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[2014] ZAGPPHC 489
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Mathipa v S (A 244/2013) [2014] ZAGPPHC 489 (7 February 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case Number: A
244/2013
Date: 7 February
2014
Not reportable
Not of interest to
other judges
In the niatter of:
Williaml
Mathipa
................................................................................................................................
Appellant
Versus
State
JUDGMENT
Maumela J.
1. This is an appeal
where leave to appeal against sentence was granted by the Supreme
Court of Appeal. A sentence to life imprisonment
was imposed upon the
Appellant by the Honourable Justice Classen, on the 22
nd
of September 2004.
2. Before the
Regional court, sitting at Ellisras in Limpopo, the Appellant was
charged with the offence of Rape, read with the
provisions of Section
51 (2) of the Criminal Law Amendment Act 1997: (Act No: 105 Of 1997),
herein after referred to as the
Criminal Law Amendment Act.
3. The
allegations
were that upon or about the 5
th
of October 2003, and at or
near Phalala in the Regional Division of the then Northern Transvaal,
the accused did unlawfully and
intentionally have sexual intercourse
with a female person, to wit, M[...] M[...] L[...], then 10 years
old, without her consent.
Before the Regional Court, the Appellant
pleaded Guilty. To that end, he submitted a statement in terms of
Section 112 (2) of the
Criminal Procedure Act 1977: (Act No 51 of
1977), herein after referred to as the
Criminal Law Amendment Act.
>
4. In the
Section
112
(2) statement, the Appellant admitted all the elements in the
charge he was facing. He was convicted of Rape in contravention of
Section 51(2) of the Criminal Law Amendment Act 1997; (Act No 105 of
1997). In line with the relevant legislation, the Appellant’s
case was referred to the High Court for purposes of sentencing.
5.
From the record, it appears that the High Court did not assess the
evidence adduced before the court a
quo,
but
simply set out to impose the sentence mentioned above. However, the
case is before this court as an appeal against sentence
only. It is
also within the powers of this court to rectify the failure of the
High court to enquire into the correctness or otherwise
of the manner
in which the High Court came to confirm the conviction arrived at by
the Regional Court.
6. For the offence
in issue in this case, Section 51 (2) prescribes a minimum sentence
of not less than 15 years for a First offender.
The same section
prescribes terms of imprisionment for not less than 20 years, and 25
years for Secoipd, and Third offenders respectively.
7. At the time of
sentencing, the Appellant had previous convictions to his name:
(i). ll 1991. on the
20
th
of March, the Appellant was convicted on a charge of
Malicious Damage to Property. He was sentenced to undergo 3 (three)
months
imprisonment.
(ii). 1998, on the
6
th
of August, the Appellant was convicted on a charge of
Malicious Damage to Property. He was sentenced to pay a fine of R
300-00
(three hundred rand), or to undergo 3, (three) months
imprisonment.
(iii). In 1999, on
the 24
th
of March, the Appellant was convicted for an
offence of Indecent Assault in contravention of Section 23 of the
Sexual Offences
Act, No 23 of 1957. He was sentenced to undergo
60(sixty) months imprisonment.
(iv). In 2003, on
the 8
th
of April, the Appellant was convicted cf an
offence of Theft. He was sentenced to pay a fine of R 1 200-00, or to
undergo 6 months
imprisonment.
8. At the time he
was sentenced, the Appellant 29 years of age. He attended school up
to standard 5. Around the time of his arrest,
he was unemployed.
However, by the time he was sentenced, he had acquired a job from
2010 to 2011.
ORDER.
1. The appeal
against sentence succeeds.
2. The sentence to
life imprisonment, imposed upon the appellant by this High Court on
the 22
nd
of September 2004 is set aside and is substituted
by the following sentence:
The Appellant is
sentenced to undergo 18 (eighteen) years imprisonment, antedated to
the day of his sentence before the High Court.
TAMAUMELA J
JUDGE OF THE
HIGH COURT
I AGREE
H J FABRICIUS J
JUDGE OF THE HIGH
COURT
I AGREE
SWARTZ E AJ
JUDGE OF THE HIGH
COURT