Court name
High Court
Case number
CC 3 of 2010

S v Kashidule (CC 3 of 2010) [2010] NAHC 106 (24 September 2010);

Media neutral citation
[2010] NAHC 106


CASE NO.: CC 03/2010



In the matter between:





Heard on: July 16 and 19, 2010; September 16 – 17, 2010.

Delivered on: September 24, 2010.


LIEBENBERG, J.: [1] The accused’s conviction
follows from pleas of guilty on the following charges: (i) assault
with intent to do grievous bodily harm; (ii) indecent assault; (iii)
attempted rape; (iv) abduction; (v) rape read with the provisions of
the Combating of Rape Act, No. 8 of 2000. Because of his young age
when committing the aforementioned crimes, the Court requested a
pre-sentence report which subsequently was compiled and presented by
Ms. Jansen, a social worker from the Directorate: Child Welfare
Services (Tsumeb) of the Ministry of Gender Equality and Child

[2] The report reveals the following:

Although the age of the accused is not stated in the report, a
document, titled Abridged Certificate of Registration of Birth
(Exh ‘B’) bearing the names of the accused, was
handed in by agreement and according to which the accused was born on
November 11, 1988. Thus, even though he is currently twenty-one
years old, he was seventeen years of age when he committed the crimes
he now stands convicted of.

The accused comes from a family where there are eleven siblings with
parents that did not positively contribute to the upbringing of their
children. When the accused was fifteen years of age his mother died
and although his siblings were taken in and cared for by family of
his deceased mother, nobody was willing to take the accused and his
brother because by then both had already shown serious behavioural
problems. Their biological father also refused to provide for them
as he was unable to discipline and control them due to old age; and
therefore he sent them away to find employment elsewhere. Instead,
they put up a hut in the bushes and sustained themselves by stealing
from the surrounding homesteads. When his father again married the
complainant (H M), the accused returned to his father’s
homestead but preferred to isolate himself and did not take part in
the family activities. He continued stealing from the neighbours and
when confronted, he became aggressive and violent.

For the sake of completeness I deem it necessary to quote in
paragraph 2 of the report styled under the heading:

After a(n) interview
with the accused, the social worker would describe him as a violent
rapist. Violent rape is a form of violent assault where one
individual forces a child to have sexual intercourse against that
child’s will, in this case a three month old baby.

Characteristics of violent
rapist(s) (are) they often target strangers, however they will target
someone they know if they use rape as a form of punishment, as in
this case, we can refer to it as revenge rape. The stepmother
refuse(d) him sex and he punished her by abducting her three month
old baby, run away and rape the baby.

The accused crime plan was to
have sex with his stepmother. He did consume some traditional drink,
but was sober enough to kept alternating his plans to succeed in his
plan. For example he saw the opportunity when his stepmother was
alone with the baby on her way back home and offer to accompany her.
He offer(ed) his stepmother a stolen umbrella to soften her towards
him. When she refuse(d) the umbrella he verbally asked her to have
sex with him behind a bush. She refused and tried to talk to him
while walking fast to the nearest homestead. The accused talk(ed)
her out of seeking help at the neighbours and promise(d) to behave.
The accused patiently waited and plan(ned) his next move and when the
stepmother needed help to get through the fence with the baby he
acted. When she gave resistance he violently attacked her, broke her
arm, abducted the baby ran away and rape(d) the baby violently,
ripping the small body apart, while the baby was screaming.

In the accused(‘s)
distorted thinking he minimize and excuses the violent rape, by
saying he felt sorry for the baby, because the mother was lying on
top of her (try to protect the baby) and the baby was crying.
accused show no remorse and blame H M, the stepmother for the rape
and assault, because she refuse(d) to have sex with him, when he
wanted sex.

The offender showing the
following signs of lying at the time of the interview: lip sticking,
fidgeting in seat, fiddling with hands/fingers, won’t look you
in the eye, gaze at the ceiling, and rub his arm.” (sic)

Regarding the accused’s attitude towards the crimes committed
by him, the following appears at paragraph 3 of the report:

The accused admit(s)
he is guilty to all the convicted crimes, but he blame(s) his
stepmother and the community members for his crimes. For example he
stole a cell phone, a bob card and N$100-00 from the neighbour and
was punished with a beating. It is because of them that he takes to
violent behaviour and it is because his stepmother chase him away, he
assaulted her and rape(d) the baby.
The accused take(s) no
responsibility for his wrong behaviour and actions, he always
shift(s) the blame. Therefore the social worker came to the
conclusion that the accused have limited insight in his wrong
behaviour and that he (has) to change his behaviour and make
responsible choices.”
(My emphasis)

The aforementioned conclusion reached by Ms. Jansen, in my view,
casts serious doubt on the submission in mitigation, made on behalf
of the accused, that he pleaded guilty and (therefore) was remorseful
for what he has done. Although a plea of guilty can be indicative of
contrition on the part of an accused, it should not be taken for
granted to be the case; as in many cases the evidence against an
accused is só overwhelming that it leaves the accused with no
option other than to plead guilty. In that case, there is no reason
why the accused should “benefit” from the situation and
have his plea of guilty noted as a mitigating factor (S v Landau
2000 (2) SACR 673 (WLD) at 678a-c). It has also been said that
remorse must be sincere and in order for the Court to adjudge whether
the penitence is genuine, the accused must take the Court fully into
his confidence; something the accused in this case did not do (S v
1970 (2) SA 506 (A) at 511G-H).

[3] The detail of the assault perpetrated on H and the consequences
thereof also emerges from the report, from which she suffered
permanent damage to her left arm in that it is “crooked …
with limited use” which impedes on her daily activities such as
pounding and affects her quality of life. The trauma of the assault
and the raping of her daughter resulted in epilepsy and now require
the permanent care of a certain Rebekka Petrus to protect the
complainant against hurting herself during epileptic fits. As a
result of her condition, she is incapable of sustaining her family.
I pause here to observe that there is no medical evidence before the
Court supporting the inference that the epilepsy the complainant
suffers from, came as a result of the trauma she experienced during
the assault on her and her baby.

Regarding the current condition of the baby (who is now almost five
years old), the report states that she is “a small, fragile
child who experience poor overall health”
and it was
observed that she “has trouble walking, due to hip problems
as the result of the rape”
, leaving her crippled. Once
again it must be said that there is no medical proof that the hip
injury was caused by the assault on her as a baby; and given the poor
health condition she is currently in, it cannot be excluded that
there might be other causes explaining the injury.

In her recommendation the social worker states the following:

The accused is a
danger to society, who must be protected. Therefore the social
worker recommend(s) that the accused stand(s) normal trial and

In her testimony Ms. Jansen confirmed her findings and recommendation
and said that despite the accused’s undesirable and unfortunate
childhood, he, to some extent, chose to commit crime, particularly
the ones in question, which makes him a danger to others as he does
not take ‘no’ for an answer; nor does he take
responsibility for what he has done.

[4] The crimes were perpetrated against his stepmother and her
three and a half month old baby daughter (accused’s half
sister) and therefore fall within the ambit of the Combating of
Domestic Violence Act, No. 4 of 2003. In view thereof the Court in
terms of s 25 of the said Act, invited the complainant to give
evidence in which she could express “ any views concerning
the crime, the person responsible, the impact of the crime on the
complainant, and the need for restitution and compensation”

before the accused is sentenced (s 25 (2)). From her evidence it
emerged that when she had moved in with the accused’s father
(who died about two years ago), he was still a young boy and that she
raised him and his elder brother like her own. Although the
relationship between her and the accused was good, this changed
completely since the incident and she now has become afraid of the
accused for what he has done to her child. She felt angry at the
accused as he had put her baby’s life in danger by seriously
injuring her and she therefore urged the Court to impose a harsh
sentence upon the accused. Regarding the assault perpetrated on her,
she explained that the accused struck her with an umbrella on her
arm, fracturing it in the process but which healed completely. I
pause here to observe that according to the social worker’s
report permanent damage was caused to the left arm, as the alignment
of the healed fracture is not satisfactory for full functioning of
the arm (which was evident during her appearance in Court).

The accused’s plea explanation on the charge of assault with
the intent of causing grievous bodily harm merely refers to the use
of fists on the person of the complainant and not also the use of an
umbrella during the assault.

[5] The background against which the accused stands convicted is
the following:

On 5 February 2006 the accused accompanied H M and her baby daughter
home and on the way the accused assaulted the complainant by beating
her with the intent to cause her grievous bodily harm. When she at
one stage stooped to put her baby on her back, the accused came from
behind and put his penis between her buttocks (whilst she was still
dressed). He then forcibly tried to have sexual intercourse with the
complainant but without success. The accused then took the baby away
from her and ran into the bushes with the intention of having sexual
intercourse with her. He then committed sexual acts with the baby by
inserting his penis into the anus and vagina of the child.

According to the medical report which was compiled in respect of the
child and which was handed in by agreement (Exhibit ‘D’),
a medical examination was performed on the baby the following day by
a medical practitioner, who found the following: “Lacerations
on the right leg and multiple lacerations on the anus and redness on
the inner vagina. Hymen not intact.”
A watery discharge
from the anus was also observed and the examination was noted to be

[6] From the medical report it is evident that the penetration was
forceful, resulting in lacerations of the anus. Whereas the hymen is
no longer intact and redness on the inner vagina was observed, this
supports the conclusion that there was indeed penetration of the
vagina. Although the medical evidence evinced by the report is
rather scanty, it was testified by H that her child was seriously
injured and that the baby’s urine and faeces afterwards, were
“just blood”, which is indicative of the seriousness of
the injuries inflicted. The penetration of the baby’s anus
resulting in multiple lacerations would have required substantial
force and caused excruciating pain to such a young baby. The nature
of the injuries inflicted against such small and frail baby as in the
present instance, is an aggravating factor weighing heavily against
the accused. How the accused could commit such a heinous and evil
crime against a baby of three and a half months, is simply
inconceivable – more so where she is his baby sister –
despite his age. The accused admitted that he appreciated the
wrongfulness of his acts and I have no doubt that he indeed knew that
what he was doing, is criminal.

[7] Although the accused is now much older than what he was when
committing the crimes, the Court must approach sentence with due
regard to the accused’s actual age at the time i.e. seventeen
years. Because the accused was under the age of eighteen the
prescribed minimum sentences set out in s 3 (3) of the Combating of
Rape Act No. 8 of 2000, do not find application. However, had he
been nine months older, the prescribed sentence would have been one
of not less than fifteen years imprisonment. The State
therefore urged the Court to take that into consideration when
deciding what a suitable sentence would be.

Regarding the sentencing of juvenile offenders I have said the
following in The State v Iishuku Amunyela (unreported) Case
No. CC 01/2010 delivered on 03.03.2010 at p 3:

[8] … The
traditional aims of punishment had undoubtedly been affected by the
Constitution and the relevant international conventions; to the
extent that in every case involving a juvenile offender, the ambit
and scope had to be widened in order to give effect to the principle
that a child offender should only in exceptional circumstances be
detained and then, only for the shortest possible period.

[9] From the
aforementioned it is evident that, although the incarceration of
juvenile offenders should as far as possible be avoided, neither the
Constitution nor the international conventions forbid the
incarceration of children; and it is inconceivable that there might
be cases in which the incarceration of children was required. These
would be cases where the seriousness and circumstances in which the
crime was committed and the character of the juvenile offender are
such, that he or she acted like an ‘ordinary’ criminal,
despite their age and background (Director of Public Prosecutions,
Kwazulu-Natal v P
2006 (1) SACR 243 (SCA)).”

[8] The accused in the Amunyela case (supra) was
fourteen years of age when he raped a five year old girl and although
she was forced into submission by the accused (by hitting her with a
stick), the injuries inflicted were superficial. In that case the
Court imposed a wholly suspended sentence of eight years
imprisonment. The present facts however, differ substantially from
the Amunyela matter in that the accused in the present case
was seventeen years and the victim a mere three and a half months old
when he perpetrated the rape; inflicting multiple open injuries
(lacerations) to the baby’s anus whilst also rupturing the
hymen during penetration of the genitalia. The nature of the
injuries inflicted is indicative of the degree of force applied to
the small and frail body of the victim. The reason for this
repulsive conduct by the accused as evinced by the pre-sentence
report is because he was unable to force H into submission in order
to have sexual intercourse with her; whereafter he snatched her baby
from her and ran into the bush where he committed sexual acts with
her. In the circumstances it would thus appear that the accused took
‘revenge’ against H for having refused him sexual
intercourse; the same conclusion reached by the social worker after
her consultation with the accused.

[9] When regard is had to the circumstances of this case, including
the personal circumstances of the accused and in particular his
youthfulness and the fact that he is a first offender, I am of the
view that, although the aforementioned factors are weighty in
sentencing, the accused cannot today escape punishment simply because
of his young age when he committed the crime. It seems worthwhile
repeating that young offenders cannot (always) hide behind their
youthfulness when they are guilty of committing serious crime. The
message should also be clear to young people that they will not
simply be excused by the courts on account of youthfulness and go out
scot-free; but, where justice will not otherwise be done, they will
be held accountable and punished accordingly for the pain and misery
caused to others as a result of serious crimes committed by them.
Although the young age of an offender is usually regarded as a
mitigating factor counting in favour of the accused person, it is
merely one of several factors that need to be considered when

[10] Regard must also be had to the accused’s personal
circumstances, particularly to the undesired circumstances under
which the accused was raised and which most probably had an adverse
influence on his moral values and the manner he conducted himself
after the death of his biological mother. As children they had to
steal to survive and it seems to me that this has nurtured the
perception with the accused that, if he wanted something, he could
simply take it. According to the social worker’s report –
which information was mainly obtained from interviews held with the
neighbours – the accused and his brother already at the age of
fifteen years had developed serious behavioural problems, to the
extent that the family was unwilling to care for them and their own
father sent them away to fend for themselves at a very young age.
The accused thereafter made a living from crime, which continued even
after his father had taken him back into his house. I pause here to
observe that Hendrina, during her testimony, had a different view
about the accused’s behaviour towards her prior to the day of
the incident. According to her he was a good boy who used to help
her (with chores) around the house and she did not know what got into
him on that fateful day. Ms. Jansen testified that H was vague as
regards the background of the accused and that she therefore had to
rely on the information received from the surrounding neighbours and
their perception of the problems experienced by their father with the
accused and his brother. During her testimony H was also vague
regarding the age and background of the accused and relied on
estimations. Unfortunately, as a result of the death of both parents
none of what had been said by either H or what came from other
sources, could be verified.

[11] It is furthermore clear from the report that whenever the
accused experienced opposition in his endeavours (even at the expense
of others), he would become aggressive and turn violent. Also, that
he takes no responsibility for his wrongdoing and justifies his
actions by shifting the blame onto others. Although mindful that the
accused’s background and circumstances may have influenced who
he is, I believe that the accused himself is responsible for who he
has become and what he did to others, no matter what his emotions
were at the time.

[12] During his appearance in this Court on July 19, 2010 when the
matter was postponed pending the pre-sentence report, the accused
became aggressive in Court and threw a glass of water on the floor
whilst loudly protesting his dissatisfaction, resulting in his
forceful removal from Court. (He earlier displayed similar conduct
in Court during his pre-trial appearances in Windhoek as per
the records of proceedings.)

[13] From the pre-sentence report it is further evident that the
accused admitted that he had planned his actions in advance and saw
the opportunity of executing it by escorting his stepmother home. He
stood in a domestic relationship with the one he assaulted and tried
to commit sexual acts with – the wife of his father, whom he
was supposed to respect and treat with dignity. He furthermore stood
in a relationship of trust towards his stepmother – something
she was entitled to rely on when he accompanied her home and which
trust he sadly betrayed. He persisted in his conduct by trying to
have sexual intercourse with her even after she declined his request;
whereafter he became violent and assaulted her, fracturing her arm in
the process and which resulted in permanent damage. All the
aforementioned are aggravating factors weighing heavily against the

[14] A weighty factor that cannot be ignored when it comes to
sentencing is that, not only did H testify that she has become afraid
of the accused, but also community members were terrified of the
accused as he threatened to take revenge once he is released from
prison. Another worrying aspect which emerged during the
consultation with the accused is that he until now has used violence
to overcome any resistance. When regard is had to the extent of the
social worker’s report on the view taken by the accused and his
explanations “justifying” his conduct, there seems to me
a real risk of the accused giving effect to his earlier threats, once
released. I am therefore in agreement with the social worker’s
recommendation that the accused at this stage is still a danger to

[15] The circumstances of this case where a three and a half month
old baby was raped, must top the list as one of the youngest, if not
thé youngest victim ever of rape in this country –
something that hurts one’s soul and leaves a feeling within,
that society has failed this child. To subject a defenceless baby to
such barbarism and to inflict so much pain on such a small child,
fills one with abhorrence and makes one wonder what has become of the
moral values of society if criminals like the accused now set their
sights on babies to satisfy their sexual lust? Such conduct is
unjustifiable and inexcusable in any society and those making
themselves guilty of such atrocious crimes must know that their acts
will be met with severe punishment.

[16] The interests of society must be given sufficient weight when
determining what sentence would be suitable in the circumstances;
lest society will lose faith in the courts and its ability to uphold
law and order and protect the innocent against unscrupulous
criminals; otherwise they might take the law into their own hands.
The voice of the masses is being heard more regularly and becomes
louder as society, almost on a daily basis, demonstrates its
disapproval and indignation against those guilty of murdering and
raping women and children. These crimes are committed with complete
disregard for the rights of others or respect for anyone else.
Although I am mindful of the fact that public expectation is not
synonymous with public interest, the Court cannot ignore society’s
cries for justice – for that is what society is entitled to
i.e. that justice be done not only to the offender, but that the
courts must also have regard to the interests of society. After all,
the courts must uphold the rule of law and maintain order; by so
doing, it serves society.

[17] When considering the objectives of punishment namely,
prevention; deterrence; rehabilitation and retribution, I am
convinced that this is an instance where society needs to be
protected against the accused and that justice dictates that the
accused be duly punished for the horrendous crimes he committed. The
emphasis should therefore fall on prevention and retribution. It
does not mean to say that the objective of reformation must be
over-looked as the accused is still a young person, but, here
reformation will be required to take place within prison boundaries,
as the accused cannot at this stage be allowed back into society. He
first needs to learn self-respect and then learn to respect and
appreciate the rights of others; and until such time he has learnt
that, he will remain a threat to the innocent and vulnerable in
society; who are entitled to be protected against criminals like him.

[18] Despite the young age of the accused and him being a first
offender, I am of the view that the seriousness and circumstances in
which the crimes were committed fall in the category of being
“exceptional” and that the character of the accused,
despite his background, is such that in sentencing, the Court can not
treat the accused differently, as he acted like an ‘ordinary’
criminal. Therefore, despite the prescribed minimum sentences set out
in the Combating of Rape Act No. 8 of 2000 (which are not here
applicable but which serve as a guideline or benchmark of sentences
the Legislature has in mind), I am of the view that the exceptional
circumstances of this case justify a sentence in excess of the
prescribed minimum sentence in respect of count 5. The aggravating
factors undoubtedly outweigh the personal circumstances of the
accused by far and, given the serious nature of the crimes, a lengthy
custodial sentence is inevitable.

[19] In determining what sentence would be appropriate, regard
must also be had to the period the accused was in custody awaiting
trial. According to the charge sheet on which the accused appeared
in the Tsumeb Magistrate’s Court he was arrested on February 6,
2006 and remained in custody ever since; thus, for more than four
years. This is a lengthy period which obviously would lead to a
reduction in the sentence to be imposed (S v Kauzuu 2006 (1)
NR 225 (HC) at 232F-H).

[20] Whereas the accused stands to be sentenced on several charges
which arose from the same series of events, regard must also be had
to the cumulative effect of the sentences to be imposed on each
charge. In order to ameliorate the impact of the totality of these
sentences, the Court will make appropriate orders.

[21] In the premises, I have come to the conclusion that the
following sentences, in the circumstances of this case, are suitable:

Count 1 – Assault with intent to do grievous bodily harm: 1
year imprisonment.

Count 2 – Indecent assault: 1 year imprisonment.

Count 3 – Attempted rape: 4 years imprisonment.

Count 4 – Abduction: 4 years imprisonment.

Count 5 – Rape: 20 years imprisonment.

In terms of s 280 (2) of Act 51 of 1977 it is
ordered that the sentences imposed on counts 1 – 4 are to be
served concurrently with the sentence imposed on count 5.




Instructed by: Office of the Prosecutor-General


Instructed by: Mugaviri & Associates