WHEN three judges of a top court interpreted the law so it gives bizarre benefits to an accused in gang rape trials their unreported decision went almost unnoticed.

But this week saw a full court of the high court in Grahamstown applying the law as expounded by the Supreme Court of Appeal and the possible impact of the decision became clear. Commenting on its implications the high court judges said while they were bound by the higher court’s decision, key aspects of it left them puzzled at the illogical anomalies it created.

Even expressed with great respect, such criticism of a top court by judges of a lower court is rarely heard; that the dispute concerns punishment of criminals convicted of gang rape transforms it from a technical judicial squabble into a matter of significant public interest.

When Parliament tightened up the punishment for rape it included mandatory life imprisonment for anyone convicted of gang rape. That, at least, was how everyone has understood the law. But in 2013 the Supreme Court of Appeal said we were all mistaken.

The three SCA judges – all women – dealt with the not uncommon situation where only one accused in a gang rape had been tried. The high court hearing the matter accepted the evidence of the woman who said she was raped by two men in a mini-bus taxi in full view of all the other passengers. The single accused was found guilty of participating in a gang rape and sentenced to life in jail.

No, said the appeal judges. Because only one alleged rapist was on trial the rape could not be said to qualify as a gang rape. Thus the minimum sentence applicable in gang rapes couldn’t apply.

One result of this decision is that the first gang rape attacker to be tried and convicted in such a case benefits because he will not automatically qualify for a life sentence, but will serve whatever sentence the trial court thinks appropriate. Mandatory life sentence will only apply to the second and any further convicted rapists, whose conviction substantiates the claim of gang rape.

A few weeks ago three high court judges came up against this decision when they sat as a provincial full bench hearing two appeals following a gang rape – Brian Cock and Elton Manuel were tried separately in connection with the same attack.

Cock, first to be arrested, confessed to having participated in a gang rape. Manuel, picked up later, confirmed that the two of them raped her.

Given an automatic life sentence each, the two appealed to a full bench of the high court.

The three judges confirmed Manuel’s automatic life sentence. But, bound by the SCA decision, they set aside the automatic sentence of Cock, the first to be tried.

The judges said they had ‘considerable difficulty’ understanding the SCA’s ruling. The woman in the original appeal heard by the SCA ‘established beyond reasonable doubt’ that she was raped by two men, one of whom was the accused.

The trial judge had accepted her evidence and so the ‘gang rape’ became a ‘factual finding’ rather than a mere ‘allegation’ by the woman who was attacked. Why therefore should her evidence of being raped by two men, only one of whom was on trial, have been disregarded?

It prejudiced the woman and the state, said the Grahamstown judges, and benefitted one of the accused simply because he happened to be the first of the gang to be tried.

Despite their disquiet however the high court judges applied this new interpretation to the matter they were hearing. This week they held the trial judge ‘misdirected’ himself in finding Cock guilty of participating in a gang rape and in passing an automatic life sentence on him.

Considering what sentence should have been imposed on Cock however, the three high court judges concluded that, even without the mandatory sentence, life was appropriate.

Cock and Manuel thus both stay in jail for whatever term ‘life’ actually means. But what about future gang rape cases?

Parliament might perhaps plug the gap the SCA thought it had detected; the Constitutional Court might take a case that would allow them to give a final view. Or perhaps the SCA itself might revisit the question.

However it’s done it should happen soon – the anomalies apparently created by the SCA are so bizarre and unfair that the matter must be dealt with as a matter of urgency.

BELOW: the two main judgments in this dispute, the more recent one (top) by the Eastern Cape high court, and the older one (below) by the Supreme Court of Appeal

Brian Cock and Manuel vs The State (1)

Mahlase v S