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[2024] ZAKZPHC 106
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Ngubane v S (AR70/2023) [2024] ZAKZPHC 106 (7 June 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR70/2023
In
the matter between:
MUSAWENKOSI
NGUBANE
APPELLANT
and
THE
STATE
RESPONDENT
ORDER
On
appeal from:
KwaZulu-Natal Division of the High Court,
Pietermaritzburg (formally the Natal Provincial Division) (Van Der
Reyden J, with assessors,
presiding):
1.
The appeal against sentence is upheld.
2.
The sentence imposed by the high court is set aside and replaced with
the following
sentence:
‘
The accused is
sentenced to 25 years’ imprisonment.’
3.
Such sentence is ante-dated to 7 September 2000.
JUDGMENT
Delivered
on 7 June 2024
Henriques
ADJP (Pillay AJ and Beket AJ concurring):
Introduction
[1]
This is an appeal against the sentence of life imprisonment imposed
by the high court
in terms of the provisions of s 52(1)
(b)
of
the Criminal Law Amendment Act 105 of 1997 (‘the CLAA’),
prior to its amendment.
The
grounds of appeal
[2]
The appellant advances three main grounds of appeal. In respect of
the first ground
of appeal, the appellant submits that there was no
indication from the record of the proceedings that the applicability
of the
prescribed minimum sentence was explained to him prior to
pleading to the charge nor is it apparent from the charge sheet
itself.
He ought to have been advised of the prescribed minimum
sentence that he was facing, and in addition, in the absence of a
reference
to the CLAA in the charge sheet, the regional court erred
in remitting the matter to the high court in terms of s 52(1)
(b)
for sentencing purposes as the regional court ought to have imposed
sentence.
[3]
Secondly, it is further submitted that the high court erred in
confirming the conviction
in the absence of a reference in the charge
sheet to the CLAA and that the high court ought not to have imposed
the prescribed
minimum sentence of life imprisonment as there was no
reference in the charge sheet to the fact that it was applicable.
[4]
Thirdly, the high court erred in not finding substantial and
compelling circumstances
to exist which warranted a deviation from
the prescribed minimum sentence, having regard to the triad of
Zinn
,
[1]
specifically the fact that the appellant was a first offender,
pleaded guilty, and was 19 years old at the time of sentence.
Background
facts
[5]
The appellant was charged in the Regional Division of Stanger for
having wrongful
and unlawful sexual intercourse with Ms D[…]
M[…], a female aged six years old, without her consent and
against her
will. It is common cause that the charge sheet did not
make reference to the provisions of the CLAA.
[6]
The appellant, who was legally represented at the time, pleaded
guilty, which plea
was accepted by the respondent. However, the
presiding regional magistrate required the respondent to lead
evidence in relation
to the age of the complainant, the medical
evidence relating to the J88 form, and the injuries sustained, which
were consistent
with those of rape.
[7]
On 12 December 1999, the appellant was convicted pursuant to his
written plea explanation,
which also did not make reference to the
provisions of the CLAA. This occurred after the regional court had
heard evidence to establish
the age of the minor child, as well as
the evidence of the district surgeon in relation to the examination
of the minor child.
What is noteworthy in relation to the evidence of
the medical practitioner who conducted the physical and
gynaecological examination
of the complainant was that she had
indicated that she had twice been sexually abused before, although it
had not been reported
to the police.
[8]
The regional magistrate was required in terms of section 52(1)(b) of
the CLAA to remit
the matter for sentencing to the high court, as the
offence of which the appellant had been convicted of merited
punishment in
excess of the jurisdiction of the regional court, as
the appellant had raped a child under the age of 16. As a
consequence, the
matter was then remitted to the high court for
sentencing purposes.
[9]
On 7 September 2000, the sentencing proceedings served before Van Der
Reyden J and
two assessors. After hearing submissions from the legal
representatives, the high court was of the opinion that it was bound
by
the provisions of sections 51 and 52 of the CLAA to sentence the
appellant to imprisonment for life, unless it could find substantial
and compelling circumstances to impose a lesser sentence. The high
court emphasised the aggravating features of the offence, namely
that
the appellant, who was 19 years old at the time of the commission of
the offence, raped a minor child who was seven years
old at the time.
The high court was of the view that substantial and compelling
circumstances did not exist, despite the submissions
of the
appellant’s legal representative at the time of his youthful
age, that he was a first offender, that he had showed
remorse by
pleading guilty, and that he was a good candidate for rehabilitation.
The high court was of the view that these were
factors which
‘
are present in
most of the young first offenders, and if the totality of those facts
were to amount to substantial and compelling
circumstances, it would
have meant that the aim of the Legislature would not be achieved.’
[10]
The high court opined that ‘there must be present very special
circumstances before they
constitute substantial and compelling
circumstances’ and held that it was left with no discretion but
to impose imprisonment
for life.
Merits
of the appeal
[11]
Turning now to the first issue on appeal, it is evident that the
charge sheet is silent on the
applicability of the CLAA and did not
make reference to it. Although the appellant was legally represented
at the time, it would
appear that the parties were cognisant of the
fact that the age of the complainant had to be established, as this
was a relevant
factor in sentencing the appellant and remitting the
matter for sentencing to the high court. This is evident from the
record of
proceedings, as the presiding magistrate makes reference to
the following:
‘
However I’ll
still need the doctor to come and testify.… (indistinct) These
matters which involve children and the
sentences that should be dealt
by the high Court’.
[12]
It is for these reasons that the medical professionals were called to
testify to establish the
age of the complainant, as well as the
nature of the injuries, and the discrepancy with the age as reflected
on the two J88s completed.
[13]
There have been a plethora of decisions in relation to the effect of
the failure to explain the
applicability of the CLAA to both a
represented and an unrepresented accused. In
S
v Mseleku
,
[2]
the court held as follows:
‘
Where no mention
is made, notwithstanding its factual framework, the provisions should
be brought to the attention of the accused
by the court whether the
accused is represented or not. Where mention of the Act is made in
the indictment, and the accused is
unrepresented, the court must
pertinently draw the accused’s attention to its provisions.’
[14]
In
S v
Ndlovu
[3]
the following was held:
‘
The enquiry,
therefore, is whether, on a vigilant examination of the relevant
circumstances, it can be said that an accused had
had a fair trial.
And I think it is implicit in these observations that where the State
intends to rely upon the sentencing regime
created by the Act a fair
trial will generally demand that its intention pertinently be brought
to the attention of the accused
at the outset of the trial, if not in
the charge-sheet then in some other form, so that the accused is
placed in a position to
appreciate properly in good time the charge
that he faces as well as its possible consequences. Whether, or in
what circumstances,
it might suffice if it is brought to the
attention of the accused only during the course of the trial is not
necessary to decide
in the present case. It is sufficient to say that
what will at least be required is that the accused be given
sufficient notice
of the State's intention to enable him to conduct
his defence properly.’
[15]
I acknowledge that these decisions were ex post facto the date on
which these proceedings commenced
and were finalised. However, s 35
of the Constitution guarantees the right to a fair trial, and the
question to be answered in
the circumstances is whether the accused
had a fair trial as a consequence of the failure to be pertinently
apprised of the provisions
of the CLAA.
[16]
The Constitutional Court in
S
v MT
[4]
has held that such failure will not automatically render a trial
unfair. Paragraphs 39 and 40 are incisive in this regard, and
provide
as follows:
‘
[39] This
precedent has not created a hard-and-fast rule that each case where
an accused has not been explicitly informed of the
applicability of
the Minimum Sentences Act will automatically render a trial unfair.
However, a practice has developed to include
the relevant section of
the Minimum Sentences Act in the charge-sheet because of this
precedent.
[40] It is indeed
desirable that the charge-sheet refer 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 s 35(3) right to a fair trial was not in fact infringed.’
[17]
The principle which emanates from all the decided cases is the
following: the ultimate consideration
is whether such omission, in
the circumstances of the case, rendered the trial unfair.
[18]
In my view, although the express provisions of the CLAA were not
specifically explained to the
appellant, he had a fair trial given
the circumstances, as during the course of the proceedings both his
representative and the
presiding officer were alive to the provisions
of the CLAA, specifically the fact that the matter would have to be
remitted to
the high court for sentencing purposes. There is an
additional reference in the transcript to this. This is evident at
paragraph
22 of the transcript, where the regional court specifically
references the fact that the possible sentence to impose exceeded the
sentencing jurisdiction of the regional court and consequently, the
matter had to be remitted to the high court for sentencing,
given
that the rape was committed in respect of a child under the age of
16.
[19]
There is thus no merit in the first ground of appeal and consequently
there is also no merit
in the argument that the regional court erred
in referring the matter to the high court for sentencing.
[20]
Although the imposition of sentence falls pre-eminently within the
discretion of the sentencing
court, a court on appeal can interfere
with it in circumstances where the proceedings are vitiated by an
irregularity, where there
is a misdirection, and in circumstances
where the sentence imposed was disturbingly, and startlingly
inappropriate.
[5]
[21]
In my view, the basis upon which the appeal ought to succeed relates
to the misdirection committed
by the high court, firstly in finding
that it had no discretion but to impose the prescribed minimum
sentence and that the facts
justified the imposition thereof and
secondly, its failure to find that substantial and compelling
circumstances exist; alternatively,
in failing to find, given the
circumstances of this particular case, that the imposition of the
prescribed minimum sentence would
be disproportionate having regard
to the triad of
Zinn
.
[22]
As a consequence of these misdirections this court is entitled to
impose sentence afresh.
[23]
It is well accepted that there is no definition as to what
constitutes substantial and compelling
circumstances, but the
existence thereof would depend on the particular circumstances and
facts of a case. The facts in this particular
matter are that the
appellant pleaded guilty, was a first offender, and was 19 years old
at the time. The aggravating factors were
that the complainant was
seven years old at the time of the rape, that he was known to her and
her cousin, and that he had placed
himself in a position of trust at
the time of the rape. He took advantage of her fear of walking home
alone at night and seized
the opportunity to rape her.
[24]
During the hearing of the appeal, Ms Fareed, who appeared for the
appellant, submitted that,
given the facts of the matter, an
appropriate sentence would be one of 15 years’ imprisonment. Mr
Buthelezi, who had appeared
for the respondent, on the other hand,
submitted that the appellant’s age, the fact that he was a
first offender, and that
he had pleaded guilty, paled into
significance when one considered that the complainant was seven years
old at the time and was
injured as a consequence of the rape. It was
submitted that a sentence of life imprisonment was appropriate.
Conclusion
[25]
I do not agree with the submissions of Ms Fareed in relation to the
period of imprisonment suggested.
They lose sight of the aggravating
factors in the matter. Mr Buthelezi’s submissions, too, lose
sight of the personal circumstances
of the appellant, and the fact
that the injuries to the complainant’s face were caused by a
hiding she had received from
her grandmother.
[26]
While I acknowledge that the rape of a minor is a most heinous crime,
and that perpetrators of
such offence must be suitably punished, any
sentence imposed must be tempered with mercy and is dependent on the
facts of a particular
matter. Life imprisonment is the ultimate
sentence which an accused must serve. On the facts of this matter,
such sentence would
not be proportionate having regard to the triad
of
Zinn
. I am of the view that a term of imprisonment of 25
years is appropriate given the particular facts of the matter.
Order
[27]
In the result the following order will issue:
1
The appeal against sentence is upheld.
2.
The sentence imposed by the high court is set aside and replaced with
the following
sentence:
‘
The accused is
sentenced to 25 years’ imprisonment.’
3.
Such sentence is ante-dated to 7 September 2000.
HENRIQUES
ADJP
CASE
INFORMATION
Date
of Hearing: 10 May 2024
Date
of Judgment: 07 June 2024
For
Appellant:
Ms Z Fareed
Legal Aid
The Marine Building
22 Dorothy Nyembe Street
Durban
Email:
ZeeraBeeF@legal-aid.co.za
For
Respondent: Mr T W Buthelezi
Instructed
by:
DPP
3rd Floor, Southern Life
Building
188 Field Street
Durban
Tel: 031 335 6600
Email:
twbuthelezi@npa.gov.za
[1]
S v
Zinn
1969 (2) SA 537 (A).
[2]
S v
Mseleku
2006 (2) SACR 574
(D) at 581d-e.
[3]
S v
Ndlovu
2003 (1) SACR 331
(SCA) para 12.
[4]
S v MT
[2018] ZACC 27; 2018 (2) SACR 592 (CC).
[5]
S v
Kgosimore
1999 (2) SACR 238
(SCA).