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[2012] ZAFSHC 127
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Mahlaba v S (A66/2011) [2012] ZAFSHC 127 (28 June 2012)
FREE STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
CASE NO. A66/2011
In the matter between:
DIAOU MAHLABA
….....................................................................
Appellant
and
THE STATE
…...........................................................................
Respondent
HEARD ON
:
11 JUNE 2012
CORAM:
MOCUMIE, J
et
MURRAY, AJ
JUDGEMENT BY:
MURRAY, AJ
DELIVERED ON:
28 JUNE 2012
_______________________________________________________
[1] The appellant was charged with and convicted of rape
of a 14-year old girl, read with section 51 of the Criminal Law
Amendment
Act, Act 105 of 1997 (“Act 105 of 1997”), on 29
December 2006. He was sentenced to twenty years’ imprisonment.
[2] The offence resorts under Part I, Schedule 2 of Act
105 of 1997, namely rape where the victim is under the age of 16
years.
The prescribed minimum sentence applicable to the said offence
is life imprisonment. The Court
a quo
found that substantial
and compelling circumstances existed to justify imposing a lesser
sentence than the mandatory life imprisonment.
[3] On 1 December 2010 the court
a quo
granted
the appellant leave to appeal against the sentence only. The only
argument raised on his behalf on appeal was that the charge
against
him should have specified that he was being charged with rape read
with the provisions of section 51(1) and that the trial
Court should
have informed him that a sentence of life imprisonment could be
imposed.
[4] The question in issue, therefore, is whether the
charge was too vague and whether, consequently, the court
a quo
should have warned the appellant before the start of the trial that
he could be facing life imprisonment despite the fact that
he had a
legal representative during the trial and the fact that the charge
sheet had the provision included in the charge.
[5] Counsel for the appellant averred in his Heads of
Argument that since the charge sheet only referred to s51, the court
a quo
had misdirected itself by taking the view that the
appellant had to be sentenced in terms of s51(1) which carries the
life sentence,
rather than in terms of s51(2) read with Part III of
Schedule 2 which provides for a minimum sentence of 10 years
imprisonment
for first offenders in the absence of substantial and
compelling circumstances.
[6] He submitted that, that might have
infringed the appellant’s right to a fair trial in terms of
s35(3) of the Constitution
and the right not to be ambushed. For the
appellant’s right to have the charge set out so clearly that he
is able to respond
thereto and to defend himself, he relied on
STATE
v NDLOVU
,
2003
(1) SACR 331
(SCA).
But in that case the Court
merely held that at some stage of the trial,
“
whether
in the charge sheet, whether in Court”
,
the accused had to be informed of the State’s intention to rely
on the prescribed minimum sentencing regime created by Act
105 of
1997 so that he knew timeously not only the charge he faced but also
the possible consequences.
[7] Appellant’s Counsel also referred in his Heads
of Argument to
S v MAKATO
,
2006 (2) SA CR 582
(SCA) in which it was stated that, if the charge resorts under
s51(1), the charge sheet should pertinently say so. But, what he
seems to overlook, is that s51(1) read with Part I of Schedule 2 is
the only provision applicable when the victim is under the
age of 16.
Part II and III apply only to rape in various circumstances when the
victim is older than 16. Neither these provisions,
nor s51(2) are
therefore applicable in the instant case.
[8] Any reference to s51 of Act 105 of 1997 read with
the statement of facts in the instant charge sheet, namely rape of a
14 year
old girl, can therefore only be a reference to s51(1). The
court
a quo
therefore did not misdirect itself by taking life
imprisonment as the point of departure in determining an appropriate
sentence
for the appellant after finding substantial and compelling
circumstances to exist.
[9] Furthermore, in
S
v MAKATO
,
supra
,
the Court clearly stated that the rule that s51(1)
should be stated in the indictment is
“
neither
absolute nor inflexible”
.
That case is distinguishable from this one anyway since
the crime there was murder, an offence for which the minimum regime
does
make provision for different forms of murder carrying different
sentences depending on whether it fell under Part I read with s51(1)
(lifelong imprisonment) or under Part II, read with s51(2) (15 to 25
years’ imprisonment) depending on whether the accused
is a
first, second or third offender, regardless of the age of the victim.
[10] In
MASHININI & ANOTHER v S
,
2012 (1) SACR 604
(SCA) the reason why the Court found the court
a quo
to have misdirected itself and imposed a lesser sentence
than life imprisonment was that in the indictment the accused was
charged
with and convicted of rape as in terms of s51(2). The accused
was then referred to the High Court for sentencing, however, and was
given a life sentence in terms of s51(1) instead of the prescribed
sentence applicable to the offence of which he was convicted
in terms
of s51(2), i.e. between 15 and 25 years’ imprisonment. The
Supreme Court of Appeal found that to be a misdirection
and therefore
set aside the sentence and sentenced the appellant in accordance with
the offence of which he was convicted. The
Supreme Court of Appeal at
para [17] explained that
“
In this matter the State
decided to restrict itself to s51(2) … It was not thereafter
open to the Court to invoke a completely
different section which
provides for a more severe sentence.”
[11] Whether the State should have referred specifically
to s51(1) and whether the appellant was sufficiently warned of the
nature
and consequences of the offence he was charged with, is to be
determined from all the circumstances of the specific case to
determine
whether he did receive a fair trial or not. This would be
in accordance with
S v LEGOA
2003 (1) SACR 13
(SCA) at
para [21] where it was stated that whether a right to a fair trial
had been impaired will depend on a vigilant examination
of the
relevant circumstances.
[12] Regarding the question of whether it was necessary
to refer specifically to s51(1), Cameron, JA, in
S v LEGOA,
supra,
at paras [20] and [21] stated:
“
The matter is, however, one
of substance and not form, and I would be reluctant to lay down a
general rule that the charge must
in every case recite either the
specific form of the scheduled offence with which the accused is
charged, or the facts the State
intends to prove to establish it.”
[13] This view was confirmed in
MASHININI
et
al
v S,
supra,
at para [28]
where Ponnan, JA stated with reference to the fact that the
circumstances clearly amounted to a gang rape (which resorts
under
s51(1) read with Part I of Schedule 2 but the accused was charged in
the indictment in terms of s51(2)) that
“
had they
[the
prosecution]
applied
their minds properly, it would have been clear to them that the
accused persons ought to have been charged either in terms
of s51 or
s51(1) of the Act if they desired to be specific.”
In my view the State is left with a choice, in other
words, as to whether they wanted to refer to s51 in general or to
limit themselves
to a specific subsection of s51 in the indictment.
[14] Regarding the question of a further warning in
court that the State intended to rely on the minimum sentence regime,
Pillay,
J, in
S v MSELEKU
2006(2) SACR 574 (D) at d-e
stated:
“
In summary, based on
Ndlovu’s case, I came to the conclusion that if any reference
is made in the indictment to the State’s
reliance on the
“minimum sentence Act” a court may well be justified in
assuming that Counsel would have drawn that
to the accused’s
attention.”
[15] It was made clear in
S v NKADIMENG
2008(1)
SACR 538 (T) that where the accused has legal representation and the
charge sheet makes it clear that the prosecution intends
to rely on
the provisions of Act 105 of 1997 there is no duty on the trial court
to ensure that the accused is aware of the gravity
of a conviction on
a charge carrying a minimum sentence.
[16] And as found in
S v TSHABALALA
2008(1) 486(T) it is only when the charge sheet makes no reference to
the Act and neither the accused nor the legal representative
had any
advance warning that such minimum legislation would be applicable
that the prescribed minimum sentence in terms of Act
105 of 1997
cannot be imposed.
[17] In
S v LANGA
2010(2) SACR 2889 (KZP)
at para [55] the majority concluded that there was nothing on record
to indicate that either the appellant
or her legal representative had
made the connection between the summary of substantial facts and the
prosecution’s intention
to rely on s51(1). It was accordingly
held that the trial judge’s reliance on s51(1) of Act 105 of
1997 was a material misdirection
which rendered the trial
substantively unfair.
[18] That is not the case in the instant matter,
however. There was a pertinent reference to the provisions of s51 of
Act 105 of
1997 in the charge sheet which also clearly stated that
the rape victim was a 14 year-old girl. The charge sheet therefore
does
convey the intention of the State to invoke the provisions of
Act 105 of 1997 and the only applicable subsection of s51 in the
circumstances is clearly s51(1).
[19] Furthermore, the appellant had a legal
representative from whose frequent references to life imprisonment it
was clear that
he realised that only s51(1) could possibly apply
where the offence is rape and the victim younger than 16. In
accordance with
the finding in
S v MASEKU
,
supra,
the Court
a quo
therefore was justified to assume that his
Counsel would have drawn that to the appellant’s attention. The
assumption would
have been strengthened, furthermore, by the
appellant’s own testimony which clearly shows that he knew the
significance of
the cut-off age of 16 by pertinently testifying:
“
I knew that she was 16
years, but I was very surprised to hear at the trial that she was
14.”
[20] From the facts set out above, it is clear that in
the circumstances of this case it was indeed sufficient for the State
to
have referred in the charge sheet only to the provisions of s51 of
Act 105 of 1997 in view of the specific reference to rape of
a 14
year-old victim. Furthermore, in accordance with
S v LEGOA
and
MASHININI et al v S
,
the State was not
obliged to be more specific and refer to s51(1). In accordance with
S
v MSELEKU,
the reference to the Act itself was enough to
relieve the Court of any obligation to inform the appellant that the
State intended
to rely on the minimum sentence Act and to explain to
him the gravity of possible consequences since he had a legal
representative
and since the record shows that the Court could safely
assume that his legal representative would have informed him of the
mandatory
life sentence.
[21] I am therefore satisfied that the appellant in this
particular case did have a fair trial, that the court
a quo
did
not misdirect itself and that the charge sheet contained sufficient
information for the appellant to have known that the State
intended
to rely on the minimum sentence regime and to have been able to
prepare his defence properly.
[22] The court
a quo
cannot, therefore, be
faulted for convicting and sentencing the appellant in terms of the
provisions of S51(1) of Act 105 of 1997
read with Part I of Schedule
2 thereof. Nor can it be faulted for finding that substantial and
compelling circumstances existed
which justified its imposing a
sentence of 20 years’ imprisonment instead of the applicable
sentence of life imprisonment,
as the State also conceded.
[23] The sentence is not shockingly inappropriate in
view of the victim’s youth, the fact that she was a virgin at
the time
of the rape and the fact that she sustained serious vaginal
injuries during the rape by the appellant whom she trusted as a
friend
of her sister’s and who abused that trust by his slyly
planned invasion of the home where his victim was alone and
defenceless.
[24] There is therefore no reason for this Court to
interfere with the sentence imposed on the appellant.
WHEREFORE
the following order is made:
“
The appeal is dismissed.”
______________
H MURRAY, AJ
I concur.
_______________
B.C. MOCUMIE, J
On behalf of Appellant: Adv. K Pretorius Instructed by:
Legal Aid South Africa
Second Floor
St Andrew Centre
BLOEMFONTEIN
On behalf of Respondent: Adv. E Liebenberg Instructed
by:
Director of Public Prosecutors
Ground Floor
Waterfall Centre
BLOEMFONTEIN