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[2006] ZAWCHC 80
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S v Cekeshe (SS104/2005) [2006] ZAWCHC 80 (2 March 2006)
IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
SS104/2005
DATE
:
2
MARCH 2006
In the matter between:
THE STATE
versus
MADODA
JAMES CEKESHE
SENTENCE
ALLIE, J
My judgment in relation
to sentence is as follows:
The accused is the
complainant's mother's brother, the complainant's mother afforded the
accused an opportunity of residing with
her. He was provided for
financially by her. He misused his position of trust and showed a
gross disregard for the wellbeing of
the complainant who was his ten
year old niece at the time.
The
offences were planned in as much as he ensured that the other
children left him alone with the complainant. He did this by giving
them money. The offences were crimes of opportunity. The complainant
was so traumatised that she did not initially tell her mother
because
she felt that she would be blamed. The complainant suffered from
flashbacks, a lack of concentration at school and forgetfulness.
The complainant and her
mother experienced the crimes as emotionally painful and were not
willing to testify for the purpose of
sentence. The complainant has
however progressed relatively well at school and is coping well. The
social worker ascribes this
in his report to the fact that the
mother, who is an Aids Counsellor, supported and counselled the
complainant.
This Court accepts that
by its nature the rape of a ten year old six times by her uncle would
leave emotional scars on the complainant.
The partial recovery of the
complainant is not as a result of the conduct of the accused and he
is not entitled to derive any benefit
from it.
The rape of young
children, and particularly those within the family occur too often.
Society is entitled to expect that the courts
should impose sentences
that deter such offences. In this particular case the accused raped
the complainant six times within a
short period of time. His defence
was not only that did he not rape her, but that he was not at her
home or with her on the days
in question. He could provide no
evidence in corroboration of this defence.
The
Court is however obliged to temper its decision with an element of
mercy. In doing so it has to take account of the personal
circumstances of the accused. At the time he was 21 years old, he is
now 25 years old. He has no previous convictions and is therefore
a
first offender. He completed grade 8 at school. He was in the
fortunate position of being able to continue school at the age
of 21
years, immediately before his arrest. He has no dependants.
In the regional court the
accused clearly understood the proceedings and was able to dismiss
one attorney, conduct his own defence
in part and employ another
attorney later. In this court the accused gave his advocate clear and
specific instructions concerning
allegations that the record of the
regional court was incorrect. Therefore the accused demonstrated that
he was sufficiently intelligent
to appreciate that his conduct was
wrong, and even more so, that it was wrong to perpetrate such
offences upon his own family member.
Given
the fact that the accused is convicted of multiple charges of rape of
a ten year old I cannot find substantial and compelling
circumstances
to justify a deviation from the prescribed minimum sentence. The six
convictions are taken together for the purpose
of sentence and a
SENTENCE
OF LIFE IMPRISONMENT
is
imposed.
ALLIE, J