The Constitutional Court. File picture: Tiro Ramatlhatse
Johannesburg - In what has been described as an “unfortunate failing” by a prosecutor and magistrate, the Constitutional Court has been forced to reduce the sentence of a rapist from life to 15 years in prison because of a technicality.

Brendan Solly Ndlovu attacked his victim while she was 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 (MSA).

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 as though he had committed a less violent crime.

And because of the incorrect charge, the Phalaborwa Regional Court was incorrect in giving Ndlovu a life sentence under a different section of the MSA.

Ndlovu approached the High Court and Supreme Court to overturn his sentence, although both courts had deemed the trial fair.

But Ndlovu was unwilling to give up, and approached the Constitutional Court in February.

On Thursday, the Constitutional Court upheld his appeal, reducing his sentence from life - where one would have to wait 25 years in prison before being eligible for parole - to 15 years.

In a unanimous judgment penned by Justice Sisi Khampepe, the apex court ruled that because of the lesser charge faced by Ndlovu, the regional court had been limited to imposing a maximum sentence of 15 years.

Even though Ndlovu had been 20 months late in filing his application to the Constitutional Court, it found that in the interests of justice and the legal issues his application had raised, his appeal should be heard.

Justice Khampepe’s judgment indicated that the heinous nature of the crime meant that Ndlovu should have been correctly charged.

However, because he was not - and the magistrate also did not correct the prosecutor’s error - his right to a fair trial had been infringed.

“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.

The court sentenced Ndlovu to 15 years in prison, antedated to 8 May 2009, meaning he has technically already served eight years of his sentence.

Saturday Star