11 reduced a sentence of life imprisonment to 20 years’ imprisonment. At the outset, this court called upon counsel for the State to first argue whether the matter was appealable and indicated that only when this anterior question was determined in favour of the State would the appeal be heard on the merits. As the appeal had initially been brought in terms of s 316B of the CPA, counsel for the State sought to rely on s 311 of the CPA when she was confronted with the judgment of this court in Director of Public Prosecutions, Western Cape v Kock. However, reliance on s 311 did not avail the State because this court found that ‘the definition of an appeal in the Superior Courts Act, however, overrides a consideration of s 311 of the CPA, in terms of the decision in Kock.’ Consequently the appeal was struck from the roll. [28] Having regard to the facts of the decisions discussed in paras 24-27 above and the issues to be determined, there can be no doubt that they are distinguishable from the facts of this case. In this case, the High Court imputed consent to the complainant. It did so despite the clear and unequivocal provisions of s 57(1) of the Sexual Offences Act referred to above. In doing so, the High Court committed an error of law. It therefore follows that the present case falls foursquare within the purview of s 311 of the CPA. In these circumstances the interests of justice dictate that the sentence imposed by the High Court must be set aside. [29] Although the facts in Mphaphama are at first blush not materially distinguishable from the facts of this case, the issues raised in the two cases are different. Hence the different outcomes. Accordingly, the dictum in Mphaphama that ‘the exercise of a judicial discretion in favour of a convicted person in regard to sentence cannot be a question of law’, is cast too wide. In particular it does not deal with the position where that discretion has been exercised on an incorrect legal basis. An exercise of a judicial discretion based on a wrong principle or erroneous view of the law is clearly a question of law decided in favour of a convicted person. This also distinguishes the present matter from that of Mosterd because it is not the nature of the sentence, but the legal basis on which it was approached, which places this matter within the ambit of s 311 of the CPA. [30] Counsel were agreed that if we came to the conclusion that the appeal must succeed, as we have, it would be desirable to remit the case to the High Court for a