A 2013 Supreme Court of Appeal judgment on sentencing gang rapists in separate trials came under harsh criticism in the Grahamstown High Court.
It was described as entirely illogical and difficult to understand.
The SCA judgment potentially enables gang rapists to evade the prescribed minimum sentence of life imprisonment unless all involved in the gang rape are simultaneously convicted.
This emerged during the Grahamstown full bench appeal of two Graaff-Reinet rapists – Brian Cock and Elton Manuel – who together viciously raped a young woman in 2010.
In terms of the Criminal Law Amendment Act, a court is obliged to sentence certain categories of rapists to life imprisonment unless it can find there were substantial and compelling circumstances not to do so. The types of rape that earn a life sentence include where the victim was raped more than once by a perpetrator or where two or more perpetrators together rape a victim (gang rape).
Cock in 2012 admitted during his trial that he and Manuel had raped the woman after robbing her.
He was duly convicted and, once the court had found there were no substantial and compelling circumstances, sentenced to life imprisonment.
Manual was only apprehended after Cock’s trial was completed. In his own trial, he also admitted that, together with Cock, he had raped the woman. He too was sentenced to life imprisonment.
However, in 2013, the Supreme Court of Appeal (SCA) reduced the life sentence of a man who had been convicted in the Venda High Court of gang raping a woman in a taxi.
Although the woman’s version that she had been raped by more than one man had never been contested, the SCA found that because the man’s co-accused had not simultaneously been tried and convicted with him, it could not be proven that the woman had been gang raped and the mandatory minimum life sentence could not be applied.
It reduced his sentence to 15 years’ imprisonment.
In appeals against their sentences brought by both Cock and Manuel, Grahamstown High Court Judge Jeremy Pickering said the SCA’s approach was entirely illogical but the high court was bound by it.
“I have, with the greatest respect, considerable difficulty in understanding the basis upon which the conclusion was reached that the rape did not fall within the provisions of Part 1, Schedule 2 of the where the complainant had been raped more than once by more than one person.
“I do not understand on what basis the credible and cogent evidence of the complainant that she was raped by two men, one of whom was identified as being the accused, should be disregarded, not only to the prejudice of the victim and of the state, but also, by way of contrast, to the benefit of the accused on the arbitrary basis that he happened to be the first of the gang to have been arrested and convicted.”
He said it gave rise to the inconsistent situation that in Cock’s case – as the first accused to be convicted and sentenced – he could not face the possibility of a mandatory life sentence but any other person convicted after him of being part of the gang that raped her – in this case Manual – would.
“So-called gang rapes are, regrettably, an all too frequent occurrence … In my experience it also regrettably often happens that only one person accused of having been involved in a gang rape is apprehended and in due course convicted accordingly.
“It has, to the best of my knowledge, never been doubted that an accused convicted of having raped a complainant in such circumstances is liable to be sentenced to the mandatory minimum sentence of life imprisonment in terms of 51(1) of the despite the fact that at the time of his trial none of the alleged coperpetrators had yet been apprehended and convicted.”
Pickering said that because the court was bound by the SCA’s decision they had no choice but to set aside Cock’s life sentence. But Cock’s victory was short-lived. Pickering immediately re-imposed a sentence of life imprisonment.
He said the court still retained a discretion in terms of the common law to sentence him to life.
Manuel’s appeal was dismissed as, being the second man convicted in the rape of the woman, the mandatory sentence of life had been correctly applied in terms of the SCA’s judgment.
Judge slams SCA judgment
It was described as entirely illogical and difficult to understand.
The SCA judgment potentially enables gang rapists to evade the prescribed minimum sentence of life imprisonment unless all involved in the gang rape are simultaneously convicted.
This emerged during the Grahamstown full bench appeal of two Graaff-Reinet rapists – Brian Cock and Elton Manuel – who together viciously raped a young woman in 2010.
In terms of the Criminal Law Amendment Act, a court is obliged to sentence certain categories of rapists to life imprisonment unless it can find there were substantial and compelling circumstances not to do so. The types of rape that earn a life sentence include where the victim was raped more than once by a perpetrator or where two or more perpetrators together rape a victim (gang rape).
Cock in 2012 admitted during his trial that he and Manuel had raped the woman after robbing her.
He was duly convicted and, once the court had found there were no substantial and compelling circumstances, sentenced to life imprisonment.
Manual was only apprehended after Cock’s trial was completed. In his own trial, he also admitted that, together with Cock, he had raped the woman. He too was sentenced to life imprisonment.
However, in 2013, the Supreme Court of Appeal (SCA) reduced the life sentence of a man who had been convicted in the Venda High Court of gang raping a woman in a taxi.
Although the woman’s version that she had been raped by more than one man had never been contested, the SCA found that because the man’s co-accused had not simultaneously been tried and convicted with him, it could not be proven that the woman had been gang raped and the mandatory minimum life sentence could not be applied.
It reduced his sentence to 15 years’ imprisonment.
In appeals against their sentences brought by both Cock and Manuel, Grahamstown High Court Judge Jeremy Pickering said the SCA’s approach was entirely illogical but the high court was bound by it.
“I have, with the greatest respect, considerable difficulty in understanding the basis upon which the conclusion was reached that the rape did not fall within the provisions of Part 1, Schedule 2 of the where the complainant had been raped more than once by more than one person.
“I do not understand on what basis the credible and cogent evidence of the complainant that she was raped by two men, one of whom was identified as being the accused, should be disregarded, not only to the prejudice of the victim and of the state, but also, by way of contrast, to the benefit of the accused on the arbitrary basis that he happened to be the first of the gang to have been arrested and convicted.”
He said it gave rise to the inconsistent situation that in Cock’s case – as the first accused to be convicted and sentenced – he could not face the possibility of a mandatory life sentence but any other person convicted after him of being part of the gang that raped her – in this case Manual – would.
“So-called gang rapes are, regrettably, an all too frequent occurrence … In my experience it also regrettably often happens that only one person accused of having been involved in a gang rape is apprehended and in due course convicted accordingly.
“It has, to the best of my knowledge, never been doubted that an accused convicted of having raped a complainant in such circumstances is liable to be sentenced to the mandatory minimum sentence of life imprisonment in terms of 51(1) of the despite the fact that at the time of his trial none of the alleged coperpetrators had yet been apprehended and convicted.”
Pickering said that because the court was bound by the SCA’s decision they had no choice but to set aside Cock’s life sentence. But Cock’s victory was short-lived. Pickering immediately re-imposed a sentence of life imprisonment.
He said the court still retained a discretion in terms of the common law to sentence him to life.
Manuel’s appeal was dismissed as, being the second man convicted in the rape of the woman, the mandatory sentence of life had been correctly applied in terms of the SCA’s judgment.
Would you like to comment on this article?
Register (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.
Trending Now
Latest Videos