- S v Ndlovu 2017 (2) SACR 305 (CC)
(1) Section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 provides for the offence of rape simpliciter (Afrikaans: “sonder voorbehoud”).
(2) Section 51(1) of the Criminal Law Amendment Act 105 of 1997 (which makes provision for minimum sentences and which is hereinafter referred to as Act 105 of 1997) provides, for as far as it is relevant to this discussion, 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 1 of Schedule 2 [of Act 105 of 1997] to imprisonment [incarceration] for life.”
(Emphasis added and particulars in square brackets inserted by Pollex.)
The offence concerned here (in Ndlovu), is rape. In Part 1 of Schedule 2 referred to in section 51(1) supra, rape carries a sentence of “imprisonment (incarceration) for life”, where the rape is accompanied by the “infliction of grievous bodily harm to the victim involved”.
(3) Section 51(2) of Act 105 of 1997 provides, for as far as it is relevant to this discussion, as follows:
“51(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 it has convicted of an offence referred to in” -
(whereupon reference is then made to offenders mentioned in Parts II, III and IV of Schedule 2 of Act 105 of 1997. A distinction is made between a first offender - which the accused in fact was - a second offender and a third or subsequent offender).
In this case (Ndlovu), Part III of Schedule 2 of Act 105 of 1997 was (mistakenly - see infra) made applicable to the accused namely, “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 Schedule 2 of Act 105 of 1997 - see para (2) supra].
(4) Section 86 of the Criminal Procedure Act 51 of 1977 (“the CPA”)
“86. Court may order that charge be amended
(1) Where a charge is defective for the want of any essential averment therein, or where there appears to be any variance between any averment in a charge and the evidence adduced in proof of such averment, or where it appears that words or particulars that ought to have been inserted in the charge have been omitted therefrom, or where any words or particulars that ought to have been omitted from the charge have been inserted therein, or where there is any other error in the charge, the court may, at any time before judgment, if it considers that the making of the relevant amendment will not prejudice the accused in his or her defence, order that the charge, whether it discloses an offence or not, be amended, so far as it is necessary, both in that part thereof where the defect, variance, omission, insertion or error occurs and in any other part thereof which it may become necessary to amend.
(2) The amendment may be made on such terms as to an adjournment of the proceedings as the court may deem fit.
(3) Upon the amendment of the charge in accordance with the order of the court, the trial shall proceed at the appointed time upon the amended charge in the same manner and with the same consequences as if it had been originally in its amended form.
(4) The fact that a charge is not amended as provided in this section, shall not, unless the court refuses to allow the amendment, affect the validity of the proceedings thereunder.”
(Words in italics are by the Concourt.)
Mr Brendon Solly Ndlovu (“the accused”) was charged before the Phalaborwa regional court (“the trial court”) with only one count of rape in contravention of section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, read with section 51(2) of Act 105 of 1997.
According to the evidence, the complainant, after having been raped by the accused, managed, naked and covered in blood, to escape once again and run to her uncle’s house. The police and an ambulance were called and she was taken to Maputa Hospital where she was admitted for five days. She had sustained various wounds to her head and mouth, which resulted in scarring. The attack left her with two 6 cm lacerations on her lips; a 4 cm laceration on her forehead; and a 4 cm laceration near her eye. The resultant scars were still visible when the complainant gave her evidence in the trial court. One of her teeth had to be removed as a result of the assault and the evidence was that more of her teeth would be removed in future. The details of the complainant’s injuries were set out in the J88 form, which was completed on the morning of the assault by a medical practitioner. This form was later accepted as evidence by the regional court, without objection from the accused.