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NGCOBO J is convicted in the regional court of an offence for which a minimum of life imprisonment is prescribed by section 51 of the Act read with Part 1 of Schedule 2 must be committed to the High Court for sentence. The rape of a child under the age of 16 is such an offence. [13] Mr Mokoena was charged with the rape of an 11 year old girl. The rape was alleged to have taken place on 8 September 2005. After three postponements, the trial eventually got underway on 19 April 2006. Mr Mokoena also pleaded not guilty. The case was finalised on 7 July 2006 when Mr Mokoena was convicted of rape. obtain from the regional magistrate who presided at the trial a statement setting forth his or her reasons for convicting the accused. (c) If a judge acts under the proviso to paragraph (b), he or she shall inform the accused accordingly and postpone the case for judgment, and, if the accused is in custody, the judge may make such order with regard to the detention or release of the accused as he or she may deem fit. (d) The Court in question may at any sitting thereof hear any evidence and for that purpose summon any person to appear to give evidence or to produce any document or other article. (e) Such Court, whether or not it has heard evidence and after it has obtained and considered a statement referred to in paragraph (b) may— (i) confirm the conviction and thereupon impose a sentence as contemplated in section 51(1) or (2), as the case may be; (ii) alter the conviction to a conviction of another offence referred to in Schedule 2 and thereupon impose a sentence as contemplated in section 51(1) or (2), as the case may be; (iii) alter the conviction to a conviction of an offence other than an offence referred to in Schedule 2 and thereupon impose the sentence the Court may deem fit; (iv) set aside the conviction; (v) remit the case to the regional court with instruction to deal with any matter in such manner as the High Court may deem fit; or (vi) make any such order in regard to any matter or thing connected with such person to the proceedings in regard to such person as the High Court deems likely to promote the ends of justice.” 8

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Director of Public Prosecutions v. Ministry for Justice and Constitutional Development & Ors, 2009

Cases

Country

Latitude: -31.005484474142992

Longitude: 23.460146846172638

Country (linked Cases): South Africa

Court location: South Africa: Transvaal

Court: South Africa: Constitutional Court, South Africa

Date of judgement: Apr 1, 2009

Complainant: Director of Public Prosecutions

Keywords

Defilement (Rape of children)
Rape
Right to dignity
Sexual assault
Sexual offences

Gender of victim

Female: Girl (under 18)

Gender of accused/perpetrator

Male: Man (18+)

Language: English

Summary: The Constitutional Court handed down judgment in a matter which the respondent sought confirmation of orders of constitutional invalidity made by the North Gauteng High Court, Pretoria in relation to provisions that deal with the testimony of child victims and child witnesses in sexual offence cases.

The High Court then declared some sections unconstitutional; the sections dealt with the discretion of a court to appoint intermediaries to assist children in testifying; children giving evidence in open court; the requirement that courts give reasons for the refusal to allow a child complainant below the age of 14 years to give evidence in a closed or non-public proceedings, the requirement that courts admonish children to speak the truth, so that their evidence is admissible, if they are found not to understand the nature and import of taking in an oath or affirmation.

The case also includes the applicants Phaswane and Mokoena, who were charged with the rape of a 13 year old and an 11 year old. Both men were convicted and sentenced to a minimum of life imprisonment prescribed by section 52(1) of the constitution.

The High Court judge raised the constitutional validity of certain provisions. He called upon the accused, the state and various non-governmental organizations that look after the interests of children, to submit written argument on the constitutionality of certain provisions.

In conclusion it held that sections declared unconstitutional were inconsistent with the constitution.

Primary Documents

South-Africa-Case-Constitutional-Court-Transvaal_vs_State-and-Another-No_3608-En.pdf
English
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Director of Public Prosecutions v. Ministry for Justice and Constitutional Development & Ors, 2009

Primary Documents

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