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[2008] ZAWCHC 322
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S v Mtshiselwa (SS47/2006) [2008] ZAWCHC 322 (14 August 2008)
IN
THE
HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE NO
:
SS47/2006
DATE
:
14
AUGUST 2008
In the matter of:
THE
STATE
versus
SAMKELO
MTSHISELWA
SENTENCE
MATOJANE,
AJ
:
[1] In imposing
sentence the court takes into account the in interests of the
community in regard to retribution, rehabilitation,
the imposition
of deterrent sentences and the protection of society the personal
circumstances of the accused.
[2] The accused is 37
years old, he was 33 at the time of the commission of the offence,
he is married with four children.
Two children are from a
previous marriage. The children's ages are 20, 16, 14 and six years.
He is a first offender. He has been
in custody for the past four
years since his arrest. He matriculated in 1992 and worked for
Newlands Breweries and was earning
R7 000 per month.
[3] The evidence of the
complainant was that the accused, who is her biological father, came
to her room at night while she was
asleep, took off her nightie and
panty, positioned her and proceeded to have sexual intercourse with
her. When she tried to scream,
the accused inserted his tongue in her
mouth and squeezed her breasts. The intercourse was painful. She
waited for the accused
to leave for work before she could tell her
mother. It was not for the first time that the accused had raped her.
[4] According to the
evidence of the doctor who treated her the day after the rape, the
finding of the red, swollen edges of the
hymen and the deep, healed
tears plus the large entrance into the vagina (25mm x 11mm) is
compatible, in his opinion, with recent
and past penetration by the
penis, as alleged by the complainant. It is clear that the conduct of
the accused was aimed at satisfying
his perverted, incestuous lust
and abuse of male power over a defenceless 11 year old child who
looked to him for protection and
fatherly love.
[5] The rights of
children are enshrined in our Constitution. Section 28(1)(c) of the
Constitution states:
"Every child has a
right to be protected frommaltreatment, neglect, abuse and
degradation".
Section (1)(d) of the
Constitution states:
"Every child has a
right not to be required or permitted to work or provide services
that are inappropriate for a child's
age. Every child has a right
not to have her wellbeing, education, physical or mental health
or spiritual, moral or
social development placed at risk".
No information about
the psychological and physical impact of rape of the minor child
was placed before Court as the mother
of the child relocated with her
to the rural villages of the Transkei after the rape and they cannot
be traced. The mother of the
child must have endured deep pain at the
accused's actions.
[6] From common sense the
psychological trauma the complainant must have suffered is obvious.
It is sad that the child may not receive
the necessary help in the
rural village where she is at the moment. I take all this into
account in considering the question whether
there are substantial and
compelling circumstances. The interests of the community call out for
conduct of this nature to be appropriately
punished in order to
reflect the revulsion that every decent member of society feels for
such conduct.
[7] On the basis of the
evidence I have set out I am now required to impose a sentence on the
accused that takes into proper account
the interest of society, the
crime and the personal circumstances of the accused. I am acutely
aware of the fact that offences
like this in which minor children are
raped are disturbingly commonplace and are self-evidently extremely
serious. It numbs one's
mind if it is the father who rapes his own
minor child. I am unable to find any substantial and compelling
circumstances that would
justify a departure from the ordained
sentence of life imprisonment. I also consider that life imprisonment
is not an unjust sentence
in the circumstances.
[8] The following
order is made.
The accused is sentenced
to life imprisonment.
MATOJANE,
AJ