Judge condemns SCA precedent in horrific rape appeal

The lone woman on a three-person High Court Bench hearing a horrific gang rape appeal, has declared she is not obliged to follow a much-disputed 2011 decision by the SCA that would have greatly reduced the sentence. Such a declaration is unprecedented because lower courts are bound as a fundamental principle to follow the decisions of a higher court, writes Carmel Rickard for Legalbrief. Judge Khosi Hadebe's determination to maintain the life sentence imposed on one of a gang who raped a KZN woman comes in the middle of Women's Month when issues such as the struggle to protect women from rape and to punish rapists, are highlighted. Hadebe and two other (male) judges were considering the appeal by Xolani Ndlovu against his conviction and sentence for rape. Given life imprisonment by the Magistrate's Court, Ndlovu wanted the court to reduce his jail term. However, the High Court spotted that the magistrate had erred in his sentence: under the SCA's 2011 Mahlase decision, courts are not to impose life imprisonment as stipulated for gang rape, in cases where only one member of the gang was before court. Though the subject of ongoing criticism for creating anomalies and injustice, the Mahlase decision continues to be binding. The two men on the full Bench considering Ndlovu's appeal said in view of the Mahlase decision, the life sentence imposed on Ndlovu had to be set aside. They replaced it with a 15-year term. Hadebe, however, said in view of the horrific nature of the gang rape it would be 'outrageous' to impose a far lighter sentence and that the obligation to be bound by the SCA decision 'could be avoided'. Hadebe would have upheld the life sentence imposed on Ndlovu, but because she was in the minority, Ndlovu's sentence will now be reduced to 15 years.