In the matter between:

and

JUDGMENT

On 5 June 2006 the appellant, Mr Thabo Ncoto, was convicted of kidnapping, assault with intent to do grievous bodily harm and rape and sentenced as follows. Two years imprisonment on count 1, three years imprisonment on count 2 and 12 years imprisonment on count 3. The sentences on counts 1 and 3 was ordered to run concurrently, resulting in an effective sentence of 15 years imprisonment. Leave to appeal against sentence was granted on petition.

The grounds of appeal are in short that:
1.	The minimum sentence legislation was applied when, in the circumstances of the matter, it should not have been.
2.	The undue delay in the finalising of the matter and the lengthy awaiting trial period when the appellant was held in custody, not properly taken into account in the determination of sentence.

On behalf of the appellant it was submitted that the magistrate wrongly applied the minimum sentence legislation ("the Act") when sentencing the appellant, even though he declined to send the matter to the High Court. It was further submitted that once the magistrate had determined that the Act's life sentence provisions were not applicable, he ought not to have had regard to these provisions at all.
In the ordinary course of events, the appellant qualified for a possible sentence of life imprisonment since the evidence revealed that the complainant had been raped on more than one occasion and/or by more than one person. There had, however, been no reference at all to the provisions of the minimum sentence legislation in the charge sheet and for large parts of the trial, the appellant had been unrepresented. For this reason the magistrate advised the appellant that the matter would not be referred to the High Court for sentencing, but that he would be sentenced in the regional court.

Even though he referred to the Minimum Sentence Legislation on several occasions, I am satisfied that the magistrate made it clear that he regarded the legislation as not applicable and that he was sentencing the appellant in terms of the court's ordinary jurisdiction. The magistrate was entitled, in so sentencing the appellant, to have regard to the existence of the minimum sentence legislation. Insofar as the sentences is provided for therein, indicated the seriousness with which offences such as the rape committed by the appellant were viewed by the legislature and by extension, by the community.

Delays of this order are unacceptable. Regarding the delay post trial it appears that within days of his conviction, the appellant gave notice of the attention to appeal and his application for leave to appeal was disposed of within a few months. It is not clear why it took another three years for the appellant to launch his petition for leave to appeal, but the fact that he enjoyed no legal representation, in all probability played a role therein. It was only in September 2009 that the appellant petitioned for leave to appeal and therefore this last process was not being unduly prolonged.

Another substantial delay was caused when the appellant was arrested and convicted on another charge or charges after having been released on bail in the present matter. Towards the latter stages of the trial there were a number of postponements while the State sought to find witnesses whom the appellant wished to call in his defence. The details of these witnesses furnished by the appellant was sketchy to say the least and this led to further delays. Unfortunately it appears to be the practice of the regional court to often grant lengthy remands, possibly as a result of the state of its roles. Throughout the trial, it should be said, the magistrate concluded the trial with exemplary patience and concern for the rights of the appellant.

In my view this was a misdirection on the part of the magistrate. By any standards, a period of some five years in custody awaiting trial, that is six and a half years between arrest and conviction, less some 18 months while the appellant was free on bail, is an extraordinarily long period. If the awaiting trial period during which the appellant was incarcerated is added to his effective sentence the result is a sentence of some 21 years, a severe sentence even for a first offender convicted of serious rape.

It is trite that the court of appeal can only interfere with the sentence imposed when a trial court exercises its discretion improperly or unreasonably. It is now five years since the appellant's conviction and ten and a half years since his arrest. Rape is a serious crime and the rape which the complainant endured was particularly brutal involving as it did two persons and multiple rapes. So terrified was the complainant that she attempted to stab herself and drank paraffin rather than be dragged out into the night by the appellant. After the rape she was so traumatised that she spent two days in hospital and went into a temporary psychological shutdown.

Taking all the circumstances into account, I consider that an appropriate effective sentence would be one of ten years imprisonment. I propose then the following order: