Culture clashes clashes happen regularly in South Africa but seldom have I heard of anything like the full-scale divergence recounted in a Labour Court judgment last month.
Johanna Mmoledi, a woman employed at a luxury country estate, had worked for many years in the establishment's network of kitchens, where staff are ranked and ordered in the hierarchical structure of traditional French restaurants. But when she started having visions and came to believe that her ancestors required her to become a sangoma, three worlds collided.
THE surgeon discussed every aspect of the operation; he has a reputation for thoroughness as well as skill. "It won't be many years before we look back at this procedure with horror," he said. "We'll call it barbaric."
A comforting thought for our granddaughters perhaps, but not much in it for me just then. The operation was to "remove" my left breast – though it was a cancer-driven amputation we were discussing, not relocation to a more convenient site.
In an article this week marking Black Wednesday, commentator Issa Sikiti da Silva recalled the words of John Patten, head of the SA Society of Journalists at that time. (Black Wednesday, October 19, 1977, was the infamous occasion on which the apartheid government banned several newspapers and magazines critical of National Party (NP) policies; it also banned organisations and detained individual activists.)
Patten, according to Da Silva, said: "In a free country, the government does not tell the press what it may or may not publish."
It starts off sounding like a conventional, rather minor, crime story and subsequent appeal: a young man is found in possession of an unlicensed firearm and, though he has no cartridges or other ammunition, he’s sentenced to two years in jail.
When he appeals to the high court, the sentence is reduced to 18 months. He tries again, this time at the Supreme Court of Appeal. And in that court’s decision on the case, handed down at the end of last month, I spot a sentence with information that is simply unbelievable: it has taken 11 years for the appeal brought by Roschen Samuels, the young man concerned, to be heard. Eleven years. In that time he has changed from the 21-year-old who committed the crime to a 32-year-old father of a child.
In a stunning critique of how survivors of rape are treated by the courts, three judges of the Supreme Court of Appeal have taken the judiciary and the prosecution to task. It’s about time. From the facts of State v Matyityi, delivered last week, I was appalled that the judge in the original trial did not impose the minimum sentence for rape and murder.
The appeal judges take up exactly that issue – the willingness of courts “all too frequently” and for “the flimsiest of reasons” not to impose the sentence prescribed by Parliament. In this case it appeared the only reason the trial judge did not impose life sentences for the “breathtakingly brazen” crimes, committed with “callous brutality”, was a “maudlin sympathy” for the accused, Vuyisile Matyityi. He led a gang that preyed on people in parked cars at a lonely East London beach spot. During April 2008 they kidnapped, assaulted and robbed a man drinking a beer in his car. He was driven to a secluded spot where he was hooded and bound to a tree. After a series of hair-raising events, he escaped with his life. Five days later, the gang’s next victims – a woman and her boyfriend, Mick Fritz – were not so lucky. Fritz was stabbed and then bundled, dying, into the boot of the woman’s car. She was gang raped by the men before they left her to fend for herself. By the time she got Fritz to hospital, he was dead.
Shortly afterwards police found all the goods stolen in the two attacks at Matyityi’s house. All three gang members were charged with murder, rape and robbery, but while Matyityi pleaded guilty the other two claimed innocence, so their trials were separated.
Convicted in the high court in East London, Matyityi was sentenced to 25 years for rape, 25 years for murder and 13 for robbery. All three terms were to run concurrently, so he would have spent considerably less than 25 years in jail.
The Director of Public Prosecutions appealed, saying the sentence was too lenient. This gave an opportunity for the appeal court to revisit the question of rape sentencing and related issues. Parliament has stipulated a minimum life sentence for certain categories of murder and rape unless “substantial and compelling” grounds exist. The sentencing judge found two such factors – Matyityi’s age (he was 27) and his remorse (this was supposedly demonstrated by his lawyer apologising on his client’s behalf and by his guilty plea).
Why was his age a substantial and compelling reason not to impose the minimum sentence, asked the appeal court? Why did the trial judge not take into consideration a previous conviction for possession of unlicensed firearms? And why did the trial judge accept that the woman “sustained no injuries”?
In comments that I hope will be noted by every presiding officer, the appeal judges said that to restrict the inquiry about rape injuries to permanent physical damage “is to fundamentally misconstrue the act of rape”. It was an invasive and dehumanising violation and the consequences for the survivor were “severe and permanent”.
The judgment showed rare insight into the damage to the psyche of a rape survivor. But it will also become known as the decision in which the courts strongly advocated a more victim-centred approach to sentencing.
Why hadn’t the prosecution led evidence about Matyityi’s victims, asked the judges – the murdered man was not a mere statistic. Who else depended on him? What work did he do? What was the effect of his death on his family, employer and community? These and similar questions about Fritz and the gang’s other victims were never answered and sentence could thus not reflect judicial consideration of the crime’s individual and social damage.
The courts should give victims a voice, said the appeal court, with the chance to participate and provide information during the sentencing phase of a trial. They should be permitted to explain the physical and psychological harm they suffered and the social and economic consequences of the crime in the short and long term.
In doing so, the court could “truly recognise the wrong done to the individual victim” and the sentence passed would thus properly take into account the circumstances of the victim, rather than simply those of the accused.
Make a note of this case. If you are ever a crime victim, when your matter comes to court remind the prosecutor of Matyityi. Say you want to give evidence before the accused is sentenced; say you want your voice to be heard.