Busakwe and Another v S (CA 162/2018) [2019] ZAECGHC 4 (29 January 2019)

Busakwe and Another v S (CA 162/2018) [2019] ZAECGHC 4 (29 January 2019)

The trial court erred in imposing a sentence of 18 years' imprisonment on the first appellant, a first offender, for rape, as the prescribed minimum sentence under Section 51(2)(b)(i) of the Criminal Law Amendment Act 105 of 1977 is 10 years. No substantial and compelling circumstances were present to justify a higher sentence, and no reasons were provided for the deviation. The sentence was disproportionate, especially compared to sentences imposed on other accused involved in the gang rape. Regarding the second appellant, material contradictions and discrepancies in the complainant's statements and testimony, as well as inconsistencies with other state witnesses, created reasonable...

Citation
[2019] ZAECGHC 4
Parties
Appellant: Nkosekhaya Busakwe; Appellant: Sivuyile Burwana; Respondent: The State
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
29 January 2019
Case Number
CA 162/2018
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeals of both appellants succeed. The first appellant's sentence is reduced to 10 years' imprisonment. The second appellant's conviction is set aside and he is acquitted.
Judges
F. B. A. Dawood, G. H. Bloem, M. S. Jolwana
Legal Topics
Rape, Minimum Sentencing, Substantial and Compelling Circumstances, Appeal Procedure, Credibility of Witnesses
Criminal Law Rape Minimum Sentencing Substantial and Compelling Circumstances Appeal Procedure Credibility of Witnesses

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 7 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Nkosekhaya Busakwe

Appellant

Sivuyile Burwana

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the trial court erred in imposing a sentence of 18 years' imprisonment on the first appellant for rape.
  2. 2 Whether the trial court erred in convicting the second appellant of rape despite material contradictions in the complainant's evidence.
  3. 3 Whether substantial and compelling circumstances existed to justify deviation from the prescribed minimum sentence.

Ratio Decidendi

The trial court erred in imposing a sentence of 18 years' imprisonment on the first appellant, a first offender, for rape, as the prescribed minimum sentence under Section 51(2)(b)(i) of the Criminal Law Amendment Act 105 of 1977 is 10 years. No substantial and compelling circumstances were present to justify a higher sentence, and no reasons were provided for the deviation. The sentence was disproportionate, especially compared to sentences imposed on other accused involved in the gang rape. Regarding the second appellant, material contradictions and discrepancies in the complainant's statements and testimony, as well as inconsistencies with other state witnesses, created reasonable...

Court Disposition

Appeals of both appellants succeed. The first appellant's sentence is reduced to 10 years' imprisonment. The second appellant's conviction is set aside and he is acquitted.

Orders

  • The first appellant's sentence of 18 years' imprisonment is set aside and substituted with a sentence of 10 years' imprisonment, antedated to 18 December 2015, in respect of count 10 (rape of L T).
  • The conviction of the second appellant in respect of count 11 (rape of P G) is set aside and he is acquitted.