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[2018] ZAFSHC 207
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Mokgele v S (A205/2018) [2018] ZAFSHC 207 (22 November 2018)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : A205/2018
In
the matter between:-
MOTSIE
MOKGELE
Appellant
and
THE
STATE
Respondent
CORAM:
JORDAAN, J
et
MOLITSOANE,
J
HEARD:
22 OCTOBER 2018
JUDGMENT
BY
MOLITSOANE,
J
DELIVERED:
22 NOVEMBER 2018
[1]
The appellant was arraigned in the Regional Court sitting in
Botshabelo on a charge of housebreaking with intent to rape and
rape
in contravention of s3 of Act 32 of 2007. He was convicted
pursuant to his plea of guilty and was sentenced to twenty
years
imprisonment. He appeals against his sentence with leave of the court
a quo.
[2]
The grounds of appeal and consequently the issues for adjudication of
the appellant may in a nutshell be crystallised as follows:
1.
Whether the
Appellant was informed of the applicability of the Criminal Law
Amendment Act 105 of 1997(the Act) at the beginning
of the trial to
enable him to make an informed choice.
2.
Whether the
offence for which the appellant was convicted was read with the
provisions of s51(1) or s51(2) of the Act.
3.
Whether the
sentence of 20 years imprisonment imposed by the Court a quo is
shockingly inappropriate and harsh
.
[3]
Mr Modise, appearing for the Appellant submitted that the appellant
had a right to a fair trial in terms of s35(3)(a) of the
Constitution, which included, inter alia, the right to be informed of
the charge with sufficient detail to answer it. He submitted
that the
charge sheet did not allege that the State was relying upon s51(1)
read with Part 1 of Schedule 2 of the Act. He conceded
that the
Magistrate did enquire from the legal representative of Appellant
whether the provisions of the Act were explained to
the appellant. It
is his contention that the Court
a
quo
should not have imposed a sentence as prescribed in terms of s51(1)
of the Act but a sentence as envisaged in s51(2) of the Act.
In the
premises, it is his contention that the sentence imposed is
inappropriate and should be substituted with a lesser sentence.
[4]
On the other hand, Adv. Van der Merwe for the respondent, submitted
that the parties in this case including the Regional Magistrate
at
all material times laboured under the impression that s51(1) of
the Act was applicable as a result of the serious injuries
the
complainant sustained. He concedes that the charge sheet made no
reference to the Act. He submitted that although it is advisable
that
the State should indicate whether it relies on s51(1) or 51(2) of the
Act, failure to so indicate, should not necessarily
mean that a
minimum sentence as prescribed by the Act cannot be imposed. It is
his submission that from the onset the appellant
was aware that life
imprisonment was a possibility. He is of the view that the sentence
imposed cannot be regarded as shockingly
inappropriate.
[5]
The court exercising appellate jusrisdiction will not lightly
interfer with the discretion of the trial court with regard to
sentence unless such a discretion is vitiated by an irregularity or
is disturbingly inappropriate.
[6]
The court in
S v Kolea
2013(1) SACR 409 (SCA) at par [7] said
that if the state intends to rely on the minimum sentencing regime
created in the Act, that
should be brought to the attention of the
accused at the outset of trial.In the subsequent case of
Moses
Tshoga v The State
(635/2016)
2016 ZASCA 205(15 December 2016)
the same court clarified what the effect of this pronouncement in
Kolea
(supra) meant. The court in the case of
Moses Tshoga
(supra)
indicated that the pronouncement that the Act had
to be mentioned in a charge sheet at the outset of the trial was
obiter dictum
as it was not necessary for the decision of that
Court in determining prejudice. The court further went on to say:
“
It is
also clear that the discussion in
Kolea
as to the possibility of prejudice considered that substance was of
paramount importance and that form was secondary. I am of the
view
that a pronouncement that the Act had to be mentioned in the charge
sheet or at the outset of the trial would be elevating
form above
substance. Every case must be approached on its own facts and it is
only after a diligent examination of all the facts
that it can be
decided whether and accused had a fair trial or not.”
The
fact that the appellant was not informed at the outset of the trial
that the State intended to rely on the Act does not necessarily
imply
that his right to a fair trial was infringed upon. In this case no
evidence or submissions were made indicating that the
appellant was
prejudiced by this.
[6]
Section 35(3)(a) of the Constitution provides that every accused
person has a right to a fair trial . The right to fair trial
includes
the right of an accused to be informed of the charge(s) he is facing
with such particularity and detail as to enable him
to answer it.
This is clearly understandable as it will enable an accused person to
prepare adequately, to interrogate the
issues and to decide on the
cause of action to take, be it to plead guilty, to raise procedural
issues or to contest the charges.
It will also allow an accused
person to decide on the question of legal representation. This
inevitably implies that where the
State intends to rely on the Act
the accused should ideally be informed of such. The issue in this
case is what the effect of the
failure of the State to so inform the
accused that it intends to rely on the Act in sentencing.
[7]
In the case of
S
v Legoa
2003 (1)SACR 13 at par[13] the court indicated its reluctance 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 was charged, or the facts the State intended to
prove to
establish it. The court went further and said the following in the
same paragraph:
“
A general
requirement to this effect, if applied with due 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 to
answer the charge, has been impaired, will therefore depend on a
vigilant examination of the
relevant circumstances.”
[8]
In the case of
S v Ndlovu
2003(1) SACR 331(SCA) the accused
was charged with the offences of unlawful possession of a firearm in
contravention of s2 read
with s39(2) of the Arms and Ammunition
Act 75 of 1969 and unlawful possession of ammunition in contravention
of s36 of the
same Act. He was convicted on both charges. The court
during judgment made a finding that the firearm in question was a
semi-automatic.
This brought the appellant within the ambit of the
sentencing regime of the Act. Section 39(2) of the Arms and
Ammunition Act provided
a penal jurisdiction for contravention of s2
to R12 000 or three years imprisonment or both. On the other
hand the sentencing
provisions of the Act prescribed a minimum
sentence of 15 years imprisonment. The Court in this case held that
where an accused
is convicted in the Magistrate Court of an offence
under an incorrect section of an Act, that Court will only have
jurisdiction
to sentence under that section. After discussing other
cases relating to the right to a fair trial the court said the
following:
“
[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 its intention pertinently be
brought to 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.”
[9]
It has to be borne in mind that in the case of
Ndlovu
(supra)
the State made its intention known from the beginning
that it intended to rely on ,
inter alia
, the provisions
of s39(2) of the Arms and Ammunition Act. A conviction on an
enhanced penal jurisdiction in that case was,
therefore, prejudicial
to the accused.
In
Moses
Tshoga
(
supra)
it was held that the failure to refer to the Act in the charge sheet
or at the commencement of a trial did not necessarily vitiate
a
sentence of life imprisonment.
[10]
In this case, the appellant was convicted on his plea of guilty. He
was legally represented. To put this matter in proper perspective
it
is apposite to reproduce the following parts of the record:
“
PROSECUTOR PUTS CHARGES
TO THE ACCUSED:
………………
‘
Mr MM is facing a charge of
housebreaking with the intent to contravene section 3 of Act 32 of
2007, and did contravene Section
3 of Act 32 of 2007, further read
with the provisions of Section 1,56,57,58.59,60 and 61 of the
Criminal Law Amendment Act 32 of
2007, read further with the
provisions of
Section 51
of the
Criminal Law Amendment Act 105 of
1997
as amended, …………..”
The
above excerpt is part of the charge that was put to the appellant. It
is not in dispute that the annexure to the charge sheet
did not
allege that the state intended to rely on the provisions of s51 (1)
of the Act. The charge which was, however, put to the
accused in the
open court explicitly indicated that it was read with the provisions
of s51 of the Act. It is clear that the Prosecutor
read into the
record that which the charge sheet did not contain, namely, the
applicability of the Act. The appellant or his legal
representative
did not object to the charge being put in the manner that was done in
spite of the fact that reference to section
51of the Act was not
specifically alleged in the charge sheet. It is my view that when the
appellant was asked to plead to the
charge, he pleaded to the charge
that was put to him in an open court and the charge that was put to
him included reference to
s51 (1) of the Act.
[11]
It is apposite also to mention that before the accused pleaded to the
charge, the Court enquired from his legal representative
if the said
legal representative explained the provisions of what the court
referred to as Minimum Sentence legislation as well
as the competent
verdicts to which the legal representative answered in the
affirmative. The appellant also confirmed that his
legal
representative did explain the said legislation to him. The record
is, however, silent as to what exactly was explained to
the appellant
pertaining to the applicability of the Act. I am, however, satisfied
that the appellant being legally represented
was apprised of the
applicable provisions of the Act.
[12]
During the address on sentence the legal representative of the
appellant said the following:
“
As the charge sheet clearly
states and as the facts that I put before this Court indicate Your
Worship, this falls within the ambit
of the Minimum Sentence
legislation, and a life imprisonment in this instance.”
Proper
reading of the record indicates that the court, the prosecution and
the defence were
ad
idem
that the offence for which the accused was charged fell under
Schedule 2 Part 1 for which life imprisonment was ordained upon
conviction.
[13]
While it is advisable that charge sheets and indictments should
ideally refer to the provisions of the Act, failure to make
such
averments in the charge sheet should not mean that a minimum sentence
cannot be imposed. The court in
MT v The State
;
ASB
v The State
;
Johannes September v The State
2018
ZACC 27
at par
[40]
also said the following:
“
It is indeed desirable that the
charge sheet refers to the relevant penal provision of the Minimum
Sentences Act. This should not,
however, be understood as an absolute
rule. Each case must be judged on its particular facts.
Where there is no mention
of the applicability of the Minimum
Sentences Act in the charge sheet or in the record of the
proceedings, a diligent examination
of the circumstances of the case
must be undertaken in order to determine whether that omission
amounts to unfairness in trial.
This is so because even though there
may be no such mention, examination of the individual circumstances
of a matter may
very well reveal sufficient indications that the
accused’s section 35(3) right to a fair trial was not in fact
infringed.”
[14]
The mere fact that
the charge sheet made no reference to the Act does not necessarily
imply that the right of an accused to a fair
trial has been
compromised. No submissions were made on behalf of the appellant that
the failure to allege in the charge sheet
of the applicability of the
Act, in any way prejudiced the appellant. No submissions were made
that had such allegations relating
the Act been made the appellant
would have acted differently. I am satisfied in this case that the
appellant was apprised of the
applicability of the prescribed minimum
sentence and its concomitant sentence should he be convicted. It is
my view that failure
to allege the applicability of the Act in the
charge sheet, did not infringe on the right of the appellant to a
fair trial.
[15]
Both the state and the defence argued that substantial and compelling
circumstances were present warranting the trial court
from imposing a
prescribed sentence of life imprisonment. The court
a
quo
agreed with those submissions and recorded the following as
constituting substantial and compelling circumstances, that the
appellant
was a first offender who pleaded guilty and thus shown
remorse for his deed. That the appellant maintained his minor child
and
siblings.
[16]
The court
a quo
found the following factors to be aggravating:
That
the age gap between the complainant and the appellant was 21 years.
That the appellant knew the complainant at the time of
this incident.
The complainant was raped in her own home. She sustained serious
injuries to her body and private parts. She also
sustained fractured
ribs. As a result of this incident the complainant relocated to Thaba
Nchu from Botshabelo. According to her
testimony, not only was she
hurt, but this incident also hurt her two children. Rape is a heinous
crime which does not only affect
the complainant but also those
around the complainant. I can find no reason to interfere with the
sentence imposed by the trial
court and I cannot find that same to be
shockingly inappropriate. I accordingly propose the following order:
[17]
ORDER
1.
The appeal
against the sentence is dismissed and the sentence imposed is
confirmed.
2.
The order
in terms of s103(1) of the Fire Arms Control Act 60 of 2000 is
confirmed.
__________________
P.E.
MOLITSOANE, J
I
agree and it is so ordered:
_______________
A.
F.
JORDAAN,J
On
behalf of the appellant: Mr T.J. Modise
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv C.A. Van der Merwe
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
ORDERS
1.
The appeal
against the sentence is dismissed.
2.
An order
made in terms of
s103
(1) of the
Firearms Control Act 60 of 2000
is
confirmed.
P.E.
MOLITSOANE, J
I
agree and it is so ordered.
______________
J.F
JORDAAN, J
On
behalf of appellant: Ms S Kruger
Instructed
by:
Legal
Aid, South Africa
Bloemfontein
On
behalf of the respondent: Adv. Van der Merwe
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN