Pretoria - Rape remains under-reported nationally, but there may be no incident more hidden than those committed within families.
This is according to a judge of the Supreme Court of Appeal (SCA) in confirming the life sentence of a father of three, who raped his 9-year-old niece twice.
The man tried for the second time to appeal his conviction and sentence following the verdict of a regional court in Limpopo. Three judges earlier turned down his appeal, and this week the SCA did likewise.
While the child stuck to her guns that he had raped her twice in the house she shared with him, her mother and grandmother, the best the rapist could do was a bare denial that it was him.
The child explained in detail that when all the other family members were not home, he called her into his room and raped her twice.
This was despite her crying bitterly and asking him to stop.
She did not tell anyone for days about her ordeal because he threatened to assault her if she said anything.
Meanwhile, her private parts were torn by the rape act and she could hardly walk.
Her grandmother noticed this and alerted the mother, who obtained a confession from the child that she was raped. This was subsequently confirmed by the doctor who examined her.
Her uncle cited an alibi – that he was at work that day – but it had emerged that he only came up with this during his trial.
It was, however, argued on his behalf that the courts should be cautious in accepting the evidence of a child.
Justice Constance Mocumie, in turning down the appeal, said the message must be clear and consistent that the onslaught of rape would not be countenanced in any democratic society which prided itself on values of respect for the dignity and life of others, especially the most vulnerable in society, such as children.
“For an uncle, who is the position of trust just as a father, to rape his niece, is unconscionable and deserves no other censure than that imposed by the trial court; life imprisonment,” she said.
She said rape remained under-reported nationally.
“There may be no rapes more hidden than those committed within families.
“Sexual violence victims often experience a profound sense of shame, stigma and violation.
“These factors are compounded by attempts from family members of the victim or the perpetrator to influence the victims not to file charges or, if charges have been filed, to withdraw the case so that the families can resolve the problem amicably.”
She added that often, the perpetrator offers to pay the medical costs for the victim’s medical treatment, including psychological treatment, and even maintenance of the family in cases of indigent families.
The judge said from reported cases of rape based on literature and evidence of experts in court, rape has a devastating impact on anyone, let alone a child.
The child in this case was subjected to gruelling questioning by her uncle’s lawyer, such as suggesting that she had inflicted the injuries herself or that she had suffered it while playing with her friends. But the child stuck to her version of how she was raped.
Judge Mocumie pointed out that the rape of women and children was rampant in South Africa.
“It has reached alarming proportions despite the heavy sentences which courts impose.
“South Africa has one of the highest rape statistics in the world, even higher than some countries at war.”
She noted that the country’s annual police crime statistics confirm this: in 2019/2020, there were 42 289 rapes reported as well as 7 2749 sexual assaults. This translates into about 115 rapes a day.
The judge referred to another judgment in which it was said: “Rape of a child is an appalling and perverse abuse of male power. It strikes a blow at the very core of our claim to be a civilised society.”
She further noted the plethora of judgments, as well as regional and international protocols, which bind South Africa to respond effectively to gender-based violence.
“Courts should not shy away from imposing the ultimate sentence in appropriate circumstances, such as in this case. With the onslaught of rape on children, destroying their lives forever, it cannot be ‘business as usual’.
“Courts should, through consistent sentencing of offenders who commit gender-based violence against women and children, not retreat when duty calls to impose appropriate sentences, including prescribed minimum sentences.”
Judge Mocumie said reasons such as lack of physical injury of the victim, the inability of the perpetrator to control his sexual urges, or that he was drunk, were no excuses not to impose very long prison sentences if the country hoped to ever curb gender-based violence.