THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
CASE NO. 519/2004
In the matter between

SITHEMBISO XOLANI KIMBERLEY
AND ANOTHER
Appellants

and

THE STATE
Respondent
____________________________________________________________

CORAM:
ZULMAN, MTHIYANE, BRAND and MLAMBO JJA

et MAYA AJA

HEARD:
26 AUGUST 2005
DELIVERED:
19 SEPTEMBER 2005
____________________________________________________________

On a proper interpretation of s 51 (1)(a) read with Part 1 of Schedule 2
paras (a)(i) and (ii) of the Criminal Law Amendment Act No 105 of 1997, a
High Court lacks jurisdiction to impose a sentence of life imprisonment in
respect of a single act of rape.

______________________________________________________________________

JUDGMENT
____________________________________________________________

ZULMAN  JA

[1] The appellants were convicted in the Alexandria Regional Court, of
rape. The Regional Magistrate referred the matter to the High Court of the
Eastern Cape Provincial Division for the imposition of sentence in terms of
s 52 of the Criminal Law Amendment Act no 105 of 1997 (the Act). The
High Court (Erasmus J) sentenced the appellants to life imprisonment but
granted leave to appeal to this court. The essential question which arises for
determination in this appeal is whether the High Court was correct in
finding that s 51 (1)(a) read with Part 1 of Schedule 2 para (a) (ii) of the
Act was applicable.
[2] Both the appellants pleaded not guilty to the charge of rape on which
they were arraigned. The complainant was the key witness for the
prosecution. She testified that the two appellants entered her home and
proceeded to attack her. Appellant number 1 then held her down while
appellant number 2 raped her. The appellants denied the whole of the
version of the complainant. The regional magistrate nevertheless accepted
the complainant’s evidence and rejected that of the two appellants. She
thereupon convicted both the accused of rape, without however indicating

the basis for the conviction. Thereafter, the matter was postponed in order
to obtain a probation officer’s report in respect of appellant number 2. A
number of postponements followed. The record indicates that on 17 July
2003 the case was postponed to the High Court for trial. There is however
no record of the referral proceedings.
[3] When the matter came before the High Court on 21 August 2003 it
appeared to that Court that certain information was required for the Court
to properly deal with the matter in terms of the Act. The proceedings were
postponed. The Court directed that the following inquiry be sent to the
magistrate:
‘1.
The record does not contain the proceedings and the judgment of the
magistrate in regard to the referral of the accused for sentence in terms of
s 52 of Act 105 of 1997. The magistrate is requested to furnish same.

2.
The magistrate is requested to furnish reasons for the referral, indicating
therein the section of the relevant schedule on which the Court relied. It
would seem that the Court convicted accused no 1 on the basis that he
aided accused no 2 in raping the complainant. Can it be said that on such
basis accused no 1 committed rape, as contemplated in the schedule? The
magistrate is referred to the judgment of this court in S v JONAS
SAFFIER a copy of which is attached (CC 4/03); which judgment might
have a bearing on the question.
3.
The magistrate is further requested to comment whether it was
competent, alternatively appropriate, in the circumstances of the case for

a Court to invoke provisions of the Act in view of the apparent failure on
the part of the State to alert the defence to the fact that it intended to rely
on the provisions of the Act in the event of a conviction. See S v Ndlovu
2003(1) (SACR) 331 (SCA).’
[4] The magistrate replied simply that she had found that appellant
number 1 was ‘an accomplice’. She stated further that she had erred in
referring the matter to the High Court, as she had interpreted s 52
incorrectly. She was now of the view that she had lacked the jurisdiction to
refer the matter to the High Court. She requested that the referral therefore
be set aside and that the matter be referred back to her in terms of s 52 (3)
(e) (v) of the Act.
[5] Notwithstanding the magistrate’s request and the attitude of counsel
for both the appellants and the State in support of the magistrate, Erasmus J
ruled that the matter should not be referred back but that the trial of the
accused should proceed before him in terms of the provisions of s 52(3) of
the Act (the first judgment). The court a quo accepted that the schedule in
paragraph (a)(i) contemplates the position where the accused has been
convicted of rape committed in circumstances involving multiple rapes.
Although Erasmus J considered that there was some uncertainty as to what
the ‘lawmaker intended’ and that the language was not clear, he
nevertheless considered that he did not need to ‘search for that meaning, for
whichever way one looks at the provision it contemplates more than one

act of rape; and the present complainant was only raped once’ (first
judgment paragraph 17).
[6] The learned judge then turned to consider parapraph (a)(ii) of the
schedule. At the outset he commented that ‘The provision contemplates a
single rape committed by more than one person’. He then stated that:
‘A layman reading para (a)(ii) could understand it to relate to the so-called gang rape
situation, where one or more persons hold down the victim with the ‘common purpose’
that another of their number has sexual intercourse with her. A court could conclude
that Parliament here uses the words in such loose sense. This could explain some of the
perplexities in para (a)(i) set out above in para [17], which would lend support to the
loose or non-legal interpretation of the schedule as a whole. As no more acceptable
interpretation suggests itself, I must conclude that such was the intention of the
legislator and therefore give effect to that intention, even though it will give rise to
anomaly. It would mean that the concepts ‘common purpose’ and ‘co-perpetrator’ have
one meaning (a legal one) for purposes of conviction and another (non-legal) for
purposes of sentence. Be that as it may, on the above interpretation, the factual findings
of the magistrate mean that the two accused committed the rape ‘in the execution of a
common purpose’ which brings them both within the ambit of the schedule.’
(first judgment paragraph 21).
In my view and for the reasons which will appear presently the court a quo
erred in this interpretation of para (a)(ii).
[7] The court thereupon proceeded to consider the question of sentence
and as previously stated imposed a sentence of life imprisonment on both
the appellants, (the second judgment). In so doing Erasmus J considered

that he was by law obliged to impose a sentence of life imprisonment
unless he was satisfied that substantial and compelling circumstances
existed which justified the imposition of a lesser sentence. He found that no
such circumstances existed.
[8] Section 51(1) of the Act is prefaced by the words: ‘minimum
sentences for certain serious offences’. In section 51(1)(a) the Act provides
that the High Court shall have jurisdiction:

‘(1) Notwithstanding any other law but subject to subsections (3) and (6) [the
subsections are not here relevant], a High Court shall –

(a)
if it has convicted a person of an offence referred to in Part 1 of schedule
2; …

sentence the person to imprisonment for life.’
Rape is one such offence. Part 1 of Schedule 2 of the Act provides, inter
alia, that a High Court shall have jurisdiction to impose life imprisonment
on an offender who is convicted of:

‘Rape - (a)
when committed -
(i) in circumstances where the victim was raped more than once
whether by the accused or by any co-perpetrator or
accomplice;
(ii) by more than one person where such persons acted in the
execution or furtherance of a common purpose or
conspiracy.’

(my emphasis).

In the present case, as previously stated, the evidence disclosed that
Appellant number 1 held the complainant down whilst Appellant number 2
actually raped her.
[9] The Act is concerned in s 51(1) to deal with what it terms the
imposition of ‘minimum sentences for certain serious offences’. In the case
of what may be described as ‘ordinary’ rapes not falling within the ambit of
Part 1 of Schedule 2, these attract a minimum sentence of ten years
imprisonment for a first offender (Part 3 of Schedule 2). (Both appellants
are first offenders). Accordingly the rapes referred to in Part 1 of Schedule
2 which attract a minimum sentence of life imprisonment are obviously of
a more serious nature. The ‘mischief’ which the legislature sought to deal
with, in my view, was the situation where a woman is subjected to multiple
rapes either by one person or by any ‘co-perpetrator or accomplice’.
Paragraph (a) (i) of Schedule 2 covers the situation where ‘the victim was
raped more than once’. Paragraph (a) (ii) also deals with the situation
where the victim is raped by more that one person in the ‘execution or
furtherance of a common purpose or conspiracy’. Both paragraphs require
that the victim be raped more than once.
[10] It is not necessary to go into the degrees of participation in the rapes
for the purposes of interpreting paragraphs (a)(i) and (ii). Nor is the fact
that an accomplice, may in an appropriate case, receive the same sentence
as the actual perpetrator/s of a rape, of assistance in interpreting the

paragraphs in question.
[11] Erasmus J considered that para (a)(ii) and not para (a)(i) applied to
the case before him. In my view, in doing so he in effect erroneously
equated the position of an ‘accomplice’ proper with that of a person or
persons acting in the execution or furtherance of a common purpose or
conspiracy. He erred in doing so. Where the legislature wishes to deal with
an ‘accomplice’, a well known term in law, which it is clearly cognizant of,
it does so in express terms in para (a)(i). It makes no mention of an
‘accomplice’ in para (a)(ii) but refers to other equally well known concepts
in law such as ‘common purpose’ and ‘conspiracy’. I do not accept the
validity of the reasoning of the court a quo that the concepts ‘common
purpose’ and ‘co-perpetrator’ have one meaning for the purposes of
conviction (a legal one) and another for the purposes of sentence (a non-
legal one). The concepts have only one consistent and clear meaning.
[12] As previously pointed out Appellant number 1 was found to be
simply an ‘accomplice’ and not a co-perpetrator nor  was it found that he
acted in the execution of a common purpose or conspiracy. An
‘accomplice’ (medepligtige) is one who takes part in the commission of the
crime other than as a perpetrator (dader) and other than as an accessory
after the fact (begunstige)  (Burchell - South African Criminal Law and
Procedure - Vol 1 p 322).  The matter is put succinctly by Joubert JA in S v
Williams 1980(1)SA 60(A) at 63 A-B in these terms:

‘’n Medepligtige se aanspreeklikheid is aksessories van aard sodat daar geen
sprake van ‘n medepligtige kan wees sonder ‘n dader of mededaders wat die
misdaad pleeg nie. ‘n Dader voldoen aan al die vereistes van die betrokke
misdaadomskrywing. Waar mededaders saam die misdaad pleeg, voldoen elke
mededader aan al die vereistes van die betrokke misdaadomskrywing.
Daarenteen is ‘n medepligtige nie ‘n dader of mededader nie aangesien die dader
se actus reus by hom ontbreek. ‘n Medepligtige vereenselwig hom bewustelik
met die pleging van die misdaad deur die dader of mededaders deurdat hy
bewustelik behulpsaam is by die pleging van die misdaad of deurdat hy
bewustelik die dader of mededaders die geleentheid, die middele of die inligting
verskaf wat die pleging van die misdaad bevorder.’

(see also LAWSA First Re-Issue Vol 6 paras 129/132,pp 1138/146,
Snyman- Strafreg (Vierde Uitgawe) 254/257 and De Wet en Swanepoel –
Strafreg  (Vierde Uitgawe) Chapter 7 pp 175/208)
So for example a woman who assists a man to rape another woman or who
makes it possible for him to do so, cannot be held to have committed the
act of rape (S v Jonathan en Andere 1987 (1) SA 633 (A) at 643 H-I).
Simply put it is of fundamental importance to vest a High Court with
jurisdiction to impose a sentence of life imprisonment, that there be more
than one act of rape.
[13] In any event, in so far as the wording of paras (a)(i) and (a)(ii) may
not be clear it is trite that a court will interpret the paragraphs so as to
render an interpretation  least harsh to the affected person ( see for

example, Principal Immigration Officer v Bhula 1931 AD 323 at 336/7).
Similarly a statutory provision which is not clear and which changes the
common law will also be restrictively interpreted (See for example
Casserley v Stubbs 1916 TPD  310 at 312 ) More particularly statutes
which prescribe minimum sentences, such as the statute here under
consideration, thus eliminating the usual discretion of a court to impose a
sentence which befits the peculiar circumstances of each individual case,
will usually be construed in such a way that the penal discretion remains in
tact as far as possible ( Du Plessis - The Interpretation of Statutes  para
23.3 p75).
[14]  Both counsel for the Appellant and for the Respondent agreed,
perhaps for different reasons, that Erasmus J had erred in finding that the
provisions of Part 1 of Schedule 2 para (a)(ii) of the Act were applicable to
the appellants,  the court having lacked the necessary jurisdictional capacity
to impose the sentence of life imprisonment.  They were also both agreed
that the matter should be referred back to the magistrate for the imposition
of an appropriate sentence.
[15] Accordingly :
15.1 The appeal is allowed.
15.2 The sentences imposed by the High Court are set aside.

15.3 The matter is referred back to the Alexandria Regional Court, for the
purposes of imposing sentence on the appellants.

---------------------------------------

R H ZULMAN

JUDGE OF APPEAL

MTHIYANE JA )
BRAND JA
)
CONCUR
MLAMBO JA
)
MAYA AJA
)