THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

Not Reportable
Case No: 945/2018

In the matter between:

TYRONE VENTER

APPELLANT
and
THE STATE

RESPONDENT

Neutral citation: Tyrone Venter v The State (Case no 945/2018) [2020] ZASCA
14 (24 March 2020)
Coram:
SALDULKER, SWAIN, ZONDI, VAN DER MERWE and
MOKGOHLOA JJA
Heard:
18 February 2020
Delivered: 24 March 2020
Summary: Criminal Procedure – sentence of four years’ imprisonment in terms
of s 276(1)(i) of the Criminal Procedure Act 51 of 1977  for contravention of s
15(1) of the Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007 and s 17(a) of the Domestic Violence Act 116 of 1998 taken
together – sentence not disturbingly inappropriate – no misdirection – appeal
dismissed.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Khumalo J and
Swanepoel AJ sitting as court of appeal):
The appeal is dismissed.

JUDGMENT

Mokgohloa JA (Saldulker, Swain, Zondi and Van der Merwe JJA
concurring)

[1] The appellant was convicted in the Regional Court for the Regional
Division of Gauteng, Pretoria on a contravention of s 15(1) of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Act) as
well as a contravention of s 17 (a) of the Domestic Violence Act 116 of 1998 (the
Domestic Violence Act). Both counts were taken together for the purposes of
sentence.  He was sentenced to four years’ imprisonment in terms of s 276(1)(i)
of the Criminal Procedure Act 51 of 1977 (the CPA). He appealed to the Gauteng
Division of the High Court, Pretoria against his sentence, but it was dismissed.
The appeal against sentence is with the special leave of this Court. The issue in
the appeal is whether the trial court properly exercised its discretion in respect of
sentence.

[2] Before turning to consider whether the sentence imposed on the appellant
was appropriate, a brief consideration of the background facts is necessary.
During 2006 the appellant, who was 19 years old at the time, was employed as a
sports coach for swimming and cricket at Cornwall Hill College, the school
attended by the complainant. The complainant was 12 years old and in grade
seven. Like the appellant, the complainant was a swimmer and they were
members of the University of Pretoria Sports Institute and would sometimes train
together at the university’s swimming pool.

[3] Although their friendship started off as being purely platonic, it progressed
into an intimate one which included sexual intercourse. They regularly
communicated with each other by text messages and through social networks like
Mxit. The appellant would invite her to come and visit him at his residence at the
University of Pretoria. He would also ask her to come and watch him while he
was coaching other swimmers. There they would engage in physical contact that
included ‘high fives’, hugging and holding hands.

[4] The complainant’s parents did not approve of this relationship, given the
age difference of seven years between the complainant and the appellant.   The
parents made various efforts to end this relationship but their efforts failed. The
complainant’s father took away the complainant’s cell phone but this did not deter
her as the pair continued to communicate and see each other. They did so by using
the complainant’s friends’ cell phones and by writing letters to each other. At
some stage the complainant’s father phoned the appellant and requested him to
stay away from the complainant, to no avail. In June 2007 the complainant’s
parents obtained an interim domestic violence protection order in terms of the
Domestic Violence Act against the appellant, which prohibited him from having
any contact with the complainant. The interim protection order did not serve its

purpose, as the appellant simply ignored it and they continued to have contact,
with each other.

[5] During 2007 the complainant invited the appellant to attend a carnival at
her school so that they could spent some time together. The appellant honoured
the invitation and attended the carnival. At some stage, the appellant and the
complainant moved away from the crowd and walked to a parking lot near the
swimming pool. They started hugging and kissing each other. At that time, the
complainant’s mother arrived at the school and witnessed the kissing.

[6] In December 2007 the domestic violence protection order was made a final
order.  Again, the appellant ignored its provisions and they continued
communicating with each other. In April 2008 the complainant and the appellant
attended the national swimming championships in Durban.   They would meet to
hug and kiss each other.

[7] The complainant attained the age of 15 years in May 2008. Around this
time, the pair discussed having sexual intercourse. The complainant informed the
appellant that because of her religious beliefs, she could not have sexual
intercourse before marriage. The appellant then started pushing the boundaries
sexually, by stating that it would take a lot of self-control for him not to be
tempted by the complainant and he would push his pelvic area into her when
kissing her, or put his hand under her shirt. The appellant then decided to give her
a ring as a symbol that they would be together forever. On 2 June 2008 they had
sexual intercourse in the changing room of the squash court near the swimming
pool where the complainant and the appellant trained. They continued to have
sexual intercourse regularly at different places.

[8] During 2010 the complainant’s parents hired the services of a private
investigator. They discovered that the appellant had continued to have contact
with the complainant in spite of the protection order. The complainant’s parents
also discovered that the appellant and the complainant had had sexual intercourse.
The complainant’s father confronted the appellant in the presence of the
complainant about his relationship with the complainant. He asked the appellant
if the complainant had ever been to his place and whether he and the complainant
had ever had sexual intercourse. The appellant denied this. The complainant’s
parents then opened a criminal case against the appellant. The appellant persisted
in his denial, of having had sexual intercourse with the complainant, including
during the trial.

[9] In sentencing the appellant, the trial court took into consideration his
personal circumstances, the interest of society, the nature of the offences and the
fact that the appellant had committed separate offences in terms of the Act and
the Domestic Violence Act. In order to ameliorate the effect of the sentence, the
trial court decided to take both offences together for the purposes of sentence.

[10] Before us, counsel for the appellant submitted that the trial court
misdirected itself by over-emphasising the seriousness and prevalence of the
offence without having proper regard to the appellant’s personal circumstances.
Counsel submitted that the trial court had failed to take proper consideration of
the nature of the relationship between the appellant and the complainant, which
had according to him gradually developed into a love relationship. It was only
after two years that their relationship had become sexual when the complainant
had turned 15. Counsel also submitted that if the appellant’s intentions were
purely sexual, he would have insisted on sexual intercourse sooner. He submitted
that the appellant had no malicious intent, but rather inappropriately fell in love
with a girl, much too young for him.

[11] In S v Bogaards, it was held that an appellate court’s power to interfere
with sentences imposed by lower courts was as follows;

‘It can only do so where there has been an irregularity that results in a failure of justice; the
court below misdirected itself to such an extent that its decision on sentence is vitiated; or the
sentence is so disproportionate or shocking that no reasonable court could have imposed it.’1

[12] The question is whether the trial court misdirected itself to such an extent
by imposing a sentence of four years’ imprisonment in terms of s 276(1)(i)of the
CPA, that the sentence is vitiated; or the sentence is so disproportionate or
shocking that no reasonable court could have imposed it. In my view, the trial
court did not misdirect itself as suggested by counsel. The submissions have no
factual foundation as the appellant consistently denied that a genuine love
relationship between him and the complainant gradually led to sexual intercourse.
For the following reasons, I regard the sentence as appropriate. The complainant
was 12 years old and appellant was 19 years old, and the complainant looked up
to the appellant as her swimming role model.  Aside from their age difference,
the appellant was employed by her school to coach swimming. The appellant was
in a position of authority and trust with regard to the complainant.  In spite of this,
the appellant began grooming the complainant when she was still young, and
when she was 15 years old, he began a sexual relationship with her.

[13] On numerous occasions, the complainant’s parents begged him to stop any
contact with the complainant to the extent that they obtained a domestic violence
protection order against the appellant. The appellant ignored the court order and
continued to engage with the complainant. The appellant knew that the
complainant believed in abstaining from sex until marriage, however, he seduced

1 Bogaards v S [2012] ZACC 23 (CC); 2013 (1) SACR 1 (CC); 2012 (12) BCLR 1261 (CC) para 41

her into acceding to his requests for sexual intercourse, by giving her a ring to
assure her that this was no fleeting relationship.

[14] When the complainant’s father confronted the appellant about him having
had sexual intercourse with the complainant, the appellant denied it and persisted
with this denial throughout the trial. The first time he admitted that he had had
sexual intercourse with the complainant was when he applied for special leave to
appeal to this Court. In my view, this was done to persuade this Court to grant
him special leave. In the circumstances, the appellant does not take responsibility
for his actions, which have not only affected him, and his swimming career, but
also the complainant and her swimming career.

[15] Central to the argument of the appellant was that correctional supervision
was a suitable sentence in the present case.  The probation officer viewed
correctional supervision as a suitable sentence, together with a suspended
sentence, for the contravention of the protection order. The appellant submitted
that in terms of s 276 (3) (a) of the CPA, specific provision is made for the
imposition of a suspended term of imprisonment, in addition to correctional
supervision. The probation officer however agreed, that the appellant did not take
responsibility for the sexual intercourse, because he still denied that he had had
sexual intercourse with the complaint, as at the time the probation officer gave
evidence.  The appellant did however accept that he had caused harm to the family
of the complainant. The probation officer also stated that the appellant, because
he did not take responsibility for his actions, did not have real regret and remorse
for what had happened.

[16] The State therefore correctly submitted, that the appellant displayed no real
remorse for what he had done and that nothing in the evidence showed that he
had accepted the seriousness of his conduct and intended to make such amends,

as lay within his power. The State submitted that there was no remorse, no regret
and therefore no hope of rehabilitation on the part of the appellant and pointed to
the age gap of seven years between the complainant and the appellant, as an
aggravating factor. The complainant was only 12 years old and the appellant 19
years old, when the relationship started. In addition, the complainant was only 15
years old and the appellant 22 years old, when sexual intercourse first took place.
A further aggravating feature was that the appellant disregarded, over a period of
time, the consequences of the contravention of the protection order that was in
place.  In addition, it was the appellant and not the complainant who pursued the
sexual interaction and from the letters exchanged between them, the complainant
was not ready for sexual intercourse. The State submitted that the appellant used
the complainant’s youthfulness in order to manipulate her discreetly into
submission. The State accordingly disputed that the Magistrate overemphasised
the interest of the community, at the expense of the personal circumstances of the
appellant. The Magistrate had considered all of the circumstances of the case, in
deciding that the sentence was proportionate to the offences, of which the
appellant had been convicted.

[17] There is, accordingly, in my view, no basis to find that the trial court
misdirected itself in imposing the sentence of four years’ imprisonment in terms
of s 276(1)(i) of the CPA, in terms of which the appellant may be placed under
correctional supervision in his discretion by the Commissioner of Correctional
Services.  As decided in S v Scheepers 2006 (1) SACR 72 (SCA) para 10, this
section is appropriate where it is decided that a custodial sentence is essential, but
the nature of the offence, suggests that an extended period of incarceration is
inappropriate. It achieves the object of a sentence unavoidably entailing
imprisonment, but mitigates it substantially, by creating the prospect of early
release on appropriate conditions, under a correctional supervision program. In
terms of s 73 (7) of the Correctional Services Act 111 of 1998, the appellant must

serve at least one sixth of his sentence ie 8 months, before being considered for
placement under correctional supervision. There is accordingly no basis upon
which to find, that the sentence imposed by the trial court is so disproportionate
or shocking, that no other court would have imposed such a sentence. This Court
is therefore not entitled to interfere with the sentence imposed by the trial court.
The appeal must accordingly fail.

[18] In the result, the following order is made:
The appeal is dismissed.
__________________
F E Mokgohloa
Judge of Appeal

APPEARANCES

For appellant:
P Pistorius
Instructed by:
Emile Viviers Attorneys, Pretoria
Symington & De Kok Attorneys, Bloemfontein

For respondent:
S Scheepers

Instructed by:
Director of Public Prosecutions, Pretoria
Director of Public Prosecutions, Bloemfontein