted and sentenced before the High Court in Cape Town ("the court") for several offences in respect of the woman (Ms X) with whom he was involved in a romantic relationship from which a child was born. The offences and sentences are as follows:
Count 1: Kidnapping of Ms X - three years' incarceration;
Count 2: First rape of Ms X - life incarceration; and
Count 3: Second rape of Ms X - life incarceration.
Sentences imposed on counts 1, 2 and 3 supra, to run concurrently.
According to the court's judgment, it was a highly abusive relationship. Of importance is that Ms X, at some stage, obtained an interim protection order (apparently in terms of the Domestic Violence Act 116 of 1998). Ms X, however, did not seek to have this order made a final one because Amerika promised not to engage in any act of assault or abuse against her.
After this, on 6 April 2015, Amerika wanted to resume their relationship. The response of Ms X to this is not clear. However, the following day on 7 April 2015, Amerika kidnapped Ms X and then raped her twice - thus the three charges supra.
On the following day, 8 April 2015, Ms X again obtained a protection order (it is not clear whether this was an interim or a final one).
After this, Ms X did not have any contact with Amerika until they resumed their relationship during 2015*. According to Ms X's evidence in court as referred to in paragraph  of the judgment, "she said that after he (Amerika) asked her to take him back and made promises to her, she once again had forgiven him for what he had done to her".
During sentencing proceedings, the question was raised whether or not Ms X's reluctance to pursue the criminal charges against Amerika (because of their relationship), could be regarded as a mitigatory factor (Afrikaans: "versagtende faktor") or a substantial and compelling circumstance, justifying deviation from the prescribed minimum sentences as referred to in the Criminal Law Amendment Act 105 of 1997. The court held that it could not. According to the court, this would clearly send the wrong message and would be contrary to the values of the Constitution. It would furthermore undermine the dignity and humanity of abused women in this country. It would send out the message that men who make themselves guilty of spousal abuse or partner abuse by raping their partners will escape the full might of the law. In the court's view, when rape is committed in the context of an abusive relationship, this should be regarded as an aggravating factor in the consideration of an appropriate sentence.