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[2014] ZAGPPHC 224
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Maseko v S (A723/2013) [2014] ZAGPPHC 224 (15 April 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
Number: A723/2013
Date:
15 April 2014
Not
Reportable
Not
of interest to other judges
In
the matter between:
SBUSISO
MASEKO
..............................................................................................
APPELLANT
vs
THE
STATE
......................................................................................................
RESPONDENT
Coram:
RAULINGA J AND BOFILATOS AJ
JUDGMENT
BOFILATOS
AJ
INTRODUCTION:
[1]
The Appellant applied for leave to appeal from the trail court in
respect of a conviction on a charge of rape as well as the
sentence
of 18 years imprisonment. Both the conviction and sentencing occurred
on 29
th
November 2011. Leave was granted only in respect
of his sentence.
FACTUAL
BACKGROUD:
[2]
The Appellant was
charged
with a
single
count
of rape and, although the trial court found that the Appellant had
intercourse with the complainant twice on the evening in
question,
was convicted "
AS CHARGED
".
This much appears from page 73 of the record. The Appellant was
sentenced to 18 years imprisonment. The State proved no
previous
convictions against the Appellant.
DISCRETIONARY
MINIMUM SENTENCE:
[3]
Rape is an offence under Part III of
Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
. In terms of
section 51
(2)(b)(i) of the said Act:
"Notwithstanding
any other law but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person
it has convicted of an
offence referred to in
-
(a)...........
(b)
Part III
of Schedule 2, in the case of-
(i)
a first offender, to imprisonment for a period not less than 10
years; "
Section
51(2)
of Act 105 of 1997 also provides as follows.
"Provided
that the maximum term of imprisonment that a regional court may
impose in terms of this subsection shall not exceed
the minimum term
of imprisonment that it must impose in terms of this subsection by
more than 5 years."
[4]
It would appear as though the trial
court, by imposing an 18 year imprisonment sentence, was incorrectly
applying the sentencing
provisions provided for in S 51 (1) read with
the offences provided for in Part 1 of Schedule 2 of the Act. The
sentence which
ought to have been imposed, was one of not more the 15
years imprisonment. This much was, correctly, conceded by the State.
The
following order is made:
1.
The Appeal on sentence succeeds;
2.
The sentence of the Court a quo is set
aside and replaced by the following:
Count
1: 15 years imprisonment.
3.
The sentence is ante-dated to 29
th
November 2011.
SIGNED
AT PRETORIA ON THIS DAY OF APRIL 2014.
BOFILATOS
AJ
Acting
Judge of the High Court
I
agree
RAULINGA:
J
Judge
of the High Court
Appearances:
For
Appellant: Adv.: L A Van Wyk
Instructed
by: Legal Aid SA
For
Respondent: Adv.: Mosethla
Instructed
by: The Director of Public Prosecutions