2 ___________________________________________________________________ ORDER ___________________________________________________________________ On appeal from: Gauteng Division of the High Court, Pretoria (Preller J and Kganyago AJ, sitting as court of appeal): 1 The appeal is upheld. 2 The question of law raised by the State is determined in its favour. 3 The sentence imposed by the High Court is set aside. 4 The matter is referred back to the High Court for the appeal on sentence to be dealt with in accordance with the principles set out in this judgment. ___________________________________________________________________ JUDGMENT ___________________________________________________________________ Petse JA (Lewis and Mathopo JJA and Gorven and Mbatha AJJA concurring): [1] This is an appeal by the Director of Public Prosecutions, Gauteng, arising from what it submits is a question of law in relation to sentence, decided in favour of the respondent, which informed the sentence imposed by the Gauteng Division of the High Court, Pretoria (Preller J and Kganyago AJ), sitting on appeal from a judgment of the Regional Court, Louis Trichardt, Limpopo. I shall refer to the court as the High Court for convenience. This court granted special leave to appeal against sentence. 1 It is more properly an appeal under s 311 of the Criminal Procedure Act2 1 See Director of Public Prosecutions, Gauteng Division, Pretoria v Moloi (1101/2015) [2017] ZASCA 78 (2 June 2017), paras 70-71, in which this court by majority held that an appeal under s 311 does not require special leave to appeal. And that any order granting special leave to appeal is neither necessary nor competent. Since the appeal is brought in terms of s 311 of the CPA leave should not have been sought nor granted. 2 Criminal Procedure Act 51 of 1977.