Sentencing for gang rape in South Africa: a commentary on <i>Director of Public Prosecutions v Ndlovu</i>, 2024

Abstract Rape is a horrendous crime that impairs victims with unimaginable trauma. Gang rape, where offenders act in concert to mercilessly violate their victims repeatedly, poses a great danger to society. In South Africa, where sexual violence is rampant, the Criminal Law Amendment Act 105 of 1997 prescribes life imprisonment for gang rape. So, when the Supreme Court of Appeal in Mahlase v S 2013 (ZASCA) 191 (SCA) excused gang rapists from the possibility of life imprisonment unless a co-perpetrator was also convicted, lower courts grappled to apply the judgement. This upset the sentencing framework for rape, manifesting in inconsistent judgments from lower courts as they applied Mahlase with hesitation or altogether abandoned it with various justification. In March 2024, the Supreme Court of Appeal rectified its position in Director of Public Prosecutions, Kwazulu-Natal Pietermaritzburg v Ndlovu 2024 JDR 1077 (SCA). This development clarifies the application of minimum sentences to gang rapists, restores the dignity of victims and recentres their experiences in sentencing. Mahlase remains a painful reminder that penal provisions must be interpreted judiciously, informed by the scourge of gender based violence in South Africa, the experiences of victims and the Constitution. Victims have a legitimate expectation that offenders will be punished appropriately.