When Bongani Vilakazi’s life sentence for raping an under-age girl was overturned last week by the Supreme Court of Appeal, it was just another example of the appalling level of dysfunction in the criminal justice system, says rape activists.
Shoddy investigation, poor prosecution and disagreements about interpretation of minimum sentencing legislation saw Vilakazi’s sentence reduced to 15 years as the judges found that the rape was “not of the worst kind imaginable”.
The minimum sentencing legislation, which requires the imposition of a life sentence for certain kinds of rape — such as that of children under 16 or people with disabilities — was introduced 10 years ago as a stop-gap measure, says Shereen Mills of the Centre for Applied Legal studies (Cals).
“[The legislation was] introduced to fetter the discretion of judges and magistrates in rape cases,” Mills says. Despite this, she says that over the last decade the “courts have done mental gymnastics to avoid imposing mandatory life sentences in rape cases”.
“The courts don’t like it [the legislation] because it implies that they are not as objective as they could be,” says Mills.
“A pattern has emerged where mandatory life sentences are routinely overturned by higher courts.”
“This will continue to happen when cases are poorly prosecuted and evidence is not properly gathered or presented,” says Lisa Vetten of Tshwaranang Legal Advocacy Centre, which, together with Cals, was admitted as amicus curiae (friend of the court) in the matter.
Vetten says the failure to investigate basic issues like the girl’s age or to have her properly assessed to ascertain whether she was mentally disabled, or capable of consenting to sex opened loopholes which allowed the court to overturn the maximum sentence.
One of the grounds on which the defence argued for a reduction of sentence and was that the girl was already sexually active and therefore not overly traumatised because “she had been deflowered before”. The girl had told the district surgeon that she had previously been sexually abused.
“Some of the ideas the judges held about consent and how women can imply consent were very disturbing,” says Vetten.
After he had raped her Vilakazi told the girl he would take her back to her home and she waited for him in the veld until it got dark.
When he did not return she started to hitchhike home and was given a lift by a man who noticed she was stumbling and walking in a strange way.
For Vetten the girl’s passivity could be read not as consent but as submission to an older man’s authority, exacerbated by shock and fear, as well as raising questions about her mental capacity.
“The prosecution didn’t ask the girl questions or clarify these issues, which raised doubt in the judges’ minds on whether she had consented,” says Vetten. This helped Vilakazi dodge the maximum sentence.
The minimum sentencing legislation was introduced to ensure rapists were punished consistently to deter such crimes.
It was never intended to be permanent and a more nuanced sentencing framework which provides greater guidance to judges was drawn up by the Law Commission in 2000.
To date the Department of Justice has not submitted it to Parliament for debate or for public consultation.
“As long as we have a blunt instrument like the minimum sentencing guidelines we will continue to see such problematic decisions around sentencing,” says Vetten.