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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

DATE: 23/6/2005

REVIEW CASE:

HIGH COURT REF.: 1364

MAGISTRATE'S SERIAL NO.: 07/2008 (Pretoria North)

CASE NO.: SH 2/6/2004

In the matter between

THE STATE

and

JEFFRY JACOB KEKANA

REVIEW JUDGMENT

RABIE J :

[1] The accused was convicted on a charge of rape on 31 May 2005 in the Regional Court of Pretoria North and sentenced on 3 June 2005 to 15 years imprisonment.

[2] Subsequent to the sentence, an application for leave to appeal was lodged. That application was struck off the roll for reasons unknown.

[3] By letter dated 28 January 2008 and received by the Registrar of this court on 6 August 2008 the presiding Magistrate submitted the case on special review to this court. Except for stating that she had been away from her workplace for quite a long time the Magistrate did not state why it had taken more than three years for her to send this matter on review

[4] Regarding the reason for sending this matter on review, the following three paragraphs in the letter of the magistrate are relevant.

"3 Personally I always had a problem insofar as the sentence was concerned.

4. Reading of my judgment on sentence will show that I erroneously regarded 15 years imprisonment as the threshold, whereas 10 years was the threshold (see the legislation on Minimum Sentences). As a result of this error I sentenced the accused to 15 years imprisonment, instead of 10 (ten) years imprisonment.

5. I even at some stage communicated this error to the Attorney who was involved during the trail.'

[5] I have studied the full record of proceedings before the magistrate. I am satisfied that the accused was correctly convicted, although not necessarily for the reasons given by the magistrate.

[6] As far as sentence is concerned Act 105 of 1997 was applicable and in respect of the conviction of the accused, a sentence of 10 years imprisonment was prescribed In this regard I should mention, however, that the complainant testified that the accused raped her more than once. If the court had found this to be so, the accused would have faced a sentence of life imprisonment. Yet, for some reason the presiding magistrate failed to address this issue. During her evidence the complainant was not questioned in order to establish the correctness of her evidence in this regard and neither was the accused confronted with these allegations The magistrate failed to address this issue during the trial and although she mentioned it as part of her summing up of the evidence of the complainant, she obviously failed to appreciate the import thereof since she made no further mention thereof in her judgment It is obvious that in these circumstances a sentence of life imprisonment could not be considered and that the sentence of 10 years imprisonment was the applicable prescribed sentence.

[7] The issue whether substantial and compelling circumstances existed which allowed for the imposition of a lesser sentence, was not directly addressed by the magistrate but in my view no such circumstances have been shown to exist.

[8] Although a court is not prevented from imposing a longer sentence than the one prescribed, it is clear from the magistrate's letter that in her view she would not have imposed a longer sentence than the prescribed sentence of 10 years imprisonment and that a sentence of 15 years imprisonment would, according to her, have been to harsh.

[9] The mere fact that the magistrate, as a result of a mistake, imposed a sentence which is longer than she would otherwise have imposed, means that an injustice has occurred which prima facie should be rectified

[10] 1 have considered (he issue of sentence with reference to the provisions of Act 105 of 1997 as well as those factors traditionally relevant to sentencing, and I am of the view that the prescribed sentence of 10 years imprisonment should have been imposed, but no more.

[11] In the result I am of the view that the conviction of the accused should be confirmed but that the sentence should be set aside and replaced by a sentence of 10 years imprisonment,

[12] I have referred this matter to the director of Public Prosecutions who concurred with my views expressed above I am indebted to the personnel of the Director of Public Prosecutions for their prompt and helpful response in this matter

[13] In the result the following order is made:

1. The conviction of the accused is confirmed:

2. The sentence of the accused is set aside and replaced with the following sentence the accused is sentenced to 10 (ten) years imprisonment".

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