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2003
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[2003] ZAWCHC 99
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S v Malotana (SS118/2003) [2003] ZAWCHC 99 (17 November 2003)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
SS118/2003.
DATE:
17-11
-2003
In
the matter of:
THE
STATE
versus
VUYISILE
MALOTANA
SENTENCE
GRIESEL,
J:
The accused was charged in the Regional Court with rape. He pleaded
not guilty but after the hearing of evidence he was convicted
as
charged. Because the complainant was a girl under the age of 16 years
at the time of the offence, the accused was committed
to the High
Court for sentence in accordance with the provisions of section 52(1)
(b) of Act 105 of 1997.
According
to the evidence the complainant was born on 29 October 1985, which
means that when the rape was committed on 18 March
2000, she was 14
and a half years old. She lived with her father in a house in
Khayelitsha. The accused, who lived in ths same
area, was known to
both of them. On the day in question the accused went to the house of
the complainant and her father in order
to invite the complainant's
father to a traditional ceremony to be held at the house of the
accused later that day. The complainant's
father accepted the
invitation and then left the house. The complainant was left behind
where she was busy with domestic chores.
The
accused returned to the house a short while later, whereupon he
requested the complainant to play some music. After lockingthe
door
he proceeded to assault the complainant and thereafter he raped her.
While the rape was still in progress the complainant's
father
returned to the house and found the door locked. When the door was
eventually opened he found the complainant inside, naked
and crying,
with the accused busy putting on his pants. The father of the
complainant also gave evidence at the trial, confirming
her evidence
in all material respects.
The
district surgeon examined the complainant later the same day. He
likewise gave evidence on behalf of the State and handed in
his
report as contained in form J88. It corroborates the complainant's
version in material respects in that it reveals evidence
of "acute
genital area trauma" as he described it. There were four fresh
tears to the hymen, as well as two superficial
mucosal tears. In
addition, he found slight swelling to her right eye, accompanied by
sub-conjunctival bleeding. There were also
fresh abrasions to her
neck as a result of choking with hands.
The
version of the accused was complete denial. According to him, he left
the complainant's house at the same time as her father
and did not
return thereto. He cannot think why they would falsely accuse him of
such a serious crime when there had been no prior
problems between
them. In these circumstances, the Regional Court had no difficulty in
rejecting the version of the accused and
I concluded earlier today
that there are no grounds for interfering with that conclusion.
Against
this background it is now the duty of this Court to impose sentence
on the accused. It is a sad fact of life that sexual
violence against
children is an everyday occurrence in our society. The rape
statistics in our country, especially in this Province,
are quite
horrific. It is a further fact of life that due to a variety of
circumstances only a small percentage of perpetrators
of these crimes
are eventually prosecuted and convicted. Society is justifiably upset
about this naked abuse of male power. They
demand protection from the
law enforcement agencies of society, especially the courts of law.
Parliament has also taken note of
this state of affairs and has
passed the Criminal Law Amendment Act in 1997. The purpose behind the
legislation is clearly to serve
as a deterrent so as to try and stem
the tide of'violent crime threatening to engulf us.
In
terms of the provisions of section 51{1) of that Act, the Court is
ordinarily obliged to sentence a person to imprisonment for
life
where such person has been convicted of an offence referred to in
Part 1 of Schedule 2. The rape of a girl under the age of
1 6 years
is such an offence. The basic starting point when it comes to
sentence is, therefore, that life imprisonment must be
imposed unless
the Court is satisfied that there are substantial and compelling
circumstances which justify the imposition of a
lesser sentence than
the prescribed minimum. The Act itself does not define what is meant
by "substantial and compelling circumstances"
and this is
something that must be determined by the Court on the facts of each
case. In this context I refer to the decision by
the Supreme Court of
Appeal in
S
v Malgas
2001 (1)
Mr
Aggenbach
,
who appeared on behalf of the accused in this court today, did not
have an easy task in trying to find substantia! and compelling
circumstances which would justify the imposition of a
:
lesser sentence than life imprisonment. As far as his personal
circumstances are concerned, the accused is presently 36 years old.
He completed a matrie education in 1983 and thereafter went into
exile where he joined the political struggle. He returned to the
country in 1994, was appointed to the South African National Defence
Force and apparently attained the rank of captain until he
was
arrested during 2000. The accused is married, although he has been
separated from his wife for siome time. He is the father
of four
children.
Against
these mitigating factors, however, there are also several aggravating
factors as pointed out by Mr
Stephen
,
who appeared on behalf of the State. The physical injuries sustained
by the complainant are undoubtedly serious and would in itself
have
justified a severe sentence. This brutal attack on a young,
defenceless victim was completely unnecessary and is regarded
by the
Court as a strong aggravating factor. The emotional and psychological
stress endured by the complainant - and which she
still endures -
appears clearly from the probation report handed in by consent. That
is also a seriously aggravating feature.
To
the present day the accused has not shown any remorse for his
senseless deeds, but persists in falsely proclaiming his innocence.
The
accused also has certain previous convictions for assault and theft
dating back to the early and mid-1980s. More recently and
significantly, however, he was convicted of rape committed on 29
October 1999, that is less that five months before the present
crime
was committed. For such rape he was sentenced to 10 years'
imprisonment on 19 October
2001
.
After
a careful consideration of the facts of this case, both mitigating
and aggravating, I have come to the conclusion that there
are no
substantial and compelling circumstances that justify a lesser
sentence than the prescribed sentence. It is accordingly
the Court's
duty today to give effect to the will of Parliament as expressed in
the Act in question.
In
the circumstances the accused is sentenced to life imprisonment.
GRIESEL.
J