S v Qwabe

• Jurisdiction: South Africa
• Judge: B Mashile J and I Opperman AJ
• Judgment Date: 17 April 2014
• Docket Number: A419/2013
• Court: South Gauteng High Court, Johannesburg
• Hearing Date: 27 March 2014
• Citation: 2014 JDR 0918 (GSJ)

Mashile, J:

[1]

The Appellant stood before the regional court for the region of South Gauteng held at Germiston charged with two counts of rape of Cyndy Mpanza and Daniswa Nabeleo. The two women were aged 24 and 22 respectively.

2014 JDR 0918 p2

Mashile J

They were raped on 3 April and 31 October 2009. He was legally represented throughout the duration of his trial and was warned that the provisions of Section 51 of the Criminal Law Amendment Act No. 105 of 1997 could become applicable for purposes of the imposition of sentence should he be found guilty as charged.

[2]

Claiming that the sexual intercourse with both complainants was with their consent, the Appellant pleaded not guilty. On 6 March 2012, he was found guilty as charged and subsequently on the same day sentenced to 14 years direct imprisonment on each count. He was also declared unfit to possess a firearm in terms of Section 103 of the Firearm Controls Act No. 60 of 2000. The Appellant sought leave to appeal against sentence and the trial court granted it on 22 August 2012.

[3]

The minimum sentence legislation has changed the general approach to the unfettered discretion that the trial court possessed when considering the imposition of sentence. The following passage uplifted from S v PB 2013 (2) SACR 533 (SCA) at 539 per Bosielo JA clearly marks the turning point:

"[20] What then is the correct approach by a court on appeal against a sentence imposed in terms of the Act? Can the appellate court interfere with such a sentence imposed by the trial court's exercising its discretion properly, simply because it is not the sentence which it would have imposed or that it finds shocking? The approach to an appeal on sentence imposed in terms of the Act should, in my view, be different to an approach to other sentences imposed under the ordinary sentencing regime. This, in my view, is so because the minimum sentences to be imposed are ordained by the Act. They cannot be departed from lightly or for flimsy reasons. It follows therefore that a proper enquiry on appeal is whether the facts which were considered by the sentencing court are substantial and compelling, or not."

2014 JDR 0918 p3

Mashile J

[4]

The trial court considered the interest of society, the nature and seriousness of the offence and correctly sought to strike a balance with the personal circumstances of the Appellant when determining the sentence to be imposed. The personal circumstances considered...