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[2019] ZAGPPHC 58
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Joyisi v S (582/17) [2019] ZAGPPHC 58 (12 March 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA DIVISION)
Case No. 582/17
In the matter between:
SITHEMBELE JOYISI
APPELLANT
and
THE STATE
RESPONDENT
JUDGMENT
MILLAR, A J
1.
On
24 February 2017, the appellant, a 31-year-old man was convicted in
the Regional Court Klerksdorp of the rape of a 6-year-old
child. He
was sentenced to life imprisonment for the rape. He was also declared
unfit to possess a firearm and an order was made
in terms of the
Firearms Control Act
[1]
declaring him unfit to possess a firearm
[2]
.
The court
a
quo
also ordered that his particulars be entered into the National
Register of Sex Offenders
[3]
.
2.
The
appeal before this court is against conviction and sentence, such
appeal being automatic in terms of section 309B read together
with
the proviso to
section 309(1)
of the
Criminal Procedure Act 1977
, by
virtue of the imposition of the sentence of life imprisonment.
3.
It
bears mentioning that the offence of which the appellant was
convicted occurred on 22 November 2008. The appellant was arrested
and released on bail. He absconded and the trial that was supposed to
have commenced on 17 February 2010 did not proceed. He subsequently
appeared on 6 May 2010 when he was convicted of contempt and given a
R1000,00 fine with 20 days imprisonment in the event the fine
was not
paid. The matter was remanded for trial on 29 July 2010 and his bail
extended. After further remands the trial commenced
on 29 October
2010. The trial was postponed on that date to 17 November 2010. The
appellant again absconded and was not seen in
court again until the
trial resumed on 21 July 2016. The appellant being in custody, the
trial was completed, and judgment handed
down on 24 February 2017 - 7
years after the offence was committed.
4.
Notwithstanding
that the appeal was noted against both conviction and sentence, both
the appellant and respondent delivered heads
of argument dealing only
with a single issue – that is whether the imposition of the
life sentence was a misdirection on
the part of the court a quo given
that the possibility of the imposition of such sentence was not
explained to the appellant by
the court. No argument was presented in
respect of the conviction and there is in the circumstances, no
reason to interfere with
the factual findings of the court
a
quo
in respect of the conviction on count 1
5.
The
single charge faced by the accused on the charge sheet referred to
“
Section
51
of Act 105/1997 is applicable because the complainant was born
28/07/2002
”,
the relevant statutory provision in terms of which the minimum life
sentence was imposed.
6.
The
appellant was legally represented throughout the proceedings.
Nevertheless, it is apparent from the record, that the minimum
sentence provisions referred to in the charge sheet were never
explained to him by the court – either when the charge was
put
to him or when he pleaded.
7.
The
waters in the present appeal are muddied by the fact that the
attorney who had represented the appellant when the charge was
put to
him and he pleaded, had passed away before the trial was concluded.
However, by the time that the trial resumed in 2016,
his
representative at that stage knew what the minimum sentence being
faced by the appellant was, placing this on record during
the
argument in mitigation and must have at least by then informed the
appellant of the minimum sentence he faced if he had not
been advised
before by the first representative.
8.
t
is well established that in regard to the imposition of minimum
sentences:
“
Under
constitutional dispensation it is certainly no less desirable than
under common law that facts State intends to prove to increase
sentencing jurisdiction under the Act should be clearly set out in
the charge-sheet - Matter is, however, one of substance and
not form,
and general rule cannot be laid down that charge in every case has to
recite either in specific form of scheduled offence
with which
accused charged or facts State intends to prove to establish it –
Whether accused’s substantive fair trial
right, including her
or his ability to answer charge, has been impaired depends on
vigilant examination of relevant circumstances.”
[4]
9.
The
enquiry is in two stages. Firstly, whether the appellant was advised
of the charges he was to face and the sentence that may
be imposed
and secondly whether the appellants right to a fair trial had been
impaired.
10.
In
the present matter, since the charge sheet did indeed refer to the
minimum sentence provisions -
section
51
of Act 105 of 1997
and the facts which would be relied upon –because
the
complainant
was born on 28/07/2002
,
the appellant cannot be said to have been unaware of the charge he
faced and the sentence that could be imposed were he convicted.
11.
He
was furthermore represented and must have taken advice and given
instructions to his representative in preparation for the trial.
This
was confirmed by the representative when she informed the court that
the plea of “not guilty” was in accordance
with her
instructions. That the appellant understood the seriousness of the
charge he faced and the consequences of a conviction
can to my mind
be inferred from his having absconded while on bail, on more than one
occasion, in order to avoid those consequences.
12.
The
enquiry in the present matter seems to me to be in regard to whether
the appellant enjoyed a “
substantive
fair right trial”.
The appellant was represented throughout the trial –
after the passing of the first representative, a second was
appointed.
The evidence relied upon by the respondent was tested in
cross-examination and the version of the appellant put to the
respondent’s
witnesses. The appellant was not prejudiced in any
way in the conduct of his defence. He pleaded “not guilty”
and thus
was not prejudiced by pleading “guilty” to an
offence, the sentence for which a conviction was harsher than that
which
he understood he was pleading to.
13.
The
appellant was convicted, on Count 1 of a crime referred to in
Part
1 of Schedule 2 of The
Criminal Law Amendment Act 105 of 1997
and the court a quo was obliged to impose the prescribed minimum
sentence of life imprisonment in terms of
Section 51(1)
of that Act,
absent substantial and compelling circumstances
[5]
.
14.
Were
there were substantial and compelling circumstances justifying the
imposition of a lesser sentence?
15.
Neither
the appellant nor the respondent placed any pre-sentence reports
before the court for its consideration. The appellants
personal
circumstances were considered. He is a married man with 5 children
aged between 7 and 17 years of age. The children live
with their
mother in the Eastern Cape Province while the appellant lived and
worked in the North West Province. He attended school
to standard 2,
the equivalent of grade 4. The trial court did not overemphasize the
interests of the community and was not dismissive
of the personal
circumstances of the appellant.
16.
The
court
a
quo
found, and indeed there are no substantial and compelling reasons to
depart from the minimum sentence in respect of count
1.
17.
n
the circumstances, I propose the following order:
17.1
The
appeal against the conviction on count 1 is dismissed.
17.2
The
appeal against sentence on count 1 is dismissed.
A
MILLAR
ACTING JUDGE OF THE HIGH COURT
I
AGREE AND IT IS SO
ORDERED
J
MAUMELA
JUDGE
OF THE HIGH COURT
HEARD
ON:
12 MARCH 2019
JUDGMENT DELIVERED
ON:
12
MARCH 2019
COUNSEL FOR THE APPELLANT:
ADV A THOMPSON
INSTRUCTED
BY:
LEGAL AID SA
PRETORIA JUSTICE
CENTRE
COUNSEL FOR THE RESPONDENT:
ADV N MAPHALALA
INSTRUCTED
BY:
THE STATE ATTORNEY
[1]
60
of 2000
[2]
In
terms of section 103(1)
[3]
In
terms of section 50(2) of Act 32 of 2007
[4]
S
v Legoa
2003 (1) SACR 13
(SCA); see also S v Makatu
2006 (2) SACR
587
(SCA); S v Ndlovu 2017 (2) 305 (CC); S v Mabaso 2014 (1) SACR
299 (KZP)
[5]
S v
Malgas
2001
(1) SACR 469
(SCA) at paragraph 8