Lamola v S (A1068/08) [2009] ZAGPPHC 232 (14 May 2009)

Lamola v S (A1068/08) [2009] ZAGPPHC 232 (14 May 2009)

The regional magistrate erred by sentencing the appellant to 15 years imprisonment for rape under Part 1 of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 without referring the matter to the High Court for sentencing, as required by section 52(1) of the Act. The sentence is therefore a nullity. Due to the commencement of Act 38 of 2007, the regional court now has the power to impose life imprisonment for such offences. As the appellant has not yet been committed for sentence by the High Court, the matter must be referred back to the regional court for sentencing in accordance with the amended Act, which allows for the consideration of substantial and compelling circumstances for...

Citation
[2009] ZAGPPHC 232
Parties
Appellant: Malese Jacob Lamola; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
14 May 2009
Case Number
A1068/08
Procedural Posture
Criminal Appeal / Appeal Against Sentence Imposed by Regional Court
Outcome
Sentence set aside as a nullity; matter referred back to regional court for sentencing under amended Act.
Judges
TM Makgoka, CP Rabie
Legal Topics
Rape, Sentencing Powers, Criminal Law Amendment Act, Life Imprisonment, Transitional Provisions
Criminal Law Rape Sentencing Powers Criminal Law Amendment Act Life Imprisonment Transitional Provisions

Case Brief

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Parties

Malese Jacob Lamola

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence Imposed by Regional Court

Legal Issues

  1. 1 Whether the regional magistrate was competent to impose sentence for rape under Part 1 of Schedule 2 of the Criminal Law Amendment Act 105 of 1997.
  2. 2 Whether the sentence imposed by the regional magistrate is a nullity due to failure to refer the matter to the High Court for sentencing.
  3. 3 How transitional provisions of Act 38 of 2007 affect sentencing in cases not yet committed to the High Court.

Ratio Decidendi

The regional magistrate erred by sentencing the appellant to 15 years imprisonment for rape under Part 1 of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 without referring the matter to the High Court for sentencing, as required by section 52(1) of the Act. The sentence is therefore a nullity. Due to the commencement of Act 38 of 2007, the regional court now has the power to impose life imprisonment for such offences. As the appellant has not yet been committed for sentence by the High Court, the matter must be referred back to the regional court for sentencing in accordance with the amended Act, which allows for the consideration of substantial and compelling circumstances for...

Court Disposition

Sentence set aside as a nullity; matter referred back to regional court for sentencing under amended Act.

Orders

  • The sentence imposed upon the appellant is set aside.
  • The matter is referred back to the regional court for sentencing in terms of section 51 of Act 105 of 1997 as amended by Act 38 of 2007.