Ndlovu v S (CCT174/16) [2017] ZACC 19; 2017 (10) BCLR 1286 (CC); 2017 (2) SACR 305 (CC) (15 June 2017)

Ndlovu v S (CCT174/16) [2017] ZACC 19; 2017 (10) BCLR 1286 (CC); 2017 (2) SACR 305 (CC) (15 June 2017)

The Constitutional Court held that the Regional Court did not have jurisdiction to impose a sentence of life imprisonment under section 51(1) of the Criminal Law Amendment Act because the applicant was charged and convicted only of rape read with section 51(2), not with the aggravating factor of grievous bodily harm required for section 51(1). The charge sheet was not defective, and evidence of injuries could not cure the absence of the aggravating factor in the charge. The maximum sentence the Regional Court could impose was 15 years’ imprisonment. The sentence of life imprisonment was set aside and replaced with 15 years’ imprisonment, antedated to the original sentencing date....

Citation
[2017] ZACC 19
Parties
Applicant: Brendan Solly Ndlovu; Respondent: The State
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
15 June 2017
Case Number
CCT 174/16
Procedural Posture
Leave to Appeal / Constitutional Court Appeal From Supreme Court of Appeal, Following High Court and Regional Magistrates’ Court Decisions
Outcome
Appeal upheld; sentence of life imprisonment set aside and replaced with 15 years’ imprisonment antedated to 8 May 2009.
Judges
Nkabinde, Cameron, Froneman, Jafta, Khampepe, Madlanga, Mhlantla, Mojapelo, Pretorius, Zondo
Legal Topics
Minimum Sentencing, Jurisdiction of Magistrates Courts, Fair Trial Rights, Rape, Condonation, Charge Sheet Accuracy
Criminal Law Constitutional Law Minimum Sentencing Jurisdiction of Magistrates Courts Fair Trial Rights Rape Condonation Charge Sheet Accuracy

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Parties

Brendan Solly Ndlovu

Applicant

The State

Respondent

Procedural Posture

Leave to Appeal / Constitutional Court Appeal From Supreme Court of Appeal, Following High Court and Regional Magistrates’ Court Decisions

Legal Issues

  1. 1 Did the Regional Court have jurisdiction to sentence the applicant to life imprisonment under section 51(1) of the Criminal Law Amendment Act?
  2. 2 Did the sentencing under section 51(1) when the applicant was charged under section 51(2) infringe his right to a fair trial?
  3. 3 Should condonation for late filing be granted?

Ratio Decidendi

The Constitutional Court held that the Regional Court did not have jurisdiction to impose a sentence of life imprisonment under section 51(1) of the Criminal Law Amendment Act because the applicant was charged and convicted only of rape read with section 51(2), not with the aggravating factor of grievous bodily harm required for section 51(1). The charge sheet was not defective, and evidence of injuries could not cure the absence of the aggravating factor in the charge. The maximum sentence the Regional Court could impose was 15 years’ imprisonment. The sentence of life imprisonment was set aside and replaced with 15 years’ imprisonment, antedated to the original sentencing date....

Court Disposition

Appeal upheld; sentence of life imprisonment set aside and replaced with 15 years’ imprisonment antedated to 8 May 2009.

Orders

  • Condonation is granted.
  • Leave to appeal is granted.