Ndlovu v The State

The appellant was charged in the regional court with one count of rape, read with the provisions of s 51(2) of the Criminal Law Amendment Act 105 of 1997. The incident occurred on 27 October 2007 when the appellant accosted the complainant, assaulted her severely with fists, stones and bricks, threatened to kill her, and forcibly raped her. The complainant sustained serious injuries, including open wounds, loss of teeth and permanent scarring. Although the charge-sheet referred to s 51(2), the facts established that the rape involved the infliction of grievous bodily harm, bringing it within Part I of Schedule 2, which prescribes life imprisonment. The appellant was legally represented, convicted, and sentenced to life imprisonment. His appeals against conviction and sentence failed in the High Court, and he appealed further to the Supreme Court of Appeal against sentence only.

The appeal against sentence was dismissed, and the sentence of life imprisonment was confirmed.

This case confirms that an error in a charge-sheet referring to the incorrect minimum sentencing provision under the Criminal Law Amendment Act does not automatically invalidate a life sentence. It reinforces the principle that the enquiry is one of substantive fairness and prejudice, not formalism, and aligns SCA jurisprudence with S v Kolea by limiting the reach of S v Mashinini.