27 Sep Rape Case Judgement : The State vs Dayimani
IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION) GRAHAMSTOWN
CASE NO. : CC12/2007 DATE : 26 SEPTEMBER 2007
THE STATE versus: MLANDELI DAYIMANI
MATTHEE AJ :
Given time constraints and the need for finality in this matter I have decided to give an ex tempore judgment.
In the present case the Accused has been convicted of raping a 7 year old girl and I am faced with the difficult task of deciding what an appropriate sentence is. In this regard, because the victim was 7 years old at the time of the rape, I am compelled to impose a life sentence on the Accused unless I find substantial and compelling circumstances which justify the imposition of a lesser sentence.
In arriving at a conclusion on whether or not a lesser sentence is justified I need to be mindful of the following extract from the matter of S v MALGAS 2001(2) SA 1222 SCA at page 1235 opposite G:
“Courts are required to approach the imposition of sentence conscious that the Legislature has ordained life imprisonment …as the sentence that should ordinarily and in the absence of weighty justification be imposed for the list of crimes in the specified circumstances.”
Furthermore, in deciding whether or not there is weighty justification for a lesser sentence I also must be mindful of a further extract from MALGAS supra at page 1231 opposite C :
“But for the rest I can see no warrant for deducing that the Legislature intended a court to exclude from consideration … any or all of the many factors traditionally and rightly taken into account by courts when sentencing offenders. The use of the epithets ‘substantial’ and ‘compelling’ cannot be interpreted as excluding even from consideration any of those factors…. What they are apt to convey is that the ultimate cumulative impact of those circumstances must be such as to justify a departure. It is axiomatic in the normal process of sentencing that, while each of a number of mitigating factors when viewed in isolation may have little persuasive force, their combined impact may be considerable. Parliament cannot have been ignorant of that. There is no indication in the language it has employed that it intended the enquiry into the possible existence of substantial and compelling circumstances justifying a departure, to proceed in a radically different way, namely by eliminating at the very threshold of the enquiry one or more factors traditionally and rightly taken into consideration when assessing a sentence. None of those factors have been singled out either expressly or impliedly for exclusion from consideration.”
With this in mind I turn now to the personal circumstances of the Accused, the nature of the crime and the interest of the community.
The personal circumstances of the Accused
He is 35 years old. He obtained a Standard 2 at school. He grew up in a poor family. Since he left school he has had a range of jobs including that of being a taxi driver, a builder and a motor mechanic. Despite his impoverished background and limited education he has always been able to support himself and of late two of his children and his mother. At this stage he has three children aged 9, 7 and 1 and a half years old. In the past 10 years or so he has on a reasonably consistent basis lived with the mother of two of his children. He has always tried to take care of his family. He is deeply concerned about the future of his children if he went to prison, especially as to who would pay their school fees. He is a member of the Apostolic Church and attends church regularly.
Mr Renaud argued that if one has regard to his background and his employment record and his commitment to his children, this all suggests a certain strength of character which Mr Renaud argued increased the chances of his rehabilitation.
Although the Accused has a number of previous convictions the State did not ask me to take these previous convictions into consideration given the nature of the present offence. I am of the opinion that this was a correct concession by the State and for purposes of sentence in the present matter I will treat the Accused as a first offender.
Finally, as regards remorse, the Accused has shown no remorse.
I now turn to the nature of the crime.
The victim was 7 years old when she was raped by the Accused. Given that fact on its own, it is difficult to imagine a more heinous crime. Added to this is the evidence that the Accused lured the victim into his house under the guise of asking her and her friend to help him carry a bag of potatoes into the house where he raped her. Thereafter the Accused pulled her into a bedroom where he raped her.
The Accused persisted with his actions notwithstanding the victim’s friend of 11 on two occasions trying to help her. Firstly, she tried to pull the victim away from the Accused when the Accused pulled her into the bedroom. Secondly, the victim’s friend knocked on the door of the house saying that the victim’s mother was looking for her. The Accused was unmoved by these attempts to help the victim and continued with his behaviour.
The victim also testified that she cried from pain when the Accused was raping her. Once again the Accused was unmoved. After he had raped her he threatened to stab her if she told anyone about the rape. He then cynically gave her money to go and buy cooldrink.
Mr Renaud highlighted that that there was evidence of some alcohol consumption on the day by the Accused.
Mr Renaud also argued that although rape is always serious, in the light of various court decisions, including decisions of the Supreme Court of Appeal, I have to take cognisance of the severity of the physical damage to the victim when deciding on an appropriate sentence. He argued that the medical evidence was that the victim’s physical injuries relatively speaking were not serious. Such injuries were limited to some bruising and swelling and the penetration was relatively superficial.
Elaborating on his evidence in this regard, the doctor testified that in the case of a virgin contact with the hymen by a penis will be painful and would result in bruising and swelling and also a spasm which would make full penetration more difficult.
The same authorities referred to by Mr Renaud also state that I must have regard to the long-term emotional and psychological effects on the victim when deciding whether or not there are substantial and compelling circumstances present which justify a sentence less than life.
In this regard the State called a Clinical Psychologist, Ms Karen Andrews. At the end of her assessment she arrived at the following conclusions.
Her first conclusion was that it “appears that currently Nolusindiso is coping with the impact of the sexual abuse by consciously trying to avoid that it occurred. She is unable to tolerate thinking about the sexual abuse. This indicates that she is uncomfortable experiencing herself in the victim role and that she is at a loss as to how to deal with the experience.”
Secondly, “while the vegetative symptoms of depression have lifted since the last assessment she appears to be attempting to control her depression by unconsciously masking/hiding them. As such, these symptoms have become repressed from consciousness. However, they remain unresolved.”
Thirdly, “she has become increasingly aggressive and she is now self – destructive, typical long-term maladaptive responses to sexual abuse.”
I then move on to the fourth conclusion that she highlighted in her report marked “I” which was handed in by the State. “As a consequence of the sexual abuse, Nolusindiso is paying the price of being sexually abused by becoming a bully herself. However, underlying her aggression, are strong feelings of hurt and sadness, and a sense of self that is tenuous at best.
Fifthly, “the above coping mechanisms preoccupy her psychology to the extent that cognitive functioning and age – related maturation are problematic.”
Sixthly, “moreover, a strong sign that all is not well with Nolusindiso and that a trauma has occurred is evidenced in her consistent hysterical overreaction to normal disciplinary measures.”
Seventhly, “in terms of the above Nolusindiso’s emotional and psychological state has worsened since her assessment of 17th of October 2006 and 6th of February 2007.”
In addition to these conclusions, Ms Andrews expressed the opinion that if the victim did not receive appropriate treatment, by the age of 18 certain behavioural patterns could have become so entrenched that it could become a personality disorder. She also testified that given the victim’s response to her rape, more particularly her failure to appreciate danger, for example by coming home late at night and not telling people where she has been, she is in danger of being raped again. In this regard she testified that people with evil intent could pick up the victim’s vulnerability and exploit it.
In summary she testified that if untreated the long-term prognosis for the victim was very poor.
Under cross-examination she testified that if the victim received intensive psychotherapy for 2 to 3 years the prognosis in effect would be more positive. However, there would always be a scar as a result of the rape.
There was no evidence before me to indicate what the chances of the victim were of in fact receiving such intensive psychotherapy. In arriving at these conclusions she amongst other things had regard to two earlier assessments which were conducted by another psychologist.
At this juncture I would note that as regards the need for this Court to have regard to the consequences of a rape on a victim I am in respectful agreement with the sentiments expressed by Satchwell J in the matter of S v M 2007 (2) SA Criminal Law Reports, page 60, more specifically at page 88 paragraphs 98 through to 102. I read some extracts from paragraphs 98, 99 and 101 :
“As enjoined to do by the Supreme Court of Appeal I have paid careful regard to the ‘impact’ of the rapes upon N. However, I have some concern that it is not possible at the time of and in the course of a criminal trial to fully ascertain the after- effects of these experiences.”
The learned Judge continues at paragraph 99 :
“Furthermore, the responses of rape survivors are surely as complex and multi – layered as are the individuals who experience rape. We must therefore expect the manifestations of the impact of rape to be varied in every respect. Some responses will be publicly displayed and others privately endured. Some rape survivors will collapse while others will bravely soldier on.”
And then finally at paragraph 101 :
“It would seem that sentencing courts are expected to view rape as ‘more serious’ where a rape survivor cannot sleep, fears men and sex, is unable to concentrate and cannot complete school, or has a career or relationships destroyed. If this is so, then other rape survivors may question why their rapes are viewed as ‘less serious’ because they may have been fortunate or privileged enough to receive professional assistance, be endowed with different personalities and psyches, exhibit fewer post-traumatic effects, and so on. The Legislature does not seem to have intended the rapist to be less morally and legally blameworthy because the rape survivor appears to or actually does survive, or continues life with less apparent trauma.”
I now turn to the needs of the community.
At the request of the Court the evidence of Senior Superintendent Krause from the Criminal Crime Information Analysis Centre was placed before the Court.
From this Court’s own experience of presiding at rape trials I was of the opinion that rape, not least of all the rape of girls, had become a problem in our community. Superintendent Krause’s evidence conclusively revealed that this Court’s opinion that rape had become a problem was a grave understatement of the situation and that a more appropriate word would be a plague.
I will now highlight some of this evidence. Between 2001 and 2006 there were 269 491 rape complaints submitted to the South African Police Services. This is an average of about 54 000 per year. This figure represents only the cases where reports have actually been made to the South African Police Services. The national percentage increase of official reports to the South African Police Services from 2001 / 2002 year to the 2005 / 2006 year was 1.2 %. That is close on two more alleged rapes per day in 2005/2006 than in 2001/2002.
More disturbing and indeed frightening for the community and particularly for the women of the Eastern Cape, and might I add also for all the fathers in the Eastern Cape, was that the increase in the same period in the Eastern Cape was 32.6 % as compared to the national increase of 1.2 %.
I now turn to the Eastern Cape, more particularly the Grahamstown Policing area. The Grahamstown Policing area does not include the two biggest centres, population wise, in the Eastern Cape, namely the Nelson Mandela Metropole and the East London/Mdantsane/KWT/Zwelitsha area. The Grahamstown Policing area consists of Grahamstown and a number of surrounding towns.
In this Grahamstown Policing area during the period January 2005 to June 2007 there were 1 277 reports of rape. That is approaching two such reports a day on average. Of these 308 involved girls younger than 15, nearly a quarter of the overall figure for the Grahamstown Policing area. Of these 308, 182 were girls between 11 and 15. 72 were girls between 6 and 10 and 54 were girls younger than 5.
Thus on average about every third day during the past 2 and a half years in the Grahamstown Policing area there has been a report to the South African Police Services of the rape of a girl 15 and younger. Another frightening conclusion is that on average every about 16 days in this period there has been such a rape report involving a girl of 5 years and younger.
And here it must be emphasised that these figures only represent matters which were in fact reported to the South African Police Services. I accept that there would be a certain lie factor in these statistics but have no doubt that such lie factor would be outweighed by the many matters of rape which never are reported.
In this regard a truly frightening piece of evidence given by Superintendent Krause was that in 2005 / 2006 in the Eastern Cape only 36 % of these reported matters reached the Courts and of those there was only a conviction rate of 5.9 %. These figures were even worse for the period January through to June 2007 in that only just over 28 % of these matters came to Court and there was only a 3.6 % conviction rate.
Given such statistics, it is easy to see why some women would not want to put themselves through the ordeal of reporting their rape and the ensuing trial.
I have an aversion for adjectives and exaggeration, but in the light of the statistics highlighted above I can without fear of contradiction state that our Province and indeed our Country faces an evil of gigantic proportions especially when it comes to the barbaric dehumanisation and brutalisation of girl children by means of rape.
Children and in the present case particularly girls, are one of the few groups of individuals targeted specifically for protection in the Bill of Rights. In assuming office as a Judge I have taken an oath to uphold this Bill of Rights. I thus have an obligation before God to protect all girls in this country and to play my role in making sure they are safe.
Furthermore, if the courts are not seen by the community to be saying so far and no further as regards rape, particularly the rape of young girls, the Rule of Law itself will be brought into jeopardy as in such a scenario outraged communities will be tempted to take the law into their own hands.
This obviously is not to say that at the end of the day the various considerations applicable to sentencing must not be balanced before a final decision is taken about an appropriate sentence.
The decision to send a man to jail for life or to a very long term of imprisonment is not an easy one and has weighed heavily on me in this matter. I have carefully assessed all of the factors I have highlighted above and the arguments of Mr Renaud before arriving at a decision about whether or not in the present matter substantial and compelling circumstances exist which permit me to give a sentence less than life.
I am of the opinion that no such circumstances exist in the present matter. I might add that even if I was not faced with a minimum sentencing provision, in the present matter exercising my discretion I would still have imposed the maximum sentence on the Accused.
In the result I sentence the Accused to life imprisonment.
ACTING JUDGE OF THE HIGH COURT