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[2018] ZASCA 133
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Khoza and Another v S (1267/2017) [2018] ZASCA 133; 2019 (1) SACR 251 (SCA) (28 September 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1267/2017
In
the matter between:
NICO MANUEL
KHOZA
FIRST
APPELLANT
SIMON
BENNET
MHLONGO
SECOND
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Khoza
& another v The State
(1267/2017)
[2018] ZASCA 133
(28 September 2018)
Coram:
Maya
P and Van der Merwe JA and Nicholls AJA
Heard:
4
September 2018
Delivered:
28
September 2018
Summary:
Criminal
Procedure – sentence – appellants not informed of the
applicable provisions of the
Criminal Law Amendment Act 105 of 1997
at the outset of the trial – right to a fair trial – test
for prejudice – reasonable possibility that appellants
may have
conducted their cases differently had they been so informed –
sentence to be imposed afresh without consideration
of minimum
prescribed sentences.
ORDER
On
appeal from:
North
West Division of the High Court, Mahikeng (Leeuw JP and Gura and
Gutta JJ sitting as court of appeal):
1 The appeal against
sentence is upheld.
2 The order of the full
court is set aside and replaced with the following:
‘
a The appeal is
upheld.
b The sentences of the
appellants are set aside and the matter is remitted to the
trial court to impose sentence
afresh.’
3 The registrar of the
North West Division of the High Court, Mahikeng is directed to
prioritise the enrolment of the matter.
JUDGMENT
Van
der Merwe JA (
Maya
P and Nicholls AJA
concurring)
[1]
This is yet another appeal that raises the question whether an
appellant’s right to a fair trial was infringed by the
failure
to alert them at the outset of the trial to the applicable provisions
of the Criminal Law Amendment Act 105 of 1997 (Minimum
Sentences
Act). It is appropriate, at the outset, to draw attention to the
duties of courts and prosecutors in this regard set
out in
Ndlovu
v The State
[2017]
ZACC 19
;
2017 (2) SACR 305
(CC) paras 53-58.
[2]
The appeal against sentence arose in the following manner. The first
appellant and the second appellant were charged together
with four
others in the North West Division of the High Court, Mahikeng with
murder (count 1), robbery with aggravating circumstances
(count 2)
and unlawful possession of firearms and ammunition (counts 3 and 4),
respectively. The indictment did not refer to the
Minimum Sentences
Act. Neither did it contain factual allegations that rendered the
Minimum Sentences Act applicable.
[3]
The trial took place before Hendricks J. The prosecution led the
evidence of several witnesses. The appellants did not testify,
an
aspect to which I shall return. At the conclusion of the trial
Hendricks J found that the appellants had participated in a planned
armed robbery at the residence of a shopkeeper. During the robbery
the shopkeeper was shot and killed by one of the other accused.
The
trial court found that cash in the amount of R5 400, cellphones
and a Toyota Hilux vehicle were taken during the robbery
and that the
appellants shared in the spoils. The trial court accordingly
convicted the appellants on counts 1 and 2 but acquitted
them on
counts 3 and 4.
[4]
At the commencement of the trial the appellants were represented by
separate legal representatives. During the state case, the
legal
representative of the second appellant indicated that he held
instructions to apply for the recusal of the trial judge. However,
he
argued that the application for recusal should be heard by another
judge. When Hendricks J unsurprisingly ruled that the application
for
recusal should be determined by him, the second appellant terminated
the mandate of his legal representative and indicated
that he would
take no further part in the trial. Hendricks J urged the second
appellant to reconsider and to participate in the
trial as well as to
make use of the available legal representation, but the second
appellant persisted with this stance for the
remainder of the trial.
[5]
After the second appellant took this position, the legal
representative of the first appellant in fact applied that Hendricks
J recuse himself. This application was refused, whereafter the legal
representative of the first appellant placed on record that
she
withdrew from the matter on the ground that the first appellant too,
would take no further part in the trial. The legal representative
was
then excused. The trial judge enquired from the first appellant
whether he wished to conduct his own defence or to obtain legal
representation at his own expense. The first appellant did not
respond and the next witness for the state was called. The first
appellant also steadfastly remained unresponsive for the remainder of
the trial.
[6]
After the appellants were convicted, the trial court informed them as
follows:
‘
They are
convicted of murder and the circumstances under which this murder was
committed is that of robbery where aggravating circumstances
are
present and also the fact that they acted in a group when they
committed the murder and the robbery. The sentence prescribed
for
murder under such circumstances is that of life imprisonment and
unless they place before this Court substantial and compelling
circumstance which may persuade the Court to deviate from the
sentence of life imprisonment, this Court will impose life
imprisonment
for murder.’
This
statement was in accordance with s 51(1) of the Minimum Sentences
Act, read with Part I of Schedule 2 thereto. In continuation
of the
stance taken previously, the appellants did not respond to this
statement.
[7]
Hendricks J proceeded to find that there were no substantial and
compelling circumstances that justified a departure from the
prescribed minimum sentence of life imprisonment in respect of the
count of murder. He therefore sentenced each of the appellants
to
life imprisonment on that count. In terms of s 51(2)
(a)
of the Minimum Sentences Act read with Part II of Schedule 2 thereto,
the minimum prescribed sentence applicable to count 2 (the
appellants
being first offenders) was 15 years imprisonment. Despite this and
the submission of counsel for the prosecution that
‘the only
appropriate sentence’ on count 2 was 15 years imprisonment,
Hendricks J sentenced each of the appellants
to 20 years imprisonment
on that count. These sentences were imposed on 11 November 2005.
[8]
The appellants’ application for leave to appeal came before
Hendricks J nearly 11 years later, on 19 August 2016. He granted
them
leave to appeal to the full court of that division only against their
sentences. Before the full court, counsel for the appellants
pertinently argued that they were not afforded a fair trial in that
they had only been informed about the applicability of the
Minimum
Sentences Act when sentence was considered. Counsel for the
respondent, who did not appear at the trial, conceded that
the
sentences were affected by an irregularity and that the appellants
should be sentenced afresh. Nevertheless the full court
(Leeuw JP,
Gura and Gutta JJ concurring) held that the appellants had been
afforded a fair trial and dismissed the appeal. This
court granted
special leave to appeal to the appellants in respect of their
sentences.
[9]
As I have said, the issue in this appeal has been considered by this
court on a number of occasions.
[1]
The same applies to the closely related issue of the effect of an
incorrect reference to the Minimum Sentences Act in the indictment
on
fair trial rights.
[2]
[10]
The following principles can be distilled from these judgments. As a
general rule, fair trial rights
[3]
require that an accused person should be informed at the outset of
the trial of the provisions of the Minimum Sentences Act (or
other
provisions relating to an increased sentencing regime) that the state
intends to rely upon or are applicable. The accused
person should
generally be so informed in the indictment or charge sheet; by
notification by the presiding officer or in any other
manner that
effectively conveys the applicable provisions to the accused person
before or at the commencement of the trial. This
is of particular
importance when the accused person has no legal representation. This,
however, is not an absolute rule. Each case
must be determined on its
own particular facts and circumstances, bearing in mind the
oft-quoted dictum in
S
v Jaipal
[2005] ZACC 1
;
2005
(4) SA 581
(CC);
2005 (1) SACR 215
(CC) para 29. There it was stated
that the right to a fair trial also requires fairness to the public
as represented by the state
and has to instill public confidence in
the criminal justice system. Substance must prevail over form. In the
final analysis, the
determination of whether fair trial rights were
infringed in these circumstances, turns on the question of prejudice
to the accused.
[11]
The question of prejudice is determined by an objective facts-based
inquiry. In my view the test should be similar to that
applicable to
the question whether an accused person has been prejudiced by a
defective charge, which also directly implicates
s 35(3)
(a)
of
the Constitution. In
Moloi & others v Minister for Justice &
Constitutional Development & others
[2010] ZACC 2
;
2010 (2)
SACR 78
(CC) at para 88a the pre-constitutional position was
summarized as follows:
‘
Whether the
accused may be so prejudiced is dependent upon the facts of each
case. What is cardinal, however, is that prejudice,
actual or
potential, will always exist, unless it can be established that the
defence or response of the accused person would have
remained exactly
the same had the state amended the charge.’
In
my judgement the same applies to the determination of this question
under the Constitution. This signifies that prejudice will
exist if
there is a reasonable possibility that the defence or response of the
accused person may not have been the same had there
been an
amendment.
[12]
It follows, in my view, that there will be prejudice to an accused if
he or she could reasonably have conducted his or her
defence
differently, had the accused been informed at the outset of the trial
of the applicable provisions of the Minimum Sentences
Act. Thus, if
there is a reasonable possibility that the accused may have conducted
his or her case differently, there would in
these circumstances be an
infringement of the right to a fair trial.
[13]
On an application of these principles to the facts of this case, it
has to be accepted that the appellants were only informed
of the
applicability of the Minimum Sentences Act and that they were
therefore exposed to a sentence of life imprisonment, after
they had
been convicted. It follows that they were unaware of this critical
factor when they resolved to take no further part in
the trial.
Importantly, they were informed thereof at a time when they were not
legally represented and they subjectively believed
that the trial
judge was biased against them. Had the appellants known from the
outset that they were exposed to life imprisonment,
they may well
have responded differently or conducted their cases differently. I
find that in the peculiar circumstances of this
case, the sentencing
proceedings in respect of the appellants were vitiated by an
infringement of their fair trial rights. Counsel
for the respondent’s
reiteration in this court of his concession before the full court,
was therefore fair and proper.
[14]
It follows that the sentences must be set aside and that the
appellants must be sentenced afresh without the application of
the
Minimum Sentences Act. Both counsel requested that the matter be
referred back to the trial court for this purpose, with the
direction
from this court that it be afforded priority. Despite the lengthy
lapse of time, I am, in the particular circumstances
of this case,
prepared to accede to this request. As I have pointed out, the
appellants did not participate in the sentencing proceedings
in the
trial court. There is good reason to believe that they will do so
now, with the assistance of counsel. The periods of imprisonment
already served by the appellants will no doubt be taken into account
when they are sentenced afresh.
[15]
In the result the following order is issued:
1 The appeal against
sentence is upheld.
2 The order of the full
court is set aside and replaced with the following:
‘
a
The appeal is upheld.
b
The sentences of the appellants are set aside and the matter is
remitted to the trial court to impose sentence afresh.’
3 The registrar of the
North West Division of the High Court, Mahikeng is directed to
prioritise the enrolment of the matter.
_________________________
C
H G van der Merwe
Judge
of Appeal
APPEARANCES
For
Appellants: N L Skibi
Instructed
by:
Mafikeng
Justice Centre, Mmabatho
Bloemfontein
Justice Centre, Bloemfontein
For
Respondent: T D Muneri
Instructed
by:
Director
of Public Prosecutions, Mmabatho
Director
of Public Prosecutions, Bloemfontein
[1]
See
S
v Legoa
2003 (1) SACR 13
(SCA);
S v Ndlovu
2003
(1) SACR 331
(SCA);
Tshoga
v S
[2016] ZASCA 205
;
2017
(1) SACR 420
(SCA). The latter was one of the matters that the
Constitutional Court, in
M
T v The State
;
A
S B v The State
;
Johannes
September v The State
[2018] ZACC 27
(3 September 2018), declined to determine as it was
not in the interests of justice to do so.
[2]
See
S
v Makatu
2006 (2) SACR 583
(SCA);
S v Kolea
[2012]
ZASCA 199
;
2013 (1) SACR 409
(SCA);
Thakeli
& another v S
[2018]
ZASCA 47
;
2018 (1) SACR 621
(SCA). In
Ndlovu
v The State
[2017] ZACC
19
;
2017 (2) SACR 305
(CC) the Constitutional Court determined a
matter of this type on the basis that the regional court in that
matter did not have
jurisdiction to impose sentence in terms of s
51(1) of the Minimum Sentences Act and thus considered it
unnecessary to consider
the fair trial question.
[3]
Especially ss 35(3)
(a)
and
(b)
of the Constitution which
provide: ‘Every accused has a right to a fair trial, which
includes the right –
(a)
to be informed of the charge with sufficient detail to answer it;
(b)
to have adequate time and facilities to prepare a defence.’