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IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

CASE NO: A953/02

In the matter between:

SEKGOBELA, MATTHEW                                                    First Appellant
DLAMINI, DLANA                                                Second Appellant

and

THE STATE                                                              Respondent

CASE NO: A49/03

In the matter between:

TEBELE, SOLOMON DONGOSI                    Appellant

and

THE STATE                                                                       Respondent

CASE NO: A680/04

In the matter between:

KILANE, MANDLA                                                         Appellant

and

THE STATE                                                                       Respondent

CASE NO: A09/03

In the matter between:

MAHLASELA, VINCENT LUVUYO Appellant

and

THE STATE                                                                       Respondent

CASE NO: A499/03

In the matter between:

MAGASELA, RICHARD                                   Appellant

and

THE STATE                                                                       Respondent

J U D G M E N T

MBHA, J:

[1]      The above five cases are appeals against criminal convictions and sentences imposed in separate regional courts which have all been set down for hearing on the same day in this court. All five cases exhibit exactly the same problem and require the same solution. In four of the cases the appellants were convicted of raping girls who were under the age of 16. In the one case, the appellant was charged with the multiple rape of an adult woman. These are all offences which are referred to in Part 1 Schedule 2 of Act No. 105 of 1997.

[2]      The provisions of section 52 of Act No 105 of 1997 are applicable to all five cases which provide that:

“(1) if a regional court, after it has convicted an accused of an offence referred to in Schedule 2 following on:

(a) a plea of guilty; or
(b) a plea of not guilty, 

but before sentence is of the opinion that the offence in respect of which the accused has been convicted merits punishment in excess of the jurisdiction of a regional court in terms of section 51, the court shall stop the proceedings and commit the accused for sentence by a high court having jurisdiction.”

[3]      Having convicted the appellants, the regional magistrates in the courts a quo, although aware of the minimum sentence provisions as set out in Act No 105 of 1997 nonetheless proceeded to sentence the appellants. 

[4]      The fundamental irregularity committed by the learned magistrates was the failure to have regard to the provisions of section 52(1) of Act 105 of 1997 read with Part 1 of Schedule 2 thereto, which, as stated above, requires that on conviction either for multiple rape or for the rape of a person under the age of 16, the regional magistrate shall halt the proceedings and refer the accused to a high court judge for sentencing in respect of the charges. If a judge confirms the conviction he or she will determine the sentence to be imposed on the accused. After an enquiry into whether there are substantial and compelling circumstances the judge will decide whether to impose life imprisonment or a lesser sentence.

I now proceed to give a brief overview of what happened in each case.

[5]      

5.1      State v Sekgobela/Dlamini : Case No A953/02

5.1.1    The three accused were charged in the Regional Court Kempton Park with the multiple rape of a woman and robbery of the same woman at the point of a knife. Each accused tendered a statement in terms of section 112(2) of the Criminal Procedure Act No 51 of 1977 in which they pleaded guilty to the count of rape and armed robbery.

5.1.2    Having satisfied himself that the accused had pleaded to all the elements of the crime the learned magistrate accordingly proceeded and convicted the accused as charged.

5.1.3    The learned magistrate then proceeded to sentence the accused. Reference was made to the provisions of section 51 of Act 105 of 1997. He also referred to the remarks by Malan J in S v S  2001 (1) SACR 79 (W) at 83 para [6] where he said the following:

“However the ordinary penal jurisdiction of a regional court in respect of these offences has not been affected by the amending Act and the regional court may pass sentence within the limits of its ordinary jurisdiction (i.e. up to 15 years’ imprisonment). But if the regional court is ‘of the opinion that the offence in respect of which the accused has been convicted merits punishment in excess of the jurisdiction of a regional court in terms of section 51’ (see Mdatjiece at p 17 where this phrase was held to refer to a punishment which section 51 does not confer jurisdiction on the regional court to impose), it becomes its duty to refer the matter for sentence to the high court. A regional court can only commit an accused for sentence in the High Court if it has in fact formed the required opinion.”

5.1.4    The learned magistrate then said that in his opinion the crime of rape committed does not merit a punishment in excess of his jurisdiction. He then sentenced each accused to 15 years’ imprisonment in respect of the (multiple) rape. He also sentenced each accused to 15 years’ imprisonment in respect of the second count of armed robbery. It is some concern to me that the charge-sheet drawn against the three accused give no indication whatsoever that the rape of the complainant constituted a “multiple rape” and therefore fell within Part 1 of Schedule 2 of Act 105 of 1997. However, all three accused themselves remedied this defect in their section 112(2) plea statements which make it quite clear that sexual intercourse was had by all three of the accused with the complainant. Five years on the second count was to run concurrently with the sentence in respect of the conviction of rape. There is no problem with the sentence in respect of the count of robbery.

5.2     S v Tebele, Solomon : Case No A49/03

5.2.1    The accused a 35 year old male, was convicted for rape and for the indecent assault of a 10 year old girl and was sentenced to 15 years’ imprisonment in respect of each count. Both offences are referred to in Part 1 of Schedule 2 of Act 105 of 1997. Significantly, the charge-sheet clearly made reference to the applicability of Act 105 of 1997 to these offences. The accused was sentenced on 27 June 2002.

5.2.2   After convicting the accused, the learned magistrate informed him that unless it was shown that there were substantial and compelling circumstances in his case, then the matter would have to be sent to the high court for sentencing. In reply the prosecutor requested the magistrate to exercise his discretion and decide whether to refer the matter to the high court for sentencing. He said if the court chose to sentence the accused, he would then request the minimum sentence “which is required by the law”. The learned magistrate considered the accused’s age, the fact that he was a first offender and the crowded roll of the high court to be substantial and compelling circumstances and for these reasons he elected to proceed and sentence the accused. He expressly stated that if the matter were to be referred to the high court the accused would have to wait a minimum period of 18 months before it would be finally disposed of.

5.3     S v Kilane : Case No A680/04

5.3.1  The appellant was charged with the rape of a 12 year old girl. On 27 November 2001 he was convicted as charged and was sentenced to 15 years’ direct imprisonment.

5.3.2   After convicting the accused, the learned magistrate immediately proceeded to hear evidence in mitigation and commented that “although this offence does fall within the ambit of the Minimum Sentence Act the court is of the opinion that it does not merit a punishment in excess of this court’s jurisdiction”. Thereafter he proceeded to sentence the accused.

5.4      S v Mahlasela : Case No A101/02

5.4.1    The appellant was charged with the rape of a 6 year old girl which occurred during the period January to November 2001. He was 41 years old at the time. On 4 September 2002 he was convicted as charged and sentenced to 15 years’ imprisonment. This offence is one referred to in Part 1 of Schedule 2 of Act 105 of 1997 and the charge-sheet clearly made reference to the applicability of this Act. After the accused was convicted he led evidence in mitigation. In his address his defence counsel argued that there were substantial and compelling circumstances in the matter “for the court not to exercise the minimum sentence in terms of the Act which will be life imprisonment”. Thereafter he requested the court to sentence the accused in terms of the court’s jurisdiction.

5.4.2    In reply the State submitted that the matter fell to be referred to the high court for sentencing and that the sentence which the court a quo could impose in terms of its jurisdiction would not be appropriate and that it would be lenient to the accused.

         
5.4.3   The learned magistrate found that the aspect of mercy as a factor to be considered in sentencing amounted to substantial and compelling circumstances and he proceeded to sentence the accused.

5.5     S v Magasela, R : Case No A499/03

5.5.1   The appellant then 50 years old, was charged with the rape of a 12 year old girl which allegedly happened on 16 July 2000. 

5.5.2    He was convicted as charged and on 2 October 2001 he was sentenced to serve a term of 15 years’ imprisonment. The charge-sheet clearly made reference to the applicability of Act 105 of 1997 to this offence.

5.5.3    After convicting the accused, the learned magistrate invited an address from the defence to show whether the offence was one in which the court could sentence on the basis of Malan J’s dicta in S v S (supra).

5.5.4   Relying on S v S (supra) the learned magistrate said that the court had to look at the offence to decide whether it was of such a nature that it fell within the normal penal jurisdiction of the court and having done so then decide whether he had to refer the accused to the high court for sentence. The learned magistrate went on to state that there were different grades of rape in that some were more vicious than others. Having considered the personal circumstances to be a major factor in the accused’s favour he then proceeded to sentence the accused.

5.6    Act 105 of 1997

5.6.1    From the comments made by the presiding magistrates in all the cases, it is apparent that they either misread or misunderstood the provisions of the Criminal Law Amendment Act No 105 of 1997. As can be seen from the wording of section 52(1) if a regional court, following on a plea of guilty or not guilty, has convicted an accused of an offence referred to in Part 1 of Schedule 2 or an offence referred to in parts 2, 3 or 4 of Schedule 2 and the court is of the opinion that the offence concerned merits punishment in excess of the jurisdiction of a regional court in terms of section 51(2), the courtshall stop the proceedings and commit the accused for sentence by a high court. The language of section 52(1) is peremptory. It affords no discretion to the regional court in determining whether or not the proceedings will be referred to the high court. The only jurisdictional fact required to set the process in section 52(1) in motion is that there must be a conviction of an offence referred to in Parts 1 to 4 of Schedule 2 of the Act.

5.6.2   If an accused has been convicted of an offence referred to in Part 1 of Schedule 2 of the Act, as was the case in all the five matters being dealt with in this judgment, the proceedings in the regional court have to be stopped and the accused has to be committed for sentencing in the high court. The record of the proceedings in the regional court shall be received by the high court and form part of the record of the court.

5.6.3   The high court must satisfy itself that the accused is guilty of the offence. In coming to a decision on this issue the high court is entitled to call for further evidence. If the judge is of the opinion that the proceedings are not in accordance with justice or doubt exists whether the proceedings are in accordance with justice, he or she can, prior to sentencing the accused, obtain from the regional magistrate who presided at the trial a statement setting forth his or her reasons for convicting the accused. 

5.6.4   The judge may confirm the conviction and impose a sentence, alter the conviction to a conviction of another offence referred to in Schedule 2, alter the conviction to a conviction of an offence other than an offence referred to in Schedule 2, set aside the conviction, remit the case to the regional court with an instruction to deal with any matter in such manner as the high court may deem fit or make such order in regard to any matter or thing connected with such person or the proceedings in regard to such person as the high court deems likely to promote the ends of justice.

5.6.5   In reaching a decision the judge’s discretion should not be affected or influenced by any judgment or opinion of a court of appeal. For this reason I deliberately omitted to deal with the evidence on the merits in any of the cases concerned.

5.6.6   It is therefore clear that the courts a quo did not have the jurisdiction or power to sentence any of the accused. A similar irregularity happened in the case of S v Liau  2005 (1) SACR 498 (T) where the court found in identical circumstances that the sentence imposed by the regional magistrate was a nullity. In this case it was held that where a regional court convicts an accused of an offence mentioned in Part 1 of Schedule 2 of Act 105 of 1997 and the accused is sentenced without referring the case to the high court, the sentence imposed is a nullity. It was also found that where the accused thereafter appeals, she or he must be regarded as not having been sentenced and that such appeal must be dealt with as follows:

5.6.6.1 The court must decide whether it is in the interests of justice to hear the appeal. At that stage the court hears argument on the appeal against conviction and considers whether the appeal should succeed. 

5.6.6.2 If the appeal against conviction must succeed the appeal is heard and the conviction and sentence are set aside.

5.6.6.3 In terms of the court’s review competency in terms of section 304(4) of the Criminal Procedure Act 51 of 1997 the regional court’s sentence is set aside and an order is made with the regional court should have made.

5.6.6.4 If the court is of the opinion that the appeal has no prospect of success it is struck from the roll. 

5.6.6.5 I have already stated that it is inadvisable for a court of appeal to express an opinion that the appeal has no prospect of success because of the provisions of section 52(1) of the Act. The single judge to whom the regional magistrate refers the matter to decide whether the accused’s conviction should or should not be confirmed should not be affected or influenced by any judgment or opinion of the court of appeal.

5.6.6.6 The decision in S v Liau (supra) followed that of Direkteur van Openbare Vervolgings, Transvaal v Makwetsja  2004 (2) SACR 1 where a full bench of the Transvaal Provincial Division determined (I quote from the head note):

“A regional court does not have the discretion to determine whether an offence in respect of which an accused has been found guilty justifies the imposition of life imprisonment (which is beyond the jurisdiction of the regional court), when the offence is one which is listed in Part 1 of Schedule 2 to the Criminal Law Amendment Act 105 of 1997, or whether in the alternativesubstantial and compelling circumstances exist which justify a lighter sentence. The regional court must (my emphasis) stop the proceedings and refer the accused to the high court for sentencing.”

5.6.6.7 It appears to me that there has been a misunderstanding of what Malan J held in S v S  2001 (1) SACR 79 (W). Here the learned judge expressly held that a regional court convicting a person of any offence referred to in Part 1 of Schedule 2 of Act 105 of 1997, could not sentence such person in terms of the provisions of section 51(1). The court also held that a regional court could pass sentence within the limits of its ordinary jurisdiction namely 15 years’ imprisonment. Obviously this relates to offences committed under Parts 2, 3 and 4 of Schedule 2 of Act 105 of 1997. In such instances if the regional court was of the opinion that the offence merited punishment in excess of the jurisdiction of the regional court, it was then obliged to refer the matter for sentence to the high court. 

In my view the court erroneously remitted the matter back to the regional court to either pass sentence or if the learned magistrate was of the opinion that the matter merited punishment in excess of the court’s jurisdiction, to then commit the accused to the high court for sentence. My view is based on the fact that the particular offence in that case and the offences in all these cases fall within the ambit of Part 1 of Schedule 2 of Act 105 of 1997 in respect of which only the high court has jurisdiction to impose the minimum sentence of life imprisonment. Little purpose would be served in referring these cases back to the magistrates in the trial courts because all the learned magistrates are empowered to do so is to refer each matter to a single judge of the high court in terms of section 51(1).

[6]      It is therefore clear that in all five cases with which we are here concerned, the court a quo erred in sentencing the accused and they all have to be set aside.

[7]      What is of some concern to me is the obvious prejudice that is invariably going to befall the accused. All the accused were in their minds, validly sentenced. Their appeals against convictions and sentence are based on the merits. Considerable time has since elapsed from the imposition of sentence to the date of hearing of their appeals. The accused have since served a considerable part of their sentences and some of them may even be due for parole. The setting aside of the sentences and the imposition of new sentences which will not happen in the immediate future means that their trials will have taken unduly long to complete.

[8]      Section 35(3)(d) of the Constitution affords an accused the right “to have their trial begin and conclude without unreasonable delay”.

[9]      In S v Dzukuda and Others  2000 (10) BCLR 1101 (W) at pages 1120 to 1121, Lewis J deals with the effect of the whole fragmented approach brought about by sections 51 and 52 of the Criminal Law Amendment Act and deals with the procedure that is followed from the time the regional court halts the proceedings once the accused has been convicted up until the time he is sentenced in the high court. At page 1121 paragraph E she states that:

“But on the assumption that reasons furnished would satisfy the judge that he or she could proceed with the sentencing process, there is inevitable further delay in the whole fragmented process. The accused must wait, in prison, not knowing whether his conviction might be set aside, or whether he faces a sentence of life imprisonment or a lesser sentence. The anxiety, uncertainty and frustration that is experienced must be enormous. It is no answer to say that he has already been convicted; that he faces life imprisonment, and that the delay can make no difference. Even a convicted person is entitled to be treated humanely, and in such a way that his dignity is not unduly impaired.”

[10]     The learned judge then concludes that the inevitable institutional delay created by section 52 of Act 105 of 1997 is an infringement of the right to a trial that begins and concludes without unreasonable delay.

[11]     However the Constitutional Court held that the court a quo failed to consider the substantial qualitative difference between a delay which occurred before conviction and a delay which occurred after conviction. The court also held that Lewis J in considering the issue of delay had applied her mind only to the striking of section 52 as a remedy for the delay.

[12]     On the other hand, there are, I suspect, quite a number of other accused who were wrongly sentenced in similar circumstances than in the five cases with which we are here concerned but who have, either knowingly or unwittingly, elected not to lodge any appeal against their convictions and sentence. It is trite that some of these could well have been sentenced to life imprisonment had they been committed to the high court for sentencing. They are clearly enjoying an unjustified benefit by reason of the misdirections in the trial courts. 
[13]     I accordingly make the following orders:

         14.1     Sekgobela, Matthew and Dlamini, Dlana v S : Case No A953/02

1.     The sentence imposed by the trial court in respect of the count of rape is set aside.
2.     The appeal is struck off the roll.

3.      The matter is referred to a single judge of the high court to proceed in terms of Section 52 of Act 105 of 1997.

14.2     Tebele, Solomon Dongosi v S : Case No A49/03

1.      The sentence imposed by the trial court is set aside.
2.       The appeal is struck off the roll.
3.      The matter is referred to a single judge of the high court to proceed in terms of Section 52 of Act 105 of 1997. 

         14.3     Kilane, Mandla v S : Case No 680/04

1.      The sentence imposed by the trial court is set aside.
2.       The appeal is struck off the roll.
3.      The matter is referred to a single judge of the high court to proceed in terms of Section 52 of Act 105 of 1997.

14.4     Mahlasela, Vincent Luvuyo : Case No A09/03

1.      The sentence imposed by the trial court is set aside.
2.       The appeal is struck off the roll.
3.       The matter is referred to a single judge of the high court to proceed in terms of Section 52 of Act 105 of 1997.

14.5     Magasela, Richard: Case No A499/03

1.      The sentence imposed by the trial court is set aside.
2.       The appeal is struck off the roll.
3.      The matter is referred to a single judge of the high court to proceed in terms of Section 52 of Act 105 of 1997.

                                             ________________________

                                                               B H MBHA

                                             JUDGE OF THE HIGH COURT

I agree:

                                             _________________________

                                                      K SATCHWELL

                                             JUDGE OF THE HIGH COURT

Date of Judgment:                 2^nd March 2006

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