Judges Mabel Jansen and Cynthia Pretorius confirmed the conviction, but set aside the 20-year jail term of a young man who was 17 years old and a first offender when he raped a five-year-old family member.
They replaced his sentence with one of 10 years imprisonment, but backdated it to May 2013.
Judge Jansen said it seemed the magistrate and the high court had overlooked that the accused was 17 when he committed the offence and had an automatic right of appeal in terms of the Child Justice Act.
The magistrate denied him leave to appeal against his conviction and sentence and the high court only granted him leave to appeal against his sentence.
She said it was perturbing that not only the magistrate but also the accused’s legal representative were unaware of a Constitutional Court ruling in a case by the Centre for Child Law against the justice minister, which pertinently held that a minimum sentence should not be applicable to child offenders who are 16 and 17 years old.
The magistrate also failed to take into consideration the constitutional prescript that a child’s best interests were of paramount importance in every matter concerning the child.
Another failing was Section 28 of the constitution which provided that a child could only be detained as a last resort.
The judges accepted the young girl’s evidence that the accused had raped her at the tuck shop where he worked as an assistant and confirmed his conviction.
They also accepted a social worker’s report that the child victim had suffered severe emotional and social trauma as a result of the rape.
The young girl was a happy child and had good relations with her family and peer group before the rape.
However, she became withdrawn and fearful of being alone, struggled to sleep and could barely cope at school.
They ruled that given the barbaric nature of the crime and the very young age of the complainant, a sentence of imprisonment was warranted despite the accused’s youth status.