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[2014] ZASCA 149
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Ndlovu v S (204/2014) [2014] ZASCA 149 (26 September 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no
:
204/2014
DATE:
26 SEPTEMBER 2014
Not
Reportable
In the matter
between:
BRENDAN
SOLLY NDLOVU
................................
APPELLANT
And
THE
STATE
............................................................
RESPONDENT
Neutral
citation:
Ndlovu v The State
(204/2014)
[2014] ZASCA 149
(26 September 2014)
Coram:
Maya, Bosielo and Theron JJA
Heard:
10 September 2014
Delivered
26 September 2014
Summary:
Sentence – Prescribed sentences – Minimum sentence –
Imposition of in terms of
Criminal Law Amendment Act 105 of 1997
–
Error in charge-sheet – Charge-sheet incorrectly stating
offence as one of contravening
s 51(2)
instead of
s 51(1)
of the Act
– Such error, without more, does not result in a failure of
justice – Court not precluded from imposing
life imprisonment.
ORDER
On
appeal from:
North Gauteng
High
Court, Pretoria (Sapire and Bam AJJ sitting as court of appeal):
The
appeal against sentence is dismissed.
JUDGMENT
THERON
JA (Maya and Bosielo JJA concurring):
[1]
This appeal turns on whether an accused, who was charged with rape
read with the provisions of s 51(2) of the Criminal Law Amendment
Act
105 of 1997 (the Act), which provides for a minimum sentence of ten
years’ imprisonment upon conviction, can be sentenced
to life
imprisonment in terms of s 51(1) of the Act and whether or not this
has infringed such accused’s right to a fair
trial.
[2]
The appellant was charged in the regional court, Phalaborwa, with one
count of rape read with the provisions of s 51(2) of the
Act. During
his first appearance in the regional court on 26 February 2008, the
magistrate advised him of the seriousness of the
offence in respect
of which he was charged. He was advised that a conviction in terms of
s 51(2) could attract a minimum sentence
of 15 years’
imprisonment. The appellant was legally represented at the trial.
Despite his not-guilty plea, he was convicted
and sentenced to life
imprisonment. His appeal against both conviction and sentence was
dismissed by the North Gauteng High Court
(Sapire and Bam AJJ). He
appeals to this court against sentence with the leave of the high
court.
[3]
The incident giving rise to the appellant’s conviction occurred
during the early hours of the morning of 27 October 2007.
The
appellant accosted the complainant while she was on her way home. He
assaulted and threatened to kill her. She managed to escape
but he
apprehended and again assaulted her. He assaulted her with his fists,
as well as stones and bricks. He forcibly and without
her consent,
had sexual intercourse with her. Naked, and covered in blood, she
managed to escape. She sustained open wounds on
her head and mouth
and various scars. One of her teeth had to be removed in consequence
of the assault and the evidence was that
more of her teeth would be
removed in the future.
[4]
It is apparent from the following extract of the magistrate’s
judgment on sentence that the applicability of life imprisonment
had
been addressed during the course of argument on sentence:
‘
The
public prosecutor is of the view that [the] accused was …
(indistinct) … on the day in question and he [suggested]
that
the accused should be [sentenced] to life imprisonment.’
It
must be presumed that the magistrate, in sentencing the appellant to
life imprisonment, had acted in terms of s 51(1) read with
Part I of
Schedule 2 to the Act.
[5]
Section 51 of the Act provides:
'(1)
Notwithstanding any other law, but subject to subsections (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.
(2)
Notwithstanding any other law but subject to subsections (3) and (6),
a regional court or a High Court shall sentence a person
who has been
convicted of an offence referred to in ─
(a)
Part II of Schedule 2, in the case of ─
(i)
a first offender, to imprisonment for a period not less than 15
years;
(ii)
a second offender of any such offence, to imprisonment for a period
not less than 20 years; and
(iii)
a third or subsequent offender of any such offence, to imprisonment
for a period not less than 25 years;
(b)
Part III of Schedule 2, in the case of ─
(i)
a first offender, to imprisonment for a period not less than 10
years;
(ii)
a second offender of any such offence, to imprisonment for a period
not less than 15 years; and
(iii)
a third or subsequent offender of any such offence, to imprisonment
for a period not less than 20 years; and
(c)
Part IV of Schedule 2, in the case of ─
(i)
a first offender, to imprisonment for a period not less than 5 years;
(ii)
a second offender of any such offence, to imprisonment for a period
not less than 7 years; and
(iii)
a third or subsequent offender of any such offence, to imprisonment
for a period not less than 10 years;
Provided
that the maximum term of imprisonment that a regional court may
impose in terms of this subsection shall not exceed the
minimum term
of imprisonment that it must impose in terms of this subsection by
more than five years.
(3)
(a)
If any court referred to in subsection (1) or (2) is satisfied
that substantial and compelling circumstances exist which justify
the
imposition of a lesser sentence than the sentence prescribed in those
subsections, it shall enter those circumstances on the
record of the
proceedings and must thereupon impose such lesser sentence: Provided
that if a regional court imposes such a lesser
sentence in respect of
an offence referred to Part 1 of Schedule 2, it shall have
jurisdiction to impose a term of imprisonment
for a period not
exceeding 30 years.’
Part
1 of Schedule 2 prescribes the imposition of a minimum sentence of
life imprisonment in circumstances where, inter alia, the
rape
involved the infliction of grievous bodily harm.
[6]
The right to a fair trial is enshrined in the Constitution. Section
35(3) of the Constitution provides that every accused person
has a
right to a fair trial and this includes, inter alia, the right to be
informed of the charge with sufficient detail to answer
it. Lewis JA
in
S
v Makatu
,
[1]
and in relation to the details that should be furnished to an
accused, said that an accused must ‘know what the implications
and consequences of the charge are’.
Cameron
JA in
S
v Legoa
,
[2]
stated that, under the common law it was ‘desirable’,
although not ‘essential’ that the charge-sheet should
set
out the facts which the state intended to prove in order to bring the
accused within an enhanced sentencing jurisdiction.
[3]
The judge went on to point out that:
‘
.
. . under the new constitutional dispensation, the criterion for a
just criminal trial is “a concept of substantive fairness
which
is not to be equated with what might have passed muster in our
criminal courts before the Constitution of the Republic of
South
Africa Act 108 of 1996 came into force”.’
[4]
[7]
This court has, with good reason, been reluctant to lay down a
general rule as to what the charge sheet should contain. Lewis
JA in
S v Makatu
put it thus:
‘
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.’
[5]
The
main reasons for this, as succinctly stated by Cameron JA in
Legoa
,
is that the matter is one of substance and not form and a ‘general
requirement to this effect, if applied with undue formalism,
may
create intolerable complexities in the administration of justice’.
[6]
The question to be answered is whether the accused had a fair
trial,
[7]
and this is a fact
based enquiry that entails a ‘vigilant examination of the
relevant circumstances’.
[8]
[8]
The appellant, in support of the contention that his right to a fair
trial has been infringed, relied on the judgment of the
majority in
S
v Mashinini & another
,
[9]
where the two appellants and their two co-perpetrators were charged
with rape, read with the provisions of s 51(2) of the Act.
They
pleaded guilty and it emerged from their plea explanations that all
four of them had raped the complainant. After conviction,
the matter
was transferred to the high court, which confirmed their convictions
and sentenced them to life imprisonment. On appeal
to this court, the
majority set aside the sentence of life imprisonment, on the basis
that:
‘
the
state decided to restrict itself to s 51(2), where part III of
schedule 2 prescribes a sentence of ten years’ imprisonment.
This is what was put to the appellants and to which they pleaded
guilty. It was not thereafter open to the court to invoke a
completely
different section which provides for a more severe
sentence, unless the state had sought and been granted an amendment
of the charge-sheet
in terms of s 86 of the Criminal Procedure Act
prior to conviction. The state did not launch such an application.
The magistrate
was therefore bound to impose a sentence in terms of s
51(2) read with part III of schedule 2.’
[10]
(Footnotes omitted.)
[9]
This court (Mhlantla JA writing for the majority) found that (i) the
appellants were unfairly sentenced for an offence different
to the
one for which they were convicted; (ii) the magistrate ought to have
sentenced the appellants in terms of s 51(2), which
prescribed a
sentence of ten years’ imprisonment and (iii) the high court
erred in sentencing the appellants to life imprisonment
in terms of s
51(1) of the Act. The court then considered it competent for it to
impose sentence afresh ‘given the misdirection,
the lapse of
time and the fact that all the evidence is before us’.
[11]
Having found no substantial and compelling circumstances justifying a
sentence less than the prescribed minimum, the court imposed
a
sentence of ten years’ imprisonment on both appellants.
[10]
In
S
v Kolea
[12]
the issue on appeal was whether a sentencing court was precluded from
imposing a life sentence upon conviction of rape where the
charge-sheet referred to the incorrect provision of the Act, despite
the jurisdictional facts establishing that the rape fell within
the
ambit of cases for which life imprisonment was the applicable minimum
sentence having been proved. This court declined to approve
the
ruling in
Mashinini,
finding
that the majority had misread the provisions of s 51(2) in that a
minimum sentence is exactly that; a prescribed minimum,
and where the
evidence establishes that a more onerous sentence is justified, the
imposition of such does not constitute an irregularity
that
implicates fair trial rights. Mbha AJA, writing for the court,
stated:
‘
The
term of 10 years’ imprisonment referred to therein is
the minimum sentence that can be imposed. This means that any
sentence in excess of 10 years' imprisonment, and possibly even life
imprisonment, could be imposed by a court having jurisdiction
to do
so. Furthermore, the fact, that a statute provides for an increased
sentence with reference to a particular type of offence
when
committed under particular circumstances, does not mean that a
different offence has been created thereby.
.
. .
The
fact, that the Act specifies penalties in respect of certain offences
(in this case rape, where more than one person raped the
victim),
does not in any way mean that a new type of offence has been created.
Rape remains rape, but the Act provides for a more
severe sanction
where, for example, the victim has been raped more than once or by
more than one person.’
[13]
[11]
This court concluded that the fact that the charge-sheet had a defect
which was never rectified, did not of its own render
the proceedings
invalid. Mbha AJA confirmed that the test is always whether or not
the accused had suffered any prejudice.
[14]
Furthermore, Mbha AJA noted that the appellant had been sufficiently
warned of the charge he faced by virtue of the reference to
the
minimum sentencing legislation in his charge sheet, and thus the
required standard of ‘sufficient detail’ contained
in s
35(3)
(a)
of the Constitution was met, despite the incorrect provision being
referred to in the charge-sheet. In addition, the court found
that
the appellant was convicted on the evidence placed before the court
and ‘[i]t has not been demonstrated that the appellant
would
have acted differently, had the mistake not been made in the
charge-sheet’.
[15]
This
court dismissed the appeal against sentence and the sentence of life
imprisonment was confirmed.
[12]
In this matter, it was brought to the attention of the appellant at
the outset of the trial that the state intended to rely
on the
minimum sentencing regime created by the Act, albeit that the
incorrect section of the Act was referred to. As has already
been
mentioned, the appellant was advised that if convicted, he faced the
possible imposition of a minimum sentence of 15 years’
imprisonment. The facts of this matter are closely akin to
those of
Mashinini
and
Kolea
. The principle emerging
from
Kolea
is that the imposition of a sentence of life
imprisonment in these circumstances will not in itself result in a
failure of justice
which vitiates the sentence.
[13]
I turn now to consider whether the appellant’s right to a fair
trial has been infringed. Counsel for the appellant submitted
that
the appellant had been prejudiced in that had he known that he faced
the prospect of life imprisonment he would not have taken
the
decision to have his trial continue without the results of the DNA
analysis from the samples that were sent to the forensic
laboratory
for testing. This submission is not borne out by the record. On 9
October 2008, the matter was adjourned at the instance
of the defence
for ‘DNA tests to be conducted on the accused’. On 6 May
2009, the public prosecutor advised the court
that the DNA results
had not yet been received and that there was a more than six month
backlog at the forensic laboratory. The
state then closed its case.
The appellant’s legal representative addressed the court in the
following terms:
‘
Your
worship taking into account the duration of the matter having been
pending before the honourable court, the defence feels that
it will
still be indefinite that we wait for the results your worship. It
will be in the [interests] of justice that the matter
be proceeded
with in the absence of such results.’
[14]
The appellant and his legal representative took a conscious decision
to proceed without the DNA evidence. This notwithstanding
that they
were aware of the fact that the state intended invoking the minimum
sentencing regime created by the Act, It is speculation
to say that
the appellant would have decided to wait for the DNA results. No
factual foundation has been laid by the appellant
to support a
finding that his right to a fair trial was prejudiced by the error on
the charge-sheet. This court has held that such
mistakes must be
approached in the context of fairness as it applies both to the
accused and the public as represented by the state.
[16]
The high court, in considering this issue stated that the appellant
had been legally represented,
‘
and
the case was conducted in such a way that it cannot be said that any
other information would have changed it. As we have seen
the offence
on the merits was unsustainable and the conviction has to be upheld.
It
cannot be said that the mere fact that the wrong section of the Act
was initially and repeatedly used in any way prejudiced the
appellant
as far as the sentence is concerned.’
I
agree with this reasoning and therefore conclude that it has not been
established that the appellant’s right to a fair trial
has been
infringed.
[15]
The final question to be considered is whether this court should
interfere with the sentence imposed by the trial court. As
pointed
out by the high court, the trial court, in determining an appropriate
sentence took into account the appellant’s
personal
circumstances. It noted as an aggravating fact that the complainant
was seriously assaulted even before she was raped
and stated:
‘
Bearing
in mind the seriousness of the assault I am not convinced that the
magistrate erred in any way in imposing the sentence
he did. The
appellant acted with aggression and his assault was a vicious and
dangerous one and one can accept that the victim
was highly
traumatised in the course of the commission of the offence.’
The
reasoning of the high court is unassailable. In my judgment there
were no compelling and substantial circumstances in this matter
justifying a departure from the prescribed minimum sentence of life
imprisonment.
[16]
The appeal against sentence is dismissed.
L V THERON
JUDGE OF APPEAL
APPEARANCES
For
Appellant: H L Alberts
Instructed
by:
Justice
Centre, Pretoria
Justice
Centre, Bloemfontein
For
Respondent: M Jansen van Vuuren
Instructed
by:
The
Director of Public Prosecutions, Pretoria
The
Director of Public Prosecutions,
Bloemfontein
[1]
S
v Makatu
2006 (2) SACR 582
(SCA) para 7.
[2]
S
v
Legoa
2003 (1) SACR 13 (SCA).
[3]
Paragraph
20.
[4]
Ibid
.
[5]
Makatu
supra
para
7.
[6]
Legoa
supra
para21.
See also
S
v Ndlovu
2003 (1) SACR 331
(SCA) para 12.
[7]
S
v
Legoa
supra
para
22.
[8]
S
v Ndlovu
supra
para 12;
S
v Mthembu
2012 (1) SACR 517
(SCA) para 17.
[9]
S
v Mashinini & another
2012
(1) SACR 604 (SCA).
[10]
Paragraph
17.
[11]
Paragraph
19.
[12]
S
v Kolea
2013
(1) SACR 409 (SCA).
[13]
Paragraph
17.
[14]
Paragraph
18.
[15]
S
v Kolea supra
para 14.
[16]
S
v Kolea
supra
para 20.