De Beer v The State

The appellant was convicted in a regional court of rape in terms of s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. Over a period of approximately four months between December 2009 and April 2010, he sexually penetrated his eight-year-old stepdaughter by inserting his fingers into her vagina and made her touch his private parts. The appellant was in a position of trust as the complainant’s stepfather. The regional magistrate imposed a sentence of 15 years’ imprisonment, five years of which were suspended. The appellant appealed only against his conviction to the Gauteng Local Division. After giving notice, that court dismissed the conviction appeal but increased the sentence to life imprisonment. The appellant then appealed to the Supreme Court of Appeal against the increased sentence.

The appeal against the increased sentence succeeded. The order of the Gauteng Local Division increasing the sentence to life imprisonment was set aside (except for inclusion on the sexual offenders register). The original regional court sentence of 15 years’ imprisonment, with five years suspended, was reinstated and antedated.

The case confirms that appellate courts in South Africa have the power under s 309(3) of the Criminal Procedure Act to increase sentences mero motu, even where only conviction is appealed, provided fair notice is given. It also reinforces the central role of proportionality and the avoidance of injustice in applying mandatory minimum sentences, particularly in rape cases involving the expanded statutory definition of rape.