De Sousa v S (P341/2010) [2011] ZAFSHC 39 (25 February 2011)

De Sousa v S (P341/2010) [2011] ZAFSHC 39 (25 February 2011)

The court found that there were reasonable prospects that another court may reach a different conclusion regarding both the convictions and the sentences imposed on the applicant. The evidence of the complainant contained discrepancies, was reported late, and lacked objective corroboration, which could lead another court to a different finding. Furthermore, the acts alleged in counts 2 and 3 were essentially the same, and the only difference was the expanded definition of rape under Act 32 of 2007. The court held that another court may find that the legislative change did not warrant an increased sentence from 10 to 15 years' imprisonment for the same conduct. The possibility of...

Citation
[2011] ZAFSHC 39
Parties
Applicant: Alberto Abram De Sousa; Respondent: State
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
25 February 2011
Case Number
P341/2010
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Dismissal of Petition Under Section 309 C of the Criminal Procedure Act
Outcome
Leave to appeal to the Supreme Court of Appeal against convictions and sentences granted.
Judges
A Kruger, SPB Hancke
Legal Topics
Leave to Appeal, Sexual Offences, Indecent Assault, Rape, Sentencing, Criminal Procedure Act
Criminal Law Leave to Appeal Sexual Offences Indecent Assault Rape Sentencing Criminal Procedure Act

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Parties

Alberto Abram De Sousa

Applicant

State

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Dismissal of Petition Under Section 309 C of the Criminal Procedure Act

Legal Issues

  1. 1 Whether there are reasonable prospects that another court may reach a different conclusion on conviction and sentence.
  2. 2 Whether the expansion of the definition of rape under Act 32 of 2007 justifies an increased sentence for the same acts.
  3. 3 Whether the effective sentence imposed is shockingly inappropriate or affected by misdirection.

Ratio Decidendi

The court found that there were reasonable prospects that another court may reach a different conclusion regarding both the convictions and the sentences imposed on the applicant. The evidence of the complainant contained discrepancies, was reported late, and lacked objective corroboration, which could lead another court to a different finding. Furthermore, the acts alleged in counts 2 and 3 were essentially the same, and the only difference was the expanded definition of rape under Act 32 of 2007. The court held that another court may find that the legislative change did not warrant an increased sentence from 10 to 15 years' imprisonment for the same conduct. The possibility of...

Court Disposition

Leave to appeal to the Supreme Court of Appeal against convictions and sentences granted.

Orders

  • Leave is granted to the applicant to appeal to the Supreme Court of Appeal against his convictions and sentences.