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[2018] ZASCA 47
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Thakeli and Another v S (231/2017) [2018] ZASCA 47; 2018 (1) SACR 621 (SCA) (28 March 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 231/2017
In
the matter between:
SENTE
JOSEPH THAKELI
FIRST
APPELLANT
SAMUEL
ZAMBUK MARUMO
SECOND APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Thakeli
v S
(231/2017)
[2018] ZASCA 47
(28 March 2018)
Coram:
Lewis, Seriti,
Saldulker and Van der Merwe JJA and Makgoka AJA
Heard:
15 February 2018
Delivered:
28 March 2018
Summary:
Criminal Law:
appellants indicted for murder – charge sheet referred to s
51(2) of the Criminal Law Amendment Act 105 of 1997
(the Act) –
trial court amended charge sheet, after appellants testified in their
defence, by deleting subsection (2), in
terms of
s 86
of the
Criminal
Procedure Act 51 of 1977
– no opportunity afforded to
appellants to address the court in respect of amendment –
appellants convicted and sentenced
by the trial court in terms of s
51(1) of the Act – sentence set aside – appellants
ultimately sentenced to 15 years'
imprisonment in terms of s 51(2) of
the Act.
ORDER
On
appeal from:
Free
State Division of the High Court, Bloemfontein (Mocumie J and Chesiwe
AJ sitting as court of appeal):
1
The appeal against the sentence imposed on both appellants is upheld.
2
The sentence imposed by the trial court on the appellants is set
aside and substituted as follows:
‘
Accused
1 and accused 4 are each sentenced to 15 years' imprisonment.'
JUDGMENT
Saldulker
JA (Lewis, Seriti and Van der Merwe JJA and Makgoka AJA concurring):
[1]
The appellants, Mr Sente Joseph Thakeli (first appellant) and Mr
Samuel Zambuk Marumo (second appellant), were indicted in the
regional court, Welkom, on a charge of murder, subject to the
provisions of
s 51(2)
of the
Criminal Law Amendment Act 105 of 1997
.
Both appellants were convicted on 23 August 2011 on the murder count
and sentenced to 28 years' imprisonment in terms of s 51(1)
of the
Act, and declared unfit to possess a firearm. Their application for
leave to appeal against conviction and sentence in the
regional court
was unsuccessful. However, leave to appeal was granted on petition
against their conviction and sentence to the
full bench of the Free
State High Court. On 23 March 2016, their appeal against both
conviction and entence was dismissed
by the court a quo
(Chesiwe AJ, Mocumie J (concurring)). This appeal, against sentence
only, is with special leave of this court.
[2]
The crisp issue is whether the trial court misdirected itself by
amending the charge sheet after the appellants had pleaded
and
testified to a charge of murder read with the provisions of s 51(2)
of the Act, and then convicted them in terms s 51(1), thereby
increasing the sentence faced by the appellants.
[3]
Section 51(1) of the Act, read with Part 1 of Schedule 2, requires
the imposition of a minimum sentence of life imprisonment
for murder
when it is planned or premeditated, unless there are substantial and
compelling factors that justify the imposition
of a lesser sentence.
In terms of s 51(2) of the Act
, read with
Part II of Schedule 2, the minimum sentence to be imposed for murder
on a first offender following a conviction is 15
years’
imprisonment unless there are substantial and compelling
circumstances. I turn to consider briefly the facts giving
rise to
the appeal.
[4]
At the commencement of the trial in the regional court, the
appellants pleaded not guilty and tendered no plea explanation.
Several witnesses testified for the State and identified the
appellants as the attackers who confronted the unarmed deceased at
his home, brutally stabbing him with a pitchfork and knives. As a
result of this attack the deceased succumbed to his injuries.
The
appellants denied being involved in the deceased’s murder. At
the close of the defences’ case an application to
re-open the
State’s case was allowed. Thereafter two witnesses called by
the trial court testified. At the end of their testimony
the trial
court amended the charge sheet in terms of
s 86(4)
of the
Criminal
Procedure Act 51 of 1977
, by deleting subsection (2) of s 51 of the
Act, stating that the amendment would not prejudice the appellants.
The charge was then
vague
–
reference
must be made to one of the two subsections so that there is clarity
as to which sentence is to be imposed.
[5]
Thereafter the trial court convicted the appellants of murder in
terms of s 51(1) read with Part 1 of Schedule 2, on the
basis
of the amended charge sheet, carrying with it the sentence of life
imprisonment. However, the trial court found that there
were
substantial and compelling circumstances justifying a departure from
the prescribed minimum sentence of life imprisonment
and sentenced
the appellants to 28 years' imprisonment each. On appeal the court a
quo held that the amendment effected by the
trial court was akin to
curing a ‘typing error’ which did not go to the substance
of the charge nor the sentencing
regime.
[6]
This court has held in numerous decisions that an accused person must
be apprised from the outset what charge he or she has
to meet, so
that he or she not only appreciates properly and in good time what
the charges are that he or she is facing but also
the consequences.
In
S v
Makatu
,
[1]
Lewis JA put it succinctly:
[2]
‘
.
. . [A]
n 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
.'
See
also
S v
Ndlovu
2003 (1) SACR 331 (SCA).
[3]
[7]
The effect of the amendment of the charge sheet brought about by the
magistrate was to expose the appellants to the prescribed
minimum
sentence of life imprisonment as opposed to a prescribed minimum
sentence of 15 years' imprisonment. This was done after
all the
evidence had been led and without affording the appellants any
opportunity to address the court on the question of prejudice,
and
whether the amendment should be effected. The failure to afford the
appellants a full and proper opportunity to address this
question, in
my view constituted a fundamental irregularity that infringed the
fair trial rights of the appellants, and destroyed
the validity of
the amendment. It follows that it is not possible to say with
certainty that the appellants suffered no prejudice
as a result of
the amendment and that they should have been sentenced in terms of s
51(2) of the Act. Had the appellants known
that they were being
charged with murder that was premeditated, or that they had a common
purpose in killing the deceased, they
may well have conducted their
defence differently.
[8]
This matter is thus to be distinguished from those in which it was
held that an irregularity did not vitiate the proceedings,
such as
S
v Kolea,
[4]
where it was found that the accused had known at the outset what
charges they faced. For these reasons the court a quo erred in
dismissing the appeal.
[9]
Accordingly, the appeal against sentence must succeed. Consequently
the appellants ought to have been sentenced to 15 years’
imprisonment in terms of s 51(2) unless there were substantial and
compelling factors justifying a deviation. I turn to consider
whether
there are any. The personal circumstances of both appellants are
similar. Both are young, first offenders and have spent
at least two
and half years incarcerated. These factors are to be taken into
account in determining whether a sentence of 15 years
is appropriate.
The court must also take into account the aggravating factors which
are significant. The deceased died of eight
stab wounds, four of
which penetrated the heart and the chest. This was a vicious and
cruel attack perpetrated with knives and
a garden fork on an unarmed
man: that it was a heinous attack is apparent from the nature of the
injuries and wounds. Cumulatively
the aggravating factors far
outweigh the mitigating factors. There is nothing exceptional about
the personal circumstances of either
of the appellants. In
S
v Vilakazi
2009 (1) SACR 552
(SCA) para 58,
Nugent JA stated as follows: ‘[i]n cases of serious crime the
personal circumstances of the offender, by themselves
will
necessarily recede into the background'. In my view, taking into
account all of these factors, there are no substantial and
compelling
circumstances present justifying a deviation from the prescribed
sentence of 15 years' imprisonment. It is a salutary
sentence in the
circumstances of this case for both appellants.
[9]
Accordingly, the appeal is upheld. The following order is made:
1
The appeal against the sentence imposed on both appellants is upheld.
2
The sentence imposed by the trial court on the appellants is set
aside and substituted as follows:
‘
Accused
1 and accused 4 are each sentenced to 15 years' imprisonment.'
______________________
H
K Saldulker
Judge
of Appeal
APPEARANCES:
For
the Appellant:
S Kruger
Instructed by:
Bloemfontein Justice
Centre
For
the Respondent:
E Liebenberg
Instructed
by:
Director of Public
Prosecutions, Bloemfontein
[1]
S v
Makatu
2006 (2) SACR 582 (SCA); [2007] All SA 470 (SCA).
[2]
Paragraph
7.
[3]
Mpati JA in
S
v Ndlovu
2003 (1) SACR 331
(SCA)
,
stated
at para 12 that ‘
…
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 be pertinently bought 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 properly appreciate
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’.
[4]
S v
Kolea
[2012]
ZASCA 199
;
2013
(1) SACR 409
(SCA).