South Africa: Eastern Cape High Court, Grahamstown

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

Case no.CC 42/2016

Date heard: 17/11/16

Date delivered: 18/11/16

Not reportable

In the matter between:

THE STATE

and

MHLABUNZUMA MILISI

JUDGMENT: SENTENCE

PLASKET, J:

[1] I convicted the accused of the offence of rape, finding that between 2014 and 26 January 2015 he had raped the complainant, a nine year old girl, on three occasions. I am now required to impose an appropriate sentence on the accused.

[2] The accused is the complainant’s uncle. The rapes occurred in the accused’s home when the complainant had been sent there on errands. The accused pleaded not guilty, necessitating the calling, by the State, of witnesses, including the complainant. At the end of his cross-examination by Ms Hendricks, who appeared for the State, the accused admitted that he had raped the complainant on three occasions, as she had alleged. He confirmed this when he was re-examined by his counsel, Mr Solani.

[3] In determining an appropriate sentence, I am required to consider and balance the nature and seriousness of the offence, the personal circumstances of the accused and the interests of society.

[4] The interests of society in a case such as this are obvious. The rape of a child, particularly when the rapist is a relative, is a heinous crime. In S v MDT 2014 (2) SACR 630 (SCA) at para 7 the court spoke of the need to impose heavy sentences in cases such as this in order ‘to prevent young girls from being abused’. It also spoke of the prevalence of the rape of children, describing it as ‘a national scourge that shames us as a nation’.

[5] It is, no doubt, for these reasons that the legislature saw fit to impose a prescribed sentence of life imprisonment for the rape of a child younger than 16 years. That sentence may be deviated from if substantial and compelling circumstances justify a less severe sentence. It has been made clear, however, that a prescribed sentence is not to be ‘departed from lightly’. See S v Malgas 2001 (1) SACR 469 (SCA) at para 9.

[7] The third rape of the complainant occurred on 26 January 2015 when the complainant was sent on an errand to her uncle’s home. She reported what had happened to her to a witness who was sitting outside the house. That witness set in motion the events that led to the charging of the accused. The complainant was examined by a forensic nurse, Sister Buyiswa Ngotyana, on the following day. She found both fresh and old injuries to the complainant’s genitals. As far as the fresh injuries were concerned, she recorded the presence of swelling, redness and abrasions.

[8] As one would expect, the rape has had a profound, on-going effect on the complainant. Ms Pumza Sakasa, a clinical psychologist, testified that after the third rape, the complainant’s performance at school deteriorated markedly. In addition, she testified that significant changes in the complainant’s behaviour had been observed by her mother. This included rude and unruly behaviour, aggression, random and unprovoked outbursts of anger, mood swings, poor attention and concentration spans and sleep disturbance. Ms Sakasa concluded that these symptoms indicate that the rape affected the complainant ‘significantly and has a negative impact on both her emotional and behavioural states’. She recommended psychotherapy ‘to assist her to come to terms with her ordeal’

[9] Ms Sakasa testified that she had spoken to the complainant’s mother about the need for psychotherapy but had been told that because of the family’s poverty it may not be possible for the complainant to be able to attend psychotherapy: although it is offered free at State hospitals, the financial problem faced by the family is an inability to pay for transport to and from the hospital. In Ms Sakasa’s view, however, it is essential for the complainant’s long term well-being that she attend psychotherapy, not to ‘cure’ her, so to speak, but to provide her with the means to come to terms with what has happened to her and with the strategies to cope with its consequences.

[10] The accused, being the complainant’s uncle, was in a position of trust in relation to her. He cruelly and cynically abused that trust by raping her on three occasions when she came to his home.

[11] The complainant is a slight child of nine years of age. She is thus substantially younger than 16 years of age, the upper age for purposes of the prescribed life sentence.

[12] I turn now to the personal circumstances of the accused. He is 46 years of age. He is single and is the father of two children. He is unemployed but does casual work from time to time. He is a first offender. He has been assessed by Mr Iain Reid, a clinical psychologist at Fort England Hospital, as being mildly mentally impaired. He is completely uneducated, either having dropped out of school in grade 1 or never having attended school at all. He is the recipient of a disability grant, which is managed by his sister.

[13] Mr Reid interviewed the accused and compiled a pre-sentence report. In his opinion, the accused’s mild mental impairment is not relevant in the sense that it did not have any impact on the accused’s knowledge of the unlawfulness of his actions or make him susceptible to committing the crimes in question. He stated that the accused had been uncooperative, had failed to take responsibility for his actions by blaming his victim and claiming that she had initiated their encounters and had shown no remorse for what he had done.

[14] I have considered the personal circumstances of the accused, which are favourable. In my view, however, they are outweighed by the enormity of the offence of which he has been convicted, its impact on the complainant and the fact that his refusal to take responsibility for his actions, his blaming of the complainant and his lack of remorse are all indications of poor prospects for rehabilitation.    

[15] In these circumstances, I am unable to find that substantial and compelling circumstances are present to justify a departure from the prescribed sentence.

[16] The accused is sentenced to life imprisonment.

___________________________

C Plasket

Judge of the High Court

APPEARANCES

For the State: Ms Hendricks of the office of the Director of Public Prosecutions, Grahamstown

For the accused: Mr Solani of the Grahamstown Justice Centre