The Constitutional Court has been forced to reduce the sentence of a rapist from life to 15 years in prison because of an incorrect charge laid by a prosecutor.
Brendan Solly Ndlovu attacked his victim on her way home in October 2007, beating her with his fists, stones and bricks, leaving her face permanently scarred, before he raped her.
In 2008, he was convicted of the rape “as charged”, sentenced to life imprisonment in terms of section 51(1) of the Minimum Sentencing Act. The section states that a court must sentence a person convicted of rape with attempt to do grievous bodily harm to life imprisonment.
However, the State ultimately charged him under the lesser section of 51(2) of the act, which stipulates a minimum sentence of 10 years. In other words, he was charged with a less violent crime.
And because of the inappropriate charge, the Phalaborwa Regional Court had been incorrect in giving Ndlovu a life sentence under a different section of the act.
After being denied by the High and Supreme courts, Ndlovu approached the Constitutional Court in February. On Thursday, it upheld his appeal, reducing his sentence from life to 15 years.
“In this case, the prosecutor failed to ensure that the correct charge was preferred against Mr Ndlovu It boggles the mind why the proper charge of rape was not preferred,” the justice wrote.