Lottering v S (SS82/99) [2010] ZAWCHC 28 (11 February 2010)

Lottering v S (SS82/99) [2010] ZAWCHC 28 (11 February 2010)

The court found that the applicant's legal representative was aware of the Minimum Sentencing Act and had addressed the court on its application. However, the sentencing remarks of the trial judge indicated that, but for the Act, a lesser sentence would have been considered. The difference between the prescribed life sentence and the sentence the trial judge would have imposed was not so grossly disproportionate as to constitute a substantial and compelling circumstance. Nonetheless, the court held that another court might find otherwise and interfere with the sentence. Given the interests of justice and the fact that the presiding judge was not involved in the trial, leave to appeal was...

Citation
[2010] ZAWCHC 28
Parties
Applicant: Christiaan Henry Lottering; Respondent: The State
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
11 February 2010
Case Number
SS82/99
Procedural Posture
Leave to Appeal / Application for Leave to Appeal After Conviction and Sentence
Outcome
Leave to appeal is granted to the applicant to appeal to the Full Bench of this Division.
Judges
Traverso ARP
Legal Topics
Minimum Sentencing Act, Leave to Appeal, Dolus Eventualis, Condonation Delay
Criminal Law Minimum Sentencing Act Leave to Appeal Dolus Eventualis Condonation Delay

Case Brief

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Parties

Christiaan Henry Lottering

Applicant

The State

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal After Conviction and Sentence

Legal Issues

  1. 1 Whether the applicant was properly informed of the provisions of the Minimum Sentencing Act, specifically section 51(3).
  2. 2 Whether there are reasonable prospects that another court may reach a different conclusion regarding sentence.
  3. 3 Whether the delay in bringing the application for leave to appeal constitutes a bar to granting leave.

Ratio Decidendi

The court found that the applicant's legal representative was aware of the Minimum Sentencing Act and had addressed the court on its application. However, the sentencing remarks of the trial judge indicated that, but for the Act, a lesser sentence would have been considered. The difference between the prescribed life sentence and the sentence the trial judge would have imposed was not so grossly disproportionate as to constitute a substantial and compelling circumstance. Nonetheless, the court held that another court might find otherwise and interfere with the sentence. Given the interests of justice and the fact that the presiding judge was not involved in the trial, leave to appeal was...

Court Disposition

Leave to appeal is granted to the applicant to appeal to the Full Bench of this Division.

Orders

  • Leave to appeal is granted to the applicant to the Full Bench of the Western Cape High Court, Cape Town.
  • The matter of administrative delays is to be referred to the Office of the Director of Public Prosecutions for investigation.