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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Not reportable

DATE: 11 December 2008

CASE NO: A126/07

In the matter between:

SAMUEL NYAKI LEHONG APPELLANT

vs.

THE STATE RESPONDENT

JUDGMENT

_____________________________________________________

BOTHA J:

The appellant was charged with rape in the Regional Court at Mankweng.

The allegation was that he raped D L between April 2004 and June 2004.

The complainant was his stepdaughter. The appellant first pleaded not guilty, but when he gave evidence, he admitted that he had sexual intercourse with the complainant. He alleged that it was with her consent.

When it was put to him that the complainant, who was 22 years old, was mentally retarded, he testified that he only realized that in court.

In his judgment the regional magistrate referred to the complainant’s evidence that she submitted to the appellant because she was afraid of being assaulted by him. He remarked with regard to the complainant’s mental condition, that it was obvious even to a lay person, that she was not a normal 22 year old girl. He rejected the version of the appellant and found him guilty as charged.

In view of the fact that the complainant was raped on numerous occasions, and in view of her mental state of health, the case was referred to the High Court for sentence.

In the High Court the complainant briefly gave evidence.

Her mother testified that she stayed with the appellant for three years. The complainant left school in grade two. She, the mother, could not read. She did not perceive the complainant as mentally disturbed. She was never treated for mental of emotional conditions.

After the evidence of the complainant’s mother, appellant’s counsel suggested that the evidence had not established that the complainant was mentally ill. When, after a postponement, the report of a psychiatrist was obtained, appellant’s counsel withdrew this remark. According to the report mental retardation was diagnosed. After further exchange of submissions both parties closed their cases.

The court a quo then formally found the appellant guilty. The court rejected any suggestion that the appellant did not know what the condition of the complainant was.

The appellant then gave evidence. He was 41 years old. He and his wife had five children. He himself passed standard four. He was employed as a gardener and earning R 650.00 per month. He had no previous convictions. He expressed remorse.

The complainant’s mother testified that she was still living with the appellant. The appellant was the breadwinner.

In its judgment on sentence the court a quo repeated that it did not accept that the appellant did not know that the complainant was mentally challenged.

The court a quo concluded its judgement as follows:

“The fact that the complainant was not hurt cannot really count in your favour. The legislature has seen fit to decree that rape of a person who is unable to give consent should be punished by life imprisonment, unless there are extraordinary, substantial and compelling circumstances that would indicate a lesser sentence.

The mere fact that your family is going to loose you as an infrequent breadwinner is not such a circumstance. Nor does the fact that your wife is pleading for you at this stage to appear to me to be such a circumstance.

The question is whether the fact that you were exposed to regular temptation while your wife was not at home, is a factor that may be taken into consideration, and that you have resisted the temptation since you have been found out, according to your own evidence.

Although I hesitate to come to the conclusion, I find no extraordinary of substantial or compelling circumstances in these facts. I cannot in truth and in honesty say that there are such circumstances. What I can say is that if it had not been for the Act, I would have given you a much lesser sentence, between 15 or 18 years.

But in the light of the fact that there are no substantial or compelling circumstances, I have no choice.

Parliament has decreed that you must be sentenced to prison for life.

“Your sentence is life imprisonment.”

The simple question is whether there is anything wrong in the court’s conclusion that there were no substantial and compelling circumstances justifying a lesser sentence.

The difference between the sentence that the court suggested that it would have imposed if it had a free choice and the mandatory sentence is considerable.

The aggravating facts are considerable. The appellant abused his position of trust as stepfather. He exploited the vulnerability of a person who was intellectually impaired.

It does not appear that there was any physical and emotional damage to the complainant. She was an adult at least in the physical sense. It also does not appear that her mental deficiencies were of the worst possible kind.

In my view the matter has to be considered in the light of the fact that the mandatory sentence is at the same time the most severe sentence that a court can impose. Therefore one has to establish where it ranks in the degree of seriousness when considering whether substantial and compelling circumstances are present.

It appears from the court a quo’s own assessment that the crime did not rank so high in relative seriousness that it deserves the ultimate penalty that a court can impose. In my view a sentence of 20 years imprisonment would give adequate recognition to the gravity of the offence.

In the circumstances the following order is made:

1. The appeal against the sentence succeeds.

2. The sentence imposed by the court a quo is set aside and the following sentence is substituted for it:

“Fifteen years’ imprisonment”.

3. The sentence imposed by this court is antedated to 31 May 2005.

_________________________

C. BOTHA

JUDGE OF THE HIGH COURT

I agree

_________________________

K MAKHAFOLA

ACTING JUDGE OF THE HIGH COURT

I agree

_________________________

S.P MOTHLE

ACTING JUDGE OF THE HIGH COURT

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