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[2015] ZAGPPHC 252
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Lebang v S (A173/2013) [2015] ZAGPPHC 252 (21 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: A
173/2013
DATE: 21 APRIL
2015
REPORTABLE
OF INTEREST TO
OTHER JUDGES
In the appeal
between:
GODFREY
LEBANG
…................................................................................................................
Appellant
And
THE
STATE
…............................................................................................................................
Respondent
Date
of Hearing:
4 March
2015
Date
of judgment:
21
April 2015
Full
Court Quorum:
Bertelsmann
J, Preller J et Mothle J
JUDGMENT
MOTHLE J
Introduction
1.
Godfrey Lebang appeals to the Full Court of this Division against the
sentences of life imprisonment and 7 years imposed by the
High Court,
Pretoria on 4 July 2007. The appeal against sentence is with leave of
the Court a
quo,
granted
on 21 September 2011.
2
.
Appellant
was convicted of one count of murder and another of attempted murder
by the Regional Court, Pretoria North. The charge
sheet stated that
appellant was guilty of the crime of murder read with the provisions
of
sections 51(2)
,
52
(2),
52A
and
52B
of the
Criminal Law Amendment
Act 105 of 1997
. However, in court when charges were put to him to
plead, the prosecutor did not mention that the charge should be read
with any
of the provisions of the sections of the Act listed above.
Background
3. The conviction on
both counts followed from a standing dispute that appellant had with
his brother’s wife, Peggy Motswane,
whom appellant accused of
spreading false rumours against him and who was threatening to engage
the service of assassins to kill
him. On 11 October 2003, appellant
went to the deceased’s house where an altercation between him
and the deceased took place.
He was furious. He then attacked the
deceased with a weapon, accepted by the trial court as a panga. The
panga still had a price
tag on it.
4. The deceased
sustained serious injuries during the attack and she was hospitalised
for four days. On her discharge from hospital,
she stayed for a few
days with her husband before she went to her parent’s home
where her condition deteriorated. She died
just over four months
after the attack, which death the trial court found to be as a result
of the injuries she had sustained during
the attack. At the time of
the attack on the deceased, appellant’s brother, Sylvester, who
is also the deceased’s husband,
initially attempted to stop and
restrain him, but was unsuccessful. The appellant was only restrained
and disarmed later when Sylvester,
on the second attempt, received
assistance from neighbours. Sylvester also sustained serious injuries
for which he was admitted
to hospital for ten days. The charges of
murder on the deceased and attempted murder on Sylvester arise out of
this incident.
5. In convicting
appellant, the trial court found that the murder had been
premeditated. It accepted evidence by Sylvester that
prior to the
incident, appellant had a standing problem with the deceased which,
in spite of interventions by family members, remained
unresolved.
Sylvester testified that during the scuffle for control of the panga
with a view to disarm him, appellant told him
that he had purchased
the panga for the purpose of launching the attack. The trial court’s
finding that he committed the
murder with pre-meditation is based on
the reasoning that having had sufficient time to stay away from the
deceased and thus avoid
the attack, appellant nevertheless chose to
purchase a panga with the intention to attack the deceased at her
house. He had ample
opportunity to avoid the incident.
6.
Consequently, in terms of the then
section 52
of the Act (
which
section has now been repealed by
section 2
of Act 38 of 2007),
the
matter had to be referred to the High Court for appropriate
sentencing.
Sentencing in
the Court a quo
7.
Prior to sentencing, the Court
a
quo
was
informed that appellant, at the time of the commission of the
offence, was aged 28 and earned his income from part-time work
(“piece
jobs”).
It
was further recorded that he is a first offender and has one minor
dependant. Appellant’s mother passed on when he was
still young
and he never had a father during his upbringing. He went up to grade
7 at school. According to appellant, at the time
he was convicted he
had been in custody for a period of
“
two
years, ten months and seven days”
without
bail.
8. Sylvester was
again called to testify during sentencing and he confirmed that
appellant needs to be punished but that he was
not supportive of a
life imprisonment sentence. He added that the appellant neither
showed remorse nor apologised to him and the
family of the deceased
for his actions.
9.
The Court a
quo
also
took into account the finding by the trial court that appellant
committed the offence with premeditation. It found that there
were no
substantial and compelling circumstances that would justify a
departure from imposing the prescribed minimum sentence.
It therefore
imposed a sentence of life imprisonment for the murder charge and
seven years imprisonment for the attempted murder.
The sentence of
seven years imprisonment is to run concurrent with the life
imprisonment. The Court
a quo
granted
leave to appeal only against sentence.
10. During the
hearing of the application for leave to appeal, appellant’s
counsel, Adv. Van Wyk, contended that the sentence
imposed was not
consistent with the minimum sentence provisions which the state
mentioned in the charge sheet. The charge sheet
indicated that
Appellant was charged with murder read with section 51(2) of the Act,
which on conviction attracted a minimum sentence
of 15 years and not
life imprisonment.
11. Both in the
charge sheet and when charges were orally put to him in the trial
court, no mention or reference was made that section
51(1) of the Act
which prescribes life imprisonment as the sentence to be imposed on
conviction, might be applicable. It does not
appear from the record
that the appellant was warned, either before pleading or at any stage
of the trial, that he faced a minimum
sentence of imprisonment for
life, for 15 years or any other minimum sentence. This point is now
raised in this appeal.
The
authorities
12.
The problem of the reference to the wrong sub-section was considered
by the Supreme Court of Appeal in S
v Mashinini
and Another
2012 (1) SACR 604
(SCA) and in S v Kolea
2013 (1) SACR
409
(SCA).
In
both cases the charge was rape.
The
SCA in these cases followed the earlier decisions in S
v
Legoa and S v Ndlovu 2003 (1) SACR, pages 13 and 331 respectively
(SCA)
where
the SCA opined that the accused’s right to be informed of the
charge he is facing is underpinned by s 35(3)(a) of the
Constitution,
which provides that every accused has a right to a fair trial. This
would include being adequately informed of the
possible applicability
of the minimum sentence provisions and the implication thereof in
case of conviction.
13.
The Court in S
v Kolea supra
in
paragraph 7 of the judgment stated the principle as follows:
“
The
objective is not only to avoid a trial by ambush, but aiso to enable
the accused to prepare adequately for the trial and to
decide, inter
alia, whether or not to engage legal representation, how to plead to
the charge and which witnesses
to
cali. It follows that, if the state intends to rely
on the minimum sentencing regime created in the Act, this should be
brought
to the attention of the accused at the outset of the trial.
The question which must be answered, though, is what does sufficient
detail in the charge entail.”
14.
In
these judgments a principle is established that on examination of the
relevant circumstances, a court can determine whether on
the
evidence, it can be said that an accused had had a fair trial as
envisaged in section 35 of the Constitution.
15.
In
S
v Kolea supra
,
5 judges of the SCA held that a sentencing court is not precluded
from imposing a life sentence or referring a matter to a higher
court
for consideration of sentence,
solely
on
the basis that the charge sheet erroneously refers to s 51(2) instead
of s 51(1) of the Act.
(My emphasis).
The
court confirmed the life imprisonment sentence.
This
appeal
16.
In
casu
the
prosecutor used a charge sheet in the form of a ready- made template,
which refers to sections 51(2), 52(2), 52A, 52B of the
Act. The
template makes no mention of section 51(1). Therefore unlike in S
v
Mashinini supra,
the
reference to section 51(2) and not 51(1) in
casu
was
not erroneously typed. The template used as a charge sheet refers
expressly to applicable sections of the Act and excludes section
51(1). A further problem arises in that when the prosecutor orally
put the charges to appellant in the trial court, he failed to
refer
to any of these sections or to the fact that upon conviction, the
state intended to rely on the provisions of the minimum
sentence
legislation. Consequently, appellant was not warned by the magistrate
of the consequence of the applicability of the minimum
sentence
regime in the event of conviction. This second factor distinguishes
this case from the SCA cases cited above, where the
accused was
verbally informed in court of the applicability of the minimum
sentence provisions upon conviction, even though the
charge sheet
made no reference to section 51(1).
17.
Counsel
for the state submitted firstly that notwithstanding the fact that
Appellant had not been informed of the applicable minimum
sentence
provisions on which the state intended to rely, he had not been
prejudiced because he would not have conducted his defence
differently. Secondly, that his legal representative failed to raise
this matter during the sentencing proceedings before the Court
a
quo.
See
S
v
Kolea supra, para [11] et seq.
18.
There
is a problem with these submissions. Firstly, there is no evidence on
which we can confidently determine retrospectively that
the appellant
would not have conducted his defence differently if he had been
warned of the minimum sentences. Only an accused
has a right, with or
without legal advice, to decide on his defence and how it should be
conducted. Such decision would entail,
amongst others, whether to
testify in his or her own defence and/or whether to call or not to
call witnesses, and which part of
the state’s case should be
challenged. See the view of the court in S
v
Kolea supra
as
quoted above in paragraph 13 of this judgment. Thus, speculation as
to how appellant would have conducted his defence would not
assist in
resolving the question whether there was or there was no prejudice in
the conduct of his defence during the trial.
19.
Secondly, the court in S
v Kolea supra
firmly
established the principle that the legal representative of an accused
has a duty to raise any matter concerning a possible
breach of the
accused’s constitutional rights as provided for in section 35
of the Constitution. This more so where it would
seem that the court
is about to impose a prescribed minimum sentence that was neither
referred to in the charge sheet nor brought
to the attention of the
accused at any stage of the trial.
20. Sadly, in this
case the accused’s first two legal representatives failed to
draw the attention of the court to the fact
that the accused was not
made aware of the applicable minimum sentence provisions of the Act
in case of conviction. The first counsel,
Advocate Combrinck, failed
to raise the issue when after conviction, the trial court held
proceedings to refer the case to the
High Court for sentencing.
During the sentence proceedings in the High Court the second counsel,
Advocate Mkalipe, failed to inform
the Court a quo of this
irregularity. It was only during the hearing of the application for
leave to appeal that the issue was
raised by the third counsel
representing appellant, Advocate Van Wyk.
21. It seems to me
that the duty to inform the sentencing court about the correct
applicable minimum sentence provisions of the
Act, should not only
lie with the legal representative of an accused, but also with the
state. It will not be in the interest of
justice for the state, being
aware that it did not inform the accused that it will rely on the
minimum sentence legislation, to
call for a sentence based on minimum
sentence legislation to be imposed. If the accused had not been
warned that in the event of
a conviction the state intended to rely
on the minimum sentence provision, there was a duty on the state to
inform the court of
the omission. Failure by the state to disclose
facts of this nature to the court may result in essential
information, known to
the prosecution, being withheld from court and
ostensibly left only to the legal representative of the accused to
deal with. Such
conduct will result in an accused being wrongly
sentenced and becoming a victim of a miscarriage of justice.
22. The inquiry on
appeal whether there was or was no fair trial to the prejudice of an
accused, will have to consider this fact,
particularly where it
appears clearly from the record that there could have been an
oversight by counsel of a significant legal
issue which an accused
would ordinarily be unaware of and incapable of dealing with. In my
view, the constitutional right to a
fair trial demands that the
courts on appeal should intervene in such circumstances.
23.
When in
casu
after
conviction, the trial court decided to refer the matter to the Court
a
quo
for
sentencing, there was thus a duty on both the prosecution and
appellant’s legal representative to inform the magistrate
that
firstly, when the charges had been put to appellant in court, the
prosecution did not make any reference to the minimum sentence
being
applicable. Consequently, appellant was not warned of the
consequences thereof. Secondly, even if it may be accepted that
the
charge sheet made reference to the applicable minimum sentence
regime, the charge sheet referred to section 51(2), which then
brought the sentence within the jurisdiction of the trial court.
24.
It should further be noted that at the time the trial court convicted
appellant on 23 August 2005, the SCA had already delivered
its
judgment in S
v Ndiovu supra
,
which was reported in 2003. The prosecutor, the legal representative
and the presiding officer should have been aware of this
decision.
25.
Appellant was clearly ambushed by the decision of the Court a
quo
to
rely on the minimum sentence legislation, since this fact was not
drawn to his attention at the commencement of and during the
trial.
The Court a
quo
was
likewise not informed of this irregularity before it passed the
sentence. It appears that appellant probably came to know of
the
prescribed sentence of life imprisonment for the first time when it
was imposed by the Court a
quo
,
considering that his first and second counsel seem to have been
unaware of the irregularity and thus failed to draw this fact
to the
attention of both courts. I am therefore of the view that appellant
was prejudiced in the exercise of his constitutional
rights to a fair
trial and the sentence of life imprisonment imposed on him has to be
set aside.
Sentence
by this court
26.
In the recent judgment of the SCA in
Machongo v S
(20344/14)
[2014] ZASCA 179
(21 November 2014)
Shongwe
JA opined:
“
[10] It
is settled law that failure to forewarn or to mention the
applicability of the minimum sentence is a fatal irregularity
resulting in an unfair trial in respect of sentence. The question is,
having come to the conclusion that a misdirection has been
committedwhat next shouid the appeal court do? The answer is and has
always been that the appeal court must consider the sentence
afresh...
[11]...
Considering a sentence afresh must ineluctably mean, setting aside of
the sentence of the trial court, inter alia, and conducting
an
inquiry on sentence as if it had not been considered before. In other
words, the appeal court must disabuse itself of what the
trial court
said in respect of sentence- it must interrogate and adjudicate
afresh the triad in respect of sentence as stated in
S v Zinn
1969
(2) SA 537
(A) at 540G-H. its task would be to impose a sentence
which it thinks is suitable in the circumstances, without comparing
it with
the one imposed by the trial court."
27.
Having
concluded that the failure to forewarn the appellant about the
applicability of the minimum sentence resulted in an irregularity
in
the trial, which in turn vitiates the sentence of life imprisonment,
this appeal court has to consider the sentence without
reference to
the minimum sentence legislation. However the non-applicability of
the minimum sentence legislation does not imply
that the sentence
should be trivialised.
28.
The
court in S
v Sekhipha
2006 (2) SACR 439
(SCA)
stated
that the circumstances which the court must take into account in
imposing sentence include the traditional mitigating and
aggravating
factors, none of which are required to be exceptional.
29.
In
paragraphs 7, 8 and 9 of this judgment I refer to the personal
circumstances of the accused as stated in the Court a
quo.
In
this regard, there are some similarities between the present case and
that of S
v Vilakazi
2009 (1) SACR 552
(SCA).
Both
appellants are first offenders. In the Vilakazi case, the appellant
was convicted of rape of a girl under the age of 16. He
was aged 30
when he committed his first offence. In this case, appellant was
convicted of murder and attempted murder and was 28
years old when he
experienced his first brush with the law. The appellant in the
Vilakazi case has two dependants while the appellant
in this case has
one dependant. When sentence was imposed In the Vilakazi case, the
appellant had been in custody for just over
two years. At the time
the Court a quo imposed the life imprisonment sentence, the appellant
in this case had been in custody for
“two years, ten months and
seven days." He had been denied bail. In this regard, the court
in the Vilakazi case at page
574 paragraph [60] of the judgment had
this to say:
“
While
good reason might exist for denying bail to a person who is charged
with a serious crime, it seems to me that if he or she
is not
promptiy brought to triai it would be most unjust if the period of
imprisonment awaiting trial is not then brought to account
in any
custodiai sentence that is imposed
30. The offence
which the appellant was convicted of is very serious and deserving of
a custodial sentence. The premeditation with
which the murder was
committed and the absence of remorse for his actions, even to his own
brother, are in themselves aggravating
factors. The actions of
appellant on that day indicate that he was driven by an
uncontrollable rage, for which he no doubt needs
treatment before
being allowed back in society.
31.
It is in the interest
Of
society
that
“
premeditated and callous murders
should not be punished too leniently lest the administration of
justice be brought into disrepute
S
V Di Blasi
1996 (1) SACR 1
(A).
However,
a sentence of life imprisonment is the ultimate punishment in terms
of our law, and should in my view be resorted to sparingly
and be
applied only in cases where the circumstances warrant it. Du Plessis
J, writing for the Full Court of this Division in the
matter of S
v
GN
2010 (1) SACR 93
(T),
stated
the following at paragraph 12 of the judgment:
“
Where
the minimum prescribed sentence is fife imprisonment, it is
impossible to differentiate otherwise than by imposing a lesser
sentence. Thus, where the Act prescribes imprisonment for life as a
minimum sentence, the fact that it is the ultimate sentence
must also
be taken into account. Accordingly, in its quest to do justice, a
court will more readily impose a lesser sentence where
the prescribed
sentence is imprisonment for life. Put differently, where the
prescribed minimum is life imprisonment, a court will
more readily
conclude that the circumstances peculiar to the case are substantial
and compelling, to the extent that justice requires
a lesser sentence
than life imprisonment ”
32. In the Vilakazi
case, where appellant’s sentence was changed from life
imprisonment to 15 years imprisonment, the Court
at paragraph 58 of
the judgment had this to say:
"...
A material consideration is whether the accused can
be expected to offend again. While that can never be confidently
predicted his
or her circumstances might assist in making at least
some assessment In this case the appellant had reached the age of 30
without
any serious brushes with the law. His stable employment and
apparently stable family circumstances are not indicative of an
inherently
lawless character.”
33. Having regard to
appellant’s personal circumstances and balancing those with the
aggravating factors present and the interests
of society, I am of the
view that imposing a sentence of life imprisonment would be
inappropriate. However, a long term of imprisonment
for murder would
be justified. The sentence of seven years imprisonment imposed on
appellant for attempted murder is in my view
appropriate.
34. In the premises,
I make the following order:
1. The appeal
against the sentence of life imprisonment for murder imposed on
appellant by the High Court, Pretoria is upheld. The
sentence of life
imprisonment is set aside;
2. A sentence of 18
years imprisonment for murder is imposed, antedated to 4 July 2007;
3. The appeal
against the sentence of 7 years imprisonment for attempted murder is
dismissed;
4. The sentence of 7
years imprisonment antedated to 4 July 2007 is to be served
concurrent with the 18 years imprisonment sentence;
and
5. The Commanding
Officer of the prison where appellant will serve his sentence must
ensure that appellant attends anger management
treatment as part of
his rehabilitation, for a period of at least 6 months prior to his
release.
SP MOTHLE
Judge of the High
Court
I agree
E BERTELSMANN
Judge of the High
Court
I agree
F PKÉLLER
Judge of the High
Court
For
the appellant
Advocate
L Augustyn
Instructed by the
Legal Aid Board, Pretoria.
For
the respondent
Advocate
Scheepers
Instructed by the
Directorate of Public Prosecution, Pretoria.