T M and Another v S (A109/2019) [2019] ZAFSHC 195 (24 October 2019)

T M and Another v S (A109/2019) [2019] ZAFSHC 195 (24 October 2019)

The court found that the charge sheets were defective and failed to properly inform the appellants of the statutory provisions and minimum sentences applicable, thereby prejudicing their fair trial rights. However, the evidence established that both appellants raped the complainant, and the conviction for rape was correct, albeit under the wrong statutory provision. The conviction was corrected to reflect s 51(2) read with Part III of Schedule 2 of Act 105 of 1997, which prescribes a minimum sentence of 10 years' imprisonment for first offenders. The court held that the personal circumstances of the appellants did not constitute substantial and compelling circumstances to justify a lesser...

Citation
[2019] ZAFSHC 195
Parties
Appellant: T M; Appellant: T O; Respondent: The State
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
24 October 2019
Case Number
A109/2019
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence From the Regional Court
Outcome
Appeal against conviction dismissed; appeal against sentence upheld. Conviction corrected to s 51(2) read with Part III of Schedule 2 of Act 105 of 1997. Sentences reduced to 10 years' imprisonment each.
Judges
Mhlambi, Murray
Legal Topics
Rape, Minimum Sentencing Regime, Defective Charge Sheet, Fair Trial Rights, Sentencing Misdirection
Criminal Law Rape Minimum Sentencing Regime Defective Charge Sheet Fair Trial Rights Sentencing Misdirection

Case Brief

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Parties

T M

Appellant

T O

Appellant

The State

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the charge sheets were defective and failed to properly inform the appellants of the charges and potential sentences.
  2. 2 Whether the appellants were sufficiently apprised of the minimum sentencing regime and its consequences.
  3. 3 Whether the conviction for rape was correct in law and fact.

Ratio Decidendi

The court found that the charge sheets were defective and failed to properly inform the appellants of the statutory provisions and minimum sentences applicable, thereby prejudicing their fair trial rights. However, the evidence established that both appellants raped the complainant, and the conviction for rape was correct, albeit under the wrong statutory provision. The conviction was corrected to reflect s 51(2) read with Part III of Schedule 2 of Act 105 of 1997, which prescribes a minimum sentence of 10 years' imprisonment for first offenders. The court held that the personal circumstances of the appellants did not constitute substantial and compelling circumstances to justify a lesser...

Court Disposition

Appeal against conviction dismissed; appeal against sentence upheld. Conviction corrected to s 51(2) read with Part III of Schedule 2 of Act 105 of 1997. Sentences reduced to 10 years' imprisonment each.

Orders

  • The appeal against conviction is dismissed. The appellants are held to be convicted of rape in terms of section 51(2) read with Part III of Schedule 2 of the Criminal Procedure Amendment Act 105 of 1997.
  • The appeal against sentence succeeds. The appellants' sentences of 15 years' imprisonment are set aside and replaced with sentences of 10 years' imprisonment each.