A former police Sergeant has had his life sentence for rape reduced to 20 years by the Kimberley High Court citing that the cop is capable of rehabilitation.
The former cop, Luzoko Wayne Mbayeka, who had been in the SAPS for 16 years, was sentenced by the Regional Court in Kimberley on January 26, 2022, for raping a 40-year-old woman. He came to this court to appeal his conviction and the life imprisonment sentence.
The victim said Mbayeka raped her on November 9, 2019 after her aunt asked the former cop to give her niece a lift. The victim said she did not know Mbayeka, but her aunt assured her that it would be safe to travel with him.
She said Mbayeka was with his friend Thabo (last name not provided), and he first dropped him off and told her that he had some livestock to attend to in the outskirts of town, and after that, he would take her home.
However, she said Mbayeka drove to a shack where he asked her to come with him inside so they could talk. She said that upon entering the shack, Mbayeka pushed her, and she found herself stuck between a bed and the wall of the shack. At this stage Mbayeka helped her to get up and then pushed her on top of the bed where he raped her twice.
She said she was helped by the people who had her loud screaming, asking for help, and they came to the shack to knock. She said that when Mbayeka eventually opened the door, she ran out dressed in only her bra, and she fainted.
Defending himself, the former cop said they had drunk together while traveling with his victim, and they both agreed to have sex. He pleaded not guilty.
Judge Cecile Williams said the trial court correctly convicted Mbayeka in his two rape charges. Judge Williams said at the time of sentencing, Mbayeka was 45 years old, had a minor child who was two years old, and 11 other minor children. The Judge also said Mbayeka had been living with a woman for six years and had been in custody for over two years.
“The appellant has one previous conviction for driving while his blood alcohol concentration exceeded the legal limit, for which he was sentenced to a fine in 2015. This previous conviction is not relevant for purposes of sentencing,” said Judge Williams.
Additionally the Judge said there was no doubt that rape was a repulsive crime and that rape incidents was escalating in the country. However, the trial court erred in over-emphasising the prevalence of the crime at the expense of Mbayeka’s favourable personal circumstances.
“The trial court also erred by finding that the fact that appellant (Mbayeka) raped the complainant twice was an aggravating factor,” she added.
Moreover, she also said the fact that Mbayeka pleaded not guilty, which led the trial court to believe that he had no remorse for his actions did not mean that he was not capable of being rehabilitated. Judge Williams considered 22 years imprisonment for Mbayeka but took into account that he had already spent two years pre-sentence and said 20 years would be proper.
