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[2016] ZASCA 152
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Mhlongo v S (140/2016) [2016] ZASCA 152; 2016 (2) SACR 611 (SCA) (3 October 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 140/2016
In
the matter between:
VUSUMUZI
NKOSINATHI
MHLONGO
APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Mhlongo v The
State
(140/16)
[2016] ZASCA
152
(3 October 2016)
Coram:
Bosielo, Swain, Zondi and Mocumie JJA
and Dlodlo AJA
Heard
:
24 August 2016
Delivered:
3 October 2016
Summary:
Criminal
Law and Procedure ─ conviction on one count of rape ─ the
charge sheet erroneously referred to Part 2 of Schedule
2 and not
Part 1 of Schedule 2 to
s 51(1)
of the
Criminal Law Amendment Act 105
of 1997
─ sentence of life imprisonment imposed ─ whether
this irregularity vitiated the sentence proceedings ─
application
in terms of
s 276B
of the
Criminal Procedure Act 51 of
1977
─ importance and permanent infusion of the Victim Impact
Statement
at
the sentencing stage
─
duty
of the prosecution to place all information before the court
─
Comprehensive
guidelines, protocol and model VIS instruments must be drafted by the
National Director of Public Prosecutions
─
matter
remitted to court a quo.
ORDER
On
appeal from: KwaZulu-Natal Division of the High Court,
Pietermaritzburg (Van Zyl J and Vahed J sitting as court of appeal):
1. The appeal is upheld.
2. The order of the court a quo in
terms of
s 276B
of the
Criminal Procedure Act 51 of 1977
is set
aside.
3. The matter is remitted to the court
a quo for the parties to make representations on the desirability of
granting an order in
terms of
s 276B
of the
Criminal Procedure Act 51
of 1977
.
JUDGMENT
Mocumie
JA (Bosielo, Swain and Zondi JJA and Dlodlo AJA concurring):
[1]
On 10
March 2009 the appellant was charged with and convicted by the
Regional Court, Empangeni, on one count of rape. On 12 March
2009 he
was sentenced to life imprisonment. Subsequently, on 8 September
2011, he applied for and was granted leave to appeal against
his
conviction and sentence to the full court of the KwaZulu-Natal
Division, Pietermaritzburg. The full court dismissed the appeal
against the conviction but upheld the appeal against the sentence of
life imprisonment and substituted it with a sentence of 18
years’
imprisonment. In addition, it fixed a non-parole period of 12 years
in terms of s 276B of the Criminal Procedure Act
51 of 1977 (the
Act). The appellant appeals against the sentence imposed and the
fixing of the non-parole period with special leave
of this court.
[2]
In relation to the non-parole period, the appellant launched a three
pronged attack. First, he contends that there was no application
made
by the State to fix the non-parole period either before the regional
court or before the full court. Secondly, that he was
not given a
notice that s 276B will be invoked. Thirdly, that the parties were
not given an opportunity to present argument or
evidence for or
against the fixing of a non-parole period. The appellant contends
further that there was no basis or finding that
his character could
only be rehabilitated after a period of 12 years. The full court gave
no reasons for fixing the non-parole
period. As to the invocation of
s 51(1) of Part I of Schedule 2 of the Criminal Law Amendment Act 105
of 1997 (the
Criminal Law Amendment Act) by
the regional court, the
appellant contends that since
s 51(1)
was not specified in the charge
sheet, it committed a material misdirection by imposing the sentence
of life imprisonment.
[3]
A non-parole order is a determination that has serious consequences
for an accused. ‘. . . [I]t is an order that a person
does not
deserve being released on parole in future.
[1]
’
Its effect is to ultimately restrict the liberty of a person who is
sentenced to a term of imprisonment, since such a person
cannot be
released on parole, or correctional supervision, until the expiry of
the non-parole period.
[2]
The fixing of a non-parole period entails the exercise of a
discretion vested in a court which like all discretionary powers must
be judicially exercised. Especially in criminal matters where the
liberty of a person is at stake, it must be exercised judiciously
and
in accordance with principles of fairness and justice.
[4]
In
S
v Pakane & others
[3]
this Court said that the intention of the legislature in enacting
s
276B
of the CPA is to invest sentencing courts with discretionary
power to ‘control the minimum or actual period to be served by
the convicted person’.
[4]
Furthermore, this section provides the courts with the ‘overall
latitude’ and flexibility in determining whether to
fix or
refrain from fixing non-parole periods, but not as a matter of
routine.
[5]
Hence, in interpreting s 267B of the Act, this Court in
Mthimkhulu
in
recognising a progression from subsection 1 to subsection 2, said
that:
‘
What
s 276B(2) in fact does is to enjoin a sentencing court, once it has
exercised its discretion under s 276B(1)
(a)
against the convicted person, to then fix the non-parole period in
respect of the effective period of imprisonment taking cognisance
of
the provisions of s 276B(1)
(b)
’.
[6]
[5]
The principles that determine the exercise of this exceptional order
of non-parole are well-stated; first, as to why a court
should
exercise the discretionary power; second, as to what facts are
germane to its exercise, and third, as to the procedure to
be
followed. In
Mthimkhulu
,
[7]
this court held:
‘
An
order in terms of s 276B should therefore only be made in exceptional
circumstances, when there are facts before the sentencing
court that
would continue, after sentence, to result in a negative outcome for
any future decision about parole’.
[8]
The judiciary, within the matrix of South Africa’s
constitutional democracy, stands as a bulwark against any arbitrary
exercise
of power and owes every citizen a duty of ensuring that
every exercise of power conforms to the Bill of Rights. The principle
of
fair hearing enshrined in the South African Bill of Rights is a
key aspect of the rule of law.’
[9]
[6]
This Court has consistently held in several reported judgments that
the provisions of s 276B must be invoked for substantial
reasons.
Three of these decisions warrant special mention. They are
Strydom
v S
,
[10]
S
v Stander
[11]
and
Mthimkulu
v S
[12]
.
In
Strydom
,
the appellant was convicted
of
36 charges of fraud involving a benefit of R375 816.92. She was
consequently sentenced to serve a term of five years’
imprisonment with the provision that in terms of s 276B of the Act
the appellant serve three years of imprisonment before being
placed
on, or being considered eligible for parole. On appeal this court
stated the following:
‘
[A]
court should not resort to s 276B of the CPA lightly and rather, as
this court has often indicated, allow the officials of the
Department
of Correctional Services, who are guided by the [Correctional
Services Act 111 of 1998] (CSA) and the attendant regulations,
to
make such assessments and decisions as well as the parole
board.
’
[13]
.
[7]
In
Stander
,
the appellant was sentenced to eight years’ imprisonment for
fraud, two years of which were conditionally suspended for
five
years. The trial court also ordered, in terms of s 276B of the CPA
that the appellant serve at least 36 months of her sentence
before
she could be considered for parole (the non-parole order).
[14]
On appeal the court held that the failure of the magistrate to give
reasons for the sentence made it impossible to assess what
prompted
the order in the first instance. On appeal, this Court found that a
court can only invoke s 276B when there are circumstances
specifically relevant to parole in addition to any aggravating
factors pertaining to the commission of the crime, and where a
proper, evidential basis had been laid for a finding that such
circumstances exist so as to justify the imposition of such an
order
.
[15]
[8]
In
Mthimkulu
,
the appellant was convicted in the high court on one count of murder,
possession of a fully automatic firearm (an AK47 assault
rifle)
without a licence to possess such firearm and possession of five
rounds of live ammunition (7.62 mm) without the required
licence.
The appellant was
sentenced to 20 years’ imprisonment on the murder count and
five years for both unlawful possession of a
prohibited firearm and
ammunition. The trial court directed that the term of five years’
imprisonment in respect of the latter
two counts, run concurrently
with the 20 years’ imprisonment imposed in respect of the
murder count and fixed a non-parole
period of 13 years.
There was no
invitation by the trial court to counsel to address it prior to the
fixing of the non-parole order. This Court held
that the failure to
afford the parties the opportunity to address the sentencing court
might, depending on the facts of each case,
constitute an
infringement of fair-trial rights.
[16]
The
procedure for fixing a non-parole period and the accused’s
entitlement to be heard
[9]
A trial court has a duty to impose an appropriate sentence according
to long standing principles of punishment and judicial
discretion. A
convicted person, generally speaking, has a reasonable expectation of
being paroled after serving a portion of the
term of imprisonment.
Parole can therefore be regarded as an essential element in the
punishment of an offender. The right of an
accused to a fair trial
extends throughout the entire proceedings, including the sentencing
stage.
[17]
The fixing of a non-parole period is part of a criminal trial and it
must thus accord with the dictates of a ‘fair trial’
that
an accused person be given notice of the court’s intention to
invoke s 276B of the Act and to be heard before a non-parole
period
is fixed. Failure to do so amounts to a misdirection by the
sentencing court.
[18]
[10]
In
Stander
this Court stated categorically, ‘[a]t least two questions
arise when such an order [non-parole order] is considered: first,
whether to impose such an order and second, what period to attach to
the order. In respect of both considerations the parties are
entitled
to address the sentencing court.
Failure
to afford them the opportunity to do so constitutes
misdirection.’
[19]
(My emphasis)
[11]
At the heart of the right to a fair criminal trial and what infuses
its purpose, is for justice to be done and also be seen
to be done.
Dignity, freedom and equality are the foundational values of the
Constitution. In relation to sentencing, what the
right to a fair
trial requires, amongst other things, is a procedure which does not
prevent any factor which is relevant to the
sentencing process and
which could have a mitigating effect on the punishment to be imposed,
from being considered by the sentencing
court. The Constitutional
Court emphasised ‘[i]n the present circumstances a fair trial
would also have to ensure that, in
the process of the sentencing
court being put in possession of the factors relevant to sentencing,
the accused is not compelled
to
suffer the infringement of any other element of the fair trial
right.’
[20]
[12]
The principle to be derived from
Strydom
,
Stander
and
Mthimkhulu
is that the discretion to fix a non-parole period must not be
exercised lightly, but only in exceptional circumstances which can
only be established by an investigation and a consideration of
salient facts, and further evidence upon which such a decision
rests.
[21]
Giving reasons for decisions is a long-standing and salutary practice
that serves the interests of justice. Furthermore, it helps
to show
the rationale for the decision.
[22]
Without reasons for a judgment on sentence as is the case in this
matter, in respect of the invocation
of s 276B, such lack of
reasons is highly prejudicial to the accused person. Thus the court a
quo’s failure to state the rationale
for its judgment is a
vitiating factor.
[13]
It is clear, as the State conceded, that the court a quo erred
materially. This Court is therefore bound to set aside the order
in
terms of s 276B and remit the matter to the court a quo to afford the
parties an opportunity to address it.
[14]
The appellant also assailed the sentence imposed by the regional
court on the basis that the trial court misdirected itself
by
sentencing him in terms of the provisions of s 51(1) Part I of
Schedule 2 of the
Criminal Law Amendment Act whereas
Part 2
of
Schedule 2 was specified in the charge sheet. In other words, it was
not specified that life imprisonment was the prescribed
minimum
sentence. Further, no clear and unambiguous explanation was given to
the appellant at the commencement of the trial, as
to the
applicability of a mandatory sentence of life imprisonment in the
event of a conviction.
[15] Section 35(3)
of the Constitution guarantees the right to a fair trial for everyone
charged with a criminal offence,
[23]
while s 84(1) of the CPA stipulates that a charge must contain the
essential particulars of an offence.
[24]
Considering
the constitutional right of an accused to be sufficiently informed of
the charge, and other underlying values of the
Constitution, it is
very important that
a
charge sheet makes reference to provisions relevant to the sentence
for a particular offence; otherwise the Constitution would
become a
dead letter.
[25]
This Court has said on numerous occasions that it is always desirable
that a charge sheet refers to those provisions of the law
of
relevance to the sentence to be imposed for the offence charged.
[26]
Although there is no fixed rule, a failure to state the relevant
section in the Act, unless it occasions substantial prejudice
to the
accused, does not necessarily vitiate the whole trial.
[27]
In
Ndlovu
,
this Court held that the State’s failure to give the accused
sufficient prior notice of the applicability of the statute
was fatal
to the sentence imposed, more so when the accused was
unrepresented.
[28]
In
Legoa
this Court did not prescribe any general rule on the issue, but
emphasised the importance of a clearly drafted charge sheet and
the
reflection of the fundamental principle of a fair hearing in the
entire trial process. It also
stressed
that an accused person should be given sufficient notice of the
State’s intention to rely on the minimum mandatory
sentencing
regime in every instance.
[29]
[16]
I now turn to consider the question of whether the relevant
provisions of the
Criminal Law Amendment Act were
brought to the
attention of the appellant.
The
appellant contends that the legislation was referred to for the first
time by the prosecutor in his address in aggravation of
sentence,
when he said: ‘Your worship, the State would submit that there
are no substantial and compelling circumstances
which the defence has
brought to the court's attention.’ However, if one reads the
record as a whole and despite the incorrect
reference to
Part 2
of
Schedule 2 to
section 51of
the
Criminal Law Amendment Act, there
is
no doubt that the appellant was apprised of his rights and was well
aware of same throughout the proceedings. That the appellant
was
apprised of his rights in relation to the minimum sentencing regime
is borne out by the record. First, the charge, to which
the appellant
pleaded, is worded unambiguously as follows:
‘
The
accused is guilty of the crime of rape . . .
In
that upon or about and or between 16 March 2006 at or near Ngwelezane
B section in the Regional Division of Natal, the said accused
did
wrongfully and unlawfully have sexual intercourse with N. B. without
her consent, and or against her will in circumstances
where
she was raped more than once by the accused
.’
(My
emphasis)
Secondly,
not only was the appellant made aware of his rights within the
purview of the
Criminal Law Amendment Act at
the beginning of the
trial, but he was conscious of the seriousness of the charge because
he even sought the regional court’s
indulgence for a
postponement to discuss this very aspect with his parents; which
indulgence the regional court granted from 2
February 2006 to 14
February 2006. Thirdly, and crucially, the appellant was at all times
legally represented.
[17]
From these three aspects, it is undoubtedly clear, as counsel for the
appellant was constrained to concede, that the fact that
the charge
sheet had a defect which was never rectified in terms of
s 86(1)
of
the CPA, did not of its own vitiate the sentencing proceedings.
[30]
The facts of this case are for that matter, distinguishable from
those of
Ndlovu
and
subsequent cases in which this court considered the irregularity on
the part of the State which it found to be so material misdirection,
that it vitiated the whole proceedings. As this Court has repeatedly
emphasised, each case must be treated and judged on its own
facts,
before any decision to set aside the proceedings can be taken. In
S
v Ndlovu; Sibisi
[31]
,
which was cited with approval by this Court in
S
v Mabuza & others
,
[32]
it was said that:
‘
It
will not be essential to inform [the accused person] that he is
facing the possibility of a substantial prison sentence or a
sentence
which may be “materially prejudicial” if he can
reasonably be expected to be aware of this.’
[33]
[18]
Turning to the sentence imposed by the regional court, which was then
set aside by the court a quo, the salient facts relevant
to the
sentence are as follows. The complainant, a 27 year old young woman,
testified that she was lured by the appellant and his
uncle to get a
lift home on the fateful afternoon of 16 March 2006 as it was raining
and there were no buses from Empangeni to
her home, due to a strike.
After dropping off an older man whom she believed to be the uncle of
the appellant, the appellant drove
in the opposite direction to her
home until he reached his own home. Once inside the house, he
demanded to have sexual intercourse
with her. When she refused, he
assaulted her and threatened to kill her. Ultimately he overpowered
and raped her repeatedly throughout
the night until he released her
the next day. She went directly to a clinic where she made a report
to a nurse. She testified that
she was still a virgin and further
that she was subsequently diagnosed with HIV. When the trial ended,
the State placed on record
without any demur from the defence that
she succumbed to Aids thereafter. Regrettably, the State did not
tender evidence to link
her Aids status to the appellant.
[19]
In imposing sentence, the regional court found that no substantial
and compelling circumstances existed which justified a departure
from
the minimum sentence of life imprisonment, specified in
Part 1
of
Schedule 2 of the
Criminal Law Amendment Act, where
the complainant
was raped more than once by the same person. The regional court then
imposed the ordained life imprisonment. Disgruntled
with the
sentence, the appellant appealed to the court a quo.
[20]
In upholding the appeal against the sentence the court a quo found
that:
‘
[I]n
the present [case] there is a significant degree
of
callousness in the manner in which the complainant was enticed into
the vehicle, effectively abducted, and subjected to a night
of terror
and repeated rapes. The crimes, of which the appellant had been
convicted, fall into a serious category which requires
direct
imprisonment for a lengthy period. The appellant acted with callous
disregard to the rights, feelings, welfare or the impact
of his
actions, upon the life and wellbeing of the complainant. At no stage
did he indicate any genuine remorse for his actions.
Nevertheless,
this is not the worst kind of rape one can imagine
.
Although that is not necessarily the criteria for avoiding a sentence
of life imprisonment, in all the circumstances of this case,
I take
the view that a sentence of imprisonment of life, is disproportionate
to the nature of the crime and that an injustice would
result if that
sentence were permitted to stand. I would uphold the appeal against
sentence and propose that the sentence, imposed
by the magistrate be
set aside and replaced by a sentence of eighteen (18) years’
imprisonment.’
(My
emphasis.)
[21]
This court harboured considerable disquiet concerning the sentence
imposed by the court a quo, which was canvassed with counsel.
There
was no justification for the court a quo to interfere with the
sentence imposed by the regional court. The facts of this
case are
very similar to those in
S
v Nkomo.
[34]
The court a quo stated, in its reasons for sentence that ‘it is
clear from the evidence of the complainant in this case,
that the
rapes had a profound effect upon her psychologically.’ The
court a quo also found that ‘there was significant
callousness
in the manner in which the complainant was enticed into the vehicle,
effectively abducted and subjected to a night
of terror and repeated
rapes. Yet, the court unconvincingly came to the conclusion that
‘nevertheless this is not the worst
kind of rape one can
imagine . . .’ To use the words of Theron JA
in
her minority judgment
in
Nkomo
[35]
contrary to the
sentiments echoed in
S
v Abrahams
[36]
and
S
v Mahomotsa
:
[37]
‘
I
f
life imprisonment is not appropriate in a rape as brutal as this,
then when would it be appropriate? I am of the view that this
is
precisely the kind of matter the Legislature had in mind for the
imposition of the minimum sentence of life imprisonment. Courts
must
not shrink from their
duty
to impose, in appropriate cases, the prescribed minimum sentences
ordained by the Legislature. Society’s legitimate expectation
is “that an offender will not escape life imprisonment ─
which has been prescribed for a very specific reason ─
simply
because [substantial and compelling] circumstances are,
unwarrantedly, held to be present”. In our constitutional
order
women are entitled to expect and insist upon the full protection of
the law.’
Even
stronger sentiments have been echoed by this court in
S
v Matyityi
[38]
and subsequent cases. But, in the light of there being no cross
appeal by the State against sentence; this court can, unfortunately,
do no more
[39]
.
[22]
There are two further areas of concern in this case. First, the
failure on the part of the State to obtain a Victim Impact
Statement
(VIS) for purposes of sentence. Secondly, the failure by the State to
cross appeal the sentence imposed by the court
a quo, which is too
lenient in the circumstances. The State acknowledged that it did not
compile a VIS during the trial. In
Matyityi
[40]
this Court with reference to the
Convention
on the Elimination of all Forms of Discrimination Against Women
(CEDAW),
[41]
UN
Declaration of the Basic Principles of Justice for Victims of Crime
and Abuse of Power
[42]
and the Service Charter for Victims of Crime in South Africa,
[43]
sent a powerful message on the importance of a VIS which seems to be
disregarded wantonly and without fear of any repercussions,
by the
State. A VIS forms an integral part of the last phase of the trial.
It is essential for the court in arriving at a decision
that is fair
to the offender, victim and the public at large. It serves a greater
purpose than contributing only to the quantum
of punishment.
[44]
It generally gives the sentencing court a balanced view of all
aspects in order to impose an appropriate sentence. It accommodates
the victim more effectively, thus giving her or him a voice and the
only opportunity to participate in the last phase of the trial.
Moreover, the VIS, gives the victim the opportunity to say in her or
his own voice how the crime has affected him or her. This
is
particularly so where no expert evidence is led by the State to
indicate the impact of the crime on the victim.
[23]
After several judgments of this Court have pointed out the
substantial importance of the VIS and that it must form part of
the
sentencing process, the South African criminal justice system
requires the permanent infusion of a VIS into the justice process.
Comprehensive guidelines, protocols and model VIS instruments must be
drafted by the National Director of Public Prosecutions in
order to
achieve that. This will address the lackadaisical manner in which the
State treats victims of violent crimes and in particular,
rape. If
this is not dealt with decisively, there will soon come a time when
the State will be held accountable for this failure
of its duty,
[45]
by victims of violent, particularly sexual crimes such as rape.
[24]
The failure by the State to cross appeal the sentence imposed by the
court a quo merits mention. In addressing this court,
the State was
initially in agreement with the appellant that a sentence of 18 years
imposed by the court a quo was sufficient.
However, after this Court
had pointed out several seriously aggravating aspects of the evidence
of the complainant and the devastating
effect the rapes had on her,
counsel for the State accepted the sentence was too lenient. It is a
travesty of justice that the
State failed to lead expert evidence on
the impact of the rapes on the complainant and in particular the
possible link between
her death and being infected with HIV by the
appellant.
[25]
Rape
is undoubtedly a serious crime which violates the dignity, security,
freedom and wellbeing of the victim. The wave of rape
cases is
increasing at an alarming rate and it is a crime which calls for long
term imprisonment.
[46]
According
to the Law Reform Commission statistics it is estimated there are 1,7
million rapes a year. On average only 54 000 rape
survivors lay
charges.
[47]
Only
344 out of every 1000 sexual assaults are reported to the police,
which means approximately two out of three sexual assaults
remain
unreported.
[48]
The
rape rate refers to the number of reported rapes which occur per
100,000 people.
[49]
Despite
these distressing statistics the State
chose
not to cross appeal against the sentence imposed by the court a quo.
[26]
Lastly, one aspect requires comment i.e. the number of appeals
against
s 276B
non-parole orders emanating from various Divisions of
the high court. From my observation on reported cases of this
Court
[50]
,
it is clear that appeals on
s 276B
are multiplying in numbers every
year. This is
inappropriate
and results in cases of greater complexity and truly deserving of the
attention of this Court having to compete for
a place on the court
roll.
[51]
[27]
In the result, the following order is made:
1. The appeal is upheld.
2. The order of the court a quo in
terms of
s 276B
of the
Criminal Procedure Act 51 of 1977
is set
aside.
3. The matter is
remitted to the court a quo for the parties to make representations
on the desirability of granting an order in
terms of
s 276B
of the
Criminal Procedure Act 51 of 1977
.
_________________
BC
Mocumie
Judge
of Appeal
Appearances
For
Appellant: S B Mngadi
Instructed
by:
Durban
Justice Centre, Durban
Bloemfontein
Justice Centre, Bloemfontein
For
Respondent: F van Heerden
Instructed
by:
The
Director of Public Prosecutions, Pietermaritzburg
[1]
Strydom v S
[2015] ZASCA 29
para 16; S v Bull & another
[2001]
ZASCA 105
at 692D-I, 693D-G and 697A.
[2]
S v Williams
;
S v Papier [2006] ZAWCHC 5; 2006 (2) SACR 101 (C).
[3]
S v Pakane &
Others
[2007] ZASCA 134; 2008 (1) SACR 518 (SCA).
[4]
Ibid paras 46–47.
[5]
Mthimkhulu v S
[2013] ZASCA 53
;
2013
(2) SACR 89
(SCA) para 14.
[6]
Ibid para 16.
[7]
See also
S
v Stander
[2011] ZASCA 211
;
2012 (1) SACR 537
(SCA) para 16.
[8]
Above fn 6 para
19.
[9]
Section 34 of the
Constitution of the Republic of South Africa 108, 1996 provides:
‘
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum’.
[10]
Strydom
v
S
[2015] ZASCA 29.
[11]
S v Stander
2012 (1) SACR 537 (SCA).
[12]
Mthimkhulu
v S
2013
(2) SACR 89
(SCA); See also
S
v Mhlakaza & another
[1997]
ZASCA 7
;
1997 (1) SACR 515
(SCA).
[13]
Strydom
para
15.
[14]
Stander
para
1.
[15]
Ibid para 20.
[16]
Mthimkhulu
para
21.
[17]
S v Dodo
[2001]
ZACC 16
;
2001
(1) SACR 594
(CC) at para 38
;
Prinsloo v Van der Linde & another
[1997] ZACC 5
;
1997
(3) SA 1012
(CC) para 31. S v
Stander
para 22.
[18]
Strydom
para
17; See generally:
Mthimkulu
and
Stander
.
[19]
Stander
para 22.
[20]
S v Dzukuda &
others; S v Tshilo
[2000] ZACC 16
;
2000
(2) SACR 443
(CC) paras 11-12.
[21]
Strydom
para
16.
[22]
See
Stander
fn 8 with reference to
S
v
Immelman
1978
(3) SA 726
(A) at 726A.
[23]
Section 35 of the
Constitution provides:
‘
(3) Every
accused person has a right to a fair trial, which includes the
right─
(a)
to be informed of
the charge with sufficient detail to answer it;
(b)
to have adequate
time and facilities to prepare a defence. . .’
[24]
Section 84 of the
CPA dealing with ‘essentials of charge’ provides as
follows:
‘
(1) Subject
to the provisions of this Act and of any other law relating to any
particular offence, a charge shall set forth the
relevant offence in
such manner and with such particulars as to the time and place at
which the offence is alleged to have been
committed and the person,
if any, against whom and the property, if any, in respect of which
the offence is alleged to have been
committed, as may be reasonably
sufficient to inform the accused of the nature of the charge.
(2) Where any of the particulars
referred to in subsection (1) are unknown to the prosecutor it shall
be sufficient to state that
fact in the charge.
(3) In criminal proceedings the
description of any statutory offence in the words of the law
creating the offence, or in similar
words, shall be sufficient.’
[25]
S v Ndlovu
[2002] ZASCA 144
;
2003
(1) SACR 331
(SCA) para 11;
R
v Zonele & others
1959
(3) SA 319
(A) at 323A-H;
S
v Moloi
1969 (4) SA 421
(A) at 424 A-C
;
S v Legoa
[2002] ZASCA 122
;
2003 (1) SACR 13
(SCA) para 20.
[26]
Ibid.
[27]
Legoa
paras 20-21.
[28]
Ndlovu
para
12. See also
Seleke &
andere
1976 (1) SA 675
(T)
at 682H.
[29]
Legoa
para 21.
[30]
S v Kolea
[2012] ZASCA 199
;
2013 (1) SACR 409
(SCA) para 18.
[31]
S v Ndlovu; S v
Sibisi
2005
(2) SACR 645 (W).
[32]
S v Mabuza &
others [2007] ZASCA110;
2009 (2) SACR 435
(SCA) para 15.
[33]
At
654F-G.
[34]
S v Nkomo
[2006] ZASCA 139;
2007 (2) SACR 198 (SCA).
[35]
Ibid paras 27–28.
[36]
S v Abrahams
2002 (1) SACR 116
(SCA) para 29.
[37]
S v Mahomotsa
[2002]
ZASCA 61:
2002 (2) SACR 435
(SCA) paras 17-19.
[38]
S v Matyityi
[2010] ZASCA 127;
2011
(1) SACR 40 (SCA).
[39]
Kellerman v S
[1997]
1 All SA 127 (A).
[40]
Matyityi
paras16-17.
[41]
International
treaty adopted in 1979 by the United Nations General Assembly.
[42]
Resolution 40/34
adopted by the General Assembly on 29 November 1985.
[43]
Approved by
Cabinet on 2 December 2004.
[44]
K Muller & A
van der Merwe ‘Recognising the victim in the sentencing phase:
The use of Victim Impact Statements in Court’
(2006) 22
SAJHR
at 647–663.
[45]
In terms of
s 174
of the
Criminal Procedure Act 51 of 1977
read with s 179 of the
Constitution of South Africa together with s 22 (6)(
a
)
of the National Prosecuting Authority Act 32 of 1998 (Code of
Conduct) and the
Convention
on the Elimination of all Forms of Discrimination Against Women
(CEDAW) it is the duty of the prosecution to place
all the
information before the court which assists the court in arriving at
a fair and just sentence.
[46]
Matyityi
para
22.
[47]
L du Toit
A
Philosophical Investigation of Rape: The Making and Unmaking of the
Feminine Self
6ed (2009)
at 186.
[48]
Department of Justice, Office of
Justice Programs, Bureau of Justice Statistics, National Crime
Victimization Survey, 2010–2014
(2015).
[49]
South African
Police Service analysis of the 2014/15 national crime statistics and
the Statistics of South Africa’s mid-year
population estimates
for annual rape rates from 2008/09 to 2014/15.
[50]
Between 2006 and
2016, this Court had to deal with eleven appeals on
s 276B
of
the
Criminal Procedure Act 51 of 1977
from various Divisions of the
High court.
[51]
S v Monyane &
others
2008
(1) SACR 543
(SCA) para 28.