CONDONATION TO DPP TO APPEAL AGAINST SENTENCE

DIRECTOR OF PUBLIC PROSECUTIONS, PRETORIA v MTSHALI 2016 (2) SACR 463 (GP)

Appeal — Condonation — Requirements for — Appeal by Director of Public Prosecutions against lenient sentence imposed for rape — Fact of lenient sentence imposed not brought to attention of prosecutor’s superiors despite general instructions to do so — Public interest requiring that condonation be granted where non-custodial sentence imposed for violent rape.

 

The Director of Public Prosecutions (DPP) applied for condonation for leave to appeal against a sentence of five years’ imprisonment, suspended in its entirety, for rape, and a fine of R2000 for attempted murder. The application was filed some 23 months after sentence was imposed. The delay was explained by the National Director of Public Prosecutions in an affidavit as having been caused by it not having been made aware of the shockingly lenient sentence until the case was highlighted in a Sunday newspaper.

The rape, as found by the regional-court magistrate, was a violent one and the complainant was in fact raped twice although the respondent was only charged with one count. The evidence was that the respondent and the complainant had been in a relationship that had ended a year earlier but they were still co-workers at a resort and the respondent was her supervisor. On the day of the offences, the respondent had asked her to have intercourse with him but she refused and he then forcibly had intercourse with her after having pulled her into a toilet cubicle. The respondent then drove her into the bushes where she attempted to break loose and run away but the respondent caught up with her and hit her head against a stone. He took her back to the motor vehicle where he hit her head with the lid of a cast-iron pot several times until she lost consciousness after which he put her into the boot of the car. When she awoke the respondent hit her with the motor car jack as well as his fists and raped her again. The reason why the magistrate imposed such a light sentence was that the respondent had claimed to be the caregiver of his minor children whose interests required that he not be imprisoned. The DPP explained that despite departmental requirements and procedures the prosecutor involved in the case, who had since resigned and become a magistrate, had not brought the matter to the attention of her supervisors.

Held, that the magistrate had misdirected himself in overemphasising the personal circumstances of the respondent and underemphasising the seriousness of the offence and the interests of the community. He had also ignored numerous reported decisions of the courts that, when sentencing in cases such as the present, the emphasis had to be on retribution and deterrence and that the rehabilitation of the offender consequently had to play a relatively smaller role.

Held, further, that the DPP had reasonable prospects of success on appeal and the only question which remained was whether it should be granted condonation to embark on the process. Ignorance by the DPP caused by a lack of action from a prosecutor might not always be considered ‘good cause’ as it was in the interests of justice that litigation come to an end in order to ensure legal certainty. A belated appeal against the sentence imposed for a criminal conviction might evoke a public interest in the matter of the law’s delays and affect the respondent’s interests with regard to the finality of his judgment: when the time for noting an appeal had lapsed, he was prima facie entitled to adjust his affairs on the footing that his judgment was safe. However, in the present matter, the public interest as well as those of the victim overshadowed the interests of the respondent to such an extent that the applicant’s late filing of the application for leave to appeal ought to be condoned. The message sent to the community by imposing a suspended sentence where women had been violently raped was in direct conflict, not only with the legislation on minimum sentences, but also with the general trend of sentencing by the courts in South Africa and the message those courts strove to send out to the community. Condonation was accordingly granted.

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