SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not Reportable
Case no: CA 27/2024
Regional Magistrates Case No: R/C62/2018
In the matter between:
BEN MOSIANE TSHWEU APPELLANT
and
THE STATE RESPONDENT
Coram: Hendricks JP and Petersen ADJP
Heard: 19 March 2026 (on the papers)
Delivered: This judgment was handed down electronically, circulated to the
parties’ representatives via email, uploaded to CaseLines, and released to
SAFLII. The date and time for the handing down of the judgment are deemed to
be 10h00 on 24 March 2026.
Summary: Criminal appeal — rape and housebreaking with intent to rape —
single witness — cautionary rule satisfied — appeal against conviction
dismissed — prescribed minimum sentence — s 51(1) of Criminal Law
Amendment Act 105 of 1997 — appeal against sentence dismissed —pre-
sentence detention to be brought to the attention of the Department of
Correctional Services by completion of Form J24.
_______________________________________________________________
ORDER
________________________________________________________________
On appeal from: Regional Court, Taung (Magistrate Bekker, sitting as court of
first instance).
1. The late filing of the appeal is condoned.
2. The appeal against conviction is dismissed.
3. The appeal against sentence is dismissed.
4. It is directed that the period of approximately six years and six months
spent by the appellant in c ustody awaiting trial shall be brought to the
attention of the Department of Correctional Services through the
completion and submission of Form J24, for consideration in the
computation of his sentence and any future parole eligibility
determinations.
________________________________________________________________
JUDGMENT
Petersen ADJP (Hendricks JP concurring):
Introduction
[1] This is an appeal against both conviction and sentence. The appellant, Mr
Ben Mosiane Tshweu (then 43 years old), appeared in the Regional Court,
Taung, on two counts: the first being housebreaking with intent to rape and
rape, and the second being rape, b oth arising from an incident that occurred on
27 May 2017 at Mamashokwane Village. He was legally represented
throughout the trial by Ms. De Klerk of Legal Aid South Africa. On
23 November 2023, the learned magistrate, Ms Bekker, convicted him on both
counts. On 11 December 2023, he was sentenced to life imprisonment, the
counts having been taken together for purposes of sentence. The appeal is with
the necessary leave. The matter comes before the present panel of judges since
the previous panel assigned by the Judge President regrettably failed to attend to
and deliver judgment timeously.
[2] The appellant’s notice of appeal, filed on 31 March 2025, raises several
grounds. In respect of conviction, it is argued that the court below erred in
finding that the State had proved its case beyond reasonable doubt; that it failed
to find that there was consent; that it failed to apply the cautionary rule to the
evidence of the complainant, who was a single witness; and that the appellant
did not receive a fair trial because of the more than six -year delay in finalising
the matter, due largely to the unavailability of the presiding officer. In respect of
sentence, it is contended that the sentence of life imprisonment is shockingly
inappropriate; that the court failed to take into account the appellant’s personal
circumstances as constituting substantial and compelling circumstances; and
that it failed to consider the six years the appellant spent in custody awaiting
trial.
[3] The respondent opposes the appeal. It submit s that the State proved its
case beyond a reasonable doubt; that the complainant’s ev idence was clear,
credible, and corroborated; and that there are no substantial and compelling
circumstances justifying a deviation from the prescribed minimum sentence.
Background facts
[4] The complainant, Ms. M[...] S[...] M[...], was 68 years old at the time of
the incident. She resided alone in a two -roomed house in Mamashokwane
Village, Taung. She knew the appellant by sight, as they stayed in the same
village, but had never had any conversation with him before the incident. The
complainant test ified that on the evening of 26 May 2017, she followed her
usual routine. She bathed, ate her meal, watched television, and at around 18h00
locked her doors and closed her curtains. She went to sleep. In the early hours
locked her doors and closed her curtains. She went to sleep. In the early hours
of 27 May 2017, at approximately 03h 00, she was awakened by a ‘ tsha’ sound
from the kitchen window. She lit a candle and went to investigate. She saw the
appellant, whom she recognised, having already entered through the broken
window. A struggle ensued. The appellant throttled her, bit her on the left ear,
and they fell against a bucket of water. When she was weak and struggling for
air, the appellant said: ‘ Old lady, go to the bed, I am going to have sexual
intercourse with you .’ He pushed her onto the bed. He attempted to penetrate
her but struggled due to what she described as her vagina having ‘ shrunk’
because of her age and long period of sexual inactivity. He demanded Vaseline,
which was next to her bed, applied it to her vagina, and penetrated her. He made
up and down movements and eja culated. He then lay next to her on the bed.
Later that morning, he penetrated her a second time.
[5] When the sun rose, the complainant told the appellant she wanted to fetch
water to bathe. She went outside and saw her cousin, Mr. J[...] O[...], at his
nearby home. She did not go to him immediately but waited until the appellant
left. She then went to Mr. O[...]’s house, knocked on the window, and reported
that the appellant had broken into her house and raped her.
[6] Mr. O[...] confirmed that the complainant arrived at his house early that
morning, around 06h00, and reported the incident. He contacted the police, who
attended the scene and found the appellant still at the complainant’s house. The
appellant was arrested.
[7] The complainant was examined at Taung Hospital by Dr. Molagi. The
J88 report (Exhibit A) revealed bite marks on the left ear with dried blood, and
abrasions on the right side of the jaw. Bleeding from the cervix was noted. DNA
evidence (Exhibit B) linked the a ppellant to a cannabis ‘stompie’ found at the
scene. Photographs of the crime scene (Exhibit C) depicted the broken window
and the bedroom where the incident occurred.
[8] The appellant’s version was that he was in a consensual sexual
relationship with th e complainant, which had commenced approximately five
days before the incident. He testified that he had visited her on 23, 25 , and
26 May 2017. On the 26 th, he arrived at 20h00, found her sitting on the stoep,
and they went inside and had consensual sexua l intercourse. He claimed that an
argument later arose about money, during which the complainant threw a cup
that broke the window. He denied breaking the window, denied throttling her,
that broke the window. He denied breaking the window, denied throttling her,
and denied biting her. He explained the injury to her ear as having oc curred
when she bumped against the wall while trying to grab him.
Evaluation of the evidence
[9] The approach of a court of appeal to factual findings by a trial court is
well established. A court of appeal will not readily interfere with findings of
fact made by a trial court, which had the advantage of observing witnesses and
assessing their demeanour. Interference is justified only where the trial court’s
findings are clearly wrong, or where it has misdirected itself on the facts.1
[10] The complainant was a single witness to the events constituting the rape.
Section 208 of the Criminal Procedure Act 51 of 1977 provides that an accused
may be convicted on the evidence of a single witness. However, our courts have
long emphasised that such evidence sho uld be approached with caution. The
trial court must be satisfied that the single witness is credible and that her
evidence is clear and satisfactory in every material respect.2
[11] The magistrate conducted a thorough evaluation of the complainant’s
evidence. She noted that the complainant was a frail, elderly woman; that she
gave her evidence in a clear and chronological manner; that she was steadfast
under cross-examination; that she did not contradict herself; and that she made a
favourable impression on the court. The magistrate also observed the
complainant’s demeanour when the suggestion of a secret love affair was put to
her. She was, in the magistrate’s words, ‘flabbergasted’, displaying ‘incredulity’
and ‘outrage’ that such a young man would make such a claim about an elder.
[12] The complainant’s evidence was co nsistent in several material respects.
Firstly, she went to Mr O[...]’s house at the first available opportunity and
reported the incident, and Mr O[...]’s evidence confirmed the timing and content
of this report. A first report, while not corroborative of the truth of the
allegation, is relevant to the credibility of the complainant. Secondly, the J88
report confirmed bite marks on her left ear and abrasions on her ja w, injuries
that were consistent with her account of being throttled and bitten. Thirdly, the
photographs (Exhibit C) depicted a broken window pane, consistent with her
evidence that the appellant gained entry by breaking the window. Fourthly, the
evidence that the appellant gained entry by breaking the window. Fourthly, the
appellant’s DNA was found on a cannabis ‘stompie’ at the scene, corroborating
his presence in the house, which he admitted, but also consistent with the
complainant’s evidence that he had smoked during the night. Fifthly, the
appellant was found at the complainant ’s house when the police arrived,
consistent with her evidence that he remained there until morning.
[13] The appellant’s version, by contrast, was fraught with difficulties. His
evidence was, as the magistrate observed, ‘quick’, ‘short’, and delivered wi th
what might be described as a ‘swagger’. He was evasive in cross -examination,
1R v Dhlumayo 1948 (2) SA 677 (A); S v Hadebe 1998 (1) SACR 422 (SCA).
2See S v Sauls 1981 (3) SA 172 (A); S v Stevens 2005 (1) SACR 394 (SCA).
frequently claiming not to understand questions that were perfectly clear. The
magistrate noted that he ‘gave himself away of being a very understanding
person and knows exactly what it is he is confronted with’.
[14] The appellant’s version that he was in a consensual sexual relationship
with the complainant was inherently improbable for several reasons. The age
disparity between them, with the complainant being 68 and the app ellant 43,
rendered the relationship improbable. The complainant was old enough to be his
mother, and while age disparity alone does not negate the possibility of a
relationship, when coupled with her emphatic denial and her demeanour, it
rendered his version highly improbable. Furthermore, the appellant claimed the
relationship was to be kept secret because of the complainant’s age, yet if the
relationship was consensual, there was no explanation for why the complainant
would immediately report the inciden t to Mr O[...]. This is not the conduct of
someone in a secret love affair. Regarding the broken window, on the
appellant’s version, it was broken accidentally by the complainant throwing a
cup, yet he claimed he left at 21h00 on the 26 th, and the compla inant only
reported the matter the following morning. It was highly improbable, as the
magistrate correctly found, that she would not have repaired or at least secured
the window if she had caused the damage herself. The appellant was also
initially vague and contradictory about the dates on which he allegedly visited
the complainant, mentioning 23, 24, 25 and 26 May with little consistency,
which reflected poorly on the reliability of his evidence.
[15] The magistrate, in her comprehensive judgment, appli ed the correct legal
principles. She considered the cautionary rule applicable to single witnesses.
She evaluated the credibility of both the complainant and the appellant. She
weighed the probabilities. She considered the totality of the evidence, includi ng
weighed the probabilities. She considered the totality of the evidence, includi ng
the corroborative features. She concluded that the State had proved its case
beyond reasonable doubt, and that the appellant’s version was not reasonably
possibly true.
[16] In my view, there is no basis to interfere with these findings. The
magistrate’s evaluation of the evidence was thorough and balanced. Her
credibility findings are supported by the record. The complainant’s evidence
was clear, consistent, and corroborated. The appellant’s version was inherently
improbable and rightly rejected.
The right to a fair trial and delay
[17] The appellant contends that he did not receive a fair trial because the
proceedings were delayed for more than six years, due largely to the
unavailability of the presiding officer. It is submitted that this violates h is right
to have his trial begin and conclude without unreasonable delay, as guaranteed
by s 35(3)(d) of the Constitution.
[18] The record reveals a troubling history of delays. The appellant was
arrested on 27 May 2017. His trial commenced on 25 July 2018. The matter was
finalised on 11 December 2023 , a period of approximately six years and six
months from arrest to sentence. The record reflects that the matter was
postponed on multiple occasions for various reasons, including transcription of
records due to the complainant’s age, unavailability of the presiding officer on
numerous occasions, unavailability of the prosecutor, unavailability of the
defence attorney, the COVID -19 pandemic and related lockdowns, load
shedding, and court congestion.
[19] Section 35(3)(d) of the Constitution guarantees every accused person the
right to have their trial begin and conclude without unreasonable delay. What
constitutes an unreasonable delay depends on the circumstances of each case,
including the complex ity of the matter, the conduct of the parties, and the
systemic challenges faced by the courts.3
[20] While the delay in this matter is regrettable, and while the record reflects
an unacceptable number of postponements due to the unavailability of the
presiding officer, it cannot be said that the appellant did not receive a fair trial.
The trial itself, when it proceeded, was conducted fairly. The appellant was
legally represented throughout. He had the opportunity to challenge the State’s
evidence and to present his own version. The delays, while extensive, did not
render the trial unfair. They are, however, a factor to be considered in the appeal
against sentence, to which I now turn.
Appeal against sentence
against sentence, to which I now turn.
Appeal against sentence
[21] The approach of a court of appeal to sentence is well established.
Interference is justified only where the trial court has misdirected itself, or
3S v Zitha [2017] ZAGPJHC 238; S v Mofokeng 2016 (2) SACR 12 (SCA).
where the sentence is so disproportionate or shocking that no reasonable court
could have imposed it.4
[22] The appellant was sentenced to life imprisonment. This sentence was
imposed in terms of s 51(1) of the Criminal Law Amendment Act 105 of 1997,
read with Part I of Schedule 2, on the basis that the complainant was raped more
than once. The magistrate corre ctly took Counts 1 and 2 together for purposes
of sentence, as the State had invoked s 51(1) on the basis of multiple rapes.
[23] The appellant’s personal circumstances, as placed before the court below,
are as follows. He was 49 years old at the time of sentence. He is the father of
two children, aged 16 and 9 years, from different mothers, both of whom are
unemployed and rely on social grants for the children. He is unmarried. He
never attended school and is illiterate. Before his arrest, he was employed as a
general worker on a farm, earning R1 800 per month plus groceries. He
contributed R250 per month to each child’s upbringing. He has one previous
conviction from 1999 for use of a motor vehicle without the owner’s consent,
which the magistrate correctly treated as having lapsed for purposes of sentence,
rendering him a first offender for the purposes of these offences. He spent
approximately six years and six months in custody awaiting trial.
[24] The magistrate considered these circumstances but conc luded that they
did not constitute substantial and compelling circumstances justifying a
deviation from the prescribed minimum sentence. She referred to the principles
enunciated in S v Malgas 5 and S v Vilakazi 6, and held that the personal
circumstances of the offender recede into the background when the crime is
serious.
[25] The question for this court is whether the magistrate misdirected herself
in reaching that conclusion. In S v Malgas , the Supreme Court of Appeal
emphasised that the prescribed minimum sentences should not be departed from
emphasised that the prescribed minimum sentences should not be departed from
lightly or for flimsy reasons. The court also recognised that a departure is
justified only if the prescribed sentence would be unjust or disproportionate to
the offence and the offender, and that the enquiry is w hether there are ‘truly
convincing reasons’ for a different response.7
4See S v Malgas 2001 (1) SACR 469 (SCA); S v Kgosimore 1999 (2) SACR 238 (SCA).
5S v Malgas 2001 (1) SACR 469 (SCA).
6S v Vilakazi 2009 (1) SACR 552 (SCA).
7S v Malgas above fn 4 para 25.
[26] The appellant’s personal circumstances, while worthy of consideration,
are not uncommon in cases of this nature. Many offenders who appear before
our courts are unemployed, have limited education, and have children who
depend on them. As the court in S v Vilakazi observed, in cases of serious crime,
the personal circumstances of the offender by themselves will necessarily
recede into the background. Once it becomes clear that the crime is deserving of
a substantial period of imprisonment, the questions whether the accused is
married or single, whether he has children, whether or not he is employed, are
in themselves largely immaterial to what that period should be. 8 These are
precisely the kind of flimsy grounds that Malgas warned against.
[27] The period of pre-sentence detention requires more careful consideration.
The appellant spent approximately six years and six months in custody awaiting
trial. The appellant’s pre -trial det ention, while substantial, is not so
disproportionate as to render a life sentence unjust. A lengthy period of pre -
sentence detention, even where not attributable to the accused, does not
necessarily constitute a substantial and compelling circumstance whe n balanced
against the gravity of the offence and the interests of society. The purpose of the
minimum sentencing legislation is to ensure that serious crimes are met with
severe sentences, and the fact that an accused has been in custody for a long
period awaiting trial does not automatically undermine that purpose. In Loyiso
Ludidi and Others v S9 this very question engaged the Supreme Court of Appeal
which identified the question and answer thereto, succinctly as follows:
‘[1] Does the time an accused person has spent as an ‘awaiting trial prisoner’
constitute substantial and compelling circumstances when a statutorily ordained
sentence of life imprisonment has been imposed? That is the question to be answered
in this appeal. The We stern Cape Division of the High Court (the high court) found
in this appeal. The We stern Cape Division of the High Court (the high court) found
that it did not, but granted leave to appeal to this Court.
…
[7] When sentencing finally took place, the accused had been in custody for a period
of five years and eight months…
…
[11] Courts have considered whether the length of time spent in custody as an
‘awaiting trial’ prisoner is a substantial and compelling circumst ance warranting the
8S v Vilakazi above fn 6 para 58.
9 Loyiso Ludidi and Others v S (983/2022; 056/2024) [2024] ZASCA 162; 2025 (1) SACR 225 ( SCA) (29
November 2024); S v Brophy and Another 2007 (2) SACR 56 (W) paras 16 -19.Radebe and Another v S [2013]
ZASCA 31; 2013 (2) SACR 165 (SCA) paras 13-14; Director of Public Prosecutions North Gauteng: Pretoria
v Gcwala and Others [2014] ZASCA 44; 2014 (2) SACR 337 (SCA) paras 26-30.
imposition of a lesser sentence. In 2007 the full court of the Gauteng Division of the
High Court, Johannesburg in S v Brophy and Another , reduced finite sentences on the
basis that the time spent in custody while awaiting trial was a s ubstantial and
compelling circumstance. Following a Canadian decision of Gravino (70/71) 13 Crim
LQ 434 (Quebec Court of Appeal), the full court held that the period spent in custody
pre-sentencing was equivalent to a sentence twice that length. This was because of the
harsh conditions that awaiting trial prisoners were subjected to, in comparison to
convicted prisoners. The court then reduced the sentences by subtracting the time
spent in prison awaiting trial by each appellant and multiplying it by two.
[12] This approach was rejected by this Court in Radebe and Another v S which
criticised the application of any mechanical formula. Rather, the time spent in custody
awaiting trial is one of the factors to consider when determining whether there is
justification for a lesser sentence than the prescribed minimum sentence. The
circumstances of each case should be assessed on its own merits. Similar ly
in Director of Public Prosecutions North Gauteng: Pretoria v Gcwala and
Others, this Court held that the trial court misdirected itself by applying the formulas
and increased the sentences of imprisonment accordingly.
[13] It is now trite law that in r espect of finite sentences there is no hard and fast rule
as to the weight to be afforded to pre -sentencing incarceration. It is but one of the
factors to take into consideration when determining the existence of substantial and
compelling circumstances. In addition, a sentencing court should take into account the
reasons for the prolonged period of detention prior to sentencing.
[14] In S v Solomon and Others ,10 commenting on the effect of lengthy pre -
sentencing incarcerations on life imprisonment, Ro gers J endorsed the view of
sentencing incarcerations on life imprisonment, Ro gers J endorsed the view of
Goosen J, as he was then, in S v Kammies.11 The conceptual difficulty with a sentence
that has no determinate maximum period was acknowledged. A court cannot approach
a life sentence as anything other than a sentence which is im posed for the rest of that
person’s life. It cannot be ‘reduced’ by the period spent in custody awaiting trial and it
would be improper for a court to take into the account the possibility of
parole. Goosen J
suggested that the most appropriate course of conduct would be to antedate the
sentence. In Solomon, the court held that life imprisonment means a sentence which
extends for as long as that person is alive. Absent the prospect of parole, a person
‘would not have been released sooner on the h ypothesis of no interval between arrest
and sentencing’.
[15] This Court, in dealing with a sentence of life imprisonment in Ncgobo v
S12, confirmed that the period spent in custody before conviction and sentencing is
not, on its own, a substantial and compelling circumstance. It is merely a factor in
10 S v Solomon and Others [2020] ZAWCHC 118; 2021 (1) SACR 533 (WCC) para 24.
11 S v Kammies 2019 JDR 2600 (ECP) para 38.
12 Ncgobo v S [2018] ZASCA 6; 2018 (1) SACR 479 (SCA) para 7.
determining whether the sentence imposed is disproportionate and unjust. It was held
that the two years spent in custody would make a minimal impact on a sentence of life
imprisonment and did not render the sentence shockingly disproportionate.
[16] Here, the period spent in custody of five years and eight months was indeed a
long one. There were inordinate delays. The high court requested the parties to
address the reason for the delay at the commenceme nt of the sentencing procedures.
The high court concluded that the delays were largely attributable to the appellants
and their legal representatives. Initially the appellants launched a protracted and
unsuccessful bail appeal with a result that the first pre-trial conference in the high
court was more than two years after their arrest. The pre-trial procedures were unduly
delayed due to ‘serial non -attendances’ by the legal representative who represented
Mr Ludidi and Mr Chwayi. When the matter had been in pre-trial management for
two years in the high court, the judge case -managing the trial refused to certify it
ready for trial until the legal representative made an appearance at court. It was then
set down for trial six months later on 3 August 2021. The reafter, it seemed that apart
from the disruptions due to COVID, the trial ran relatively smoothly until completion
on 22 February 2022. A lengthy and comprehensive judgment was delivered on 18 -19
May 2022. It appears that had they wished to do so, the app ellants and their legal
representatives could have considerably shortened the period they spent awaiting trial.
[17] If one turns to the offences for which the appellants were convicted, these were
heinous. They were hired assassins willing to murder wh oever was identified if they
were paid for the deed. There is nothing disproportionate about their sentences of life
imprisonment. Regarding the period in custody as awaiting trial prisoners, unless this
imprisonment. Regarding the period in custody as awaiting trial prisoners, unless this
is an exceptionally long period of time to which the conduct of the accused persons
has not materially contributed, this in my view, can never in and of itself, be a
substantial and compelling circumstance where life imprisonment is imposed. The
role of courts is to ensure that any sentence passed is a fair one having regard to the
crime committed and the individual circumstances of the accused.
[18] The high court did not misdirect itself when it found that the lengthy pre -
sentencing incarceration period did not amount to substantial and compelling
circumstances justifying a deviation from the prescribed minimum sentence of life
imprisonment.’
[28] However, the weight to be attached to pre -sentence detention must be
assessed in the context of the particular case. In matters where the prescribed
minimum sentence is life imprisonment, the question is whether the period of
pre-sentence detention, considered together with other factors, renders the
prescribed sentence unjust or disproportionate. The appellant’s six year period
of detention is substantial, bu t it must be measured against the gravity of the
offences for which he was convicted.
[29] The offences committed by the appellant were of the most serious kind.
He broke into the home of a 68 -year-old woman in the dead of night. He
assaulted her, throttled her, bit her on the ear, and raped her not once but twice.
The complainant was entitled to feel safe in her own home, a place of sanctuary
and security. The appellant violated that sanctuary in the most profound and
degrading manner. The injuries she su stained, both physical and psychological,
were significant. The fact that the complainant has since passed away, as noted
by the prosecutor during sentencing proceedings, adds a further dimension of
tragedy to this matter, as she did not live to see the finalisation of the case.
[30] In these circumstances, the period of pre -sentence detention, while
substantial, does not render the sentence of life imprisonment unjust or
disproportionate. The magistrate was correct in her assessment that the
appellant’s personal circumstances, including the time spent in custody awaiting
trial, do not constitute substantial and compelling circumstances justifying a
departure from the prescribed minimum sentence. The sentence of life
imprisonment is a fitting r esponse to the grave crimes committed by the
appellant.
[31] This does not mean that the period of pre -sentence detention should be
disregarded. On the contrary, it is a factor that must be taken into account in the
administration of the sentence. The Dep artment of Correctional Services has
administrative mechanisms to ensure that time spent in custody awaiting trial is
considered in the computation of sentences and in determining parole eligibility.
Form J24 is the prescribed instrument for bringing such periods to the attention
of the Department. It is appropriate that this court direct that the appellant’s
lengthy period of pre -sentence detention be brought to the attention of the
Department of Correctional Services through the completion and submission of
Department of Correctional Services through the completion and submission of
Form J24, so that it may be given due consideration in accordance with the
applicable policies and regulations.
[32] Form J24 is ordinarily used to ensure that periods of pre -sentence
detention are properly recorded and considered by the correctional authorities. It
is a mechanism that gives practical effect to the principle that time spent in
custody awaiting trial is relevant to the overall period of incarceration that an
offender will serve. While it does not affect the lawfulness or appropriateness of
the sentence imposed, it ensures that the administrative authorities are fully
informed of all relevant facts when making decisions regarding the
implementation of the sentence.
Conclusion
[33] The conviction is sound and must stand. The State proved its case beyond
reasonable doubt, and the magistrate’s evaluation of the evidence was thorough
and correct. The sentence of life imprisonment, while severe, is neither
disproportionate nor shocking. It is the sentence prescribed by law for th e
serious offences committed by the appellant, and there are no substantial and
compelling circumstances justifying a departure from that prescribed sentence.
[34] The lengthy period of pre -sentence detention, while not justifying
interference with the se ntence, must be brought to the attention of the
Department of Correctional Services for consideration in the administration of
the sentence. An appropriate direction to this effect is included in the order
below.
Order
[35] In the result, the following order is made:
1. The late filing of the appeal is condoned.
2. The appeal against conviction is dismissed.
3. The appeal against sentence is dismissed.
4. It is directed that the period of approximately six years and six
months spent by the appellant in custody awaiting trial shall be brought to
the attention of the Department of Correctional Services through the
completion and submission of Form J24, for consideration in the
computation of his sentence and any future parole eligibility
determinations.
_______________________________
A H PETERSEN
ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT OF
SOUTH AFRICA
NORTH WEST DIVISION
MAHIKENG
I agree.
___________________________________________
R D HENDRICKS
JUDGE PRESIDENT OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION
MAHIKENG
Appearances
For the appellant: Mr R K Thuwe
Instructed by: Legal Aid South Africa,
Mahikeng Local Office
For the respondent: Adv N S Mabale
Instructed by: The Director of Public Prosecutions,
North West Province