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[2016] ZAGPPHC 1083
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Nxiba v S (A441/2016) [2016] ZAGPPHC 1083 (14 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: A441/ 2016
14/12/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
MZWAKHE
DAVID
NXIBA APPELLANT
And
THE
STATE RESPONDENT
JUDGMENT
Fabricius
J,
1.
The
Appellant herein was charged in the Regional Court of Brakpan with
three counts of rape committed during October 2000. He was
convicted
of all three charges. He had a number of previous convictions
including assault with intention to do grievous bodily
harm, theft,
malicious damage to property and during 1990, rape and robbery. He
was released on parole in May 1995. After conviction
and the
admission of previous convictions, the accused was referred to the
High Court for purposes of sentence in terms of the
then existing
provisions of
Section 52
(1) (b) of
The
Criminal Procedure
Act 105 of 1977
.
At that time the Regional Court did not have the
power to impose a sentence of life imprisonment.
2.
The
charge sheet did not make mention of the fact that the State would
rely upon
Section 51
read with
Part 1
of Schedule 2 of the
Criminal Law Amendment Act
105 of 1979,
which deals with
prescribed minimum sentences. That issue only arose at the time that
the sentence was imposed. On 21 April 2004,
the Appellant appeared
before Kruger AJ who confirmed the conviction as being proper and in
accordance with justice, and taking
into account the previous
convictions "as part of a conglomerate of evidence" and the
fact that three distinct incidents
of rape had occurred in the case,
found that there were no substantial or compelling circumstances
present, and that he was accordingly
obliged to impose the minimum
sentence of life imprisonment.
3.
On
4 December 2014, the Appellant was granted such leave to appeal
against the sentence of life imprisonment by this Court. In granting
leave against the sentence only, the learned Judge in those
proceedings said the following: "Considering guidance from the
decided cases the fact that there is no clear evidence as to how the
complainant was traumatised and the fact that the Applicant
did not
inflict serious injuries I am of the view that there is a reasonable
prospect that another Court may impose a lesser sentence".
4.
In
S v Ndlovu
2003 (1) SACR 331
(SCA) at p. 337 a to c,
the
following was said:
"...
where the State intends to rely upon the sentencing regime created by
the Act a fair trial will generally demand that
its intention be
pertinently brought 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 the position to properly appreciate in
good time the charge that she or he
faces as well as its possible
consequences. What will at least be required is that the accused be
given sufficient notice of the
State's intention to enable the
accused to properly conduct her or his defence".
In
S v Mthlmkulu 2011 JDR 1254 (SCA),
Shongwe JA held that the
failure to warn an accused timeously of the State's particular
Intention to rely on the provisions of the
minimum sentence
legislation constituted a material irregularity.
5.
In
S v Nd/ovu
2003 (1) SACR 331
at 337,
Mpati P held that the
failure to make reference to prescribed minimum sentences could
constitute a substantial and compelling reason
why the prescribed
sentence ought not to have been imposed, inasmuch as the absence of
such warning would usually render that part
of the trial
substantially unfair.
6.
It
is not in issue that the record before us is silent as to the topic
at hand. That being so, the omission to mention the applicability
of
the minimum sentence was irregular and constituted a misdirection
which entitles us to interfere with the sentence imposed,
and to
consider the proper sentence afresh, depending however on the facts
of a case. Not every irregularity or misdirection vitiates
the
proceedings.
7.
It
was submitted on behalf of the Appellant that the sentence of life
imprisonment was disproportionate to the circumstances of
the
offences, and ought therefore to be replaced with a "suitable"
sentence. In the recent decision of
S v Motloung
2016 (2) SACR 243
(SCA) at 247 c to j,
the Supreme Court of Appeal reiterated the
established principle that a Court of Appeal may not interfere with a
sentence unless
the imposed sentence is disproportionate to the
crime, startlingly inappropriate or where a material misdirection by
the trial
Court warrants such interference. In this case we are
entitled to consider the sentence afresh, but one of the major
considerations
would in any event be that we are required to impose a
sentence that is proportionate to the crime.
7.1
In this case the rapes occurred over a period of
time;
7.2
The Appellant pleaded not guilty and displayed no
remorse;
7.3
At the time of the offences he was 40 years old
and it is clear from his previous convictions that he had been
involved in crimes
consistently throughout his life. Some of them
were super-annuated after a period of 10 years in terms of
Section
271A
of the
Criminal Procedure Act of 1977
,
and
the trial Judge held that he would not regard them as
aggravating circumstances;
7.4
He committed the present offences some five years
after being released from prison on parole having served a sentence
on charges
of rape and robbery imposed during October 1990.
8.
In
S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) at p. 344,
the following was
said: "Rape is a very serious offence, constituting as it does a
humiliating, degrading and brutal invasion
of the privacy, the
dignity and the person of the victim. The rights to dignity, to
privacy and the integrity of every person are
basic to the ethos of
the Constitution and to any defensible civilization". It was
further said that the Courts are under
a duty to send a clear message
to potential rapists and the community that they are determined to
protect the equality, dignity
and freedom of all women, and shall
have no mercy to those who seek to invade those rights.
9.
Taking
into account the above considerations, it was submitted on behalf of
the State that there was no basis for interference with
the imposed
sentence, but even if the sentence were to be set aside and a
sentence be imposed
de nova,
a sentence of life imprisonment
would be the only appropriate sentence. In the present case there is
no indication that the Appellant
had been prejudiced by the failure
to warn him of the possibility of the imposition of a life sentence,
having regard to the legislation
pertaining to minimum sentences. The
mentioned irregularity does in my view not result in a failure of
justice or an unfair trial.
There is no doubt that the failure to
warn an accused as required may give rise to an unfair trial
depending on the particular
facts. In this instance there is no such
evidence. The proceedings relating to conviction were confirmed by
this Court and all
relevant considerations pertaining to sentence
were considered.
10.
Having
considered all relevant circumstances pertaining to the conviction,
the life of crime led by the Appellant and the public
interest, I am
satisfied that the sentence of life imprisonment imposed on 21 April
2004 is the suitable sentence.
11.
Accordingly,
the appeal against sentence is dismissed.
___________________
JUDGE
H.J FABRICIUS
JUDGE
OF THE GAUTENG HIGH COURT, PRETORIA
I
Agree
___________________
JUDGE
R. G TOLMAY
JUDGE
OF THE GAUTENG HIGH COURT, PRETORIA
I
Agree
__________________
JUDGE
N. B. TUCHTEN
JUDGE
OF THE GAUTENG HIGH COURT, PRETORIA
DECEMBER
2016