Lucky number spares rapists a life sentence

Appealcourtjudgesdifferoveraquestionthepublic willseeasameretechnicality,butasingledigital errorcouldchangeasentence

F EVER there was a case in which judges made the law look ridiculous in the eyes of the public, it was this week’s matter involving convicted rapists Jacob Mashinini and Simon Abolisi.

The two were part of a group of four men who gangraped a relative of Mashinini’s. Sentenced to life imprisonment, they appealed, saying this was “too long”.

Life imprisonment is the default sentence for gang rape unless there are “substantial and compelling” reasons for a lesser sentence.

All three judges of the Supreme Court of Appeal (SCA) agreed that, given the circumstances of the crime, there were no such reasons, in which case the sentence would be life imprisonment.

But the appeal judges differed over a question that the public would view as a mere technicality, and as a result of the court majority’s view, the two men will now serve just 10 years each.

The dispute concerns an error made by the prosecution:

Ithe accused were charged with “rape, read with section 51 (2) of the Criminal Law Amendment Act”, whereas this should have been “rape, read with section 51 (1)” of the same law.

What’s the difference? Section 51 (2) says that if someone without a previous criminal record commits rape, there is a standard sentence of 10 years. The previous section says that in cases of gang rape, there is a prescribed life sentence.

The three appeal judges were divided on how to respond. The majority, judges Nonkosi Mhlantla and Ronnie Bosielo, saw a serious constitutional issue at stake: no accused should be found guilty of a different or more serious offence than that with which he or she is charged.

The rapists were charged with an offence for which the sentence was 10 years, so they could not be jailed for a different offence that carried a sentence of life imprisonment.

The court majority also strongly criticised the “disturbing flippant attitude” and the “careless manner” of the prosecution in citing the wrong section.

Fundamental

Several paragraphs of even more stinging remarks followed, and the judges concluded that thanks to the prosecution, the rapists would serve less time than they should.

The third appeal judge, Nathan Ponnan, disagreed, and said that they were rightly sentenced to life.

Fundamental to the majority decision was Mhlantla’s view that the two had been sentenced for an offence different from that for which they had been convicted. Not so, said Ponnan. The Criminal Law Amendment Act created no new offences; rape was still rape. Parliament simply defined circumstances which, if present, would trigger particular sentences.

The accused were legally represented throughout, Ponnan said. They had pleaded guilty and stood by this plea. Nor did they try to withdraw their admission that they participated in a gang rape or even challenge the correctness of their conviction.

The accused were clearly informed by the magistrate that they faced charges which could attract a prescribed sentence. In this sense, their rights had been properly respected.

In addition, both the high court that passed sentence, as well as the two majority appeal judges had agreed, as did Ponnan, that there were no appropriate grounds to justify a lesser sentence than life imprisonment.

And the appeal as originally noted by the accused was not against conviction but on the grounds that the court should have found there were “substantial and compelling” circumstances warranting a lesser sentence.

If it was correct, said Ponnan, that they had been charged with one offence, but convicted of another then he could not understand how only the sentence and not the trial and conviction itself should be set aside and nullified.

The State’s “error” became a key factor only when the issue was argued in the SCA. Ponnan objected to the majority’s harsh criticism of the State, saying that the way the “error” came to be raised in the appeal court meant that the State was not able to investigate properly or bring any evidence it might have had to counter the complaint. Since the State had had no opportunity to explain itself it was not right to conclude that its behaviour was “disturbingly flippant”.

The court’s majority lacked a “factual foundation” for such remarks, he said, and should therefore not have made this inference.

That a single digit error could make such a difference, changing a deserved life sentence to just 10 years, might astonish the lay public. But, say two judges of the SCA, that is the law.

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