Bopape v S (A287/2015) [2016] ZAGPJHC 56 (17 March 2016)

Bopape v S (A287/2015) [2016] ZAGPJHC 56 (17 March 2016)

The magistrate misdirected himself by finding the appellant guilty of attempted rape on count 1 despite clear and corroborated evidence of penetration. Both complainants provided consistent accounts, supported by medical evidence and identification of the appellant. The appellant's silence in the face of incriminating evidence contributed to the acceptance of the complainants' version. The court substituted the conviction on count 1 from attempted rape to rape. On count 3, the conviction for rape was upheld as the evidence was clear and corroborated. No substantial or compelling circumstances were found to justify a lesser sentence than life imprisonment for either count, especially...

Citation
[2016] ZAGPJHC 56
Parties
Appellant: John Malesela Bopape; Respondent: The State
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
17 March 2016
Case Number
A287/2015
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal against conviction and sentence on count 3 dismissed; conviction on count 1 substituted from attempted rape to rape; both life sentences to run concurrently.
Judges
Satchwell, Mokoena
Legal Topics
Rape of Minors, Minimum Sentencing, Appeal Procedure, Misdirection, Identification Evidence
Criminal Law Rape of Minors Minimum Sentencing Appeal Procedure Misdirection Identification Evidence

Case Brief

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Parties

John Malesela Bopape

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the appellant was correctly convicted of attempted rape on count 1 or should have been convicted of rape.
  2. 2 Whether the conviction and sentence on count 3 (rape) should be upheld.
  3. 3 Whether there were substantial and compelling circumstances justifying a lesser sentence than life imprisonment.

Ratio Decidendi

The magistrate misdirected himself by finding the appellant guilty of attempted rape on count 1 despite clear and corroborated evidence of penetration. Both complainants provided consistent accounts, supported by medical evidence and identification of the appellant. The appellant's silence in the face of incriminating evidence contributed to the acceptance of the complainants' version. The court substituted the conviction on count 1 from attempted rape to rape. On count 3, the conviction for rape was upheld as the evidence was clear and corroborated. No substantial or compelling circumstances were found to justify a lesser sentence than life imprisonment for either count, especially...

Court Disposition

Appeal against conviction and sentence on count 3 dismissed; conviction on count 1 substituted from attempted rape to rape; both life sentences to run concurrently.

Orders

  • The conviction of attempted rape on count 1 is set aside and substituted with a conviction of rape of 12 year old [P……..] [M……] on 7 October 2011.
  • The conviction and sentence of life imprisonment on count 3 (rape of 10 year old [M…….] [N…….] on 7 October 2011) is confirmed; appeal dismissed.