S v Fosi (CA & R 238/2007) [2008] ZAECHC 57 (23 May 2008)

/ / 2018, Criminal Law, News


A 44-year old woman lived in a shack together with young children aged 5 and 10. On the evening of 4 June 2006, the Appellant forcibly gained entry to the premises and raped the Complainant for almost the whole evening and left the next morning.

Throughout the rape, the Appellant was armed with a knife and repeatedly threatened the Complainant with death should she resist or divulge what had occurred.

The two young children were present in the room throughout the ordeal.

The Appellant appeared in court on a charge of housebreaking with intent to rape and rape. The charge sheet contained the relevant sections of the minimum sentence provisions in the Criminal Law Amendment Act 105 of 1997 (“the Act”), which were referred to by the Prosecutrix when the charge was put to the Appellant.

The Appellant pleaded not guilty and his attorney informed the court that the Appellant’s defence was one of pure denial. The Appellant was subsequently convicted and sentenced to a term of imprisonment of 15 years.

The Appellant subsequently appealed against the sentence. It was stated that in the absence of recognised grounds such as a misdirection, improper, unreasonable or exercise of sentencing discretion, the sentence imposed stands.


It was held that the Magistrate in the court a quo was fully justified in imposing the sentence which he did. The appeal court was of the view that there was no proper basis warranting interference with the sentence imposed. The appeal was therefore dismissed.  It was not suggested that there was a misdirection. Counsel for the Appellant advanced that the Appellant was a first time offender and that section 51(2)(b)(i) of the Act prescribes a minimum sentence of 10 years imprisonment for such offender. It was further advanced that the magistrate in the court a quo unreasonably exercised his discretion by imposing a 15 year sentence on the Appellant.

In response, the Magistrate stated that the purpose of the Act was “to provide for minimum sentences for certain serious offences.” The learned judge further expressed that the Act merely states what the legislature considered to be the minimum sentence to be imposed on conviction of certain offences and that nowhere in the jurisprudence is there any suggestion that courts of law are bound to impose the sentence prescribed.

He further mentioned that the provisio to s51 permitted the imposition of a sentence in excess of that prescribed provided that the increased sentence does not exceed the prescribed sentence by more than 5 years. This illustrates that the legislature was undoubtedly aware that there may exist cases such as the present matter which clearly demonstrates that the sentence prescribed may be disproportionate to the gravity of the offence.



In the absence of recognised grounds such as a misdirection, improper, unreasonable or exercise of sentencing discretion, the sentence imposed stands.

Written by Jayna Hira and supervised by Jenna Bentel , 15 November 2018

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