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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A20/2023
(1) R EPOR TABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE: 28 Feb 2025
SIGNATURE
In the matter between:
Z[...] N[...] S[...] Appellant
and
THE STATE Respondent
Delivered: This judgment was prepared and authored by the Judge whose name
is reflected and is handed down electronically by circulation to the parties/their
legal representatives by e -mail and by uploading it to the electronic file of this
matter on Caselines. The date and for hand -down is deemed to be 28 February
2025.
JUDGMENT
Gcawu -Dambuza AJ (Mfenyana J concurring)
Introduction
[1] Although the present appeal was against both the conviction and sentence
imposed by the learned Regional Court Magistrate for the Regional Division of
Gauteng held at Springs, Ms P Lazarus, during the hearing of the appeal it
emerged that the appellant had abandoned his appeal against conviction. I am
satisfied that such concession was correct. I am satisfied that the court a quo
correctly convicted the appellant on his plea.
[2] The appellant pleaded guilty to the crime of rape in contravention of section
3 of Sexual Offences and Related Matters Act of 2007 as amended. State
alleged the provisions of section 51 Schedule 2 of Criminal Law Amendment Act
105 of 1997. In terms of section 112(2) statement, the appellant admitted all the
elements of the offence.
[3] The powers of the court of appeal in relation to sentencing are an
established principle. The Constitutional Court stated the position as follows in
Bogaards v S1:
"[41] Ordinarily, sentencing is within the discretion of the trial court. An
appellate court's power to interfere with sentences imposed by courts
below is circumscribed2. It can only do so where there has been an
irregularity that results in a failure of justice; the court below misdirected
itself to such an extent that its decision on sentence is vitiated; or the
sentence is so disproportionate or shocking that no reasonable court
could have imposed it. A court of appeal can also impose a different
sentence when it sets aside a conviction in relation to one charge and
convicts the accused of another."
[4] Accordingly in this judgment this Court shall direct its attention to the
sentence of life imprisonment as imposed by the trial Court.
1 CCT 120/11[2012] ZACC 23; 12 BCLR 1261 (CC); 2013 (1) SACR 1 (CC) para 41.
2 In this regard see also: S v Anderson 1964 (3) SA 494 (AD).
Pertinent background facts to the present appeal
[5] As stated above, the judgment will only deal with appeal against sentence.
It is however important that regard is had to the totality of the evidence. This is to
put in perspective whether or not interference by the sentencing court is
warranted.
[6] On or about 3 August 2014, the appellant was driving a company vehicle.
He stopped next to the Springs Hotel and offered the victim a lift to Secunda.
Instead of driving to Secunda, the appellant made a detour and ultimately stopped
at some place next to where mine workers stayed. He then asked whether the
victim had money and whether she could have sexual intercourse with him, to
which she replied in the negative. Thereafter, the appellant alighted from the
vehicle, opened the passenger door, grabbed the victim and dragged her into the
bush.
[7] In the bush, the appellant instructed the victim to undress. She complied,
whereafter, he had sexual intercourse with her without her consent. After the
sexual act, the appellant left the victim there and drove away. Ultimately, the
appellant was arrested and arraigned for a charge of rape. As already alluded to
above the accused pleaded guilty and was convicted on the strength of his plea.
[8] In considering the sentence to impose, the trial court took into consideration
the victim impact report and pre -sentence report. It considered both mitigating
and aggravating factors and imposed a sentence of life imprisonment, having
found that there were no substantial and compelling factors to deviate from the
prescribed minimum sentence.
[9] As a result of such sentence the appellant enjoyed an automatic right of
appeal as prescribed by section 309(1)(a) of the Criminal Procedure Act, 51 of
1977 (CPA)
Discussion
[10] The question for decision is whether the sentence of life imprisonment
was competent given the factual matrix. The charge stated that the accused is
guilty of the crime of rape in that accused did unlawfully and intentionally commit
an act of sexual penetration with the complainant with, who was 26 years old at
the time, by inserting his penis into her vagina and having sexual intercourse
without her consent. The charge sheet further recorded that section 51(1) and
Schedule 2 of Criminal Law Amendment Act is applicable if the accused is
convicted of the charge. The section prescribes a minimum sentence of life
imprisonment in the absence of substantial and compelling circumstances.
[11] In his amended notice of appeal, the appellant challenges the applicability
of section 51(1) of the Criminal Law Amendment Act 105 of 1997. The question
for determination is whether section 51(1) was applicable for purposes of
sentence. The trial court needed to be satisfied that the facts alleged or proven
trigger the applicability of life imprisonment as prescribed by the minimum
sentence legislation. In the circumstances of this case , the only factor considered
by the trial court as to trigger the applicability of section 51(1) is that the
complainant was HIV positive.
[12] When there was such reference to section 51(1) of the Act, it was
required of the State to establish the HIV status of the appellant. This is so
because that fact brings this category of rape under the purview of section
51(1).
[13] The Supreme Court of Appeal in S v Legoa (Legoa )3 accepted that where
the element specified in the schedule relates to the person and not the offence, it
is not required of the evidence of such to be led to secure a conviction on the
scheduled offence. On the strength of Legoa, the element that the appellant
knew that he has AIDS or HIV, was not required to be led before the conviction of
rape. However, the Court in Legoa endorsed the view of the Full Court in S v
Seleke (Seleke4)5 that in order to ensure fair trial it is desirable that the charge
3 2003(1) SACR 13 (SCA)
4 1976 (1} SA 675 (T}.
5
sheet should refer to the penalty provision.
[14] In R v Zonele others 1959(3) SA 319 (A) the court said it is only desirable
that the facts which the Crown intends to prove as constituting aggravating
circumstances should be set at the onset of the indictment. It was further held
when accused pleads guilty to the charges and it appears from the indictment that
the Crown intends to prove aggravating circumstances were present, the
presiding officer must be satisfied that accused intends to admit only that he is
guilty of the offence charged but also aggravating circumstances as alleged in
the charge -sheet were present. The words in my opinion convey the meaning
that the facts that must be present to make the minimum sentence applicable
must be established at conviction in the sense that they must be included in the
facts on which the conviction is based" It is clear that the accused must be
informed of the applicable mandatory sentencing regime by referencing it in the
charge -sheet. The court is also required to explain the mandatory provisions. The
timeous warning referred to in Seleke relates to the stage before sentencing as
opposed to before conviction. In considering the views expressed in Zonele, the
Court in Legoa confirmed that desirable does not mean essential6. The Court
pertinently concluded thus:
"[20] ... But under the constitutional dispensation it can certainly be no
less desirable than under the common law that the facts the State intends
to prove to increase sentencing jurisdiction under the Criminal Law
Amendment Act of 1997 should be clearly set out in the charge sheet.
[15] In conclusion this Court is of the firm view that it is not necessary to allege
the elements of the schedule in the charge sheet in order to secure a conviction for
offences contemplated in the schedules. As such, even where the elements
contemplated in the schedules are not independently alleged in the charge sheet
and proven, a conviction must follow if all the essential elements of the offence
charged with are present.
[16] To my mind, the facts set out in the schedule are only relevant to establish
6 See S v Moloi 1969 (4) SA 421 (A).
enhanced penalty jurisdiction. In other words, they are not essential elements of an
offence but the necessary jurisdictional requirements to impose the prescribed
sentence. In this regard the case stated the position as Legoa reached the following
binding conclusion: "[18] It is correct that, in specifying an enhanced penal
jurisdiction for particular forms of an existing offence, the legislature does not create a
new type of offence... The offences scheduled in the minimum sentencing legislation
are likewise not new offences. They are but specific forms of existing offences, and
when their commission is proved in the form specified in the Schedule, the sentencing court
acquires an enhanced penalty jurisdiction. It acquires that jurisdiction, however, only if the
evidence regarding all the elements of the form of the scheduled offence is led before
verdict on quilt or innocence . and the trial court finds that all the elements specified in the
Schedule are present'.
[17] In this particular matter, the state secured a conviction as set out in
section 3 of Sexual Offences and Related Matters Act as amended. However, the
state did not lead evidence that appellant knew that he had Aids or HIV. The
state also did not lead evidence that there was infliction of grievously bodily
harm by the appellant.
[18] Therefore, in order for the court to impose a sentence of life
imprisonment, the state must after conviction which is in the course of state
case lead evidence to prove the requirements of section 51(1) Part 1 of
schedule 2. In the absence of such jurisdictional facts the regional court lacked
the requisite authority to impose a sentence prescribed in terms of Section
51(1).
[19] This court takes a view that the learned Regional Court Magistrate erred
in imposing a sentence of life imprisonment. Nothing in the evidence justifies
the imposition of a sentence of life imprisonment as imposed by the Regional
Court. The Learned Regional Magistrate reached the following conclusion: "Life
imprisonment is the only sentence a person be legally obliged to serve". The
trial court was alive to the fact that life imprisonment is only sanctioned when
section 51 (1) applies. However short of being satisfied that the requirements
stated in Part 1 of Schedule 2 have been established, the trial court erroneously
took a view that only section 51(1) of Criminal Law Amendment Act (CLAA)
finds application rape. The trial court ignored section 51(2) of Criminal Law
Amendment Act which finds application to sentences referred to in part 1 of
schedule 2
[20] In its judgment the trial court dealt with the issue of AIDS and HIV as
well as involvement of grievously bodily harm in the following manner: -
[28] "She got infected with terminal illness because of your actions.
You knowingly infected her with HIV virus by selfishly choosing not to
use a condom. You inflicted injuries on her foot to such an extent she
could not put her safety boot. The victim sustained injuries on her most
intimate part as well as body, as she was dragged through the fields".
[21] The critical issue was whether the appellant was aware of his AIDS or
HIV status when he committed the rape. The accused pleaded guilty to the
charge as set out in the charge sheet, referenced to section 51(1) (a) of
Minimum Sentence Act. The appellant never admitted he was in the know that
he acquired HIV or AIDS. He did not admit specifically that he acquired the virus
at the time of rape. The admission by the accused or proof by the State would
have brought the offence under the purview of section 51(1) and would have
clothed the trial court with the jurisdiction to impose life imprisonment if no
compelling and substantial factors were found to exist.
[22] The issue of HIV or AIDS only emerged when the victim impact report
was submitted to court on the 13 July 2022. This was almost 7 years after the
rape incident had occurred. There was no evidence before the learned regional
court magistrate to suggest that the appellant was aware of his HIV/AIDS status
when he perpetrated the offence. He was not given an opportunity to deal with
such revelation after it came to attention of the court.
[23] It is important that before a court imposes life imprisonment it should satisfy
itself that all the jurisdictional facts have been established. This is required even
where an accused person has tendered a plea of guilty. See S vs Vilakazi 2012 (6)
SA 353 (SCA at paragraph 18 and 59. I am also not satisfied that the State proved
the infliction of grievous bodily harm. The medical report made reference to abrasions
and bruises. The injuries were as result of being dragged.
[24] In the light of aforegoing this court is satisfied that the regional court did not
have jurisdiction to impose life imprisonment in terms of section 51(1) and that the
court should instead have acted in terms of section 51(2). The regional court
magistrate was in the circumstances required to impose a minimum sentence of 10
years. Section 51(2) further provides that a regional court may impose sentence in
terms of subsection (2) shall not exceed the minimum term of imprisonment in term
of subsection 2 by mo re than five years. Thus, the court a quo was limited to
imposing a maximum sentence of 15 years.
[25] I am satisfied that the trial court misdirected itself when considering
sentence. The appellant was not convicted of an offence contemplated in section
51(1). This court is therefore entitled to interfere with sentence and alter it
accordingly. This court must also be satisfied that substantial and compelling
reasons which justify a lesser sentence do not exist. Having perused the record, I
agree with trial court that there are no exceptional and compelling circumstances to
deviate from the prescribed minimum sentence.
[26] In the result a sentence of 15 (fifteen years effective imprisonment is an
appropriate sentence to impose. In accordance with section 282 of Criminal
Procedure Act, the 15 years imprisonment is antedated to 18 November 2022.
Order
1. The appeal against sentence is upheld .
2. The sentence imposed by the court a quo is replaced with the following:
"The accused is sentenced to 15 years imprisonment."
3. The sentence of 15 years imprisonment is antedated to 18 November 2022.
N GCAWU -DAMBUZA
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
S MFENYANA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
(I agree and it is so ordered)
APPEARANCES:
For the Appellant:
For the State:
Date of the
hearing:
Date of
Judgment: M Botha instructed by Legal Aid SA-
Benoni
A Coetzee instructed by the DPP,
Pretoria
22 January 2025
28 February 2025