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[2019] ZASCA 170
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Director of Public Prosecutions: Gauteng Division, Pretoria v Buthelezi (142/18) [2019] ZASCA 170; 2020 (2) SACR 113 (SCA) (29 November 2019)

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SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 142/18
In
the matter between:
THE DIRECTOR OF
PUBLIC PROSECUTIONS:
GAUTENG
DIVISION,
PRETORIA

APPELLANT
and
LUCKY ANTHONY
BUTHELEZI
RESPONDENT
Neutral
citation:
The Director of Public Prosecutions: Gauteng
Division, Pretoria v Buthelezi
(142/18)
[2019] ZASCA 170
(29
November 2019)
Coram:
Leach, Saldulker, Mokgohloa and Plasket JJA and Dolamo AJA
Heard:
1 November 2019
Delivered:
29 November 2019
Summary
:
Appeal in terms of
s 311(1)
of the
Criminal Procedure Act 51 of 1977
–
s 311(1)
provides for an appeal as of right, without leave –
the high court’s findings that
s 51(1)
of the
Criminal Law
Amendment Act 105 of 1997
is not applicable, that the regional court
did not have jurisdiction to impose a sentence of life imprisonment,
are questions of
law – appeal upheld - sentence imposed by the
regional court reinstated.
ORDER
On
appeal from:
Gauteng Division of the High Court, Pretoria (Hughes
J and Rangata AJ sitting as court of appeal):
1 The appeal is
upheld.
2 The order of the
high court is set aside and substituted with the following order:
‘
(a)
The appeal is dismissed.
(b)
The conviction and sentence of the trial court are confirmed.’
JUDGMENT
Mokgohloa
JA (Leach, Saldulker and Plasket JJA and Dolamo AJA concurring):
[1]
This is an appeal by the Director of Public Prosecutions, Pretoria
(the DPP). The appeal is brought in terms of s 311(1) of
the Criminal
Procedure Act 51 of 1977 (the CPA), arising from what the DPP submits
is a question of law in relation to sentence
decided in favour of the
respondent.
[2]
The respondent, Mr Lucky Anthony Buthelezi, was arraigned in the
Regional Court Vereeniging, Gauteng on a charge of raping a
13 year
old girl. He pleaded guilty and was convicted as charged and
sentenced to life imprisonment.
[3]
The facts upon which the conviction and sentence are based are as
follows. The complainant is the respondent’s aunt’s

child. On the evening of 28 March 2011, the complainant who was
thirteen years old at the time, was playing along the street in

Sharpville. The respondent asked her to accompany him to the local
Pick n Pay store. She agreed and they both walked to the store.
Along
the way, the respondent grabbed her and pushed her into the nearby
bush where he raped her. She suffered multiple genital
injuries
compatible with forceful penetration of the vagina.
[4]
Aggrieved by his sentence, the respondent, who had an automatic right
of appeal in terms of s 10 of the Judicial Matters Amendment
Act 42
of 2013, lodged an appeal against his sentence in the Gauteng
Division of the High Court, Pretoria. The high court (Hughes
J and
Rangata AJ) set aside the sentence of life imprisonment and
substituted it with the sentence of 15 years’ imprisonment.

They did so on the basis that the provisions of s 51(1) of the CLAA
were not applicable because the charge sheet referred to s
51 and
schedule 2 of the
Criminal Law (Sentencing) Amendment Act 38 of 2007
instead of Act 105 of 1997.
[5]
Dissatisfied with this outcome the DPP brought this appeal. As
already mentioned, the DPP appeals on the basis that questions
of law
were decided in favour of the respondent which formed the foundation
for the sentence imposed by the high court on appeal
to it.
[6]
Section 311 of the CPA provides:
‘
(1) Where the
provincial or local division on appeal, whether brought by the
attorney- general or the prosecutor or the person convicted,
gives a
decision in favour of the person convicted on a question of law, the
attorney-general or the prosecutor against whom the
decision is given
may appeal to the Appellate Division of the Supreme Court, which
shall, if it decides the matter in issue in
favour of the appellant,
set aside or vary the decision appealed from and, if the matter was
brought before the provincial or local
division in terms of-
(a)
section 309(1), re-instate the conviction, sentence or order of the
lower court appealed from, either in its original form or
in such a
modified form as the Appellate Division may consider desirable,’
[7]
Whilst conceding that the DPP has an automatic right of appeal to
this court in terms of s 311 of the CPA, counsel for the respondent

argued that the section creates unjust consequences, unfair procedure
and builds inequity before the law between the accused person
and the
DPP; that this creates an infringement of the accused’s right
to equal protection of the law as envisaged in s 9
of the
Constitution; and that to curb this inequality and create fairness
this court should interpret s 311 to mean that even if
the DPP has an
automatic right of appeal to this court, special leave has to be
sought in terms of
s 16(1)
of the
Superior Courts Act 10 of 2013
.
[8]
This
argument cannot be accepted. First, it merely echoes an argument
rejected by this court recently in
DPP,
Gauteng v Grobler
[1]
and
DPP,
Gauteng v Moabi
.
[2]
In both these cases, this court found that the right of the state to
appeal under
s 311
is expressly regulated by the CPA, that the
Superior Courts Act provisions
requiring special leave to appeal are
of no application, and that
s 311
gives jurisdiction to this court
when a high court on appeal gives a decision in favour of the person
convicted on a question of
law.
[9]
Surprisingly,
counsel for the respondent did not refer us to any of the cases
dealing with the circumstances in which this court
will depart from
its previous decisions on a matter of law. The basic principle is
stare
decisis
,
that is, the court stands by its previous decisions, subject to an
exception where the earlier decision is held to be clearly
wrong or
the reasoning upon which the decision rested was clearly
erroneous.
[3]
The object of the
doctrine of
stare
decisis
is
to avoid uncertainty and confusion and ensure uniformity in the
treatment of cases raising similar factual and legal issues.
[4]
It serves to lend certainty to the law. Therefore the decisions in
Grobler
and
Moabi
are
binding unless we are satisfied that they were incorrectly decided or
that the reasoning upon which the decisions rested were
clearly
erroneous. We are not so satisfied.
[10]
Second, the wording of
s 311
of the CPA is clear. Unlike convicted
persons, the DPP’s right of appeal in terms of
s 311
of the CPA
relating to a sentence imposed by a high court sitting as a court of
appeal, arises only where the high court has given
a decision in
favour of the convicted person on a question of law. Accordingly,
this court can only enter into the merits of the
appeal if it is
satisfied that the ground of appeal relied upon by the DPP involves a
question of law.
[11]
In its heads of argument, the DPP relied on six grounds of appeal
which it contended constituted questions of law, although
at the
hearing before us, this number was reduced to four. In this regard it
contended that the court a quo had erred in holding:
11.1 first, that the
provisions of
s 51(1)
of Act 105 of 1997 were of no application
merely because the charge sheet erroneously referred to s 51 and
schedule 2 of Act 38
of 2007 instead of Act 105 of 1977, despite the
fact that the charge sheet clearly stated that the respondent raped a
13 year old
girl and the respondent was fully aware at the pleading
stage that a minimum sentence of life imprisonment could be imposed;
11.2 secondly, that
the respondent’s right to a fair trial provided for by s 35(3)
of the Constitution was infringed when
the trial court sentenced him
to life imprisonment due to the error in the charge sheet;
11.3 thirdly, that
in terms of s 51 of Act 105 of 1997, only the high court could impose
life imprisonment unless the case is referred
to the high court in
terms of s 52(1) for sentencing after the accused has been convicted,
in a regional court; and
11.4
fourthly,
that the dictum in
S
v Ndlovu
[5]
applied in this matter despite the clear differences in circumstances
of the two cases.
The
DPP further contended that the court a quo misdirected itself in
concluding that the sentence of life imprisonment was not an

appropriate sentence in the circumstances.
[12]
Section 51(1) of the CLAA provides that a regional court or a high
court shall sentence a person it has convicted of an offence
referred
to in Part 1 of Schedule 2 to life imprisonment unless there exists
substantial and compelling circumstances which justify
the imposition
of a lesser sentence than the prescribed one. Rape of a child under
the age of 16 years falls under Part 1 of Schedule
2.
[13]
The
rule that the accused person should be informed of the minimum
sentence that is applicable in the case, owes its genesis to
S
v Legoa
[6]
where this court held that it was desirable that the facts the state
intended to prove to increase the sentencing jurisdiction
under the
Act (CLAA) should be clearly set out in the charge sheet. The court
concluded by stating that the matter is one of substance
and not
form, and a general rule could not be laid down that the charge sheet
in every case had to recite either the specific form
of the scheduled
offence with which the accused was charged, or the facts the state
intended to prove to establish it. Recently
in
S
v Khoza & another
[7]
this court stated:
‘
As a general
rule, fair-trial rights require that an accused person should be
informed at the outset of the trial of the provisions
of the Minimum
Sentence Act . . . that the state intends to rely upon or which are
applicable. The accused person should generally
be so informed in the
indictment or charge sheet; by notification by the presiding officer
or in any other manner that effectively
conveys the applicable
provisions to the accused before or at the commencement of the
trial.’
[14]
The charge sheet in this matter stated that ‘the said accused
did unlawfully and intentionally commit an act of sexual
penetration
with the complainant . . . a 13 year old by inserting his penis in
her vagina . . .’ The appellant therefore
knew that he was
being charged with rape of a girl below the age of 16. Although by
reason of a typographical error the charge
sheet referred to the
Criminal Law (Sentencing) Amendment Act 38 of 2007
– which has
neither a
s 51
nor a Schedule 2 – both the respondent and his
counsel were aware that the intention was to refer to
s 51(1)
of the
CLAA 105 of 1997. This is so because after the respondent had pleaded
guilty and his statement in terms of
s 112(2)
of the CPA was read
into the record, but before the state accepted the plea, the trial
court posed the following questions to the
respondent:
‘
Court
:
And Mr Buthelezi the last aspect that I want to verify with you, that
the Minimum Sentence Act was fully explained to you by your
legal
representative? Do you understand the consequences and the sentence
that can be imposed in accordance with Section 51 of
life
imprisonment with the conviction?
Accused
: I,
fully understood that. Yes, you Worship.’
[15]
In the light of this, the reference to the incorrect Act, being a
mere typographical error, cannot without more amount to a

misdirection in this case. To hold otherwise will be to put form over
substance. Accordingly, I agree with the DPP that the respondent’s

right to a fair trial was not infringed in any way. He was fully
aware that the charge he was facing and to which he intended to
plead
guilty carried a minimum sentence of life imprisonment. He confirmed
to the trial court that he understood the applicability
and the
consequences of the minimum sentence and that it had been fully
explained to him. The respondent proceeded to plead guilty
to the
charge knowing fully that if convicted, he may be sentenced to life
imprisonment.
[16]
Regarding the regional court’s jurisdiction to impose a
sentence of life imprisonment, s 52 of the CLAA 105 of 1997 provided

that once the regional court has convicted a person of an offence
referred to in Part 1 of Schedule 2, the regional court shall
adjourn
the proceedings and refer the matter to the high court for
sentencing. However this section was amended by the CLAA 38
of 2007
which came into operation on 31 December 2007. In terms of s 1 of the
CLAA 38 of 2007, the regional court was granted jurisdiction
to
impose a sentence of life imprisonment if it convicts a person of an
offence referred to in Part 1 of Schedule 2. Therefore,
when the
regional magistrate sentenced the respondent to life imprisonment on
31 August 2012, the CLAA 38 of 2007 was already in
operation, and the
regional court had the jurisdiction to impose the sentence which it
did.
[17]
I further agree with the DPP that the dictum in
Ndlovu
is not
applicable in this matter. The facts in that case are clearly
distinguishable from the present matter. There the accused
was
charged with rape and was warned that s 51(2) was applicable (that
when convicted he may be sentenced to ten years’ imprisonment).

Upon his conviction, the trial court sentenced him to life
imprisonment in terms of s 51(1). The Constitutional Court however
held that the trial court on finding him guilty as charged had
convicted him of an offence for which that sentence was not
prescribed.
Unlike
Ndlovu
, however, the charge sheet in this
matter referred to s 51 and Schedule 2, albeit of the wrong Act, and
the respondent was adequately
warned that a sentence of life
imprisonment may be imposed if convicted. All the parties: the
appellant, his counsel, the prosecutor
and the magistrate, laboured
under the mistaken assumption that the correct Act had been referred
to. The typographical error thus
caused no prejudice to the
appellant, and the respondent’s right to a fair trial was in no
way infringed by any of this.
[18]
Having stated the above, it is clear that the high court committed an
error in law by concluding that the provisions of the
CLAA, as
amended by the CLAA 38 of 2007, were of no application. It therefore
follows that the present case falls within the purview
of s 311 of
the CPA. In these circumstances, the sentence imposed by the high
court must be set aside.
[19]
In conclusion, both the regional court and the high court found that
there existed no substantial and compelling circumstances
justifying
the imposition of a lesser sentence than the prescribed one. I cannot
find any. The fact that the respondent pleaded
guilty to the offence
cannot be taken as substantial and compelling circumstance on itself
to justify deviation from the prescribed
sentence. The evidence
against him was overwhelming. DNA evidence linked him to the offence.
What I find more aggravating is the
fact that the respondent took
advantage of the age and vulnerability of the victim. He abused the
trust the victim had in him as
her cousin. His conduct in my view was
sufficiently reprehensible to fall within the category of offences
calling for a sentence
both reflecting the court’s disapproval
and hopefully acting as a deterrent to other like minded people who
satisfy their
carnal desires with helpless children. There is no
reason to depart from the prescribed minimum sentence of life
imprisonment.
[20]
In the result, the following order is made:
1 The appeal is
upheld.
2 The order of the
high court is set aside and substituted with the following order:
‘
(a)
The appeal is dismissed.
(b)
The conviction and sentence of the trial court are confirmed.’
_____________________
F
E Mokgohloa Judge of Appeal
APPEARANCES:
For
Appellant: Adv M J Makgwatha
Instructed
by: Director of Public Prosecutions Gauteng Division, Pretoria
Director
of Public Prosecutions Free State High Court, Bloemfontein
For
Respondent: Advocate J M Mojuto
Instructed
by: Justice Centre, Pretoria
Legal
Aid South Africa, Bloemfontein
[1]
Director of Public Prosecutions, Gauteng v Grobler
[2017] ZASCA 82
;
2017 (2) SACR 132
(SCA).
[2]
Director of Public Prosecutions, Gauteng v Moabi [2017] ZASCA 85;
2017 (2) SACR 384 (SCA).
[3]
Bloemfontein Town Council v Richter
1938 AD 195
at 232; Brisley v
Drotsky
2002 (4) SA 1
(SCA) para 58.
[4]
Van der Walt v Metcash Trading Ltd
[2002] ZACC 4
;
2002 (4) SA 317
(CC) para 39.
[5]
S v Ndlovu 2017 (2) SACR 305 (CC).
[6]
S v Legoa
2003 (1) SACR 13
SCA
[2002] ZASCA 122
para 21.
[7]
S v Khoza
2019 (1) SACR 251
(SCA);
[2018] ZASCA 133
para 10.