S v Mabuza and Others (174/01) [2007] ZASCA 110; [2007] SCA 110 (RSA) (20 September 2007)

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[2007] ZASCA 110
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S v Mabuza and Others (174/01) [2007] ZASCA 110; [2007] SCA 110 (RSA) (20 September 2007)

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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No: 174/01
REPORTABLE
In the matter between:
ZITHA
MABUZA FIRST
APPELLANT
PHILLIP SIMONGO
SECOND APPELLANT
OUPA
SITHOLE THIRD
APPELLANT
v
THE STATE
RESPONDENT
Coram: Nugent, Cachalia JJA et Hurt AJA
Heard: 22 August 2007
Delivered: 20 September 2007
Summary: It is not a
prerequisite for a fair trial that there is a verbatim recording of
the magistrate’s explanation of the rights
of unrepresented accused
and the response of the accused. Sentence of life imprisonment
imposed for rape of 15 year old complainant
and 15 years’
imprisonment for robbery. Under the
Criminal Law Amendment Act 105 of
1997
youthfulness remains a weighty mitigating factor in determining
whether substantial and compelling circumstances exist. Sentences
set
aside and effective sentence of 16 years’ imprisonment imposed.
Neutral citation: This judgment may be referred to as
Mabuza
v The State
[2007] SCA 110 (RSA)
JUDGMENT
CACHALIA JA
[1] The three appellants were arrested on 19 August
1998. They faced two charges in the Regional Division of
Southern-Transvaal.
The first was robbery of the following items of
property from Ms Joyce Mazibuko: a television, a ‘hifi’ set, a
pair of shoes,
an engine-pump, three watches and R1 800 in cash.
The combined value of the cash and property was R6 859. The
second
charge was that they had each raped Mazibuko’s minor
daughter, Sibindile Nkuna. The appellants pleaded not guilty and
elected
to conduct their own defences. After hearing evidence the
magistrate convicted them on both counts.
[2] The appellants’ convictions made them liable for
punishment under s 51 of the Criminal Law Amendment Act 105 of
1997
(the Act). In relation to their convictions for robbery, their
conduct fell within s 51(2) read with Part II of Schedule 2, which

prescribes a minimum sentence of 15 years’ imprisonment. Their rape
convictions placed them under s 51(1)(a) read with several
paragraphs
of Part 1 of Schedule 2. This included paras (a)(i) and (a)(ii)
because each appellant had raped Sibindile. (In the
case of appellant
1 the evidence showed that he had raped her twice.) Their conduct
also fell within para (b)(i) as she was 15
at the time.
1
Because a sentence of life imprisonment is the prescribed sentence on
this charge, the magistrate transferred the case to the Johannesburg

High Court for sentencing in accordance with s 52 of the Act.
[3] When the matter came before Goldstein J in the High
Court, the appellants accepted legal representation from the Legal
Aid Board.
Probation officers were appointed to compile
pre-sentencing reports on their behalf. The High Court was, however,
unable to find
any substantial and compelling circumstances, as
envisaged in s 51(3)(a) of the Act, to justify the imposition of
sentences lighter
than the prescribed minimum. It therefore imposed,
on each appellant, the prescribed sentence both for robbery and for
rape. This
appeal, against conviction and sentence, is with leave of
the High Court.
[4] The factual findings upon which the magistrate based
the appellants’ convictions, which the High Court accepted, are not
in
issue in this appeal. Their complaint, made for the first time in
this court, is that the absence of a verbatim recording of the

pre-trial proceedings indicating that the learned magistrate had
explicitly alerted them to the Act’s severe penalties, particularly

to the threat of life imprisonment on the rape charge, or any
indication that they had properly understood this when electing to

conduct their own defence, vitiates the proceedings. For this
contention they find support in two judgments of the Johannesburg

High Court,
S v Thompson
2
and
S v Sibiya
3
.
[5] It is necessary to deal with
Thompson
in some detail. The accused faced a charged of aggravated robbery.
The charge-sheet set out the charge as ‘robbery with aggravating

circumstances as intended in s 1 of Act 51 of 1977 and read with the
provisions of
s 51(2)(a)
of the
Criminal Law Amendment Act 105
of 1997
’. At an initial appearance before the trial’s
commencement the magistrate had recorded the following:
‘Accused informed of gravity of charges and coupled to minimum
sentences. Rights to legal representation explained. Prefers to

conduct own defence.’
In his judgment dealing with the conviction the
magistrate explained more fully that:
‘The accused was informed of his rights regarding legal
representation on the 18
th
of October . . . by my
colleague Mr Brink. The accused elected to conduct his own defence.
Again on the 8
th
of November . . . (I) explained to the
accused the gravity of the charges against him, and the possibility
of a minimum sentence
that could be imposed should he be convicted.
Thereafter the court again explained the rights of the accused to
legal representation.
Again the accused insisted on conducting his
own defence.’
[6] After convicting the accused the magistrate said the
following to him:
‘As I have explained to you before . . . the court has to apply a
minimum sentence. You however may escape the minimum sentence
should
you be able to do the following. The court is compelled to impose a
minimum sentence of at least 15 years unless there are
substantial
and compelling circumstances to impose a lesser sentence, and, sir,
unfortunately, the onus is on you to bring those
compelling and
substantial circumstances to the attention of the court. You now have
slightly more than a month and I would urge
you to use the time
available . . . to get these substantial and compelling circumstances
to the fore and be able to present them
on the day of sentence. Do
you understand this? Also bear in mind, even if you cannot think of
such circumstances, sir, that 15
years is the minimum. It could be as
high as 30, depending on your previous convictions. So in other
words, sir, it is of paramount
importance that you apply your mind to
this. It may assist you.’
In response to this explanation the record indicates
that the accused responded simply by saying: ‘I understand’.
[7] When the trial resumed for the purposes of
sentencing, the magistrate again carefully explained to the accused
what the import
of the minimum sentence legislation was. In response
the accused once again said that he understood, but then asked for a
suspended
sentence. The magistrate, however, sentenced him to 16
years’ imprisonment.
[8] On appeal the High Court (Saldulker AJ, Shakenovsky
AJ concurring) set aside the conviction and sentence on the ground
that
the trial had been conducted unfairly. In arriving at this
conclusion it said the following:
‘In my judgment, the gravity of the consequences of a conviction
for an unrepresented accused which result in heavy penalties
is an
important issue which must weigh with an accused when he is requested
to make his election with regard to whether or not
he should dispense
with legal representation.
In the case before me it is quite clear that the appellant did not
fully understand the enormity
after conviction
when it was
explained to him by the magistrate that the minimum sentence was
applicable. This was clearly apparent when the appellant
asked for a
suspended sentence. Clearly he did not fully appreciate or understand
the gravity of what he was now facing.
In the absence of the record reflecting precisely and verbatim what
the appellant’s response was, as to whether or not he required

legal representation, this court of appeal finds itself in difficulty
in not being able to establish what precisely was said to
the
appellant and what his response was in the absence of these replies
appearing from the record…
In order to dispel any doubts as to whether the accused was properly
informed of his rights, a verbatim recording must appear
ex facie
the record and not in the form of terse and cryptic notes of what was
conveyed to the appellant regarding his right to legal representation

that led him to make his election to conduct his own defence. His
reasons if given for electing to do so must also be recorded.
All the aforegoing must therefore appear
ex facie
the
record
.’
4
The reasoning above followed the earlier reasoning of
the same court in
Sibiya
5
.
The absence of a verbatim record of what the
court said, so it was held in both cases, rendered the trial unfair.
[9] Our courts have indeed established guidelines
dealing with what Goldstone J described in
S v
Radebe
;
S v Mbonani
6
as
the
‘general duty on the part of judicial officers to ensure that
unrepresented accused fully understand their rights and the
recognition
that in the absence of such understanding a fair and just
trial may not take place.’
7
He went on to say that:
‘If there is a duty upon judicial officers to inform unrepresented
accused of their legal rights, then I can conceive of no reason
why
the right to legal representation should not be one of them.
Especially where the charge is a serious one which may merit a

sentence which could be materially prejudicial to the accused, such
an accused should be informed of the seriousness of the charge
and of
the possible consequences of a conviction. Again, depending upon the
complexity of the charge, or of the legal rules relating
thereto, and
the seriousness thereof, an accused should not only be told of this
right but he should be encouraged to exercise
it. He should be given
a reasonable time within which to do so. He should also be informed
in appropriate cases that he is entitled
to apply to the Legal Aid
Board for assistance. A failure on the part of a judicial officer to
do this, having regard to the circumstances
of a particular case, may
result in an unfair trial in which there may well be a complete
failure of justice. I should make it
clear that I am not suggesting
that the absence of legal representation per se or the absence of the
suggested advice to an accused
person per se will necessarily result
in such an irregularity or an unfair trial and the failure of
justice. Each case will depend
upon its own facts and peculiar
circumstances.’
8
This court quoted these dicta with approval in
S
v Mabaso
9
and they have frequently been referred to
since.
[10] When the state intends to rely on a specific
sentencing regime, as in the present matter, our courts have in the
same vein
insisted that a fair trial requires that
‘its intention pertinently be 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 a position to
appreciate properly in good time the charge that he faces
and the
possible consequences.’
10
And it is evident, as Lewis JA said recently in
S
v Sikhipa
11
that
‘where an accused is faced with a charge as serious as that of
rape, and especially where he faces a sentence of life imprisonment,

he should not only be advised of his right to a legal representative
but should also be encouraged to employ one and seek legal
aid where
necessary. It is not desirable for the trial court in such cases
merely to apprise an accused of his rights and to record
this in
notes: the court should, at the outset of the trial, ensure that the
accused is fully informed of his rights and that he
understands them,
and should encourage the accused to appoint a legal representative,
explaining that legal aid is available to
an indigent accused.’
[11] But while the trial of an unrepresented accused
might be unfair if he or she is not properly informed of rights that
are relevant,
it does not follow that the failure to record the fact
that he or she was so informed, (verbatim or otherwise) equally
renders
the trial unfair. On the contrary the failure to record what
was told to the accused does not impact upon the fairness of the
trial
and cannot by itself render the trial unfair. To the extent
that the contrary was held in
Thompson
and
Sibiya
, those
cases were wrongly decided.
[12] There is no suggestion in the present case that the
magistrate did not inform the appellants of their right to legal
representation.
On the contrary, it appears from his cryptic notes
and also from his judgment, which was recorded verbatim, that not
only did he
inform them of their right to legal representation when
they first appeared in court and again before the trial commenced,
but
he also explained its importance, the seriousness of the charges
and their right to apply for legal aid. Nor is their any suggestion

that they did not understand the magistrate’s explanation when they
elected to conduct their own defences. Each indicated he
did.
[13] Their complaint, as I have mentioned, (and the
ground upon which the convictions were set aside in
Thompson
and
Sibiya
) is that
the absence of a verbatim recording indicating that the magistrate
had warned them of their threat of exposure to the
Act’s prescribed
penalties and that they had understood this is sufficient to vitiate
the proceedings. This is because, as I
understand counsel’s
submission on the appellants’ behalf, it is doubtful that the
magistrate made any reference to the prescribed
sentences as his
contemporaneous cryptic notes contain no such indication. If this is
so, counsel submits, it is also doubtful
that they properly
understood their predicament when electing to conduct their own
defence. Their decision to defend themselves
in these circumstances,
so the submission goes, rendered the trial unfair.
[14] The fact that the cryptic notes contain no
reference to the magistrate informing the appellants of the
prescribed sentences
does not necessarily imply that he did not do
so. And a court will not set aside proceedings on the mere
supposition that he might
not have done so. Significantly when the
matter came before Goldstein J for sentencing and the appellants were
legally represented
the learned judge reviewed the record and invited
them to make submissions on the propriety of the convictions. None
did. Had they
done so the judge would necessarily have obtained a
statement from the magistrate in accordance with the requirements of
s 52(3)
of the Act setting forth his explanation of what had
transpired before he concluded that the proceedings had been in
accordance
with justice. Having not availed themselves of the
opportunity, the appellants cannot belatedly, and without a proper
factual basis,
impugn the proceedings in the magistrates’ court.
[15] Even if I were to assume, in the appellants’
favour, that the magistrate did not alert them to the Act’s
penalties, there
is still no basis to set aside the conviction. The
notes reveal, albeit in cryptic form, that the appellants were
informed that
they were facing serious charges. They could thus not
reasonably have been under any misconception that they faced the
prospect
of lengthy terms of imprisonment when they elected to
conduct their own defence.
12
In the absence of ‘actual and substantial prejudice’
13
resulting from the failure to inform them of the Act’s provisions,
none of which has been shown in this case, there is no basis
for
finding that the trial was conducted unfairly.
[16] Counsel submitted, however, that the fact that
appellant 2 believed he should only receive a suspended sentence, as
he told
the probation officer, is an indication that he did not
appreciate the seriousness of the charges. The same submission was
also
advanced successfully in
Thompson.
In my view there is no proper basis for this inference. The appeal
against their convictions must therefore fail. I turn to consider

their appeals against sentence.
[17] The evidence disclosed that Mazibuko and
her daughter, Sibindile, were asleep at their Ivory Park home at 2 am
on 10 August
1998 when a sound awoke them. Sibindile remained in her
bed as Mazibuko made her way, through the darkness, to the source of
the
disturbance, a corrugated iron door. There appellant 3 confronted
her. She screamed, prompting appellant 3 to hit her on her chest
with
the knife he wielded as he demanded her silence. As she cowered, she
noticed the two other appellants in front of her.
[18] The appellants then ushered her into Sibindile’s
bedroom. There, they directed a torch-light on to the girl’s face.
They
ordered her to stand and then switched on the room light. She
screamed and two of the appellants responded by threatening her with

a knife and a small axe. Appellant 3 demanded money from them.
Mazibuko explained that the money was in another room. He went to

find it but returned with little and demanded more. Mazibuko
responded by leading appellants 2 and 3 into her bedroom, which they

then ransacked. They found more money in a bottle. During this time
appellant 1 remained with Sibindile in her room. Appellant
2 returned
to Sibindile’s room after this, while appellant 3 remained with
Mazibuko.
[19] Sibindile was now alone in her room with appellants
1 and 2. Appellant 1 demanded that she remove her clothing. She
pleaded
with him not to hurt her. But he responded by threatening to
hit her with the axe if she refused to succumb. In response Sibindile

removed her panty and lifted her night-dress as she lay on her bed.
Appellant 1 then raped her and demanded that she desist from
crying
while he did. After he was done, appellant 2 raped her. She pleaded
with him to desist, but he too ignored her. Appellant
2 then left the
girl’s room and appellant 3 entered. He also raped her in appellant
1’s presence, after which appellant 1 raped
her again. The
assailants left, an hour after their intrusion, taking with them the
items mentioned in the charge sheet. The appellants
were arrested
shortly thereafter. Most of the stolen items were recovered, but not
the cash.
[20] This matter was decided shortly after the Act
commenced its operation on 1 May 1998. In imposing the prescribed
sentence on
each appellant in respect of both counts, the High Court
adopted the test applied in
S v Mofokeng
,
14
that
the facts of the particular case must be of an exceptional nature to
justify the conclusion that there are substantial and
compelling
circumstances justifying a departure from the prescribed sentence.
However in
S v Malgas
,
15
this court rejected the suggestion that for
circumstances to be substantial and compelling they must be
‘exceptional.’
16
It
held that in
determining whether there are substantial and compelling
circumstances present, a court must be aware that the legislature
has
set a benchmark of the sentence that should ordinarily be imposed for
a specified crime, and that there should be truly persuasive
reasons
for a different response. And when a court decides whether the
particular circumstances call for the imposition of a lesser

sentence, it may consider factors traditionally taken into account in
making this determination. These include the age of the accused,
the
nature and number of any previous convictions and the time spent
awaiting trial. These factors must of course be weighed against
the
aggravating factors. But none need be exceptional.
17
[21] The state submits that notwithstanding the High
Court’s application of the test that preceded
Malgas
,
its conclusion that there were no substantial and compelling
circumstances was nonetheless correct. Accordingly it submits that

this court should not interfere with the sentences.
[22] The appellants’ dates of birth, as they appear in
the SAP 69 forms, are given as 17 June 1978 (appellant 1), 28 July
1979
(appellant 2) and 10 June 1980 (appellant 3). They were thus
respectively 20, 19 and 18 years of age at the time they committed

these offences and are juveniles, traditionally always considered a
weighty mitigating factor in the sentencing process. The reasons
are
trite but bear repeating briefly. Youthfulness almost always affects
the moral culpability of juvenile accused. This is because
young
people often do not possess the maturity of adults and are therefore
not in the same position to assess the consequences
of their actions.
They are also susceptible to peer pressure and adult influence and
are vulnerable when proper adult guidance
is lacking. There are
however degrees of maturity, the younger the juvenile the less mature
he or she is likely to be.
18
Judicial policy has thus appreciated that juvenile delinquency does
not inevitably lead to adult criminality and is often a phase
of
adult development.
19
The degree of maturity must always be carefully investigated in
assessing a juvenile’s moral culpability for the purposes of

sentencing. The Constitutional Court warned in
S
v Williams
20
that youthful offenders, particularly, should
not be sacrificed on the altar of deterrence. There is therefore
compelling justification
for the view that youthfulness, at least
before the advent of the minimum sentencing regime, was
per
se
a factor mitigating sentence.
21
[23] However in requiring a sentencing court to depart
from the prescribed sentence in respect of offenders who have
attained the
age of 18 only if substantial and compelling
circumstances justify this departure the legislature has clearly
intended that youthfulness
no longer be regarded as
per
se
a mitigating factor. So while youthfulness
is, in the case of juveniles who have attained the age of 18, no
longer
per se
a
substantial and compelling factor justifying a departure from the
prescribed sentence, it often will be, particularly when other

factors are present. A court cannot, therefore, lawfully discharge
its sentencing function by disregarding the youthfulness of
an
offender in deciding on an appropriate sentence, especially when
imposing a sentence of life imprisonment, for in doing so it
would
deny the youthful offender the human dignity to be considered capable
of redemption.
[24] Before I deal with the circumstances in this
matter, it is necessary to review briefly how our courts have dealt
with rape
under the Act, perhaps the most difficult and controversial
aspect of the legislation.
22
The leading case is
S v Mahomotsa
.
23
The accused had raped two complainants, the
second while he was awaiting trial in respect of the first. Both
complainants were fifteen
years of age at the time. The State had
proved that the accused had had non-consensual sex with the two
complainants more than
once. He had been armed and on both occasions,
assaulted and insulted the complainants. This court considered 8
years’ imprisonment
to be appropriate on the first and 12 years’
imprisonment on the second. In arriving at this conclusion it said
the following:
‘The rapes that we are concerned with here, though very serious,
cannot be classified as falling within the worst category of
rape.
Although what appeared to be a firearm was used to threaten the
complainant in the first count and a knife in the second,
no serious
violence was perpetrated against them. Except for a bruise to the
second complainant's genitalia, no subsequently visible
injuries were
inflicted on them. According to the probation officer - she
interviewed both complainants - they do not suffer from
any
after-effects following their ordeals. I am sceptical of that but the
fact remains that there is no positive evidence to the
contrary.
These factors need to be taken into account in the process of
considering whether substantial and compelling circumstances
are
present justifying a departure from the prescribed sentence.
It perhaps requires to be stressed that what emerges clearly from the
decisions in
Malgas
and
Dodo
is that it does not follow
that simply because the circumstances attending a particular instance
of rape result in it falling within
one or other of the categories of
rape delineated in the Act, a uniform sentence of either life
imprisonment or indeed any other
uniform sentence must or should be
imposed. If substantial and compelling circumstances are found to
exist, life imprisonment is
not mandatory nor is any other mandatory
sentence applicable. What sentence should be imposed in such
circumstances is within the
sentencing discretion of the trial Court,
subject of course to the obligation cast upon it by the Act to take
due cognisance of
the Legislature's desire for firmer punishment than
that which may have been thought to be appropriate in the past. Even
in cases
falling within the categories delineated in the Act there
are bound to be differences in the degree of their seriousness. There

should be no misunderstanding about this: they will all be serious
but some will be more serious than others and, subject to the
caveat
that follows, it is only right that the differences in seriousness
should receive recognition when it comes to the meting
out of
punishment. As this Court observed in S v Abrahams
2002 (1) SACR 116
(SCA), 'some rapes are worse than others and the life sentence
ordained by the Legislature should be reserved for cases devoid
of
substantial factors compelling the conclusion that such a sentence is
inappropriate and unjust.'
[25] In
S v Sikhipha
24
this court set aside a sentence of life imprisonment for the rape of
a 13 year old girl and in its place substituted a sentence
of
20 years’ imprisonment. It regarded as substantial and
compelling the fact that the appellant, who was 35 years of age,
had
a trade and a family that was dependent upon him, that he was capable
of rehabilitation and that the complainant had not been
badly
injured.
[26] In
S v
Nkomo
25
this court also set aside a sentence of life
imprisonment where the appellant, who was 29 years of age, had forced
the complainant
into a hotel room and locked her inside and then
raped her. Afterwards she tried to escape by jumping through a window
that was
some 10 meters from the ground injuring herself in the
process, although not seriously. The appellant then forced her back
into
the hotel room where he raped her four more times. He also made
her perform oral sex on him. As in
Sikhipha
the appellant was employed and had a family
who was dependent upon him. A sentence of 16 years’ imprisonment
was considered appropriate.
[27] I revert to the present matter. No
viva
voce
evidence was led on sentence. The
pre-sentencing reports were the only evidence before the High Court.
They reveal, briefly, that
the appellants, all Mozambican, grew up in
difficult circumstances. They left their country because of adverse
socio-economic conditions
to find employment in South Africa.
Appellant 1 had no formal education and appellants 2 and 3 were not
able to progress beyond
primary school. Appellant 1, who had been
employed as a gardener at the time of his arrest, was earning a
fortnightly wage of R440.
The other appellants were unemployed at the
time of the commission of these crimes. There is no evidence that
they were living
under any form of adult supervision at the time they
committed the offences.
[28] They have no previous convictions and were in
custody for almost 10 months before being sentenced. The rape
was not planned.
There was no gratuitous violence in addition to the
rape. Sibindile’s examination provided corroboration of ‘forceful
sexual
intercourse.’ There were no other injuries and the J88 form,
which is the report of the medical examination, notes that her
physical
powers, general state of health and mental state were not
perceptibly impaired. Appellant 3 struck Mazibuko once on her chest
to
silence her. Sibindile’s physical examination revealed that even
though there was evidence of a previous sexual encounter, her
hymen
was bruised and the membrane below the vagina opening had a moderate
tear.
[29] As against these mitigating factors the aggravating
factors must be considered. There can hardly be a more terrifying
experience
than to be awakened in the middle of the night by armed
intruders, to have one’s privacy invaded and to be subjected to an
ordeal
for an hour with no idea of one’s fate. This is what the
appellants subjected Mazibuko and her daughter to. The appellants
threatened
to hurt them if they did not co-operate. They ignored
Sibindile’s crying and pleas not to rape her. It would have been
obvious
to them that she was distressed but they threatened to chop
her with the axe if she refused to succumb to their predatory
behaviour.
They each raped her in turn and then appellant 1 did so
for a second time. They invaded her body, humiliated her and stripped
her
of her dignity. And despite overwhelming evidence against them,
they denied any involvement in the crimes throughout the trial and

continued to do so to the probation officers who interviewed them
during the compilation of their pre-sentencing reports.
[30] I have weighed these factors and conclude that this
case warrants a severe sentence, but it is not one that is devoid of
substantial
and compelling circumstances justifying a lesser sentence
than the prescribed minimum. The imposition of the prescribed
sentences
would be disproportionately harsh. The appeal against
sentence is upheld and the sentences imposed by the court below are
set aside
and replaced with the following:
‘
On count 1 (robbery) each accused is sentenced to 8
years’ imprisonment. On count 2 (rape) each accused is sentenced to
16 years’
imprisonment. The sentence on count 1 will run
concurrently with that on count 2. In terms of
s 276B
(2) of the
Criminal Procedure Act 51 of 1977
I direct that the non-parole-period
shall be 8 years.’
_______________
A CACHALIA
JUDGE OF APPEAL
CONCUR:
NUGENT JA
HURT AJA
1
Concerning rape,
Part 1
of Schedule II reads as
follows:
‘Rape –
(a) When committed –
(i) in circumstances where the victim was raped more than once
whether by the accused or by any co-perpetrator or accomplice;
(ii) by more than one person, where such persons acted in the
execution or furtherance of a common purpose or conspiracy;
. . .
. . .
(b) where the victim –
(i) is a girl under the
age of 16 years;
(ii) . . .
(ii
i) .
. .
(c) . . .’
2
Unreported Case No: A538/03.
3
2004 (2) SACR 82
(W).
4
Paras 27-30.
5
See paras 37, 43, 46, 47, 48 and 49.
6
1988 (1) SA 191
(T).
7
At 195B.
8
At 196F-I.
9
[1990] ZASCA 24
;
1990 (3) SA 185
(A) at 203C-G.
10
S v Ndlovu
2003
(1) SACR 331
(SCA) at para 12.
11
2006 (2) SACR 439
(SCA) at para 10.
12
Cf
S v Ndlovu; S v Sibisi
2005
(2) SACR 645
(W) at 654-656, 653b-g and 654b-655b.
13
Cf
Hlantlalala v
Dyanti
1999 (2) SACR 541
(SCA) at
paras 8-10.
14
1999 (1) SACR 502
(W).
15
2001 (1) SACR 469
(SCA);
2001 (2) SA 1222
(SCA).
16
S v Mohomotsa
2002
(2) SACR 435
(SCA) at para 10.
17
S v Nkomo
2007
(2) SACR 198
(SCA) at para 3.
18
S v Lehnberg
1975 (4) SA 553
(A).
19
S v Z
1999 (1) SACR 427
(E) at 430E-I.
20
[1995] ZACC 6
;
1995 (3) SA 632
(CC) at para 85.
21
Julia-Sloth Nielsen
The
Role of International Law in Juvenile Justice Reform in South
Africa
. Unpublished LL.D thesis,
University of the Western Cape, 2001, fn 35 at 375.
22
See S S Terblanche
Guide
to Sentencing in South Africa
2ed at
pp 52-53, 67.
23
2002 (2) SACR 435
(SCA) at paras 17-18.
24
2006 (2) SACR 439
(SCA).
25
2007 (2) SACR 198
(SCA)
.