Makwakwa and Another v S (A50/05) [2009] ZAGPJHC 22 (29 May 2009)

Makwakwa and Another v S (A50/05) [2009] ZAGPJHC 22 (29 May 2009)

The court found that the trial court misdirected itself by failing to properly consider mitigating factors, including the relatively minor physical injuries suffered by the complainant, the youth and first offender status of the second appellant, and the two-year period both appellants spent in custody awaiting trial. The court held that the offences, while serious, did not fall within the worst category of rape warranting life imprisonment. For the first appellant, the previous convictions for housebreaking were not sufficiently recent or relevant to justify the trial court's conclusion that he was on the verge of becoming a killer. For the second appellant, the mandatory minimum...

Citation
[2009] ZAGPJHC 22
Parties
Appellant: Petra Makwakwa; Appellant: Jerry Lekalakala; Respondent: The State
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
29 May 2009
Case Number
A50/05
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal on sentence upheld; sentences imposed by the trial court set aside and replaced with lesser terms of imprisonment.
Judges
Nicholls, Goldblatt, Saldulker
Legal Topics
Minimum Sentencing, Rape, Robbery With Aggravating Circumstances, Unlawful Possession of Firearm, Unlawful Possession of Ammunition
Criminal Law Minimum Sentencing Rape Robbery With Aggravating Circumstances Unlawful Possession of Firearm Unlawful Possession of Ammunition

Case Brief

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Parties

Petra Makwakwa

Appellant

Jerry Lekalakala

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the sentences imposed by the trial court were appropriate given the circumstances of the offences and the appellants.
  2. 2 Whether substantial and compelling circumstances existed to justify deviation from the prescribed minimum sentences under section 51 of the Criminal Law Amendment Act 105 of 1997.
  3. 3 Whether the trial court misdirected itself in its assessment of aggravating and mitigating factors, including previous convictions, youth, and time spent in custody awaiting trial.

Ratio Decidendi

The court found that the trial court misdirected itself by failing to properly consider mitigating factors, including the relatively minor physical injuries suffered by the complainant, the youth and first offender status of the second appellant, and the two-year period both appellants spent in custody awaiting trial. The court held that the offences, while serious, did not fall within the worst category of rape warranting life imprisonment. For the first appellant, the previous convictions for housebreaking were not sufficiently recent or relevant to justify the trial court's conclusion that he was on the verge of becoming a killer. For the second appellant, the mandatory minimum...

Court Disposition

Appeal on sentence upheld; sentences imposed by the trial court set aside and replaced with lesser terms of imprisonment.

Orders

  • The appeal on sentence is upheld.
  • The sentences imposed by the trial court are set aside and substituted as follows: For accused number one: 15 years imprisonment on count 1; 20 years imprisonment on count 2; 5 years imprisonment on count 3; 1 year imprisonment on count 4. Sentences on counts 1, 3, and 4 to run concurrently with count 2, an...