- The High Court in the Western Cape dismissed a child rape appeal after a 60-year-old man raped his partner’s 8-year-old daughter, who fell pregnant at 10 and contracted HIV.
- The court found that his age, first-offender status and time spent awaiting trial were not substantial and compelling circumstances.
- Judges held that the seriousness of the offence “cannot be gainsaid” and that life imprisonment was proportionate and just.
A 60-year-old man who raped his partner’s 8-year-old daughter and got her pregnant at the age of 10 will remain behind bars for life after the High Court in the Western Cape dismissed his appeal against conviction and sentence.
Judge N Mangcu-Lockwood and Judge M Holderness confirmed the life sentence imposed by the Parow Regional Court, finding no misdirection and no basis to interfere.
Judge Mangcu-Lockwood opened the judgment with an unequivocal description of the case. “The harrowing series of tragedies presented by the facts of this case is inexpressible,” she wrote.
The complainant was 8 years old when the appellant, then 60 and her mother’s live-in life partner, began raping her. The abuse involved repeated vaginal and anal penetration, oral sex and sexualised touching. The judge recorded that he continued “undeterred by his discovery of the commencement of her menstrual period” and raped her until she fell pregnant at 10.
When children at school started calling her names and commenting that she was pregnant, she did not understand what pregnancy meant. The court noted that she was vomiting “three to four times a day” and that it was only after a neighbour alerted the school that intervention followed.
Before the pregnancy was detected, the appellant had secretly taken her to what she described as “a lady with Rasta hair who lived in a brown building”, who inserted tablets into her vagina and placed tablets in her mouth. He told her not to tell her mother. The court found that the tablets “only served to make her drowsy”.
Pregnancy and HIV were discovered
After the pregnancy was discovered, she was placed in three consecutive places of safety. It was there that she discovered she was HIV positive in what the judge described as “the most cruel way”, after another girl recognised her medication and told her what it was for. Even during the trial, the social worker testified that the complainant “still did not understand the full significance of the disease”.
Labour came much earlier than expected. The baby had to be delivered naturally, without pain medication and without her mother present. The complainant described giving birth as “the worst part of her 10-year-old life”. A closed adoption was arranged, and the baby was taken immediately after birth. The judge recorded that she continues to have “a profound sense of loss of her child”.
The complainant was too traumatised to give oral evidence. Her story was relayed through three victim impact reports. Judge Mangcu-Lockwood commended the investigating officer for providing the court with “a comprehensive voice to the hapless complainant”.
“If you did not penetrate her, how did she fall pregnant?”
The conviction was supported by unchallenged scientific and medical evidence. DNA analysis established a 99.99 percent probability that the appellant was the biological father of the child. A medical examination confirmed that the complainant, then 10 years old, was 29 weeks and three days pregnant and HIV positive.
The appellant testified in his own defence. His evidence, the High Court said, consisted of “much irrelevant rambling”. He alleged that the complainant and her mother had conspired to seduce him. He admitted that he had sexual intercourse with the child, later attempting to retract parts of that admission.
During cross-examination, the prosecutor asked him, “If you did not penetrate her, how did she fall pregnant?” He was unable to provide an answer. The Magistrate found that his version “was not reasonably possible”. On appeal, the High Court made clear that no specific ground of appeal was raised against the conviction.
Sentencing and appeal arguments
The appeal centred on the sentence. The appellant argued that his age, status as a first offender, adult children and more than two years spent in custody awaiting trial should cumulatively amount to substantial and compelling circumstances.
The High Court rejected this submission. The seriousness of the crime, the judges held, “cannot be gainsaid”. He had preyed on a vulnerable child “in what should have been her place of safety, the sanctity of her home”.
Addressing his clean criminal record, the court stated that there was “nothing compelling or substantial about the fact that the appellant did not have a previous criminal record”. It is “his duty as a citizen or resident of this country to obey the law”.
The judges found no remorse. Instead, the appellant advanced conspiracy theories involving “seduction by, among others, an 8-year-old”.
Reaffirming minimum sentencing principles, the court held that prescribed sentences “should not be departed from lightly and for flimsy reasons”. The ultimate question was whether the sentence was proportionate. Given the sustained abuse, pregnancy at 10, HIV infection and enduring trauma, life imprisonment was just.
“In all the circumstances,” the court concluded, “the appeal against the conviction and sentence is dismissed.”
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