The applicants were convicted in separate proceedings in the Regional Court of raping girls under the age of 16. Two applicants pleaded guilty and one pleaded not guilty. Because rape of a girl under 16 falls under Part I of Schedule 2 of the Criminal Law Amendment Act 105 of 1997, the Regional Court, acting in terms of section 52(1) read with section 51(1), stopped the proceedings after conviction and committed the accused to the High Court for sentencing. The Witwatersrand High Court (Lewis J) declared section 52 unconstitutional for infringing the right to a fair trial in section 35 of the Constitution, primarily due to the fragmentation of trial and sentencing. That declaration was referred to the Constitutional Court for confirmation. In a related matter, the third applicant sought leave to appeal against the refusal to set aside his conviction.
The order of constitutional invalidity made by the Witwatersrand High Court was not confirmed, and section 52 of the Criminal Law Amendment Act 105 of 1997 was upheld as constitutionally valid. The related application for leave to appeal by the third applicant was dismissed.
This case clarified the constitutionality of the split sentencing procedure under the minimum sentencing regime introduced by the Criminal Law Amendment Act. It affirmed that the right to a fair trial under section 35(3) is flexible and substantive, and that departures from traditional criminal procedure are permissible if fairness is maintained. The judgment provided authoritative guidance on sentencing under the minimum sentence legislation and resolved conflicting High Court decisions.