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South Africa: Free State High Court, Bloemfontein
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2004
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[2004] ZAFSHC 21
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Mokhotho v S [2004] ZAFSHC 21 (25 March 2004)
IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No.: 17/2003
In
the case between:
JACK
MOLAHLEI MOKHOTHO
Applicant
and
THE
STATE
Respondent
___________________________________________________________
CORAM:
MUSI,
J
___________________________________________________________
HEARD
ON:
5 MARCH 2004
___________________________________________________________
DELIVERED
ON:
25 MARCH 2004
___________________________________________________________
This is an application for leave to appeal. The
applicant was convicted of rape by the Regional Court, Bloemfontein
and the case
was then referred to this Court for sentence in terms of
section 52 of the Criminal Law Amendment Act, No.105 of 1977, by
virtue
of the fact that the applicant had raped the complainant
twice. The matter came before me on 13 December 2002. The applicant
was
legally represented and his counsel conceded that the conviction
was in order. That was also my view and that of the counsel for
the
State and I formally confirmed the conviction and proceeded to
consider sentence.
All the factors relative to sentencing were canvassed
and these appear in my judgment on sentence. I found that there were
substantial
and compelling circumstances justifying the imposition of
a lesser sentence than the prescribed minimum of life imprisonment.
I
considered that 20 years imprisonment would, in the circumstances
of this case, be an appropriate sentence and I duly imposed that.
The application herein was heard on 5 March 2004, but I
reserved judgment purely in order to have a look at a case that was
cited
by Ms Wright who appeared for the applicant. This is
S
v DZUKUDA AND OTHERS
;
S
v TSHILO
2000 (4) SA 1078
(CC)
in which the Constitutional Court overruled a judgment of the
Witwatersrand Local Division in declaring section 52 of the Criminal
Law Amendment Act as being unconstitutional.
Ms Wright referred to this case in response to the
submission made by counsel for the State, Ms Bester, to the effect
that the conviction
herein could no longer be revisited or challenged
as it was conceded prior to sentencing. Ms Wright pointed out,
correctly in my
view, that I was not acting as a Court of Appeal when
I confirmed the conviction. The applicant is within his rights to
seek leave
to appeal against the conviction as well.
The
application for leave to appeal against the conviction is based
solely on the ground that the conviction was based on the testimony
of a single witness and Ms Wright contended that this issue was not
raised previously and for that reason the application should
be
granted. She cited
S v SITEBE
1962 (1) SA 745
(T)
. It is true that on the
rape itself the complainant was a single witness, but there were
other witnesses whose testimony provided
corroboration in the form of
circumstantial evidence. The contention that the learned Magistrate
did not consider the fact that
the complainant was a single witness
is not supported by the record, and in confirming the conviction I
was fully aware of that.
In my view, the evidence against the
applicant was in fact overwhelming and that is why the conviction was
conceded when the matter
came up for sentencing.
In my view, there are no reasonable prospects of success
on appeal in respect of both the conviction and sentence. The
application
is dismissed.
_____________
H.M.
MUSI, J
On behalf of Applicant:
Adv.
G.J.M. Wright
instructed by
Legal
Aid Board
On behalf of Respondent:
Adv.
A. Bester
instructed by
Director:
Public Prosecutions
/scd