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

On 29 November 2014, the complainant NM, a 22-year-old woman, was kidnapped from her home in Msunduzi by three men in the early hours of the morning. She was taken to a neighbouring homestead where she was repeatedly raped vaginally and anally by all three perpetrators who took turns to violate her. After the rape, they left her locked in a room, naked with her hands bound with an electric cord, while they went to a nearby shebeen. The respondent, Xolani Ndlovu, was well known to NM. He was apprehended and charged with rape under the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, with the State invoking s 51(1) of the Criminal Law Amendment Act 105 of 1997 (mandatory life imprisonment for gang rape), and kidnapping. At trial in the Pietermaritzburg Regional Court, the respondent was the only accused; his identification was contested. The regional magistrate convicted him on both counts and sentenced him to life imprisonment for rape (finding no substantial and compelling circumstances to depart from the prescribed minimum sentence) and three years for kidnapping. On appeal to the KwaZulu-Natal High Court, the majority (Ploos van Amstel J with Bezuidenhout J concurring) dismissed the appeal against conviction but upheld it against sentence, relying on S v Mahlase which held that s 51(1) did not apply where co-perpetrators were not before the court and had not been convicted. The majority substituted the life sentence with 15 years' imprisonment. The minority (Hadebe J) disagreed with the Mahlase reasoning but felt bound by it.

• Whether an appeal by the Director of Public Prosecutions under s 311 of the Criminal Procedure Act 51 of 1977 on a question of law against a decision of the High Court sitting as a court of appeal is competent without special leave
• Whether the High Court erred in law in holding that s 51(1) of the Criminal Law Amendment Act 105 of 1997 read with Part I of Schedule 2 did not apply where the victim was raped by more than one person but not all co-perpetrators were before the court and convicted
• Whether the decision in S v Mahlase was correctly decided and binding on lower courts
• The proper interpretation of s 51(1) of the Criminal Law Amendment Act 105 of 1997 (prior to its 2021 amendment) read with Part I of Schedule 2 concerning mandatory minimum sentences for gang rape
• What jurisdictional facts must be proved to trigger the mandatory sentence of life imprisonment under s 51(1)

The appeal was upheld. The question of law was determined in favour of the State. The High Court's order setting aside the life sentence was replaced with an order dismissing the appeal against sentence. The sentence of life imprisonment imposed by the trial court was reinstated and ante-dated to 23 May 2017 in terms of s 282 of the Criminal Procedure Act 51 of 1977.

The binding legal principle established is that under s 51(1) of the Criminal Law Amendment Act 105 of 1997 read with Part I of Schedule 2 (prior to its 2021 amendment), the mandatory sentence of life imprisonment for rape applies where evidence adduced at trial proves beyond reasonable doubt that the victim was raped more than once, whether by the accused or by any co-perpetrator or accomplice, or by more than one person acting in execution or furtherance of a common purpose or conspiracy. The provision does not require that co-perpetrators or accomplices be before the court, convicted, charged or standing trial for the mandatory minimum sentence to be triggered. What is required are jurisdictional facts proved at trial establishing the circumstances enumerated in Part I of Schedule 2. The convicted person must be sentenced on the basis of the facts found proven when convicting the accused. To interpret the provision as requiring co-perpetrators to be convicted would read words into the statute that are not there, contrary to principles of statutory interpretation, and would be subversive of the manifest legislative purpose to impose severe, standardized sentences for serious crimes and to stem the tide of violent criminality.

The Court made several important obiter observations: (1) It emphasized the fundamental importance of the doctrine of stare decisis and judicial comity, noting that lower courts can only deviate from SCA decisions where: (a) the case is factually distinguishable; (b) the decision was rendered per incuriam (overlooking governing legislation); or (c) the decision has been rendered nugatory by subsequent legislative development. (2) The Court deprecated the practice of some judges who sought to circumvent Mahlase on less than persuasive grounds or who simply ignored it, noting this was inconsistent with judicial comity and stare decisis. (3) The Court provided extensive discussion of the gravity of rape, quoting from multiple Constitutional Court and SCA judgments describing it as: an invasion of the most private and intimate zone of a person; a violation of dignity, bodily integrity and privacy; humiliating, degrading and brutal; structural and systemic; and less about sex and more about the expression of power through degradation. (4) The Court noted that despite 26 years since Chapman, the scourge of rape has shown no signs of abating and appears to be on an upward trajectory. (5) The Court discussed the principles applicable to State appeals under s 311, noting that no appeal is permissible where a court merely erred in evaluating evidence or drawing inferences, even if the error is grave - the appeal must be on a question of law. (6) The Court noted the importance of reasonable uniformity of sentences for co-perpetrators even where tried separately, and the anomaly that Mahlase created where the first accused apprehended would receive a lesser sentence than those convicted later.

This judgment is of major significance in South African criminal sentencing law. It overrules the Supreme Court of Appeal's previous decision in S v Mahlase regarding the interpretation of mandatory minimum sentencing provisions for gang rape. The judgment clarifies that under s 51(1) of the Criminal Law Amendment Act 105 of 1997 (as it stood before its 2021 amendment), a mandatory life sentence applies where the evidence proves the victim was raped by more than one person, regardless of whether all co-perpetrators have been charged, convicted or are before the court. The decision removes an unintended loophole that had allowed gang rapists to escape mandatory minimum sentences simply because their co-perpetrators had not yet been apprehended or convicted. The judgment also provides important guidance on: (1) the State's automatic right of appeal on questions of law under s 311 of the CPA; (2) the application of the doctrine of stare decisis and the circumstances in which the SCA may depart from its own previous decisions; (3) the proper approach to statutory interpretation in the constitutional era; (4) the gravity of rape as a crime in South African law and the constitutional rights it violates; and (5) the legislative intent behind mandatory minimum sentencing provisions. The judgment led to legislative amendment (Criminal Law (Sexual Offences and Related Matters) Amendment Act 12 of 2021, effective 28 January 2022) that codified the interpretation adopted in this judgment, making explicit that mandatory sentences apply irrespective of whether co-perpetrators have been convicted, charged or are standing trial.