Ndlovu v S (AR96/2018) [2019] ZAKZPHC 56; 2019 (2) SACR 484 (KZP) (12 August 2019)

Ndlovu v S (AR96/2018) [2019] ZAKZPHC 56; 2019 (2) SACR 484 (KZP) (12 August 2019)

The appeal against conviction was dismissed as the evidence established beyond reasonable doubt that the appellant was guilty of rape in furtherance of a common purpose. However, following the Supreme Court of Appeal's decision in Mahlase v S, the prescribed minimum sentence of life imprisonment under s 51(1) of the Criminal Law Amendment Act 105 of 1997, read with Part I of Schedule 2, was not applicable because only the appellant was convicted and the identities of his co-perpetrators were unknown and unconvicted. The offence thus fell under Part III of Schedule 2, with a prescribed minimum sentence of ten years' imprisonment, which the regional court could exceed by up to five years....

Citation
[2019] ZAKZPHC 56
Parties
Appellant: Xolani Ndlovu; Respondent: The State
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
12 August 2019
Case Number
AR96/2018
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence From the Regional Court
Outcome
Appeal against conviction dismissed; appeal against sentence upheld.
Judges
Ploos van Amstel, Bezuidenhout, Hadebe
Legal Topics
Rape, Minimum Sentencing, Common Purpose, Criminal Law Amendment Act, Judicial Precedent
Criminal Law Rape Minimum Sentencing Common Purpose Criminal Law Amendment Act Judicial Precedent

Case Brief

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Parties

Xolani Ndlovu

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence From the Regional Court

Legal Issues

  1. 1 Whether the conviction for rape should be upheld.
  2. 2 Whether the prescribed minimum sentence of life imprisonment was applicable under s 51(1) of the Criminal Law Amendment Act 105 of 1997, read with Part I of Schedule 2, where only one perpetrator was convicted.
  3. 3 Whether the court was bound by the Supreme Court of Appeal decision in Mahlase v S regarding the application of minimum sentencing for gang rape when not all perpetrators are convicted.

Ratio Decidendi

The appeal against conviction was dismissed as the evidence established beyond reasonable doubt that the appellant was guilty of rape in furtherance of a common purpose. However, following the Supreme Court of Appeal's decision in Mahlase v S, the prescribed minimum sentence of life imprisonment under s 51(1) of the Criminal Law Amendment Act 105 of 1997, read with Part I of Schedule 2, was not applicable because only the appellant was convicted and the identities of his co-perpetrators were unknown and unconvicted. The offence thus fell under Part III of Schedule 2, with a prescribed minimum sentence of ten years' imprisonment, which the regional court could exceed by up to five years....

Court Disposition

Appeal against conviction dismissed; appeal against sentence upheld.

Orders

  • The appeal against the conviction is dismissed.
  • The appeal against the sentence succeeds. The sentence of life imprisonment is set aside and replaced with a sentence of 15 years’ imprisonment.