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[2011] ZAKZPHC 2
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Xaba v S (AR439/10) [2011] ZAKZPHC 2; 2011 (2) SACR 1 (KZP) (2 February 2011)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
Case
No : AR439/10
In
the matter between :
LINDOKUHLE
XABA
….................................................................................
Appellant
and
THE
STATE
…..........................................................................................
Respondent
Judgment
Lopes J
[1] The appellant was convicted on the
17
th
October, 2002 of four counts of rape and one of
murder of the deceased, Thobelani Audrey Mkhize. He had been charged
with two others,
who, together with an accomplice, had perpetrated
three of the counts of rape.
[2] The appellant was sentenced to
life imprisonment on each count. On the 8
th
November,
2007, Theron J granted leave to appeal against sentence only.
[3] In her judgment on sentence,
Theron J regarded herself as bound by the provisions of the
Criminal
Law Amendment Act, 1997
which she viewed as obliging her to pass the
minimum prescribed sentence unless compelling and substantial
circumstances existed
entitling her to deviate from them.
[4] The minimum sentencing provisions
were not referred to in the indictment nor in the State’s
summary of substantial facts.
The first reference in the Court record
to those provisions is by the prosecutor in his address to the court
on sentence.
[5] Judicial opinion is divided on the
issue of whether it is necessary for a presiding officer to draw to
the attention of an accused
person who is represented, the
applicability of the minimum sentencing provisions where they are not
contained in the indictment.
In this regard see the remarks of
Borchers J in
S v Mvelase
2004(2) SACR 531 at 535 i –
536 b who, although expressing the view that a court should act on
the presumption that lawyers
appearing for accused persons are
competent, cautioned that there may be cases where it is clear that
the performance of a legal
representative is incompetent, and then in
the interest of ensuring a fair trial, the presiding officer should
bring certain aspects
of the law to the attention of the accused.
[6] In
S v Mseleku
2006(2) SACR
574, Pillay J considered the comments of Borchers, J and dissented
from the proposition that one can safely generalise
about the
competence of counsel, and pointed out that it is a simple matter for
the State to point out the minimum sentencing provisions
in the
indictment.
[7] I agree with the approach of
Pillay, J particularly where the possible prejudice to an accused can
be grave indeed. In addition,
it is clear from a reading of the
record that the whole approach of the appellant’s
representative to the aspect of sentencing
showed little or no
application, nor an understanding of what was required of her to
protect the interests of the appellant. The
concession made by her
that no substantial and compelling circumstances existed to enable
the court to avoid imposing a minimum
sentence stands in stark
contrast to the age and personal circumstances of the appellant.
[8] For the reasons set out below the
sentence imposed upon the appellant was inappropriate and it is not
necessary for me to decide
whether the appellant was prejudiced in
the conduct of his defence by the failure to apprise him of the
minimum sentencing provisions.
[9] At the time the matter was heard
the provisions of the Criminal Law Amendment Act, 1977 (“the
Act”) provided
inter alia
that :-
“
(3)(b) If
any court referred to in ss (1) or (2) decides to impose a sentence
prescribed in those subsections upon a child who was
16 years of age
or older, but under the age of 18 years at the time of the commission
of the act which constituted the offence
in question, it shall enter
the reasons for its decision on the record of the proceedings.
…
the provisions of this section
shall not be applicable in respect of a child who was under the age
of 16 years at the time of
the commission of the act which
constituted the offence in question.”
[10] In
S v B
2006(1) SACR 311
(SCA) the Supreme Court of Appeal held that, in respect of offenders
aged between 16 and 18 years at the time
of the offence, the
sentencing court was free to depart from the prescribed minimum
sentence without the need for an accused to
establish substantial and
compelling circumstances.
[11] On the 3
rd
December,
2007 the Act was amended with the apparently express object of
reversing the decision in
S v B
and to make the minimum
sentencing regime applicable to children aged 16 or 17 years at the
time of the offence.
[12] S 51(3)(b) was removed, and s
51(6) now reads :-
“
(6) This
section does not apply in respect of an accused person who was under
the age of 16 years at the time of the commission
of an offence as
contemplated in subsection (1) or (2).”
[13] At the time of the commission of
the offence in this matter (on the 26
th
September, 2001)
the appellant was 17 years and two months old (having been born on
the 1
st
July, 1984). He was a scholar in Standard 7 and
had no previous convictions.
[14] The appellant was accordingly
entitled to have proper consideration given to the provisions of s
28(1)(g) of the Constitution
insofar as they were applicable to him.
[15] In
Centre for Child Law v
Minister of Justice and Constitutional Development and others
(National Institute for Crime Prevention and
the Re-integration of
Offenders, as
amicus curiae
) 2009(2) SACR 477 (CC),
the Constitutional Court ruled that the amended Act (by
s 1
of the
Criminal Law (Sentencing) Amendment Act 2007
), was unconstitutional
because it sought injustifiably to limit the protection afforded to
children under s 28(1)(g) of the Constitution.
[16] In addition it provided that
sub-s 51(6) is to be read to provide that s 51 shall not apply to an
accused person under the
age of 18 years at the time of the
commission of the offence.
[17] The imposition of life
imprisonment on the appellant, based upon the minimum sentencing
provisions, was accordingly a misdirection
entitling this court to
set aside the five counts of life imprisonment and consider the
question of sentence afresh. It remains
then for this court to
consider an appropriate punishment.
[18] I agree with Mr
du Plessis
for the appellant and Mr
Paver
for the State that the
obtaining of a probation officer’s report would serve little
purpose at this stage as the appellant
has already been incarcerated
for eight years.
[19] The crime was a dreadful one, and
the deceased was an entirely innocent young person caught up in a
senseless and savage attack
by four men, who, having raped her, then
killed her to ensure her silence.
[20] As the learned Judge said in her
judgment on sentence they descended upon her like a pack of wolves,
behaved like animals,
and do not deserve to be among society. Even
after she was raped by all of them, she begged them not to kill her.
They all then
participated in brutally stabbing her to death.
[21] What is aggravating in the case
of the appellant is that he initiated the attack upon the deceased’s
boyfriend, enabling
his co-perpetrators to drag the deceased away
from him. In addition, the appellant suggested the murder of the
deceased after the
deceased had been raped. He persisted with this
attitude even after the accomplice Jakeya cautioned him that to
murder the deceased
would increase the offences with which they could
be charged.
[22] This conduct of the appellant
shows a degree of leadership beyond his years and a callous disregard
for human life.
[23] Taking into account everything
that has been said on behalf of the appellant, a sentence of 20 years
imprisonment on each count
remains an appropriate one. The
rehabilitation of the appellant and his attitude to imprisonment will
be within his own hands and
will no doubt play a role in determining
exactly how long he remains in custody.
[24] In all the circumstances I would
make the following order:-
(1) the appeal succeeds;
(2) the sentences of life imprisonment
imposed on the appellant on each count are set aside;
(3) the sentences on Counts 1 - 5 are
replaced with a sentence of 20 years imprisonment, on each count;
(4) the sentences on Counts 2 –
5 are to run concurrently with the sentence on Count 1.
Balton J : I agree.
D Pillay J : I agree.
It is so ordered.
Date
of hearing : 24
th
January 2011
Date
of judgment : 2
nd
February 2011
Counsel
for the Appellant : J H du Plessis (instructed by Legal Aid South
Africa)
Counsel
for the Respondent : D Paver (instructed by the Director of Public
Prosecutions