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IN THE NORTH WEST HIGH COURT, MAHIKENG

CASE NO: CAF11/2016

In the matter between:

NICO MANNUEL KHOZA                                                                          1^ST APPELLANT

SIMON BENNET MHLONGO                                                                    2^ND APPELLANT

AND

THE STATE                                                                                                   RESPONDENT

LEEUW JP, GURA J & GUTTA J

 

DATE OF HEARING: 04 NOVEMBER 2016

DATE OF JUDGMENT: 09 FEBRUARY 2017

COUNSEL FOR THE APPELLANT: ADV NKHAHLE

COUNSEL FOR RESPONDENT: ADV MUNERI

 

JUDGMENT

 

LEEUW JP

Introduction

[1] The appellants together with their co-accused were arraigned and convicted of:

1. Murder and

2. Robbery with aggravating circumstances being present as defined in Section (1)(b) of the Criminal Procedure Act 51 of 1977 (The Criminal Procedure Act) by Hendricks J at the Circuit Court of this Division sitting at Tlhabane on the 11^th November 2005.  They were each sentenced to life imprisonment and twenty (20) years imprisonment respectively. The appeal, with the leave of the court a quo is against sentence only. Leave to appeal against conviction was refused.

[2] When the appellants were arraigned and pleaded to the charges, the court omitted to inform them about the applicability of the provision of the Criminal Law Amendment Act No 105 of 1997 (Criminal Law Amendment Act) which prescribes a compulsory minimum sentence of life imprisonment in respect of certain specified offences which amongst others include a conviction on murder, where substantial and compelling circumstances are not present.

[3] The provisions of this Act were neither included in the indictment nor were the appellants made aware of these provisions during the trial proceedings. It was only after conviction and during the sentencing stage, that the court made reference to the provisions of the Criminal Law Amendment Act. In considering sentence, the court found no substantial and compelling circumstances which warranted the deviation from imposing life imprisonment sentences on the appellants.

 

Submissions

[4] It is submitted by Counsel for the appellants Mr. Nkhahle that the appellants were not afforded a fair trial in that they were only informed about the applicability of Section 51(1) & (2) of the Criminal Law Amendment Act, when the court considered the sentence.

[5] Counsel for the state concedes that the court a quo misdirected itself and also takes the view that this court should consider the sentence afresh.

 

ISSUES

[6] The issues to be decided are;

a) whether an accused person should be informed at the onset of the trial before pleading to the charges or during the proceeding but before conviction ,about the applicability of the minimum sentence provisions prescribed in the Criminal Law Amendment Act;

If the answer to (a) is in the positive,

b) whether failure to inform an accused person as in (a) above or at any stage during the proceedings before the conviction, would render the proceedings irregular and contrary to the provisions of Section 35 (3)(a) of the Constitution of the Republic of South Africa, 1996 (The Constitution); and

(c) whether the sentence imposed is appropriate.

 

The Law

[7] Section 35(3) of the Constitution provides that:

“Every accused person has a right to a fair trial, which includes the right-

(a)  to be informed of the charge with sufficient detail to answer it.

[8] Section 51(1) and 51(2) of the Criminal Law Amendment Act prescribes that:

“51. Discretionary minimum sentences for certain serious offences

(1) 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 1 of Schedule 2 to imprisonment for life.

(2) 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 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)(a) If any court referred to in subsection (1) or (2) is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in those subsections, it shall enter those circumstances on the record of the proceedings and must thereupon impose such lesser sentence: Provided that if a regional court imposes such lesser sentence in respect of an offence referred to Part 1 of Schedule 2, it shall have jurisdiction to impose a term of imprisonment for a period not exceeding 30 years.

(6) This section does not apply in respect of an accused person who   was under the age of 16 years at the time of the commission of an offence contemplated in subsection (1) or (2).”

 

Should the accused person be informed about the provisions of Section 51(1) and (2) at the onset of the trial?

[9] In S v Legoa 2003(1) SACR 13 (SCA), the appellant was charged and arraigned with the statutory offence of unlawful dealing in dagga. The charge sheet referred to the Drugs and Drug Trafficking Act No 140 of 1992 which affords the Court a discretion to impose a sentence prescribed in terms of the that Act. When the appellant pleaded to the charge, there was no reference made to the minimum sentence provisions of the Criminal Law Amendment Act which prescribed a minimum sentence in the absence of substantial and compelling circumstances. The appellant was informed about the Criminal Law Amendment Act only after conviction, and was sentenced in accordance therewith.

[10] The court unanimously held that it was highly unfair for the court to impose the penal provisions prescribed in the Criminal Law Amendment Act, when the appellant was only informed about it after conviction. The sentence imposed was set aside and the court considered the sentence afresh.

[11] Cameron JA (as he then was) on behalf of the court, held the view that the Criminal Law Amendment Act, by specifying the enhanced penal jurisdiction for certain specified offences, did not create a new type of offence. The Court further stated that:

“[20] Under the common law it was therefore ‘desirable’ that the charge sheet should set out the facts the State intended to prove in order to bring the accused within an enhanced sentencing jurisdiction. It was not however essential.¹⁶ The Constitutional Court has emphasised that under the new constitutional dispensation, the criterion for a just criminal trial is ‘a concept of substantive fairness which is not to be equated with what might have passed muster in our criminal courts before the Constitution came into force’.¹⁷ The Bill of Rights specifies that every accused has a right to a fair trial. This right, the Constitutional Court has said,¹⁸ is broader than the specific rights set out in the sub-sections of the Bill of Rights’ criminal trial provision.¹⁹ One of those specific rights is ‘to be informed of the charge with sufficient detail to answer it’.²⁰ What the ability to ‘answer’ a charge encompasses this case does not require us to determine. 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 1997 statute should be clearly set out in the charge sheet.”

(Emphasis added and footnotes excluded).

[12] In S v Ndlovu 2003 (1) SACR 331 (SCA), the appellant was charged with the unlawful possession of a semi-automatic pistol. A conviction on this offence for a first offender in terms of section 51 (2) (a) (i) of the Criminal Law Amendment Act prescribes that a minimum sentence of fifteen (15) years imprisonment be imposed, unless substantial and compelling circumstances are present. The charge preferred against the appellant pertinently stated that he is charged with contravention of section 2 read with amongst others section 39 (2) of the Arms and Ammunition Act 75 of 1969. The latter section stipulates the penalty for contravention of section 2 is a fine of R12 000-00 or three (3) years imprisonment or both. When the apellant was sentenced, reliance was placed on the minimum sentences prescribed in the Criminal Law Amendment Act, even though this Act was not stated in the charge sheet or brought to the attention of the appellant before conviction.

[13] The Court adopted the principle in Legoa supra and held the view that the appellant was prejudiced because throughout the trial until conviction, he was under the impression that he was facing a more lenient sentence than the one prescribed in the Criminal Law Amendment Act. He was as a result, not afforded a fair trial which right is entrenched in section 35 (3) (a)-(o) of the Constitution.

[14] Mpati JA (as he then was) for the court remarked that:

“The following extract from the judgment of the Full Court in S v Seleke en Andere 1976 (1) SA 675 (T) at 682H was quoted with approval by Cameron JA (his translation from Afrikaans):

‘To ensure a fair trial it is advisable and desireable, highly desirable in the case of an undefended accused, that the charge-sheet should refer to the penalty provision. In this way it is ensured that the accused is informed at the outset of the trial, not only of the charge against him, but also of the State’s intention at conviction and after compliance with specified requirements to ask that the minimum sentence in question at least be imposed..’

“The enquiry, therefore, is whether, on vigilant examination of the relevant circumstances , it can be said that an accused had had a fair trial. And I think 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 pertinently be brought 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 appreciate properly 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.”

See also S v Makatu 2006 (2)SACR 582 (SCA).

[15] In S v Mashinini and Another 2012 (1) SACR 604 (SCA) the appellants were charged at the Regional Court with rape which charge was erroneously read with the provisions of Section 51(2) instead of Section 51(1) of the Criminal Law Amendment Act. The former section prescribes a minimum sentence of 10 years imprisonment where substantial and compelling circumstances are not present. The error was only brought to the attention of the appellants, after conviction and during the sentencing stage. The appellants were commited for sentence by the High Court and were sentenced to life imprisonment as prescribed in section 51 (1) of the Criminal Law Amendment Act. This sentence was set aside by the SCA.

[16] Mhlantla JA for the majority decision stated in paragraph [17] and [18] that:

“[17] In this matter the state decided to restrict itself to section 51 (2), where part III of schedule 2 prescribes a sentence of ten years’ imprisonment. This is what was put to the appellants and to which they pleaded guilty. It was not thereafter open to the court to invoke a completely different section which provides for a more severe sentence, unless the state had sought and been granted an amendment of the charge-sheet in terms of section 86 of the Criminal Procedure Act prior to conviction. The state did not launch such an application. The magistrate was therefore bound to impose a sentence in terms of section 51 (2) read with part III of schedule 2.

[18] In my view the fact that the proceedings had been stopped and referred to the high court for sentencing cannot be regarded as a ground to deprive the accused of his constitutional right to a fair trial. This is akin to allowing the state to benefit from its own mistakes. In the result, I find there was misdirection which vitiates the sentence. The misdirection lies in the fact that the appellants were sentenced for an offence different to the one for which they were convicted. There was therefore no need for this matter to be referred to the high court, as the regional magistrate had the competence to sentence the appellants. Undoubtedly, the judge below erred in sentencing the appellants in terms of section 51 (1) instead of section 51 (2) read with part III of schedule 2 of the Act. The appeal against sentence has to succeed.”

[17] In S v Kolea 2013(1) SACR 409 (SCA) the court was faced with a situation similar to as in Mashinini supra: The appellant was arraigned on a charge of rape and the matter referred to the high court for sentence on the basis that the charge sheet erroneously referred to Section 51(2) instead of Section 51(1) of the Criminal Law Amendment Act. Mbha AJA for the Full Court, held that the majority judgment in Mashinini misread the provisions of section 51(2) and stated the following in paragraphs [17], [18] & [19]

“[17] In my view the majority, with respect, misread the provision of section 51 (2). The term of ten (10) years imprisonment referred to therein is the minimum sentence that can be imposed. This means that any sentence in excess of ten years imprisonment, and possibly even life imprisonment, could be imposed by a court having jurisdiction to do so. Furthermore, the fact, that a statute provides for an increased sentence with reference to a particular type of offence when committed under particular circumstances, does not mean that a different offence has been created thereby. In S v Moloto Rumpff CJ held that, where an accused is charged with robbery committed with aggravating circumstances, this did not create a new category of robbery, but simply meant that the court had a discretion, where such aggravating circumstances existed, to impose the increased sentence in terms of section 277 (1) (c) of the Criminal Procedure Act, in that case the death penalty. The fact, that the Act specifies penalties in respect of certain offences (in this case rape, where more than one person raped the victim), does not in any way mean that a new type of offence has been created. Rape remains rape, but the Act provides for a more severe sanction where, for an example, the victim has been raped more than once or by more than one person.

[18] Section 86 (4) of the Criminal Procedure Act provides that the fact, that a charge is not amended as provided in this section, shall not, unless the court refuses to allow the amendment, affect the validity of the proceedings. A reading of this section establishes that a formal application to amend a charge-sheet is not always required. The fact, that a charge-sheet had a defect which was never rectified in terms of section 81 (1), as was the case both in Mashinini and in this case, did not of its own render the proceedings invalid. The test is always whether or not the accused suffered any prejudice.

[19] A close investigation of the circumstances in Mashinini reveals that section 51(2) of the Act was erroneously typed instead of section 51 (1) of the Act; that the appellants were correctly apprised of the applicability of the increased penalty of the provisions of the Act, that they pleaded guilty to a charge involving multiple rape which, in any event, is not even applicable to section 51 (2); that they never complained of, nor showed that they had suffered, any prejudice; and that they participated fully in the trial. In view of what I have said above, I believe that the appellants in that case were not in any way prejudiced by the erroneous reference to section 51 (2) instead of section 51 (1) in the charge-sheet. I am therefore satisfied that the conclusion at which the majority arrived in Mashinini was clearly wrong.

The court went further to reiterate and endorse the principles enunciated in Legoa supra that: it is crucial for the court to establish whether an accused person was afforded a fair trial by considering substance and not form.

[18] Mbha AJA remarked in paragraph [10] with reference to Ndlovu supra that:

“The court, however, left open the question whether, or in what circumstances, it might suffice if the charge and its possible consequences were brought to the attention of the accused during the course of the trial. What is clear, however, is that the court never expressly ruled as improper or irregular the fact that possible consequences of an offence were never spelt out to the accused at the commencement of the trial. As Ponnan JA recently said in his minority judgment in S v Mashinini and Another:

“I have been pains to stress, as enjoined by the authorities to which I have referred, that a fair trial enquiry  does not occur in vacuo, but that it is first  and foremost a fact-based enquiry. And, as I have already stated any conclusion as may be arrived at requires a vigilant examination of all the relevant circumstances.”

[19] Having, considered the evidence in the court a quo, the court concluded that the appellant did not suffer any prejudice. The sentence of life imprisonment imposed was confirmed.

[20] In Ndlovu v The State (204/2014). [2014] ZASCA 149 (26 September 2014) unreported, the court endorsed the principle in Kolea supra and remarked in paragraph [14] that:

“….No factual foundation has been laid by the appellant to support a finding that his right to a fair trial was prejudiced by the error on the charge sheet. This court has held that such mistakes must be approached in the context of fairness as it applies both to the accused and the public represented by the state”.  

Compare Machogo v S [203 44/14][2014] ZASCA 179 (21 November 2014) where the court applied the test in Ndlovu in paragraph [12]  supra.

[21] In a recent decision of Moses Tshoga v The State (635/2016) 2016 ZACSA 205 (15 December 2016), the appellant was sentenced to life imprisonment for the rape of a 10 year old girl. As with the other cases referred to above, he was only informed about the provisions of Section 51(1) of the Criminal Law Amendment Act during the sentencing stage, when the Regional Court Magistrate referred the matter to the High Court for sentencing.

[22] The Court (in Tshoga), in adopting the approach in Kolea, observed in paragraph [20] and [21] & [22] thereof that:

“[20] This court in Kolea thus digressed from the other cases that said that there had to be a vigilant examination (Legoa and Mashinini); ‘a fair trial enquiry does not occur in vacuo, but … is first and foremost a fact based enquiry’(Mthembu); that’[T]he enquiry, therefore, is whether, on a vigilant examination pf the relevant circumstances, it can be said that an accused had had a fair trial; and… at least be required that the accused be given sufficient notice of the State’s intention to enable him to conduct his defence properly (Ndlovu).The court however found, in Kolea, that the appellant had not been prejudiced. The court considered that fact that the appellant did not raise any prejudice in the conduct of his trial due to the failure to refer to Section 51(1) of the Act in the charge sheet in the regional court. The court also had regard to the fact that the state had, at the outset, made it clear that it intended to rely on the Act in the charge sheet. It is this latter factor that distinguishes Kolea from the instant matter; no reference to the Act was made in the charge sheet.

[21] What then is the effect of the pronouncement in Kolea that the Act must be brought to the attention of the accused at the outset of the trial? The difference between the ratio and obiter dictum of a judgment was described as follows in Turnbull-Jackson v Hibiscus Coast Municipality & others:

“Literally, obiter dicta are things said by the way or in passing by a court. They are not pivotal to the determination of the issue or issues at hand and are not binding precedent. They are to be contrasted with the ratio decidenti of a judgment, which is binding.

And (para 56)

‘Only that which is truly obiter may not be followed. But depending on the source, even obiter dicta may be of potent persuasive force and only departed from after due and careful consideration.’

[22] In Kolea the court was not saddled with, and it did not pronounce upon, what the position would have been had the Act not been mentioned, as it had been mentioned. Therefore the pronouncement that the Act had to be mentioned in a charge sheet at the outset of a trial was obiter dictum for it was not necessary for the decision of this Court in determining whether or not there had been prejudice. Since it decided that there was a reference to the Act any discussion as to what the position would have been had there been no reference to the Act, could not advance the reasoning by which the decision was reached. It is also clear that the discussion in Kolea as to the possibility of prejudice considered that substance was of paramount importance and that form was secondary.I am of the view that a pronouncement that the Act had to be mentioned in the charge sheet or at the outset of the trial would be elevating form above substance. Every case must be approached on its own facts and it is  only after a diligent examination of all the facts  that it  can be decided whether and accused had fair trial or not”

(Emphasis added).

[23] In the present case, it is consequently crucial for this court to establish whether or not the appellants were prejudiced to the extent that they were not afforded a fair trial, based on the omission to pre-warn them about the applicability of Section 51 either from the onset when their trial resumed or during the trial, before sentencing.

[24] The appellants were legally represented by Counsel throughout the trial until they terminated their mandate before the close of the state’s case. They were afforded an opportunity to obtain legal aid, and when counsel were provided, they mandated counsel to apply for the recusal of the presiding Judge. Their application was dismissed. As a result, they elected not to participate in the court proceedings. They terminated the mandate of their counsel and despite being extensively informed about their rights to legal representation, they decided to remain silent and not respond to questions from the Court. They proceeded unrepresented only after several state witnesses had testified and when the medical evidence as well as the evidence of the investigating officer were presented by the state.

[25] The rights to cross-examination and their rights after the close of the state’s case were fully explained to them; the presiding Judge warned them about the seriousness of the charges they were facing, continuously urging them to participate in the proceedings. They nonetheless elected to remain silent and inactive during the trial. After the close of the state’s case, they did not present their case. They were convicted without making representations to the court. They continued with their silence during the sentencing proceedings without presenting evidence in mitigation. This in spite of the fact that they were now informed about the minimum sentence prescribed by the Criminal Law Amendment Act.

[26] The appellants, through their recalcitrant conduct, cannot at the appeal stage raise the issue of irregularity when they had taken an informed decision not to participate during the trial. Even in their notice of appeal to this Court, the appellants do not state how they were prejudiced by the court’s failure to inform them about the provisions of the Criminal Law Amendment Act before conviction. Their ground of appeal is that the sentence imposed is shockingly inappropriate. The issues of irregularity and misdirection for failure to inform the appellants about the minimum sentence prescribed, was only brought up by counsel for the appellants during argument.

[27] I am of the view that based on the cases referred to above, failure to inform the appellant of Section 51 did not vitiate the sentencing proceedings. To decide otherwise would amount to this court over- emphasising form above substance. I am of the view that there was no irregularity or misdirection committed by the presiding Judge in the court a quo. The appellants were afforded a fair trial. See Ndlovu v The State  in paragraph [20] supra.

 

Is the sentence imposed appropriate?

[28] The appellants, despite being persuaded by the court, elected not to place any factors in mitigation before the court a quo. However, the following factors appear in the record of proceedings: The appellants are first offenders. The first appellant was twenty nine (29) years old and second appellant was also twenty nine (29) years of age. Even on appeal, counsel for the appellants did not place any further personal factors in favour of the appellants in mitigation of sentence.

[29] It is apparent from evidence presented in the court a quo that:

“29.1 The appellants, together with their co-accused in the court a quo broke and entered the house of Mr Ntlhake Charles Masebe, at night, when he was having supper in the kitchen with his family and and one Nkqae, Charles, Basebe and Ferdinand Moyane.

29.2  They ordered all the people who were in the house to lie on the floor and proceeded to search and demand money from the deceased, an old man who was conducting a general dealer’s business. They took him to a separate room where they ordered him to give them money. He was held at gun-point and when he told them that he did not have money, he was shot around the chest area. The deceased then called out his wife Esther, to give the appellants the money. The deceased, was asking one of the assailants as to why they are killing him.

29.3 Esther took the assailants to a room where the money was kept in a safe. She unlocked the safe and gave them an amount of R5400.00. They also took one fire arm from the safe. They demanded the keys of the Toyota Hilux vehicle from Ferdinad Moyane, who was also assaulted. They removed some bedding from the bedroom and robbed their victims of their  cell phones. They drove away with the Toyota Hilux. The deceased was taken to hospital where he was certified dead on arrival.

[30] The two appellants were found guilty of murder and robbery with aggravating circumstances being present on the basis of the doctrine of common purpose. The court found that the first appellant is the person who identified the deceased as the target for the robbery when the plan to rob him was hatched. He and the second appellant were together in the vehicle when they proceeded to the house of the deceased. They were aware of the fact that their companions including the second appellant, were in possession of fire-arms.

[31] After the robbery they all proceeded together in their vehicle as well as the deceased’s vehicle to a veld where they shared the spoils. The first appellant was distributing the money amongst them and they each received a share. The first appellant in addition received the cell phone taken from one of the victims.

[32] The robbery was pre-planned. The appellants and their companions, whilst wielding fire-arms, attacked the deceased and his family in the privacy of their home. The deceased was shot despite having instructed his wife to hand over the key of the safe and the money to them.

[33] There is nothing on the record to suggest that the appellants are remorseful. During the trial the appellants were not co-operative. They decided to terminate the mandate of their legal representatives, when they did not succeed in the application for the recusal of the Presiding Judge. They instructed their legal representatives not to ask any questions on their behalf. They decided to conduct their own defence, and resolved not to participate in the proceedings. Pursuant thereto, the case was finalized in their presence albeit without their active participation in the proceedings.

[34] The offences committed by the appellants are serious. The family of the deceased lost a breadwinner who was killed for his hard earned money. The interests of society demand that stringent sentences should be imposed to combat the commission of such crimes. Although the appellants were not informed from the outset about the possibility of a minimum sentence of life imprisonment as prescribed by section 51 (1) of the Criminal Law Amendment Act, life imprisonment sentence on conviction of murder, is one of the sentences that may be imposed at the discretion of the court. See DPP, Western Cape v Prins 2012 (2) SACR 183 (SCA) paragraph (31) and Machongo v S (20344/14) [2014] ZACSA 179 (21 November 2014).

[35] As sentence lesser than life imprisonment for murder and 20 years imprisonment for robbery would not be appropriate in the circumstances of this case. I am of the view that a lengthy term of imprisonment will convey the seriousness in which the court views the crimes committed by the appellants. In the premises, the sentence imposed by the court a quo against both appellants is appropriate.

 

Order:

[36] Consequently the appeal against sentence is dismissed.

 

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____________________

M M LEEUW

JUDGE PRESIDENT

NORTH WEST DIVISION, MAHIKENG

 

 

I AGREE

 

 

____________________

 SAMKELO GURA

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

 

I AGREE

 

 

____________________

N GUTTA

JUDGE OF THE HIGH COUR

NORTH WEST DIVISION, MAHIKENG

 

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