Sishwili v S (AR160/2020) [2021] ZAKZPHC 2 (22 January 2021)

Sishwili v S (AR160/2020) [2021] ZAKZPHC 2 (22 January 2021)

The trial court misdirected itself by finding that the complainant sustained grievous bodily harm, which was not supported by the evidence. The injuries described in the J88 report were minor and did not justify a higher minimum sentence. The amendment to the Criminal Law Amendment Act prescribing life imprisonment for rape of an 'older person' is not retrospective and does not apply to this case. There were no substantial and compelling circumstances to deviate from the prescribed minimum sentence. The appropriate sentence for the appellant is ten years imprisonment, not fifteen.

Citation
[2021] ZAKZPHC 2
Parties
Appellant: Thandanani Vuyo Sishwili; Respondent: The State
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
22 January 2021
Case Number
AR160/2020
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal against sentence upheld; sentence reduced.
Judges
Marks, Kruger
Legal Topics
Rape, Minimum Sentences, Grievous Bodily Harm, Sentencing Misdirection, Superior Courts Act
Criminal Law Rape Minimum Sentences Grievous Bodily Harm Sentencing Misdirection Superior Courts Act

Case Brief

Summary, issues, holding and outcome

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Parties

Thandanani Vuyo Sishwili

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the trial court misdirected itself in finding that the complainant sustained grievous bodily harm warranting a higher minimum sentence.
  2. 2 Whether the sentence of fifteen years imprisonment was appropriate given the facts and applicable legislation.
  3. 3 Whether the prescribed minimum sentence for rape should be imposed in the absence of substantial and compelling circumstances.

Ratio Decidendi

The trial court misdirected itself by finding that the complainant sustained grievous bodily harm, which was not supported by the evidence. The injuries described in the J88 report were minor and did not justify a higher minimum sentence. The amendment to the Criminal Law Amendment Act prescribing life imprisonment for rape of an 'older person' is not retrospective and does not apply to this case. There were no substantial and compelling circumstances to deviate from the prescribed minimum sentence. The appropriate sentence for the appellant is ten years imprisonment, not fifteen.

Court Disposition

Appeal against sentence upheld; sentence reduced.

Orders

  • The appeal against sentence is upheld.
  • The sentence of fifteen years imprisonment imposed by the trial court is set aside and replaced with a sentence of ten years imprisonment antedated to 30 August 2016.