A man who raped and attacked a woman gets suspended sentence and a fine. Welcome to the rural magistrates court, writes Carmel Rickard.
A woman is attacked, raped twice and left with broken bones and her life in tatters. For this the rapist is given a completely suspended sentence plus a trivial fine for attempted murder.
Welcome to the real world of South African justice: the rural magistrates court.
The woman, a chef working in a bush resort, had a relationship with the executive chef, William Mtshali, but it broke up.
Later, unhappy at work, she handed in her notice to Mtshali who was her immediate superior during December 2011.
He told her to go with him and other staff to another section of the reserve to collect catering equipment.
He left the other staff working there and drove with her to a more remote function site allegedly to pick up more equipment. When they arrived he said she should have sex with him one last time. She refused. He raped her.
Then he said that as he didn’t want to go to jail for rape he would kill her.
He forced her back into the vehicle and drove off with her.
She jumped out and tried to run away, but he caught her and severely assaulted her with a pot lid, a rock and his fists until she blacked out.
She regained consciousness in the boot of the vehicle and when she began screaming Mtshali stopped the vehicle.
He said he didn’t know what to do with her – then assaulted and raped her again. Eventually she managed to escape and friends took her to hospital.
Among other injuries she had deep scalp lacerations, a grossly swollen face, a torn right ear and a fractured hand.
She laid a charge against Mtshali and when the police arrived at work to arrest him management discovered what had happened.
Police told them not to “interfere” with their criminal case and only to take action against Mtshali after his trial. She was given leave on full pay until the end of January 2012.
But when her leave came to an end Mtshali was still working at the resort and management took a number of steps to ensure she worked elsewhere in the company.
He was convicted in August 2012 and the company began disciplinary proceedings against him. He immediately resigned. In December 2012 his case resumed, for sentencing. The magistrate sentenced him to five years for rape, wholly suspended, and to R2 000 or 12 months for attempted murder.
No one would have found out about this extraordinary sentence, which seems to defy law and logic, had the woman not brought legal action for sexual harassment in the labour court against her employer.
That court found her employers had acted properly and that she had no claim against them.
However, said Acting Judge Sean Snyman, “I feel compelled to state” that she had proper cause to feel that she had been denied justice and her basic human rights violated. It was not, however, her employers who had failed her, said the judge, “but the criminal justice system”.
He said he was “completely appalled” by the sentence, calling it “manifestly unacceptable and unconscionable”.
Even though he was a Labour Court judge, hearing a discrimination claim, he couldn’t “sit by and let this situation go unaddressed”. The sentence was “an affront to the human dignity and bodily and psychological integrity” of the woman, said Judge Snyman.
The magistrate had not acted in terms of the law specifying minimum sentences in cases of rape, and for rape with aggravating features. Nor had any reason been given for not doing so.
Mtshali was convicted of attempting to murder the woman and she only survived because she escaped. “In short,” he added, Mtshali’s sentence “is about as grave an injustice as I can think of”.
Judge Snyman said that he could not simply “walk past” such a grave injustice – that would be to condone it. While the woman could theoretically take legal action against Mtshali herself, it was “equally up to the executive of the State to deal with this injustice”.
He therefore ordered that the matter be referred to the Magistrates’ Commission, the National Prosecuting Authority, and the Director-General of the Department of Justice and Correctional Services to investigate the magistrate’s conduct.
He also asked the Women’s Legal Centre to consider helping the woman in any future legal action.
Two trials now in progress concerning violence against women are making international headlines. What are the chances this case will merit a mention?
* Carmel Rickard is a legal affairs specialist. Email [email protected] or visit www.tradingplaces2night.co.za
** The views expressed here are not necessarily those of Independent Newspapers.