S v Mofokeng (R08/2022) [2022] ZAFSHC 84 (29 April 2022)

S v Mofokeng (R08/2022) [2022] ZAFSHC 84 (29 April 2022)

The regional magistrate erred by imposing a sentence of fifteen years imprisonment under section 276(1)(i) of the Criminal Procedure Act, which is statutorily limited to five years. Furthermore, the magistrate incorrectly applied the minimum sentence regime under section 51(1) of the Criminal Law Amendment Act to attempted rape, which is not listed in Part I of Schedule 2 and therefore does not attract the prescribed minimum sentence of life imprisonment. The irregularity in sentencing does not invalidate the conviction or the proceedings, but the sentence must be set aside and the matter remitted for the imposition of a competent sentence.

Citation
[2022] ZAFSHC 84
Parties
Respondent: The State; Applicant: Thabang Victor Mofokeng
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
29 April 2022
Case Number
R08/2022
Procedural Posture
Criminal Review / Special Review of Sentence After Conviction
Outcome
Conviction confirmed; sentence set aside and remitted for fresh sentencing.
Judges
Daniso, Mpama
Legal Topics
Sentencing Irregularity, Minimum Sentences, Attempted Rape, Competent Sentence, Sexual Offences Against Children
Criminal Law Sentencing Irregularity Minimum Sentences Attempted Rape Competent Sentence Sexual Offences Against Children

Case Brief

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Parties

The State

Respondent

Thabang Victor Mofokeng

Applicant

Procedural Posture

Criminal Review / Special Review of Sentence After Conviction

Legal Issues

  1. 1 Whether the sentence imposed by the regional magistrate was competent under the Criminal Procedure Act.
  2. 2 Whether the minimum sentence regime under section 51(1) of the Criminal Law Amendment Act applies to attempted rape.
  3. 3 Whether the irregular sentence vitiates the proceedings or can be rectified.

Ratio Decidendi

The regional magistrate erred by imposing a sentence of fifteen years imprisonment under section 276(1)(i) of the Criminal Procedure Act, which is statutorily limited to five years. Furthermore, the magistrate incorrectly applied the minimum sentence regime under section 51(1) of the Criminal Law Amendment Act to attempted rape, which is not listed in Part I of Schedule 2 and therefore does not attract the prescribed minimum sentence of life imprisonment. The irregularity in sentencing does not invalidate the conviction or the proceedings, but the sentence must be set aside and the matter remitted for the imposition of a competent sentence.

Court Disposition

Conviction confirmed; sentence set aside and remitted for fresh sentencing.

Orders

  • The conviction is confirmed.
  • The sentence is set aside and the matter is remitted to the magistrate to impose sentence afresh.