I’VE just read a rape appeal judgment that has left me fuming. It’s yet another case in which the rapist got off with less than he deserves because of a technical hitch or the misplaced sympathy of a judicial officer. It convinces me that we need a plan; something concerned people can do to name and shame those responsible.
The case concerns Andile Manyolo, convicted in the Port Elizabeth regional court of rape and housebreaking with intent to rape. It’s a horrible story and the outcome of his appeal is just as horrible.

He had a previous rape conviction, in 1987. More recently he was arrested and jailed because he beat up his girlfriend. No question – this is a guy with an anger problem, given to violence against women. Soon after his release in relation to the domestic violence case, he broke into the home of his girlfriend’s 78 year old disabled mother, who spent most of her life in a wheelchair, though she slept in her bed at night. The noise made by Manyolo as he smashed his way into her home woke her, and she heard him say he was going to kill ‘the old lady’ (meaning herself) because ‘he was in prison due to her’. Obviously these remarks suggest a premeditated attack, motivated by revenge. He held a butcher’s knife to her neck while he raped her and blood stains on the front of her T-shirt indicated she was cut by the knife.

Manyolo’s attack must be precisely what the legislature had in mind when it decided that certain categories of violent crime warranted life imprisonment. The crucial question in such a case is whether the presiding officer imposes the sentence prescribed by Parliament, or alternatively finds ‘substantial and compelling’ grounds not to do so. In Manyolo’s case the magistrate found reason to sentence him to 28 years, not to life.

What were those grounds? At 52, Manyolo was ‘old’, meriting ‘an element of mercy’ so he wouldn’t have to spend the rest of his life in jail. Another compelling reason not to jail him for life was that the old lady ‘did not suffer serious injuries’. In addition, while Manyolo had a previous conviction for rape, said the magistrate, that was long ago. The magistrate’s final reason not to jail him for life was that Manyolo’s victim had since died. It’s hard to understand how that could be a factor influencing sentence, but the appeal court concluded the magistrate must have meant that she ‘no longer had a personal interest in the type of sentence to be imposed on her rapist’.

By this stage in the appeal judgment I expected the court to find grounds for interfering with the 28 years imposed on Manyolo by the magistrate. And I was right, but not in the way I had expected: instead of going to jail for a longer term, his sentence was halved.

It turned out that the accused was never warned, as he should have been, that he faced a possible life sentence. This irregularity, the appeal court found, was so grave that his right to a fair trial had been impaired and the 28 year jail term, imposed under the minimum sentence legislation, had to be set aside. Instead Manyolo would have to be sentenced as though that legislation was not applicable.

Under its ordinary jurisdiction a regional court cannot send anyone to jail for more than 15 years – and so Manyolo’s sentence was reduced accordingly. The appeal judges were obviously unhappy about the result, commenting, ‘It is a matter of great concern that an accused, clearly deserving of a longer prison sentence, should have had his sentence reduced by 13 years, because of an unnecessary oversight in the process of charging him.’

They are right. It should be automatic for a charge sheet to indicate the possible applicable penalty and for it to be read out to the accused. It’s inexplicable that, so long after the minimum sentence law came into effect, some trial courts and prosecutors still don’t get the basics right and because of their oversight or negligence a rapist can escape his proper sentence. Just as bad, as the Supreme Court of Appeal recently pointed out, there are presiding officers who find grounds not to impose life or other prescribed minimum sentence (even when it might well apply) out of a ‘maudlin sense of sympathy’ for the accused.

Isn’t there something that the public can do about this?