Court confirms suspended sentence for man who sexually assaulted seven-year-old

• The Durban High Court has confirmed a R1,000 fine and suspended sentence for a man who sexually assaulted his seven-year-old niece.
• The case was one of four sentences by Pinetown Magistrate Bilkish Asmal that were sent for review by the High Court.
• The judges found that the sentence was “in accordance with justice”, though they themselves would believe sentenced the perpetrator to prison.

The sentence of a man who sexually assaulted a seven-year-old girl, which was flagged for being too compassionate, has been confirmed by the Durban High Court. The man was given a suspended two-year sentence and ordered to pay R1,000 to the victim’s family.

The perpetrator was the victim’s uncle. He told her not to expose anyone because her vagina “belonged to him”.

In a judgment on 11 August, Judge John Sanders, with Judge Rob Mossop concurring, said that if he had been presiding over the trial, he would probably gain sentenced the perpetrator to time in prison. But he found that the sentence was “in accordance with justice”.

This was the latest of four sentences handed down by Magistrate Bilkish Asmal in the Pinetown Regional Court flagged for review.

In February 2021, acting regional court president Sharon Marks identified three matters for special review. In the first case, a 35-year-old man raped the 13-year-old daughter of his girlfriend. The victim was in hospital at the time of the incident. Magistrate Asmal gave him a suspended sentence and ordered him to pay R1,000 to the victim’s family.

In an April 2021 judgment, Judge Vusi Nkosi and Judge Graham Lopes converted the sentence to five years imprisonment. They said that the original sentence was “disturbingly inappropriate” and “trivialises the crime of statutory rape”.

In 2022 senior magistrate Garth Davis, followed up on the three remaining cases, which were then sent to Judges Sanders and Mossop for review. In his memorandum, Davis said the crime of the man who assaulted his seven-year-old niece was even worse than the case reviewed by Judges Nkosi and Lopes.

“The victim is a defenceless child,” wrote Davis. “The indecent assault or sexual assault on the facts of this case constitutes a serious sexual violation of the complainant that demands that the personal circumstances of the accused should surrender to the interests of society [and makes] a custodial sentence unavoidable.”

Handing down judgment, Judge Sanders paraphrased the 2021 judgment by Judges Nkosi and Lopes in his judgment – “the sentence is so disturbingly inappropriate that it is likely to cause indignation with large portions of society”. But he confirmed the suspended sentence and R1,000 fine.

He also confirmed the judgment in the third case, that of a 20-year-old man who had forced his tongue into the mouth of a ten-year-old girl. The man’s suspended sentence and R1,000 fine were maintained.

In the fourth case, an 18-year-old was convicted of statutory rape involving a 14-year-old. He was given a suspended prison sentence and ordered to pay R1,000 to the complainant’s caregiver. In attempting to review the sentence, Judge Sanders found that the documents before him were “severely lacking” and he ordered the record to be reconstructed.

Reacting to the sentences, Mbekezeli Benjamin, a researcher for Judges Matter, told GroundUp: “this is not justice”.

“We repeat our call for the SA Judicial Education Institute to urgently provide rigorous training and sensitisation of judicial officers in sexual offences courts. We also call for a comprehensive review of the functioning of the sexual offences court in Pinetown.”

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