This one isn’t an easy read, so prepare yourself.

Gender activists, child rights activists, and decent people countrywide were shocked to learn about the lenient suspended sentences handed down by an uMlazi Regional Court magistrate in recent years.

The Durban High Court recently reviewed magistrate K Bodlani’s sentencing records. In particular, they looked at the sentences imposed on three convicted rapists in matters involving children.

Two judges concurred that her decisions were “shocking” and “deviating disproportionately” from the prescribed minimum sentence of life imprisonment for the rape of a minor, reports IOL.

The cases were referred for special review by the acting regional court president for KwaZulu-Natal and the uMlazi regional magistrate.

Bodlani had imposed a sentence on the first accused of five years’ imprisonment, wholly suspended for seven years, for the rape of his 11-year-old daughter, and on the second accused a sentence of 10 years’ imprisonment, half of which was suspended for 10 years, for the rape of a 10-year-old girl.

She handed down a sentence to a third accused of four years’ imprisonment, suspended for six years for the rape of a 15-year-old girl.

In the special review judgement, the court described the judgements on the above matters as “not only shockingly inappropriate”, but said it had the potential to undermine the administration of justice.

I’d call it a gross miscarriage of justice, but that’s just me.

“The community and the public in general will lose faith in the ability of the courts to dispense fair and appropriate justice and will be aghast that the offenders who have preyed on vulnerable children will be allowed into the community without appropriate retribution and rehabilitation,” the judgment read.

The judges said while sentences must be “tempered by mercy”, the magistrate in the matters under review appeared to have been “totally overcome by mercy” and became “impervious to the significance and weight” of the facts and other factors.

It gets worse. Bodlani’s reasoning behind her “mercy” sentencing is deeply problematic.

“There is simply no correlation between the facts and the sentences imposed in each of these matters. In (the first matter) the magistrate seems to have been satisfied that it was in the best interests of the child to be exposed to the very person who abused her trust and sexually violated her,” it read.

The judgment also said the magistrate had “lost sight of her own finding that the accused deliberately exposed the complainant to HIV” in the second matter.

In the third matter, it appeared that she had accepted “intoxication” – which had not been proved in the trial – as a strong mitigating factor in sentencing.

These matters, along with a fourth matter, are being referred back to the uMlazi Magistrate’s Court for sentencing proceedings to be heard afresh before another magistrate.

Women and Men Against Child Abuse founding director Miranda Jordan said the decision to set aside the sentences was “excellent”, but that “action needed to be taken to retrain the magistrate”.

“This crime robs the victim of childhood and adulthood, and there are ramifications, both psychological and physical. The impact is long term because the child will need therapy for most of its life, or in certain stages of its life, like becoming a teenager or getting into a sexual relationship.”

“This crime is viewed seriously by all of society, including our Justice Department which says the minimum sentence is 25 years’ imprisonment. We have national child protection weeks, and 16 days of activism and still we have someone who deviates from the minimum sentence,” she said.

The magistrate has clearly demonstrated her inability to do her job effectively and within the parameters of the law.

Retraining might not be the answer – she shouldn’t be handing down sentences at all.

[source:iol]