In three special reviews of criminal cases in which adult men received non-custodial sentences for sexual offences on little girls, the Durban high court has upheld two and asked for the case record of the third to be completely reconstructed.
The cases relate to Sabelo Mahlasela and his conviction for molesting his seven-year-old niece, the conviction of Ricardo Rowe, who pleaded guilty to inappropriately kissing a 10-year-old, and Sphelele Maseko, whose court documents “are seriously and sadly lacking in content”.
All three matters originally went before a regional magistrate presiding over the sexual offences court in Pinetown, KwaZulu-Natal. All resulted in convictions, and none of the three was given jail terms. And all three were put up for a special review to ensure the sentences imposed were “in accordance with justice”.
The court was told that Mahlasela was arrested on June 23 2019, and was released a year later after paying R1,000 bail. Mahlasela was accused of rubbing his penis against the genitals of a seven-year-old girl and touching her private parts without her consent.
The court-considered sentence is so disturbingly inappropriate that it is likely to cause indignation with large portions of society.
Mahlasela pleaded innocent to the charge and claimed the child was his niece, and her version could not be relied on as she was seven years old.
The court found that Mahlasela had stayed with the child’s family when he had nowhere else to go. He had been left alone with the child one morning as everyone else had left for work. The child claimed that Mahlasela made her lie next to him and that after rubbing and touching her inappropriately he had given her his phone to play games and ordered her “not to report what had happened to anyone as her vagina is his”.
The review judge found that Mahlasela had correctly been found guilty. He was a first offender, was 41 years old, had no previous convictions and was the father of five minor children all on childcare grants. He had tuberculosis and another undisclosed medical condition.
The defence argued that Mahlasela had spent 13 months in custody, and had offered to pay R1,000 compensation to the child’s family. No impact statement or report on the child’s psychological condition was given to the court.
The court sentenced Mahlasela to five years in prison, suspended for three years. The review court ordered him to pay double the compensation offer to the child and confirmed the suspended sentence.
“The court-considered sentence is so disturbingly inappropriate that it is likely to cause indignation with large portions of society; it trivialises the crime in circumstances where the perpetrator is the very person entrusted with the care of the child.
“The confirmation of the sentence herein should not be construed to mean that I am in agreement with the sentence that the learned magistrate imposed. Had I been the court a quo I would have imposed a custodial sentence, which in my view would have been in the interests of justice,” the court stated.
In the second review the court found that Ricardo Rowe was 20 years old at the time of his offence. On October 21 2020 he pleaded guilty and on the same day was sentenced to three months in jail wholly suspended for three years on condition that he is not convicted of another sexual offence.
“He kissed her, inserting his tongue into her mouth in an intimate exchange. They were interrupted when the complainant's uncle entered the room. Rowe and the complainant left the room together,” court said.
The review court found that the three-year suspended sentence was “not shockingly inappropriate” as it was the court’s “well settled” approach that a sentence should not be interfered with “simply because this court would have imposed a different sentence.
“It is only where the sentence imposed induces a sense of shock, either as a result of harshness, or leniency on the part of the court a quo that this court is entitled to interfere.”
Rowe’s conviction and sentence were confirmed.
However, with the Maseko matter the court ordered that the case be completely reconstructed and that “secondary evidence as well as the use of an alternative stenographer to reconstruct the record may be employed” before the special review can be enrolled.
“The presiding regional magistrate, the registrar of the regional court, the accused's legal representative at the time as well as the public prosecutor who dealt with the trial are directed to furnish affidavits which are to be handed to the registrar of the regional court and which shall accompany the reconstructed record, setting out precisely what steps were taken to reconstruct the record,” the court ordered.
The reconstructed record should then be put forward for a special review. If a complete reconstruction is not possible, each of the parties involved must provide the court with full affidavits explaining why this cannot be done.
