S v MASANGO 2017 (1) SACR 571 (GP)

Sentence — Evidence on sentence — Insufficient evidence placed before court — Duties of court in terms of s 274(1) of Criminal Procedure Act 51 of 1977.


The appellant was convicted in a circuit court of murder, kidnapping and crimen injuria and was sentenced to life imprisonment. He was granted leave by the Supreme Court of Appeal to appeal to the full court on sentence. He contended on appeal, inter alia, that the High Court had misdirected itself by not invoking the provisions of s 274(1) of the Criminal Procedure Act 51 of 1977 (the CPA) as it had not received evidence as to the proper sentence to be imposed.

Held, that all the court had was that he was unmarried, received a social grant, and the proven facts of the case, namely that he had dragged the deceased behind the car with a rope tied around his neck. There were no facts or evidence before the court relating to the appellant’s personal circumstances or why he was even receiving a social grant. The High Court had accordingly misdirected itself by considering the sentence without any evidence placed on record in terms of s 274(1) of the CPA and the court, in the circumstances, had no option but to set the sentences aside.

Held, further, that the court could not deal with the sentences afresh due to the lack of evidence on mitigation — it was trite that the appeal court was confined to the facts placed on record. The matter accordingly had to be remitted to the High Court to consider the appellant’s sentences afresh after hearing evidence and/or obtaining facts in mitigation as envisaged by s 274(1) of the CPA. (Paragraph [18] at 575c.)


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