DIFFERENT TREATMENT FOR FIRST PARTICIPANT OF GANG RAPE

S v COCK;S v MANUEL 2015 (2) SACR 115 (ECG)
Rape — Sentence — Life imprisonment — Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997 — Gang rape — Different treatment accorded to first participant to be convicted for participation in gang rape to that of subsequent participants convicted — Court pointing out anomaly but holding that it was bound by Supreme Court of Appeal authority — Sentence of life imprisonment imposed under prescribed minimum sentence legislation accordingly set aside but, in exercise of court’s common-law discretion, new sentence of life imprisonment imposed.

In two separate appeals to the full division against sentences of life imprisonment imposed upon the two appellants arising from their having raped the complainant in the execution or furtherance of a common purpose, the court felt obliged to comment on the anomalous situation brought about by the judgment of the Supreme Court of Appeal in the matter of S v Mahlase [2011] ZASCA 191. The anomaly that arose in the present situation was that in terms of this decision the appellant in the Cock matter, being the first accused to be convicted and sentenced, was liable to a minimum prescribed sentence of only ten years’ imprisonment, whereas any other accused who was thereafter convicted as having been part of the gang which raped the complainant (the appellant in the Manuel matter) would be liable to the prescribed minimum sentence of life imprisonment, it now having been established that the complainant had indeed been raped more than once, ie by two men. The court held that it was bound by this decision and that the sentence of life imprisonment imposed on the appellant in the Cock matter had to be set aside.
The court held, however, that in the exercise of its common-law jurisdiction it was free to impose any sentence in excess of the prescribed minimum sentence of ten years’ imprisonment and, having regard to all the circumstances, including the fact that the complainant was gang raped, the only appropriate sentence was that of life imprisonment.
In respect of the appellant in the Manuel matter the court held that there were no substantial or compelling circumstances which would justify the imposition of a lesser sentence than life imprisonment and the appeal in respect of this appellant was accordingly dismissed. As a new sentence of life imprisonment was imposed on the appellant in the Cock matter, that sentence had to be backdated to the date of the imposition of the original sentence.

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