S v Moakane (CC363/05) [2005] ZAGPHC 332 (27 October 2005)

S v Moakane (CC363/05) [2005] ZAGPHC 332 (27 October 2005)

The High Court found that the evidence did not establish the date of the rape beyond reasonable doubt. Witnesses estimated the incident occurred in 1998, and the complainant could not recall the year. The charge sheet and doctor's testimony were based on information not corroborated by evidence. Since Act 105 of 1997 only applies to offences committed after 1 May 1998, and there was reasonable doubt as to whether the rape occurred after that date, the accused could not be sentenced under the Act. The benefit of the doubt regarding the date was given to the accused, and the matter was referred back to the magistrate for sentencing under pre-existing law.

Citation
[2005] ZAGPHC 332
Parties
Applicant: The State; Respondent: S S Moakane
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
27 October 2005
Case Number
CC363/05
Procedural Posture
Criminal Law / Sentencing Referral From Regional Court to High Court
Outcome
The matter is referred back to the trial magistrate for sentencing on the basis that Act 105 of 1997 does not apply.
Judges
Hussain
Legal Topics
Rape of Minor, Minimum Sentencing Legislation, Application of Statute, Burden of Proof
Criminal Law Rape of Minor Minimum Sentencing Legislation Application of Statute Burden of Proof

Case Brief

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Parties

The State

Applicant

S S Moakane

Respondent

Procedural Posture

Criminal Law / Sentencing Referral From Regional Court to High Court

Legal Issues

  1. 1 Whether the provisions of Act 105 of 1997 (minimum sentencing legislation) apply to the accused.
  2. 2 Whether the date of the alleged rape was established beyond reasonable doubt.
  3. 3 Whether the accused should be sentenced under Act 105 of 1997 or by the magistrate under pre-existing law.

Ratio Decidendi

The High Court found that the evidence did not establish the date of the rape beyond reasonable doubt. Witnesses estimated the incident occurred in 1998, and the complainant could not recall the year. The charge sheet and doctor's testimony were based on information not corroborated by evidence. Since Act 105 of 1997 only applies to offences committed after 1 May 1998, and there was reasonable doubt as to whether the rape occurred after that date, the accused could not be sentenced under the Act. The benefit of the doubt regarding the date was given to the accused, and the matter was referred back to the magistrate for sentencing under pre-existing law.

Court Disposition

The matter is referred back to the trial magistrate for sentencing on the basis that Act 105 of 1997 does not apply.

Orders

  • The accused is referred back to the magistrate who is to sentence the accused on the basis that the provisions of Act 105 of 1997 do not apply.