IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
DELMAS CIRCUIT COURT
Case No.  SH365/2007
Registrar Ref. No.     CC102/08
Date:25/06/2008

In the matter of:

THE STATE

versus

SANELE MAHLANGU..........................................................................................Accused 

SENTENCE

[1]	The accused, Sanele Mahlangu, following on his plea of guilty, was convicted by the Benoni regional court of rape of a four-year-old girl (“the victim”) committed on the 2nd May 2006 at Daveyton.  He was legally represented with the assistance of the Legal Aid Board.  The proceedings in the regional court were then stopped and the accused committed for sentence by a High Court under s. 52(1)(a) of the Criminal Law Amendment Act 105 of 1997 (“the Act”).    

 [2]	Adv Sibara represented the state and Adv van der Westhuizen the accused in the proceedings before me.   

[3]	I was satisfied that the accused is guilty of the offence of rape of which he has been convicted in the Benoni regional court and in respect of which he has been committed for sentence in the proceedings before me.  Both counsel were also ad idem that the accused has correctly been convicted.  On 8 May 2008, I accordingly made a formal finding in accordance with s. 52(2)(b) of the Act that the accused is guilty of rape as charged.  I now proceed to consider and determine an appropriate sentence for the accused.
  
[4]	The State led no viva voce evidence in aggravation of sentence, but a victim impact report compiled by a probation officer, Ms Mokgoba Matsimela, was handed in by consent (exhibit “D”) and the parties agreed on the correctness of the information therein contained and of the conclusion therein reached.   A pre-sentence report compiled by a probation officer, Ms N Mbulawa-Kama, was also handed in by consent (exhibit “E”), and the correctness of the information therein contained was also agreed upon.  The accused’s mother, Mrs Christina Mahlangu testified on his behalf in mitigation of sentence.  A psychiatrist, Dr T Schütte, from Sterkfontein Hospital, and a general medical practitioner, Dr Rachman, from Medicross, Delmas also testified.  The accused testified under oath.  Counsel for the State and for the accused addressed me on the matter of sentence.

[5]	Rape, where the victim is a girl under the age of 16 years, is an offence referred to in Part I of Schedule 2 to the Act for which it is necessary, in terms of ss. 51(1) and 51(3)(a), to impose a sentence of imprisonment for life unless ‘substantial and compelling circumstances’ justify a lesser sentence.  In considering whether or not substantial and compelling circumstances exist which would justify the imposition of a lesser sentence than prescribed, the traditional objectives of punishment, namely prevention, retribution, deterrence and rehabilitation, still apply, and I am enjoined to weigh the personal circumstances of the accused against the seriousness of the crime committed by him and the interests of society.

[6]	The rape of a 4-year-old little girl who weighed a mere 17 kilograms should, in my view, be classified as falling within the worst category of rape.  This is what the accused stated in paragraph 4 of his written statement that was handed into the regional court in terms of section 112(2) of the Criminal Procedure Act 51 of 1977:
‘I admit that on the day in question I saw the complainant.  She was busy playing when I called her and I took her to the mealie fields, undress her, force myself onto her by inserting my penis to her vagina.  Whilst on top of the complainant before I could ejaculate I was found by community members and they removed me on top of her.’

[7]	The probation officer reports that the victim is being brought up in the Barcelona squatter camp.  On the day in question, ‘…she was playing with her friend when the Accused arrived and asked her to accompany him to Ramsa.  The Victim reported that she refused, however the Accused grabbed and forced her to go with him.  She further stated that the Accused took her to the bushes whereupon he raped her.  Reportedly, the Victim was rescued by people in the community and the matter was reported at the Daveyton police station.’

[8]	The victim was admitted to the Far East Hospital (Springs) as a result of the rape.  The gynaecological examination performed on her the day after she was raped reveals the extensive and painful injuries sustained by her during the rape, including swelling, bruises, abrasions, and deep lacerations of her genitalia.  It appears that certain parts of the medical examination needed to be performed under anaesthesia.  Her injuries make the rape under consideration ‘…all the more painful, outrageous and morally reprehensible.’ [S v Ncheche 2005 (2) SACR 386 (WLD), a p 392 d – e].

[9]	From the probation officer’s report it appears that the victim suffered a great deal of pain after the rape and it has left her traumatized.  She withdraws and isolates herself and experiences feelings of degradation, insecurity, and fear for men, particularly for the accused.

[10]	It emerged under cross-examination of Mrs Mahlangu that the streets of Daveyton are very dangerous for children, and particularly for girls.  They disappear, are raped, are murdered, and the commission of such offences are prevalent.  Members of the community are taking the law into their own hands and they deal severely with perpetrators of such crimes by even burning them to death.  The reason why the accused was not killed when members of the community apprehended him was that some of the neighbours recognized him as Mrs Mahlangu’s son.  She said that they were ‘…so lucky …’ that he was not killed.  

[11]	Courts will not tolerate such conduct by members of communities and it is repudiated in the strongest of terms.  Our country at present suffers an unacceptable and distressing incidence of violence, and especially rape against women and children.  Our courts have and will continue to respond to the community demands to deal seriously and severely with such offenders and for appropriately severe punishments to be imposed for such crimes.  

[12]	Our courts have repeatedly emphasized the seriousness of such offences, particularly when committed against innocent children, and that severe punishments will be imposed upon such perpetrators, unless the circumstances of a particular case dictate otherwise.  I need only refer to what my brother Goldstein J said in this regard in S v Zitha and Others 1999 (2) SACR 404 (W), at p 418h, and what he reiterated in S v Ncheche (supra), at p 396f:
‘The word must go out  to the cities and to the suburbs, to the towns and to the townships, and to the countryside that Parliament has directed the courts to punish the perpetrators of gang rape and child rape as heavily and severely as the law will allow in the absence of substantial and compelling circumstances dictating otherwise, and that the courts will not shrink from their duty of carrying out this directive however painful it may be to do so.’    	  	

[13]	On the 28th January 2005, the accused was convicted of the offence of assault with the intent to do grievous bodily harm which he committed on the 16th August 2004, and he was sentenced to a fine of R1, 000.00 or 100 days imprisonment wholly suspended for a period of three years on condition that he is not convicted of assault with the intent to do grievous bodily harm during the period of suspension.  According to Mrs Mahlangu, the accused lost his temper during a quarrel with his girlfriend and he then assaulted her.  Rape is also an act of violence against a woman.  The accused’s previous conviction bears a relationship with his present conviction, and is an aggravating factor.		    	   			  	 
[14]	Mrs Mahlangu testified about the personal circumstances of the accused.  He was born on 27 January 1984, and is the youngest of four children.  He was 7 years old when he started school.  He passed standard 9 in 2005, whereafter he left school. Mrs Mahlangu and her husband are both pensioners and they have always cared for the accused.  He was not employed, is unmarried, and has no children.

[15]	According to Mrs Mahlangu, the accused suffered from epilepsy as a pre-school child.  It reappeared during 2005 when he was in standard 9.  Apart from fainting spells, the accused also during 2005 said that he was hearing the voices of people shouting at him, which occasionally resulted in him running away.  Mrs Mahlangu said that the accused left school because of his epilepsy, but it then transpired that he had left school after his conviction of assault.  Mrs Mahlangu also said that he was unable to work as a result of his epilepsy.

[16]	The probation officer reports that the accused refused to be interviewed, was not cooperative, and seemed to be irritated.  He told the probation officers (Ms Mbulawa-Kama was accompanied by a colleague) ‘…that he is tired of repeating the same thing and alleged that the Police Officers, Benoni Court and Delmas High Court know his version of the offence.’    

[17]	The accused appeared disinterested during the proceedings before me.  He often looked at the ceiling or down to the floor in front of him as if he was asleep.  The regional court directed that an enquiry be conducted and reported on the accused’s mental capacity.  The accused was committed to the Sterkfontein Hospital for the purposes of such enquiry.  The report included unanimous findings by three psychiatrists, Drs T Schütte, LA Fine, and G Jonsson, that the accused suffers from no mental illness or intellectual defect, that he possibly suffered from childhood epilepsy, that he is malingering, that he is fit to stand trial, and that, at the time of the alleged offence, he was both able to appreciate the wrongfulness of his actions, and able to act in accordance with such an appreciation of wrongfulness.   I required the attendance and evidence of at least one of the three reporting psychiatrists.     

[18]	Dr Schütte, a psychiatrist at Sterkfontein Hospital and one of the psychiatrists previously appointed to conduct the enquiry into and to report on the accused’s mental capacity, testified that a person could experience psychotic symptoms immediately following an epileptic seizure, but that the history obtained when the accused was committed to the Sterkfontein Hospital was that the accused suffered from epileptic seizures between the ages 1 – 3 years, that his last seizure was approximately 20 – 21 years ago, that he had no treatment for epilepsy since then, and in Dr Schütte’s professional opinion the accused was a ‘normal human being’ at the time when he had committed the offence in question.  

[19]	Dr Schütte also testified that the accused’s alleged symptoms of hearing voices and of running away were also explored during the time when he was committed to the Sterkfontein Hospital.  No objective evidence in the form of psychiatric history supports such symptoms and the mere subjective reporting of voices and other noises is, in the opinion of Dr Schütte, insufficient to make a diagnosis of a psychiatric condition.  Dr Schütte testified that the information received when the accused was committed to the Sterkfontein Hospital was that he regularly smoked cannabis and consumed alcohol and such psychotic symptoms could be the result of toxicity caused by such substances.  At this point I should mention that I questioned the accused at a later stage when he testified on whether he ever in his life used alcohol or drugs, and his reply was in the negative.  

[20]	Dr Schütte further testified that the accused’s conduct of being disinterested in the proceedings was similar to his conduct observed when he was committed to Sterkfontein Hospital.  Dr Schütte described it thus:  ‘He was consistently inconsistent.’  The accused’s conduct was normal when he was unaware that he was observed, but when he was aware that he was being observed he would act in similar ways to when he was in court.  

[21]	Dr Schütte suggested that the accused be medically examined for any underlying physical condition that may cause symptoms such as despondency or tiredness.  Dr Rachman of Medicross, Delmas, who also testified, accordingly examined him medically.  Dr Rachman testified that the accused was in good health, but that an underlying chronic disease, such as tuberculosis, cancer or HIV, could not be excluded.  Dr Rachman testified that the accused appears distracted, but that he had given his full cooperation when he was examined.  Dr Rachman did not observe any abnormal conduct and was satisfied that the person he was examining was a normal person.  According to Mrs Mahlangu the accused did not suffer from any sickness other than the epilepsy.          

[22]	On all the evidence before me, as well as my own observation of the accused when giving his testimony (he was focussed, he understood the questions asked, and he promptly gave pertinent answers), I am unable to find that the accused was or is not fully capable of understanding the proceedings so as to make a proper defence, that he was not criminally responsible at the time when he committed the offence under consideration, or that his responsibility was diminished by reason of mental illness, mental defect or any other condition.    

[23]	The accused was 22 years of age at the time of the commission of the offence.  Youth is generally a mitigating factor of substance.  The accused has shown no remorse even though he has already been incarcerated for more than two years.  His time spent in custody awaiting the finalisation of these proceedings is also a factor that favours the accused in the determination of the period of imprisonment that should be imposed.  His explanation for raping the little girl was that ‘it just happened’.  He replied as follows to my question on how he feels about the crime which he has committed against the four year old little girl:  “I don’t care about what actually happened.”     He is callous, brutal and wicked.  He is a threat to society in general, and to women and children in particular.  His prognosis towards rehabilitation is clearly negative, despite his relatively young age.

[24]	I have carefully considered the evidence, the reports by the probation officers, and the addresses by counsel for the State and for the accused.  The personal circumstances of the accused and the time spent in custody awaiting the finalisation of these proceedings cumulatively do not, in my view, amount to substantial and compelling circumstances which would justify a lesser sentence than the prescribed minimum sentence when balanced against the enormity of the crime committed, the aggravating factors, and the public interest in an appropriately severe punishment being imposed for the crime committed.  Deterrence also plays a prominent role in this instance, because of the seriousness of this particular rape and the prevalence thereof.  A consideration of all the circumstances of this particular case satisfies me that the imposition of the minimum sentence prescribed by the Act on the accused would not be unjust.  Such sentence would not be disproportionate to the crime, the criminal and the legitimate interests of society.  

[25]	In the result, the accused is sentenced to imprisonment for life for his rape conviction. 

						
P.A.  MEYER
JUDGE OF THE HIGH COURT

25 June 2008