Aphane v S (A344/2017) [2018] ZAGPPHC 556 (3 August 2018)

Aphane v S (A344/2017) [2018] ZAGPPHC 556 (3 August 2018)

The court held that the Magistrate erred by imposing a non-parole period without affording the parties an opportunity to address the court, and that the period fixed exceeded the statutory maximum allowed by section 276B(1)(b) of the Criminal Procedure Act. Given the seriousness of the offence and the need for proper procedure, the appropriate remedy is to remit the matter to the trial court for both parties to make representations on the desirability of a non-parole order. The appeal is upheld, the non-parole order is set aside, and the matter is remitted for reconsideration.

Citation
[2018] ZAGPPHC 556
Parties
Appellant: Obed Aphane; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
3 August 2018
Case Number
A344/2017
Procedural Posture
Criminal Appeal / Appeal Against Sentencing Order (non Parole Period)
Outcome
Appeal upheld; non-parole order set aside; matter remitted to trial court for reconsideration.
Judges
A Millar, DS Molefe
Legal Topics
Sentencing, Non Parole Period, Criminal Procedure Act, Rape of Minor, Remittal for Reconsideration
Criminal Law Civil Procedure Sentencing Non Parole Period Criminal Procedure Act Rape of Minor Remittal for Reconsideration

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 5 Party arguments 2
Sign in to unlock

Parties

Obed Aphane

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentencing Order (non Parole Period)

Legal Issues

  1. 1 Whether the Magistrate erred in fixing a non-parole period without affording the parties an opportunity to address the court.
  2. 2 Whether the non-parole period imposed exceeded the statutory maximum prescribed by section 276B(1)(b) of the Criminal Procedure Act.
  3. 3 Whether the non-parole period should be set aside or the matter remitted for proper consideration.

Ratio Decidendi

The court held that the Magistrate erred by imposing a non-parole period without affording the parties an opportunity to address the court, and that the period fixed exceeded the statutory maximum allowed by section 276B(1)(b) of the Criminal Procedure Act. Given the seriousness of the offence and the need for proper procedure, the appropriate remedy is to remit the matter to the trial court for both parties to make representations on the desirability of a non-parole order. The appeal is upheld, the non-parole order is set aside, and the matter is remitted for reconsideration.

Court Disposition

Appeal upheld; non-parole order set aside; matter remitted to trial court for reconsideration.

Orders

  • The appeal is upheld.
  • The order of the court a quo in terms of section 276B of the Criminal Procedure Act 51 of 1977 is set aside.