Durban - A KwaZulu-Natal South Coast man, who raped a disabled woman three times, will have to serve out his sentence of life imprisonment after two appeal court judges said they had no sense of "unease" over the punishment.
KwaZulu-Natal Judge Mahendra Chetty, with Deputy Judge President Isaac Madondo concurring, said: "Rape has profound consequences of emotional and psychological trauma for its victims, who never fully recover… the victim in this is confined to a wheelchair.
"The legislature has given proper recognition to the seriousness of rape and particularly so where it is committed against those who are more vulnerable than others."
The matter came on appeal before the judges from the Scottburgh Regional Court which had convicted Lungisani Nyuswa of the crime.
He had initially pleaded not guilty, claiming the sex was consensual.
The woman testified that Nyuswa had come to her house armed with a knife. She was alone, as her mother - who cared for her - was visiting her sister.
‘Paralysed from the waist down'
She was asleep and had woken up when he lifted the blanket off her, threatened her with the knife, and raped her. He then carried her outside to a nearby bush, where he continued to rape her.
DNA evidence proved that he had had sex with her.
Judge Chetty said the regional court had rejected his version that they had been involved in a "secret love affair".
"Photographic evidence showed that she is confined to a wheelchair, she has little mobility and cannot get in or out of bed without assistance," Judge Chetty said.
"She is paralysed from the waist down."
After convicting Nyuswa, the magistrate found there to be no "substantial and compelling" reasons to deviate from the prescribed sentence of life imprisonment.
In his appeal against sentence, Nyuswa argued that the magistrate had not placed enough emphasis on his personal circumstances - that he was 28-years-old, a father of two, and was temporarily employed.
'He knew of her vulnerability as a disabled person'
Judge Chetty said it was evident from the record of the evidence that Nyuswa was aware that his victim was disabled prior to committing the crimes.
"He knew of her vulnerability as a disabled person and preyed on her situation."
He said the law provided for the imposition of life imprisonment where the victim was raped more than once and, further, where the victim was disabled and rendered particularly vulnerable.
"This rape falls within this category on two fronts - the repetition of the offence and disability. On either score, life imprisonment is prescribed."
The judge said that - belatedly, five years after his trial - Nyuswa had "recognised the error of his ways and is remorseful".
"He asks for a second chance in life. By this, I assume he contends he is a candidate for rehabilitation."
This, he said, was not enough to reduce the sentence.