S v Motswasele (7/2004) [2004] ZANWHC 27 (29 October 2004)

S v Motswasele (7/2004) [2004] ZANWHC 27 (29 October 2004)

The court found that the identification parade was flawed, but the witnesses had sufficient opportunity to observe the appellant during the incidents. The evidence did not support a conviction for attempted rape on count 1, as there was no attempt to penetrate the complainant's vagina; the conduct amounted to indecent assault. The trial court erred by considering the appellant's age at sentencing rather than at the time of the offences, resulting in an unduly harsh sentence. The conviction on count 1 was set aside and replaced with indecent assault, and the sentence was reduced. The conviction on count 2 (rape) was confirmed, but the sentence was reduced to reflect the appellant's...

Citation
[2004] ZANWHC 27
Parties
Appellant: Alfred Buti Motswasele; Respondent: The State
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
29 October 2004
Case Number
7/2004
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal against conviction and sentence on count 1 upheld; conviction set aside and replaced with indecent assault, sentence suspended. Appeal against conviction on count 2 dismissed; sentence reduced and partially suspended.
Judges
Gura, Nkabinde
Legal Topics
Rape, Indecent Assault, Identification Parade, Sentencing of Youthful Offenders
Criminal Law Rape Indecent Assault Identification Parade Sentencing of Youthful Offenders

Case Brief

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Parties

Alfred Buti Motswasele

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the appellant was correctly convicted of attempted rape on count 1.
  2. 2 Whether the identification of the appellant by child witnesses was reliable.
  3. 3 Whether the sentence imposed was appropriate given the appellant's age at the time of the offences.

Ratio Decidendi

The court found that the identification parade was flawed, but the witnesses had sufficient opportunity to observe the appellant during the incidents. The evidence did not support a conviction for attempted rape on count 1, as there was no attempt to penetrate the complainant's vagina; the conduct amounted to indecent assault. The trial court erred by considering the appellant's age at sentencing rather than at the time of the offences, resulting in an unduly harsh sentence. The conviction on count 1 was set aside and replaced with indecent assault, and the sentence was reduced. The conviction on count 2 (rape) was confirmed, but the sentence was reduced to reflect the appellant's...

Court Disposition

Appeal against conviction and sentence on count 1 upheld; conviction set aside and replaced with indecent assault, sentence suspended. Appeal against conviction on count 2 dismissed; sentence reduced and partially suspended.

Orders

  • On count 1, conviction and sentence set aside and replaced with conviction of indecent assault and a sentence of two years imprisonment, wholly suspended for three years on condition of no further conviction for indecent assault or assault resulting in imprisonment without an option of a fine during the suspension...
  • On count 2, conviction confirmed; sentence set aside and replaced with six years imprisonment, half suspended for five years on condition of no further conviction for rape during the suspension period.