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‘Disturbingly inappropriate’: magistrate fines man just R1k for ...

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‘Disturbingly inappropriate’: magistrate fines man just R1k for child rape

Sentences doled out by magistrate in KZN sexual offences court under review for leniency and misdirection

Journalist
A couple accused of raping and human trafficking two young teenagers is expected to appear in court on Tuesday.
A couple accused of raping and human trafficking two young teenagers is expected to appear in court on Tuesday.
Image: DENEESHA PILLAY

A KwaZulu-Natal magistrate heading a sexual offences court has been flagged for giving lenient sentences to men convicted of raping and molesting children.

One of her sentences — in which the accused was given a two-year wholly suspended sentence conditional on him paying compensation of R1,000 to the victim’s mother — has already been set aside by two KZN judges who ordered that he go to jail for five years.

According to documents filed in the court in that matter, three other similar matters are headed to the high court on review.

Acting Durban Regional Court president Sello Maboee confirmed he was in possession of the review judgment.

“I have called for all other cases involving the same colleague for scrutiny and only then will an informed decision be made with regard to the way forward,” he said.

All were sentences imposed by veteran Pinetown Regional Court magistrate Bilkish Asmal, who it is understood has been “rotated” out of the sexual offences court. She did not respond to an email asking for comment.

The issues surrounding some of her sentences initially came from an anonymous source, and Durban regional court magistrate Garth Davis was tasked with obtaining the relevant records and writing a memorandum.

This memorandum formed part of the review record which came before judges Vusi Nkosi and Graham Lopes.

Davis says it had come to the attention of (former) acting regional court president Sharon Marks that Asmal was handing down wholly suspended sentences, coupled with orders  that the accused pay a low amount of compensation to the victim or the primary caregiver.

“At this time, four matters were identified and this matter is the first where the record has been received,” he wrote.

In this case Davis sought a “special review”, citing a “dangerous precedent”.

“The sentence was not in accordance with justice ... It was not component and requires correction,” he said in his memorandum.

“As I understand it, neither the state, the accused or the magistrate intends to appeal or review the sentence imposed ... Children are involved, including the protection afforded to them by the constitution. If not reviewed it would result in a constitutionally untenable outcome.”

The 36-year-old accused in the review matter was arrested in February 2020 and charged with raping the 13-year-old daughter of his live-in girlfriend, who was in hospital at the time of the offence.

He pleaded guilty in October that year to statutory rape. He admitted he had assumed the role of a stepfather but claimed she had initiated sexual intercourse.

He was aware of her age and that it was unlawful.

Davis said in his memorandum that in passing sentence, Asmal had not taken into account the feelings of the victim or the mother of the victim.

Citing case law, he said when dealing with such offences courts had to be careful about awarding compensatory damages.

“Where an accused is ordered to pay the mother of his underage victim in lieu of a custodial sentence a mere R1,000, it is bound to cause indignation ... It trivialises his role; he was 36, a mature adult who held a parental responsibility over the child in the absence of the hospitalised mother,” Davis said.

He said the magistrate’s inquiry into compensation did not canvas the needs of the victim and there was no meaningful interaction about the benefits of “restorative justice”.

The magistrate had imposed a lenient sentence because she believed the complainant had initiated the sexual intercourse. She had underemphasised the age difference between the two and had no regard for the seriousness of the case.

“Disturbingly, she stated that the purpose of legislation was to ‘protect young girls from themselves’” — which Davis described as a “chronic misdirection”.

“It is arguable that the release of the accused might place the 13-year-old at risk. There is no indication as to where the victim is and what arrangements are to ensure her wellbeing as this was not even canvassed,” he said.

The review judges agreed and said the sentence imposed by Asmal was so “disturbingly inappropriate that it is likely to cause indignation within a large portion of society.

“In essence it trivialises the crime of statutory rape where the perpetrator is the very person who is entrusted with the care and protection of the minor child.”

They said a custodial sentence was more appropriate to express societal indignation and condemnation in the circumstances of this case. 

“Irrespective of the extent to which an adult may feel tempted...the exercise of restraint is what being an adult is all about.”

According to Davis’s memorandum, there are three other matters which Asmal presided over which may be sent on review. Records of proceedings have been asked for.

  1. A case in which 20-year-old man sexually assaulted a 10-year-old. He was given a wholly suspended sentence of three months’ imprisonment  and ordered to pay R1,000 compensation to the mother.
  2. A case of an “uncle”, convicted of sexual assault for rubbing his penis on the vagina of a seven-year-old, who was sentenced to five years’ imprisonment wholly suspended on condition that he compensate the mother of the victim in the amount of R2,000.
  3. A case of statutory rape involving a 14-year-old in which the 18-year-old accused pleaded guilty and was sentenced to 12 months’ imprisonment, wholly suspended, on condition that he pay compensation of R1,000 to the primary caregiver of the complainant.

KZN director of public prosecutions Elaine Zungu confirmed that these matters had been taken on review.

“There was no stage in these cases where the prosecutor requested compensation orders. They were granted at the discretion of the magistrate,” she said.

Approached for comment, Alison Tilley, of justice watchdog group Magistrates Matter, said: “This is not justice ... These sentences show that the need for a robust and rigorous training and sensitisation on sexual offences is more urgent now than ever before.

“We call on the department of justice and the SA Judicial Education Institute to act to address this problem.”

In 2020 Umlazi magistrate Kholeka Bodlani was suspended in part because she had been handing out wholly suspended “mercy” sentences to child rapists.

Several were overturned on review and sent back to other magistrates for resentencing. In most, they were given life imprisonment.

Disciplinary proceedings against her have not yet been finalised by the magistrate’s commission.

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