M v S (A52/09) [2010] ZAGPPHC 550 (1 April 2010)

M v S (A52/09) [2010] ZAGPPHC 550 (1 April 2010)

The court found that the complainant's evidence regarding both incidents was credible and supported by the circumstances in which the police found the appellant and his daughter. The appellant's defence of drunkenness was rejected based on his ability to drive and communicate coherently with the police. The promise of a cellular telephone did not constitute genuine consent, given the complainant's age and the coercive circumstances. The court concluded that the sexual intercourse was non-consensual and that the appellant was correctly convicted on both counts. However, the court found that the crimes, while serious, did not fall within the most egregious category warranting life...

Citation
[2010] ZAGPPHC 550
Parties
Appellant: M[...] M[...]; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
1 April 2010
Case Number
A52/09
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal against conviction dismissed; appeal against sentence upheld. Life sentence set aside and replaced with 18 years imprisonment on each count, sentences to run concurrently.
Judges
B.R. du Plessis, M.J. Dolamo
Legal Topics
Rape of Minor, Minimum Sentencing, Consent, Criminal Law Amendment Act, Victim Impact, Concurrent Sentences
Criminal Law Rape of Minor Minimum Sentencing Consent Criminal Law Amendment Act Victim Impact Concurrent Sentences

Case Brief

Summary, issues, holding and outcome

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Parties

M[...] M[...]

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the appellant was correctly convicted on two counts of rape of his minor daughter.
  2. 2 Whether the complainant consented to sexual intercourse with the appellant.
  3. 3 Whether substantial and compelling circumstances exist to justify a lesser sentence than life imprisonment.

Ratio Decidendi

The court found that the complainant's evidence regarding both incidents was credible and supported by the circumstances in which the police found the appellant and his daughter. The appellant's defence of drunkenness was rejected based on his ability to drive and communicate coherently with the police. The promise of a cellular telephone did not constitute genuine consent, given the complainant's age and the coercive circumstances. The court concluded that the sexual intercourse was non-consensual and that the appellant was correctly convicted on both counts. However, the court found that the crimes, while serious, did not fall within the most egregious category warranting life...

Court Disposition

Appeal against conviction dismissed; appeal against sentence upheld. Life sentence set aside and replaced with 18 years imprisonment on each count, sentences to run concurrently.

Orders

  • The appeal against the convictions is dismissed.
  • The appeal against the sentence is allowed. The sentence is set aside and replaced with: 'On each of counts 1 and 2 the accused is sentenced to 18 years imprisonment. The sentences are ordered to run concurrently.'