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- S v Mnguni 2014 (2) SACR 595 (GP)

Introduction

According to section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, the phrase “person who is mentally disabled” means “a person affected by any mental disability, including any disorder or disability of the mind, to the extent that he or she, at the time of the alleged commission of the offence in question, was -

(a) unable to appreciate the nature and reasonably foreseeable consequences of a sexual act;

(b) able to appreciate the nature and reasonably foreseeable con-sequences of such an act, but unable to act in accordance with that appreciation;

(c) unable to resist the commission of any such act;

(d) unable to communicate his or her unwillingness to participate in any such act”.

Section 51(1) and (2), read together with (for as far as it is relevant to this discussion) Parts I and III of Schedule 2 of the Criminal Law Amendment Act 105 of 1997, provide as follows:

“51. Discretionary minimum sentences for certain serious offences

(1) Notwithstanding any other law, but subject to subsections (3) and (6) [of this section 51], a regional court or a High Court shall sentence a person it has convicted of an offence referred to in Part I of Schedule 2 [of this Act 105 of 1997] to imprisonment [incarceration] for life.

(2) Notwithstanding any other law, but subject to subsections (3) and (6) [of this section 51], a regional court or a High Court shall sentence a person who has been convicted of an offence referred to in -

(a) …

(b) Part III of Schedule 2, in the case of -

(i) a first offender, to imprisonment [incarceration] for a period not less than ten years;

(c) …

Schedule 2

PART I

Murder …

Rape as contemplated in section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 -

(a) …

(b) where the victim -

(i) …

(ii) …

(iii) is a person who is mentally disabled as contemplated in section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

PART III

Rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, respectively in circumstances other than those referred to in Part I [of this Schedule 2 supra].”

(Emphasis added and particulars in square brackets inserted by Pollex.)

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[This is only an extract of a court case published in Pollex in Servamus: August 2020. If you are interested in reading the rest of this discussion, send an e-mail to: This email address is being protected from spambots. You need JavaScript enabled to view it.. Contact Servamus’s office at tel: (012) 345 4660/41. Ed.]

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