Director of Public Prosecutions, KwaZulu-Natal v Ndlovu

• Jurisdiction: South Africa
• Judge: Petse DP, Zondi JA, Mokgohloa JA, Mabindla-Boqwana JA and Siwendu AJA
• Judgment Date: 14 March 2024
• Counsel: C Kander for the appellant. VE Ngwenya for the respondent, instructed by Legal Aid South Africa, Pietermaritzburg and Bloemfontein.
• Docket Number: 888/21 [2024] ZASCA 23
• Hearing Date: 06 September 2023
• Court: Supreme Court of Appeal
• Citation: 2024 (1) SACR 561 (SCA)

Petse DP (Zondi JA, Mokgohloa JA, Mabindla-Boqwana JA and Siwendu AJA concurring):

Introduction

[1] A little more than nine years ago, and in the rural village called Msunduzi, the complainant, NM, a 22-year-old female, was kidnapped from her home by three men in the early hours of 29 November 2014. She was forcibly taken to a neighbouring homestead where she was repeatedly sexually molested by her assailants, both vaginally and anally, who took turns to violate her physical integrity and thus invaded the innermost zones of her bodily privacy. After a prolonged ordeal and once the perpetrators had satisfied their sexual lust, they left her locked inside the room, not only stark naked, but also with her hands bound together with an electrical cord whilst they went to enjoy themselves at a nearby shebeen, blithely indifferent to her plight and mental anguish.

Trial court

[2] A couple of days later, on 19 December 2014, the respondent, Mr Xolani Ndlovu, who was well known to NM, was apprehended. As a result, charges were laid against him, one for a statutory contravention whilst the other was under the common law. As to the first count, it was

Petse DP (Zondi JA, Mokgohloa JA, Mabindla-Boqwana JA and Siwendu AJA concurring)

alleged that he was guilty of contravening s 3 read with ss 1, 2, 50, 56(1), 56A and 57 – 61 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, and further read with ss 94, 256 and 261 of the Criminal Procedure Act 51 of 1977 (the CPA). The prosecution also invoked ss 51(1) and 51(2) of the Criminal Law Amendment Act 105 of 1997 (the 1997 Act) read with part I of sch 2 thereto, insofar as it related to the offence of rape.

[3] It bears emphasising that both the charge-sheet and the regional magistrate (the latter at the commencement of the trial) made explicit reference to s 51(1) of the 1997 Act. Section 51(1) now, as was the case even at the time material to the respondent's trial, specifies under ss 51(3) and (6) that, in the absence of what is termed 'substantial and compelling circumstances' justifying a lesser sentence, an accused convicted of an offence referred to in part I of sch 2 is liable to a mandatory sentence of life imprisonment.

[4] In count 2 the respondent was charged with kidnapping, it being alleged that on 29 November 2014 he unlawfully and intentionally removed NM from her home with intent to deprive her of her liberty of movement.

[5] At the trial that ensued before the Pietermaritzburg Regional Court (the regional court), the respondent, who featured as the only accused, pleaded not guilty to the two counts. There was no dispute as to the misfortune that befell NM on the fateful night. What was contested was solely the issue of whether the respondent was one of the perpetrators. His identification had become an issue only because during the course of the perpetrators' criminal escapades, NM, induced by fear, had pretended not to know the respondent, whose face was unmasked throughout the ordeal. As for his two cohorts, NM testified that their faces were concealed. That the respondent was indeed known to NM before the rape incident was, on the evidence before the regional court, beyond question.

[6] At the conclusion of the trial, the regional magistrate was satisfied that the state had proved its case beyond reasonable doubt. Consequently, the respondent was convicted on both counts as charged. After hearing both the defence and prosecution on mitigation and aggravation of sentence, the regional magistrate sentenced the respondent to imprisonment for life on the rape count, in accordance with s 51(1) of the 1997 Act. Insofar as the second count, of kidnapping, is concerned, the respondent was sentenced to three years' imprisonment.

[7] I pause here to mention that in regard to count 1, the regional magistrate found that there were no substantial and compelling circumstances warranting a departure from the prescribed mandatory sentence of life imprisonment. In addition, the respondent was, after having been afforded the opportunity to address the trial court, declared unfit to possess a firearm, in line with the dictates of s 103 of the Firearms Control Act 60 of 2000.

Petse DP (Zondi JA, Mokgohloa JA, Mabindla-Boqwana JA and Siwendu AJA concurring)

High Court

[8] Dissatisfied with the regional court's verdict in relation to both counts, the respondent appealed to the KwaZulu-Natal Division of the High Court, Pietermaritzburg (the High Court), against his convictions and resultant sentences, upon leave granted by the High Court after the regional magistrate had refused leave.

[9] On appeal to it, the High Court by a majority (per Ploos van Amstel J with Bezuidenhout J concurring) dismissed the appeal against the convictions, but upheld it in relation to sentence in respect of the count of rape. In upholding the appeal against sentence, the majority in essence held that the regional magistrate had erred in sentencing the respondent to life imprisonment. In reaching this conclusion the majority relied on the decision of this court in S v Mahlase.[1] Mahlase, who was indicted in the High Court on several counts, one of which was rape, was sentenced to life imprisonment on the rape count. 'The basis on which the trial court imposed life imprisonment in respect of the conviction of rape', the majority found, 'was that the victim had been raped by more than one person'.

[10] However, on appeal to it, this court found in Mahlase that this constituted a material misdirection. This was, so the majority of the full court held, because this court had found in Mahlase that 'the trial judge had overlooked the fact that the other person who had raped the victim was not before the trial court and had not been convicted of the rape'. Thus, the majority held that 'in those circumstances it could not be held that the rape fell within the provisions of part I [of sch 2] . . ., with the result that the minimum sentence for rape was not applicable'. Consequently, taking its cue from this court in Mahlase, the majority set aside the term of life imprisonment imposed by the regional magistrate and substituted it with a sentence of 15 years' imprisonment.

[11] Before substituting the sentence imposed by the regional magistrate, the majority surveyed a number of decisions of this court and various divisions of the High Court. [2] The majority was rightly cognisant that it was bound by decisions of this court, in particular Mahlase, which was on point. Nevertheless, it went on to observe that the 'circumstances of the rape were horrendous' and that a sentence of life imprisonment would otherwise have been justly deserved. However, it also opined that it could not impose such a sentence because the penal jurisdiction of the

Petse DP (Zondi JA, Mokgohloa JA, Mabindla-Boqwana JA and Siwendu AJA concurring)

regional magistrate at the material time was limited to 10 years' imprisonment, which the regional magistrate could not, in terms of s 51(2) of the 1997 Act, exceed by more than five years. Therefore, concluded the majority, they were also precluded from imposing 'a sentence in excess of what the regional court could have imposed'. Thus, unsurprisingly, the majority gave the submission advanced by the state, that Mahlase was wrong, short shrift, finding that, whatever view it took of the matter, it had no room to manoeuvre, as it was bound by Mahlase.

[12] With respect to the decision of the full court in Khanye (penned by Carelse J and in which Kubushi J and Twala J concurred), the majority stated that the reasoning in Khanye was fundamentally flawed principally because the court in Khanye seemingly 'overlooked the fact that it was dealing with an appeal from a regional court'. Thus, it concluded that the application of part I of sch 2 could not be triggered in circumstances where the victim had been raped by more than one person 'unless [all] of them have been convicted'. Properly understood, so held the majority, the 'effect of Mahlase is that it cannot be said that the victim had been raped by more than one person unless all of the perpetrators have been convicted'.

[13] For its part, the minority (per Hadebe J) likewise accepted that the appeal against the convictions fell to be dismissed. However, insofar as the appeal against the sentence of life imprisonment is concerned, it took a diametrically opposed view. Whilst cognisant that she was bound by Mahlase, the learned judge in effect curiously called into question the underlying reasoning in Mahlase, explicitly stating that she found herself 'in great difficulty agreeing with the reasoning in Mahlase'. She continued and stated that the learned judges of appeal in Mahlase misunderstood the import of s 51 (of the 1997 Act) and misstated the factual findings of the trial court, which, as a general rule, can be upset on appeal only if shown to be demonstrably wrong or otherwise attributable to material misdirection. Ultimately, the minority held that, absent any material misdirection, it would have dismissed the appeal against the sentence of life imprisonment too.

This court

[14] It is apposite at this juncture to mention that this appeal has been brought to this court by the Director of Public Prosecutions (the DPP) under s 311 of the CPA. In Director of Public Prosecutions, Gauteng Division, Pretoria v KM, [3] delivered on 2 June 2017, this court held, by a majority of three judges against two, that an appeal under s 311 on a question of law against a decision of the full court of any division of the High Court, does not require special leave to appeal. [4] In short, the DPP therefore enjoys an automatic right of appeal to this court. The correctness of that decision is not in issue in this appeal. Whether the issue brought on

Petse DP (Zondi JA, Mokgohloa JA, Mabindla-Boqwana JA and Siwendu AJA...