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[2011] ZAKZDHC 89
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S v Mchunu (CC 168/2011) [2011] ZAKZDHC 89 (16 September 2011)
REPORTABLE
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
CASE NO.: CC 168/2011 P
In
the matter between:
THE STATE
and
THOKOZANI NHLOSO
MCHUNU ACCUSED
J U D G M E N T
RALL
AJ
[1] The accused, an adult male, faces a total of eight charges before
me and an assessor. He pleaded guilty to all of them, namely:-
1. Robbery with aggravating circumstances committed on 27 August
2011;
2. Murder committed on 27 August 2011;
3. Sexual assault committed on 27 August 2011;
4. Attempted murder committed on 27 August 2011;
5. Robbery with aggravating circumstances committed on 30 August
2011;
6. Rape committed on 30 August 2011;
7. Murder committed on 30 August 2011;
8. Attempted murder committed on 30 August 2011.
[2] The accused, who is represented, handed in a signed statement in
terms of section 112 (2) of the Criminal Procedure Act. This
statement confirms that the accused pleads guilty to all the offences
mentioned above except that on the first one it states that
he pleads
guilty to robbery only. The State accepted the plea on the lesser
offence and accepted the accused’s plea to the
other charges on
the basis set out in the statement.
[3] Subject to one qualification, the court is satisfied that the
accused has clearly admitted all the elements of the offences
to
which he has pleaded guilty on the basis set out in his statement.
[4] The qualification relates to the third of the charges, which is
one of contravention of section 5 (1) of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007 (‘the
2007 Act’). This sub-section reads as follows:-
‘
A person (‘‘A’’)
who unlawfully and intentionally sexually violates a complainant
(‘‘B’’),
without the consent of B, is guilty
of the offence of sexual assault’.
The State alleges that on or about 27 August 2011 and at or near the
Thalaleni area, Nkandla, the accused unlawfully and intentionally
sexually violated the complainant by inserting his penis between her
thighs. This conduct must have resulted in contact between
the
accused’s penis and the complainant’s thighs and so falls
within paragraph (a) of the definition of ‘sexual
violation’
in section 1 of the 2007 Act.
[5] As I have mentioned, the accused pleaded guilty to the charge and
in his statement admitted all the elements of the offence.
Amongst
the things that he admitted was that the complainant was a 10 year
old female child.
[6]
I then questioned counsel for both the State and the defence about
the consequences of the 2007 Act not prescribing any sentence
for the
offences of contravening sections 3 (rape) and 5(1) (sexual assault)
.
The only provision which
prescribes a sentence is s 54, which deals with the obligation to
report the commission of sexual offences
against children or persons
who are mentally disabled. This section criminalizes the failure to
report knowledge of such offences
to a police official and provides a
penalty for such a crime. This is contained in paragraph (2)(b) which
provides that such a
person is liable on conviction to a fine or to
imprisonment for a period not exceeding five years or to both a fine
and such imprisonment.
[7] The closest that the 2007 Act comes to dealing with sentences for
the other offences created by it is in section 56 which is
headed
‘Defences and sentencing’. Sub-section (7) states that
‘if a person is convicted of any offence under
this Act, the
court that imposes the sentence shall consider as an aggravating
factor the fact that the person…’,
Other than that, all
there is is a number of references to sentencing, some of which are
mentioned below.
[8] In contrast, the act which the 2007 Act to a large extent
repealed and replaced, the Sexual Offences Act 23 of 1957 (the 1957
Act) prescribed sentences for the offences created by it and still
does so in respect of the offences which have not been repealed.
Section 22 of the 1957 Act has always contained detailed sentencing
provisions relating to the various offences created by that
act.
[9] Both counsel submitted that the court was entitled to impose any
sentence which it deemed fit within the limits of its jurisdiction.
In advancing this argument, both the State and the defence relied on
one case only, namely, the unreported decision of the Free
State High
Court in
S v Booi
delivered on 12 August 2010 under review
number 14/2010. That case dealt with a contravention of section 15 of
the 2007 Act which
criminalizes the act of sexual penetration with a
child. As pointed out in the judgment of Cillie J, concurred in by
Hancke AJP,
that section replaced, with minor amendments, section 14
of the 1957 Act, which was repealed by the 2007 Act.
[10] The court then went on to consider whether the absence of a
penalty clause rendered the criminalization clause (section 15)
ineffective on the basis of the
nulla poena sine lege
maxim
.
This maxim requires that in criminalizing conduct the legislature
should specify a penalty for that offence. The court came to the
conclusion that this rule is not of universal application and that
where conduct is clearly criminalized by a statute it is punishable
at the discretion of the court where the law has not itself attached
any penalties. This conclusion was based on
Milton and Cowling, SA
Criminal Law and Procedure, 2
nd
Ed, Volume 3
paragraphs 1 – 20;
Snyman, Criminal Law, 5
th
Ed,
page 48 and
Burchell, Principles of Criminal Law, 3
rd
Ed
at page 99, all of whom relied on the judgment in
R v
Forlee
1917 TPD 52.
After pointing out that the 1957 Act did
provide for a penalty for a breach of s 14 thereof the court
concluded:-
‘
The legislature clearly
characterized the conduct set out in Section 15 of the new Act as a
criminal offence worthy of punishment
and it would fly in the face of
all common sense to conclude that the absence of a penal provision in
the Act, should be interpreted
as that no valid offence has been
created by the new Act’
.
[11]
In
Forlee’s
case the accused was charged with
contravening a statute which prohibited dealing in opium. The
prohibition was taken over from
an older act which provided a penalty
for the offence. However, the new act, which replaced the old one,
contained no sanction.
It would appear from the judgment (at 56) that
both statutes expressly stated that the selling of opium constituted
a criminal
offence. In delivering the judgment of the court Mason J
considered both Roman Dutch authorities and English law and stated
the
following:-
‘
If
this omission were intentional, then the legislature considered
either that the common law provided a penalty, or that no penalty
should be imposed at all. The latter conclusion is negatived by the
whole tenour of those statutes…
But
the reasonable assumption is that the legislature, whilst intending
the prohibition to be absolute and effective, overlooked
the absence
of any express penalty. It was certainly not the intention of the
legislature merely to render null contracts of sale
of opium …
nor was the prohibition intended to be mere exhortation.’
(at
53 – 54)
‘
It
is clear that no law of this kind can be effective without a
penalty, and the argument that the courts must therefore be held
to
have the power to inflict a penalty, wherever the legislature has
intended to create an offence, is of considerable weight’
(at
54)
‘
Leyser
(Med.ad Pand, Book 10, page 280) deals with the specific case we
have before us in clear and I think convincing language
: in his
opinion where the act is definitely prohibited in a manner which
renders it clear that the legislature was not exhorting
or advising,
then it is punishable at the discretion of the Judge where the law
has not itself attached any penalty.’
(at
55)
‘
And
this principle is followed in England, namely that the doing of an
act which is expressly forbidden by the legislature upon
grounds of
public policy constitutes an indictable offence, even though no
penalty be attached, unless such a method of procedure
manifesting
appears to be excluded by other provisions of the statute
.
’
(at 55)
‘
We
have come to the conclusion that the same principle applies in Roman
Dutch Law, and that as the act in question was expressly
prohibited
in the public interest and with the evident intention of
constituting an offence, it is punishable under our law’
(at
56)
[12] In coming to the
conclusion that he did, Mason J relied,
inter alia
, on the
decisions in
R v Lloyd
1904 NLR 59
and
R v Mhlongo
1910
NLR 271.
In the former case the court dealt with a statute which
prohibited certain conduct without expressly creating an offence or
prescribing
a penalty. The court applied English law as laid down in
Hawkins
PC 2.25.4 to the effect that where the law prohibits
‘a matter of public grievance to the liberties and security of
a subject
or commands a matter of public convenience, an offender
against such statute is punishable… by way of indictment
…unless
such method of proceeding do manifestly appear to be
excluded by it.’ It is not clear from the judgment how the
provision
in question, which prohibited people from touting for or
engaging ‘Natives for any services to be performed outside this
Colony’ satisfied the requirements of the
Hawkins
case.
[13] The latter case
dealt with a statute which empowered a minister to prohibit dealing
in cattle except under certain circumstances
without stating that a
contravention of such a prohibition constituted an offence or
prescribing a penalty. Relying
inter alia
on
Lloyd’s
case, the court held that the act in question created an offence
and that it was punishable under the common law.
[14] The principle laid
out in
Forlee’s
case was supported in the Cape
Provincial Division in
R v Langley
1931 CPD 31
and
R v
Baraitser
1931 CPD 418.
However, the decision was sharply
criticized by
De Wet and Swanepoel, Strafreg
, 4
th
Ed at 46-7;
Rabie and Strauss, Punishment: An Introduction to
Principles
, 4
th
Ed at 79-80;
Snyman, Strafreg
,
3
rd
Ed at 43 and
JM Burchell, South African Criminal
Law and Procedure
Volume 1, 3
rd
Ed at 30.
[15]
Snyman’s
criticism is formulated as follows:-
‘
As
die wetgewer per abuis die strafnorm uitgelaat het, behoort die
wetgewer self sy fout reg te stel, en dit nie aan ‘n hof
oor te
laat om te spekuleer oor wat die wetgewer wou doen en dan self ‘n
strafnorm te skep nie. Die aangehaalde beginsel
is ook te wyd
geformuleer: ook gewone regsnorme kan by wyse van uitdruklike
verbiedinge geskep word, en gegrond wees ‘upon
grounds of
public policy’ maar dit omskêp sodanige regsnorme nie in
strafnorme nie’
.
[16]
Burchell
expresses his criticism in these words:-
‘
The
rule in
R
v Forlee
,
that where conduct is prohibited, but where no penalty provided the
court can conclude that a crime has been created by implication,
has
rightly been condemned as contravening the principle of legality
.
’
[17]
De Wet and
Swanepoel
are more forthright. The learned authors concede that
in a country where the criminal law has not been codified the
principle of
nullum crimen sine lege
cannot mean that in no
circumstances can conduct be regarded as criminal unless a statute
prescribes a penalty for it. However
they go on to state that the
principle requires that no further crimes can be created by custom
and that a legislature which wishes
to create a crime must prescribe
the penalty in express terms (at 45). The authors base this viewpoint
on certain Roman Dutch authorities
which they contend were more
enlightened than those relied on in
Forlee
, and on
dicta
in R v
Bornman
1912 TPD 66
at 69;
R v M
1915 CPD
334
at 340 and
R v Bethlehem Municipality
1941 OPD 227.
[18]
Interestingly, in the latest edition of his work, relied on in
Booi’s
case,
Snyman
is less critical of the
Forlee
judgment,
as is
Burchell
in the work cited in
Booi’s
case.
Snyman
states the following at 41 – 42:-
‘
If a statutory provision
creates a criminal norm only, but remains silent on the criminal
sanction … the punishment is simply
at the court’s
discretion, that is, the court itself can decide what punishment to
impose…
Although
there are some cases in which the courts have not adhered strictly to
the abovementioned principles, there are also some
other, more
recent, cases in which the courts, after studying the act as a whole,
correctly refused to accept that the legislature
intended to create a
crime by merely inserting a legal norm without a criminal norm. The
latter line of cases it to be preferred’
.
[19]
Burchell
echoes what is stated by
Milton and Cowling
in the passage
relied upon in the
Booi
case, namely, that the fact that the
legislature does not specify what the punishment is for an offence is
not regarded as a serious
flaw in the legislation because it is
presumed in such a case that the determination of the appropriate
sentence has been left
to the courts.
[20] Significantly,
Forlee’s
case was criticized by Ackermann J in a
judgment concurred in by Farlam J (as he then was) in
S v Francis
1994 (1) SACR 350
(C) at 355, where he commented as follows on the
criticism of
Snyman
cited above:-
‘
Daar
is, na my mening,
heelwat
regverdiging vir sodanige kritiek. Ek ag dit egter onnodig om dit,
vir doeleindes van hierdie uitspraak, verder te neem
want, selfs op
die aanvaarding dat die beginsels soos in
R
v Forlee
neergelê
nog die beginsels in hierdie afdeling is, is hulle nie op die feite
van die huidige saak van toepassing nie.’
The
learned Judge then went on to find that in that case the legislature
did not intend to create a criminal offence. The enactment
in
question contained a prohibition, but did not expressly provide that
a contravention thereof constituted an offence or prescribe
a
penalty.
[21] As can be seen,
there are similarities between
Forlee’s
case and the
present one. In both cases the legislature expressly provided that
the conduct in question constituted an offence
and in neither case
was a penalty laid down. Furthermore, in both cases the later statute
repealed and replaced sections of the
earlier statute which created
criminal offences and prescribed sanctions for those offences.
However, there is a clear difference
between the two cases. It is
that whereas in
Forlee’s
case the later statute only
replaced an earlier statute, in the present case the 2007 Act (in s
68) replaced not only an earlier
statute but also common law crimes.
[22] It is clear from the
2007 Act that firstly, the legislature intended to criminalize
contraventions of section 5(1) of that
act, because the sub-section
expressly creates an offence. The same applies to many other sections
in the Act. For example, section
3 which deals with rape, section 4
which deals with compelled rape, section 12 dealing with incest,
section 13 dealing with bestiality
and section 14 dealing with sexual
acts with corpses. These all form part of Chapter 2 which is headed
“Sexual Offences”.
Similar provisions are to be found in
Chapter 3 dealing with sexual offences against children and Chapter 4
which deals with sexual
offences against persons who are mentally
disabled.
[23] Secondly, a
consideration of the 2007 Act as a whole leads to the inescapable
conclusion that the legislature intended that
the offences created by
it should be punishable by the courts. Section 68 of the Act repeals
the common law crimes of rape, indecent
assault, incest, bestiality
and violation of a corpse. These offences, particularly rape, have
always been regarded as very serious
offences and have always been
dealt with accordingly. It is inconceivable that the legislature
contemplated that their statutory
replacements would not carry with
them criminal sanctions. Furthermore, as pointed out above, section
56 (7) of the Act assumes
that offenders will be sentenced. Section
50 deals with what must be contained in the National Register for Sex
Offenders established
under section 42 (1). It refers in numerous
places to sentences for sexual offences in terms of the Act and even
sentences of imprisonment
for sexual offences.
24] A further indication
of the legislature’s intention that persons guilty of
contravening the Act should be sentenced is
to be found in section
55. That section provides,
inter alia
, that any attempt,
conspiracy and incitement to commit a sexual offence constitutes an
offence and that the offender may be liable
on conviction to the
punishment to which a person convicted of actually committing that
offence would be liable.
[25] Furthermore, I am of
the view that a law such as the 2007 Act, dealing as it does with
extremely serious offences, cannot be
effective without penalties.
[26] It is possible that
in relation to the offences which replaced the old common law
offences referred to in section 68, the legislature
intended that the
common law relating to sentencing should still apply. This is because
under the common law no maximum sentences
for the offences were
prescribed and instead, the courts, over the years, determined
appropriate sentences on the facts of each
case. I say this despite
the fact that the replacement offences are not identical to the old
common law offences. At one stage
of course the law did provide that
the death penalty could be imposed for rape and the minimum sentence
provisions of Act 105 of
1997 applied to common law rape. I should
mention in passing that the 2007 Act amended Act 105 of 1997 to bring
its provisions
relating to sexual offences in line with the 2007 Act.
[27] On the other hand,
it appears to me that the failure to provide criminal sanctions for
the offences which replaced those created
by the 1957 Act and all but
one of the new offences created, was an oversight on the
legislature’s part. There seems to be
no other explanation for
the fact that a penalty is prescribed for one offence and not the
rest. This failure to deal with sentence
in express terms is an
unfortunate oversight, leads to uncertainty and should therefore be
remedied by the legislature.
[28] However, whether or
not the failure to provide sanctions was intentional or accidental,
on the authority of
Forlee’s
case, the courts would be
entitled to impose sentences within their prescribed limits.
[29]
It remains to be decided whether the principle of legality stands in
the way of the implementation of the principles laid down
in
Forlee’s
case. In this regard, it is important to bear in mind that
Forlee’s
case and the ones which preceded and succeeded it, were decided
before the advent of the constitutional era in this country. Section
35 of the Constitution entrenches the rights of arrested, detained
and accused persons. Section 35 (3) provides that every accused
person has the right to a fair trial and that this includes the
rights listed in paragraphs (a) to (o). It is important to bear
in
mind that Section 35 is not exhaustive of all the component parts of
the right to a fair trial. The right entrenched in paragraph
(l) is
the right not to be convicted for an act or omission that was not an
offence under either national or international law
at the time it was
committed or omitted, which, as will be seen, is a component of the
principle of legality.
[30] Snyman, (op cit at
37) states the following in connection with the principle of
legality:-
‘
In
its broadest sense, the principle of legality can be described as a
mechanism to ensure that the State, its organs and its officials
do
not consider themselves to be above the law in the exercise of their
functions but remain subject to it. In the field of criminal
law the
principle fulfills the important task of preventing the arbitrary
punishment of people by State officials, and of ensuring
that the
determination of criminal liability and the passing of sentence
correspond with clear and existing rules of law. The principle
of
legality in criminal law is also known as the
nullum
crimen sine lege
principle
(no crime without a law)’.
The learned author goes
on to state that an accused may not be found guilty of a crime and
sentenced unless the type of conduct
with which he or she is
charged:-
(a) Has been recognised
by the law as a crime;
(b) In clear terms;
(c) Before the conduct
took place;
(d) Without the court
having to stretch the meaning of the words and concepts in the
definition to bring the particular conduct
of the accused within the
compass of the definition; and
(e) After conviction the imposition of punishment also complies with
the four principles set out above.
[31]
In relation to sentence, he goes on to state that the applicable
sentence (regarding both its form and extent) must already
have been
determined in reasonably clear terms by the law at the time of the
commission of the crime, that a court must interpret
the words
defining the punishment narrowly rather than widely, and that a court
is not free to impose any sentence other than the
one legally
authorized (the
nulla poena sine lege
principle). One of the
most important rules embodied in the principle of legality is the
ius
acceptum
rule, which in relation to statutory crimes, provides
that if parliament wishes to create a crime, an act purporting to
create
such a crime will best comply with the principles of legality
if it expressly declares:-
(a)
That the particular type of conduct is a crime; and
(b) What the perimeters are of the punishment a court must impose if
it finds a person guilty of the commission of such a crime.
[32]
Apart from
De Wet and Swanepoel
, none of the authors I have
referred to is in favour of an outright rejection of the
Forlee
principles. They support them at least in respect of cases where the
only omission of the legislature is the failure to stipulate
a
sanction.
[33]
Although, in his judgment
in the
Francis
case Ackerman J was
critical of the
Forlee
judgment, he left the
matter open and decided the case without making a finding on
Forlee
.
The learned judge’s views were clearly
obiter
,
although of course due weight must be given to the views of so
eminent a judge. What is of further significance about the judgment
is that although Ackerman J stated that the
Forlee
principles were not
applicable to that case he did not simply find that because the
statute did not expressly create a criminal
offence, no offence was
in fact created. Instead he analized the legislation concerned to
determine whether the legislature intended
to create a crime and
found that it did not.
[34]
This approach is similar to the one followed in
R
v Zinn
1946
AD 346
at 355-6. Whilst the court referred to, amongst others,
Forlee’s
case, it did not decide
whether or not the principles laid down in it were correct. The court
decided not to lay down a specific
test for deciding whether an
enactment creates a criminal offence. Instead,
it
decided to apply the general rule of giving effect to the lawgiver’s
intention and then proceeded to determine whether
or not the
enactment in question, in the context of its surrounding
circumstances, created a criminal offence. The court held that
the
enactment, which did not expressly create an offence and prescribed
no penalty, did not create an offence.
[35] In the line of cases
referred to in the quotation from
Snyman
in paragraph [18]
above as having adopted a preferable approach, namely,
S v La
Grange
1991 (1) SACR 276
(C);
S v Theledi
1992 (1) SACR
336
(T) and
S v Van Rooyen
2002 (1) SACR 661
(T) (the fourth
case referred to is the
Francis
case), the decisions were
based on the facts of each case. The courts did not simply apply the
nulla crimen sine lege
and
nulla poena sine lege
rules
inflexibly. In each case it was found that the enactment in question
did not create an offence. Significantly none of the
cases involved
enactments which expressly created offences and merely omitted to
provide penalties. Similar situations obtained
in the cases of
R v
Bornman
and
R v Bethlehem Municipality
relied on by
De
Wet and Swanepoel
in the passage quoted above.
[36] Even in the
Forlee
case, although the court stated the principles widely, they were
applied to a statute which expressly created an offence. On the
other
hand, in the
Lloyd
and
Mhlongo
decisions, which
Forlee
followed, and the
Baraitser
and
Langley
decisions,
which followed
Forlee
, it was held that offences were created
where the statutes did not expressly do so.
[37] It can therefore be
seen that with few exceptions, our courts, whether they adopted the
Zinn
or
Forlee
approach, have not held that a statutory
crime can be created without the legislature expressly doing so. The
test which I consider
should be applied is that no offence is created
unless that intention appears clearly, that is, expressly, from the
legislation.
If that is the case any uncertainty about the existence
of an offence is removed. On this approach, courts should not find
that
an offence has been created where the enactment does not say so
expressly and provides no sanction. Courts will be entitled to make
such a finding where, as in the present case, an offence is expressly
created but no sanction is provided unless it is found that
the
legislature did not intend that the conduct in question should not be
visited with criminal sanction. However, it is difficult
to imagine
under what circumstances such a finding would be made. In my view
this approach does not conflict with the principle
of legality and
will not result in a breach of section 35(3) of the Constitution.
This is because the intention of the legislature
to create a
punishable offence is clear. The fact that the sanction is not
expressed will lead to uncertainty, but no more so than
in the case
of common law offences, and I am unaware of any suggestion that this
uncertainty results in an unfair trial.
[38] Turning to the facts
of the present case, as far as the offences such as rape and sexual
assault, which replaced their common
law predecessors, are concerned,
I am of the view that there is no less certainty about sanction than
was the case prior to the
enactment of the 2007 Act. This is because
of the body of case law that has built up over the years on sentences
for the common
law offences. Considering all the factors I have
mentioned, I am therefore of the view that in respect of those
offences, the principle
of legality would not be violated were it to
be held that those offences are punishable in the discretion of the
court, subject
to any limits to the court’s sentencing
jurisdiction. Although it is not necessary for me to decide this
issue, I am of the
view, as was held in
Booi’s
case,
that in respect of the other offences created by the 2007 Act, the
principle of legality would also not be violated were
those to be
criminally punishable, notwithstanding the fact that there would be
greater uncertainty, at least initially, on sentence.
As I have
already stated, I am of the view that this matter ought to receive
the urgent attention of the legislature.
[39] In conclusion
therefore, I find that notwithstanding the fact that the legislature
did not provide a sanction for contraventions
of sections 3 and 5 (1)
of Act 32 of 2007, any person who contravenes that sub-section is
guilty of an offence and is liable to
be punished in accordance with
the jurisdiction of the court which convicts that person.
[39] The court is
therefore satisfied that the accused is guilty of all the of offences
to which he has pleaded guilty, on the basis
set out in his
statement, and accordingly finds the accused guilty of robbery on
count 1 and as charged on counts 2 to 8 inclusive.
RALL, AJ
Date of Hearing: 14
September 2011
Date of Judgment: 16
September 2011
Appearances
For the State: M V
Mcanyana
For the Accused: Z
Anastasiou
Mchunu
TN, judgment 15.9.11