CCT174/16

[2017] ZACC 19

2017 (10) BCLR 1286 (CC)

2017 (2) SACR 305 (CC)

Khampepe J

23 February 2017

15 June 2017

http://hdl.handle.net/20.500.12144/3873

Application for leave to appeal against a judgment of the SCA: Ndlovu v S (204/2014) [2014] ZASCA 149 (26 September 2014). The case was first heard in the Pretoria High Court: Ndlovu v S (A 329/11) [2011] ZAGPPHC 233 (4 October 2011). The judgment on application for leave to appeal in the Pretoria High Court is: Ndlovu v S (A329/2011) [2012] ZAGPPHC 372 (31 July 2012).

Application for leave to appeal against a sentence of life imprisonment imposed on the applicant, Mr Brendan Solly Ndlovu, by the Phalaborwa Regional Magistrate’s Court (Regional Court) following his conviction of rape. Mr Ndlovu had been charged with rape, read with the provisions of section 51(2) of the Criminal Law Amendment Act 105 of 1997 (Minimum Sentencing Act). The Regional Court convicted Mr Ndlovu “as charged”, but sentenced him to life imprisonment in terms of section 51(1) of the Minimum Sentencing Act. The Court held that the Regional Court did not have jurisdiction to sentence Mr Ndlovu in terms of section 51(1) of the Minimum Sentencing Act. The Regional Court would only have had jurisdiction to impose a sentence of life imprisonment under section 51(1) if it had found Mr Ndlovu guilty of an offence referred to in that subsection. The Magistrate’s statement that Mr Ndlovu was found “guilty as charged” was unambiguous: Mr Ndlovu was convicted of rape read with the provisions of section 51(2). Mr Ndlovu’s sentence of life imprisonment was therefore set aside and substituted with a sentence of 15 years’ imprisonment.