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[2011] ZAFSHC 39
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De Sousa v S (P341/2010) [2011] ZAFSHC 39 (25 February 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: P341/2010
In the matter between:-
ALBERTO ABRAM DE
SOUSA
…............................................
Applicant
and
STATE
…...............................................................................
Respondent
_____________________________________________________
HEARD ON:
25 FEBRUARY 2011
_____________________________________________________
CORAM:
HANCKE et KRUGER, JJ
_____________________________________________________
JUDGMENT BY:
KRUGER, J
_____________________________________________________
DELIVERED ON:
25 FEBRUARY 2011
_____________________________________________________
[1] This is an
application for leave to appeal against the dismissal of applicant’s
petition under
section 309C
of the
Criminal Procedure Act 51 of 1977
by Hancke J and Claasen AJ. Because Claasen AJ is no longer acting as
a judge, Hancke J requested me to sit with him in this application.
[2] The applicant was
convicted and sentenced in the regional court. Leave to appeal was
refused by the regional magistrate, and
thereafter his petition was
turned down by this court. In order to obtain leave to approach the
Supreme Court of Appeal, the applicant
must ask this court for leave
to appeal against the dismissal of his petition (
KHOASASA v S
[2002] 4 All SA 635
(SCA) pars [19] – [22]).
[3] The applicant was
convicted on three counts:
(1) Indecent assault by
kissing the 7year old complainant on her lower stomach on several
occasions during 2005 - 2006;
(2) Indecent assault by
putting his penis in the complainant’s mouth on several
occasions from September to December 2007;
(3) Rape under the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007 (which came into operation on 16
December 2007) by putting
his penis in complaint’s mouth during the period January 2008
to December 2008, when complainant
was 9 and 10 years old.
[4] The applicant was
sentenced as follows:
Count 1: 5 years’
imprisonment
Count 2: 10 years’
imprisonment
Count 3: 15 years’
imprisonment.
The sentences were to run
concurrently, thus the effective term of imprisonment was 15 years.
[5] The complainant
testified when she was 12 years old, having been born on 9 February
1998. She testified through an intermediary.
There were discrepancies
in her evidence; she reported the incidents at a late stage; and
there was no objective corroboration
for her evidence. The magistrate
considered all these factors in his judgment, but in my view there
are reasonable prospects that
another court may come to a different
conclusion.
[6] As to sentence, the
acts alleged in counts 2 and 3 are the same. The only difference is
the expansion of the definition of “rape”
by virtue of
Act 32 of 2007. There are reasonable prospects that another court may
find that the coming into operation of Act 32
of 2007 does not, for a
series of events as happened in this case, warrant an increase from
10 years’ to 15 years’
imprisonment. Another court may
find that there were misdirections or that the effective sentence is
shockingly inappropriate.
[7] There are reasonable
prospects that another court can come to a different conclusion on
the convictions and the sentences.
[8] An appeal from an
order of two judges of this court cannot be heard by the full court,
and must be heard by the Supreme Court
of Appeal (see
S v
McMILLAN
2001 (1) SACR 148
(W) at 151j par [11] per Cloete
J).
[9] Leave is granted to
the applicant to appeal to the Supreme Court of Appeal against his
convictions and sentences.
______________
A KRUGER, J
I
concur.
______________
SPB HANCKE, J
On behalf of the
applicant: Adv. J. Nel
Instructed by:
EG Cooper Majiedt Inc.
BLOEMFONTEIN
On behalf of the
respondent: Adv. F. Pienaar Instructed by:
Director Public
Prosecutions
BLOEMFONTEIN
/wm