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IN THE HIGH COURT OF SOUTH AFRICA

(NORTH GAUTENG HIGH COURT)

Case Number: A723/2013

Date: 15 April 2014

Not Reportable

Not of interest to other judges

In the matter between:

SBUSISO MASEKO..............................................................................................APPELLANT

vs

THE STATE......................................................................................................RESPONDENT

Coram: RAULINGA J AND BOFILATOS AJ

JUDGMENT

BOFILATOS AJ

INTRODUCTION:

[1] The Appellant applied for leave to appeal from the trail court in respect of a conviction on a charge of rape as well as the sentence of 18 years imprisonment. Both the conviction and sentencing occurred on 29^th November 2011. Leave was granted only in respect of his sentence.

FACTUAL BACKGROUD:

[2] The Appellant was charged with a single count of rape and, although the trial court found that the Appellant had intercourse with the complainant twice on the evening in question, was convicted "AS CHARGED". This much appears from page 73 of the record. The Appellant was sentenced to 18 years imprisonment. The State proved no previous convictions against the Appellant.

DISCRETIONARY MINIMUM SENTENCE:

[3] Rape is an offence under Part III of Schedule 2 of the Criminal Law Amendment Act 105 of 1997. In terms of section 51 (2)(b)(i) of the said Act:

"Notwithstanding any other law but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person it has convicted of an offence referred to in­-

(a)...........

(b) Part III of Schedule 2, in the case of-

(i) a first offender, to imprisonment for a period not less than 10 years; "

Section 51(2) of Act 105 of 1997 also provides as follows.

"Provided that the maximum term of imprisonment that a regional court may impose in terms of this subsection shall not exceed the minimum term of imprisonment that it must impose in terms of this subsection by more than 5 years."

[4] It would appear as though the trial court, by imposing an 18 year imprisonment sentence, was incorrectly applying the sentencing provisions provided for in S 51 (1) read with the offences provided for in Part 1 of Schedule 2 of the Act. The sentence which ought to have been imposed, was one of not more the 15 years imprisonment. This much was, correctly, conceded by the State.

The following order is made:

1. The Appeal on sentence succeeds;

2. The sentence of the Court a quo is set aside and replaced by the following:

Count 1: 15 years imprisonment.

3. The sentence is ante-dated to 29^th November 2011.

SIGNED AT PRETORIA ON THIS DAY OF APRIL 2014.

BOFILATOS AJ

Acting Judge of the High Court

I agree

RAULINGA: J

Judge of the High Court

Appearances:

For Appellant: Adv.: L A Van Wyk

Instructed by: Legal Aid SA

For Respondent: Adv.: Mosethla

Instructed by: The Director of Public Prosecutions

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