Republic of South Africa

IN THE HIGH COURT OF SOUTH AFRICA 
WESTERN CAPE HIGH COURT, CAPE TOWN

Case number: A630/10

In the matter between:

versus

NDITA, J

[1] On 5 March 2001the appellant and his two erstwhile co-accused were convicted in the regional court, Caledon on a charge of rape. The case was then referred to the High Court in terms of section 51(1) of the Criminal Law Amendment Act 105 of 1997. Upon referral, Hlophe JP confirmed the conviction and proceeded to sentence the appellant to a life term of imprisonment. With the requisite leave granted by Hlophe JP, the appellant now appeals against the sentence imposed on 17 March 2003. However, leave to appeal against the conviction was refused.

[3] In an appeal to this Court, constituted of Louw J, Moosa J and Steyn J, the sentence of the appellant's first co-accused, Henry, was reduced to an effective period of 16 years imprisonment.

[4] Daniel Fortuin, who was accused no 3 at trial, applied for leave to appeal against the sentence imposed on him. Leave to appeal against sentence imposed on him was granted by Hlophe JP on 28 April 2010. As at the time the appellant's appeal was enrolled for hearing, no date had as yet been allocated for hearing of an appeal noted by Daniel Fortuin.

[5] The parties agreed that it would be in the interests of justice for the court to consider an appeal against sentence in respect of both the appellant and Daniel Fortuin simultaneously as the facts are not only identical but also arise from the same trial. Indeed the dictates of justice and fairness demand that there be uniformity of sentences, more so that the full bench has already reduced the sentence in respect of erstwhile accused no 1, Henry. Thus, in this appeal, the court ruled that although an appeal in respect of Daniel Fortuin had not as yet been enrolled for hearing, an appeal against the sentence imposed on him would be considered simultaneously with this appeal.

[6] On receipt of the record, this Court requested counsel to file supplementary heads of arguments dealing with the following questions:
(a) whether it is open to the court to reconsider the conviction of the appellant.
(b) if so, whether the appellant was correctly convicted of rape in the light of the fact that he did not physically have sexual intercourse with the appellant.

Both counsel for the state and the defence filed extensive heads of argument dealing with the above questions, for which we are grateful.

[8] The court a quo, in sentencing the appellant, invoked the provisions of Criminal Law Amendment Act, No. 105 of 1997 ("the Act"). Section 51 (1) read with Part 1 of Schedule 2 of the Act provides that, unless substantial and compelling circumstances exist that justify the imposition of a lesser sentence, a court shall sentence to life imprisonment a person convicted of the crime of rape where it was committed by two or more persons. It came to the conclusion that there were no substantial and compelling circumstances justifying a departure from the ordained minimum sentence and imposed a sentence of life imprisonment. It is a firmly established principle that a court of appeal will not interfere with the sentence imposed by the trial court unless it is strikingly or disturbingly inappropriate or tarnished by a material misdirection.

"To ensure a fair trial it is advisable and desirable, highly desirable in the case of an undefended accused, that the charge sheet should refer to the penalty provision. In this way it is ensured that the accused is informed at the outset of the trial, not only of the charge against him, but also of the State's intention at conviction and after compliance with specified requirements to ask that the minimum sentence in question at least be imposed."

"The enquiry, therefore, is whether, on a vigilant examination of the relevant circumstances, it can be said that an accused had a fair trial. And I think it is implicit in these observations that where the State intends to rely upon the sentencing regime created by the Act a fair trial will generally demand that its intention pertinently be brought to the accused at the outset of the trial, if not on the charge sheet then in some other form, so that the accused is placed in a position to appreciate properly in good time the charge that he faces as well its possible consequences. Whether, or in what circumstances, it might suffice if it is brought to the attention of the accused only during the course of the trial is not necessary to decide in the present case. It is sufficient to say that what will at least be required is that the accused be given sufficient notice of the State's intention to enable him to conduct his defence properly."

The court set aside the minimum sentence imposed since the appellant had not been pertinently warned that the minimum sentence might be imposed, rendering the trial, in that respect substantially unfair.

"Rape is a very serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the Constitution and to any defensible civilisation.
Women in this country are entitled to the protection of these rights... The courts are under a duty to send a clear message to the accused, to other potential rapists and to the community. We are determined to protect the equality, dignity and freedom of all women, and we shall show no mercy to those who seek to invade those rights."

He was incarcerated for more than three years before serving the actual sentence.

"The appeal against sentence is hereby upheld. The appellant and Daniel Fortuin are sentenced to undergo a period of imprisonment of sixteen (16) years."

NDITA, J
I agree

YEKISO, J

I agree and it is so ordered.

LOUW, J