VAN DER WESTHUIZEN J
[41] A third possibility is that we are unable to determine with any accuracy what
the High Court accepted with regard to Mr Mpofu’s age because of the imprecise
language in the judgment to describe the ages of the accused individuals, as indicated
earlier. This would leave open the possibility that he was indeed a child and that the
sentencing Court disregarded this fact.
Was there a misdirection?
[42] The inquiry in an appeal against sentence is not whether the sentence was right
or wrong, but whether the Court in imposing it exercised its discretion properly and
judicially. A misdirection that could result in the setting aside of a sentence on appeal
is an error committed by the Court in determining or applying the facts for assessing
an appropriate sentence. However, a mere misdirection is not by itself sufficient to
entitle a court to interfere with the sentence on appeal. It must be of such a nature,
seriousness or degree that it shows that the Court did not exercise its discretion or
exercised it improperly or unreasonably.32
[43] Whether a misdirection has occurred in this case depends on the interpretation
of the High Court judgment.
On the second of the above-mentioned possible
interpretations of the High Court judgment, the Court regarded the applicant as a
youthful offender and took his youth into account. The Court did not regard him as a
child at the time of the commission of the offences and thus never mentioned
childhood as a factor, or any of the contents of section 28 of the Constitution. If this is
32
S v Pillay 1977 (4) SA 531 (A) at 535E-F.
19
اختر الفقرة المستهدفة3
الاتصال بفقرة
Connect to an entity
Disable highlights
أضف إلى جدول المحتويات