S v Ngwenya (A 169/18) [2019] ZAGPJHC 11 (20 February 2019)

Criminal Law – Appeal - against convictions on charges of assault with the intent to do grievous bodily harm, kidnapping and rape as contemplated in s 3 of the Criminal law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Act) – and against sentence of 20 years’ imprisonment, the court a quo having taken the three counts as one for the purposes of sentence.
Convictions confirmed. Sentence set-aside and replaced with a sentence of six years’ imprisonment on count 1 (assault with the intent to do grievous bodily harm), six years’ imprisonment on count 2 (kidnapping) and imprisonment for life on count 3 (rape).
Section 51(1) read with s 51(3)(a) and Part 1 of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 – Imprisonment for life is the mandatory minimum sentence where the conviction of rape is one contemplated in s 3 of the Act in circumstances where the victim was raped more than once whether by an accused or by any co-perpetrator and accomplice – the offence of rape still consists of sexual penetration of a non-consensual person, but ‘sexual penetration’ is defined as ‘any act which causes penetration’ – appellant’s co-accused also raped the victim, although he did not commit the act of penetration, and was convicted of rape as an accomplice.
Substantial and compelling circumstances, which justify the imposition of a lesser sentence than the mandatory minimum one of imprisonment for life, not showed to exist.