Mazivi v S (A8/2018) [2018] ZAGPJHC 443 (20 June 2018)

Mazivi v S (A8/2018) [2018] ZAGPJHC 443 (20 June 2018)

The court held that the appellant exercised his automatic right of appeal only in respect of sentence, and there was no basis to compel him to appeal his conviction. The evidence supported the conviction, and the affidavit submitted post-sentencing was not considered as further evidence since no application was made to lead it. The court found no substantial and compelling circumstances to justify a departure from the prescribed life sentence for rape of a minor. The appellant's repeated offences, lack of remorse, abuse of trust, and victimisation of his own child were aggravating factors. The absence of a pre-sentencing report did not prejudice the proportionality assessment, as...

Citation
[2018] ZAGPJHC 443
Parties
Appellant: Dumisani Adriaan Mazivi; Respondent: The State
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
20 June 2018
Case Number
A8/2018
Procedural Posture
Criminal Appeal / Appeal Against Sentence Only
Outcome
Appeal dismissed; sentence of life imprisonment confirmed.
Judges
Ingrid Opperman, M Habedi
Legal Topics
Rape of Minor, Minimum Sentencing Legislation, Substantial and Compelling Circumstances, Victim Impact, Automatic Right of Appeal
Criminal Law Rape of Minor Minimum Sentencing Legislation Substantial and Compelling Circumstances Victim Impact Automatic Right of Appeal

Case Brief

Summary, issues, holding and outcome

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Parties

Dumisani Adriaan Mazivi

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence Only

Legal Issues

  1. 1 Whether the appellant can waive or not exercise his automatic right to appeal his conviction.
  2. 2 Whether the appeal court can consider an affidavit deposed to by the accused after sentencing but before the appeal is heard.
  3. 3 Whether the opinion in the J88 medical report is admissible when the doctor did not testify.

Ratio Decidendi

The court held that the appellant exercised his automatic right of appeal only in respect of sentence, and there was no basis to compel him to appeal his conviction. The evidence supported the conviction, and the affidavit submitted post-sentencing was not considered as further evidence since no application was made to lead it. The court found no substantial and compelling circumstances to justify a departure from the prescribed life sentence for rape of a minor. The appellant's repeated offences, lack of remorse, abuse of trust, and victimisation of his own child were aggravating factors. The absence of a pre-sentencing report did not prejudice the proportionality assessment, as...

Court Disposition

Appeal dismissed; sentence of life imprisonment confirmed.

Orders

  • The appeal is dismissed.
  • It is recommended that the Director of Public Prosecutions investigate the facts surrounding the complainant's mother's involvement in the commission of the offence.