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[2011] ZASCA 178
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Mthimkhulu v S (210/2011) [2011] ZASCA 178 (29 September 2011)
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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no. 210/2011
In the matter between
MDUDUZI NELSON
MTHIMKHULU
…............................................................
Appellant
and
THE STATE
…..............................................................................................
Respondent
Neutral
citation:
Mthimkhulu v S
(210/11)
[2011] ZASCA 178
(29
September 2011)
Coram:
MTHIYANE, VAN HEERDEN and SHONGWE JJA
Heard:
6 September 2011
Delivered:
29 September 2011
Summary:
Criminal Law Amendment Act 105 of 1997
–
appellant charged with and convicted of a single count of rape –
applicable minimum sentence 10 years’ imprisonment
–
regional court applied incorrect section of Act in sentencing
appellant to 15 years’ imprisonment – high court
on
appeal compounded error by replacing sentence imposed by regional
court with sentence of life imprisonment – material
misdirections entitling this court to interfere.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
North Gauteng High Court
(Pretoria) (De Villiers and Bosielo JJ sitting as court of appeal):
The appeal succeeds. The sentence imposed by the high
court is set aside and replaced with the following:
The accused is sentenced to 10 years’
imprisonment, antedated to 29 February 2000.
The order made by the regional court
on 29 February 2000
declaring the accused unfit to possess a
firearm is
confirmed.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
SHONGWE JA (MTHIYANE, VAN HEERDEN JJA concurring)
[1] On 6 September 2011 this court, having heard both
counsel for the appellant and for the state, made the following
order:
‘
The appeal succeeds. The
sentence imposed by the high court is set aside and replaced with the
following:
The accused is sentenced to 10 years’
imprisonment, antedated to 29 February 2000.
The order made by the regional court on 29 February
2000 declaring the accused unfit to possess a firearm is confirmed:
This court indicated that reasons for the order would
follow in due course. These are the reasons.
[2] The appeal before us originates from the conviction
of the
a
ppellant
on one count of rape by a regional c
o
urt
in Piet Retief. The appellant was sentenced to 15 years’
imprisonment. Leave to appeal against both the conviction and
sentence was refused by the regional court. However, upon petition to
the Judge President (North Gauteng High Court, Pretoria),
leave to
appeal was granted in respect of sentence only. The order read:
‘
Verlof tot appel teen
skuldigbevinding word geweier.
‘
Verlof tot appel teen vonnis
word toegestaan op die volgende basis: die vonnis van vyftien jaar
is nie ‘n bevoegde vonnis
met inagneming van die bepalings van
die Strafwysigingswet (sic) 105 van 1997 nie. Ingevolge artikel
51(1) daarvan word, op enkele
unitsonderings na, ‘n minimum
vonnis van lewenslange gevangenisstraf voorgeskryf en moes die
verhoorhof die saak na skuldingbevinding
na die hooggeregshof
gestuur het vir vonnisoplegging.’
[3] On appeal, the North Gauteng High Court, Pretoria
(De Villiers and Bosielo JJ) set aside the sentence imposed by the
regional
court and replaced it with a sentence of life imprisonment.
The further appeal against sentence before us is with the leave of
the court below.
[4] This case was visited by a series of errors on
questions of law and procedure from its inception up to the stage it
reached
the court below. So much so that, at the hearing of this
appeal, both counsel for the appellant and for the state agreed that
the
appeal should succeed and that the order made by the court below
should be set aside.
[5] The first of these errors is manifest from the
charge sheet which refers to one count of rape only, in contrast to
the evidence
from which it appears that the complainant was raped
more than once by the appellant and his two companions, who were
unfortunately
not apprehended. The appellant was convicted ‘as
charged’, viz of a single count of rape. This being so, the
imposition
of sentence fell within s 51(2)(b)(i) of the Criminal
Law Amendment Act 105 of 1997 (the Act), read together with the
provisions
of Part III of Schedule 2. This section provides that a
person who has been convicted of rape referred to in Part III of
Schedule
2, in the case of a first offender, shall be sentenced to
not less than 10 years’ imprisonment, unless in terms of s 51
(3)
of the Act, the sentencing court is satisfied that there are
substantial and compelling circumstances justifying the imposition
of
a lesser sentence. However, had the appellant been charged with and
convicted of raping the complainant more than once, as the
evidence
showed, the minimum sentence applicable to him would have been life
imprisonment in terms of s 51(1) of the Act, read
together with the
provisions of Part 1 of Schedule 2.
[6] The sloppiness with which the charge sheet was drawn
is unacceptable. In the words of Binns-Ward AJ in the similar case of
S v Mponda
2007 (2)
SACR 245
(C) paras 11 and 14-15:
‘
[11]
The slovenly formulation of the charge sheet is potentially
prejudicial not only to the accused, but also to the administration
of justice.
. . . .
[14] The prejudice to an accused
person in the circumstances described is illustrated by the
magistrate’s remarks during sentencing
from which it is
apparent that notwithstanding the content of the charge sheet the
appellant was treated for sentence purposes
as having “recurrent(ly)”
raped the complainant. This was a material misdirection . . . .
[15] The administration of
justice is potentially prejudiced because the allegation of only a
single count of rape in a charge-sheet,
where the evidence supports a
multiplicity of counts, means that the properly convicted accused can
be sentenced only as a single
count offender. As mentioned, this is
cause for particular concern in matters where the Legislature has
determined that offenders
convicted on multiple counts should receive
higher minimum sentences. It is liable to obstruct the achievement of
legislative objects
in the fight against crime and to bring the
criminal-justice system into public disrepute.’
.
[7] The second error is manifest from the following
remarks of the trial judge at the sentencing stage, from which it
appears that
the court considered itself bound to impose a 15 –
year sentence or even to refer the appellant to the high court for
the
imposition of life imprisonment:
‘
Die
hof het nie ‘n keuse nie, meneer, die hof moet vandag vir u 15
jaar gevangenisstraf oplê. Trouens die hof kan u
eintlik na die
Hooggeregshof verwys vir ‘n lewenslange vonnis. En dit is die
vonnis wat die hof gaan oplê. Die hof
vind geen dwingende
omstandighede om ‘n ander vonnis op te lê nie.’
Life imprisonment is not appropriate in the
circumstances of this case because the appellant was charged with and
convicted of a
single act of rape. The trial court was erroneously
under the impression that the applicable minimum sentence was 15
years’
imprisonment, whereas it was ten years as we have
indicated above. This offends against the principles of a fair trial
and constitutes
a material misdirection on the part of the trial
court.
[8] The trial court’s error had a domino effect on
the court below. That court also totally failed to appreciate that
the
appellant had been charged with and convicted of a single count
of rape only. It correctly recognized that the trial court had made
an error in finding that the minimum sentence prescribed by law was
15 years. However, it grievously erred in finding that, in
the
present case, the minimum sentence was life imprisonment and in
replacing the sentence imposed by the trial court with a sentence
of
life imprisonment. The series of errors was compounded by counsel for
the appellant during the hearing in the court below, when
he
conceded, mistakenly so, that in the present case life imprisonment
was the applicable minimum sentence. Strangely enough, counsel
for
the state in the court below argued that the trial court had
exercised its discretion properly and that the court should confirm
the sentence imposed by it.
[9] It is also important to note that the appellant was
not warned timeously or at all that the state would be relying on the
provisions
of the minimum sentence legislation. The provisions of the
minimum sentence legislation and the applicability thereof were
brought
to the attention of the appellant, for the very first time,
after conviction and only when the sentencing proceedings were
underway.
This too constituted a material irregularity. In
S v
Ndlovu
2003 (1) SACR 331
(SCA), Mpati JA confimed that where the
state intends to rely on the sentencing regime created by the Act, a
fair trial will generally
require that its intention be brought
pertinently 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 he or
she faces as well as its possible consequences.
What is at least required is that the accused be given sufficient
notice of the
state’s intention to enable him to conduct his
defence properly. (See also
S v Legoa
2003 (1) SACR 13
(SCA)
and
S v Makatu
2006 (2) SACR 582
(SCA)). This certainly did
not happen in this case. In
S v Chowe
2010 (1) SACR 141
(GNP),
the court (Mavundla J with Legodi J concurring) went to the extent of
saying that the fact that the accused was legally
represented did not
take away the need to promptly inform him of the applicability of the
minimum sentence legislation and its
implications.
[10] In summary, the trial court erred in believing that
the minimum sentence was 15 years’ imprisonment and the high
court
also erroneously believed that the minimum sentence was life
imprisonment. As set out above, the appellant was charged with and
convicted of a single count of rape and therefore, as a first
offender, 10 years was the applicable minimum sentence. As stated
above, the proceedings in both the trial court and the high court
were marked by material irregularities which make it imperative
for
this court to interfere.
[11] In the result this court made the order set out in
para 1 above.
____________________
J B Z SHONGWE
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: L A Van Wyk
Instructed by: Legal Aid Board, Pretoria;
Legal Aid Board, Bloemfontein.
FOR RESPONDENT: L Pienaar
Instructed by: Director of Public Prosecutions,
Pretoria;
Director of Public Prosecutions, Bloemfontein.