De Sousa v S (A231/2012) [2012] ZAFSHC 236 (13 December 2012)

De Sousa v S (A231/2012) [2012] ZAFSHC 236 (13 December 2012)

The court found that the trial court did not err in its acceptance and evaluation of the complainant's evidence, and the convictions for indecent assault were justified. The contradictions in the evidence were not material enough to warrant interference. However, the conviction and sentence for rape (charge 3) were set aside because the evidence did not establish that the incidents occurred after the coming into operation of the Sexual Offences Act on 16 December 2007, and the charge could not be amended or substituted for indecent assault without prejudicing the appellant. The sentence of 10 years' imprisonment for charge 2 was found to be disturbingly inappropriate given the appellant's...

Citation
[2012] ZAFSHC 236
Parties
Appellant: Alberto A De Sousa; Respondent: The State
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
13 December 2012
Case Number
A231/2012
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Judges
Lekale, Thamage
Legal Topics
Sexual Offences, Indecent Assault, Rape, Amendment of Charge Sheet, Sentencing Discretion
Criminal Law Sexual Offences Indecent Assault Rape Amendment of Charge Sheet Sentencing Discretion

Case Brief

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Parties

Alberto A De Sousa

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the convictions for indecent assault and rape were justified on the evidence presented.
  2. 2 Whether the trial court erred in its acceptance and evaluation of the complainant's evidence.
  3. 3 Whether the conviction for rape could be substituted or amended to indecent assault post-16 December 2007.

Ratio Decidendi

The court found that the trial court did not err in its acceptance and evaluation of the complainant's evidence, and the convictions for indecent assault were justified. The contradictions in the evidence were not material enough to warrant interference. However, the conviction and sentence for rape (charge 3) were set aside because the evidence did not establish that the incidents occurred after the coming into operation of the Sexual Offences Act on 16 December 2007, and the charge could not be amended or substituted for indecent assault without prejudicing the appellant. The sentence of 10 years' imprisonment for charge 2 was found to be disturbingly inappropriate given the appellant's...