Vilakasi v S (A55/2023) [2023] ZAGPJHC 842 (26 July 2023)

Vilakasi v S (A55/2023) [2023] ZAGPJHC 842 (26 July 2023)

The court held that section 275(2)(a) of the Criminal Procedure Act does not require the sentencing judge to scrutinise or deliberate on the judgment delivered by the trial judge before proceeding with sentencing. Section 176 only applies to judgments delivered by mistake and amended immediately by the trial judge, not by a subsequent judge. Section 316 does not permit an application for leave to appeal against conviction before sentence is passed. The sentencing judge incorrectly amended the findings of the trial court and granted leave to appeal prior to sentencing. Therefore, the appeal cannot be entertained at this stage, and the matter must be referred back to the court below for...

Citation
[2023] ZAGPJHC 842
Parties
Appellant: Mcebo Thando Vilakazi; Respondent: The State
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
26 July 2023
Case Number
A55/2023
Procedural Posture
Criminal Appeal / Appeal Against Conviction Prior to Sentencing
Outcome
Appeal not entertained; matter referred back for sentencing on all counts.
Judges
M Mabesele, B Mahalelo, D Dosio
Legal Topics
Leave to Appeal, Sentencing Procedure, Wrong Judgment Amendment, Section 275 Criminal Procedure Act, Section 176 Criminal Procedure Act
Criminal Law Civil Procedure Leave to Appeal Sentencing Procedure Wrong Judgment Amendment Section 275 Criminal Procedure Act Section 176 Criminal Procedure Act

Case Brief

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Parties

Mcebo Thando Vilakazi

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction Prior to Sentencing

Legal Issues

  1. 1 Whether a sentencing judge may amend or set aside the conviction delivered by the trial judge under section 176 of the Criminal Procedure Act.
  2. 2 Whether leave to appeal against conviction may be granted prior to sentencing under section 316 of the Criminal Procedure Act.
  3. 3 Whether the matter should be referred back for sentencing on all counts.

Ratio Decidendi

The court held that section 275(2)(a) of the Criminal Procedure Act does not require the sentencing judge to scrutinise or deliberate on the judgment delivered by the trial judge before proceeding with sentencing. Section 176 only applies to judgments delivered by mistake and amended immediately by the trial judge, not by a subsequent judge. Section 316 does not permit an application for leave to appeal against conviction before sentence is passed. The sentencing judge incorrectly amended the findings of the trial court and granted leave to appeal prior to sentencing. Therefore, the appeal cannot be entertained at this stage, and the matter must be referred back to the court below for...

Court Disposition

Appeal not entertained; matter referred back for sentencing on all counts.

Orders

  • The matter is referred back to the court below to sentence the appellant in terms of section 275(2)(a) of the Criminal Procedure Act in respect of all 15 counts of which the appellant was convicted.