S v Sema (A46/06) [2008] ZAGPHC 223 (4 June 2008)

S v Sema (A46/06) [2008] ZAGPHC 223 (4 June 2008)

The appellant's written admissions did not amount to admissions of rape, as he did not admit to non-consensual intercourse and the complainant was 12 years old, not under 12. The correct conviction should have been for unlawful carnal intercourse with a girl under 16, not rape. The High Court erred in convicting and sentencing the appellant for rape. The convictions and sentences for rape must be set aside and substituted with convictions and sentences under section 14(1)(a) of the Sexual Offences Act. The appropriate sentence is five years imprisonment on each count, with counts 2 and 3 to run concurrently with count 1, resulting in an effective sentence of five years imprisonment,...

Citation
[2008] ZAGPHC 223
Parties
Appellant: J. Sema; Respondent: The State
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
4 June 2008
Case Number
A46/06
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal succeeds. Convictions and sentences for rape are set aside and substituted with convictions and sentences for unlawful carnal intercourse with a girl under 16.
Judges
B.R. Du Plessis, M.F. Legodi, A.P. Ledwaba
Legal Topics
Sexual Offences Act, Unlawful Carnal Intercourse, Competent Verdict, Sentencing, Review Powers, Plea Procedure
Criminal Law Sexual Offences Act Unlawful Carnal Intercourse Competent Verdict Sentencing Review Powers Plea Procedure

Case Brief

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Parties

J. Sema

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the appellant was correctly convicted of rape based on his plea and admissions.
  2. 2 Whether the High Court was competent to sentence the appellant for rape.
  3. 3 What the appropriate conviction and sentence should be given the facts and applicable law.

Ratio Decidendi

The appellant's written admissions did not amount to admissions of rape, as he did not admit to non-consensual intercourse and the complainant was 12 years old, not under 12. The correct conviction should have been for unlawful carnal intercourse with a girl under 16, not rape. The High Court erred in convicting and sentencing the appellant for rape. The convictions and sentences for rape must be set aside and substituted with convictions and sentences under section 14(1)(a) of the Sexual Offences Act. The appropriate sentence is five years imprisonment on each count, with counts 2 and 3 to run concurrently with count 1, resulting in an effective sentence of five years imprisonment,...

Court Disposition

Appeal succeeds. Convictions and sentences for rape are set aside and substituted with convictions and sentences for unlawful carnal intercourse with a girl under 16.

Orders

  • The appeal succeeds.
  • The convictions and sentences are set aside and substituted with convictions on each of three counts of contravention of section 14(1)(a) of the Sexual Offences Act, 23 of 1957 (unlawful carnal intercourse with a girl under the age of 16 years).