About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2024
>>
[2024] ZAKZPHC 101
|
|
Ngwane v S (AR375/2021) [2024] ZAKZPHC 101 (18 September 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO: AR375/2021
In the matter between:
NKOSINATHI
NGWANE
Appellant
and
THE
STATE
Respondent
ORDER
On appeal from
:
the KwaZulu-Natal Local Division, Mtubatuba, Gyanda J and assessors
presiding:
1.
The appeal against sentence is dismissed;
2.
The sentence of the court
a quo
is confirmed.
JUDGMENT
Henriques J (Bedderson
J and Jikela AJ concurring)
Introduction
[1]
This is an appeal against the sentence of life
imprisonment imposed by Gyanda J on 14 August 2007.
[2]
The appellant in this matter was convicted on
one count of rape in a regional court on 23 February 2007 of a minor.
The regional
magistrate found that the rape was an offence referred
to in section 51 of Schedule 1 of the Criminal Law Amendment Act 105
of
1997 (the Act), the prescribed minimum sentence for which was life
imprisonment. At the time the regional court did not have
jurisdiction
to impose such a sentence and was required in terms of s
52(1)
(b)
of the Act to stop the proceedings and commit the appellant for
sentencing to the high court.
[3]
This was done and on 14 August 2007 the matter
served before Gyanda J presiding with two assessors in Mtubatuba. He
was of the view
that the conviction was in accordance with justice
and confirmed the conviction of the appellant for rape. After
considering the
submissions of the respondent and appellant’s
representatives, the court
a quo
imposed a sentence of life imprisonment having found no substantial
and compelling circumstances to exist warranting a deviation
from the
prescribed minimum sentence.
[4]
In
the judgment on sentence, the court
a
quo
had
regard to the triad of
Zinn
[1]
and that it was obliged to enquire whether there were substantial and
compelling circumstances justifying the imposition of a sentence
other than the prescribed minimum sentence.
[2]
[5]
The court
a quo
had regard to the submissions of the appellant’s counsel that
the cumulative effect of his personal circumstances amounted
to
substantial and compelling circumstances justifying the imposition of
a sentence other than life imprisonment. These were that
the
appellant was 31 years old at the time of the imposition of sentence,
had passed standard 7, was a first offender, was gainfully
employed
at the time of his arrest, had two children and was in custody for a
year and eight months. The court
a
quo
was urged to consider the fact
that no weapon was used in the commission of the offence and the
injuries sustained by the complainant
were those associated with the
act of sexual intercourse.
[6]
However, in deciding to impose the prescribed
minimum sentence, the court
a quo
had
regard to the fact that the appellant was an uncle and father figure
to the complainant and had breached such trust. In addition,
the
court
a quo
was
of the view that given the nature of the injuries the appellant was
not someone capable of being rehabilitated. The appellant
did not
take the court into his confidence and made false allegations against
his family as to why they would falsely accuse him
in the commission
of the offence. It additionally concluded that the aggravating
features of the case far outweighed the mitigating
circumstances and
consequently imposed a sentence of life imprisonment.
[7]
The appellant sought leave to appeal the
sentence imposed based on the fact that the sentencing court had
erred in finding that
the complainant was below the age of 16 years
at the date of the commission of the offence and that the respondent
had discharged
the onus in the regional court of proving her age. It
was submitted on the appellant’s behalf that the court
a
quo
had failed to consider that the
complaint was above the age of 14 and had a previous sexual
experience.
[8]
On 7 September 2012, the appellant was granted
leave to appeal the sentence imposed on this ground alone as the
court
a quo
was of the view that another court may come to a different
conclusion, namely that the respondent had not discharged the onus of
proving that the complainant was under the age of 16 years at the
time of the offence and that her date of birth had not been proved.
Consequently, the provisions of the Act would not have applied. It is
this appeal which serves before us.
[9]
The main bases for seeking this court’s
intervention in setting aside the sentence of the court
a
quo
advanced by Mr Pillay, who
appeared for the appellant, were two fold. First, he submitted that
the provisions of the Act had not
been explained to the appellant at
the commencement of the trial and that he was not aware that he was
facing a term of life imprisonment.
He submitted that in convicting
the appellant the regional court found him ‘GUILTY AS
CHARGED’.
[10]
He relied on the regional court magistrate’s
judgment, which made reference to the fact that the appellant was
charged with
‘. . . rape read with section 51, Part II of
Schedule
1, Act 105
of 1997.’ He submitted that the appellant
was not charged under the provisions of s 51, Part I, which attracted
a minimum
sentence of life imprisonment and that there did not exist
a Part II of Schedule 1 in the Act.
[11]
He submitted that at no stage during the
proceedings in the regional court did the respondent make any
application for the amendment
of the charge sheet to reflect that the
offence fell under the provisions of s 51 of Part I of Schedule 2.
[12]
Secondly, he submitted that the appellant did
not have a fair trial warranting interference with the sentence
imposed, as the onus
rested on the respondent in terms of s 51(7) of
the Act to prove the age of the complainant beyond a reasonable doubt
in particular,
that the complainant was a minor under the age of 16
years. He submits that the respondent had failed to prove beyond
reasonable
doubt that the complainant was a minor under the age of
16, which would normally attract a minimum sentence of life
imprisonment
if convicted.
[13]
In this regard he submitted that the evidence
presented by the respondent was unreliable in relation to the age of
the complainant.
The evidence of Ms Z[...] M[...] M[...], the
stepmother of the complainant, was not sufficient to discharge the
onus as she testified
that she was not present when the complainant
was born and applied for an identity document for the complainant on
13 January 2006.
At the time she applied for the identity document
the complainant did not have a birth certificate or a clinic card
indicating
what her age was.
[14]
Lastly, he submitted that the court
a
quo
did give proper consideration to
the issue of rehabilitation and the fact that the appellant was a
first offender when imposing
the prescribed minimum sentence.
[15]
Turning
now to the first ground of appeal, Mr Pillay submitted that because
the appellant was not adequately informed that if convicted
of rape
he was facing a minimum prescribed sentence of life imprisonment,
this failure constitutes a substantial and compelling
circumstance
warranting a deviation from imposing the prescribed minimum sentence.
He relied on the decision of Mpati JA in
S
v Ndlovu
[3]
where the court held the following:
‘
By
invoking the provisions of the Act without it having been brought
pertinently to the appellant's attention that this would be
done
rendered the trial in that respect substantially unfair. That, in my
view, constituted a substantial and compelling reason
why the
prescribed sentence ought not to have been imposed.’
[16]
In my view, the question that needs to be
considered is whether the appellant received a fair trial in the
context of the applicability
of the prescribed minimum sentence for
an offence referred to in Part I of Schedule 2 of the Act. At the
outset it must be mentioned
that the appellant was legally
represented in the court
a quo
.
The annexure to the charge sheet read as follows:
‘
The
accused is guilty of the crime of
RAPE
, read with Section 51
Part II of Schedule
1 Act 105
of 1997.
In
that on or about 30 November 2005 and at or near Macekane Reserve in
the Regional Division of KwaZulu/Natal, the accused did
unlawfully
and intentionally have sexual intercourse with N[...] M[...]. 14 yrs
without her consent.
In
terms of the above legislation if the accused is convicted as charged
the sentence shall be as follows: life imprisonment
.
. .
Unless
the accused shows the existence of compelling and substantial
circumstances which warrant the imposition of a lesser sentence.’
[17]
The factual allegations in the annexure to the
charge sheet were that the appellant unlawfully and intentionally had
sexual intercourse
with the complainant, who was 14 years old at the
time, without her consent on 30 November 2005.
[18]
A transcript of the proceedings reflects that
the charge was put to the appellant and he confirmed that he
understood the charge
and pleaded not guilty. His legal
representative confirmed that his plea was in accordance with her
instructions and that he elected
to remain silent.
[19]
The relevant starting point in my view is the
principle that an accused should be informed of the charge that he is
facing before
he is asked to plead. The charge sheet alleged that the
appellant was guilty of the crime of rape in that he intentionally
and
unlawfully had sexual intercourse with the complainant, aged 14
years, without her consent. In addition, it also mentioned that
if
convicted, the sentence he was facing was that of life imprisonment
in the absence of substantial and compelling circumstances.
[20]
In
S
v Legoa
[4]
Cameron JA said that under the common law it was ‘desirable’
that the charge sheet should contain the facts the State
intended to
prove to bring the accused within an enhanced sentencing
jurisdiction. It was not essential. Having regard to a number
of
decisions in the Constitutional Court, he held that under the
constitutional dispensation it was no less desirable than under
the
common law that the facts the State intended to prove to increase the
sentencing jurisdiction under the Act should be clearly
set out in
the charge sheet.
[21]
Cameron
J, in his judgment, remarked further:
[5]
‘
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 may be 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.
’
(footnotes
omitted)
[22]
Cameron
JA held further that the question, which remained was ‘whether
or not the accused had a fair trial under the substantial
fairness
protections afforded by the Constitution.’
[6]
[23]
Referring
to Cameron JA’s judgment in
Legoa,
Mpati
JA in
Ndlovu
said
the following:
[7]
‘
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
.’
[24]
In
S
v Makatu
[8]
Lewis JA said:
‘
As
a general rule, where the State charges an accused with an offence
governed by s 51(1) of the Act, such as premeditated murder,
it
should state this in the indictment. This rule is clearly neither
absolute nor inflexible. However, an accused faced with life
imprisonment - the most serious sentence that can be imposed - must
from the outset know what the implications and consequences
of the
charge are. Such knowledge inevitably dictates decisions made by an
accused, such as whether to conduct his or her own defence;
whether
to apply for legal aid; whether to testify; what witnesses to call;
and any other factor that may affect his or her right
to a fair
trial. If during the course of a trial the State wishes to amend the
indictment it may apply to do so, subject to the
usual rules in
relation to prejudice
.’
(footnotes omitted)
[25]
In
Ndlovu
the accused was charged with rape read with the provisions of section
51(2) of the Act. The minimum sentence in terms of section
51(2) was
ten years imprisonment for a first offender. The magistrate convicted
him ‘as charged’ but sentenced him
to life imprisonment
in terms of section 51(1) on the basis that the rape involved serious
bodily harm. On appeal to the Constitutional
Court,
[9]
Khampepe J held that the appellant had been convicted of rape as
contemplated in section 51(2), in other words, an offence referred
to
in Part III of Schedule 2, the prescribed minimum sentence for which
was 10 years imprisonment.
[26]
She
criticised the failure by the magistrate and the prosecutor to ensure
that the appellant was prosecuted or convicted in terms
of the
correct provisions of the Act. She said
[10]
‘
Courts
are expressly empowered in terms of s 86 of the Criminal Procedure
Act to order that a charge be amended. Upon realising
that the charge
did not accurately reflect the evidence led, it was open to the Court
at any time
before judgment
to
invite the state to apply to amend the charge and to invite Mr Ndlovu
to make submissions on whether any prejudice would be occasioned
by
the amendment. This the Magistrate failed to do. It was only after
conviction, at sentencing, that she sought to invoke the
correct
provision
.’ (footnote
omitted)
[27]
In
S
v
MT
,
[11]
the Constitutional Court in dealing with prejudice to the accused
said that the question whether the applicants in that case (for
leave
to appeal) were prejudiced by not knowing that the Act might apply
was a factual enquiry. Dlodlo AJ said that the applicants
had failed
to prove prejudice. He added the following
‘
A
second overlapping issue is what the applicants may have done
differently had they known that the Minimum Sentences Act applied
to
their cases. Their counsel argued that if the applicants were
informed of the applicability of the relevant penal provision
of the
Minimum Sentences Act, they may have pleaded guilty or entered into a
plea bargain with the state. This suggestion militates
against the
applicants’ chosen defence. It is likely that they may
have been even less inclined to plead guilty knowing
that guilt
attracted a minimum sentence of life imprisonment.’ (footnote
omitted)
[28]
The
question of prejudice is determined by an objective fact-based
enquiry as was found by Van Der Merwe JA in
S
v
Khoza
.
[12]
[29]
Taking all the above into consideration, in my
view, an important factor to consider in this matter is the fact that
the appellant
was informed in the charge sheet right from the outset
that the respondent intended to seek the prescribed minimum sentence
of
life imprisonment. The factual basis for seeking such minimum
sentence was that the complainant was 14 years old, being under the
age of 16. He was legally represented and would have been in
possession of the complainant’s statement before the trial had
started. The complainant also testified at the commencement of the
trial that she was 15 years old.
[30]
Whilst I acknowledge that the charge sheet
incorrectly made reference to Part II of Schedule 1, instead of Part
I of Schedule 2
to the Act, I am not persuaded that the appellant
would have presented his case differently if the charge sheet had
correctly reflected
the correct part of the Act. At the outset it was
made clear that a sentence of life imprisonment would be sought if he
was convicted
as the complainant was 14 years old. I also align
myself with the decision of Van Der Merwe JA, which said that the
question of
prejudice is determined by an objective fact-based
enquiry.
[31]
In addition, I can find no indication of
prejudice to the appellant as a consequence of the incorrect
reference. I am also not persuaded
that in the circumstances, the
appellant's trial was unfair in any respects and therefore cannot
find this as constituting a basis
for a finding of substantial and
compelling circumstances to exist warranting a deviation from the
imposition of the prescribed
minimum sentence.
[32]
In addition, I agree with the submission of the
respondent that at the time of the sentence being imposed only high
courts could
impose a life sentence for the offence and the regional
courts could not do so. This is also evident from the transcript of
the
proceedings in the regional court as the magistrate stopped the
proceedings in terms of s 52(1)
(b)
and committed the appellant for sentence to the high court.
[33]
Turning
now to the second issue on appeal, namely that the Act requires the
age of the complainant to be proved beyond reasonable
doubt. The
reliance by Mr Pillay on s 51(7) in my view is misplaced.
Properly interpreted, the age of the accused is relevant
to determine
if the provisions of s 51 apply insofar as sentence is concerned and
to what extent.
[13]
[34]
On
a proper interpretation of s 51 these provisions apply to the
offender and not the complainant. Section 51(6), prior to its
amendment,
[14]
provided that
the Act did not apply to
‘
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.’
[35]
Section
51(7) of the Act, prior to its amendment, read as follows:
[15]
‘
If
in the application of this section the age of a child is placed in
issue, the onus shall be on the State to prove the age of
the child
beyond reasonable doubt.’
[36]
As the appellant was not a child offender there
was no onus on the respondent to prove his age.
[37]
Turning now to the question of whether the age
of the complainant was established beyond reasonable doubt in the
court
a quo
.
The following emerges from the transcript of the proceedings in the
regional court. During the trial the complainant at the commencement
thereof when the regional magistrate administered the competency test
confirmed her age to be fifteen. This evidence was not challenged.
[38]
Her
stepmother, Ms M[...], confirmed at the time of the incident (in
2005) the complainant was in standard 2 (grade 4) at school.
When
questioned by the court concerning proof of the age of the
complainant, Ms M[...] confirmed she had been issued with a birth
certificate for her by Home Affairs. She was requested to
return to court and when she did, she produced a B1 document relating
to an application by the complainant for an identity document, which
reflected the complainant’s date of birth as being 6
January
1991 and not a birth certificate. Although questioned about the
document it was entered as an exhibit of the proof of age
of the
complainant.
[16]
[39]
There was no challenge to the age or date of
birth of the complainant during the trial apart from questions by the
appellant’s
legal representative as to the existence of a birth
certificate or clinic card.
[40]
There was nothing placed on record by the
appellant during the course of the trial to challenge this evidence
nor were any questions
asked to indicate that there was anything in
the complainant’s physical appearance or demeanour which was
indicative that
she was older than 14. Given his relationship to the
complainant, the appellant would have been best placed to place her
age into
question. He did not, which in my view is a further
indication that he was aware she was below the age of 16 years.
[41]
Section 51(7) has now been amended to reflect
that the state bears the onus to prove the age of accused person if
placed in issue.
It reads as follows:
‘
If
in the application of this section the age of an accused person is
placed in issue, the onus shall be on the State to prove the
age of
that person beyond reasonable doubt.’
[42]
Prior
to the amendments, and reading s 51 of the Act as a whole, the
sub-section (7) would have referred to where the age of the
accused
is in question, as the age of the accused is one of the deciding
factors as to whether the sentencing regime within the
Act is
applicable or not. The age of the complainant relates to a completely
different enquiry.
[17]
[43]
In my view, the age of the complainant that she
was a minor was established in the court
a
quo
.
[44]
What then remains is for us to consider whether
there are any other substantial and compelling circumstances, which
existed warranting
a departure from the prescribed minimum sentence
or whether same was disproportionate to the triad of
Zinn
.
[45]
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.
[18]
[46]
In my view, the court
a quo
did not commit any misdirection in
imposing the prescribed minimum sentence. On the particular facts of
this matter, I can find
no basis warranting interference by this
court on appeal with the sentence imposed.
[47]
In the result the following orders will issue:
1.
The appeal against sentence is dismissed;
2.
The sentence of the court a quo is confirmed.
HENRIQUES
J
CASE
INFORMATION
Date
of Hearing:
26
April 2024
Date
of Judgment:
18
September 2024
For
Appellant:
Mr T
P Pillay
Legal
Aid
The
Marine Building
22
Dorothy Nyembe Street
Durban
Email:
ThiagrajP@legal-aid.co.za
For
Respondent:
Mr K
Singh
Instructed
by:
DPP
286
Pietermaritz Street
Pietermaritzburg
Tel:
033 845 4485
Email:
Kesingh@npa.gov.za
[1]
S
v Zinn
1969
(2) SA 537 (A).
[2]
S
v Malgas
[2001]
ZASCA 30
, 2001(1) SACR 469 (SCA).
[3]
S
v Ndlovu
[2002]
ZASCA 144
;
2003 (1) SACR 331
(SCA) para 14 (
Ndlovu
SCA
).
[4]
S
v Legoa
[2002]
ZASCA 122
;
2003 (1) SACR 13
(SCA) (
Legoa
).
[5]
Legoa
para
21.
[6]
Legoa
para
22.
[7]
Ndlovu
SCA
para
12,
Legoa
para 21.
[8]
S
v Makatu
2006
(2) SACR 582 (SCA)
[9]
S v
Ndlovu
[2017] ZACC 19
;
2017 (2) SACR 305
(CC);
2017 (10) BCLR 1286
(CC)
(
Ndlovu
CC
).
[10]
Ndlovu
CC
para
56.
[11]
S v MT
[2018] ZACC 27
;
2018 (2) SACR 592
(CC);
2018 (11) BCLR 1397
(CC)
[12]
S v
Khoza and another
[2018] ZASCA 133
;
2019 (1) SACR 251
(SCA) para 11.
[13]
S
v Lubavu
[2009]
JOL 23959
(Tk) paras 70-82, and
Ngcobo
and another v S
[2005] JOL 13915 (N).
[14]
Section 51(6) of the Criminal
Law
Amendment Act 105 of 1997 (the Act) was amended twice. The first
amendment was in terms of the
Criminal Law (Sentencing) Amendment
Act 38 of 2007
, with effect from 31 December 2007, which amended the
wording of the sub-section. The second amendment was in terms of the
Judicial
Matters Amendment Act 42 of 2013, with effect from 22
January 2014, which amended the age from 16 to 18. Section 51(6) now
reads:
‘
This
section does not apply in respect of an accused person who was under
the age of 18 years at the time of the commission of
an offence
contemplated in subsection (1) or (2).’
[15]
Section 51(7) of
Act
was amended in terms of the
Criminal Law (Sentencing) Amendment Act
38 of 2007
, with effect from 31 December 2007, where the phrased ‘a
child’ and ‘the child’ were replaced with ‘an
accused person’ and ‘that person’, respectively.
[16]
Ngada v
S
[2009] ZAECGHC 8 para 7
[17]
See the principles of interpretation as set out in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
,
2012 (4) SA 593
(SCA) para 18, and later applied to
statutory interpretation in
Johannesburg
City v Zibi and another
[2021]
ZASCA 97
;
2021 (6) SA 100
(SCA) para 25
[18]
S
v Kgosimore
1999
(2) SACR 238
(SCA);
Director
of Public Prosecutions, Gauteng Division, Pretoria v DMS and
another
[2023]
ZASCA 65
;
2023
(2) SACR 113
(SCA
).