Chairperson, hon members, Parliament has previously passed legislation providing for minimum sentences. What this means is that our presiding officers are given discretion to impose a sentence. However, the legislation compels them to order sentences between certain parameters and based on certain criteria. In other words, the court may not impose a sentence that is less than a certain prescribed minimum, unless the court has found substantial and compelling circumstances in the case. The court can only deviate from this minimum sentence and, in other words, impose a lesser sentence, if the court finds that there are substantial and compelling circumstances in the case.
The legislation was not passed to make sentences mandatory. Presiding officers still have discretion when it comes to sentencing, except that the legislation sets out the minimum sentence that the court may impose. Despite the passing of the legislation, cases show that there are still presiding officers in our courts who are imposing sentences which are inappropriate. An example is the case of the State v G, in which the accused was convicted of raping a 10-year-old girl. The accused was in a position of trust over the child, as he was the mother's boyfriend. The court found that the accused showed absolutely no remorse whatsoever and that the victims suffered continuous trauma because of the rape. Despite this, the court still imposed a lesser sentence because the court found that the violence used during the rape was not excessive and he therefore did not inflict serious physical injuries on the complainant.
The court seems to forget that rape, in and of itself, is a serious injury both physically and psychologically. Pronouncements such as these are unacceptable in a society that has to protect its women and children. Sentencing is all about attitudes, and this House has a duty to send a message that crimes such as the rape of children are unacceptable and demand a heavy sentence.
The Bill before us will make it very clear that our courts may not use factors such as the complainant's sexual history, an accused person's cultural or religious beliefs about rape, any personal relationship between the accused and the complainant or a perceived lack of physical or psychological harm on the victim as mitigating factors to justify lesser or lighter sentences.
This House needs to speak for victims of rape who cannot speak for themselves. For example, in the case of the State v Swart the accused had been convicted of housebreaking with the intent to rape, two counts of rape and two counts of indecent assault. The evidence showed that the accused was heavily under the influence of alcohol at the time.
The court found it was more important to cure the accused of his alcohol abuse, and therefore sentenced the accused to only seven years' imprisonment, suspended on condition that he seek treatment for his drinking problem. On appeal, the Supreme Court of Appeal overturned the sentence and imposed a sentence of 12 years, of which only eight years had to be served.
Die Grondwet verbind ons tot die daarstel van 'n samelewing wat vry is van rassisme en seksisme. Ons kan slegs 'n vrye, nie-rassige en geslagsgelyke samelewing gebou op beginsels van menswaardigheid, gelykheid en vryheid ten volle verwesenlik, indien ons as `n samelewing ons denke so kan verander ten einde dit te bereik.
As gevolg van sommige toonaangewende hofuitsprake, veral deur ons Konstitusionele Hof, is daar reeds groot vordering gemaak op die gebied van geslagsgelykheid. Tog wil dit voorkom asof daar in verkragtingsake veral sommige howe is wat steeds onsensitief is teenoor die slagoffers van verkragting en vonnisse opl wat nie die misdaad pas nie. Dit is hoekom ons hierdie wetgewing, wat nou voor die Huis dien, nodig het. (Translation of Afrikaans paragraphs follows.)
[The Constitution enjoins us to establish a society that is free of racism and sexism. We can only fully realise a free, non-racial society with gender equity, built on the principles of human dignity, equality and liberty, if we as a society can change our mindset so as to achieve this end.
As a result of several authoritative judgments, especially by the Constitutional Court, there has been significant progress in the field of gender equity. But it would appear that, in rape cases in particular, some courts continue to be insensitive to the plight of rape victims, and still impose sentences which do not fit the crime. That is why we need this legislation that is now before this House.]
In conclusion, I wish to quote from a comment by the Association of Regional Magistrates, who will primarily be tasked with the implementation of this legislation:
We support the objectives of this Bill fully and are committed to ensure that this Bill is put into operation and shall be properly and responsibly applied. We are also committed to providing training and guidance to our members, pertaining to the appropriate use of the new sentencing powers extended to us in this Bill.
We commend our regional courts for this positive approach. With such enthusiasm we can certainly look forward to the successful implementation of this important piece of legislation. The ANC supports this Bill. [Applause.]