- S v Lekeka 2021 (1) SACR 106 (FB)
Mr Molefe Edward Lekeka, the accused, was convicted by the regional court in Bethlehem in the Free State (“the trial court”), of count 1, housebreaking with intent to contravene section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (hereinafter referred to as Act 32 of 2007), and count 2, contravening section 55(a) of Act 32 of 2007.
In other words, to put it in general terms, count 1 being “housebreaking with the intent to rape” and count 2 being “attempted rape”.
In the result the accused was sentenced to life incarceration.
Note that the complainant was, in respect of both counts, at the time of the incidents concerned, a 13-year-old girl child.
Not satisfied with this outcome, the accused appealed to the High Court in Bloemfontein (“the court of appeal”) against both his conviction and sentence.
Of importance to readers of this column is that the court of appeal held that there is no basis upon which the trial court could have “combined” the two counts supra to form only one count. According to the court of appeal, a judgment or verdict needs to be pronounced on each of the counts.
In sentencing the accused, the point of departure of the trial court was, according to the court of appeal, that the General Law Amendment Act 105 of 1997 (hereinafter referred to as the “Minimum Sentences Act”) is applicable with life incarceration being the relevant prescribed minimum sentence.
Bear in mind that in terms of section 51(1) of the Minimum Sentences Act, read together with Part I of Schedule 2 thereto, life incarceration is, inter alia, the prescribed minimum sentence in the following circumstances:
“Rape as contemplated in section 3 of Act 32 of 2007 -
(b) where the victim -
(i) is a person under the age of 16 years …”
Section 55(a) of Act 32 of 2007 provides as follows:
“Attempt, conspiracy, incitement or inducing another person to commit sexual offence
55. Any person who -
(b) and (c)…
to commit a sexual offence in terms of this Act [32 of 2007], is guilty of an offence and may be liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable.”
(Emphasis added and particulars in square brackets inserted by Pollex.)