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History of this document
05 August 2022
28 January 2022 this version
Published in Government Gazette 45822
25 January 2022
Assented to
Cited documents 0
Documents citing this one 27
Judgment
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s51(1) mandatory life applies where evidence proves gang rape, even if co-perpetrators remain unconvicted.
Criminal law — Mandatory minimum sentencing — s 51(1) Criminal Law Amendment Act 105 of 1997 — scope of Part I of Schedule 2 (rape committed more than once or by more than one person) — whether co-perpetrators must be convicted before minimum applies — statutory interpretation and stare decisis; Appeal by State under s 311 Criminal Procedure Act — question of law; reinstatement and backdating of life sentence.
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Violent, repeated, weapon‑facilitated rapes did not constitute substantial and compelling circumstances to avoid prescribed life sentences.
* Criminal law – Sentencing – prescribed minimum sentences – applicability of life imprisonment for rape where victim under 16, repeated rapes, or rape by more than one person acting in furtherance of a common purpose.
* Sentencing – substantial and compelling circumstances – personal mitigation (first offender, youth) insufficient where offences are violent, repeated and weapon‑facilitated.
* Ancillary orders – inclusion on National Register for Sex Offenders, placement on National Child Protection Register, firearm disqualification.
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Life sentence for father who raped his 14‑year‑old daughter upheld; no material misdirection or disproportionate sentence.
* Criminal law – Sentencing – appellate interference limited to material misdirection or sentences so disproportionate as to be shocking.
* Statutory minimum sentences – s 51(1) CLAA – rape of a person under 16 (as applicable at time) – life imprisonment.
* Aggravating factors – incestuous rape by a biological father, abuse of position of trust, resulting pregnancy and further victimisation.
* Mitigation – guilty plea not necessarily substantial mitigation where conviction was inevitable; rehabilitation may play a smaller role in extreme offences.
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Leave to appeal refused: applicant failed to show reasonable prospects of success on conviction or sentence.
* Criminal procedure – leave to appeal – section 17 Superior Courts Act – applicant must show a reasonable prospect of success, not mere possibility.
* Criminal law – conviction on murder with direct intent – trial court's factual findings and witness credibility; appellate prospects.
* Sentencing – prescribed minimum sentences (Part 2 Schedule 2) – Malgas principles; substantial and compelling circumstances required to deviate.
* Sentencing – pre-trial custody: not alone sufficient as substantial and compelling circumstance.
* Sentencing – primary caregiver and best interests of children: factual inquiry; not automatically mitigating.
* Domestic-relationship murders – legislative severity and sentencing consequences (Part 1 v Part 2 distinction).
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Appeal against rape conviction and 10-year sentence dismissed; credibility and sentencing jurisdiction upheld.
Criminal law – sexual offences – rape – single child complainant evidence; corroboration by family witness; medical evidence of recent penetration; consent and sobriety issues; sentencing – mispleading of CLAA provision; jurisdiction and minimum prescribed sentence (s 51(2)(b) Part III Schedule 2) – no prejudice, 10-year minimum upheld.
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Appellant's conviction and life sentence for raping a 10-year-old child upheld; no grounds for interference with trial court’s findings.
Criminal law – Rape – Evaluation of single and child witness – Cautionary rules – Corroborative evidence – Sentencing – Minimum sentences for rape of a child – Substantial and compelling circumstances.
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Where premeditation was not proven on plea, mandatory life under section 51(1) did not apply; sentence substituted with 20 years.
Criminal law – Murder – Requirement that "planned or premeditated" be proved at conviction before invoking s51(1) minimum life sentence – Plea in terms of s112(2) must address elements in Schedule 2 – Trial court misdirected by applying s51(1) where only spontaneous killing proved – Proper application of s51(2) (Part 2) with regional court maximum of 20 years – Appellate substitution of sentence – Declaration of unfitness to possess firearm (s103 Firearms Control Act).
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Elderly accused’s medical complaints and affidavits did not establish exceptional circumstances to obtain bail for Schedule 6 offences.
Bail — Schedule 6 offences — onus under s60(11)(a) to show exceptional circumstances; affidavit vs viva voce evidence; medical condition as factor; s60(4)–(8) considerations including risk to public, likelihood of interfering with witnesses, prior violent convictions, and absence of verifiable alternative accommodation.
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The applicant's claim for unlawful arrest, detention and malicious prosecution was dismissed for lack of reasonable suspicion and malice.
Unlawful arrest and detention – warrantless arrests under s40(1)(b) – reasonable suspicion based on visible injuries and statements; malicious prosecution – requirement of absence of reasonable and probable cause and malice; credibility assessment; withdrawal for untraceable complainant.
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Appellate court substituted two rape convictions with one multi‑occasion rape conviction and reduced sentence to 25 years.
Criminal law — Sexual offences — Consent vitiated by coercion and intoxication under SORMA; single‑witness evidence; first report and delay — s 59 SORMA. Procedure — Charge framing: s 94 CPA (diverse occasions) versus multiple counts; s 106(4) entitlement to verdict; s 88 inapplicable to import common‑purpose findings. Sentencing — Application of Schedule 2 Part I item (a)(i) CLAA (rape more than once); appellate interference where sentence disproportionate.
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