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[2020] ZASCA 6
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Nxele v S (271/19) [2020] ZASCA 6 (12 March 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
no: 271/19
In
the matter between:
LUNGISANI
BRIAN BOTSOTSO
NXELE
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Nxele v S
(271/19)
[2020] ZASCA 6
(12 March 2020)
Coram:
PONNAN and NICHOLLS JJA and LEDWABA AJA
Heard
:
18 February 2020
Delivered
:
12 March 2020
Summary:
Murder – Life imprisonment –
Failure to mention provisions of Criminal Law Amendment Act
constituting a misdirection
– common law jurisdiction.
ORDER
On
appeal from:
KwaZulu-Natal Division of
the High Court, Pietermaritzburg (Booyens, Ploos van Amstel and Van
Zyl JJ, sitting as court of appeal):
The
appeal against sentence is dismissed.
JUDGMENT
Ledwaba
AJA (Ponnan and Nicholls JJA concurring)
[1]
This is an appeal, with the special leave of this court, against a
judgment of the full court of the KwaZulu-Natal Division
of the High
Court, Pietermaritzburg, which confirmed a sentence of life
imprisonment imposed on the appellant by a single judge
of that
division.
[2]
The appellant, who was legally represented, pleaded guilty to
the charge and was convicted of murder. He was consequently sentenced
to life imprisonment.
[3]
The facts giving rise to the charge of murder are briefly as follows.
The deceased, Mr
Moses Shelane,
was a taxi
owner and driver. The deceased and
Mr Siqubele
Jiyane had a dispute.
Jiyane requested Mr Sbongalo Ndlovu to
arrange a person to kill the deceased for the sum of R10 000.
Ndlovu secured the services
of the appellant. Jiyane, together with
Ndlovu and the appellant, planned the murder of the deceased and
provided the appellant
with a firearm. In accordance with the plan,
the appellant and Ndlovu boarded the deceased's taxi as ordinary
passengers and sat
behind him. During the course of the journey, when
the taxi had stopped, the appellant fired a shot which struck the
deceased in
the back of his head. The deceased died at the scene.
According to the appellant, he was only paid R1 500 instead of
R10 000
as promised.
[4]
Counsel for the appellant placed on record before the trial court the
following mitigating circumstances: the appellant was
19 years old
when he committed the offence; he was unmarried; he was a first
offender; he was in Grade 11 at school; he had
a child aged one
year three months and another child was expected to be born around
April 2010; his father had abandoned the family;
he was convicted of
housebreaking and theft after he had committed the murder; he could
not exercise a mature judgment; he was
influenced by Jiyane and
Ndlovu; he made a confession and cooperated with the police and
he was remorseful.
[5]
He further argued that the appellant's circumstances, cumulatively
considered, constitute substantial and compelling circumstances
and
that a long term of imprisonment should be imposed instead of life
imprisonment.
[6]
In imposing sentence, the trial court took into account that the
murder was premeditated and that it was enjoined to impose
a sentence
of life imprisonment, unless it found substantial and compelling
circumstances to exist. It could find none.
[7]
Counsel for the appellant contended that the sentence was vitiated by
an irregularity inasmuch as the indictment did not make
reference to
s 51(1) of the Criminal Law Amendment Act 105 of 1997 (the Act).
This court has held, with reference to the
provisions of s 51 of the Act, that the question whether the
accused's constitutional
right to a fair trial has been breached at
the sentencing phase, can only be answered after 'a vigilant
examination of the relevant
circumstances'. See
S
v Legoa
2003 (1) SACR 13
(SCA) and
S
v Ndlovu
2003 (1) SACR 331
(SCA) para
12.
[8] In
Legoa
para
21 the following observations were made:
‘
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. A general requirement to this effect, if
applied with undue formalism, may create intolerable
complexities in
the administration of justice and maybe insufficiently heedful of the
practical realities under which charge-sheets
are frequently drawn
up. The accused might in any event acquire the requisite knowledge
from particulars furnished to the charge
or, in a Superior Court,
from the summary of substantial facts the State is obliged to
furnish. Whether the accused’s
substantive fair trial
right, including his ability to answer the charge, has been impaired,
will therefore depend on a vigilant
examination of the relevant
circumstances.’
[9] Recently, in
S v
Tshoga
[2016] ZASCA 2015
;
2017 (1) SACR 420
(SCA) this court had
to consider whether life imprisonment was competent where the
provisions of the Act were not mentioned in
the charge-sheet at all,
nor was any reference made to the Act during the trial, or before
conviction. The possibility of life
imprisonment was mentioned for
the first time during the magistrate’s judgment convicting the
appellant. In the high court,
where the matter had been referred for
sentence, life imprisonment was imposed. On appeal to this court,
counsel submitted that
as the charge-sheet had not made reference to
the prescribed minimum sentences, the appellant’s fair trial
right had been
infringed by the imposition of life imprisonment. In
the majority judgment of the court Schoeman AJA in para 22 said
the following:
'. . . I am of the view
that a pronouncement that the Act had to be mentioned in the
charge- sheet or at the outset of the
trial would be elevating
form above substance. Every case must be approached on its own facts
and it is only after a diligent examination
of all the facts that it
can be decided whether an accused had a fair trial or not.'
[10] In
Tshoga
the
appellant's application for leave to appeal was dismissed by the
Constitutional Court in
M T v S; A S B v S; September v S
[2018] ZACC 27
; 2018 (2) SACR 592 (CC) on the basis that ‘most
of the issues raised were questions of fact and, on the points of
law,
it is not in the interests of justice to consider them at this
stage’. However, at para 40 the Constitutional Court did state
that:
'It is
indeed desirable that the charge sheet refers to the relevant penal
provision of the Minimum Sentences Act. This should not,
however, be
understood as an absolute rule. Each case must be judged on its
particular facts. Where there is no mention of the
applicability of
the Minimum Sentences Act in the charge sheet or in the record of the
proceedings, a diligent examination of the
circumstances of the case
must be undertaken in order to determine whether that omission
amounts to unfairness in trial. This is
so because even though there
may be no such mention, examination of the individual circumstances
of a matter may very well reveal
sufficient indications that the
accused's section 35(3) right to a fair trial was not in fact
infringed.'
[11]
In this case, although it appears that the Act was not specifically
mentioned in the indictment, both counsel and the trial
court
approached the matter as if the Act found application. At the trial,
counsel for the State submitted that the imposition
of life
imprisonment as a minimum sentence is applicable and he further
referred to
Malgas
[1]
.
[12]
Before the full court, counsel for the appellant accepted that it is
quite plain that everybody was on the same page that if
substantial
and compelling circumstances do not exist, life imprisonment should
be imposed. Later the following is recorded:
‘
VAN ZŸL J
:
. . . The State has dealt in paragraph 5 of Miss Senekal’s
heads with the fact that the indictment did not contain any reference
to the minimum sentencing provisions of Act 105 of 1997. Are you
taking that point on appeal or not?
MR BUTLER:
M’Lord, as I mentioned earlier in my opening address, I did not
really focus on that point. Obviously if Your Lordships
find that is
an important point . . . [intervention]
VAN ZŸL J:
It seems to me that it is probably six of one and half a dozen of the
other, because on the authorities Miss Senekal advanced
here, the
effect of that is that where an accused has not been warned, and I
cannot imagine that Mr Du Toit had not discussed it
with him. Because
he is an experienced practitioner, all – known to us all, but
assuming that he had not been warned of the
provisions of the Act,
that in itself would entitle the Court to impose a sentence of less
than the prescribed minimum. But the
Court has, in this case, a
common law jurisdiction in any event to impose life, so that the same
considerations it seems to me
would apply whether the provisions of
the Act had been drawn to his attention or not.
. . .
VAN ZŸL J:
And that in the final analysis it is probably not likely to make a
difference to the outcome, but I thought I would raise
it with you
because it is raised in Miss Senekal’s heads and you had not
addressed the point at all in your submissions to
us.
MR BUTLER:
No, M’Lord, I was thinking very much along the lines of Your
Lordship that maybe a slightly different angle that having
regard to
the way the matter was dealt with, and the whole discussion was about
substantial and compelling circumstances, and the
learned Judge and
obviously both counsel were well aware that that was . . .
[intervention]
VAN ZŸL J:
Well that was the tenor of the debate.
MR BUTLER:
Yes, it was.
VAN ZŸL J:
In making it – when Mr Du Toit made submissions to the Court.
MR BUTLER:
Absolutely, it was very pointedly on that aspect.
VAN ZŸL J:
One would infer that everybody was alive to the provisions of the Act
. . . [intervention]
MR BUTLER:
That is so.
VAN ZŸL J:
. . . without having expressly stated that.
MR BUTLER:
That is so. Sorry, M’Lord, I cannot really take that matter
much further. I do submit that it – yes, it probably
does not
sway the matter one way or the other markedly.’
[13]
The full court held:
'In my view, the crime of
which the appellant stands convicted, is of such a nature that I do
not believe that the court
a quo
erred, or misdirected itself,
in taking the approach that no substantial and compelling
circumstances existed, which would justify
a sentence of less than
imprisonment for life. But, even if it would be held that the court
a
quo
was wrong in applying the provisions of Act 105 of 1997 to
the present matter and should rather have sentenced the appellant in
the exercise of its common law jurisdiction, then, in my view, the
Court was entirely correct in imposing a sentence of imprisonment
for
life.'
[14]
The reasoning of the full court cannot be faulted and I agree with
it. The trial court properly considered the facts and relevant
circumstances of this case. The appeal should be dismissed.
[15]
In the result the following order is made:
The
appeal against sentence is dismissed.
____________________
A P Ledwaba
Acting
Judge of Appeal
Appearances
For
appellant: P Andrews
Instructed
by:
PMB
Justice Centre, Pietermaritzburg
Bloemfontein
Justice Centre, Bloemfontein
For
respondent: J M Khathi
Instructed
by:
The
Director of Public Prosecutions, Pietermaritzburg
The
Director of Public Prosecutions, Bloemfontein
[1]
S
v
Malgas
2001 (1) SACR 469
(SCA).