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[2017] ZACC 19
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Ndlovu v S (CCT174/16) [2017] ZACC 19; 2017 (10) BCLR 1286 (CC); 2017 (2) SACR 305 (CC) (15 June 2017)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 174/16
In
the matter between:
BRENDAN
SOLLY
NDLOVU
Applicant
and
THE
STATE
Respondent
Neutral
citation:
Ndlovu v The State
[2017]
ZACC 19
Coram:
Nkabinde ADCJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius
AJ and Zondo J
Judgments:
Khampepe J (unanimous)
Heard
on:
23 February 2017
Decided
on:
15 June 2017
Summary:
Criminal Law Amendment Act 105 of 1997
—
section 51(1)
and (2) — sentencing jurisdiction —
regional court
fair
trial — life imprisonment — rape — condonation
ORDER
On
appeal from the Supreme Court of Appeal (hearing an appeal from the
High Court of South Africa, Gauteng Division, Pretoria):
The
following order is made:
1.
Condonation
is granted.
2.
Leave
to appeal is granted.
3.
The
appeal succeeds.
4.
The
orders of the Supreme Court of Appeal and High Court of South Africa,
Gauteng Division, Pretoria dismissing the appeal
against sentence are
set aside.
5.
The
sentence of life imprisonment imposed by the Phalaborwa Regional
Magistrates’ Court on 8 May 2009 is set aside.
6.
The
applicant is sentenced to 15 years’ imprisonment antedated to
8 May 2009.
JUDGMENT
KHAMPEPE
J (Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Madlanga J,
Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J
concurring):
Introduction
[1]
This is an application for leave to appeal
against the sentence of life imprisonment imposed on the
applicant, Mr Brendan Solly
Ndlovu (Mr Ndlovu), by the Phalaborwa
Regional Magistrates’ Court (Regional Court) following his
conviction of rape.
[2]
The central question is whether Mr Ndlovu’s
right to a fair trial
[1]
was infringed when, after he had been charged with rape read with one
minimum sentencing provision, he was sentenced pursuant to
a
different, harsher, minimum sentencing provision.  This matter
also raises the threshold question whether the Regional Court

had the requisite jurisdiction to sentence him to life imprisonment
in the circumstances.
Background
[3]
The salient facts are as follows.  In
the early hours of 28 October 2007, Mr Ndlovu accosted the
complainant while she
was walking home.  He assaulted and
threatened to kill her.  She managed to escape but he
apprehended and continued to
assault her.  He assaulted her with
fists, as well as stones and bricks.  Then he raped her.
[4]
After Mr Ndlovu had raped the complainant
she managed, naked and covered in blood, to escape once again and to
run to her uncle’s
house.  The police and an ambulance
were called and she was taken to Maputa Hospital where she was
admitted for five days.
She sustained various wounds to her
head and mouth, which resulted in scarring.  The attack left her
with two six-centimetre
lacerations on her lips; a four centimetre
laceration on her forehead; and a four-centimetre laceration near her
eye.
The resultant scars were still visible when the
complainant gave her evidence in the Regional Court.  One of her
teeth had
to be removed as a result of the assault and the evidence
was that more of her teeth would be removed in future.  The
details
of the complainant’s injuries were set out in the J88
form, which was completed on the morning of the assault by a medical

practitioner.  This form was later accepted as evidence by the
Regional Court, without objection from Mr Ndlovu.
[5]
Despite the grievous injuries suffered by
the complainant, Mr Ndlovu was only charged with rape: unlawfully and
intentionally having
sexual intercourse with a female without her
consent “read with the provisions of [s]ection 51(2) of the
Criminal Law Amendment
Act 105 of 1997” (the charge).
[2]
[6]
At
the commencement of the trial, the prosecutor put the charge to
Mr Ndlovu and the Magistrate informed him that, if he was

convicted of the charge, the Court was bound to impose a minimum
sentence of “15 years imprisonment if he was a first
offender”.
[3]
During the trial, a great deal of evidence was led regarding the
violent assault and rape of the complainant.  Before
the
pronouncement of the verdict, the Magistrate stated that the
complainant’s evidence was satisfactory in all material

respects, and that there was no evidence to suggest that she was not
honest or was biased.
[7]
The Magistrate explained that Mr Ndlovu was
charged with “rape read with the provisions of [s]ection 51(2)”
and noted
that “after the charge was put to [Mr Ndlovu] he
indicated that he understands it”.  On 8 May 2009, the
Regional
Court found Mr Ndlovu “guilty as charged”.
[8]
On the same day, in a perplexing turn of
events, the Regional Court sentenced Mr Ndlovu to life
imprisonment in terms of section
51(1) of the Minimum Sentencing
Act,
[4]
despite his having been charged with rape read with section
51(2).
[5]
During sentencing, the Magistrate stated:
“
Coming
to the nature of the offence that the accused [has] been convicted
of, the offence of rape falls within the [ambit] of the
minimum
sentence act whereby the court is obliged to impose a life
imprisonment as it involves infliction of serious bodily harm.
The court can only deviate from
the prescribed [minimum] sentence only if there are substantial and
compelling circumstances.
The defence left everything in the
hands of the court regarding deviation from the prescribed minimum
sentence.
. . .
Therefore the
court finds that there are no substantial and compelling
circumstances that may allow the court to deviate from the
prescribed
minimum sentence.”
[9]
It is this sentence of life imprisonment
imposed by the Regional Court that is the subject of the present
application.
Litigation
history
In the High Court
[10]
Mr Ndlovu appealed against both his
conviction and sentence to the High Court of South Africa,
Gauteng Division, Pretoria (High
Court).
[6]
He appealed against the sentence on the basis that his right to a
fair trial had been infringed by the reference to an incorrect

provision of the Minimum Sentencing Act in the charge sheet.
[11]
Considering the fair trial question, the
Court noted that Mr Ndlovu had been incorrectly advised of the
provisions of the law
applicable to his case.  The Court held
that “[t]he provisions of the Act are, however, quite clear and
he falls within
provisions where the imposition of a life sentence
[is] appropriate and had to be imposed”.  The Court
held that
Mr Ndlovu was represented and that the case was conducted
in a way that it could not be said that any other information would
have
changed the outcome.
[7]
It concluded:
“
It
cannot be said that the mere fact that the wrong section of the Act
was initially and repeatedly used in any way prejudiced the
appellant
as far as the sentence is concerned.”
[8]
[12]
Bearing in mind the seriousness of, and
violence involved in, the rape, the High Court was not convinced
that the Magistrate
erred in any way by imposing the sentence of life
imprisonment.  It did not deal with the threshold issue whether,
in the
prevailing circumstances, the Regional Court had jurisdiction
to impose a life sentence on Mr Ndlovu.
[13]
On 4 October 2011, the High Court dismissed
the appeal, but on 31 July 2012 granted Mr Ndlovu leave to
appeal to the Supreme
Court of Appeal.
In the Supreme Court of Appeal
[14]
Mr Ndlovu appealed his sentence on the same
basis as in the High Court.  Considering the fair trial
question, the Supreme
Court of Appeal, with reference to the
judgments in
Makatu
[9]
and
Legoa
,
[10]
found that the Court had been reluctant to lay down a general rule as
to what the charge sheet must contain.
[11]
The Court held that “[t]he question to be answered is
whether the accused had a fair trial, and this is a fact
based
enquiry that entails a ‘vigilant examination of the relevant
circumstances’”.
[12]
[15]
Mr Ndlovu argued that, if he had known he
faced the prospect of life imprisonment rather than 15 years’
imprisonment, he would
not have taken the decision to have his trial
continue without DNA results.
[13]
The Court rejected this submission, and found that there was no
factual foundation to support a finding that Mr Ndlovu’s
right
to a fair trial was infringed by the error in the charge sheet.
[14]
The Court agreed with the High Court that the case was conducted in
such a manner that it could not “be said that any
other
information would have changed [the case]”; and that it could
not be said that “the mere fact that the wrong
section of the
[Minimum Sentencing] Act was initially and repeatedly used in any way
prejudiced” Mr Ndlovu.
[15]
[16]
The Court also considered whether to
interfere with the sentence of the Regional Court, and concluded
that there were no substantial
and compelling circumstances
justifying a departure from the prescribed minimum sentence of
life imprisonment.
[16]
[17]
Like the High Court, the Supreme Court of
Appeal did not consider the question of the Regional Court’s
jurisdiction in the
prevailing circumstances.  On 26 September
2014, the Supreme Court of Appeal dismissed Mr Ndlovu’s appeal.
In
this Court
[18]
Mr Ndlovu now seeks leave to appeal to this
Court to set aside his sentence and replace it with a sentence within
the jurisdiction
of the Regional Court in terms of section 51(2) of
the Minimum Sentencing Act.  He also seeks an order condoning
the late
filing of the application.
Applicant’s submissions
[19]
Mr Ndlovu submits that the Regional Court
did not have jurisdiction to impose life imprisonment.  The
Regional Court found
him “guilty as charged”.  He
submits that this refers to the charge of rape of an adult victim
simpliciter
:
the Regional Court failed to specify that the rape involved the
infliction of grievous bodily harm; the nature and extent of the

injuries were not evaluated; and the Regional Court even failed to
record a finding that the injuries were in fact inflicted on
the
complainant.  A Regional Court’s general sentencing
jurisdiction is 15 years’ imprisonment.
[17]
As a creature of statute, that court’s general sentencing
jurisdiction is limited to what the statute specifies.  Mr Ndlovu

submits that the Regional Court would have acquired increased
sentencing jurisdiction under section 51(1) of the Minimum Sentencing

Act only if he had been charged in terms of that section.
[20]
Mr Ndlovu further submits that the Regional
Court had a duty to accurately advise him of the minimum sentencing
provisions applicable
to his case, and did not do so.  As a
result, Mr Ndlovu submits that he suffered irreparable trial related
prejudice.
Respondent’s submissions
[21]
The state submits that the incomplete
charge sheet was automatically cured by the evidence of the state
witnesses to include the
fact of the complainant’s injuries.
The state continues to advance the justification underlying both the
High Court
and the Supreme Court of Appeal judgments: that Mr Ndlovu
would not have conducted the trial, or his defence, in any other way
had he been informed that he faced life imprisonment or had the
mistake not been made in the charge sheet.  Therefore, so the

argument goes, he suffered no prejudice and the trial was fair.
[22]
The state further submits that this Court
should not establish a general rule to the effect that an incorrect
reference to section
51(2) of the Minimum Sentencing Act
automatically precludes a court from imposing a sentence of life
imprisonment in terms
of section 51(1).  It submits that
any rule of this kind may create intolerable complexities in the
administration of
justice and that a fact-based enquiry serves as a
clear safeguard for the constitutional rights of an accused person.
Issues
[23]
This matter raises two key issues:
(a)
First,
did the Regional Court have jurisdiction to sentence Mr Ndlovu in
terms of section 51(1) of the Minimum Sentencing Act?
(b)
Second,
if the Regional Court was so empowered, did sentencing Mr Ndlovu
in terms of section 51(1) when he had been charged
with rape, read
with section 51(2), infringe his right to a fair trial?
[24]
The jurisdiction question is the threshold
concern: if the Regional Court did not have jurisdiction to sentence
Mr Ndlovu in terms
of section 51(1), the matter ends there and the
sentence imposed cannot stand.  If the Regional Court did have
jurisdiction,
a further question needs to be addressed: namely,
whether Mr Ndlovu was impermissibly and prejudicially misled by the
reference
to section 51(2) in the charge sheet to the extent that his
right to a fair trial was infringed.
[25]
Before turning to the principal issues, the
preliminary issues to be determined are:
(a)
Whether
this Court has jurisdiction to determine the application.
(b)
Whether
leave to appeal should be granted.
(c)
Whether
Mr Ndlovu’s late filing of his application to this Court should
be condoned.
Preliminary
issues
This Court’s jurisdiction
[26]
This matter engages this Court’s
jurisdiction.  The right to a fair trial is guaranteed under
section 35(3) of the Constitution
and this issue falls squarely
within the meaning of “constitutional matters” in section
167(3)(b)(i) of the Constitution.
[18]
Leave to appeal
[27]
As to leave to appeal, there is an
important constitutional issue to be considered here: whether Mr
Ndlovu’s right to a fair
trial was indeed infringed.  In
addition, Mr Ndlovu’s application has reasonable prospects
of success.  It
is in the interests of justice that leave to
appeal be granted.
Condonation
[28]
Mr Ndlovu’s application is over 20
months late.  He submits that he became aware of the order of
the Supreme Court of
Appeal within days of judgment being handed
down.  His attorney then advised him to apply for leave to
appeal to this Court,
which would have entailed an appeal against
sentence only.  At that stage, however, Mr Ndlovu says he
was devastated,
and that he wished to pursue an appeal on the merits
– against his conviction as opposed to sentence only.  He
submits
that he had received “legal” advice from his
fellow inmates that caused him to question and lose faith in his
attorney,
and he ultimately failed to instruct his attorney to file
the application for leave to appeal with this Court.
[29]
Mr Ndlovu further explains that he later
came to appreciate that the original advice from his attorney was
unassailable, and that
he should appeal to this Court against his
sentence only.  It was only after this realisation that he
decided to proceed with
the application for leave to appeal in this
Court.
[30]
Mr Ndlovu submits that, although it was his
stubbornness that resulted in the delay, he was suffering mental
anguish that caused
him to be susceptible to incorrect advice
“pronounced with much fervour and self-assuredness”.
He submits that
he was distraught, and latched onto the advice of
fellow inmates, who gave him hope that he may be released at once.
[31]
The explanation given by Mr Ndlovu for the
gross delay in making his application to this Court is
unsatisfactory.  This Court
takes a dim view of parties
disregarding its rules, and generally requires that a reasonable
explanation be given for a delay before
it will grant condonation.
In
Grootboom v National
Prosecuting Authority
, this Court held:
“
It is
now trite that condonation cannot be had for the mere asking.  A
party seeking condonation must make out a case entitling
it to the
court’s indulgence.  It must show sufficient cause.
This requires a party to give a full explanation
of the
non compliance with the rules . . . . Of
great significance, the explanation must be reasonable
enough to
excuse the default.”
[19]
[32]
However, the sufficiency of the explanation
given for the delay is not wholly determinative of whether
condonation should be granted.
The pertinent question to
consider is whether it would be in the interests of justice for
condonation to be granted.
[20]
[33]
In
Brummer
,
this Court explained:
“
The interests of justice
must be determined by reference to all relevant factors, including
the nature of the relief sought, the
extent and cause of the delay,
the nature and cause of any other defect in respect of which
condonation is sought, the effect on
the administration of justice,
prejudice and the reasonableness of the applicant’s explanation
for the delay or defect.”
[21]
[34]
At stake is the protection of a right
guaranteed in the Bill of Rights – the right to a fair trial.
The importance of
the right in question weighs heavily in
favour of condonation being granted.
[35]
In addition and due to the lack of a
consistent approach to the issues raised in this matter by the lower
courts, this matter raises
a point of law of general public
importance which ought to be considered by this Court.
[22]
[36]
The state has not argued that it will
suffer any prejudice.  This is not a matter where the effect on
the administration of
justice entails that condonation should be
denied.
[37]
In addition, the matter bears reasonable
prospects of success.  We must bear in mind the relief sought in
the event that Mr
Ndlovu is indeed successful.  Mr Ndlovu
seeks to overturn a sentence of life imprisonment – the most
severe penalty
that can be imposed under our law
[23]
– on the ground that his right to a fair trial has been
infringed.  To bar Mr Ndlovu from approaching this Court
to
consider whether this maximum penalty was imposed following a fair
trial, on the basis of a delay in bringing his appeal in

circumstances where the delay does not appear to have prejudiced the
state, would be draconian.  Accordingly, I am of the
view that
it is in the interests of justice that condonation be granted.
Jurisdiction
of the Regional Court
[38]
As stated above, the threshold question is
whether the Regional Court had jurisdiction to sentence Mr Ndlovu in
terms of section
51(1) of the Minimum Sentencing Act.
Section 51 of the Minimum Sentencing Act sets out minimum sentences
applicable
to certain offences.  Section 51(1) provides:
“
Notwithstanding
any other law, but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person
it has convicted of an
offence referred to in Part I of Schedule 2 to imprisonment for
life.”
Part
I of Schedule 2 includes reference to rape involving the infliction
of grievous bodily harm.
[24]
[39]
Section 51(2)(b) provides for minimum
sentences for a range of offences referred to in Part III of Schedule
2.
[25]
The minimum sentence for a conviction of rape under Part III of
Schedule 2 varies from 10 to 20 years, depending on
whether the
convicted person has committed previous offences.
[26]
[40]
Section
51(2) further provides that “the maximum term of imprisonment
that a
regional court
may impose in terms of [subsection 2] shall not exceed the minimum
term of imprisonment that it must impose in terms of [subsection
2]
by more than five years”.
[41]
It is trite that Magistrates’ Courts
are creatures of statute and have no jurisdiction beyond that granted
by the Magistrates’
Courts Act and other relevant
statutes.
[27]
Because Mr Ndlovu was treated as a first offender,
[28]
under section 51(2) the sentencing jurisdiction of the Regional Court
was limited to a maximum of 15 years’ imprisonment.
The
Regional Court, however, sentenced Mr Ndlovu to life imprisonment
under section 51(1), which it would have
had the power to do
only
if
the application of the section was triggered.
[42]
In terms of section 51(1) of the Minimum
Sentencing Act, the Regional Court would have had jurisdiction to
sentence Mr Ndlovu to
life imprisonment only if it had convicted him
of an offence referred to in Part I of Schedule 2.  The question
is thus whether
Mr Ndlovu was convicted of an offence referred to in
Part I of Schedule 2.
[43]
When handing down its judgment convicting
Mr Ndlovu, the Regional Court first made reference to the fact that
Mr Ndlovu was
charged with rape read with section 51(2) of
the Minimum Sentencing Act.  The Regional Court then recounted
all of the
evidence put before it, and finally concluded:
“
The
evidence of the complainant is satisfactory in all materials.
There is no evidence to suggest that she is not honest or
[is
biased].  Therefore the Court is satisfied with the manner in
which the complainant testified.  Therefore the accused
is
FOUND
GUILTY AS CHARGED
as his version is not
possibly true.”
[44]
The Magistrate’s statement that the
accused is found “guilty as charged” is unambiguous.
Mr Ndlovu was convicted
of “rape read with the provisions of
[s]ection 51(2)”.  This means that he was convicted
of an offence referred
to in Part III of Schedule 2 – not an
offence referred to in Part I of Schedule 2.
[45]
The Magistrate was aware that the charge
was “rape read with the provisions of [s]ection 51(2)”
and specifically found
Mr Ndlovu “guilty as charged”.
This wording simply does not permit an interpretation that the
Magistrate in fact
convicted Mr Ndlovu of rape contemplated in
section 51(1).  Nor does the evidence of the complainant’s
injuries
automatically cure the charge in terms of section 51(1), as
posited by the state.  A defective, or incomplete, charge may be

remedied by evidence in some instances by section 88 of the Criminal
Procedure Act.
[29]
However, this charge was complete and not defective.  Quite
simply, the charge was not rape involving the infliction
of grievous
bodily harm and evidence alone could not make it so.
[30]
[46]
In the light of this, I can do nought but
conclude, inexorably, that the Regional Court did not have
jurisdiction to impose
life imprisonment in terms of section 51(1) of
the Minimum Sentencing Act.  Mr Ndlovu was convicted of rape,
read with section 51(2);
accordingly, the Regional Court was
required in terms of section 51(2) to impose a minimum sentence
of 10 years (as he was
treated as a first offender).
[31]
The Regional Court’s jurisdiction was limited in terms of
section 51(2) to imposing a maximum sentence of 15 years.
[32]
[47]
In the result, because the Regional Court
did not have jurisdiction to sentence Mr Ndlovu in terms of section
51(1), his application
must succeed.  In the circumstances, it
is unnecessary to consider the fair trial question.
Remedy
[48]
The sentence that the Regional Court
imposed on Mr Ndlovu was, because of the conviction “as
charged”, beyond its jurisdiction.
Accordingly, it must
be set aside.
[49]
While it is normally preferable for the
trial Magistrate to impose a new sentence on a convicted person, any
benefit arising from
the Magistrate’s familiarity with this
case has been seriously eroded by the length of time that has passed
since Mr Ndlovu’s
trial.  It is accordingly in the
interests of justice for this Court to determine the matter finally,
within the limitations
of the Regional Court’s jurisdiction in
terms of section 51(2) of the Minimum Sentencing Act.
[50]
As Mr Ndlovu was treated as a first
offender in respect of this offence, the minimum applicable sentence
was 10 years’
imprisonment.  The maximum sentence
that could have been imposed by the Regional Court was 15 years’
imprisonment.
Rape is a serious offence.  It is, in and of
itself, a deeply destructive and dehumanising act.
[33]
The circumstances of this rape were especially heinous.  Mr
Ndlovu threatened to kill the victim, and then viciously
and
mercilessly assaulted and raped her.  Following the attack, the
victim was admitted to hospital for five days.
[51]
These circumstances elevate the seriousness
of the offence so that the minimum sentence of 10 years’
imprisonment is grossly
inadequate.  Indeed, the legislature has
indicated in perspicuous terms, by the enactment of section 51(1) of
the Minimum Sentencing
Act, that a sentence of life imprisonment
is most appropriate in comparable cases.
[52]
The appropriate and proportionate sentence
to be imposed in the circumstances is the maximum sentence that the
Regional Court could
have imposed following the conviction of rape
read with section 51(2) of the Minimum Sentencing Act: 15 years’
imprisonment.
The
responsibilities of prosecutors and the courts
[53]
Mr Ndlovu’s crime is just one
instance of one of the most harrowing and malignant crimes
confronting South Africa today –
rape.  Rape is perhaps
the most horrific and dehumanising violation that a person can live
through and is a crime that not
only violates the mind and body of a
complainant, but also one that vexes the soul.  This crime is an
inescapable and seemingly
ever-present reality and scourge on the
nation and the collective conscience of the people of South Africa.
[54]
Despite my finding in this matter, there is
nothing before me to indicate that Mr Ndlovu’s
blameworthiness for this deplorable
crime is in any way diminished.
This is a case where the state’s remissness has failed the
complainant and society.
[55]
Section 165 of the Constitution vests
judicial authority in the courts and nowhere else.
[34]
They are the gate-keepers of justice.  The evidence of the
injuries sustained by the complainant should have alerted
the
Magistrate that the appropriate charge should have been rape read
with section 51(1) of the Minimum Sentencing Act: rape involving
the
infliction of grievous bodily harm.  Furthermore, the acceptance
of the evidence relating to the infliction of grievous
bodily harm
should have made it clear to the Magistrate that the crime fell
squarely within the ambit of section 51(1) of the Minimum Sentencing

Act.
[56]
In this case, the Magistrate could have and
should have taken steps to ensure that Mr Ndlovu was prosecuted or
convicted in terms
of the correct provision of the Minimum Sentencing
Act.  Courts are expressly empowered in terms of section 86 of
the Criminal
Procedure Act to order that a charge be amended.
[35]
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.  This failure is directly implicated in the
finding made in this judgment.
[57]
Furthermore, section 179 of the
Constitution provides for a “single national prosecuting
authority . . . structured
in terms of an Act of
Parliament”.
[36]
The National Prosecuting Authority Act
[37]
gives effect to section 179 of the Constitution.  Section 2
of the NPA Act provides for a “single national prosecuting

authority established in terms of section 179 of the Constitution”
and section 20(1)(a) provides that the power to prosecute
is vested
in the National Prosecuting Authority (NPA); a power exercised on
behalf of the people of South Africa.
[38]
[58]
When even the most heinous of crimes are
committed against persons, the people cannot resort to self-help:
they generally cannot
prosecute the perpetrators of these crimes on
their own behalf.
[39]
This power is reserved for the NPA.  It is therefore incumbent
upon prosecutors to discharge this duty diligently and
competently.
When this is not done, society suffers.  In this case the
prosecutor failed to ensure that the correct
charge was preferred
against Mr Ndlovu.  The prosecutor was from the outset in
possession of the J88 form in which the injuries
sustained by the
complainant were fully described.
It
boggles the mind why the proper charge of rape read with the
provisions of section 51(1) of the Minimum Sentencing Act was not

preferred.  This can only be explained as remissness on the part
of the prosecutor that, further, should have been corrected
by the
Court.
This error is acutely
unfortunate – victims of crime rely on prosecutors performing
their functions properly.  The failings
of the prosecutor are
directly to blame for the outcome in this matter.
Order
[59]
The following order is made:
1.
Condonation
is granted.
2.
Leave
to appeal is granted.
3.
The
appeal succeeds.
4.
The
orders of the Supreme Court of Appeal and High Court of South Africa,
Gauteng Division, Pretoria dismissing the appeal
against sentence are
set aside.
5.
The
sentence of life imprisonment imposed by the Phalaborwa Regional
Magistrates’ Court on 8 May 2009 is set aside.
6.
The
applicant is sentenced to 15 years’ imprisonment antedated to
8 May 2009.
For
the Applicant: H L Alberts and J M Mojuto instructed by
Legal
Aid South Africa, Pretoria Justice Centre
For
the Respondent: M Jansen van Vuuren and P W Coetzer
instructed by the Director of Public Prosecutions, Pretoria
[1]
Section 35(3) of the Constitution guarantees the
right to a fair trial, including the right “to be informed of
the charge
with sufficient detail to answer it”.
[2]
For ease of reference I refer to the
Criminal Law
Amendment Act 105 of 1997
as the Minimum Sentencing Act.
Section 51(2) provides:
“
Notwithstanding any other law but subject
to subsections (3) and (6), a regional court or a High Court shall
sentence a person
who has been convicted of an offence referred to
in—
(a) Part II of Schedule 2, in the case of—
(i) a first offender, to imprisonment for a period not less
than 15 years;
(ii) a second offender of any such offence, to imprisonment for
a period not less than 20 years; and
(iii) a third or subsequent offender of any such offence, to
imprisonment for a period not less than 25 years;
(b) Part III of Schedule 2, in the case of
—
(i) a first offender, to imprisonment for a period not less
than 10 years;
(ii) a second offender of any such offence, to imprisonment for
a period not less than 15 years; and
(iii) a third or subsequent offender of any such offence, to
imprisonment for a period of not less than 20 years;
(c) Part IV of Schedule 2, in the case of—
(i) a first offender, to imprisonment for a period not less
than 5 years;
(ii) a second offender of any such offence, to imprisonment for
a period not less than 7 years; and
(iii) a third or subsequent offender of any such offence, to
imprisonment for a period not less than 10 years; and
(d) Part V of Schedule 2, in the case of—
(i) a first offender, to imprisonment for a period not less
than 3 years;
(ii) a second offender of any such offence, to imprisonment for
a period not less than 5 years; and
(iii) a third or subsequent offender of any such offence, to
imprisonment for a period not less than 7 years.
Provided that the maximum term of imprisonment that a regional court
may impose in terms of this subsection shall not exceed
the minimum
term of imprisonment that it must impose in terms of this subsection
by more than five years.”
[3]
The correct position was that conviction of an offence contemplated
in section 51(2) at that time carried a minimum sentence
of 10
years, not 15 years, for a first offender.  See section
51(2)(b)(i)
of the Minimum Sentencing Act
quoted at n 2 above.
[4]
Section 51(1) provides:
“
Notwithstanding any other law, but subject
to subsections (3) and (6), a regional court or a High Court shall
sentence a person
it has convicted of an offence referred to in Part
I of Schedule 2 to imprisonment for life.”
See
also Schedule 2 to the Minimum Sentencing Act, Part I, at paragraph
(c) under “Rape”:
“
Rape as contemplated in
Section 3
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act,
2007
—
. . .
(c) involving the infliction of grievous bodily harm.”
[5]
After the initial reference to 15 years’
imprisonment discussed at [6], it does not appear that the
applicable sentence
was further commented upon until sentencing.
It appears from the record that the first mention of life
imprisonment was
made at the beginning of the hearing on sentencing.
[6]
Ndlovu v S
[2011] ZAGPPHC 233 (High Court judgment).  The appeal on
conviction was not pursued by Mr Ndlovu and accordingly the

High Court considered only the appeal on sentence.
[7]
Id at 2.
[8]
Id.
[9]
S v Makatu
[2006]
ZASCA 72
;
2006 (2) SACR 582
(SCA) (
Makatu
).
[10]
S v Legoa
[2002]
ZASCA 122
;
2003 (1) SACR 13
(SCA) (
Legoa
).
[11]
Ndlovu v The State
[2014]
ZASCA 149
(
SCA judgment) at para 7.
[12]
Id.
[13]
Id at para 13, where the Court explains the
surrounding circumstances:
“
On 9 October 2008, the matter was
adjourned at the instance of the defence for ‘DNA tests to be
conducted on the accused’.
On 6 May 2009, the public
prosecutor advised the court that the DNA results had not yet been
received and that there was a more
than six month backlog at the
forensic laboratory. The state then closed its case. [Mr Ndlovu’s]
legal representative addressed
the court in the following
terms . . . .  ‘It will be in the
[interests] of justice that the matter
be proceeded with in the
absence of such results’.”
[14]
Id at paras 13-4.
[15]
Id at para 14.
[16]
See section 51(3)(a) of the Minimum Sentencing
Act.
[17]
See section 92(1)(a) of the Magistrates’
Courts Act 32 of 1944 (Magistrates’ Courts Act).
[18]
This section provides that the Constitutional Court may decide
“constitutional matters”.
[19]
Grootboom v National Prosecuting Authority
[2013] ZACC 37
;
2014 (2) SA 68
(CC);
2014 (1) BCLR 65
(CC)
at
para 23.
[20]
See
S v Mercer
[2003]
ZACC 22
;
2004 (2) SA 598
(CC);
2004 (2) BCLR 109
(CC) at para 4; and
Head of Department, Department of
Education, Limpopo Province v Settlers Agricultural High School
[2003] ZACC 15
;
2003 (11) BCLR 1212
(CC) at para 11.
[21]
Brummer v Gorfil Brothers Investments (Pty)
Ltd
[2000] ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) at para 3.
[22]
See, for example,
S v
Tshoga
[2016]
ZASCA 205
;
2017 (1) SACR 420
(SCA);
Nndateni
v The State
[2014] ZASCA 122
;
S
v Kolea
[2012] ZASCA 199
;
2013 (1)
SACR 409
(SCA);
S v Mashinini
[2012]
ZASCA 1
;
2012 (1) SACR 604
(SCA);
S v
Thembalethu
[2008] ZASCA 9
;
2009 (1)
SACR 50
(SCA);
Makatu
above
n 9;
Legoa
above
n 10;
S v WV
2013
(1) SACR 204
(GNP);
Mahlaba v S
[2016]
ZAFSHC 127
; and
S v Langa
2010 (2) SACR 289 (KZP).
[23]
See
section 73(6)(b)
of the
Correctional Services Act 111 of 1998
,
which provides:
“A person who has been sentenced to—
. . .
(iv) life incarceration, may not be placed on day parole or parole
until he or she has served at least 25 years of the sentence.”
See also
Van
Vuren v Minister of Correctional Services
[2010] ZACC 17
;
2012
(1) SACR 103
(CC);
2010 (12) BCLR 1233
(CC) at para 92, which makes
it clear that an “offender would have to serve 25 years’
incarceration to qualify for
parole consideration”.
[24]
See Schedule 2 to the Minimum Sentencing Act,
Part I, paragraph (c) under “Rape” at n 4 above.
[25]
See section 51(2) at n 2 above.
[26]
Id.
[27]
Riversdale Divisional Council v Pienaar
(1885)
3 SC 252
at 256; and
Stork v
Stork
(1903) 20 SC 138
at 139.
[28]
During sentencing the Magistrate stated that for
the purposes of sentencing the Court would regard Mr Ndlovu as
a first offender.
Therefore the minimum sentence applicable
under section 51(2)(b) would have been 10 years.  In terms of
the proviso to section
51(2) (see [40]
above),
the maximum term of
imprisonment that the Regional Court could impose under section
51(2) is the applicable minimum sentence
(10 years) plus five years
– 15 years.
[29]
51 of 1977 (
Criminal Procedure Act)
.
Section 88 provides:
“Where a charge is defective for the want of an averment which
is an essential ingredient of the relevant offence, the
defect
shall, unless brought to the notice of the court before judgment, be
cured by evidence at the trial proving the matter
which should have
been averred.”
[30]
I note that the existence of aggravating factors does not create a
separate offence and therefore rape involving grievous bodily
harm
is not a separate offence to rape not involving grievous bodily
harm.  See
Minister of Justice and Constitutional
Development v Masingili
[2013] ZACC 41
;
2014 (1) SACR 437
(CC);
2014 (1) BCLR 101
(CC).  The issue in this matter is that the
Magistrate convicted Mr Ndlovu “as charged” and he was
charged with
the offence of rape, without reference to the
aggravating factor of grievous bodily harm.
[31]
See above n 28.
[32]
See discussion at [40], read with n 28.
[33]
To borrow the words of Mahomed CJ in
S
v Chapman
[1997] ZASCA 45
;
1997 (3) SA
341
(SCA) at 344: rape is a “humiliating, degrading and brutal
invasion of the privacy, the dignity and the person of the victim”.
[34]
Justice Alliance of South Africa v President
of Republic of South Africa, Freedom Under Law v President of
Republic of South Africa,
Centre for Applied Legal Studies v
President of Republic of South Africa
[2011]
ZACC 23
;
2011 (5) SA 388
(CC);
2011 (10) BCLR 1017
(CC) at para 34.
[35]
Section 86 relevantly provides:
“(1) Where a charge is defective for the want of any essential
averment therein, or
where there appears to be any variance
between the averment in a charge and the evidence adduced
in
proof of such averment, or
where it appears that words or
particulars that ought to have been inserted in the charge have been
omitted therefrom
, or where any words or particulars that ought
to have been omitted from the charge have been inserted therein, or
where there is any other error in the charge
, the court may,
at any time before judgment, if it considers that the making of the
relevant amendment will not prejudice the
accused in his defence,
order that the charge, whether it discloses an offence or not, be
amended, so far as it is necessary,
both in that part thereof where
the defect, variance, omission, insertion or error occurs and in any
other part thereof which
it may become necessary to amend.
(2) The amendment may be made on such terms as to an adjournment of
the proceedings as the court may deem fit.” (My emphasis)
[36]
Section 179(1)
provides:
“
There is a single national prosecuting
authority in the Republic, structured in terms of an Act of
Parliament, and consisting
of—
(a) a National Director of Public Prosecutions, who is the head of
the prosecuting authority, and is appointed by the President,
as
head of the national executive; and
(b) Directors of Public Prosecutions and prosecutors as determined
by an Act of Parliament.”
[37]
32 of 1998 (NPA
Act).
[38]
Section 20(1) of the NPA Act provides:
“
The power, as contemplated in section
179(2) and all other relevant sections of the Constitution, to—
(a) institute and conduct criminal proceedings on behalf of the
State;
(b) carry out any necessary functions incidental to instituting and
conducting such criminal proceedings; and
(c) discontinue criminal proceedings,
vests in the prosecuting authority and shall, for all purposes, be
exercised on behalf of the Republic.”
[39]
In the event that the Director of Public
Prosecutions declines to prosecute an alleged offence,  a
private person with a
substantial and peculiar interest in a matter
may apply to the NPA for a certificate
nolle
prosequi
(refusal to prosecute) in
terms of section 7(1)(a) of the Criminal Procedure Act.
This certificate is required for
a private person to institute a
private prosecution, however instituting a private prosecution is
prohibitively expensive.