Director of Public Prosecutions, Gauteng v Grobler (6/2017) [2017] ZASCA 82; 2017 (2) SACR 132 (SCA) (2 June 2017)

Director of Public Prosecutions, Gauteng v Grobler (6/2017) [2017] ZASCA 82; 2017 (2) SACR 132 (SCA) (2 June 2017)

The Supreme Court of Appeal held that the High Court erred in law by imputing consent or acquiescence to the complainant, who was ten years old, and treating this as a mitigating factor in sentencing for rape. Section 57(1) of the Sexual Offences Act unequivocally provides that a child under 12 is incapable of consenting to a sexual act. The High Court's approach constituted a misdirection on a question of law, thereby rendering the State's appeal competent under s 311 of the Criminal Procedure Act. The sentence imposed by the High Court was set aside and the matter remitted for proper consideration of sentence in accordance with the correct legal principles. The court emphasized the...

Citation
[2017] ZASCA 82
Parties
Appellant: Director of Public Prosecutions, Gauteng; Respondent: Morne Grobler
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
2 June 2017
Case Number
6/2017
Procedural Posture
Criminal Appeal / Appeal From High Court (gauteng Division, Pretoria) on Sentence; SCA Judgment
Outcome
Appeal upheld; sentence imposed by the High Court set aside; matter remitted for reconsideration of sentence in accordance with correct legal principles.
Judges
Lewis, Petse, Mathopo, Gorven, Mbatha
Legal Topics
Rape of Minor, Sentencing Principles, Consent in Criminal Law, Criminal Procedure Act, Child Pornography, Judicial Discretion
Criminal Law Rape of Minor Sentencing Principles Consent in Criminal Law Criminal Procedure Act Child Pornography Judicial Discretion

Case Brief

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Parties

Director of Public Prosecutions, Gauteng

Appellant

Morne Grobler

Respondent

Procedural Posture

Criminal Appeal / Appeal From High Court (gauteng Division, Pretoria) on Sentence; SCA Judgment

Legal Issues

  1. 1 Whether the High Court erred in law by considering the complainant's supposed consent or acquiescence to sexual acts as a mitigating factor in sentencing for rape, where the complainant was under 12 years old.
  2. 2 Whether the State's appeal on sentence is competent under s 311 of the Criminal Procedure Act when the High Court's decision was based on a question of law.

Ratio Decidendi

The Supreme Court of Appeal held that the High Court erred in law by imputing consent or acquiescence to the complainant, who was ten years old, and treating this as a mitigating factor in sentencing for rape. Section 57(1) of the Sexual Offences Act unequivocally provides that a child under 12 is incapable of consenting to a sexual act. The High Court's approach constituted a misdirection on a question of law, thereby rendering the State's appeal competent under s 311 of the Criminal Procedure Act. The sentence imposed by the High Court was set aside and the matter remitted for proper consideration of sentence in accordance with the correct legal principles. The court emphasized the...

Court Disposition

Appeal upheld; sentence imposed by the High Court set aside; matter remitted for reconsideration of sentence in accordance with correct legal principles.

Orders

  • The appeal is upheld.
  • The question of law raised by the State is determined in its favour.