S v Madiba

• Jurisdiction: South Africa
• Judgment Date: 20 March 2014
• Citation: 2015 (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 478e – h 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...