S v Fatyi

The appellant, a 51-year-old first offender and taxi driver, was convicted in the Eastern Cape Division of the High Court of indecently assaulting a six-year-old girl who had been entrusted to his care for transport to an after-care centre. On 24 November 1998, while alone with the complainant in his vehicle, he diverted to a wooded area where he indecently assaulted her. Medical examination later that night revealed bruising to her genitalia, tearing of the hymen and fourchette, and mild haemorrhaging. The trial court rejected allegations of rape and convicted him of indecent assault on the basis that digital penetration had occurred. He was sentenced to ten years’ imprisonment under the Criminal Law Amendment Act 105 of 1997. Leave to appeal was granted only in respect of sentence.

The appeal against sentence was dismissed and the sentence of ten years’ imprisonment was confirmed.

The case reinforces the strict application of the minimum sentencing regime for sexual offences against children and clarifies that even non-penile penetration causing physical injury constitutes 'bodily harm' for purposes of s 51 of the Criminal Law Amendment Act. It also illustrates the application of the Malgas principles in assessing substantial and compelling circumstances.