Rapist dad's life sentence set aside

A father whom the courts called “vile” and “callous” after he repeatedly raped his 13-year-old daughter for over six years and fathered two children with her had his life sentence set aside because of technical mistakes made in an Eastern Cape court.

Two high court judges reduced his life sentence to an effective 20 years – 10 years for each of the only two rapes the man was charged with.

Judge Igna Stretch, with Judge Jean Nepgen agreeing, found the prosecutor and magistrate had made serious mistakes during the man’s trial in the Uitenhage Regional Court.

A defective charge sheet that charged him in terms of repealed legislation, a failure to inform the man he faced the possibility of life imprisonment and a failure to amend the charge sheet once it became obvious the man had raped the child repeatedly for years – and not just twice as alleged in the charge sheet – led to the lighter sentence.

The man, who may not be named as it would result in his daughter being identified, had pleaded not guilty to rape but admitted to “consensual” sex with his daughter from the time she was 13.

He claimed she had “seduced” him.

She had a child in 2004, aged just 13, and another in 2006, aged 16. The man was inexplicably charged only with the two rapes that led to her pregnancies, despite admitting to regularly having sex with the child. The Uitenhage Regional Court rejected his version that the child had seduced him, convicted him of the two counts of rape and sentenced him to life imprisonment.

The high court agreed that his evidence should be rejected. “(His) version that he was regularly seduced and groomed by his own daughter from when she was 13 over six to seven years is so improbable the trial court correctly rejected it as faulty beyond reasonable doubt,” said Stretch. But there were several other serious problems.

The charge sheet mistakenly indicated that the two rape charges should be read with certain sections of the minimum sentencing act that had been repealed some years beforehand.

The only applicable section remaining on the charge sheet was one that prescribed a minimum sentence of 10 years imprisonment for rape by a first offender.

To compound the problem, neither the magistrate nor the prosecutor put the charges to the accused as described in the charge sheet. It was left to his lawyer to put the charges to him.

He was also not informed he faced the possibility of life imprisonment.

The Criminal Procedure Act allows a court to impose a life sentence where a victim has been raped more than once or where she is a child.

But a fair trial required that the accused’s attention be pertinently drawn to the fact that the state intended relying on the life sentencing regime in the minimum sentencing legislation.

Stretch said the court had also failed to rely on legislation that allowed the amendment of a charge sheet when the evidence before the court indicated further wrongdoing. She said this legislation ought to have been resorted to when it became clear the sexual intercourse had been ongoing and frequent for years.

“It ought to have been resorted to at the commencement of the trial which was the time that any prudent prosecutor acting carefully and within the ambit of section 105 of the act ought to have realised when the charges were being put to the appellant that the charge sheet was defective in at least three respects.”

The charge sheet described a scenario involving just two rapes, which was not consistent with the facts or just a small part of a bigger story that the prosecutor should have been familiar with.

Stretch condemned the increasingly common practice in lower courts where the defence lawyer rather than the prosecutor or magistrate put charges to an accused as procedurally irregular. She urged presiding officers to clamp down on such “sloppy prosecution”.