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[2012] ZAKZPHC 3
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Sithole v S (Leave to Appeal) (AR353/11) [2012] ZAKZPHC 3 (8 February 2012)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
CASE NO.: AR353/11
In the matter between
MBONGWA PETROS SITHOLE
..........................................................
APPELLANT
And
THE STATE
…....................................................................................
RESPONDENT
_____________________________________________________________
APPEAL JUDGMENT
______________________________________________________________
MOKGOHLOA J
[1] The appellant appeared in the Regional Court Camperdown, on a
charge of rape read with section 51 of the Criminal Law Amendment
Act
105 of 1997 (‘the Act’). He was legally represented.
[2] The facts of this case can be summarised as follows: The
complainant was at a certain Janca’s place consuming liquor.
It
was in the afternoon. The appellant arrived there and joined the
other people who were there consuming liquor. The complainant
went
towards the side of the house to relieve herself. While still on her
haunches relieving herself, the appellant approached
her and dragged
her towards the back of the house where he raped her. The complainant
was saved by Ms Janca who came and found
the appellant raping her. Ms
Janca hit the appellant with a stick and the appellant ran away.
[3] The appellant denied having raped the complainant. He stated that
it was the complainant who made sexual moves to him. According
to
him, he played along with her moves and took her towards the back of
the house where they started to romance each other. He
denied having
had sexual intercourse with the complainant. It emerged under cross
examination that the appellant was HIV positive.
[4] The appellant was convicted as charged. The Regional Magistrate
felt obliged upon convicting the appellant, to refer the matter
for
sentencing to the High Court in terms of Section 52(1) (b) of the
Act. The matter came before
Badal AJ
, who confirmed the
conviction and sentenced the appellant to 15 years’
imprisonment. The appellant now appeals against the
sentence having
been granted leave by
Wallis J
, (as he then was).
[5] The issue to be determined is whether
Badal AJ
, was
correct to sentence the appellant to 15 years’ imprisonment in
circumstances where the prescribed minimum sentence was
10 years’
imprisonment without first notifying the appellant of his intention
to impose a sentence greater than the prescribed
one.
[6] The starting point in an inquiry such as the present is in
Section 51 of the Act which provides:
“
(1) . . .
(2) Notwithstanding any other law but subject to
subsections (3) and (6), a Regional Court or a High Court shall
sentence a person
who has been convicted of an offence referred to
in-
(b) Part 111 of Schedule 2, in the case of –
(i) a first offender, to imprisonment for a period not
less than 10 years;
(ii) a second offender of any such offence, to
imprisonment of a period not less than 15 years;
(iii) a third or subsequent offender of any such
offence, to imprisonment for a period not less than 20 years; . . .
Provided that the maximum term of imprisonment that a
regional court may impose in terms of this subsection shall not
exceed the
minimum term of imprisonment that it must impose in terms
of this subsection by more than 5 years.
(3) (a) 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.”
[7] In
S v Mbatha
2009 (2) SACR 623
(KZN)
Wallis J
stated at para 14:
“
I am
also alive to the fact that the legislation contains no provision
corresponding to s51 (3)(
a
)
when the departure from the prescribed minimum sentence is upwards
rather than downwards. Nonetheless it seems to me that this
must
remain the correct approach when the court is contemplating imposing
a greater sentence than the prescribed minimum, in the
same way as
where it is contemplating imposing a lesser sentence. Otherwise the
process of determining an appropriate sentence
will be bifurcated in
a most undesirable way. If the approach is different from that which
I have indicated it will lead to the
following situation.”
Wallis J
, continued at para 26 and stated:
“
..., I
think that the failure to apprise the defence of the fact that a
higher sentence than the minimum was in contemplation was
a defect in
the proceedings.”
[8] This issue was considered later in
S v Mthembu
2011 (1) SACR
272
(KZP)
where the full court declined to follow
Wallis J
’s
approach. The full court held that
Mbatha
had been wrongly
decided. The
Mthembu’s
decision was confirmed by the SCA
in
Mthembu
v The State 206/11
2011 ZASCA 179
delivered
on 29 September 2011, where the Court held at para 13 that:
“
While
it may be notionally axiomatic that the State should forewarn an
accused person of its intention to invoke the minimum sentencing
provision the same can hardly hold true for a court. For, surely, a
court only arrives at its conclusion as to what a proper sentence
is,
after having received all of the evidence and hearing argument. Often
it is the very act of consideration after the hearing
of argument
that properly concentrates the judicial mind to the task at hand.
Until then such view as may be held by a court may
well be no more
than tentative.”
The Court continued at para 18:
“
In
particular
Wallis
J
’
s
approach, that the failure to apprise the defence of the fact that a
higher sentence than the minimum was in contemplation constitutes,
without more, a defect in the proceedings, cannot be endorsed. In our
view such failure in and of itself will not result in a failure
of
justice, which vitiates the sentence. After all, any sentence
imposed, like any other conclusion, should be properly motivated.”
[9] In
casu,
the appellant was represented. The charge sheet
was explicit. It stated: “RAPE R/W S 51 of Act 105/1997”.
Furthermore
at the commencement of the trial the magistrate warned
the appellant of the applicability and consequences of Act 105 of
1997.
I am therefore satisfied that the appellant was well aware of
the sentence/s he may have to face. Ms Franke, for the appellant,
conceded that in the light of Mthembu’s decision, the sentence
imposed is appropriate in the circumstances.
Order
The appeal against sentence is dismissed.
The sentence is confirmed.
_______________________
MOKGOHLOA J
_______________________ I agree;
PLOOS VAN AMSTEL J
_______________________I agree, and it is so ordered.
KOEN J
COUNSEL
Counsel for the Applicant : Adv S
Franke
Instructing Attorneys :
Pietermaritzburg Justice Centre
20 Otto Street
Pietermaritzburg
Counsel for the Respondent : Adv D
Naidoo
Instructing Attorneys
: The Director of Public Prosecutions
High Court Building
Pietermaritzburg
Date of hearing : 01 February 2012
Date of Judgment
: 08 February 2012