NOT REPORTABLE
i Peay V\
r\ - 42 “if
NON \ 7 Weed
LG er
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
CASE NO: CA&R23/23
In the matter between:
VISAGIE, PATRICK ELRICO Appellant
and
THE STATE Respondent
Neutral citation: Visagie v The State (Case No: CA&R23/23) (31 January 2025)
Coram: Williams J et Nxumalo J
Heard: 04 March 2024
Delivered: 31 January 2025
Summary: Automatic appeal — Criminal Procedure Act 51 of 1977 — prescribed
minimum sentence — Criminal Law Amendment Act 105 of 1997 — no substantial
and compelling circumstances — life imprisonment confirmed—appeal dismissed.
Page 2
ORDER
1. The appeal is dismissed.
JUDGMENT
Per: Nxumalo J (Williams J concurring)
INTRODUCTION:
[1] This is an automatic appeal in terms of Section 309(1)(a) of the CRIMINAL
PROCEDURE ACT 51 of 1977 (‘the CPA”) against two concurrent life
sentences pertaining to the appellant's convictions on two counts of rape
(counts 1 and 4) contra Section 51(1) of the CRIMINAL LAW
AMENDMENT ACT 105 of 1997.1 The impugned sentences were meted
against the appellant by the Kimberley Regional Magistrate Court on
08 April 2019 after pleading guilty to the said counts in addition to others.
The latter Section grants Regional and High Courts discretionary powers to
sentence persons convicted of offences referred to in Part | of Schedule 2
to imprisonment for life. The former, for its own part, expressly permits a
person sentenced to imprisonment for life by a Regional Court, under
Section 51(1) of Act 105 of 1997, to note an appeal without having to apply
for leave in terms of Section 309B of the CPA.
[2] One of the serious offences referred to in Part 1 of Schedule 2 of Act 105
of 1997 is rape, as contemplated in Section 3 of the CRIMINAL LAW
(SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT ACT
' Act 105 of 1997
Page 3
32 of 2007,? inter alia when committed: (a) in circumstances where the
victim was raped more than once, whether by the accused or by a co-
perpetrator or accomplice; or (b) by more than one person, where such
persons acted in the execution or furtherance of a common purpose or
conspiracy.
Ground of Appeal:
[3] The appellant's sole ground of appeal is that the Court a quo erred in not
finding substantial and compelling circumstances to exist to deviate from
the prescribed minimum sentences of imprisonment for life.
[4] Section 51(3)(a) of Act 105 of 1997, clearly limits the Courts’ discretion to
impose lesser sentences than the sentences prescribed only to those
instances where it is satisfied that substantial and compelling
circumstances exist. Thus, where prescribed sentences are imposed or
departed from, the approach on appeal is whether the facts that were
considered by the sentencing Court are indeed substantial and compelling
or not.$
Brief overview of the salient facts:
[5] The appellant, a 25-year-old male person who resided in Barkly West Road,
Kimberley, handed up two Section 112(2) of the CPA statements on which
he pleaded guilty with regard to both counts, in the Court a quo.4 This
Section expressly provides that if an accused or his legal advisor hands a
written statement by the accused into Court in which the accused sets out
the facts which he admits and on which he has pleaded guilty, the Court
2 Act 32 of 2007
3 § v PB 2013 (2) SACR 533 (SCA) para 20.
* See Exhibits A and D, pp102-104; pp121-123, of the Record.