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[2013] ZASCA 149
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Makatu v S (612/2012) [2013] ZASCA 149; [2014] 1 All SA 141 (SCA); 2014 (2) SACR 539 (SCA) (25 October 2013)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 612/2012
Reportable
In the matter between
HUMBULANI MAKATU
........................................................................................
APPELLANT
and
THE STATE
.......................................................................................................
RESPONDENT
Neutral citation:
Makatu v
The State
(612/12)
[2013] ZASCA 149
(25 October 2013)
Coram:
Navsa ADP; Maya, Bosielo
and Pillay JJA and Meyer AJA
Heard: 03 September 2013
Delivered: 25 October 2013
Summary: Appeal against both
convictions and sentences – 3 counts – murder –
rape (read with
section 51(1)
of the
Criminal Law Amendment Act 105
of 1997
) – robbery – pleas of guilty – whether the
written statement in terms of s 112(2) of the Criminal Procedure Act
51 of 1997 set out all the essential elements which constituted the
offences in respect of which the appellant pleaded guilty –
whether the evidence on the murder charge was sufficient to support
the inference of intent to kill – the proper approach
to
sentencing – whether the sentences imposed are appropriate.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
Limpopo High
Court, Thohoyandou (Makgoba J, sitting as a court of first instance):
[1] The appeal against the convictions
on all three counts is dismissed.
[2] The appeal against the sentences
imposed in respect of counts 1 and 2 is upheld. The sentences imposed
by the trial judge are
set aside and replaced with the following:
‘
(i)
Ad
Count 1: Murder
The accused is sentenced to 15 years’
imprisonment.
(ii)
Ad Count 2: Rape
The accused is sentenced to 10 years’
imprisonment; of which 5 years is ordered to run concurrently with
the sentence of 15
years imposed in count 1;
(iii)
Ad Count 3: Theft
The accused is sentenced to 6 months’
imprisonment, which is ordered to run concurrently with the sentence
of 15 years imposed
in respect of Count 1.
[3] The effective sentence is
imprisonment for 20 years.
______________________________________________________________
JUDGMENT
______________________________________________________________
BOSIELO JA (MAYA JA concurring):
[1] The appellant was arraigned before
the Limpopo High Court (Makgoba J) and charged with three counts,
namely murder, rape (read
with the provisions of s 51(1)(
a
) of
the
Criminal Law Amendment Act 105 of 1997
) and robbery. He pleaded
not guilty to the charge of murder but guilty to rape, as set out in
the indictment, and to theft in respect
of the charge of robbery. His
legal representative submitted a written plea explanation in terms of
s 112(2) of the Criminal Procedure
Act 51 of 1977 (CPA). The
appellant confirmed the contents thereof.
[2] Regarding the charge of murder,
the appellant’s counsel made certain admissions which were
recorded in terms of s 220
of the CPA, after the appellant had
confirmed them. These admissions are merely formal and relate to the
identity of the deceased;
that she died on 19 January 2004 as a
result of injuries she sustained on that day; that until the autopsy
was conducted on 21
January 2004, the deceased received no further
injuries; that Dr Matodzi conducted the post-mortem examination on
the deceased;
that the report on form SAP 378 contained Dr Matodzi’s
findings and that they are correct; and further that the photographs
which were handed in by the State depicted the crime scene.
[3] At the end of the trial, the
appellant was sentenced on 9 June 2004 as follows: murder,
imprisonment for life; rape, imprisonment
for 20 years; and theft,
imprisonment for 6 months. The sentences in respect of the counts of
rape and theft were ordered to run
concurrently with the life
imprisonment imposed in respect of the count of murder. He started
serving those sentences on that day.
[4] He was granted leave to appeal by
the court below against both his convictions and sentences on 12 June
2012. This was after
a delay of some 8 years. The appeal in this
court was heard on 3 September 2013.
[5] As the appellant pleaded guilty to
two of the counts, the facts relevant to the commission of these
offences are paltry. The
only evidential material which was put
before the trial court consists of the section 220 admissions made by
the appellant and
the evidence adduced by Dr Matodzi, who conducted
the post-mortem examination on the deceased’s body.
[6] Crucially, in his s 220
admissions, the appellant gave an account of the events of the day
which culminated in the deceased’s
death as follows: that he
and the deceased were on their way home from a drinking spree and
were both drunk; he wanted to have
sexual intercourse with the
deceased; she resisted his advances; a struggle ensued during which
the deceased fell to the ground;
he got on top of her; the deceased
tried to get up, apparently trying to prevent the appellant from
having sexual intercourse with
her; in the process, whilst trying to
subdue her, he grabbed her by her neck and pressed her down; he only
discovered after he
had had sexual intercourse with her that the
deceased was motionless. He stated
that
it was neither his intention to kill the deceased nor did he foresee
that she would die from their struggle.
[7] In the main the appellant launched
a two-pronged attack against his convictions. Essentially, he relied
on what he described
as deficiencies in the state’s case.
[8] As the main thrust of the appeal
is that the s 112(2) statement in respect of counts 2 and 3 did not
contain the requisite details,
I deem it necessary to quote it in
full. It reads:
‘
I,
the undersigned, Humbulani Makatu, do hereby state as follows: I am
the accused in this matter. I have read and understood the
charges
laid against me by the state. I plead not guilty to count 1 of
murder, I plead guilty to count 2 of rape. I also plead
guilty to
theft, which is the competent verdict of count 3 of robbery. I admit
that on 19 January 2004 and Gaba Location in the
district of
Thohoyandou I unlawfully and intentionally had sexual intercourse
with Balanganani Tshavumbe Mukada, a female person,
without her
consent. I knew that it was wrong to have sexual intercourse with the
complainant without her consent. I also admit
that on the same date
mentioned in the indictment, I also stole A35 Siemens cellular phone
belonging to Balanganani Tshavumbe Mukada.
I also knew that it was
wrong to steal somebody’s property. I am making this statement
freely and voluntary without having
been unduly influenced and the
consequences of this statement has been explained to me.’
[9] Concerning the count of murder,
the main attack which was foreshadowed in his heads of argument, is
that the trial court erred
in convicting him as the state did not
lead evidence to prove intent. I understood the submission to be that
the combined effect
of the appellant’s s 220 admissions and the
medical evidence by Dr Matodzi is not sufficient to justify an
inference of the
intention to kill the deceased as the only
reasonable inference to be drawn from these facts.
[10] Dr Matodzi’s evidence is
crucial. She testified that the cause of death is
anoxic anoxia
which she explained as a lack of oxygen supply to the body tissue,
the brain or the body generally. She explained further that
this
could have been caused by strangulation. Based on the ligature marks
which she found around the deceased’s neck, which
are clearly
visible on some of the photographs admitted as exhibits, she
concluded that these were probably caused by a rope. She
refuted any
suggestion that these marks could have been caused by bare hands.
Significantly the doctor also ruled out any possibility
that the
deceased could have hung herself. Her uncontroverted evidence is
fatal to the appellant’s case.
[11] However, this is not the end of
the matter. In convicting the appellant of murder, the trial judge
inadvertently omitted to
indicate whether it was with direct intent
or
dolus eventualis
. However, what is clear from the
appellant’s s 220 admissions is that he and the deceased came
from a shebeen where they
had been drinking. They then left together
in order to go home. Along the way, the appellant wanted to have
sexual intercourse
with her. When she resisted his advances, he used
physical power to subdue her and he strangled her in the process.
There is no
evidence that this was pre-planned. As a result, I am
unable to conclude that it was proved beyond reasonable doubt that
the appellant
had planned
to kill the
deceased. However, the conclusion that he foresaw that she might die
from strangulation and that he recklessly persisted
with his conduct
is inescapable and reasonable. It follows that the appellant is
guilty of murder on the basis of
dolus eventualis.
[12] The main attack against the
conviction of rape is that the section 112(2) statement was a mere
regurgitation of the indictment
and that it did not provide the
necessary details to constitute the offence. Although Mr Madima for
the appellant was not forthcoming
on this aspect, it appears that the
complaint is that the indictment used the expression ‘sexual
intercourse’ without
stating in clear terms that there was
penetration of the deceased’s vagina by the appellant’s
penis. Relying on a recent
and unreported judgment of this court in
Nemavhola v State
(45/13)
[2013] ZASCA 81
, the appellant’s
counsel submitted that absent these details, the appellant may not
have known what sexual intercourse meant.
[13] It suffices to state that the
facts in
Nemavhola
are distinguishable. In
Nemavhola
the complainant was a minor girl who
was 13 years old. Understandably, given her young age, immaturity,
lack of education and adult
life experience, the court held that she
could, in all likelihood, not have known what sexual intercourse is.
To obviate this uncertainty,
the court held that she should have been
asked relevant questions to clarify what she meant by sexual
intercourse. This concern
is not applicable to the present case. The
appellant is 23 years old.
1
In his plea explanation that was
prepared by his legal representative and which he confirmed as
correct, he freely and voluntarily
used the phrase sexual
intercourse. Furthermore, he admitted that the sexual intercourse was
without her consent and, importantly,
that he knew that it was wrong.
To argue that he did not understand what sexual intercourse means,
thus implying that he pleaded
guilty under a misapprehension of the
proper charge is disingenuous to say the least. There is no substance
to this submission.
[14] The appellant pleaded guilty to
theft instead of robbery which plea the state accepted. In his s
112(2) statement he said the
following:
‘…
I
also admit that on the same date mentioned in the indictment, I also
stole A35 Siemens cellular phone belonging to Balangenani
Tshavumbe
Mukada. I also knew that it was wrong to steal somebody’s
property. I am making this statement freely and voluntarily
without
having been unduly influenced and the consequences of this statement
has (sic) been explained to me.’
[15] The contention here, as
foreshadowed in the appellant’s heads of argument, is that the
s 112(2) statement was deficient
and ought not to have satisfied the
trial court that the appellant was indeed guilty of theft. It was
contended that the statement
omitted the essentialia of theft, being
unlawfulness, intention and appropriation. On being probed on what
the appellant intended
to convey in his statement, in particular by
the choice of the word ‘steal’ coupled with his
explanation that ‘I
also knew that it was wrong to steal’,
Mr Maduma conceded that his submissions were without merit.
Importantly, he added
that this must be so, particularly because the
appellant enjoyed legal representation throughout the trial.
[16] The word ‘steal’ is
not a technical word. It is a word that is ordinarily used by lay
persons in their daily encounters.
It is easy to understand. Even the
dictionary meaning of the word is clear, that ‘I take
(something) without permission or
legal right and without intending
to return it dishonestly pass off (another person’s ideas) as
one’s own to give or
take surreptitiously or without
permission.
2
[17] Consequently the appeal against
the convictions on all the three counts must fail.
[18] I now deal with the sentences
imposed on the appellant. Both counsel addressed the trial court from
the bar regarding sentence.
No witnesses were called to testify.
[19] The following facts were put on
record in favour of the appellant: that he was a first offender; he
was remorseful; he was
not attending school; he was not employed and
that he was under the influence of liquor, even though he was able to
distinguish
between right and wrong; and finally, that he had been in
custody pending his trial.
[20] Regarding the nature and
seriousness of the offences, the appellant’s counsel conceded
that all these offences are serious,
more so, that ultimately the
deceased lost her life. Given the facts of this case, the concession
was properly made.
[21] Counsel for the state submitted
to the trial court that what made this case even more serious is that
the deceased was related
to the appellant. She was his mother’s
elder sister. By raping and then murdering her, the appellant abused
the trust relationship
between them. Based on this, he argued for the
imposition of the minimum sentence as prescribed by the
Criminal Law
Amendment Act 105 of 1997
, more so, he contended, because the
appellant had proffered no facts which qualified as substantial and
compelling circumstances
to justify a sentence lesser than the
minimum one prescribed by the Act.
[22] Almost 15 years ago, this Court
enunciated the correct judicial approach to sentencing in
S
v Siebert
3
as follows:
‘
Sentencing
is a judicial function
sui
generis
.
It should not be governed by considerations based on notions akin to
onus of proof. In this field of law, public interest requires
the
court to play a more active inquisitorial role. The accused should
not be sentenced unless and until the facts and circumstances
necessary for the responsible exercise of such discretion have been
placed before the court… If there is insufficient evidence
before the court to enable it to exercise proper judicial sentencing
discretion, it is the duty of that court to call for such
evidence.
Especially as regards correctional supervision this duty can be
discharged easily and without any costs to the accused,
by calling
for the probation officers’ report required by s 276(A)(1)
of the Act.’
[23] The trial judge was guilty of a
number of misdirections which to my mind are so gross that they
vitiate the sentences imposed.
First, in sentencing the appellant to
imprisonment for life for murder, he states that the murder was
committed under circumstances
where the offence justified the
sentence prescribed under Schedule 2 of Part 1 of the Criminal Law
Amendment. A major problem here
is that the indictment never made
mention of this section or the Act. It does not even give any details
to indicate if there are
any aggravating features which would bring
it within the ambit of the minimum sentencing regime
[24] Secondly, no evidence was led to
bring this murder within the purview of the section. Throughout the
trial no mention was made
of the section except in a cursory manner
during the sentencing stage. Suffice to state that this is in
conflict with the long
line of cases from this court starting with
S
v Seleke en andere
1976 (1) 675 (T); followed by
S v Legoa
2003 (1) SACR 13
(SCA);
S v Ndhlovu
2003 (1) SACR 331
(SCA);
S v Makatu
2006 (2) SACR 582
(SCA);
and S v Kolea
2013 (1) SACR 409
(SCA). Based on the above, it follows ineluctably
that the sentence of life imprisonment was wrongly imposed.
[25] I am also perturbed by a sentence
of 20 years’ imprisonment imposed on the rape count. This rape
is described in the
indictment as falling under s 51(1)(
a
) of
the
Criminal Law Amendment Act. This
cannot be correct as there is no
such section.
Section 51(1)
does not have a subsection. The only part
of the Act that might be relevant is s 51(2)(
b
) which refers
to Part III of the Schedule. This section prescribes a sentence of
not less than 10 years for a first offender unless
there are
substantial and compelling circumstances to justify a lesser sentence
as contemplated in s 51 (3) of the Act.
[26] Undoubtedly, the disparity
between 10 and 20 years is stark. Even more disturbing is the fact
that the record is silent regarding
any facts or circumstances which
justified such a drastic departure from the threshold being a minimum
of 10 years to 20 years.
There is no justification for such a huge
disparity. This is yet another misdirection by the trial court. This
sentence must be
set aside.
[27] Both counts 1 and 2 were not
accurately crafted. Evidently, count 1 falls under Part 1 of Schedule
2 read with s 51(1)(
b
) or (
c
) of the
Criminal Law
Amendment Act which
, absent, substantial and compelling
circumstances, calls for life imprisonment. Count 2 is rape committed
in circumstances where
the victim was killed in the process. It falls
under
Part 1
of Schedule 2 read with
s 51(1)(
c
)(
i
) and
also qualifies for life imprisonment unless substantial and
compelling circumstances have been found to exist.
[28] This lapse can only be attributed
to lack of diligence and conscientiousness on the part of the
prosecution. Regrettably, there
are many cases which have come to
this Court from the Limpopo High Court with similar problems.
Unfortunately, this has resulted
in accused persons not being
appropriately punished for the crimes which they in fact committed
but which were never properly put
to them. Without doubt, this is a
disturbing trend which this Court can no longer ignore as it has the
potential of throwing the
administration of justice into disrepute.
[29] Although the appellant was
originally charged with robbery under count 3, he was convicted of
theft following his plea of guilty
to the crime of theft. He was
sentenced to imprisonment for a period of 6 months. No legitimate
attack was launched against this
sentence. In any event, I do not
think that there is any good reason, given the facts of this case, to
interfere with this sentence.
[30] For some time now this country
has witnessed an ever-increasing wave in crimes of violence, notably
murder and sexual offences.
Undoubtedly, these crimes seriously
threaten the very social and moral fabric of our society. As a result
our society is seriously
fractured. The majority of our people,
particularly the vulnerable and the defenceless which include women,
children, the elderly
and infirm live under constant fear. It is no
exaggeration to say that every living woman or girl in this country
is a potential
victim of either murder or rape. This is sad because
these heinous crimes happen against the backdrop of our new and
fledgling
constitutional democracy, which promises a better life for
all. These crimes have spread across the length and the breadth of
our
beautiful country like a malignant cancer. They are a serious
threat to our nascent democracy. They have to be exterminated with
their roots.
[31] There is a huge and countrywide
outcry by citizens, civic organisations, NGO’s, politicians,
religious leaders and people
across the racial, class and cultural
divide about these crimes which have become a scourge. There is
hardly a day that passes
without a report of any of these crimes in
the media, it be print or electronic. The Legislature responded to
the public outcry
with, amongst others the
Criminal Law Amendment Act
105 of 1997
, which singled out these crimes that are a threat to our
wellbeing and welfare, for very severe sentences, the main objective
being
to punish offenders effectively and in appropriate cases, to
remove those who are a danger to society from our midst,
circumstances
permitting either for life or long term imprisonment.
In addition the national Government declared the period from 15
November
to 10 December, popularly known as 16 days of activism to be
a nationwide campaign to promote a culture and ethos of no violence
against women and children. I regret to state that everyday media
reports and statistics from the South African Police Services
(SAPS)
and the National Prosecuting Authority (NPA) seem to suggest that,
despite all these gallant efforts by Government, we are
not winning
the battle against these crimes.
[32] Faced with this scourge, what
role can our courts play to ensure that the rights of all citizens
are protected? Our courts
which are an important partner in the fight
against crime cannot be seen to be supine and unmoved by such crimes.
Our courts must
accept their enormous responsibility of protecting
society by imposing appropriate sentences for such crimes. It is
through imposing
appropriate sentences that the courts can, without
pandering to the whims of the public send a clear and unequivocal
message that
there is no room for criminals in our society. This
in turn will have the salutary effect of engendering and
enhancing the confidence of the public in the judicial system.
Inevitably,
this will serve to bolster respect for the rule of law in
the country. See
R v Karg
1961 (1) SA 231
(AD) at 236A-C;
S
v Mafu
1992 (2) SACR 494
(A) at p496G-J and
S v Mhlakaza and
another
1997 (1) SACR 515
(SCA).
[33] Having found that the trial court
misdirected itself in material respects this court is at large to
interfere with the sentences
imposed.
[34] What then is the appropriate
sentence for the appellant? I am of the view that a sentence of 20
years’ imprisonment on
the count of murder will serve the
purposes of punishment, in particular, deterrence and retribution in
that, while sentencing
the appellant appropriately for the offences
which he committed, it will at the same time articulate society’s
moral outrage
and revulsion at the appellant’s conduct without
destroying him unnecessarily.
[35] Regarding the count of rape, I
have already indicated above that the appellant should have been
convicted of rape read with
the provisions of
s 51(2)
of
Part
III
of the Schedule which prescribes a minimum sentence of
imprisonment for 10 years for a first offender unless the court finds
substantial
and compelling circumstances to justify a lesser
sentence. The appellant was a first offender. There is no
justification on the
record for a radical departure from imprisonment
for 10 years to 20 years. This is a clear misdirection. In my view,
the sentence
of imprisonment for 10 years would be appropriate.
[36] In respect of the count of theft,
as I stated in para 29 above, no attack was directed against the
sentence of imprisonment
for 6 months imposed on the appellant.
Evidently, the sentence does not warrant any interference.
[37] I interpose to deal with one
aspect of this case that has caused me considerable disquiet which is
the long delay in having
this appeal brought before this court. The
appellant was convicted and sentenced on 9 June 2004. He was granted
leave to appeal
on 12 June 2012. This is after a delay of some 8
years. The appeal was heard by the court on 3 September 2013. All in
all it took
9 years for this appeal to be heard. All this happened,
notwithstanding the fact that the appellant had according to papers
filed
in this court in support of a seemingly aborted application for
leave to appeal during February 2006 indicated that while acting
in
person had sought leave to appeal against the sentence, presumably
from the high court, but had received no response thereto.
[38] What exacerbates my disquiet is
that it has come to my attention that this case is not the only one
from the Thohoyandou High
Court which has been delayed unreasonably.
The reasons for such delays are different. Sometimes it is the
ineptitude on the part
of the Registrar whilst at other times, the
fault lies with the legal representatives. There are also times when
the court itself
is at fault. However, this is not the time to
apportion blame as the sad reality is that it is the appellants who
suffers the consequences.
Needless to state that this is a serious
violation of
s 35(3)(
d
) of the Constitution which guarantees
every accused the right to have their trial to begin and be concluded
without any unreasonable
delay. After all justice delayed is justice
denied.
[39] Understandably, this sorry state
of affairs caused us considerable unease. In an attempt to get an
understanding of this problem
we subjected Mr Poodhun, counsel for
the respondent, to some lengthy questioning about the inordinate
delays, improperly crafted
indictments and other irregularities which
have become a common feature of that court. The need to investigate
this problem became
manifest, hence the brief, albeit not exhaustive
survey of some of the cases we heard in this court coming from that
court as discussed
below.
[40] Although this list is not
exhaustive, the following cases serve to illustrate the plight of
some of the appellants whose matters
came before this court in the
last 5 years from the Limpopo High Court (Thohoyandou):
(a)
S v Fhetani
[2007] (2) SACR 590
(SCA)
. The appellant was charged with rape
alternatively unlawful sexual intercourse with a girl below the age
of 16 years. He pleaded
guilty and was convicted on the alternative
count. Surprisingly, the court sentenced him to 15 years’
imprisonment for rape.
Hence this appeal. Regrettably the delays
herein were caused by the legal representatives appointed for the
appellant by the Legal
Aid Board as he was indigent. Leave herein was
granted on 5 December 2002. Advocate Sikhwari was briefed to prepare
the notice
of appeal. In May 2004 the advocate returned the brief due
to a dispute about fees. The record was only received on 24 July
2003.
There is no explanation for this delay. The record is only 47
pages. One Advocate Snyman was briefed to draw heads of argument.
It
took him a full year to produce the heads. Still there is no
explanation for this long delay. The appeal was heard by this Court
on 11 September 2007. By that time the appellant had been in custody
for 5 years.
(b)
S v MM
[2012] (2)
SACR 18
(SCA)
. The appellant was sentenced on 12 October 2004, to
life imprisonment for rape of a 7 year old girl. Leave to appeal was
only granted
on 11 May 2009, 5 years after the application was heard.
The appeal was heard by this Court on 8 March 2012, a delay of
another
3 years.
(c)
Mapule v S
(817/11)
[2012] ZASCA 80
. The appellant was convicted of rape on
26 October 2001. Leave to appeal was granted 7 years later. The
appeal was heard in this
court on 18 May 2012. By that time the
appellant had already served 11 years.
(d)
Chauke and another v S
(70/12)
[2012] ZASCA 143
. Leave to appeal was granted after 5½
years. Because of this delay, the appellant had to request the
Inspecting Judge of
Prisons and the Minister to intervene. The
Minister referred the case to the Registrar, who also delayed. As a
result, the matter
came to this court on appeal 11 years after the
appellant had been sentenced.
(e)
S v Tshimbudzi
[2013] (1) SACR 528
(SCA)
. The appeal came before this court 12
years after the appellant had been sentenced to life imprisonment.
The appellant had been in custody throughout
. The appeal
against both conviction and sentence were set aside on 30 November
2012.
(f)
S v Ramulifho
2013 (1) SACR 388
(SCA)
. The appellant was sentenced on 18 July
2002. He spent 12 years in custody, of which 2 years awaiting trial.
It took 10 years for
his application for leave to appeal to be heard.
The appeal was only heard on 9 November 2012 ie after 10 years.
(g)
Nedzamba v S
(911/12)
[2013] ZASCA 69
. In this case the court remarked that:
‘in this case there were numerous mishaps, encompassing
investigations, the prosecution,
the trial and even the present
appeal.’ As a result, this court concluded that all these
irregularities resulted in an injustice
to both the complainant and
the appellant.
[41] An analysis of all these cases
indicates a disturbing practice that has taken roots in that
division. It appears that generally
there is some serious apathy and
ineptitude on the part of the various players involved in the
administration of justice
viz
. the courts, registrar,
prosecution and the lawyers themselves. All this redound to the grave
injustice on either the appellants
or the victims. However, the
biggest victim is the administration of justice which suffers
incalculable damage to its integrity
and standing in the eyes of the
public. Regrettably, this is likely to lead to loss of confidence in
the justice system by the
people. The result will be resort to
self-help concomitant with lawlessness and anarchy. This conduct
calls for a serious and urgent
investigation in the interests of
justice. I intend to make an appropriate order.
[42] Having given proper and anxious
consideration to the appellant and his personal circumstances as a
person, the nature, seriousness
and impact of the three offences on
society and the legitimate interests of society, and, with proper
appreciation of what was
stated many years ago in
S
v Zinn
4
and recently in
S
v Malgas
,
5
I am of the view that the following
sentences are appropriate.
[43] In the result the following order
is made:
[1] The appeal against the convictions
on all three counts is dismissed.
[2] The appeal against the sentences
imposed in respect of counts 1 and 2 is upheld. The sentences imposed
by the trial judge are
set aside and replaced with the following:
‘
(i)
Ad
Count 1: Murder
The accused is sentenced to 15 years’
imprisonment;
(ii)
Ad Count 2: Rape
The accused is sentenced to 10 years’
imprisonment; of which 5 years is ordered to run concurrently with
the sentence of 15
years imposed in respect of count 1.
(iii)
Ad Count 3: Theft
The appellant is sentenced to 6
months’ imprisonment, which is ordered to run concurrently with
the sentence of 15 years of
imprisonment imposed in respect of count
1.
[3] The effective sentence is
imprisonment for 20 years.
[4] The Registrar of this Court is
hereby directed to send a copy of this judgment to the Minister of
Justice and Constitutional
Development, the Commissioner of Police,
the Minister of Safety and Security, the Law Society of the Northern
Provinces and the
General Council of the Bar for further
investigations regarding the delays in the prosecution of criminal
appeals from the Limpopo
High Court (Thohoyandou).
_________________
L O BOSIELO
JUDGE OF APPEAL
NAVSA ADP (PILLAY JA and MEYER AJA
concurring):
[44] I have read the judgment of my
colleague, Bosielo JA. I agree with his conclusion in relation to the
setting aside of the sentence
imposed by the High Court and in the
main with his reasoning in relation thereto. Regrettably, I have
difficulty with his statements
concerning delay in the present case
and with what is set out in paragraphs 35-41 of his judgment. First,
it must be pointed out
at the outset that in the present case
systemic delay was not at any stage raised or complained of by the
appellant himself- not
in counsel’s heads of argument or in the
oral submissions made to us. Second, it is important and necessary to
have regard
to the facts provided by the appellant in respect of the
time lapse. They appear hereafter.
[45] In his application for
condonation for the late filing of the appeal record in this court
the appellant pointed out that he
enjoyed legal representation
throughout his trial, which ended on 9 June 2004. The following parts
of his affidavit are material
and therefore quoted in full:
‘
6.
6.1. After I was sentenced and
detained at Kutama Maximum Prison in Limpopo, I personally drafted
[an] application for leave to
appeal. My papers were not attended to.
As a result of that, I approached the Thohoyandou Justice Centre for
assistance with drafting
of [my] application for leave to appeal.
6.2. My case was handled by Mr.
Madima Maanda, hereinafter referred to as my Attorney, from the above
Justice Centre.
6.3. Both applications for
condonation and leave to appeal were granted by [the] Honourable Mr.
Justice MAKHAFOLA on 12
th
Day of June 2012.
6.4. I was granted leave to
appeal on both convictions and sentences.
7.
7.1. On 28
th
Day of
June 2012, my Attorney typed a letter requesting [the] transcribed
record from the Registrar of High Court, Thohoyandou.
7.2. My Attorney filed [the]
above letter with [the] Registrar of the High Court, Thohoyandou on
the 29
th
Day of June 2012.
8.
8. My Attorney informed me that
he received [the] transcribed record on 23
rd
Day of July
2012.
9.
9. The delay in prosecuting the
Appeal was not occasioned by me but by the delay in my legal
representative with the transcribed
record.’
[46] The appellant’s attorney,
Mr Maanda, in a supporting affidavit in the application for
condonation, stated that the applicant
had personally drafted an
application for leave to appeal in 2006, which was two years after he
had started serving his sentence.
He does not say what steps, if any,
were taken by the appellant to pursue that application - whether it
was processed in any manner,
shape or form - but merely that the
appellant approached the Justice Centre for assistance when he
realised that ‘his papers
were not being considered’. Mr
Maanda does not say when that approach was made. Significantly, there
is no specific complaint
of bureaucratic obstructionism or delay. Mr
Maanda went on to state that he prepared the applications for
condonation and leave
to appeal in the court below which, as stated
by the appellant, were granted on12 June 2012. On 28 June 2012, Mr
Maanda wrote a
letter to the Registrar of the court below requesting
a transcript of the record which was provided less than a month
later. The
final paragraph of Mr Maanda’s affidavit is cryptic
and not consonant with his conclusion when weighed against the time
lapse
of several years. He concludes by stating:
‘
The delay in
prosecuting the appeal was not occasioned by the applicant but by the
delay in providing me or our Justice Centre with
the transcribed
records.’
[47] There is no evidentiary support
for the assumption made at the end of paragraph 37. A lack of
response on the part of the High
Court is not complained of by the
appellant and his attorney’s statement about his realisation
that his papers were not being
considered is vague in the extreme and
it appears designedly so.
[48] What appears from the above is
that when the Registrar was approached and the court below was
presented with an application
for leave to appeal it was dealt with
promptly. The record also appears to have been transcribed in less
than a month. There is
a general and rather vague and unsubstantiated
statement by the appellant attributing the delay in obtaining the
transcript of
the record to fault on the part of his attorney. The
attorney, in turn, makes a general an even more vague statement about
the
delay and he attributes the delay in prosecuting the appeal to a
delay in being provided with the transcript of the record, which
is
not borne out by the facts he himself provided. There is no criticism
voiced against any or specific actors involved in the
administration
of justice in that division of the High Court.
[49] Thus, in the absence of anything
concrete, there can be no cause for ‘considerable’
disquiet about systemic delay
in the present case. In numerous
applications for leave to appeal in criminal cases considered by this
court, coming as they do
from various divisions of the High Court,
there have been delays of many years, attributable mainly to
convicted persons increasingly
only becoming aware of their right to
apply for leave to appeal and of their right to state-funded legal
assistance several years
after the conclusion of their criminal
trials. That appears to be equally so in the present case. It follows
from what is set out
above that this case does not present itself as
part of a trend that reflects systemic delay.
[50] In paragraph 40 of his judgment
my learned colleague refers to cases from the Limpopo High Court
which he concludes in a later
paragraph show a disturbing trend on
the part of various actors involved in the administration of justice.
This is said in the
context of state institutions contributing to
unreasonable delay.
[51] It is necessary to consider those
cases and their present relevance. In
S v Tshimbudzi
2013 (1)
SACR 528
(SCA), Bosielo JA stated the following:
‘
[3] This
appeal came before us 12 years after the appellant was sentenced to
imprisonment for life. However, this delay is substantially
due to
the appellant’s own inaction . . .’
As can be seen this court did not in
that case attribute fault to systemic delay but to the appellant.
[52] In
Mapule v S
(817/11)
[2012] ZASCA 80
(30 May 2012), the appellant had been convicted by a
regional court on a count of rape and was sentenced by the high court
to life
imprisonment. An application by the appellant for leave to
appeal was brought in the High Court which granted leave to appeal
against
conviction only. An enquiry by this court led to an
application for leave to appeal being granted in respect of sentence
as well.
In that case the appellant brought an application for leave
to appeal seven years after he had been convicted and sentenced.
Nowhere
in the judgment of this court does Snyders JA attribute any
blame to systemic delay. The fault of the trial court and High Court
in that case was that they had wrongly dealt with the matter on the
basis of the applicability of the minimum sentencing regime.
In that
case, as in the present appeal, given the lapse of time no practical
purpose would have been served by remitting the matter
and the
sentence was accordingly altered on appeal. Delay per se was not an
issue.
[53] In
S v Ramulifho
2013 (1)
SACR 388
(SCA), Southwood AJA dealt with an inordinate delay in
prosecuting the appeal. In that case the appellant’s counsel
had not
informed the appellant of his right to apply for leave to
appeal. He discovered this from fellow prisoners and eventually
contacted
the Legal Aid Board. It took them seven years to finally
enroll the application and then there was a further delay in
obtaining
the record for the purposes of the appeal. This court
voiced its displeasure about the inordinate delay and ordered that
the papers
in the matter be served on the President of the relevant
Law Society and the Chairperson of the Legal Aid Board for
investigation
and for steps to be taken against those responsible for
the delay.
[54] In
S v Fhetani
2007 (2)
SACR 590
(SCA), which was decided more than six years ago, Jafta JA
dealt with delays caused by attorneys and counsel appointed by the
Legal
Aid Board. The matter involved at some stage a dispute about
fees not being paid by the Board and to counsel appointed by the
attorneys
returning the brief, and another excusing his lack of
attention to the case because of other commitments. In that case this
court
expressed its displeasure at the Board not ensuring that the
appellant’s rights were appreciated and promptly pursued by
those it appears to have appointed under the judicare system.
[55] In
Chauke & another v S
(70/12)
[2012] ZASCA 143
(28 September 2012), Petse JA considered a
long delay in the prosecution of an appeal. In that case the
appellant struggled for
years to obtain a date for the hearing of his
application for leave to appeal. Letters were written to the
Registrar without any
response. The Inspecting Judge of Prisons was
approached as were successive Ministers of Justice. The appellant
also delayed in
filing the record of appeal. This court considered
that the appellant should have been assisted in that endeavour by the
State.
Petse JA was critical of a number of institutions of state,
including the National Prosecuting Authority. The judge who
ultimately
heard the application for leave to appeal no longer serves
in that division of the High Court and is not the judge involved in
the present matter.
[56] In
S v MM
2012 (2) SACR 18
(SCA), Wallis JA was considering a delay of approximately 7 and a
half years before the appeal was heard. In that case the appellant
had struggled for four and a half years to obtain a date for a
hearing of his application for leave to appeal and it took a further
three years before his appeal was eventually heard. The appellant had
repeatedly engaged the Minister’s office and had even
approached the Public Protector to obtain assistance. Wallis JA was
rightly critical of the Registrar of that division of the High
Court
and of persons employed by the Justice Centre. He directed that the
judgment be served on the Director General of the Department
of
Justice for appropriate action to be taken against the Registrar of
the High Court, Thohoyandou, and on the Head of the Justice
Centre
there for consideration of the conduct of the officials employed
there.
[57] In
Nedzamba
v S
(911/2012)
[2013] ZASCA 69
(27 May 2013), I dealt with the
numerous mishaps which resulted in the convictions being quashed.
They involved, inter alia, a
trial judge, who no longer serves in
that division, not taking care that the complainant, who was a minor,
was questioned to ensure
that she understood the difference between
truth and lies and furthermore by failing to take any steps to
protect her as a witness.
In addition, there was an improper
intrusion into the arena by the judge and he prevented crucial
cross-examination, which all
meant that the appellant had not had a
fair trial. At the core of that judgment was the lack of proper
judicial supervision of
a trial. I was also critical of the police
investigation and the failure to provide rape testing kits. The
prosecution was also
criticised for too readily making an unwarranted
concession on a point of law. Delay was not dealt with as an issue
nor was anyone
criticised in that regard.
[58] To sum up: In the three cases
referred to in paragraphs 51, 52 and 57 supra delay was not in issue.
In the case referred to
in paragraph 53 the delay was attributable to
counsel who had represented the appellant at his trial and
subsequently attributable
to the Legal Aid Board in consequence of
which this court referred the matter to the relevant authorities for
investigation and
action to be taken. So too with the case referred
to in paragraph 56. In the case referred to in paragraph 54 blame
appears to
have been attributable to attorneys and counsel appointed
by the Legal Aid Board on a judicare basis. That case was decided six
years before Southwood AJA’s decision, in terms of which the
Chairperson of the Board was called upon to act in respect of
the
delay caused by personnel employed at the Justice Centre. In the case
referred to in paragraph 55 the trial judge involved
no longer serves
in that division. There the delay related principally to not being
able to obtain a date for a hearing of the
application for leave to
appeal. In that case a range of state institutions came in for
criticism. The cases differ and were dealt
with on the basis of their
own facts and when it considered it appropriate this court acted and
called for action to be taken.
Significantly there is no discernible
material connection between the cases referred to and the facts of
the present appeal.
[59] This court and all its judges
should be concerned about the proper administration of justice in any
of the divisions of the
high court. It should take care that when it
articulates concerns they are borne out by the facts and the issues
raised in any
specific case. As stated above, systemic delay and its
impact on the merits of the appeal or in relation to procedural
aspects
in the present case was never an issue between the parties
nor indeed explored by any member of this court during the hearing of
the appeal.
[60] Essentially, what was debated
with counsel for the State in the present appeal was the question of
historically improperly
crafted indictments that had featured in
other cases in this court. I raised that question at the outset of
the hearing of the
appeal. For that we know the NPA’s office to
be responsible. In cases in which this Court had been critical of the
NPA in
respect of poorly crafted indictments and of judges whose
judicial supervision of trials was found lacking we identified the
problem
and its causes. In the present case neither counsel pointed
to the indictment being responsible for the delay in the prosecution
of the appeal nor indeed, as demonstrated above, could they do so.
Counsel for the State was questioned by members of the bench
in
general terms about other appeals emanating from the division in
which he served. The delay in the present case was not attributed
to
his office or to any specific actor in that division involved in the
administration of justice nor explored beyond the affidavits
referred
to above. It should be borne in mind that it was delay as a specific
issue that caused my colleague considerable disquiet
and it was to
that end that the seven cases were referred to in his judgment, as
indicative, together with the facts of the present
case, of a trend
of systemic delay. Indeed it was the touchstone for paragraph 4 of
his proposed order. Other issues such as judicial
misconduct or
ineptitude were not the object of the envisaged investigation.
[61] In paragraph 41 of his judgment
Bosielo JA calls for an urgent investigation into the disturbing
trend referred to by him,
and paragraph 4 of the order proposed by
him requires a host of authorities involved in the administration of
justice to conduct
an investigation into the delay he complains of. I
have concerns about the breadth of the order proposed by him and of
its relevance
to the present case and to the cases cited by him.
First, my colleague does not identify the ‘delay’ problem
in the
present case. In three of the seven cases referred to by him
delay was not in issue. In two others this court had decisively
identified
the causes of the delay and issued a directive for the
perpetrators to be investigated. In one other the complaint against
the
Legal Board had been dealt with six years before the decision by
Southwood AJA calling upon the Chairperson of the Board to
investigate
the Justice Centre in that division. That leaves the one
judgment by Petse JA where this court did not call for a specific
investigation
but identified the institutions of state responsible
for the delay. One might ask rhetorically: Who or precisely what is
to be
investigated?
[62] In paragraph 4 of the order
proposed by my learned colleague it is envisaged that the
Commissioner of Police be involved. The
role of the police in the
present case was not debated at all nor is there any other basis for
involving the Commissioner’s
Office. Furthermore, the
involvement of the Law Society and the Bar Council and the Minister
is envisaged. My colleague states
that the cases he referred to are
not exhaustive. I have dealt with the cases and their relevance. I
must not be understood to
be unconcerned about threats to the
administration of justice but I am concerned that if we are to ask
for an investigation on
the scale suggested by my colleague that we
should make the effort of being exhaustive and not brief, and we
should identify the
causes of specified complaints and the particular
perpetrators to be investigated. We must take care to formulate the
complaints
with precision and be clear about the solutions we suggest
and the steps to be taken to avoid a recurrence.
[63] If specific patterns and conduct
call for investigation and it is shown that there are persons who
might be languishing in
jail due to the lack of application by
specific trial judges in any division potentially resulting in unfair
trials or because
of any other factor, this court will not hesitate
to act. That however is not the investigation called for by my
colleague. If
there is a dossier to be prepared on issues to be taken
up through the office of the Chief Justice the complaints have to be
specific
and the relevant actors identified. For all these reasons I
would agree with the order proposed by Bosielo JA, save that I would
not include paragraph 4.
M S NAVSA
ACTING DEPUTY PRESIDENT
Appearances:
For Appellant : M Madima
Instructed by:
Justice Centre, Thohoyandou
Justice Centre, Bloemfontein
For Respondent: AIS Poodhun
Instructed by:
Director Public Prosecutions,
Thohoyandou
Director Public Prosecutions,
Bloemfontein
1
Although
the indictment states he is 23 years, his counsel disclosed to the
court during his address on sentence that he was born
28 December
1983. This makes him 21 years old during the commission of these
offences. However for the purposes of this matter,
this difference
in insignificant.
2
Concise
Oxford English Dictionary 12 ed (2011) .
3
S
v Siebert
1998 (1) SACR 554
(SCA) at 558J
4
S
v Zinn
1969 (2) SA 537
(A).
5
S
v Malgas
2001 (1) SACR 469
(SCA).