South Africa: Eastern Cape High Court, Grahamstown

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

Case no.CC 62/2016

Date heard: 1/11/16

Date delivered: 2/11/16

Not reportable

In the matter between:

THE STATE

and

VUSUMZI MENDILE

JUDGMENT

PLASKET, J:

[1] The accused was charged with rape as defined in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, it being alleged that, on 17 December 2015 and in the absence of consent, he had had sexual intercourse, per anum, with the complainant, a nine year old boy.

[2] The accused pleaded guilty to this charge. His plea was accepted by the State and, having satisfied myself that he had admitted all of the elements of the offence, I convicted him as charged. I now have the task of sentencing him.

[3] In doing so, I shall consider and endeavour to balance the personal circumstances of the accused, the nature and seriousness of the offence and the interests of society. The starting point, however, is that s 51(1) of the Criminal Law Amendment Act 105 of 1997, read with Part 1 of Schedule 2, prescribes a minimum sentence of life imprisonment when, as here, the victim of a rape is younger than 16 years of age. I am obliged to impose the prescribed sentence unless substantial and compelling circumstances are present that justify a departure from it. See S v Malgas 2001 (1) SACR 469 (SCA), paras 8-9.

[4] In his statement in terms of s 112(2) of the Criminal Procedure Act 51 of 1977, the accused described the commission of the offence as follows:

‘On the 17^th day of December 2015 I was at Ekuphumleni location, in the district of Kenton-on-Sea standing in the bush. I was busy smoking when I saw the complainant walking alone. I grabbed the complainant and closed his mouth and eyes with a piece of cloth. I pulled the complainant to a secluded place where after I instructed the complainant to lie down on his stomach. I further asked the complainant to undress. I also undressed myself and thereafter raped the complainant anally. After I raped the complainant I left the complainant on the scene. I was later confronted by the police which led to my arrest.’

[5] The accused also stated that he was remorseful and that he had been under the influence of dagga at the time he committed the offence, although he was able to and did appreciate the wrongfulness of his conduct.

[6] The accused was 20 years old at the time of the commission of the offence. He has a grade 3 education, is single, has no children, is unemployed and lives with his parents and siblings. He is a first offender.

[7] It is beyond doubt that the offence that the accused committed is a serious one. Children are particularly vulnerable to predatory conduct on the part of adults such as the accused. It is clear from the facts that the accused’s attack on the complainant was opportunistic rather than planned.

[8] Although the complainant suffered bruising and redness to his anus, it is clear from the J88 form that his physical injuries were not particularly serious. They do not appear to be permanent in nature. He has, however, as one would expect, suffered a degree of psychological trauma as a result of his experience. According to Ms Pumza Sakasa, a clinical psychologist who interviewed him to assess the impact of the rape on him, he is in need of psychotherapy to assist him to come to terms with his traumatic experience and to deal with the negative impact it has had on him.

[9] Society has a clear and obvious interest in safeguarding children from sexual and other assaults by adults. In this case, that interest must be vindicated by a long term of imprisonment. Whether that term of imprisonment should be the ultimate sentence or not is the issue to which I now turn.

[10] It seems to me that when the age and educational status of the accused are taken together, they paint a picture of an immature young man. That, together with the fact that the accused is a first offender, has expressed his remorse for what he has done and has pleaded guilty to the charge are all indications that his prospects of rehabilitation are good.

[11] I wish to say something further about the accused’s plea of guilty. It is so that DNA evidence linked him to the crime. But as both Mr Ntsila, who appeared for the State, and Mr Charles, who appeared for the accused, pointed out, often despite DNA evidence, an accused will persist in a plea of not guilty and putting the State to the proof of its case. In this instance, the accused’s plea of guilty is indicative of an acceptance of responsibility for his actions. It also saved the complainant from the trauma of having to testify and relive, as it were, his ordeal at the hands of the accused.

[12] In my view, the factors that I have listed above, taken cumulatively, amount to substantial and compelling circumstances that justify the imposition of a sentence less severe than life imprisonment. This was very fairly and correctly conceded by Mr Ntsila who nonetheless sought a lengthy term of imprisonment to be visited upon the accused.

[13] I agree with him that a long period of imprisonment is called for. In my view, a sentence of 18 years’ imprisonment is appropriate.

[14] The accused is sentenced to 18 years’ imprisonment.

________________________

C Plasket

Judge of the High Court

APPEARANCES

For the State: Mr Ntsila of the office of the Director of Public Prosecutions, Grahamstown

For the accused: Mr Charles of the Grahamstown Justice Centre