APPEAL ON QUESTION OF LAW ONE OF RIGHT

DIRECTOR OF PUBLIC PROSECUTIONS, GAUTENG DIVISION, PRETORIA v MOABI 2017 (2) SACR 384 (SCA)

Appeal— Leave to appeal — Application for — By Director of Public Prosecutions on question of law in terms of s 311(1) of Criminal Procedure Act 51 of 1977 — Such appeal one of right and leave to appeal not required.

Rape — Sentence — Life imprisonment — Minimum sentence in terms of s 51 of Criminal Law Amendment Act 105 of 1997 — Where grievous bodily harm inflicted — Enhanced minimum-sentence provisions not requiring state to show that accused had intention to cause grievous bodily harm.

 

In an appeal against a conviction in a regional magistrates’ court on a charge of housebreaking with intent to rape and rape (read with the provisions of s 51(1) of the Criminal Law Amendment Act 105 of 1997) the High Court had confirmed the conviction but set aside the sentence of life imprisonment and replaced it with a sentence of 14 years’ imprisonment. The basis for the interference in the sentence was the court’s opinion that the state had not proved the respondent’s intention to inflict grievous bodily harm on the complainant.

In the present proceedings, the state applied for special leave to appeal to the Supreme Court of Appeal on a question of law in terms of s 311(1) of the Criminal Procedure Act 51 of 1977 (the CPA). The question was whether the High Court had been correct in holding that rape contemplated in part 1(c) of sch 2, read with s 51(1) of the Criminal Law Amendment Act 105 of 1997 (the Act), required intent on the part of the convicted person to cause grievous bodily harm.

Held, that the question raised involved the interpretation of the Act to ascertain what had to be proved to bring the offence of rape within the ambit of either part 1 or III of sch 2 to said Act. The Director of Public Prosecutions had accordingly raised a question of law. (See [12].)

Held, further, that by importing the intention of the respondent into the enquiry, the High Court had disregarded previous authority. It had committed an error of law in that intent was irrelevant in the determination of whether grievous bodily harm was inflicted on a complainant in the rape. Rather, the question to be answered was whether, as a matter of fact, the victim had sustained grievous bodily harm. (See [15].)

Held, further, that special leave to appeal was not required in a matter arising from s 311 of the CPA, which provided for an appeal as of right, without leave. An appeal under that section was also an appeal ‘regulated in terms of the Criminal Procedure Act’ and was therefore one to which the provisions of ch 5 of the Superior Courts Act 10 of 2013, and in particular s 16(1)(b) thereof, did not apply. (See [27].)

Held, further, that the appeal had to be upheld on the question of law and theorder of the High Court on sentence set aside. The sentence imposed by the regional court was accordingly reinstated and the matter remitted to the High Court for the appeal to proceed on sentence.

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