Director of Public Prosecutions, Free State v Sello Joseph Mashune

The respondent pleaded guilty in the Free State High Court to two counts framed as housebreaking with intent to rape and rape. The first offence occurred in October 2007 when the respondent broke into the home of a stranger during the early hours of the morning and raped her vaginally, thereafter assaulting her when she attempted to resist. The second offence occurred in December 2010 when he broke into the home of a woman known to him and raped her, using physical force to subdue her. DNA evidence later linked the respondent to both rapes after he was convicted of an unrelated rape in 2014. The respondent had several prior convictions for housebreaking and theft, and the later rape conviction was relevant to his character and propensity for similar crimes. The trial court found substantial and compelling circumstances and imposed sentences below the prescribed minimum, which the State appealed.

The State’s appeal was upheld. The sentences imposed by the High Court were set aside and replaced with sentences of 15 years’ imprisonment on each count, with eight years of the second sentence running concurrently with the first, resulting in an effective sentence of 22 years’ imprisonment, antedated to 20 April 2017.

The case reaffirms the strict approach adopted by South African courts to minimum sentence legislation for rape, particularly in relation to what qualifies as substantial and compelling circumstances. It underscores that professed remorse, adult age, and absence of serious physical injuries are not easily accepted as mitigating factors. The judgment also confirms that later convictions may be considered in assessing an accused’s character and prospects of rehabilitation, even if they do not constitute prior convictions in the technical sense.