S v MAXABANISO 2015 (2) SACR 553 (ECP)
Rape — Charge — Correct way of charging — Where victim raped more than once in course of single encounter — Proper to charge with one count of rape.

The appellant appealed against his conviction and sentence of 15 years’ imprisonment imposed in a regional magistrates’ court for rape. The evidence showed that the appellant had raped the complainant twice during the course of one encounter with her. The two incidents of rape were separated by an interruption when the appellant went to the toilet. The state indicated at the commencement of the trial that ‘sections 51 and/or 52’ and sch 2 to the Criminal Law Amendment Act 105 of 1997 were applicable and that it would seek a sentence of life imprisonment. The appellant argued on appeal that he had been charged with only one count of rape and that the state, if it wanted the sentence of life imprisonment to apply, ought to have charged him with two counts of rape.
Held, that the correct way to charge an accused who was accused of raping a victim more than once in the course of a single encounter was to charge the accused with one count of rape. This avoided potential difficulties where each count attracted a potential life sentence, or where the first rape attracted a 10-year minimum sentence while the second attracted a life sentence, or where both counts had to be taken together for purposes of sentence.
Held, further, that there was no merit in the argument that the appellant’s trial F was unfair because he was found to have penetrated the complainant more than once but had only been charged with one count of rape.
Held, further, that the rape was not one continuous course of conduct, as an interruption had occurred when the appellant left the room to go to the toilet.
Held, further, that when the personal circumstances of the appellant (namely his G age and that he was a first offender) were taken into consideration, together with the nature and seriousness of the crime and the interests of society, it could not be said that the magistrate had misdirected himself as to sentencing in any respect, and the sentence did not induce a sense of shock. The appeal accordingly had to be dismissed.