S v Madiba

JurisdictionSouth Africa
Citation2015 (1) SACR 485 (SCA)

S v Madiba
2015 (1) SACR 485 (SCA)

2015 (1) SACR p485


Citation

2015 (1) SACR 485 (SCA)

Case No

497/2013
[2014] ZASCA 13

Court

Supreme Court of Appeal

Judge

Ponnan JA, Swain AJA and Mathopo AJA

Heard

March 5, 2014

Judgment

March 20, 2014

Counsel

M Madima for the appellant.
NR Nekhambele
for the state.

Flynote : Sleutelwoorde

Sentence — Imposition of — Factors to be taken into account — Cumulative effect of sentences imposed on more than one count — Court sentencing accused to life imprisonment on one count and to total of 60 years' imprisonment on three other counts but stating that sentence was effective sentence of 70 years' imprisonment — That irregularity entitling C court to intervene on appeal — Sentence on two of other counts reduced.

Headnote : Kopnota

The appellant was convicted in the high court of the attempted rape of a woman whose home he had broken into, of kidnapping her 3-year-old daughter and D of raping and murdering her daughter. He was sentenced to ten years' imprisonment for the attempted rape; 15 years' imprisonment for the kidnapping; life imprisonment for the rape; and 35 years' imprisonment for the murder. He appealed against the convictions of attempted rape and rape and appealed against the sentences on all the counts. The court on appeal dismissed the appeal against the convictions. As regards the sentence, the court noted that the court a quo had wrongly added that the appellant had been sentenced to 70 years' imprisonment. E

Held, that the court a quo had misdirected itself when stating that the cumulative effect of the sentence imposed was that the appellant was sentenced to 70 years' imprisonment. Regard being had to the fact that one of those sentences was life imprisonment, it was incomprehensible how the court had come to this conclusion. The court on appeal was accordingly at large F to reconsider the sentences imposed. (Paragraphs [11] at 488d and [12] at 488e.)

Held, further, that all of the circumstances in mitigation paled into insignificance when the brutality of the rape perpetrated by the appellant on the 3-year-old girl was considered. The court was accordingly satisfied that no substantial and compelling circumstances were present to justify the imposition of a G sentence less than the prescribed minimum sentence of life imprisonment. (Paragraph [13] at 488h.)

Held, further, that the court a quo furnished no reasons for imposing a lesser sentence for the murder of the young girl than it imposed for her rape. The murder was undoubtedly deserving of a sentence of life imprisonment but, as the state did not seek leave to appeal against the sentence and in fact H asked for the sentence to be confirmed, the court was accordingly not entitled to increase the sentence. (Paragraph [14] at 488i.)

Held, further, that the sentences imposed for the convictions for attempted rape and kidnapping were excessive, given the cumulative effect of the sentences. The court accordingly reduced those sentences to five years' imprisonment in respect of the attempted rape and five years' imprisonment in respect of I the kidnapping. (Paragraph [12] at 488e.)

Cases cited

R v B 1958 (1) SA 199 (A): dicta at 204C – D applied J

2015 (1) SACR p486

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220; [2001] ZASCA 30): dicta at 478eh applied A

S v Nabolisa 2013 (2) SACR 221 (CC): referred to.

Case Information

M Madima for the appellant.

NR Nekhambele for the state. B

An an appeal from convictions of attempted rape and rape and the sentences imposed for those offences and two others in the Limpopo High Court, Thohoyandou (Hetisani J).

Order C

(1)

The appeals against the convictions of attempted rape and rape are dismissed.

(2)

The appeal against the sentences imposed on all counts are upheld, the sentences imposed are set aside and the appellant is sentenced to the following terms...

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5 practice notes
  • 2015 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...370S v Macrae 2014 (2) SACR 15 (SCA) .................................................... 85S v Madiba 2015 (1) SACR 485 (SCA) ................................................. 428S v Madikela 1993 (2) SACR 403 (B) ................................................... 369, 371S v Madikela 199......
  • 2016 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...194-5S v Mabena 2007 (1) SACR 482 (SCA) ................................................. 186S v Madiba 2015 (1) SACR 485 (SCA) ................................................. 355S v Madlala 2015 (2) SACR 247 (GJ) ................................................... 77S v Mafaladiso 2003 (......
  • S v M
    • South Africa
    • Invalid date
    ...SACR 116 (SCA): applied S v Boesak 2000 (1) SACR 633 (SCA) (2000 (3) SA 381; [2000] ZASCA 24): dictum in para 46 applied S v Madiba 2015 (1) SACR 485 (SCA) ([2014] ZASCA 13): S v Mkhatshwa 2015 JDR 1104 (GP): compared S v Mthethwa [2017] ZAWCHC 28: applied S v Nduna 2011 (1) SACR 115 (SCA) ......
  • S v ML
    • South Africa
    • Supreme Court of Appeal
    • 1 March 2016
    ...Attorneys: Sabelo Lubando & Associates, Mthatha; Webbers, Bloemfontein. C [1] S v Greenwood [2015] ZASCA 56 para 3. [2] S v Madiba 2015 (1) SACR 485 (SCA) ([2014] ZASCA 13) para 8; S v NS [2015] ZASCA 139 para [3] DT Zeffertt & AP Paizes The South African Law of Evidence 2 ed (2009) at 972.......
  • Request a trial to view additional results
3 cases
  • S v M
    • South Africa
    • Invalid date
    ...SACR 116 (SCA): applied S v Boesak 2000 (1) SACR 633 (SCA) (2000 (3) SA 381; [2000] ZASCA 24): dictum in para 46 applied S v Madiba 2015 (1) SACR 485 (SCA) ([2014] ZASCA 13): S v Mkhatshwa 2015 JDR 1104 (GP): compared S v Mthethwa [2017] ZAWCHC 28: applied S v Nduna 2011 (1) SACR 115 (SCA) ......
  • S v ML
    • South Africa
    • Supreme Court of Appeal
    • 1 March 2016
    ...Attorneys: Sabelo Lubando & Associates, Mthatha; Webbers, Bloemfontein. C [1] S v Greenwood [2015] ZASCA 56 para 3. [2] S v Madiba 2015 (1) SACR 485 (SCA) ([2014] ZASCA 13) para 8; S v NS [2015] ZASCA 139 para [3] DT Zeffertt & AP Paizes The South African Law of Evidence 2 ed (2009) at 972.......
  • S v ML
    • South Africa
    • Invalid date
    ...para [3] applied B S v Heslop 2007 (1) SACR 461 (SCA) (2007 (4) SA 38; [2007] 4 All SA 955): dictum in para [11] applied S v Madiba 2015 (1) SACR 485 (SCA) ([2014] ZASCA 13): dictum in para [8] S v NS [2015] ZASCA 139: dictum in para [15] applied C S v Van der Meyden 1999 (1) SACR 447 (W) (......
2 books & journal articles
  • 2015 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...370S v Macrae 2014 (2) SACR 15 (SCA) .................................................... 85S v Madiba 2015 (1) SACR 485 (SCA) ................................................. 428S v Madikela 1993 (2) SACR 403 (B) ................................................... 369, 371S v Madikela 199......
  • 2016 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...194-5S v Mabena 2007 (1) SACR 482 (SCA) ................................................. 186S v Madiba 2015 (1) SACR 485 (SCA) ................................................. 355S v Madlala 2015 (2) SACR 247 (GJ) ................................................... 77S v Mafaladiso 2003 (......

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