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[2011] ZASCA 179
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Mthembu v S (206/11) [2011] ZASCA 179; 2012 (1) SACR 517 (SCA) (29 September 2011)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 206/11
In
the matter between:
SIMANGE
WISEMAN MTHEMBU
…....................................................
Appellant
and
THE
STATE
…..................................................................................
Respondent
Neutral
citation:
Mthembu v The State
(206/11)
[2011] ZASCA 179
(29
September 2011)
Bench:
PONNAN, SNYDERS, MALAN, BOSIELO JJA and PETSE AJA
Heard: 16 September 2011
Delivered: 29 September 2011
Corrected:
SUMMARY:
Criminal Law Amendment Act 105 of 1997
–
s
51
– prescribed sentences – failure to apprise defence
that court contemplating sentence higher than prescribed minimum
not
constituting defect in the proceedings.
______________________________________________________________________
ORDER
______________________________________________________________________
On
appeal from
:
KwaZulu-Natal High Court
(Pietermaritzburg)
(Swain,
Gorven and Jappie JJ sitting as court of appeal).
The appeal
is dismissed.
______________________________________________________________________
JUDGMENT
_____________________________________________________________________
PONNAN JA and PETSE AJA ( SNYDERS, MALAN and BOSIELO JJA
concurring):
[1] On 9 April 2006 fate conspired, it would seem, to cause the path
of the appellant, Simange Wiseman Mthembu to cross that of
a 29 year
old taxi driver, Derrick Mfanafuthi Majozi (the deceased) not just
once, but twice. The first, at about midday in the
Pietermaritzburg
central business district, ended uneventfully. The second, during the
course of the late afternoon near Masons
Mill in Edenvale Road,
Pietermaritzburg, not so. Each was precipitated, according to the
appellant, by the deceased's inconsiderate
driving. On the first
occasion the appellant and the deceased had to be pulled apart by
others, thus averting an altercation. On
the second, an incident
unrelated to the first, there was a resort to fisticuffs during the
course of which the appellant produced
a firearm with which the
deceased was shot and killed.
[2] The appellant, who was indicted before Nicholson J in the
KwaZulu-Natal High Court (Pietermaritzburg) on one count of murder,
asserted that in resorting to his firearm he had acted in
self-defence in order to ward off a knife-wielding attack by the
deceased.
But that defence was rightly rejected by the learned trial
judge who convicted the appellant as charged and sentenced him to
imprisonment
for a term of 18 years.
[3] The appellant's appeal to the full court (Jappie, Swain and
Gorven JJ) against both conviction and sentence was unsuccessful.
The
judgment of the full court, which sets out the facts in far greater
detail than we have chosen to do, is reported sub nom
S v Mthembu
2011 (1) SACR 272
(KZP). The full court had little hesitation in
confirming the conviction. In so doing it fully endorsed Nicholson
J's factual findings.
In that, in our view, it cannot be faulted.
What did give it pause for reflection was the sentence imposed by the
learned trial
judge. Its anxiety was provoked, in particular, by an
earlier reported judgment of that division -
S v Mbatha
2009
(2) SACR 623
(KZP). Both Swain J and Gorven J in separate judgments
(with which Jappie J in each instance concurred) held that
Mbatha
had been wrongly decided. They therefore declined to follow it.
In the light of those discordant judgments special leave to appeal,
solely in respect of sentence, was granted by this Court to the
appellant.
[4] At the heart of this appeal therefore is the correctness of
Mbatha
. In
Mbatha,
Wallis J (Van der Reyden and
Niles-Duner JJ concurring), held (para 26):
'Consistent with what I have already said about the
proper approach to sentence when the court contemplates a sentence
greater than
the statutory minimum, and consistent also with those
cases that have held that if the State intends to rely upon the
minimum sentencing
legislation the accused must be forewarned of that
fact, preferably in the indictment, I think that the failure to
apprise the
defence of the fact that a higher sentence than the
minimum was in contemplation was a defect in the proceedings. What
makes that
defect of greater significance is that the way in which
Badal AJ put his questions to Mr Govender meant that the latter may
have
been misled. In my view there was a substantial risk of him
having been lulled into a sense of false security, in the belief that
the court was only concerned with the question whether there were
substantial and compelling circumstances justifying the imposition
of
a sentence less than the minimum, and was not entertaining the
possibility of a sentence greater than that. That is particularly
so
in a case such as the present where the fact that the appellant chose
to advance a dishonest defence, which had been correctly
rejected by
the court, and did not then give evidence, meant that there was
little point in advancing a submission that substantial
and
compelling circumstances were present justifying the imposition of a
sentence of less than 15 years' imprisonment. In my view,
the court
contemplating the imposition of a sentence greater than the statutory
minimum should make it apparent to the accused
and his or her legal
representative, as that may well alter their entire approach to
sentence.'
[5] Thus far our courts have simply accepted that if, upon an
evaluation of the cumulative effect of all the circumstances of a
case, a higher sentence was called for, there were no constraints on
its discretion to impose a sentence far in excess of the ordained
minimum (
Director of Public Prosecutions v Venter
[2008] ZASCA 76
;
2009 (1)
SACR 165
(SCA) para 19). And so, in arriving at that conclusion
Wallis J appreciated that he was venturing into unchartered
territory. As
he put it (para 14):
'I appreciate that the Supreme Court of Appeal laid down
this approach in the context of cases concerned with a departure from
the
statutory minimum sentence by virtue of the presence of
substantial and compelling circumstances. I am also alive to the fact
that
the legislation contains no provision corresponding to
s
51(3)(a)
when the departure from the prescribed minimum sentence is
upwards rather than downwards. Nonetheless it seems to me that this
must remain the correct approach when the court is contemplating
imposing a greater sentence than the prescribed minimum, in the
same
way as where it is contemplating imposing a lesser sentence.
Otherwise the process of determining the appropriate sentence
will be
bifurcated in a most undesirable way. If the approach is different
from that which I have indicated it will lead to the
following
situation. The court will first determine whether the case is one
falling within the minimum sentencing legislation.
If it is, then it
will enquire whether there are substantial and compelling
circumstances justifying the imposition of a lesser
sentence. If it
concludes that there are none, it will then abandon all that has gone
before and simply determine in the exercise
of its discretion an
appropriate sentence, having no regard to the legislation.'
[6] Wallis J continued (para 15 and 16):
'In my view such an approach disregards one of the
purposes of the minimum sentencing legislation, which is to provide a
measure
of uniformity and not simply to limit in one direction the
discretion of courts in imposing sentence in particular cases, whilst
leaving them entirely at large in the other direction. In para 8 of
his judgment in
Malgas
,
Marais JA said that the purpose of the legislation was that of:
". . . ensuring a severe, standardised, and
consistent response from the courts to the commission of such crimes
unless there
were, and could be seen to be, truly convincing reasons
for a different response. When considering sentence the emphasis was
to
be shifted to the objective gravity of the type of crime and the
public's need for effective sanctions against it."
Later he set out the general principles to be applied in
approaching the issue of sentence in these cases, some of which bear
upon
the present problem. They are the following:
"B. Courts are required to approach the imposition
of sentence conscious that the Legislature has ordained life
imprisonment
(or the particular prescribed period of imprisonment) as
the sentence that should
ordinarily
and in the absence of
weighty justification be imposed for the listed crimes in the
specified circumstances.
C. Unless there are, and can be seen to be, truly
convincing reasons for a different response, the crimes in question
are therefore
required to elicit a severe, standardised and
consistent response from the courts.
D. The specified sentences are not to be departed from
lightly and for flimsy reasons." '
[7] In our view, the starting point in an inquiry such as the present
is s 51 of the Criminal Law Amendment Act 105 of 1997 (the
Act).
Sections 51(1), (2) and (3)(a) 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
1 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'
[8] It is noteworthy that s 51 is headed 'Discretionary minimum
sentences for certain serious offences'. That together with repeated
references to the words 'not less than' in ss 2 is the clearest
indicator that the legislature did not intend to fetter the
discretion
of the sentencing court in the way that Wallis J
postulates.
[9] In
Mthembu
, Swain J had this to say (para 19.1):
'The statement in
Malgas
that the prescribed periods of imprisonment "are to
be taken to be ordinarily appropriate", was uttered by the
Supreme
Court of Appeal in the context of determining when a
departure from the statutory minimum sentence was justified.
Acknowledging
this, Wallis J, however, held the view that the
starting point must be the prescribed minimum sentence and the court
must then
consider if a departure is justified in imposing a greater,
or lesser, sentence. Although the prescribed minimum sentence should
be the starting point, this is solely for the purpose of deciding
whether a sentence less than the prescribed minimum sentence
should
be imposed. The exercise of a discretion by the presiding officer to
impose a sentence greater than the prescribed minimum
sentence, does
not have to be justified by reference to the prescribed minimum
sentence. There can be no danger of an undesirable
bifurcation in the
sentencing process referred to by Wallis J, if it is borne in mind
that the object of the Act was simply "to
provide for minimum
sentences for certain serious offences". Once the presence or
absence of substantial and compelling circumstances
is determined,
then the exercise of the discretion required of the presiding
officer, by the Act, is complete. If no such circumstances
are found
to be present, I respectfully disagree that the determination of an
appropriate sentence will result in an impermissible
abandonment of
"all that has gone before". That the presiding officer
thereafter need have no regard to the legislation,
will simply be
because the object of the legislation will have been achieved, i e a
determination that a sentence less than the
prescribed minimum
sentence should not be imposed because of the absence of substantial
and compelling circumstances.'
[10] As Marais JA made plain in
S v
Malgas
2001 (1)
SACR 469
SCA (para 18) the legislature has '. . . deliberately and
advisedly left it to the courts to decide in the final analysis
whether
the circumstances of any particular case called for a
departure from the prescribed sentence'. He added (para 25): 'What
stands
out quite clearly is that the courts are a good deal freer to
depart from the prescribed sentences than has been supposed in some
of the previously decided cases . . . '.
[11] Plainly what we are dealing with is a legislative provision that
fetters only partially the sentencing discretion of the court.
That
much emerges from ss 3(a) which entitles a court to impose a lesser
sentence than the sentence prescribed if it is satisfied
that
substantial and compelling circumstances exist which justify the
imposition of such lesser sentence. It follows that even
were a court
to conclude that substantial and compelling circumstances do indeed
exist, it may in the exercise of its sentencing
discretion
nonetheless impose the prescribed minimum or such higher sentence as
to it appears just.
[12] On Wallis J's approach the legislative provision would be so
prescriptive in its terms as to strip the sentencing court of
its
sentencing discretion. Construed as Wallis J does, the provision
would be mandatory in effect and may well not pass constitutional
muster. Of such a provision, Marais JA stated in
Malgas
(para
3):
'What
is
rightly
regarded as an unjustifiable intrusion by the Legislature upon the
legitimate domain of the courts, is legislation which
is so
prescriptive in its terms that it leaves a court effectively with no
sentencing discretion whatsoever and obliges it to pass
a specific
sentence which, judged by all normal and well-established sentencing
criteria, could be manifestly unjust in the circumstances
of a
particular case. Such a sentencing provision can accurately be
described as a mandatory provision in the pejorative sense
intended
by opponents of legislative incursions into this area. A provision
which leaves the courts free to exercise a substantial
measure of
judicial discretion is not, in my opinion, properly described as a
mandatory provision in that sense. As I see it, this
case is
concerned with such a provision.'
[13] Whilst ss 3(a) obliges a sentencing court to enter the
circumstances on the record if it is minded to impose a lesser
sentence
than that ordained by the legislature, there is no
indication in the language of that provision that a similar course
must be followed
where a more severe sentence is contemplated. That
notwithstanding, Wallis J concluded that ‘the failure to
apprise the defence
of the fact that a higher sentence than the
minimum was in contemplation was a defect in the proceedings’
.
Conceptually we must confess to experiencing some difficulty
with that conclusion. While it may be notionally axiomatic that the
State should forewarn an accused person of its intention to invoke
the minimum sentencing provision the same can hardly hold true
for a
court. For, surely, a court only arrives at its conclusion as to what
a proper sentence is, after having received all of
the evidence and
hearing argument. Often it is the very act of consideration after the
hearing of argument that properly concentrates
the judicial mind to
the task at hand. Until then such views as may be held by a court may
well be no more than tentative.
[14] When then should the defence be apprised by the court of the
fact that a sentence in excess of the ordained minimum is
contemplated?
‘At the outset of the sentencing phase’ was
counsel’s answer to that question. One suspects that it would
have
to be as early as then. Any later, may in all likelihood render
the warning illusory, particularly if the complaint is - and that
was
the thrust of the complaint - that an accused person may (not would)
conduct his or her case differently if forewarned. Notwithstanding
the
sui generis
nature of the sentencing phase, the mere
notion that a court should be obliged,
ante omnia
so to speak,
to disclose its view, even if simply tentative, on pain that failure
to do so would vitiate the proceedings and, moreover,
to thereafter
be bound to that view (for that is its corollary) is anathema to our
law. No such duty existed prior to the coming
into operation of the
minimum sentencing legislation. And no such duty is to be found in
the legislation itself.
[15] Where then would this duty derive from? Counsel submitted that
it was to be sourced in our conception of a fair trial. But
resort to
vague notions of fairness hardly serve to elucidate the enquiry. At
present an accused person is warned at the time of
the charge or the
indictment that s 51 of Act 105 of 1997 would be applicable in the
event of a conviction. A reference to the
Act in the charge forewarns
the accused not just that he or she is on risk for the minimum
sentence ordained by the legislature
unless substantial and
compelling circumstances are found to exist, but also that the
sentencing jurisdiction of the regional court
(should that be the
forum) has been enhanced to give practical efficacy to the
legislative intent. At the commencement of the trial
therefore an
accused person can hardly be under any illusion as to the risk that
he or she faces. Thus, the warning to an accused
person where the
minimum sentence applies is far more comprehensive than would be the
case if it does not apply. But, on the approach
of Wallis J, that
appears to be insufficient. Something further, it seems, is required.
Counsel was asked during argument to indicate
in more concrete terms
what that additional something was or how the existing warning should
be further supplemented. Unsurprisingly,
he was unable to do so. We
are thus none the wiser as to what the inadequacy is or how the
perceived inadequacy should be remedied.
[16] 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.'
[17] 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.
[18] It may well be a salutary practice for a court, if it holds a
view adverse to a particular litigant, to put that to the litigant
or
such litigant's representative during argument. But we cannot imagine
that where a view is just in its embryonic stage, a failure
to do so,
without more, would constitute a defect in the proceedings. In
particular Wallis J’s approach, that the failure
to apprise the
defence of the fact that a higher sentence than the minimum was in
contemplation constitutes, without more, a defect
in the proceedings,
cannot be endorsed. In our view such failure in and of itself will
not result in a failure of justice, which
vitiates the sentence.
After all, any sentence imposed, like any other conclusion, should be
properly motivated (
S v Maake
2011 (1) SACR 263
SCA). And we
should not lose from sight that our appellate courts have, in terms
of long standing practice, reserved for themselves
the right to
interfere where a sentence has been vitiated by a material
misdirection or where it is shocking or startlingly inappropriate.
As
both
Legoa
and
Ndlovu
make plain a ‘vigilant
examination of the relevant circumstances’ is required. Here,
the indictment was explicit. It
stated: ‘
MURDER
read
with the relevant provisions of section 51 and Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
’. Thus, right from the
outset, the accused was informed in unambiguous terms that the State
intended to rely on the minimum
sentencing provisions. No specific
irregularity was alluded to in argument. A careful perusal of the
record reveals that there
was none.
[19] One further aspect merits mention.
Maake,
in support of
the broad hypothesis that conclusions by a court should be properly
motivated, called in aid
Mbatha.
It was submitted to us that
Maake
cited
Mbatha
with apparent approval and that that
constitutes an endorsement of its correctness on this score. We do
not agree.
Maake
did not subject the judgment in
Mbatha
to careful scrutiny nor was the correctness of its conclusion or
reasoning properly considered. It sought support from
Mbatha
in a wholly different context.
[20] Turning then to the merits of the present appeal against
sentence. Swain J stated (para 11 and 12):
'The learned judge found that the appellant had shown
true contrition and regret for what he had done, was a first
offender, and
accepted that he was a good candidate for reformation
"as provided for in the Correctional Services system". The
learned
judge however, identified the incident as one which fell
within what has become known as "road rage". By reference
to
the decision of Borchers J in the case of
S v Sehlako
1999
(1) SACR 67
(W), he held that the facts were very similar to the
present case, and endorsed the view of Borchers J, that:
"[E]ven where an accused's personal circumstances
are extremely favourable, as they are in this case, they must yield
to society's
legitimate demand that its members be entitled to drive
the roads without risk of being murdered by other irate drivers.”
In
Sehlako
the
accused was sentenced to 18 years' imprisonment. The learned judge
found there was very little to differentiate that case from
the
present one, and sentenced the appellant to 18 years' imprisonment.'
He accordingly concluded (para 22 and 23)):
'This court can of course only interfere with the
sentence imposed by the trial court where it is vitiated by a
material misdirection,
or where the disparity between the sentence of
the trial court and the sentence which the appellate court would have
imposed, had
it been the trial court, is so marked that it can
properly be described as "shocking", "startling"
or "disturbingly
inappropriate"—
Malgas
at 478e-h.
The sentence imposed by the learned judge suffers from
none of these defects, and accordingly must stand.
The order I make is the following:
The appeal against conviction and sentence is
dismissed.'
[21] We can find no fault with the approach of the court below. It
follows that the appeal must fail and it is accordingly dismissed.
_________________
V M PONNAN
JUDGE OF APPEAL
________________
X M
PETSE
ACTING
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: L Barnard
Instructed
by:
Kunene
Attorneys
Pietermaritzburg
Honey
Attorneys
Bloemfontein
For
Respondent: R du Preez
Instructed
by:
The
Director of Public Prosecutions
Pietermaritzburg