Director of Public Prosecutions, Pretoria v Zulu

Respondent was convicted by the Ermelo Regional Court on three counts of rape and two counts of common assault. The complainant was the respondent's step-daughter who was raped repeatedly between 2011 and 2015 when she was aged 12, 13 and 15 years old. The respondent gained her trust by telling her he would show her what boys do to girls. The repeated rapes resulted in the complainant falling pregnant multiple times, and the respondent convinced her to tell her mother the pregnancies were from a boyfriend. The pregnancies were terminated using pills. The respondent isolated the complainant and assaulted her when he found her with male friends. The Regional Court sentenced the respondent to life imprisonment on each rape count (to run concurrently) and three months imprisonment on each assault count. On appeal, the Gauteng High Court upheld the convictions but reduced the rape sentences to 20 years imprisonment, finding the life sentences disproportionate even though no substantial and compelling circumstances existed to deviate from the prescribed minimum sentence.

• Whether the appeal by the State raised a question of law or fact for purposes of s 311(1) of the Criminal Procedure Act 51 of 1977
• Whether the High Court misdirected itself in reducing the sentences from life imprisonment to 20 years
• Whether the High Court correctly applied the proportionality test as established in S v Malgas
• Whether the sentences of life imprisonment were proportionate to the crimes committed in the circumstances of this case
• Whether the High Court was entitled to interfere with the sentences imposed by the Regional Court

The appeal was upheld. The order of the High Court in respect of the sentences on the three counts of rape was set aside and replaced with an order dismissing the appeal against sentence and confirming the Ermelo Regional Court's life sentences on counts 1, 2 and 3 (to run concurrently).

An exercise of judicial discretion in sentencing based on a wrong principle or erroneous view of the law constitutes a question of law for purposes of s 311(1) of the CPA. A court cannot properly find that no substantial and compelling circumstances exist to deviate from a prescribed minimum sentence, yet then impose a lesser sentence on the basis that the prescribed sentence is disproportionate - this is a contradictory and irreconcilable approach. When applying the proportionality test under the minimum sentencing regime, courts must assess proportionality on the particular facts of each case, giving proper weight to all aggravating circumstances. The fact that more serious cases are imaginable does not mean a lesser sentence should be imposed if the case before the court is horrendous enough to justify the maximum penalty. Repeated rape of a minor step-daughter over an extended period causing multiple pregnancies and abortions, committed by a repeat offender, constitutes circumstances horrendous enough to justify life imprisonment under the Criminal Law Amendment Act.

The Court observed that society views crimes of this nature in a very serious light and that courts must remember the legislative injunction in the minimum sentencing regime to shift emphasis to the objective gravity of the crime and society's need for effective sanctions. The Court noted that within the context of cases involving crimes against children, the injunction to protect children assumes a prominent role. The judgment also remarked that the respondent was not a candidate for rehabilitation, having committed these rapes five years after being released on parole for a previous offence.

This case is significant for clarifying the application of s 311(1) of the Criminal Procedure Act, confirming that an erroneous view of the law constitutes a question of law enabling the State to appeal. It reinforces the principles in S v Malgas regarding when prescribed minimum sentences may be departed from, emphasizing that courts cannot find both that no substantial and compelling circumstances exist and then impose a lesser sentence on other grounds. The judgment underscores that proportionality must be assessed on the particular facts of each case, and that particularly egregious circumstances involving repeated sexual abuse of children over extended periods justify maximum sentences. It serves as a strong statement on protecting children from sexual abuse and ensuring appropriate sentencing in such cases.