S v Sekgobela and Another , S v Tebele ; S v Kilane ; S v Mahlasela ; S v Magasela (A953/02 , A49/03 , A680/04 , A9/03 , A499/03) [2006] ZAGPHC 19; 2006 (2) SACR 309 (W) (2 March 2006)

S v Sekgobela and Another , S v Tebele ; S v Kilane ; S v Mahlasela ; S v Magasela (A953/02 , A49/03 , A680/04 , A9/03 , A499/03) [2006] ZAGPHC 19; 2006 (2) SACR 309 (W) (2 March 2006)

The regional magistrates erred by sentencing the accused for offences listed in Part 1 of Schedule 2 of Act 105 of 1997. Section 52(1) of the Act is mandatory and affords no discretion to the regional court; upon conviction for such offences, the proceedings must be stopped and the accused referred to the High Court for sentencing. The sentences imposed by the regional courts are therefore invalid and must be set aside. The proper procedure is for the High Court to confirm the conviction and determine the appropriate sentence, considering whether substantial and compelling circumstances exist. The appeals against sentence are struck off the roll, and the matters are referred to a single...

Citation
[2006] ZAGPHC 19
Parties
Appellant: Matthew Sekgobela; Appellant: Dlana Dlamini; Appellant: Solomon Dongosi Tebele; Appellant: Mandla Kilane; Appellant: Vincent Luvuyo Mahlasela; Appellant: Richard Magasela; Respondent: The State
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
2 March 2006
Case Number
A953/02 , A49/03 , A680/04 , A9/03 , A499/03
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Sentences imposed by the regional courts are set aside; appeals against sentence are struck off the roll; matters referred to a single judge of the High Court for sentencing in terms of section 52 of Act 105 of 1997.
Judges
BH Mbha, K Satchwell
Legal Topics
Minimum Sentencing, Rape of Minor, Multiple Rape, Criminal Law Amendment Act, Jurisdiction of Regional Courts
Criminal Law Minimum Sentencing Rape of Minor Multiple Rape Criminal Law Amendment Act Jurisdiction of Regional Courts

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Parties

Matthew Sekgobela

Appellant

Dlana Dlamini

Appellant

Solomon Dongosi Tebele

Appellant

Mandla Kilane

Appellant

Vincent Luvuyo Mahlasela

Appellant

Richard Magasela

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Did the regional magistrates have jurisdiction to sentence the accused for offences listed in Part 1 of Schedule 2 of Act 105 of 1997?
  2. 2 Were the sentences imposed by the regional courts valid in light of section 52(1) of Act 105 of 1997?
  3. 3 What is the proper procedure when a regional court convicts an accused of such offences?

Ratio Decidendi

The regional magistrates erred by sentencing the accused for offences listed in Part 1 of Schedule 2 of Act 105 of 1997. Section 52(1) of the Act is mandatory and affords no discretion to the regional court; upon conviction for such offences, the proceedings must be stopped and the accused referred to the High Court for sentencing. The sentences imposed by the regional courts are therefore invalid and must be set aside. The proper procedure is for the High Court to confirm the conviction and determine the appropriate sentence, considering whether substantial and compelling circumstances exist. The appeals against sentence are struck off the roll, and the matters are referred to a single...

Court Disposition

Sentences imposed by the regional courts are set aside; appeals against sentence are struck off the roll; matters referred to a single judge of the High Court for sentencing in terms of section 52 of Act 105 of 1997.

Orders

  • The sentence imposed by the trial court in respect of the count of rape is set aside.
  • The appeal is struck off the roll.