Rapist brothers Raydon Fortuin and Eben Fortuin, from Tulbagh, will continue serving their life sentence imprisonment after they failed in their appeals against their convictions and sentences at the Western Cape High Court.
At the heart of their appeal was that the Paarl Regional Court had erred in finding that the mentally challenged “Mr JJ’s” evidence was satisfactory in all material respects. They were charged and found guilty of raping Mr JJ.
The brothers, who are gang-affiliated, also argued that the regional magistrate had failed to exercise caution in the evaluation of Mr JJ’s evidence as a single witness, the evidence of the complainant’s foster mother as well as the “shortcomings in the J88 report which did not support the complainant’s evidence”.
Jeanine Hundermark, a clinical psychologist in private practice and also attached to Cape Mental Health, entered evidence as a State witness after Mr JJ was referred for an assessment to evaluate his level of intellectual functioning, his ability to consent to sexual intercourse and his competence to testify as a witness.
Mr JJ had previously suffered brain injury trauma at 13 years old when he was attacked and hit with the flat side of a panga. The injury resulted in him being in a coma for four days, leaving him with mental challenges.
According to court documents, after the brothers raped Mr JJ on May 17, 2020, just after 9pm, he immediately went home where he reported the incident to his foster mother, who reported the matter to the police.
Judge Vincent Saldanha also voiced his concern over the management of the trial which led to a measure of confusion in respect of the evidence of the complainant and which was compounded by the lengthy and at times “excruciatingly repetitive and unnecessary cross-examination by the defence of the complainant”.
This was due to malfunctioning microphone equipment which had at times not recorded evidence by the complainant and he had to repeat his evidence at times to properly state into record.
“The (brothers) had abused the complainant’s vulnerability. The State, with reference to similar authorities, emphasised the fact that the complainant was for all intents and purposes a child at the time of the incident, suffered severe disabilities as indicated in the testimony of Hundermark and was particularly vulnerable to the brutal and predatory conduct of the brothers.
“The State contended that the court a quo had considered all the relevant facts and circumstances of the matter and correctly found that there were indeed no substantial and compelling circumstances to have deviated from the prescribed sentence of life imprisonment. I agree. It was apparent from the record that the appellants, despite the testimony of their mother, did not establish any substantial and compelling circumstances for the trial court to have deviated from the minimum sentence. The appellants displayed not an iota of sympathy towards the complainant in the manner in which they dealt with him.
They simply abused their power over him and sought to humiliate him in the most gruesome and brutal of ways by the sexual assault on him. The complainant remains scarred for life,” said Judge Saldanha.
Cape Times