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[2014] ZASCA 24
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P N v S (828/13) [2014] ZASCA 24 (27 March 2014)
THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGEMENT
Case
No: 828/13
DATE:
27 MARCH 2014
Not
Reportable
In the matter
between
P
N
....................................................
APPELLANT
And
THE
STATE
................................
RESPONDENT
Neutral citation:
Nekuvule v The State (828/13)
[2014] ZASCA 24
(27 March 2014)
Coram: Navsa,
Leach and Saldulker JJA
Heard: 14 MARCH
2014
Delivered: 27
MARCH 2014
Summary: Rape –
Sentence – No reference in the charge sheet to the prescribed
minimum sentence in terms of
Criminal Law Amendment Act 105 of 1997
–
Provisions not brought to the attention of the unrepresented accused
– sentences set aside.
ORDER
On appeal from:
Limpopo High Court (Lukoto J sitting as court of first instance):
The following order
is made:
1 The appeal against
the sentence is upheld. The sentence of life imprisonment imposed
by the court a quo on each of the two counts
of rape is set aside and
substituted with the following sentence:
‘(a) On count
one – the accused is sentenced to 20 years’ imprisonment.
(b) On count two –
the accused is sentenced to 20 years’ imprisonment.
(c) Ten years of the
sentence on count two are to run concurrently with the sentence on
count one. The accused is sentenced to an
effective 30 years’
imprisonment.’
2 The sentence is
antedated to 29 June 2001, in terms of
s 282
of the
Criminal
Procedure Act 51 of 1977
, being the date upon which the sentences
were imposed.
JUDGMENT
SALDULKER JA
(NAVSA and LEACH JJA concurring):
[1] This is an
appeal directed against sentence only. On 26 April 2001, the
appellant, Mr P N, was convicted in the regional court,
Thohoyandou
on two counts of rape of two young girls eight and ten years old,
respectively. Following the conviction, the regional
magistrate
stopped the proceedings and committed the appellant for sentencing by
a high court in terms of s 52(1)(b)
1
of the Criminal Law Amendment Act 105 of 1997 (the Act).
[2] In the high
court, Lukoto J confirmed the convictions of the appellant in terms
of s 52(2)(b) of the Act, and sentenced the
appellant to life
imprisonment on each count, that being the prescribed minimum
sentence in terms of the Act. These sentences were
ordered to run
concurrently. An application for leave to appeals against the
conviction and sentences was refused. The appellant
appeals against
the sentences imposed with the leave of this court.
[3] Before turning
to consider the propriety of the sentences imposed, I set out the
background in brief. The appellant was charged
with the rape of his
biological daughter and her young friend, a neighbour. Before the
trial commenced, the regional magistrate
explained the right to legal
representation to the appellant, and he chose to conduct his own
defence. The appellant’s daughter
and her friend testified
that the appellant had called them into his room, undressed himself
and ordered them to also undress,
and then raped them in turn.
Thereafter he gave them money to buy sweets and warned them not to
tell anyone about the incident.
They reported the incident to members
of their family, where after they were taken to hospital where a
medical examination confirmed
that they had been raped.
[4] After
convicting the appellant, but before referring the matter to the high
court, the regional magistrate recorded that he
had omitted to inform
the appellant of the minimum sentence provisions. He stated the
following:
‘It is
imperative in terms of the case that an undefended accused be
explained accordingly and I realise that I did not tell
you at the
beginning. AS A RESULT I DECIDED TO REMIT THIS MATTER FOR DIRECTIVES
TO AND BY THE HIGH COURT.’ (Emphasis in original.)
[5] The high court
did not consider the magistrate’s failure to advise the
appellant of the minimum sentence regime to be
a problem, and went on
to impose the minimum sentence as prescribed in Part I of Schedule 2
2
to the Act for the rape of the two young girls.
[6] In S v Ndlovu
2003 (1) SACR 331
(SCA) para 12, Mpati JA said the following:
‘The enquiry,
therefore, is whether, on a vigilant examination of the relevant
circumstances, it can be said that an accused
had had a fair trial.
And I think it is implicit in these observations that where the State
intends to rely upon the sentencing
regime created by the Act a fair
trial will generally demand that its intention pertinently be brought
to the attention of the
accused at the outset of the trial, if not in
the charge-sheet then in some other form, so that the accused is
placed in a position
to appreciate properly in good time the charge
that he faces as well as its possible consequences. Whether, or in
what circumstances,
it might suffice if it is brought to the
attention of the accused only during the course of the trial is not
necessary to decide
in the present case. It is sufficient to say that
what will at least be required is that the accused be given
sufficient notice
of the State’s intention to enable him to
conduct his defence properly.’(My emphasis.)
[7] The charge sheet
did not refer to the minimum sentence provisions mentioned above.
Neither the regional magistrate nor the State
made any attempt during
his trial to bring it to the appellant’s attention. In
addition, it should be borne in mind that
the appellant was
unrepresented, requiring greater care on the part of the State and
the regional magistrate.
[8] Counsel for the
State was constrained to concede that in the circumstances of this
case the sentences fall to be set aside in
a similar manner to that
which occurred in Ndlovu.
[9] The appellant
raped his own daughter and her little friend, which makes the acts in
question all the more heinous. The acts
committed by the appellant
warrant lengthy terms of imprisonment, as reflected in the
substituted order set out hereafter. It is
necessary to record that
the appellant has already spent about 13 years in prison. Counsel for
both the appellant and the state
were agreed that justice would be
served by imposing a sentence of 20 years’ imprisonment on each
count, with 10 years’
imprisonment on the second count being
ordered to run concurrently. That seems to me to be a fair sentence
given the circumstances
of this case, and will be reflected in the
order below.
[10] In the result,
the following order is made:
1 The appeal against
the sentence is upheld. The sentence of life imprisonment imposed
by the court a quo on each of the two counts
of rape is set aside and
substituted with the following sentence:
‘(a) On count
one – the accused is sentenced to 20 years’ imprisonment.
(b) On count two –
the accused is sentenced to 20 years’ imprisonment.
(c) Ten years of
the sentence on count two are to run concurrently with the sentence
on count one. The accused is sentenced to
an effective 30 years’
imprisonment.’
2 The sentence is
antedated to 29 June 2001, in terms of
s 282
of the
Criminal
Procedure Act 51 of 1977
, being the date upon which the sentences
were imposed.
HK SALDULKER
JUDGE OF APPEAL
APPEARANCES
For appellant:
…..................................
M
J Manwadu
…
...........................................................
Thohoyandou
Justice Centre
For
respondent
:....................................
RJ
Makhera
…
..........................................................
Office
of the Director of Public Prosecutions,
…
.........................................................
Thohoyandou
1
This
section was repealed on 31 December 2007 by
section 2
of the
Criminal Law (Sentencing) Amendment Act 38 of 2007
.
2
Section
51(1)
provides: ‘Notwithstanding any other law, but subject to
subsection (3) and (6), a regional court or a High Court shall
sentence a person it has convicted of an offence referred to in
Part
I
of Schedule 2 to imprisonment for life.’
Part I
of Schedule
2 includes rape when committed ‘(
b
)
where the victim- (i) is a person under the age of 16 years’.