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[2013] ZASCA 170
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Mudzanani v S (179/13) [2013] ZASCA 170 (26 November 2013)
THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 179/13
In
the matter between:
ROBERT
RUDZANI MUDZANANI
.
...................................................
Appellant
and
THE
STATE
.........................................................................................
Respondent
Neutral
citation:
Mudzanani
v S
(179/13)
[2013]
ZASCA 170
(26 November 2013)
Coram:
Ponnan, Shongwe, Petse
JJA
Heard:
26 November 2013
Delivered:
26 November 2013
Summary:
ORDER
_______________________________________________________________
On appeal from:
JUDGMENT
________________________________________________________________
Ponnan JA
(Shongwe and Petse JJA concurring)
[1] The appellant,
Rudzani Mudzanani, then 35 years old was convicted of raping his
mentally retarded, 10 year old biological daughter.
He was sentenced
by the Venda High Court (per Makoba J) to imprisonment for life being
the minimum sentence prescribed by the legislature
for an offence of
this kind in terms of the
Criminal Law Amendment Act 105 of 1997
. The
appellant appeals with the leave of the high court against the
sentence.
[2] The high court
observed that:
'You have been found
guilty of raping your own child, biological child for that matter.
That child looked upon you as her protector.
Instead of protecting
the poor child, you happened [to be] the very same person who
molested her.'
In the
circumstances, the high court viewed the offence 'in a very very
serious light'. In arriving at that conclusion the high
court took
into account that the complainant had sustained very serious, perhaps
even potentially life-threatening, injuries as
a result of the attack
on her by the appellant. In this regard the high court recorded:
'. . . that both the
labia minora and the labia majora were lacerated. The vestibule as
well as the hymen were also lacerated. That
there was a deep
laceration in the vagina and that the vagina could allow three
fingers. That there was a 30 degree perineum laceration
and that
there was . . . profuse bleeding. Further the doctor goes on to say
that there was a deep vagina laceration in the perineum
wall, which
was bleeding profusely. . . ‘.
As a result of those
injuries the complainant had to be admitted to hospital for seven
days. During that time she required a blood
transfusion and she had
to undergo surgery in theatre under general anaesthetic to enable the
tears in her vaginal area to be sutured.
[3] The personal
circumstances of the appellant that were placed before the high court
were that he was a first offender, who was
married with three young
children two of whom were disabled. Those obviously paled into
insignificance when compared to the objective
gravity of the offence.
The high court was accordingly not persuaded that there were any
substantial and compelling circumstances
present, which justified a
departure from the sentence prescribed by the legislature. What also
weighed with the high court was
the evident callousness on the part
of the appellant. In this regard the high court recorded:
'Although he [the
appellant] accompanied the victim's mother to the clinic, while in
the clinic he did not seem to care as to what
was happening to the
victim. He even left the victim and the mother at the clinic and went
to his own places, left them behind
at the clinic. As a result that
when the ambulance came to collect the victim to go to hospital the
applicant was not even there.
When asked as to where he was he
explained that he had gone to buy a cigarette. Apparently, according
to him, a cigarette was more
important than the life of his own
child. When the child was in hospital for more than seven days the
applicant never cared to
visit the child to monitor her progress.'
[4] Before this
court counsel for the appellant was hard pressed to point to any
factors that could be construed as constituting
substantial and
compelling circumstances within the meaning of that expression. It
follows that the high court cannot be faulted.
In the result the
appeal must fail and it is accordingly dismissed.
_______________
V PONNAN
APPEARANCES:
For Appellant: M J Manwadu (Attorney)
Instructed by:
Thohoyandou Justice Centre, Thohoyandou
Bloemfontein Justice Centre, Bloemfontein
For Respondent:
Instructed by:
The Director of Public Prosecutions, Thohoyandou
Director of Public Prosecutions, Bloemfontein