Director of Public Prosecutions, KwaZulu-Natal, Pietermaritzburg v Xolani Ndlovu

In November 2014 the complainant, a 22-year-old woman, was kidnapped from her home in rural Msunduzi by three men and repeatedly raped vaginally and anally by them acting together. The respondent, Xolani Ndlovu, who was known to the complainant, was later arrested and charged in the regional court with rape under s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 and kidnapping. He was the only accused before the court; the other perpetrators were not apprehended or tried. He was convicted on both counts and sentenced to life imprisonment for rape in terms of s 51(1) of the Criminal Law Amendment Act 105 of 1997, and three years’ imprisonment for kidnapping. On appeal, the KwaZulu-Natal High Court dismissed the appeal against conviction but reduced the rape sentence to 15 years’ imprisonment, relying on S v Mahlase, holding that s 51(1) did not apply where not all co-perpetrators had been convicted. The Director of Public Prosecutions appealed to the Supreme Court of Appeal on a question of law under s 311 of the Criminal Procedure Act 51 of 1977.

The appeal was upheld. The High Court’s order setting aside the life sentence was overturned. The appeal against sentence was dismissed, and the sentence of life imprisonment imposed by the regional court was reinstated and antedated to 23 May 2017 in terms of s 282 of the Criminal Procedure Act.

The case clarifies the application of the mandatory life sentence for gang rape under s 51(1) of the Criminal Law Amendment Act prior to its 2021 amendment. It resolves uncertainty created by S v Mahlase and affirms that the prescribed minimum sentence applies even where only one of several co-perpetrators is convicted. The judgment reinforces the proper interpretation of sentencing statutes, the limits of reliance on precedent, and the State’s right to appeal on questions of law under s 311 of the Criminal Procedure Act.