Dembe v S (CA&R 69/09) [2009] ZANCHC 75; 2010 (1) SACR 360 (NCK) (30 November 2009)

Dembe v S (CA&R 69/09) [2009] ZANCHC 75; 2010 (1) SACR 360 (NCK) (30 November 2009)

The convictions on counts 3 and 6 were set aside because the statutory provisions invoked (section 10(1)(a) read with section 2(1)(a)) only apply to terminations within the first 12 weeks of gestation, whereas both complainants were beyond this period. The appellant, not being a qualified medical practitioner, was correctly convicted on counts relating to unlawful abortions and attempted abortions outside approved facilities. The sentences imposed by the Magistrate were found to be shockingly excessive, particularly given the mitigating factors and the misdirection regarding the age of one complainant. The appropriate sentence is an effective term of three years’ imprisonment on each set...

Citation
[2009] ZANCHC 75
Parties
Appellant: Ronnie Dembe; Respondent: The State
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
30 November 2009
Case Number
CA&R 69/09
Procedural Posture
Criminal Appeal / Appeal Against Sentence and Review of Convictions
Outcome
Appeal partially upheld. Convictions on counts 3 and 6 set aside. Sentences on remaining counts reduced and partially suspended.
Judges
Majiedt, Williams
Legal Topics
Illegal Abortion, Choice on Termination of Pregnancy Act, Sentencing Principles, Duplication of Convictions
Criminal Law Family and Children Illegal Abortion Choice on Termination of Pregnancy Act Sentencing Principles Duplication of Convictions

Case Brief

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Parties

Ronnie Dembe

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence and Review of Convictions

Legal Issues

  1. 1 Whether the convictions on counts 3 and 6 under the Choice on Termination of Pregnancy Act were competent given the gestational period involved.
  2. 2 Whether there was a duplication of convictions between counts 1 and 3 and between counts 4 and 6.
  3. 3 Whether the sentences imposed by the Magistrate were shockingly excessive and warranted interference on appeal.

Ratio Decidendi

The convictions on counts 3 and 6 were set aside because the statutory provisions invoked (section 10(1)(a) read with section 2(1)(a)) only apply to terminations within the first 12 weeks of gestation, whereas both complainants were beyond this period. The appellant, not being a qualified medical practitioner, was correctly convicted on counts relating to unlawful abortions and attempted abortions outside approved facilities. The sentences imposed by the Magistrate were found to be shockingly excessive, particularly given the mitigating factors and the misdirection regarding the age of one complainant. The appropriate sentence is an effective term of three years’ imprisonment on each set...

Court Disposition

Appeal partially upheld. Convictions on counts 3 and 6 set aside. Sentences on remaining counts reduced and partially suspended.

Orders

  • The appellant’s convictions on counts 1, 2, 4, and 5 are confirmed.
  • The appellant’s convictions on counts 3 and 6 are set aside.