S v Booi (2012 (2) SACR 52 (FB)) [2010] ZAFSHC 177; [2010] ZAFSHC 91 (12 August 2010)

S v Booi (2012 (2) SACR 52 (FB)) [2010] ZAFSHC 177; [2010] ZAFSHC 91 (12 August 2010)

The court held that the absence of a penalty clause in section 15 of Act 32 of 2007 does not render the offence invalid. The determination of an appropriate sentence is left to the discretion of the magistrate. The magistrate erred in applying the Minimum Sentences Act, which does not cover the offence in question. The sentence imposed was based on a mistaken belief and must be set aside. The matter is remitted to the magistrate to impose sentence afresh, with guidance that the maximum sentence under section 22(f) of Act 23 of 1957 may serve as a benchmark, and the facts suggest a lesser sentence is warranted.

Citation
[2010] ZAFSHC 177
Parties
Applicant: The State; Respondent: Joseph Booi
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
12 August 2010
Case Number
14/2010
Procedural Posture
Review Application / Review of Sentence Imposed by Regional Court
Outcome
Sentence imposed by the magistrate is set aside and the matter is remitted to the magistrate to impose sentence afresh.
Judges
C.B. Cillié, S.P.B. Hancke
Legal Topics
Sentencing Discretion, Minimum Sentences Act, Sexual Offences, Nulla Poena Sine Lege
Criminal Law Sentencing Discretion Minimum Sentences Act Sexual Offences Nulla Poena Sine Lege

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Parties

The State

Applicant

Joseph Booi

Respondent

Procedural Posture

Review Application / Review of Sentence Imposed by Regional Court

Legal Issues

  1. 1 Does the absence of a penalty clause in section 15 of Act 32 of 2007 invalidate the offence or preclude sentencing?
  2. 2 Was the magistrate correct in applying the Minimum Sentences Act (Act 105 of 1997) to the offence?
  3. 3 Should the sentence imposed be set aside and the matter remitted for fresh sentencing?

Ratio Decidendi

The court held that the absence of a penalty clause in section 15 of Act 32 of 2007 does not render the offence invalid. The determination of an appropriate sentence is left to the discretion of the magistrate. The magistrate erred in applying the Minimum Sentences Act, which does not cover the offence in question. The sentence imposed was based on a mistaken belief and must be set aside. The matter is remitted to the magistrate to impose sentence afresh, with guidance that the maximum sentence under section 22(f) of Act 23 of 1957 may serve as a benchmark, and the facts suggest a lesser sentence is warranted.

Court Disposition

Sentence imposed by the magistrate is set aside and the matter is remitted to the magistrate to impose sentence afresh.

Orders

  • The sentence imposed by the magistrate is set aside.
  • The matter is remitted to the magistrate to impose sentence afresh.