A third child rapist initially given a “slap on the wrist” by Umlazi magistrate Kholeka Bodlani was resentenced on Monday and is now serving life imprisonment.
Widower Khomokwakhe Hector Mkhize, 58, was sentenced to an effective five-year prison term by Bodlani in August 2015.
He was released on parole in December 2018 after serving three and half years. But he found himself back behind bars late last year after being rearrested - on the instruction of two KwaZulu-Natal high court judges, who reviewed four sentences imposed on child rapists by Bodlani describing them as “shocking”.
Bodlani convicted Mhkize of the rape of a 10-year-old girl “on diverse occasions” in January and February 2011.
She accepted evidence that the child had been looking for a friend when Mkhize forced her into his home and, after raping her, kicked and threatened her and told her he had killed his own children.
On a second occasion, Mkhize grabbed her as she was returning home from the shop, tied her up with a rope and taped her mouth shut.
Judges Mohini Moodley and Philip Nkosi, who presided over the initial four review matters, said in an 18-page judgment that Bodlani had correctly reiterated minimum sentencing provisions and had emphasised the seriousness of the crime, adding that sentences must reflect the indignation of the community.
“She described the rape as a monstrous and atrocious deed and noted that the complainant had suffered physical injuries and had become mentally unstable. She noted that he did not show any remorse. She mentioned that he had not used a condom and had exposed the child to HIV.
“Then in a sudden volte-face [about-face], she said she believed the accused’s own children would suffer if he were sentenced to life imprisonment and that she must show him mercy. She imposed a 10-year sentence and suspended half the sentence, which was totally at odds with her preceding comments.”
When the matter came before Durban regional court magistrate Sophie Reddy for resentencing on Monday, Mhkize’s now-adult children sat in the public gallery,
Also in the gallery was the victim’s grandmother, who said the child was now 20 years old. She had dropped out of school and was “angry and disrespectful”.
Mkhize’s attorney Ashika Ramdularay said life imprisonment would be unjust because he was not well and was a first-time offender.
Prosecutor Desiree Boyang argued, however, that Mkhize had “killed the young girl’s soul and destroyed her future”.
Reddy ruled that there were no substantial and compelling circumstances to deviate from the prescribed sentence. She described Mkhize as an “opportunistic predator” who had caused pain and misery not only to the victim but to her family.
Bodlani’s cases are being audited by the Magistrates Commission. So far, seven have been referred back to various magistrates, although it is believed that as many as 17 cases have raised eyebrows, including one where she deemed a child rape accused to be “gay” and released him before trial.
Responding to questions, commission spokesperson advocate Cassim Moosa said Bodlani had been served with a notice at the end of January requesting her to show cause why the Magistrates Commission should not recommend to the minister that she be provisionally suspended from office, without remuneration, pending the finalisation of the inquiry into her fitness to hold office as a magistrate.
“She has been advised of the investigation into her fitness to hold office. She has further been informed that reliable prima facie evidence exists that indicates that she is incapacitated to carry out the duties of her office efficiently," said Moosa.
“If a decision is taken to provisionally suspend her, then this recommendation will be forwarded to the minister for tabling before parliament, who will accordingly make a decision regarding such recommendation.”
Bodlani has repeatedly ignored e-mailed and telephonic requests for comment.