There will be no joy this festive season for the rapist of two children, aged eight, after the Supreme Court of Appeal overturned his 12-year jail sentence and replaced it with one of life behind bars.
Jacob Kwinda was initially sentenced to life imprisonment in the lower court. He turned to the high court to appeal his sentence, as he said that the prosecution never proved that the children were indeed eight.
The high court overturned his life sentence and replaced it with an effective 12 years. Unhappy with this, the State turned to the SCA to appeal against this lenient sentence, especially as Kwinda pleaded guilty to raping two girls aged eight.
It is now back to a life behind bars sentence, after Judge Wendy Hughes, in a unanimous judgment, said there was no need to prove the children’s ages under the Criminal Procedure Act, as Kwinda in his written plea statement agreed that they were eight.
She found that where all the elements of an offence are admitted in a written plea of guilty, an accused may be convicted accordingly on the basis of the plea. “The respondent (Kwinda) admitted to having sexual intercourse with two eight-year-old complainants,” the judge said.
Kwinda, 59, was sentenced in November 2017 to life imprisonment for each count. In his plea of guilty, he explained that he was at a spaza shop at Rooiberg in Limpopo, buying bread when he met the two girls.
In his statement, he said: “I did unlawfully and intentionally commit an act of sexual penetration with a female 8-year-old…” He then went on to explain how he then raped the other child and admitted that she too was only eight.
In sentencing him to life, the regional court earlier said it was clear that he knew the children were eight. It also emerged that he knew the children well as they were from the community. A social worker said they trusted him.
It was also said that when he comes back from work, the children in his neighbourhood would run to him, knowing that he was going to give them bread. According to the social worker, he told his two rape victims not to report him, but both responded that they would. To this, he reacted by laughing at them and saying, “no such thing will happen because he is a very well-known man.”
Following his life sentence by the lower court, Kwinda successfully appealed his sentence to the high court, primarily on the basis that the State had not proven the age of the complainants.
On appeal to the SCA, the State argued that the high court erred in finding that they had to prove the ages of the complainants even though the respondent had admitted this in his guilty plea statement. Kwinda admitted having sexual intercourse with the complainants who were under the age of 16 years; it is such admission that dispensed with the need for proof in regard to the victims' ages, it said.
Judge Hughes found the high court to be wrong. She said the sentence prescribed for a sexual offence committed against a child under the age of 12 years is life imprisonment.
“The fact that the respondent was at an advanced age does not, in my mind, mitigate his case against a prescribed sentence; in fact, it aggravates it…. The ordeal traumatised the complainants to an extent that one complainant no longer goes to school and both complainants are being referred to by their peers, individually, as the ‘raped child’,” the judge said.
The SCA found that the only fitting sentence was life imprisonment.
Pretoria News