Wearing a condom can never be a mitigating factor to warrant a lesser sentence for rape – especially if the victim is a child.

The Mercury reports this is according to the Gauteng High Court (Pretoria), which turned down the appeal lodged by convicted rapist Thomas Malesa (51) against the life imprisonment sentence meted out to him for raping a child (12) in 2017.

He was earlier sentenced by the Benoni Regional Court, but argued his sentence was shockingly high.

According to him a sentence of 10 years’ imprisonment would have been more fair. Malesa said the fact that he had pleaded guilty should also be taken into account in his sentencing, as he thus ‘showed remorse’.

But the court said from the facts of this case it could be inferred that the appellant was not remorseful, but rather regretful that he was caught.

The Mercury report says regarding his argument that he should receive a more lenient sentence and that he had used a condom, the court said: ‘As a point of departure, the appellant was not supposed to rape the complainant at all … Taking into account the evidence in totality, his use of a condom in the process of violating a child young enough to be his own, cannot by any means be considered as heroic and is irrelevant.’

In further pleading for mercy, Malesa argued that the child did not suffer severe injuries.

But the court said the act of rape on its own was brutal.

Various courts have expressed their disdain about rape and found that the offence of rape is serious and prevalent in the jurisdictional areas of the court. The judge commented that rape is a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim, and is an appalling and utterly outrageous crime which violates a woman’s body.

In confirming the life sentence, the court noted that GBV against women and children was a scourge.

‘This society gets raped and/or sometimes killed with impunity. The courts do their best in imposing the ultimate sentence, that of life imprisonment, but some perpetrators of these hideous crimes, like the appellant, are not deterred. There is no other way except to impose a sentence according to what is prescribed in the legislation,’ the judge said.

Full report in The Mercury