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[2006] ZAWCHC 83
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S v Cakata (SS09/2006) [2006] ZAWCHC 83 (19 October 2006)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
SS09/2006
DATE
:
19
OCTOBER 2006
In
the matter between:
THE
STATE
and
NTUTHUKO
CAKATA
SENTENCE
TRAVERSO.
DJP
:
The
accused has been found guilty of rape of an 11 year old girl S V. S
lives in the Eastern Cape and she came to Cape Town to visit
her
mother, her mother was a neighbour of the accused. The accused landed
up in the home where he lived with Poppy together with
this little
girl. How she got there or why she got there is not really relevant
for purposes of this judgement. The fact is that
the accused was in a
room with her alone and locked the door.
It
is common cause that after the rape S was visibly upset and was
crying. It is also clear that she didn't' report the incident
to her
mother because of a threat. She returned to the Eastern Cape without
telling her mother and was later brought back by her
mother from the
Eastern Cape when her mother found out about the incident. This must
have added extra stress to this little girl.
She was an innocent
child and the medical evidence indicates that she had no previous
sexual experience. Although her evidence
wasn't satisfactory in all
respects it was clear from her evidence that she was traumatised by
this event.
Rape
is a terrible crime and the state is quite correct when it submits
that the seriousness of this offence can never be minimised.
The
state is also correct that the society out there have had enough of
the crime wave and the violence directed particularly at
innocent
children. It cannot be tolerated that the children who are our future
be dealt with in this manner. The accused had a
girlfriend, he has
absolutely no reason to rape this little girl.
But
when it comes to sentence one most not only look at the seriousness
of the offence, one must also look at the accused and his
personal
circumstances. The accused didn't testify and his counsel Mr Calitz
made submissions from the bar.
The
accused 37 years old and passed Standard 10. It is clear that the
accused has not had an easy life. He was born disabled and
in 2004 he
was in a car accident which left him even more disabled At the time
of the offence he was a receiving a disability grant
and he was
involved in
various
projects for disabled people. The accused has three children who all
live in the Eastern Cape with his mother. It doesn't
appear that he
is responsible for their maintenance. The accused has two previous
convictions. In 1990 he was found guilty of culpable
homicide and in
2003 he was found guilty of assault with the intent to do grievous
bodily harm. I will accept that the conviction
of culpable homicide
is more than ten years old. I will also take into account for a
period of 13 years the accused was not found
guilty of any crime
involving violence. I will also accept that the assault of which he
was convicted in 2003 was an assault on
Poppy with whom he had a
rather acrimonious relationship. However violence can never be
condoned no matter what the nature of the
relationship, there are
other means to deal with problems in a relationship.
The
accused has been incarcerated in respect of this offence for 19
months. A letter appears on the court file which was written
by the
accused from which the discomfort that he is experiencing in prison
because of his disability becomes clear. I will take
that into
account. I will also take into account that due to the circumstances
of the case and due to the fact that the complainant
and her family
have moved to the Eastern Cape and cannot be traced there is no
evidence before the court about the lasting effect
of this rape on
this little girl. I have no evidence as to whether she is a resilient
child who will learn to deal with this unfortunate
incident and
although I accept without any hesitation that it must have impacted
on her I do not know the extent of the impact.
And if I don't have
evidence I cannot speculate and the absence of this evidence should
count in the accused's favour.
What
is common cause is that apart from the injuries sustained during the
rape no further physical injuries were sustained by the
complainant.
So although the legislature prescribes a life sentence as the minimum
sentence which I am obliged to impose unless
I am satisfied that
there are substantial and compelling circumstances, I am of the view
that in this case there are substantial
and compelling circumstances.
I therefore intend to impose a lesser sentence than life. The
circumstances that I take into account
are the following: That the
accused is a disabled man and has carried this burden with him all
his life, that although he has previous
convictions for violence, he
has managed for long periods of time to have a clean record, the
absence of evidence of any emotional,
psychological or other damage
suffered by the complainant and the fact that the complainant
sustained no further physical injuries.
I also take into account that
the accused has been in custody for 19 months.
Having
said all that the only appropriate sentence that I can impose is one
of lengthy imprisonment. I sentence the accused to
18
(eighteen) years imprisonment
.
TRAVERSO,
DJP