Republic of South Africa

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE No: A 180/2010

In the matter of

and

JUDGMENT DELIVERED : 19 AUGUST 2010
Matter heard on 28 July 2010 
Coram: Louw, Moosa et Steyn, J J 
For Appellant        : Adv P J Burgers

For Respondent     : Adv A Y Allchin

Judgment delivered by MOOSA, J

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE No: A 180/2010

In the matter of

and

JUDGMENT DELIVERED : 19 AUGUST 2010

MOOSA, J:

[1] On 21 March 2000 the appellant was convicted on a charge of rape in the Regional Court held at Caledon. He was convicted together with two other accused. The proceedings in the Regional Court were stopped in terms of section 52 (1) of the Criminal Law Amendment Act, No 105 of 1997 ("the Act") and referred to the High Court for the purpose of sentence. The complainant was raped by more than one person with a common purpose. In terms of section 51 of the Act, the appellant and his co-accused qualified for life imprisonment in the absence of substantial and compelling circumstances.

[3] It is common cause that the charge sheet does not reflect that the charge fell under the aegis of the Act. There is no indication from the record at the commencement of the trial or during the course of the trial in the Regional Court, that the charge resorted under the provisions of the Act. It is only after the appellant and his co-accused were convicted that the Regional Magistrate indicated that the sentence he is required to impose for the offence exceeds his sentencing jurisdiction and he is obliged to refer the matter to the High Court for purpose of sentence.

". . . where the State intends to rely upon the sentencing regime created by the Act a fair trial will generally demand that its intention pertinently be brought to the attention of the accused at the outset of the trial, if not in the charge-sheet then in some other form, so that the accused is placed in a position to appreciate properly in good time the charge that he faces as well as its possible consequences. Whether, or in what circumstances, it might suffice if it is brought to the attention of the accused only during the course of the trial is not necessary to decide in the present case. It is sufficient to say that what will at least be required is that the accused be given sufficient notice of the State's intention to enable him to conduct his defence properly."

are".

[9] I must, however, hasten to point out that, where a court has found that substantial and compelling circumstances exist to deviate from the prescribed minimum sentence, then, in that event, the trial would not have been unfair despite the fact that the provisions of the Act have not been brought to the attention of the accused. The rationale for that proposition is to be found in the fact that the accused would have suffered no prejudice as the court found that there were substantial and compelling circumstances to depart from the minimum prescribed sentence.

[11] In view of the conclusion I have reached, I am of the view that there are substantial and compelling circumstances to deviate from the prescribed minimum sentence of life imprisonment and this court is entitled to sentence the appellant afresh. In doing so, I take into consideration the personal circumstances of the appellant: Firstly, the appellant was a youthful offender at the time of the commission of the offence. It appears that he was 22 years old at the time. He was 23 years old when he was convicted and 25 years old when he was sentenced. Secondly, he is a first offender and there is no evidence that the offence was premeditated. Thirdly, he passed standard 7, was in productive employment as a tractor driver on a farm and supported three children who were dependent on him. Fourthly, he was an awaiting-trial prisoner for two years.

[14] Taking into consideration all the circumstances and factors pertaining to sentence, including but not limited to the seriousness of the offence, the interests of the community, the personal circumstances of the appellant, the fact that the appellant was in custody as an awaiting-trial prisoner in this matter for approximately two years and the various sentencing options open to the court, I am of the view that an appropriate sentence would be one of 16 years imprisonment. In the circumstances the appeal against the sentence in respect of the appellant should succeed and the sentence of life imprisonment should be substituted by one of 16 (sixteen) years imprisonment.

E MOOSA

STEYN, J: I agree.

										

LOUW, J: I agree and it is so ordered.