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[2012] ZAGPPHC 181
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Shongwe v S (A473/2011) [2012] ZAGPPHC 181 (13 August 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
REPUBLIC OF SOUTH AFRICA
Case
No: A473/2011
Date
heard: 06/08/2012
Date
of judgment: 13/08/2012
In
the matter between:
SIBUSISO
ARCHIBALD
SHONGWE
...................................................................
APPELLANT
And
THE
STATE
…........................................................................................................
RESPONDENT
JUDGMENT
PHATUDI
J:
[1]
The appellant pleaded not guilty in Ermelo regional court to a charge
of rape as placed on record that "die beskuldigde
skuldig is aan
die misdaad van Verkragting gelees met die bepalings van Artikel
51(2) Deel 1 Bylae 2 van die Strafregwysigingswet
105 van 1997..."
1
The regional court magistrate, S Hallat, convicted the appellant.
The
proceedings were stopped and committed to the High Court
for sentence as envisaged in terms of section 52 of the Criminal Law
Amendment
Act 105 of 1997 (the Act).
2
[2]
Bertelsmann J confirmed the conviction by the regional court. In
sentencing the appellant to life imprisonment, the judge stated
that
the lawgiver has prescribed life imprisonment if you are convicted on
the basis that you have been convicted in this case
3
.
[3]
Leave to appeal was granted in respect of sentence only.
[4]
It is trite that the appeal court's power to interfere with the trial
court's sentence is circumscribed. The appeal court may
interfere
only where, among others, misdirection may be found on the part of
the trial court.
[5]
The appellant's counsel
4
submits that the court a quo misdirected itself in its view that it
was bound to impose the minimum prescribed sentence. She further
submits that the sentencing court relied on the provisions of section
51(1) of the Act whereas the annexure to the charge sheet
refers to
the applicability of section 51(2). On perusal of the charge sheet on
record and when the charge was put to the appellant
on the date of
trial, it is clear that the charge was read with the provisions of
section 51(2)
of the
Criminal Law Amendment Act 105 of 1997
.
[6]
It is stated in S v Makatu
2006 (2) SACR 582
SCA that as a general
rule, where the state charges the accused with an offence governed by
section 51(1)
of the Act...it should state this in the indictment.'
5
It was further contended that the trial court had misdirected itself
in imposing sentence under
section 51(1)
when the indictment referred
to
section 51(2).The
principle was followed in S v Mashinini 2012(1)
SACR 604 SCA where Mhlantla JA penned that 'the misdirection lies in
the fact that
the appellants were sentenced for an offence different
to the one for which they were convicted. Undoubtedly, the judge
below erred
in sentencing the appellants in terms of
section 51(1)
instead of
section 51
(2)...'
6
[7]
In both Makatu and Mashinini, the appellants were sentenced in their
trial courts to life imprisonment as provided in terms
of
section
51(1)
of Act 105 of 1997 whereas the indictment referred to the
provisions of section 51(2) of the Act. In both cases, the appeal
courts
found that as misdirection on the part of the trial court.
[8]
In casu, when sentencing the appellant, the presiding judge stated
that the "lawgiver has prescribed life imprisonment
if [the
appellant is] convicted
7
.
The charge put to the appellant was read with the provisions of
section 51(2) and not 51(1). Sentencing the appellant to life
imprisonment as provided for in terms of section 51(1) of the Act is
a misdirection that warrants interference with the sentence
of the
trial court.
[9]
Section 51(2) provides that notwithstanding any other law but subject
to subsection (3) and (6), a regional court or a High
Court shall
sentence a person who has been convicted of an offence referred to in
(a)...
(b)
Part III of schedule 2, in the case of
ii)
a first offender, to imprisonment for a period not less than 10
years...
[10]
Section 51(3)(a) provide that If any court referred to in subsection
(1) or (2) is satisfied that substantial and compelling
circumstances
exist which justify the imposition of a lesser sentence than the
sentence prescribed in those subsections, it shall
enter those
circumstances on the record of the proceedings and must thereupon
impose such lesser sentence:
(aA)
When imposing a sentence in respect of the offence of rape the
following shall not constitute substantial and compelling
circumstances
justifying the imposition of a lesser sentence:
(i)
The complainant's previous sexual history;
(ii)
an apparent lack of physical injury to the complainant;
(iii)
an accused person's cultural or religious beliefs about rape;
or
(iv)
any relationship between the accused person and the complainant
prior to the offence being committed."
[11]
It is not clear from the record
8
as to what was placed as substantial and compelling circumstances. I
cannot find any substantial circumstances compelling deviation
from
the prescribed minimum sentence notwithstanding the appellant's
testimony that he laboured under the impression that the complainant
was 17 years.
[12]
In the result I make the following order:
1.
The appeal succeed
2.
The sentence imposed is set aside and replaced with the following:
"The
accused is sentence to 15 years imprisonment"
3.
The sentence is antedated to 20 April 2007.
A.M.L
Phatudi
Judge
of the High Court
I
agree
NB
Tuchten
Judge
of the High Court
I
agree
P
Van-der Byl
Acting
Judge of the High Court
On
behalf of the Appellant: Legal Aid SA
FNB
Building
C/O
Church & Paul Kruger Str.
Church
Square
Pretoria
Adv.
LA Van Wyk
On
behalf of the State: DPP
Pretoria
Adv.
M.N.C Menigo
1
"the
accused is guilty of rape read with the provisions of Section 51(2)
Part 1 Schedule 2 of the Criminal Law Amendment
Act 105 of 1997."
(my translation) See p. 7 - Charge Sheet, p10 line 8-13.
2
The
section has since been repealed by section 2 of Act 38 of 20
3
Page
112 line 20-22.
4
Adv
LA van Wyk,
5
Paragraph
7 at page 587
6
Paragraph
[18] at page 611
7
Op
cit paragraph [3] above
8
Pg
111 from line 9