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[2012] ZASCA 1
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Mashinini and Another v S (502/11) [2012] ZASCA 1; 2012 (1) SACR 604 (SCA) (21 February 2012)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 502/11
In the matter between
JACOB MASHININI
…...............................................................
1
st
Appellant
SIMON MFANAFUTHI ABOLISI
…......................................
2
nd
Appellant
and
THE STATE
…...............................................................................
Respondent
Neutral citation:
Mashinini v The State
(502/11)
[2012] ZASCA 1
(21 February 2012)
Coram:
PONNAN, MHLANTLA and BOSIELO JJA
Heard:
22 November 2011
Delivered:
21 February 2012
Summary:
Appeal – sentence –
Criminal
Law Amendment Act 105 of 1997
–
s 51
– appellants
convicted of rape read with the provisions of
s 51(2)
–
applicable minimum sentence – 10 years' imprisonment –
high court imposed sentence of life imprisonment in
terms of
s 51(1)
– material misdirection entitling this court to interfere.
___________________________________________________________
ORDER
___________________________________________________________
On appeal from:
South Gauteng High Court
(Johannesburg) (Prinsloo J sitting as court of first instance):
1 The appeal is upheld.
2 The sentence imposed by the court below is set aside
and replaced with a sentence of ten years' imprisonment. The sentence
is
antedated in terms of
s 282
of the
Criminal Procedure Act 51 of
1977
to 27 February 2008, this being the date when the appellants
were originally sentenced.
___________________________________________________________
JUDGMENT
___________________________________________________________
MHLANTLA JA (BOSIELO JA concurring):
[1] The appellants, who were legally represented by one
legal representative, were charged in the Regional Court, Nigel with
one
count of rape read with the provisions of s 51(2) of the Criminal
Law Amendment Act 105 of 1997 (the Act). On 28 June 2007 the
appellants pleaded guilty to the charge and in amplification of their
pleas, their counsel read out a statement in terms of
s 112
of the
Criminal Procedure Act 51 of 1977
, which read:
'Ek, Jacob Mashinini, verklaar as volg: Ek erken dat ek op 1 Mei 2000
teenwoordig was te Blue Gun View, Duduza, in die Streeksafdeling
van
Gauteng. Ek erken dat ek daar en dan opsetlik en wederregtelik
geslagtelike gemeenskap gehad het met Inzi Mabena teen haar
sin en
wil. Ek erken dat ek geen reg of toestemming gehad het om so op te
tree nie. Ten tyde van die pleging van die misdryf het
ek geweet ek
doen verkeerd en dat my optrede volgens reg strafbaar is. Ek pleit
skuldig uit my eie vrye wil en sonder enige beinvloeding
daartoe. Op
die betrokke dag was ek saam met Simon Abolisi, beskuldige 3, Kennith
Shezi, en Moizafane. Die klaagster is 'n familielid
van my. Toe ek
aan die deur klop en sê wie ek is het die klaagster die deur
oopgemaak. Ons alvier het ingegaan en ons het
die klaagster verkrag.'
The contents of the statements of both appellants are
similar save the fact that the first appellant is a family member of
the complainant.
[2] Before conviction the regional
magistrate addressed the appellants and their legal representative
and enquired whether they
were aware that the minimum sentence
legislation was applicable. He, however, did not explain what that
legislation entailed nor
specify the prescribed sentence applicable
to the offence with which they were charged. Following their pleas of
guilty, the appellants
were convicted as charged. The regional
magistrate thereafter stopped the proceedings and committed the
appellants for sentence
by a high court in terms of
s 52(1)(
a
)
of the Act. There was no objection by the defence when the magistrate
stopped the proceedings and referred the matter to the high
court.
[3] The appellants were indicted in
the High Court (Circuit Local Division of the Eastern Circuit
Division, Delmas). The indictment
served on the appellants stated
that they were convicted of an offence referred to in Schedule 2 of
the Act. At the commencement
of the proceedings Prinsloo J confirmed
the convictions of the appellants in terms of s 52(2)(
b
)
of the Act. No evidence was adduced in mitigation and aggravation of
sentence. On 27 February 2008, the appellants were sentenced
to
imprisonment for life. The appellants now appeal against that
sentence with the leave of the court below.
[4] The appeal turns on whether the judge in the court
below acted correctly in sentencing the appellants to imprisonment
for life
in terms of s 51(1) read with Part I of Schedule 2 when the
appellants had been convicted of rape read with the provisions of s
51(2) of the Act, which upon conviction carries a penalty of ten
years’ imprisonment. Allied to this question is whether
the
imposition of such a sentence rendered the trial unfair.
[5] In my view the starting point in an enquiry of this
nature is s 51 of the Act. Section 51(1), (2) and (3) provide:
'(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 III of Schedule 2 provides: 'Rape in circumstances
other than those referred to in Part I'.
[6] The main argument for the appellants was that the
court below erred in imposing a sentence of life imprisonment when
the penalty
stipulated in s 51(2) for a rape falling in this category
is ten years’ imprisonment. Counsel submitted that, as this was
the charge which was put to the appellants, to which they pleaded
guilty and, importantly, on which they were convicted, that it
is
irregular for them to be sentenced for a more serious offence for
which they were neither charged nor convicted. Counsel submitted
that
the irregularity is so gross that it rendered the proceedings
subsequent to conviction unfair. I must mention that this issue
was
raised for the first time on appeal.
[7] Counsel for the respondent correctly conceded that
the learned judge erred when he failed to take notice of the fact
that the
charge for which the appellants were convicted was rape read
with s 51(2) of the Act and not rape as envisaged by s 51(1) of the
Act. Counsel conceded that this fundamental error was caused by the
State officials' mistaken reference to s 51(2) instead of s
51(1) in
the charge sheet. She however countered the appellants' submissions
by contending that, notwithstanding this patent error,
the
appellants, who were legally represented, were aware of the evidence
to the effect that this was a gang rape which merited
a more severe
sentence and that the said failure did not render the trial unfair.
She thus argued that the sentence imposed was
appropriate regardless
of the admitted irregularity.
[8] As already alluded to in para 4, the legal issue
remains whether the judge below erred in imposing a sentence of life
imprisonment
on the appellants in terms of s 51(1) whereas in fact
they had been convicted of rape read with the provisions of s 51(2)
which
prescribes a sentence of ten years' imprisonment and not life
imprisonment.
[9] It is common cause that the appellants in this
matter were charged with rape which falls under s 51(2). Part III of
Schedule
2, which is the only schedule other than Part I of Schedule
2 that provides for rape, provides that, upon conviction on such an
offence, an accused who is a first offender, like the appellants,
shall be sentenced to imprisonment for ten years unless the court
finds substantial and compelling circumstances justifying a lesser
sentence. They were convicted as charged but were erroneously
sentenced to imprisonment for life on the basis of a conviction of a
gang rape, where the complainant had been raped more than
once by
more than one person.
[10] Counsel for the State submitted that the appellants
and their legal representatives should have raised an objection when
the
magistrate stopped the proceedings and committed the appellants
to the high court for sentence. It was further submitted that their
failure to object and their actions to further participate in the
high court proceedings precluded them from raising the issue.
The
argument seems to be that they acquiesced to the further conduct of
the trial. I disagree. The failure by the accused or their
legal
representative to object to what is a patently irregular procedure
can never turn such an irregular act into a lawful or
regular one. I
find these submissions to be fallacious.
[11] To my mind, the solution to this legal question
lies in s 35(3) of the Constitution. Section 35(3)(
a
) of the
Constitution provides that every accused person has a right to a fair
trial which, inter alia, includes the right to be
informed of the
charge with sufficient detail to answer it. This section appears to
me to be central to the notion of a fair trial.
It requires in clear
terms that, before a trial can start, every accused person must be
fully and clearly informed of the specific
charge(s) which he or she
faces. Evidently, this would also include all competent verdicts. The
clear objective is to ensure that
the charge(s) is sufficiently
detailed and clear to an extent where an accused person is able to
respond and importantly to defend
himself or herself. In my view,
this is intended to avoid trials by ambush.
[12] In
S
v Legoa,
1
Cameron JA stated with regard to the
constitutional right to a fair trial:
'Under the common law it was therefore "desirable" that the
charge-sheet should set out the facts the State intended
to prove in
order to bring the accused within an enhanced sentencing
jurisdiction. It was not, however, essential. The Constitutional
Court has emphasised 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". 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.
The matter is, however, one of substance and nor form, and I would be
reluctant to lay down a general rule that the charge must
in every
case recite either the specific form of the scheduled offence with
which the accused is charged, or the facts the State
intends to prove
to establish it.'
[13] In
S
v Ndlovu
,
2
Mpati JA had occasion to deal with
the same issue. He said:
'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
notice of the State's
intention to enable him to conduct his defence
properly.'
[14] In
S
v Makatu
,
3
Lewis JA stated:
'The appellant argues that the imposition of a sentence in terms of s
51(1), when the indictment refers to s 51(2), is a blatant
misdirection. Even if the murder had indeed been premeditated –
a question to which I shall turn – an accused has the
right to
know at the outset what charge he has to meet. The State properly
conceded this point. Since the enactment of the Act
this Court has
held that it is incumbent on the State to specify the case to be met
in such a way that an accused appreciates properly
not only what the
charges are but also the consequences.
…
..
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.'
In my view the principles enunciated in these cases are
applicable in this case.
[15] It is a well-known fact that the
State is
dominis
litis
. After the
police have concluded their investigations, the docket is given to
the prosecutor. He or she gains access to all documents
and
statements in the docket. Based on this, he or she decides on which
charge(s) to prefer against an accused person. The latter
plays no
role in this critical choice by the prosecutor. It follows that any
wrong decision regarding the choice of an appropriate
charge(s)
cannot be put at the accused person's door.
[16] In my judgment, there is nothing that precluded the
State, after having studied the docket as the officials are required
to,
to decide on the appropriate charge. The information was
available. Even counsel for the respondent was unable to offer any
plausible
explanation for this serious mistake. This failure,
unexplained, speaks of some disturbing flippant attitude on the part
of the
prosecution. The State must bear the consequences.
[17] In this matter, 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.
4
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.
[18] In my view, the fact that the proceedings had been
stopped and referred to the high court for sentencing cannot be
regarded
as a ground to deprive the accused of his constitutional
right to fair trial. This is akin to allowing the State to benefit
from
its own mistakes. In the result, I find there was a misdirection
which vitiates the sentence. The misdirection lies in the fact
that
the appellants were sentenced for an offence different to the one for
which they were convicted. There was therefore no need
for this
matter to be referred to the high court as the regional magistrate
had the competence to sentence the appellants. Undoubtedly,
the judge
below erred in sentencing the appellants in terms of
s 51(1)
instead
of
s 51(2)
read with
Part III
of Schedule 2 of the Act. The appeal
against sentence has to succeed.
[19] I am of the considered view that it will not serve
any useful purpose to refer the matter back to the regional
magistrate to
impose sentence, given the misdirection, the lapse of
time and the fact that all the evidence is before us. It will
accordingly
be appropriate that this court considers sentence afresh
having regard to the provisions of s 51(2) of the Act.
[20] Section 51(2) read with Part III
of Schedule 2 of the Act prescribes a period of ten years’
imprisonment. This court
can deviate from such sentence only if
substantial and compelling circumstances are found to exist which
justify the imposition
of a lesser sentence. The approach to the
enquiry is enunciated in
S
v Malgas
,
5
where Marais JA held that courts
should not deviate from the minimum sentence for flimsy reasons
.
In order to determine the existence
of substantial and compelling circumstances, the court has to
evaluate all the evidence including
the mitigating and aggravating
factors.
[21] The mitigating factors submitted on behalf of the
appellants are the following: Both appellants were first offenders
and have
the capacity to be rehabilitated. They were relatively young
as at least one of them was 26 years of age when the offence was
committed.
They pleaded guilty and did not waste the court’s
time. Their plea of guilty should be regarded as sign of remorse for
their
deeds. The complainant did not suffer severe physical injuries
albeit the incident would have traumatised her. Both appellants had
spent 18 months in custody pending the finalisation of the trial.
[22] Regarding the relative
youthfulness of the offender it is apposite to refer to the judgment
of this court in
S v
Matyityi
,
6
where Ponnan JA stated:
'It is well established that, the younger the offender, the clearer
the evidence needs to be about his or her background, education,
level of intelligence and mental capacity, in order to enable a court
to determine the level of maturity and therefore moral
blameworthiness
. . . Thus, whilst someone under the age of 18 years
is to be regarded as naturally immature, the same does not hold true
for an
adult. In my view a person of 20 years or more must show by
acceptable evidence that he was immature to such an extent that his
immaturity can operate as a mitigating factor. At the age of 27 the
respondent could hardly be described as a callow youth.’
[23] In this matter the appellants
elected not to testify. There is no evidence relating to the level of
their maturity. However,
the principle enunciated in
Matyityi
applies to them as well.
[24] The appellants did not verbalise
any remorse. It was submitted on their behalf that their plea of
guilty may be an indication
of remorse. This submission cannot
prevail. It must be borne in mind that the complainant knew the first
appellant therefore the
issue of identification of him as one of the
rapists was not in dispute. The second appellant was linked to the
commission of the
offence by DNA evidence. It is therefore clear that
there was overwhelming evidence against the appellants. They had no
choice
but to plead guilty. Their plea under such circumstances can
never be interpreted as remorse. In
S
v Matyityi
,
7
Ponnan JA stated in regard to
remorse:
'There is, moreover, a chasm between regret and remorse. Many accused
persons might well regret their conduct, but that does not
without
more translate to genuine remorse. Remorse is a gnawing pain of
conscience for the plight of another. Thus genuine contrition
can
only come from an appreciation and acknowledgement of the extent of
one’s error. Whether the offender is sincerely remorseful,
and
not simply feeling sorry for himself or herself at having been
caught, is a factual question. It is to the surrounding actions
of
the accused, rather than what he says in court, that one should
rather look. In order for remorse to be a valid consideration,
the
penitence must be sincere and the accused must take the court fully
into his or her confidence. Until and unless that happens,
the
genuineness of the contrition alleged to exist cannot be determined.’
[25] Against that background the
aggravating factors are as follows: The complainant, who was 54 years
old at the time, was raped
by four men; one of whom was a family
member. This rape is commonly referred to as a gang rape. The first
appellant watched whilst
the complainant was raped thrice by his
friends. He did nothing to stop this injustice. The complainant’s
mouth was closed
during the ordeal to prevent her from screaming or
shouting for help. The complainant did not sustain severe physical
injuries,
however she was tender on her chest. The complainant was
raped in the sanctity of her home. In my view, this must have been a
very
traumatic experience for her. Rape in this country has reached
pandemic proportions and it has become a cancer in our society. In
S
v Chapman
,
8
Mohamed CJ described rape as follows:
‘
Rape is a very serious offence,
constituting as it does a humiliating, degrading and brutal invasion
of the privacy, the dignity
and the person of the victim . . . Women
in this country are entitled to the protection of these rights. They
have a legitimate
claim to walk peacefully on the streets, to enjoy
their shopping and their entertainment, to go and come from work, and
to enjoy
the peace and tranquillity of their homes without the fear,
the apprehension and the insecurity which constantly diminishes the
quality and enjoyment of their lives.'
[26] The appellants had admitted in their plea
explanation that they had gone to the house of the complainant with
the intention
to rape her. They did not verbalise any remorse. I have
already dealt with the issue of remorse in para 24 above and found
that
their plea of guilty can never be interpreted as remorse.
[27] In the result having regard to all the evidence,
there are no substantial and compelling circumstances justifying the
imposition
of a lesser sentence. On the contrary, there are more
aggravating features in the evidence than mitigating circumstances.
[28] There is one aspect that I am constrained to
address. In my view this is a type of case where imprisonment for
life would have
been appropriate but for the careless manner in which
the staff in the office of the National Director of Public
Prosecutions handled
the matter. The relevant officials did not
approach the matter with the requisite degree of diligence and
seriousness. They were
aware of the facts - having obtained a
statement from the complainant and had DNA evidence. The four
suspects had been arrested
– clearly indicating that this was
an allegation of a gang rape. Had they applied their minds properly,
it would have been
clear to them that the accused persons ought to be
charged either in terms of s 51 or s 51(1) of the Act if they desired
to be
specific. The outcome of the case is unjust to the complainant
and society at large but that is as a result of the State failing
to
perform its duties properly. This is made even more reprehensible by
the fact that starting from
Legoa
and ending with
Makatu
,
this court has sounded a salutary warning that care be exercised in
drafting and preparing charge-sheet(s) and indictment(s) to
ensure
that they correctly and adequately reflect all the necessary
averments. A situation of this nature cannot be countenanced.
[29] Having regard to all circumstances, I am compelled
to impose a sentence of ten years’ imprisonment as set out in s
51(2)
of the Act.
[30] In the result I make the following order:
1 The appeal is upheld.
2 The sentence imposed by the court below is set aside
and replaced with a sentence of ten years' imprisonment. The sentence
is
antedated in terms of
s 282
of the
Criminal Procedure Act to
27
February 2008, this
being the date when the appellants were originally
sentenced.
_______________
N Z MHLANTLA
JUDGE OF APPEAL
PONNAN JA:
[31] I have read the judgment of my colleague Mhlantla
JA with which I regret I am unable to agree. Like my colleague I
would also
commence the present enquiry with
s 51
of the
Criminal Law
Amendment Act 105 of 1997
. That section, which is set out fully in
her judgment,
9
must be read together with s 52 of the Act.
[32] Section 52
headed: 'Committal of accused for sentence by High Court after plea
of guilty or trial in regional court' provides:
'(1) If a regional
court, after it has convicted an accused of an offence referred to in
Schedule 2 following on—
(
a
) a plea of
guilty; or
(
b
) a plea of
not guilty,
but before sentence,
is of the opinion that the offence in respect of which the accused
has been convicted merits punishment in
excess of the jurisdiction of
a regional court in terms of section 51, the court shall stop the
proceedings and commit the accused
for sentence by a High Court
having jurisdiction.
(2) (
a
) Where
an accused is committed under subsection (1) (
a
) for
sentence by a High Court, the record of the proceedings in the
regional court shall upon proof thereof in the High Court be
received
by the High Court and form part of the record of that Court, and the
plea of guilty and any admission by the accused shall
stand unless
the accused satisfies the Court that such plea or such admission was
incorrectly recorded.
(
b
) Unless
the High Court in question—
(i) is satisfied
that a plea of guilty or an admission by the accused which is
material to his or her guilt was incorrectly recorded;
or
(ii) is not
satisfied that the accused is guilty of the offence of which he or
she has been convicted and in respect of which he
or she has been
committed for sentence,
the Court shall make
a formal finding of guilty and sentence the accused as contemplated
in section 51.
(
c
) If the
Court is satisfied that a plea of guilty or any admission by the
accused which is material to his or her guilt was incorrectly
recorded; or is not satisfied that the accused is guilty of the
offence of which he or she has been convicted and in respect of
which
he or she has been committed for sentence or that he or she has no
valid defence to the charge, the Court shall enter a plea
of not
guilty and proceed with the trial as a summary trial in that Court:
Provided that any admission by the accused the recording
of which is
not disputed by the accused, shall stand as proof of the fact thus
admitted.
(
d
)
The provisions of
section
112 (3)
of
the Criminal Procedure Act, 1977 (
Act
No. 51 of 1977
),
shall apply with reference to the proceedings under this subsection.
(3) (
a
) Where
an accused is committed under subsection (1) (
b
) for sentence
by a High Court, the record of the proceedings in the regional court
shall upon proof thereof in the High Court be
received by the High
Court and form part of the record of that Court.
(
b
) The High
Court shall, after considering the record of the proceedings in the
regional court, sentence the accused, and the judgment
of the
regional court shall stand for this purpose and be sufficient for the
High Court to pass sentence as contemplated in section
51: Provided
that if the judge is of the opinion that the proceedings are not in
accordance with justice, he or she shall, without
sentencing the
accused, obtain from the regional magistrate who presided at the
trial a statement setting forth his or her reasons
for convicting the
accused.
(
c
) If
a judge acts under the proviso to paragraph (
b
), he or she
shall inform the accused accordingly and postpone the case for
judgment, and, if the accused is in custody, the judge
may make such
order with regard to the detention or release of the accused as he or
she may deem fit.
(
d
) The
Court in question may at any sitting thereof hear any evidence and
for that purpose summon any person to appear
to give evidence or to
produce any document or other article.
(
e
) Such
Court, whether or not it has heard evidence and after it has obtained
and considered a statement referred to in
paragraph (
b
), may—
(i) confirm the
conviction and thereupon impose a sentence as contemplated in section
51;
(ii)
alter the conviction to a conviction of another offence referred to
in
Schedule
2
and
thereupon impose a sentence as contemplated in section 51;
(iii)
alter the conviction to a conviction of an offence other than an
offence referred to in
Schedule
2
and
thereupon impose the sentence the Court may deem fit;
(iv) set aside the
conviction;
(v) remit the case
to the regional court with instruction to deal with any matter in
such manner as the High Court may deem fit;
or
(vi) make any such
order in regard to any matter or thing connected with such person or
the proceedings in regard to such person
as the High Court deems
likely to promote the ends of justice.'
[33] Part I of Schedule 2 to the extent here relevant
provides:
'Rape -
(
a
) When committed—
(i) in circumstances where the victim was raped more than once
whether by the accused or by any co-perpetrator or accomplice;
(ii) by more than one person, where such persons acted in the
execution or furtherance of a common purpose or conspiracy.'
Whilst Part III of Schedule 2 provides:
‘
Rape in circumstances other than those
referred to in Part I.’
[34] Recently in
Mthembu v The
State
(206/11)
[2011] ZASCA 17
paras 16 and
17, this court stated:
‘
It may be advisable to retrace our steps.
That an accused person should be informed that the minimum sentence
is applicable to his
or her case owes its genesis to
S
v Legoa
2003 (1) SACR 13
(SCA). There
Cameron JA, after an examination of the earlier judgments of this
court, expressed the conclusion that under the common
law it was
‘desirable’ that the charge-sheet should set out the
facts the State intended to prove to bring the accused
within an
enhanced sentencing jurisdiction. Cameron JA continued (para 20 and
21):
“
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.
The matter is, however, one of substance and not form, and I would be
reluctant to lay down a general rule that the charge must
in every
case recite either the specific form of the scheduled offence with
which the accused is charged, or the facts the State
intends to prove
to establish it. A general requirement to this effect, if applied
with undue formalism, may create intolerable
complexities in the
administration of justice and may be insufficiently heedful of the
practical realities under which charge-sheets
are frequently drawn
up. The accused might in any event acquire the requisite knowledge
from particulars furnished to the charge
or, in a Superior Court,
from the summary of substantial facts the State is obliged to
furnish. Whether the accused's substantive
fair trial right,
including his ability to answer the charge, has been impaired, will
therefore depend on a vigilant examination
of the relevant
circumstances.”
It is noteworthy that Cameron JA declined to lay down any general
rule in
Legoa
.
Legoa
was followed shortly thereafter by
S v Ndlovu
2003 (1) SACR 331
(SCA). In
Ndlovu,
Mpati JA
stated (para 12):
“
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 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.”
In both
Legoa
and
Ndlovu
, unlike here, this court was
concerned with the case where the accused had not been warned that
the minimum sentence legislation
might be invoked. And, whilst
Ndlovu
went somewhat further than
Legoa,
both emphasised that a fair
trial enquiry does not occur
in
vacuo
but that it is
first and foremost a fact-based enquiry.’
[35] As both
Legoa
and
Ndlovu
make plain a
‘vigilant examination of the relevant circumstances’ is
required (
Mthembu
para
18). Here the charge sheet has not been included in the record. We
thus simply do not know what it stated. What the record
does reveal
though is that the appellants were informed by the prosecutor at the
commencement of the proceedings that they were
charged with ‘the
crime of rape read with
section 51(2)
of the
Criminal Law Amendment
Act 105 of 1997
’. Thus, right from the outset both appellants
were informed in unambiguous terms that the State intended to rely on
the minimum
sentencing provisions. In this case however the State
went further. Despite there being no obligation on it to do so, it
chose
to refer to a specific section of the Act. In doing so it
appears to have referred in error to the wrong section – s
51(2),
instead of s 51(1).
[36] Both appellants, who were legally represented,
tendered pleas of guilty to the offence charged.
The
record then reads:
'
HOF
:
Mnr. Van Vuuren [the appellants' legal representative] hierdie is een
van daardie aspekte wat ek net graag sal wil opgeklaar wil
hê
voor ek oorgaan tot uitspraak as gevolg van die Wet of Minimum
Vonnisse. Dra dit u goedkeuring weg as ek by beskuldigde
2 en by
beskuldigde 3 net vra of hulle bewus is van die Wet of Minimum
Vonnisse.
MNR. VAN VUUREN
:
Inderdaad agbare.
HOF
: Baie dankie.
Dit is, dit is slegs vir doelmatigheidsredes. Dit het geen refleksie
op u van enige aard nie.
MNR. VAN VUUREN
:
Soos dit u behaag agbare.
HOF
: Beskuldigde
2 en 3 u pleit skuldig aan verkragting. Hierdie misdryf is gelees in
terme van die Wet op Minimum Vonnisse. Indien
u skuldig bevind word
is daar 'n minimum vonnis wat u kan, opgelê kan word, verstaan
u dit?
BEIDE BESKULDIGDES
:
Ons verstaan edelagbare.
HOF
: Baie dankie.
En ten spyte daarvan pleit julle skuldig en maak u vooraf vir hulle
gaande erkenning soos per Bewysstuk A en B.
BEIDE BESKULDIGDES
:
Dit is korrek edelagbare.
HOF
: Dankie. Mnr. Die Aanklaer stem die erkennings in
Bewysstuk A en B, does that correspond, the admissions does that
correspond with
the evidence at the state's disposal?
PROSECUTOR
: That is correct your worship.
COURT
: Thank you sir. Goed. Ex-tempore uitspraak.'
[37] The magistrate being satisfied that all of the
elements of the offence had been admitted by the appellants then
proceeded to
convict each on the offences charged, on his plea of
guilty.
The record then reads:
'COURT
: Good. Mr
Prosecutor, Mnr. van Vuuren dit is duidelik dat hierdie misdryf in
die omskrywing val waar 'n voorgeskrewe minimum vonnis
voorgeskryf
word. Die voorgeskrewe minimum vonnis is buite die bevoegdheid van
hierdie hof en derhalwe staak ek die verrigtinge
en word hierdie
aangeleentheid verwys vir vonnis na die Hooggeregshof, watter datum
gaan almal pas sodat die oorkonde getik kan
word en dus saam met die
dossier versend kan word en dat 'n datum verkry kan word vanaf die
DOV wanneer hierdie verrigtinge in
die Hooggeregshof kan dien vir
vonnis.
AANKLAER
: U edele
ons het 'n datum van 26 Junie vir die oorkonde.
HOF
: Goed. U moet
dan intussentyd vir ons 'n in-diepte "assessment reports"
verkry want dit word vereis deur die Hooggeregshof
tesame met 'n
proefbeampte verslag oor beskuldigde 2 en 3. So dit is die drie
verslae wat dan ook verkry moet word, asseblief.
"Victim's
assessment reports" en die proefbeampte verslag. U sê die,
watter datum Mnr. Die Aanklaer?
AANKLAER
: 26
Junie.
HOF
: 26/06. Mnr.
Van Vuuren?
MNR. VAN VUUREN
:
(Onhoorbaar).
HOF
: Goed.
Hierdie saak word uitgestel na 26 Junie sodat die oorkonde getik kan
word, die bande getranskribeer kan word en dit versend
kan word na
die Hooggeregshof, die DOV, sodat die DOV 'n datum met die
Hooggeregshof kan bepaal wanneer hierdie verrigtinge moet
voortgaan
vir die voorlegging vir die vonnisverrigtinge. Daar is ook van my
kant af 'n versoek dat die staat die nodige verslae,
insluitende
proefbeampte verslae, so spoedig as moontlik bekom sodat daar nie 'n
vertraging in daardie opsig is nie. Beide van
u bly in hegtenis.
SAAK UITGESTEL TOT 26 JUNIE 2007
HOF VERDAAG
.'
[38] Thereafter the appellants were served with an
indictment and a summary of substantial facts. In material part the
indictment
reads:
'WHEREAS the accused were convicted in the regional court, NIGEL of
an offence referred to in Schedule 2 of the
Criminal Law Amendment
Act 105 of 1997
, to wit the offence of
RAPE
the facts being that upon or about 1 May 2000 and at or near Blue Gun
View, DUDUZA, in the regional division of GAUTENG, the accused
did
unlawfully and intentionally have sexual intercourse with
PHINZI ALBINAH MABHENA
a 55 year old female person, without her consent.
--- as would appear fully from the certified copy of the
proceedings, attached hereto in terms of the provisions of
section
52(2)(a)
of Act 105 of 1997, read with sections 76
10
and 235 of Act 51 of 1977.
11
AND WHEREAS the proceedings were stopped and the accused committed
for sentence by a High Court in terms of section 52(1)(a) of
Act 105
of 1997.'
[39] Before proceeding to sentence the appellants,
Prinsloo J first satisfied himself that the record of the proceedings
in the
magistrates’ court was in order. In that regard the
record reads:
'PRINSLOO, J
: Can I just then say what I wanted to say, I
think we should not put the
cart before the horses, we must first
decide whether the record is in order, not so?
MR D. PHAHLANE [Counsel for the appellants]
: That is so
M'Lord.
PRINSLOO, J
: Otherwise if it is not, we cannot carry on. Mrs
Voster, do you have any problem with the record?
MRS P. VOSTER
: As the Court pleases. M'Lord, the State will
request that the record be accepted as correct and received as part
of this record
in terms of Section 52(3).
PRINSLOO, J
: Is it not Section 52(2), because it was a plea of
guilty?
MRS P. VOSTER
: Indeed M'Lord, I sincerely apologise, indeed it
is
Section 52(2)
of the
Criminal Law Amendment Act 105 of 1997
.
PRINSLOO, J
: Thank you. Mr Phahlane, do you have a problem
with the record, it is not a very lengthy record, the section
implores as to accepted
as part of the record of these proceedings,
if we are happy that the record is in order?
. . .
MR D. PHAHLANE
: Yes, as I said earlier on M'Lord, that I agree
that the record was in order, except to highlight the very same
aspects, that from
the record mention is made of accused 1 and 2
previous...[intervenes] [What counsel was alluding to was an apparent
mistake in
the numbering of the accused in the court below. But
nothing turns on that.]
. . .
MR D. PHAHLANE ADDRESSES COURT
: M'Lord, in as far as
conviction is concerned, my submission is that it was in order,
because both accused pleaded guilty in the
court
a quo
M'Lord.
. . .
PRINSLOO, J
: Yes. Having heard Mr Phahlane and Mrs Vorster,
and taking note of the record and the plea explanations, where both
the accused
pleaded guilty with the assistance of their legal
representative, I make a formal finding of guilty in respect of both
accused
in terms of
Section 52(2)(b)
of Act 105 of 1997. Yes?'
[40] In his judgment on sentence the learned Judge
states:
'In the result, I made a formal finding of guilty in respect of both
the accused as intended by the requirements of Section 52(2)(b)
of
Act 105 of 1977. The prescribed minimum sentence, which Parliament
felt was appropriate for a multiple rape of this nature,
is life
imprisonment. The type of offence which we deal with here is
described as follows by the Legislator in Part 1 of Schedule
2, where
the following is said in Subsection (a)(ii), dealing with rape:
"Rape,
[a] When committed;
[ii] by more than one person, where such persons acted in the
execution, or furtherance of a common purpose, or conspiracy."
This incident is also covered by another subsection in the schedule
to which I have referred, namely (a)(i), which reads as follows:
"Rape, when committed:
[i] In circumstances where the victim was raped more than once,
whether by the accused, or by any co-perpetrator, or accomplice."'
[41] The learned Judge concluded – as does my
colleague Mhlantla JA
12
- that there were no substantial and compelling
circumstances present. He thus proceeded to sentence each of the
appellants to imprisonment
for life. My learned colleague agrees –
as do I – that that sentence was appropriate. She opines:
13
‘
In
my view this is a type of case where imprisonment for life would have
been appropriate but for the careless manner in which the
staff in
the office of the National Director of Public Prosecutions handled
the matter.’
On the very day that
they were sentenced an oral application for leave to appeal was made
on their behalf to the learned Judge.
The gist of the application was
that the learned Judge ought to have found that there were
substantial and compelling circumstances
present and that therefore a
sentence less than that ordained by the legislature should have been
imposed. The learned Judge dealt
with that application in these
terms:
'Nevertheless, although I am alive to the fact that a Court of appeal
is slow generally to interfere with a sentence imposed by
a Trial
Court, I am also alive to the fact that there appears to be, and I
say this with respect, a tendency in the Supreme Court
of Appeal to
impose lesser sentences when it comes to matters of this nature.
There is, for example, a recent case of
State versus Nkomo
,
2007 (2) SACR 198
SCA, where the victim was subjected to a
particularly cruel multiple rape by the perpetrator. This was
referred to me on more than
one occasion in the past few weeks during
these Circuit Court sessions. I have not studied the Nkomo judgment,
but I am told that
the sentence imposed under those awkward
circumstances was 16 years imprisonment.
In all the circumstances, and without attempting to draw a comparison
between other sentences recently imposed, and the present
case, I
have come to the conclusion that there must be a reasonable prospect
that a Court of Appeal may impose a lesser sentence.
The order that I
will make is that
BOTH ACCUSED ARE GRANTED LEAVE TO APPEAL
to the Supreme Court of Appeal against their sentence, as I imposed
it, and they will both remain in custody.'
[42] In heads of argument filed with this court,
appellants’ counsel conceded:
'Before accepting the appellants' pleas of guilty to the charges read
out in the open court, the Learned Magistrate ensured that
they were
properly informed and understood the applicability of the minimum
sentence regime.'
And for the first time the following was raised:
'It is submitted that the Learned Judge failed to take notice of the
fact that the charge against the appellants was to be read
with
Section 51(2)
of the
Criminal Law Amendment Act 105 of 1997
.
Section
51(2)
does not make provision for life imprisonment and it is
therefore argued that the Learned Judge erroneously concluded that
the
minimum sentence of life imprisonment should be applied
It is furthermore submitted that the accused persons, if they faced
imprisonment for life which is the ultimate penalty available
in our
justice system, should have been made aware from the outset what the
implications and consequences of the charge are to
which they were
requested to plea. Such knowledge would inevitably impact on the
conduct of their defence and might ultimately
affect their right to a
fair trial.'
[43] In support of that contention, counsel for the
appellant called in aid
S v Makatu
2006
(2) SACR 582
(SCA). In
Makatu
(para
7), Lewis JA stated: ‘[a]s 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’.
In my view
Makatu
is
distinguishable from this case.
Makatu
was not concerned, as here, with a bifurcated procedure.
Moreover, as Lewis JA was quick to add the rule that she sought to
lay
down was ‘clearly neither absolute nor inflexible’.
In this case before the commencement of the sentencing phase of
the
trial, the appellants could have been under no illusion that the
minimum sentencing provision that the State sought to invoke
was that
which ordained life imprisonment. That, I daresay, ought to have been
patent to the appellants at a much earlier stage
when the proceedings
had been stopped by the magistrate and the matter had been referred
to the high court for sentencing. At that
stage as I have already
pointed out the appellants had had the benefit of legal
representation. Thus the significance of the proceedings
being
stopped and the matter being referred to the high court could hardly
have been lost on them. Indeed the magistrate explained
that the
matter was being referred to the high court because the applicable
sentence for an offence of that kind exceeded his jurisdiction.
Had
they been misled by what had gone before it was thus open to them at
any time after conviction in the magistrates’ court
and before
sentencing in the high court to have raised that. That they did not
do. The appellants, who were represented before
the high court by a
different legal representative to that in the magistrates’
court, participated in the sentencing phase
of the proceedings, as
they earlier did in the conviction phase, without demur. And as
Prinsloo J emphasised in his judgment on
sentence: '[b]efore the
hearing today both accused were again informed about the implications
of the minimum sentences prescribed
by Act 105 of 1997.'
[44] Mhlantla JA holds:
14
‘
The
misdirection lies in the fact that the appellant was sentenced for an
offence different to the one for which he was convicted.'
I cannot
agree. The appellants were charged, convicted and sentenced for the
offence of rape. The Act does not purport to create
any new category
of statutory offence.
In specifying an
enhanced penal jurisdiction for particular forms of an existing
offence, the Legislature does not create a new
type of offence. In an
analogous context
Rumpff CJ stated
(
S
v Moloto
1982 (1)
SA 844
(A)
[zRPz]
at
850):
‘
Roof,
of poging tot roof, met verswarende omstandighede is nie 'n nuwe
soort misdaad wat deur die Wetgewer geskep is nie. Dit bly
steeds
roof, of poging tot roof, maar volgens art 277 (1)
(c)
verleen
die aanwesigheid van verswarende omstandighede aan die Verhoorregter
'n diskresionêre bevoegdheid om by skuldigbevinding
die
doodvonnis op te lê.’
All that the Legislature has done, in my view, is to
define circumstances which, if present, brings the matter within the
purview
of the Act. The offences specified in the schedule are thus
not new offences. They are but specific forms of existing offences,
and when their commission is proved in the form specified in the
Schedule, the sentencing court acquires an enhanced penal
jurisdiction.
[45] Section 52, which I have set out in full, gives to
the high court very wide powers in respect of the magistrates’
court
proceedings. In particular, it preserved the power of the high
court to enter a plea of not guilty if for any reason it deemed it
advisable in the interests of justice to do so. It was thus never
intended that the high court would simply rubber stamp the
magistrates’
court proceedings. The appellants never ever
raised before the high court, even tangentially, the spectre of their
guilty plea
or any admission made thereunder having been incorrectly
recorded. Nor did either even hint at the possibility that the
proceedings
may not have accorded with justice. Had the point been
taken before the high court - where it ought rightly to have been
taken
- instead of before this court for the first time, the State
would have had the opportunity to counter it. For as Cameron JA
observed
(
Legoa
para
21): ‘[t]he accused might in any event acquire the requisite
knowledge from particulars furnished to the charge or, in
a Superior
Court, from the summary of substantial facts the State is obliged to
furnish.'
[46] Mhlantla JA, however, preferred to approach the
matter thus:
15
‘
Even counsel for the
respondent was unable to offer any plausible explanation for this
serious mistake. This failure, unexplained,
speaks of some disturbing
flippant attitude on the part of the prosecution. The State must bear
the consequences.’ With respect
to my learned colleague I have
some difficulty with her characterisation of the State’s
conduct. Given the manner in which
the point came to be raised, the
State was denied the opportunity of fully investigating the issue and
adducing any such evidence
as may have been available to it to
counter the complaint. Moreover, the manner in which the point came
to be raised served to
blur the distinction between an appeal and a
review. For, in my view, the point in issue was not capable of being
resolved solely
by recourse to evidence ex facie the record. That had
the effect of forcing Counsel for the State to endeavour,
impermissibly I
should add, to testify from the bar before this
court. There is though a more fundamental difficulty with my learned
colleague’s
conclusion. It is this: if indeed the failure is
unexplained – and I have endeavoured to demonstrate why it has
not been
explained - one can hardly infer that that, in and of
itself, is a manifestation of a ‘disturbing flippant attitude’.
In my view such an inference lacks any factual foundation and
therefore ought not to have been drawn. My colleague appears likewise
to be critical of the magistrate’s conduct. She states that the
magistrate: ‘did not explain what that legislation
entailed nor
specify the prescribed sentence applicable to the offence with which
they were charged.’
16
But as I have already pointed out
counsel for the appellants conceded in heads of argument filed with
this court on behalf of the
appellants: ‘
the
Learned Magistrate ensured that they were properly informed and
understood the applicability of the minimum sentence regime.'
[47] Before us there was some suggestion that the
appellants might have conducted their defence differently had they
known at the
outset of the full extent of the risk that awaited them.
Mhlantla JA puts paid to that suggestion in these terms:
‘
The appellants had admitted in their plea
explanation that they had gone to the house of the complainant with
the intention to rape
her.’
17
. . .
‘
It must be borne in mind that the
complainant knew the first appellant therefore the issue of
identification of him as one of the
rapists was not in dispute. The
second appellant was linked to the commission of the offence by DNA
evidence. It is therefore clear
that there was overwhelming evidence
against the appellants. They had no choice but to plead guilty.’
18
Moreover,
at
no stage was it the appellants’ case that they would have
conducted their defence any differently or that they had been
misled
into pleading guilty. On the contrary in applications for leave to
appeal filed by each of them, they state:
'The reason why I'm appealing against sentence is that it is too
much. And I pleaded guilty to the offence without wasting the
Court's
time. I'm sick and sometimes I do not get treatment here in prison.
So I'm asking the Court to please reduce my sentence.
. . .
The reason why I'm appealing against the sentence is that the
sentence is to[o] much.
And I didn't waste the court's time. I pleaded guilty. And in 2000 it
was dropped and by that time I got a house and wife and a
child and
employed. And when I was arrested in 2007 again and followed . . .
the police without any struggle. I'm asking the honourable
Court to
please reduce my sentence.'
[48] There is nothing therein contained that even
remotely suggests that they had been misled or that they would have
conducted
their defence differently had they been appraised at the
outset that they were at risk of a sentence of life imprisonment. It
must
be remembered that the appellants pleaded guilty. If their fair
trial rights have indeed been impaired, as is sought to be contended,
then its genesis must lie in their decision to plead guilty. If they
were misled at all, its consequence was that it induced a
guilty
plea. The decision to plead guilty was thus the logical corollary of
them having been misled. But the appellants have never
ever sought to
challenge their convictions or to recant their guilty pleas. This was
pertinently raised with counsel for the appellants
during argument,
in particular that the conviction had never been assailed, nor for
that matter had leave to appeal the conviction
ever been sought.
Counsel from the bar let it be known that they had no quarrel with
the conviction. It follows, by parity of reasoning,
that they could
likewise have no quarrel with the decision to plead guilty upon which
the conviction is founded. Implicit in that
concession is the
admission that their decision to plead guilty, even in hindsight, was
the correct one. That would explain why
there is no attack on the
conviction itself or why the appellants have never ever sought to
impugn the conviction phase of the
proceedings in the magistrates
court.
[49] I should perhaps add that the actual proceedings
before the magistrate were relatively brief. It consisted of the
charge being
formally put to each appellant, to which each pleaded
guilty. Each in amplification of that plea then adduced a brief
statement
19
in terms of
s 112(2)
of the
Criminal Procedure Act 51 of
1977
. Both appellants were then duly convicted on their guilty plea.
The proceedings were then stopped. But not before the magistrate
had
first warned the appellants of the need for in-depth probation
officers’ reports. No such reports were however secured
and
placed before Prinsloo J. Instead the appellants contented themselves
with an address in mitigation by counsel from the bar.
Neither chose
to testify or to call any evidence. By that stage as I have pointed
out they well knew that the minimum sentencing
provision that
ordained life imprisonment was being invoked by the State. They were
free, armed with that knowledge, to have conducted
the sentencing
phase of the proceedings differently. But chose not to. In those
circumstances it is difficult to comprehend how
the appellants’
fair trial rights could possibly have been imperilled. At no stage in
either of the courts below was it pertinently
raised by either
appellant that they had suffered prejudice in the conduct of their
case. Instead the point was raised for the
first time before this
court. Even then no tangible complaint was pointedly raised. Rather
there was resort to vague notions of
fairness. But as our courts have
pointed out fairness connotes fairness to both sides. The
Constitutional Court has made that plain
in
Key
v Attorney-General, Cape Provincial Division & another
[1996] ZACC 25
;
1996 (2) SACR 113
(CC) par 13, where Kriegler J
said ‘fairness is an issue which has to be decided upon the
facts of each case, and the
trial Judge is the person best placed to
take that decision’; and, in
S v Jaipal
[2005] ZACC 1
;
2005 (1) SACR 215
(CC) para 29, which held:
'The right of an accused to a
fair trial requires fairness to the accused, as well as fairness to
the public as represented by the
State. It has to instil confidence
in the criminal justice system with the public, including those close
to the accused, as well
as those distressed by the audacity and
horror of crime.'
[50] To find in favour of the appellants here would be
to put form above substance. And as Cameron JA cautioned that we
should not
do. Moreover, Cameron JA was astute, when declining to lay
down a general rule, to allude to the ‘intolerable
complexities’
that may flow from the adoption of a general
requirement, particularly were it to be applied with undue formalism.
For the reasons
stated, I cannot agree with my learned colleague that
the appellants' fair trial rights have been infringed in any way. Not
only
has no factual foundation been laid by the appellants in support
of such a finding but, as I have endeavoured to demonstrate, that
was
never initially their case. Rather the case sought to be advanced on
appeal on their behalf amounts, in my view, to little
more than a
speculative hypothesis. I hesitate to hold that the reference by the
State to the incorrect section of the Act, would,
without more,
amount to a misdirection. Much less one, as here, that would serve to
vitiate the sentence. I accordingly decline
to endorse any general
rule to effect. If it does indeed amount to a misdirection, as my
learned colleague has concluded, I have
some difficulty in
comprehending why such a finding would vitiate the sentence only and
not the proceedings in its entirety, more
especially the conviction.
I cannot imagine how it is possible for the conviction to emerge
unscathed in the face of that finding.
[51] I have been at pains to stress, as enjoined by the
authorities to which I have referred, that a fair trial enquiry does
not
occur
in
vacuo
but that it is first and foremost a
fact-based enquiry. And as I have already stated any conclusion as
may be arrived at requires
a vigilant examination of all the relevant
circumstances. An examination of those circumstances leads me to a
contrary conclusion
to that of my learned colleague and in the result
I would dismiss the appeal.
__________________
V M PONNAN JUDGE OF APPEAL
APPEARANCES:
For Appellant : F van As
Pretoria Justice Centre
Pretoria.
Bloemfontein Justice Centre
Bloemfontein
For Respondent : P Vorster
Director of Public Prosecutions
High Court, Pretoria
Director of Public Prosecutions,
High Court, Bloemfontein
1
S
v Legoa
2003 (1) SACR 13
(SCA) paras
20 and 21.
2
S
v Ndlovu
2003 (1) SACR 331
(SCA) para
12.
3
S
v Makatu
2006 (2) SACR 582
(SCA) paras
3 and 7.
4
Section
86(1) provides: 'Where a charge is defective for the want of any
essential averment therein, or where there appears to
be any
variance between any averment in a charge and the evidence adduced
in proof of such averment, or where it appears that
words or
particulars that ought to have been inserted in the charge have been
omitted therefrom, or where any words or particulars
that ought to
have been omitted from the charge have been inserted therein, or
where there is any other error in the charge,
the court may, at any
time before judgment, if it considers that the making of the
relevant amendment will not prejudice the
accused in his defence,
order that the charge, whether it discloses and offence or not, be
amended, so far as it is necessary,
both in that part thereof where
the defect, variance, omission, insertion or error occurs and in any
other part thereof which
it may become necessary to amend.'
5
S
v Malgas
2001 (1) SACR 469
(SCA) para
25
6
S
v Matyityi
2011 (1) SACR 40
(SCA) para 14.
7
Ibid
para 13.
8
S
v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 5B.
9
Para
5.
10
'
76
Charge-sheet and proof of record of criminal case
(1) Unless an accused has been summoned to appear
before the court, the proceedings at a summary trial in a lower
court shall
be commenced by lodging a charge-sheet with the clerk of
the court, and, in the case of a superior court, by serving an
indictment
referred to in section 144 on the accused and the lodging
thereof with the registrar of the court concerned.
(2) The charge-sheet shall in addition to the charge
against the accused include the name and, where known and where
applicable,
the address and description of the accused with regard
to sex, nationality and age.
(3)
(a)
The court shall keep a record of the
proceedings, whether in writing or mechanical, or shall cause such
record to be kept, and
the charge-sheet, summons or indictment shall
form part thereof.
(b)
Such record may be
proved in a court by the mere production thereof or of a copy
thereof in terms of section 235.
(c)
Where the correctness of any such record is challenged,
the court in which the record is challenged may, in order to satisfy
itself
whether any matter was correctly recorded or not, either
orally or on affidavit hear such evidence as it may deem necessary.'
11
'
235
Proof of judicial proceedings
(1) It shall, at criminal proceedings, be sufficient to
prove the original record of judicial proceedings if a copy of such
record,
certified or purporting to be certified by the registrar or
clerk of the court or other officer having the custody of the record
of such judicial proceedings or by the deputy of such registrar,
clerk or other officer or, in the case where judicial proceedings
are taken down in shorthand or by mechanical means, by the person
who transcribed such proceedings, as a true copy of such record,
is
produced in evidence at such criminal proceedings, and such copy
shall be
prima facie
proof that any matter purporting to be
recorded thereon was correctly recorded.
(2) Any person who, under subsection (1), certifies any
copy as true knowing that such copy is false, shall be guilty of an
offence
and liable on conviction to imprisonment for a period not
exceeding two years.'
12
Para
27.
13
Para
28.
14
Para
18.
15
Para
16.
16
Para
2.
17
Para
26.
18
Para
24.
19
Para
1.