The terror and mental anguish alone are unimaginable.
This is how a high court judge described the traumatic ordeal of a six-year-old girl who was raped after being bathed by her mother’s boyfriend. Soon afterwards he beat the girl’s legs using a belt with intent to cause grievous bodily harm — because she arrived home late.
The 26-year-old man pleaded guilty to rape and assault with intent to do grievous bodily harm charges in the Paarl regional court, was handed a mandatory life sentence for rape and six years for assault.
Aggrieved by the severity of the life sentence, he lodged an appeal citing a “distinctive combination of mitigating circumstances that warrant a shorter sentence” — one being it was not the “worst kind of rape” because the girl was not seriously injured during the act.
Cape Town high court judge Constance Noluthando Nziweni delivered a scathing response to this argument in a judgment handed down on Monday, dismissing the appeal.
“Rape on its own is violence. Rape by its very nature is a violent crime as it involves threats or force. I cannot fathom how it can be said that the lack of physical injury in a rape of a six-year-old is mitigating,” read the judgment.
“Additionally, in this matter, the appellant stated in his plea that when he raped the child, he ... had intercourse with her. On the version of the appellant alone, it is highly likely that the child endured pain and suffering during the rape.”
Medical records showed the child acquired an infection after the incident in May 2022.
In arguing against the “manifestly excessive and inappropriate” life sentence, the appellant said it should be reversed and put on par with sentences previously imposed on similar cases involving the rape of a minor child.
“It was strongly asserted on behalf of the appellant [by his counsel] that there was no physical violence during the commission of the rape, the appellant’s guilty plea, that he is a first-time offender, that no expert evidence was presented to show that the child was going to experience long-term effects of trauma, the age of the appellant, that he is a father of two very young children, time spent in custody awaiting finalisation of the trial, together with appellant’s other personal circumstances; cumulatively they constitute substantial and compelling circumstances,” read the judgment.
The man was, at the time, employed and is the father of two other children, one five months old and the other seven years old.
Judge Nziweni said it was common knowledge that crimes against children were rife in South Africa and child rapists ranked among the worst offenders. The legislature made provision for substantial custodial sentences in such cases.
It is frightening to know that a father of two young children, can do this to a child who is almost the same age as his own child.
— Judge Constance Noluthando Nziweni
“The appellant purported to act as someone who is carrying about the wellbeing of the victim when he gave her a bath. Clearly, this created an opportunity for the rape to happen. The behaviour can only be described as evil,” read the judgment. “It is frightening to know that a father of two young children, can do this to a child who is almost the same age as his own child. The opportunistic nature of this offence and the significant breach of trust aggravate this offence.”
The court took into account, for context, the belt beating meted out in June last year when the man got “upset and lost his temper”. The assault, the court found, revealed he had engaged in a pattern of abusive behaviour towards the child.
The belt assault went beyond chastisement: “The appellant tried to shame and discredit the child’s character by punishing her for ill-discipline for coming home late. Clearly, after what he had done to the child, the appellant did not have any moral ground to judge the child,” read the judgment.
Judge Nziweni said the beating went beyond chastisement: “The appellant tried to shame and discredit the child’s character by punishing her for ill-discipline for coming home late. Clearly, after what he had done to the child, the appellant did not have any moral ground to judge the child.”
Victim impact statements revealed the child suffered mental stress, experienced nightmares and feared the man “to the extent that when she would see him approaching, she would hide under the bed until there was an adult around.
“This speaks to the level of brutality involved in this case. Based only on the above facts, it is plain that the child suffered immensely at the hands of the appellant. The terror and mental anguish alone are unimaginable,” read the judgment.
In addition, records from the lower court raised concern the mother may be guilty of a grave failure to protect the child from her boyfriend. “Based on the appraisal of the record, it is evident that the court a quo and the prosecutor were alive to the fact that the child may need care and protection.”
Judge Nziweni ordered that a copy of the judgment be sent to an official at the department of social development in Paarl “to investigate promptly if the child is not in need of care and protection” and report back within three months.
Judge Nathan Erasmus agreed and the appeal was dismissed.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.