S v Modukanele
| Jurisdiction | South Africa |
| Judge | Mogoeng, J |
| Judgment Date | 28 March 2002 |
| Docket Number | 16/2002 |
| Court | Bophuthatswana High Court |
| Hearing Date | 28 March 2002 |
| Citation | 2002 JDR 0328 (BH) |
Mogoeng J:
Introduction:
On 28 November 2001 the accused in this automatic review was convicted of sodomy and sentenced to undergo an effective term of two years imprisonment.
Two questions fall to be decided in this review. Firstly, whether conviction of sodomy was, in our law, still competent at the time. Secondly, whether any justification exists for punishing the so called 'male rape' any less seriously than a female rape of the same gravity.
Background:
2002 JDR 0328 p2
Mogoeng J
The accused is a 30 years old male resident at Gopane village in the Lehurutshe area. The complainant, Tebogo Bosi, is an 18 years old young man who resides at the same village as the accused. On Saturday, 13 November 2001, the accused was at the complainant's parental home. He had come to repair a television set. After fixing the television set he bought and consumed two beers. He remained at the complainant's parental home until late at night. The rain fell while he was still there. On these reasons, he asked the complainant's mother to allow him to spend the night at her home. The complainant's mother obliged. She, however, decided that the accused would sleep in a different house from that in which she and the complainant would spend the night and informed the accused accordingly. The accused implored her to allow him to share a room with the complainant since they were both men. Again, she relented. Consequently, one bed was prepared for the accused and another for the complainant in the same room.
At some stage during the night, the accused left his bed and slept in the complainant's bed. The accused undressed the complainant, and inserted his erect penis into the anus of the complainant and made up and down sexual movements. He held the complainant so tightly that, though the complainant tried to break loose, he could not. After the accused had finished, the complainant unsuccessfully tried to wake up his mother.
It was not until the ensuing Monday afternoon that the complainant reported the above incident to his mother. The matter was then reported to the police. On Tuesday, 16 November 2001, the complainant was examined by a medical doctor whose observations were that the complainant's anal orifice was bruised and that it had some tears. None of the above was disputed by the accused.
A charge of sodomy was preferred against the accused in the district Court of Lehurutshe. The verdict of guilty was returned. He was then sentenced to undergo a term of two years imprisonment.
After perusing the record I queried whether, in our law, it was still competent for the Court
2002 JDR 0328 p3
Mogoeng J
a quo to convict the accused of sodomy. I also questioned whether (i) the sentence imposed was not too lenient having regard to the seriousness of the offence; (ii) the matter should not have been referred to the Regional Court for sentence; and (iii) traditional stereotypes aside, any justification exists for the Courts to continue viewing and treating unlawful sexual intercourse with a male victim less seriously than its equivalent, in terms of severity and gravity, with a female victim. In response, the learned Magistrate suggested that the conviction should be altered from sodomy to indecent assault. As regards the suitability of the sentence imposed, the learned Magistrate, inter alia said the following:
"I however concede that there is no reason for not regarding sexual intercourse with a male person without his consent as an equivalent to rape.
I unfortunately followed tradition and decided on the appropriate sentence from the premise that sodomy fell under the category of crimes against the community. I therefore found the sentence of two (2) years imprisonment appropriate under the circumstances of the case against the accused.
I concede that if I could have...
To continue reading
Request your trial