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[2014] ZASCA 122
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Nndateni v S (959/13) [2014] ZASCA 122 (19 September 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 959/13
Not
reportable
In
the matter between:
NYELISANI
NNDATENI
........................................................................................................
Appellant
and
THE
STATE
...........................................................................................................................
Respondent
Neutral
citation:
Nndateni v The State
(959/13)
[2014] ZASCA 122(19 September 2014)
Coram:
Mhlantla, Theron, Willis and Swain JJA and Legodi
AJA
Heard:
22 May and 16 September 2014
Delivered:
19 September 2014
Summary:
Sentence – appeal against - rape
– accused not charged in terms of the provisions of
Criminal
Law Amendment Act 105 of 1997
– high court however sentencing
appellant to life imprisonment in terms of Act – such
constituting material misdirection
– sentence set aside –
case remitted to the high court for the reconsideration of sentence.
ORDER
On
appeal from the Limpopo High Court, Thohoyandou (Hetisani J) sitting
as court of first instance):
1 The appeal is
upheld.
2 The sentence
imposed by the high court is set aside.
3
The matter is remitted to the high court for the reconsideration of
sentence.
JUDGMENT
Legodi
AJA (Mhlantla, Theron, Willis and Swain JJA concurring):
[1]
This appeal with the leave of the Limpopo High Court, Thohoyandou, is
directed against sentence only. The appellant was indicted
before
Hetisani J on one count of rape.
[1]
He
pleaded not guilty and elected to remain silent. At the end of the
trial he was found guilty as charged and sentenced to life
imprisonment.
[2]
The background facts underlying the conviction may be summarised as
follows. The complainant lived with her daughter who is
physically
disabled. Her son, who was the appellant’s friend, had died a
few years before the incident. On 20 August 2006
at about 19h00 the
appellant arrived at the home of the complainant. He joined the
complainant who was inside the lapa. After a
while, the complainant
went out and on her return, found the appellant standing at the
corner of the house. He grabbed the complainant
by her throat causing
her to fall. He raped her repeatedly both anally and vaginally until
dawn. She soiled herself as a result
of the rape. The appellant also
assaulted the complainant because she offered some resistance during
the incident. She sustained
bodily injuries. She also had marks on
her throat after being throttled by the appellant. The appellant
threatened to kill her
by hanging her in the same manner in which her
son had died. At dawn, whilst the appellant was raping the
complainant, she enquired
if he wanted to kill her. He did not
respond but stopped raping her and ran away. Throughout this
incident, the complainant's daughter
was alone inside the house. She
could not help her mother owing to her disability.
[3]
Immediately after the incident, the complainant could not walk due to
her injuries. She crawled to the lapa and entered the
house. She
slept for a while and thereafter went outside and called for help.
Mrs Mogedzi, her neighbour, came. The complainant
reported the
incident to Mrs Mogedzi, who contacted the complainant's elder
sister. The complainant was thereafter taken to the
hospital.
[4]
The complainant was examined by a doctor, who recorded that she was
emotionally upset and appeared to be shocked and anxious.
The doctor
noted the following bodily injuries: the left side of the face and
cheeks was bruised; very swollen, tender and contused
lips; swollen
and bruised right thigh and abrasion wounds on her neck and both
sides of her trachea. The gynaecological examination
revealed the
following: reddish and bruised urethral orifice, the folds of the
labia majora were lacerated, the labia minora was
bruised and
swollen, the para-urethral folds, posterior fourchette, the fossa
navicularis and the introitus were bruised, blood
stained and
swollen. The doctor recorded that the examination was painful.
[5]
The appellant maintained his innocence throughout the trial and
raised an alibi defence. After conviction he chose not to testify
in
mitigation. His legal representative addressed the court from the
Bar.
[6]
In his judgment on sentence Hetisani J stated:
‘
The
court is well aware of the fact that where there are substantial and
compelling circumstances the court may not impose the life
sentence.
Normally it happens where the victim was of tender age. Here we have
it the other way around; the victim was 42 years
older than the
perpetrator.’
It
is therefore apparent that Hetisani J believed that the provisions of
s 51 of the Criminal Law Amendment Act 105 of 1997 (the
Act) read
together with Part 1 of Schedule 2 to that Act applied. A minimum
sentence of life imprisonment was provided for where
the victim was
raped more than once, as occurred in the present appeal. On appeal,
it was common cause between the parties that,
prior to the judgment
on sentence, there was no indication that the State intended relying
on the minimum sentencing regime created
by the Act.
[7]
On 22 May 2014, the appeal was heard in this court. After argument,
we considered it to be in the interests of justice to seek
submissions from the Womens Legal Centre, Centre for Child Law, Legal
Resources Centre and Lawyers for Human Rights (the amicus
curiae
)
.
The parties and the amici were requested to make submissions on inter
alia:
(a) whether the
failure to warn an accused person that he faces a prescribed minimum
sentence affects his right to a fair trial
in respect of sentence;
and
(b) whether a court
on appeal, when considering a sentence afresh, may impose a sentence
equal to the prescribed sentence where
the accused was not so warned,
having regard to the provisions of s 35(3) of the Constitution.
We
received submissions from the parties and the amici. The amici
submitted comprehensive heads of argument. We are grateful for
their
participation and valuable submissions in this matter.
[8]
Before us it was accepted that the trial court committed a procedural
irregularity by invoking the provisions of the Act when
the
appellant’s attention was not drawn thereto. The issue was,
however, whether such irregularity was prejudicial to the
appellant
which, accordingly, rendered the trial unfair to the extent that the
sentence of life imprisonment could not stand.
[9]
The provisions of s 35 of the Constitution provide that every accused
person has a right to a fair trial. This includes the
right to be
informed of the charge with sufficient detail to answer. Cameron JA
in
S v Legoa
2003 (1) SACR 13
(SCA) at 22h-23b said the
following:
‘
The
Bill of Rights specifies that every accused has a right to a fair
trial. This right, the Constitutional Court has said, is broader
than
the specific rights set out in the sub-sections of the Bill of
Rights’ criminal trial provision. One of those specific
rights
is “to be informed of the charge with sufficient detail to
answer it”. What the ability to “answer”
a charge
encompasses this case does not require us to determine. But under the
constitutional dispensation it can certainly be
no less desirable
than under the common law that the facts the State intends to prove
to increase sentencing jurisdiction under
the 1997 statute should be
clearly set out in the charge-sheet.’
[10]
In
S v Ndlovu
2003 (1) SACR 331
(SCA) at 337a-c Mpati JA
stated:
‘
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.’
[11]
In
Sv Makatu
2006 (2) SACR 582
(SCA) at para 7, Lewis JA said
in relation to details that should be furnished to an accused person
charged with an offence in
terms of s 51(1) of the Act:
‘
As
a general rule, where the State charges an accused with an offence
governed by s 51(1) of the Act, such as premeditated murder,
it
should state this in the indictment. This rule is clearly neither
absolute nor inflexible. However, an accused faced with life
imprisonment ─ the most serious sentence that can be imposed ─
must from the outset know what the implications and
consequences of
the charge are. Such knowledge inevitably dictates decisions made by
an accused, such as whether to conduct his
or her own defence;
whether to apply for legal aid; whether to testify; what witnesses to
call; and any other factor that may affect
his or her right to a fair
trial. If during the course of a trial the State wishes to amend the
indictment it may apply to do so,
subject to the usual rules in
relation to prejudice.’
[12]
In
S v Kolea
2013 (1) SACR 409
(SCA), the high court in
Bloemfontein confirmed the conviction by the regional court and
imposed a sentence of 15 years’
imprisonment. On appeal against
both the conviction and sentence to the full court, the conviction
was confirmed but the sentence
of 15 years’ imprisonment was
increased to one of life imprisonment. In a further appeal to this
court against both the conviction
and sentence, the main issue was
whether on a charge of rape a sentencing court is precluded from
imposing a life sentence, or
from referring the matter to the high
court for consideration of that sentence, solely on the basis that
the charge sheet refers
to s 51(2) instead of s 51(1) of the Act.
Mbha AJA at para 11 stated:
‘
In
this case the state’s intention to rely on and invoke the
minimum sentencing provisions was made clear from the outset.
The
charge-sheet expressly recorded that the appellant was charged with
the offence of rape, read together with the provisions
of s 51(2) of
the Act. I am accordingly satisfied that the appellant, who was
legally represented throughout the trial, well knew
of the charge he
had to meet and that the state intended to rely on the minimum
sentencing regime created in the Act.’
Further
at para 12 he stated:
‘
.
. . Significantly, there was no objection to the fact that the matter
was now being transferred to the high court and to the prospect
of a
sentence of life imprisonment being imposed on the appellant, as
provided for in s 51(1) and not s 51(2) of the Act.’
It
was further held that in both the high court and full court there was
no objection to the indictment or summary of substantial
facts and
that the appellant’s counsel conceded in both courts that the
appellant had been correctly convicted. He pleaded
not guilty to the
charge and fully participated in the trial. He was convicted in
accordance with the evidence that was led in
relation to the charge
of rape. It was further held that it had not been demonstrated that
the appellant would have acted differently,
had the mistake not been
made in the charge-sheet.
[13]
The present case is distinguishable from the decisions in
Kolea
and
Makatu
as in both these cases, the indictment and the charge-sheet referred
to the provisions of the Act. In the present matter the indictment
did not refer to s 51 or any other provisions of the Act. Neither the
indictment nor the summary of substantial facts referred
to the
elements of the crime that would if proven, invoke a minimum sentence
of life imprisonment in terms of s 51(1) of the Act.
There is no
mention in the charge-sheet that the complainant was raped more than
once. This aspect emerged for the first time from
the evidence. The
accused was not warned at any stage during the proceedings that he
may face a minimum sentence upon conviction.
As a result the
appellant was not placed in a position to appreciate properly and in
good time the seriousness of the charge he
faced as well as its
possible consequences. This may have affected his faculty to make
appropriate decisions on how to conduct
his defence. There is no
indication in the record that the appellant or his legal
representative had any knowledge that the appellant
faced the
possibility of a minimum sentence upon conviction. It was only during
the course of the delivery of the judgment on sentence
that the
appellant was alerted that he faced a prospect of life in prison.
[14]
In the result, the process that led to the imposition of sentence was
irregular and infringed the appellant’s right to
a fair trial
in respect of sentence. This much was conceded by counsel for the
State.
[15]
As stated in
S v Langa
2010 (2) SACR 289
(KZP) at 306D-G:
‘
If
applying the provisions of the Act would give rise to an unfair trial
on sentence, the provisions of the Act must be regarded
as irrelevant
to any consideration of sentence, in order for the trial to be fair.
If irrelevant considerations are taken into
account on sentence, this
amounts to a misdirection, warranting the setting-aside of the
sentence and requiring the appeal court
to begin the sentencing
process
de novo
,
if it is in a position to do so. I am therefore of the view that, for
a trial court to apply a sentencing regime of which the
accused has
not had adequate and timeous knowledge, qualifies,
par
excellence
, as a material misdirection.
In my view, therefore, the consequence of a trial court applying the
provisions of the Act, in a situation
where the requisite knowledge
was lacking, amounts to a misdirection, warranting the setting-aside
of the sentence and fresh adjudication
of an appropriate sentence.’
[16]
It follows that the reliance by Hetisani J on the provisions of s 51
of the Act constitutes a material misdirection which is
sufficient to
vitiate the sentence. The sentence is accordingly set aside.
[17]
The issue that remains is whether this matter should be remitted to
the high court for sentencing or this court on appeal should
consider
sentence afresh. In considering this issue this court has to consider
the following questions: First, how much time has
elapsed since
conviction and sentence. Second, would the appellant be prejudiced by
the further delay occasioned by remitting the
case. Third, does the
court have sufficient information to exercise its discretion
properly. Regarding the aspect relating to the
sufficiency of
information, Shongwe JA said in
S v EN
2014 (1) SACR 198
(SCA)
at para 14:
‘
.
. . Sentencing is the most difficult stage of a criminal trial, in my
view. Courts should take care to elicit the necessary information
to
put them in a position to exercise their sentencing discretion
properly . . . Life imprisonment is the ultimate and most severe
sentence that our courts may impose; therefore a sentencing court
should be seen to have sufficient information before it to justify
that sentence.’
[18]
In this matter the relevant information to enable this court to
consider sentencing afresh is sparse. The appellant did not
testify
in mitigation of sentence. From the bar it was placed on record that
he was 28 years old at the time of the commission
of the offence,
illiterate and unemployed. The conduct of the appellant in committing
this particular crime was bizarre, but there
was no evidence in the
form of a pre-sentencing report. Such a report usually sheds light on
the appellant’s background and
upbringing and in some instances
may indicate what motivated him to commit the offence and whether he
is remorseful. The pre-sentencing
report could have covered some of
these issues. Counsel for both parties conceded that there was a
paucity of information from
the record and agreed that a remittal of
the matter to the high court for reconsideration would be appropriate
under the circumstances.
The amici were of one accord that the
information on the record was insufficient for the court to consider
sentence afresh.
[19]
It is so that the appellant has to date served a period of five years
in prison. He was convicted of a very serious offence
which justifies
the imposition of a severe custodial sentence. A reconsideration of
sentence by remitting the matter to the high
court for this purpose
will not occasion any delays which will prejudice the appellant. On
the contrary, it may inure to his benefit.
[20]
The matter should therefore be remitted to the high court for the
reconsideration of sentence after obtaining a pre-sentencing
report.
This should not only deal with the appellant’s circumstances
but in addition the impact the incident has had on the
complainant.
[21]
In the result the following order is made:
1 The appeal is
upheld.
2 The sentence
imposed by the high court is set aside.
3
The matter is remitted to the high court for the reconsideration of
sentence.
M
F LEGODI
ACTING
JUDGE OF APPEAL
APPEARANCES:
For Appellant: A L
Thomu
Instructed
by:
Thohoyandou
Justice Centre, Thohoyandou
Justice
Centre, Bloemfontein
For Respondent: A
Madzhuta
Instructed
by:
The
Director of Public Prosecutions, Thohoyandou
Director
of Public Prosecutions, Bloemfontein
For First Amicus
Curiae: A Du Toit
Instructed
by:
Trustees
For the Time Being of the Women’s
Legal
Centre Trust, Cape Town
Webbers,
Bloemfontein
For
Second to Fourth
Amicus
Curiae: M Bishop
Instructed
by:
Legal
Resources Centre, Cape Town
Webbers,
Bloemfontein
[1]
Rape in that on or about 20 August 2006 and at or near Ngovhela-
Madamalala Location, in the district of Thohoyandou, the accused
did
unlawfully and intentionally have sexual intercourse with S.S (the
complainant), a 66 year old female person without her
consent.