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South Africa: North Gauteng High Court, Pretoria
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2011
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[2011] ZAGPPHC 233
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Ndlovu v S (A 329/11) [2011] ZAGPPHC 233 (4 October 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA
CASE
NO
: A 329/11
DATE
:
4 OCTOBER 2011
In
the matter between
BRENDAN
SOLLY
NDLOVU
.................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
SAPIRE AJ
:
The
appellant in this matter was convicted of a crime of rape. He is a
man of relatively ... [indistinct] years and I say that he
is 35
years old and the rape was that of a woman only some years his
junior.
The
circumstances of the rape have been described and as the appeal
against the conviction is not sustainable as was so indicated
by
counsel for the appellant.
The
only question with which this court is concerned is the question of
the rape. It was pointed out initially that when the accused
appeared before the court below he was
incorrectly advised as to the provisions of the law applicable in his
case and the magistrate
indicated that he was facing only a sentence
of 15 years’ imprisonment.
The
provisions of the Act are, however, quite clear and he falls within
provisions where the imposition of a life sentence are appropriate
and had to be imposed.
A
question one has to ask is whether the misinformation imparted by the
magistrate to the accused in any way prejudiced him and
as he was in
fact presented by a qualified attorney and the case was conducted in
such a way that it cannot be said that any other
information would
have changed it. As we have seen the offence on the merits was
unsustainable and the conviction has to be upheld.
It
cannot be said that the mere fact that the wrong section of the Act
was initially and repeatedly used in any way prejudiced the
appellant
as far as the sentence is concerned.
The
question which has to be asked is whether this court having regard to
all facts can and should interfere with the sentence.
The
magistrate considered that the life sentence was appropriate. The
magistrate took into account that the accused was not a person
with a
clean record, that the offence, the commission of the offence was
accompanied by a serious assault on the victim before
the actual rape
took place.
Before
this court can interfere the court has to be convinced that the
magistrate either misdirected himself which in this case
is not
possible or that the case is so shockingly inappropriate that it has
to be a different
sentence as to be
substituted.
Bearing
in mind the seriousness of the assault I am not convinced that the
magistrate erred in any way in imposing the sentence
he did. The
appellant acted with aggression and his assault was a vicious and
dangerous one and one can accept that the victim
was highly
traumatised in the course of the commission of the offence.
It
would be wrong in my view for this court to interfere with th
e
sentence and for this reason I
would order that
the appeal against both the conviction and the sentence be refused.
BAM
AJ: I agree.
SAPIREAJ
:
It is so ordered.