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[2022] ZAFSHC 84
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S v Mofokeng (R08/2022) [2022] ZAFSHC 84 (29 April 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: R08/2022
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
THE
STATE
And
THABANG
VICTOR MOFOKENG
Accused
CORAM:
DANISO, J
et
MPAMA, AJ
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 11H00 on 29 April 2022.
[1] The accused was
convicted by the regional magistrate, Bloemfontein following a guilty
plea in terms of section 112 (2) of the
Criminal Procedure Act 51 of
1977 (“The Act”) on a charge of attempted rape. The
charge was brought in terms of section
55 of Sexual Offences and
Related Matters Amendment Act 32 of 2007.
[2] The charge sheet
alleged that provisions of section 51 (1) of the Criminal Law
Amendment Act 105 of 1997 (“
The CLAA
”) were
applicable and having found that there were substantial and
compelling reasons that justified a deviation from the
prescribed
minimum sentence of life imprisonment, the regional magistrate
sentenced the accused to fifteen (15) years imprisonment
in terms of
section 276 (1) (i) of the Act. Ancillary orders were also made
including declaring the accused unfit to possess a
firearm,
unsuitable to work with children and that his name be included in the
national register for sex offenders.
[3] The regional
magistrate has requested a special review of these proceedings. His
reasons in that regard are embodied in his
letter dated 14 March 2022
as follows:
“…
6. The
sentence imposed is the subject of this request for special review.
6.1. I
sentenced the accused to 15 years imprisonment, in terms of
Section
276
(1) (i) of the
Criminal Procedure Act 51 f
1977 (CPA). However a
close look at
Section 276A
(2) (b) of the said CPA, clearly shows
that the sentence is incompetent. In terms of
Section 276A
, a
sentence cannot be more than five (5) years if imposed in terms of
Section 276(1)(i).
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6.2. I
also refer the Honourable reviewing Judge to S v Slabbert 1998 (1)
SACR (A), which clearly shows that I misdirected
myself.
6.3.
Having had the privilege, albeit late, of studying the judgment of
Free State High Court in Lekeka v S ZAFSHC A13/2019
[2019], I concede
that the minimum sentences regime is also not applicable
(Section 51
of Act 105 of 1997)…”
[4] The sentence imposed
by the regional magistrate is erroneous in respect of its nature and
also the sentencing regime under which
it was imposed.
[5] Section 276A of the
Act specifically states that a sentence imposed in terms of section
276(1) (i) shall not exceed a period
of five (5) years imprisonment.
In this matter the accused was sentenced to fifteen (15) years
imprisonment.
[6]
In relation to sexual offences
perpetrated against children,
the mandatory minimum sentence
of life imprisonment
is applicable
to an offender who is convicted of an offence
listed in
Part
I of Schedule 2 of
section 51(1) of
the
CLAA namely, rape of a child under the age sixteen (16) years.
[7]
Attempted rape is not listed in
Part I of Schedule 2 therefore, it does not attract the minimum
sentence of life imprisonment as
contemplated in section
51(1). The regional magistrate erred in invoking the provisions of
section 51(1) when sentencing the accused.
The sentence is irregular
it cannot stand.
[8] The irregularity does
not vitiate the proceedings. It can be rectified by the imposition of
a competent sentence.
Order
[9]
In the circumstances I make the following order:
(1)
The conviction is confirmed.
(2)
The sentence is set aside and the
matter
is remitted to the magistrate to impose sentence afresh.
_____________
N.S.
DANISO, J
I
concur and it is so ordered.
_____________
L.
MPAMA, AJ