Kau v S (CAF 23/2015) [2016] ZANWHC 31 (10 March 2016)

Kau v S (CAF 23/2015) [2016] ZANWHC 31 (10 March 2016)

The sentencing court failed to comply with the audi alteram partem rule and did not formally confirm the conviction before sentencing, constituting a grave irregularity. The appellant was not afforded a fair sentencing process, as he was not advised of his rights or the seriousness of the matter, nor given an opportunity to advance reasons why his conviction was not in accordance with justice. Furthermore, the application of the Criminal Law Amendment Act was incompetent, as it was not referenced in the charge sheet and only mentioned at the end of the trial. These irregularities require that the sentence be set aside and the matter remitted to a single judge to consider whether the...

Citation
[2016] ZANWHC 31
Parties
Appellant: Billy Kau; Respondent: The State
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
10 March 2016
Case Number
CAF 23/2015
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal against conviction removed from the roll; appeal against sentence upheld; matter remitted for reconsideration of conviction and fresh sentencing.
Judges
Landman, Gura, Djaje
Legal Topics
Rape, Sentencing Irregularity, Audi Alteram Partem, Criminal Law Amendment Act, Confirmation of Conviction
Criminal Law Rape Sentencing Irregularity Audi Alteram Partem Criminal Law Amendment Act Confirmation of Conviction

Case Brief

Summary, issues, holding and outcome

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Parties

Billy Kau

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the sentencing court complied with the audi alteram partem rule under section 52(3)(b) of the Criminal Law Amendment Act.
  2. 2 Whether the conviction was properly confirmed before sentencing.
  3. 3 Whether the appellant received a fair sentencing process.

Ratio Decidendi

The sentencing court failed to comply with the audi alteram partem rule and did not formally confirm the conviction before sentencing, constituting a grave irregularity. The appellant was not afforded a fair sentencing process, as he was not advised of his rights or the seriousness of the matter, nor given an opportunity to advance reasons why his conviction was not in accordance with justice. Furthermore, the application of the Criminal Law Amendment Act was incompetent, as it was not referenced in the charge sheet and only mentioned at the end of the trial. These irregularities require that the sentence be set aside and the matter remitted to a single judge to consider whether the...

Court Disposition

Appeal against conviction removed from the roll; appeal against sentence upheld; matter remitted for reconsideration of conviction and fresh sentencing.

Orders

  • The appeal against conviction is removed from the roll.
  • The appeal against sentence is upheld.