THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 502/11

In the matter between

JACOB MASHININI

1st   Appellant
SIMON MFANAFUTHI ABOLISI

2nd  Appellant

and

THE STATE

Respondent

Neutral citation:  Mashinini v The State (502/11) [2012] ZASCA 1 (21
February 2012)

Coram:
PONNAN, MHLANTLA and BOSIELO JJA

Heard:
22 November 2011

Delivered:    21 February 2012

Summary:  Appeal – sentence – Criminal Law Amendment Act 105 of
1997 – s 51 – appellants convicted of rape read with the provisions of s
51(2) – applicable minimum sentence – 10 years' imprisonment – high
court imposed sentence of life imprisonment in terms of s 51(1) –
material misdirection entitling this court to interfere.

___________________________________________________________

ORDER
___________________________________________________________

On appeal from: South Gauteng High Court (Johannesburg) (Prinsloo J
sitting as court of first instance):

1         The appeal is upheld.
2         The sentence imposed by the court below is set aside and replaced
with a sentence of ten years' imprisonment. The sentence is antedated in
terms of s 282 of the Criminal Procedure Act 51 of 1977 to 27 February
2008, this being the date when the appellants were originally sentenced.

___________________________________________________________

JUDGMENT
___________________________________________________________

MHLANTLA  JA (BOSIELO JA concurring):

[1] The appellants, who were legally represented by one legal
representative, were charged in the Regional Court, Nigel with one count
of rape read with the provisions of s 51(2) of the Criminal Law
Amendment Act 105 of 1997 (the Act). On 28 June 2007 the appellants
pleaded guilty to the charge and in amplification of their pleas, their
counsel read out a statement in terms of s 112 of the Criminal Procedure
Act 51 of 1977, which read:

'Ek, Jacob Mashinini, verklaar as volg: Ek erken dat ek op 1 Mei 2000 teenwoordig
was te Blue Gun View, Duduza, in die Streeksafdeling van Gauteng. Ek erken dat ek
daar en dan opsetlik en wederregtelik geslagtelike gemeenskap gehad het met Inzi
Mabena teen haar sin en wil. Ek erken dat ek geen reg of toestemming gehad het om
so op te tree nie. Ten tyde van die pleging van die misdryf het ek geweet ek doen
verkeerd en dat my optrede volgens reg strafbaar is. Ek pleit skuldig uit my eie vrye
wil en sonder enige beinvloeding daartoe. Op die betrokke dag was ek saam met
Simon Abolisi, beskuldige 3, Kennith Shezi, en Moizafane. Die klaagster is 'n
familielid van my. Toe ek aan die deur klop en sê wie ek is het die klaagster die deur
oopgemaak. Ons alvier het ingegaan en ons het die klaagster verkrag.'
The contents of the statements of both appellants are similar save the fact
that the first appellant is a family member of the complainant.

[2] Before conviction the regional magistrate addressed the appellants
and their legal representative and enquired whether they were aware that
the minimum sentence legislation was applicable. He, however, did not
explain what that legislation entailed nor specify the prescribed sentence
applicable to the offence with which they were charged. Following their
pleas of guilty, the appellants were convicted as charged. The regional
magistrate thereafter stopped the proceedings and committed the
appellants for sentence by a high court in terms of s 52(1)(a) of the Act.
There was no objection by the defence when the magistrate stopped the
proceedings and referred the matter to the high court.

[3] The appellants were indicted in the High Court (Circuit Local
Division of the Eastern Circuit Division, Delmas). The indictment served
on the appellants stated that they were convicted of an offence referred to
in Schedule 2 of the Act. At the commencement of the proceedings
Prinsloo J confirmed the convictions of the appellants in terms of s
52(2)(b) of the Act. No evidence was adduced in mitigation and

aggravation of sentence. On 27 February 2008, the appellants were
sentenced to imprisonment for life. The appellants now appeal against
that sentence with the leave of the court below.

[4] The appeal turns on whether the judge in the court below acted
correctly in sentencing the appellants to imprisonment for life in terms of
s 51(1) read with Part I of Schedule 2 when the appellants had been
convicted of rape read with the provisions of s 51(2) of the Act, which
upon conviction carries a penalty of ten years‘ imprisonment. Allied to
this question is whether the imposition of such a sentence rendered the
trial unfair.

[5] In my view the starting point in an enquiry of this nature is s 51 of
the Act. Section 51(1), (2) and (3) provide:
'(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 I 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; and
(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;
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 a 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.‘

Part III of Schedule 2 provides: 'Rape in circumstances other than those
referred to in Part I'.

[6] The main argument for the appellants was that the court below
erred in imposing a sentence of life imprisonment when the penalty
stipulated in s 51(2) for a rape falling in this category is ten years‘
imprisonment. Counsel submitted that, as this was the charge which was
put to the appellants, to which they pleaded guilty and, importantly, on
which they were convicted, that it is irregular for them to be sentenced for
a more serious offence for which they were neither charged nor
convicted. Counsel submitted that the irregularity is so gross that it

rendered the proceedings subsequent to conviction unfair. I must mention
that this issue was raised for the first time on appeal.

[7]    Counsel for the respondent correctly conceded that the learned
judge erred when he failed to take notice of the fact that the charge for
which the appellants were convicted was rape read with s 51(2) of the Act
and not rape as envisaged by s 51(1) of the Act. Counsel conceded that
this fundamental error was caused by the State officials' mistaken
reference to s 51(2) instead of s 51(1) in the charge sheet. She however
countered
the
appellants'
submissions
by
contending
that,
notwithstanding this patent error, the appellants, who were legally
represented, were aware of the evidence to the effect that this was a gang
rape which merited a more severe sentence and that the said failure did
not render the trial unfair. She thus argued that the sentence imposed was
appropriate regardless of the admitted irregularity.

[8]    As already alluded to in para 4, the legal issue remains whether the
judge below erred in imposing a sentence of life imprisonment on the
appellants in terms of s 51(1) whereas in fact they had been convicted of
rape read with the provisions of s 51(2) which prescribes a sentence of
ten years' imprisonment and not life imprisonment.

[9] It is common cause that the appellants in this matter were charged
with rape which falls under s 51(2). Part III of Schedule 2, which is the
only schedule other than Part I of Schedule 2 that provides for rape,
provides that, upon conviction on such an offence, an accused who is a
first offender, like the appellants, shall be sentenced to imprisonment for
ten years unless the court finds substantial and compelling circumstances
justifying a lesser sentence. They were convicted as charged but were

erroneously sentenced to imprisonment for life on the basis of a
conviction of a gang rape, where the complainant had been raped more
than once by more than one person.

[10] Counsel for the State submitted that the appellants and their legal
representatives should have raised an objection when the magistrate
stopped the proceedings and committed the appellants to the high court
for sentence. It was further submitted that their failure to object and their
actions to further participate in the high court proceedings precluded them
from raising the issue. The argument seems to be that they acquiesced to
the further conduct of the trial. I disagree. The failure by the accused or
their legal representative to object to what is a patently irregular
procedure can never turn such an irregular act into a lawful or regular
one. I find these submissions to be fallacious.

[11]  To my mind, the solution to this legal question lies in s 35(3) of
the Constitution. Section 35(3)(a) of the Constitution provides that every
accused person has a right to a fair trial which, inter alia, includes the
right to be informed of the charge with sufficient detail to answer it. This
section appears to me to be central to the notion of a fair trial. It requires
in clear terms that, before a trial can start, every accused person must be
fully and clearly informed of the specific charge(s) which he or she faces.
Evidently, this would also include all competent verdicts. The clear
objective is to ensure that the charge(s) is sufficiently detailed and clear
to an extent where an accused person is able to respond and importantly
to defend himself or herself. In my view, this is intended to avoid trials by
ambush.

[12] In S v Legoa,1  Cameron JA stated with regard to the constitutional
right to a fair trial:
'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. 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 of
the Republic of South Africa Act 108 of 1996 came into force". The Bill of Rights
specifies that every accused has a right to a fair trial. This right, the Constitutional
Court has said, is broader than the specific rights set out in the sub-sections of the Bill
of Rights' criminal trial provision. One of those specific rights is "to be informed of
the charge with sufficient detail to answer it". 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.
The matter is, however, one of substance and nor form, and I would be reluctant to lay
down a general rule that the charge must in every case recite either the specific form
of the scheduled offence with which the accused is charged, or the facts the State
intends to prove to establish it.'

[13]     In S v Ndlovu,2 Mpati JA had occasion to deal with the same issue.
He said:
'The enquiry, therefore, is whether, on a 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

1 S v Legoa  2003 (1) SACR 13 (SCA) paras 20 and 21.
2 S v Ndlovu 2003 (1) SACR 331 (SCA)  para 12.

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 notice of the State's intention to enable him to conduct his
defence properly.'

[14]     In S v Makatu,3 Lewis JA stated:
'The appellant argues that the imposition of a sentence in terms of s 51(1), when the
indictment refers to s 51(2), is a blatant misdirection. Even if the murder had indeed
been premeditated – a question to which I shall turn – an accused has the right to
know at the outset what charge he has to meet. The State properly conceded this
point. Since the enactment of the Act this Court has held that it is incumbent on the
State to specify the case to be met in such a way that an accused appreciates properly
not only what the charges are but also the consequences.
…..
As a general rule, where the State charges an accused with an offence governed by s
51(1) of the Act, such as premeditated murder, it should state this in the indictment.
This rule is clearly neither absolute nor inflexible. However, an 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.'

In my view the principles enunciated in these cases are applicable in this
case.

[15] It is a well-known fact that the State is dominis litis. After the
police have concluded their investigations, the docket is given to the

3 S v Makatu 2006 (2) SACR 582 (SCA) paras 3 and 7.

prosecutor. He or she gains access to all documents and statements in the
docket. Based on this, he or she decides on which charge(s) to prefer
against an accused person.  The latter plays no role in this critical choice
by the prosecutor. It follows that any wrong decision regarding the choice
of an appropriate charge(s) cannot be put at the accused person's door.

[16] In my judgment, there is nothing that precluded the State, after
having studied the docket as the officials are required to, to decide on the
appropriate charge. The information was available. Even counsel for the
respondent was unable to offer any plausible explanation for this serious
mistake. This failure, unexplained, speaks of some disturbing flippant
attitude on the part of the prosecution. The State must bear the
consequences.

[17]  In this matter, the State decided to restrict itself to s 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 s
86 of the Criminal Procedure Act prior to conviction.4  The State did not
launch such an application. The magistrate was therefore bound to
impose a sentence in terms of s 51(2) read with Part III of Schedule 2.

4 Section 86(1) provides: 'Where a charge is defective for the want of any essential averment therein, or
where there appears to be any variance between any 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 and 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.'

[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 fair trial. This is akin
to allowing the State to benefit from its own mistakes. In the result, I find
there was a 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 s 51(1) instead of s 51(2)
read with Part III of Schedule 2 of the Act. The appeal against sentence
has to succeed.

[19]    I am of the considered view that it will not serve any useful
purpose to refer the matter back to the regional magistrate to impose
sentence, given the misdirection, the lapse of time and the fact that all the
evidence is before us. It will accordingly be appropriate that this court
considers sentence afresh having regard to the provisions of s 51(2) of the
Act.

[20] Section 51(2) read with Part III of Schedule 2 of the Act prescribes
a period of ten years‘ imprisonment. This court can deviate from such
sentence only if substantial and compelling circumstances are found to
exist which justify the imposition of a lesser sentence. The approach to
the enquiry is enunciated in S v Malgas,5 where Marais JA held that
courts should not deviate from the minimum sentence for flimsy reasons.
In order to determine the existence of substantial and compelling

5 S v Malgas 2001 (1) SACR 469 (SCA) para 25

circumstances, the court has to evaluate all the evidence including the
mitigating and aggravating factors.

[21] The mitigating factors submitted on behalf of the appellants are the
following: Both appellants were first offenders and have the capacity to
be rehabilitated. They were relatively young as at least one of them was
26 years of age when the offence was committed. They pleaded guilty
and did not waste the court‘s time. Their plea of guilty should be regarded
as sign of remorse for their deeds. The complainant did not suffer severe
physical injuries albeit the incident would have traumatised her. Both
appellants had spent 18 months in custody pending the finalisation of the
trial.

[22] Regarding the relative youthfulness of the offender it is apposite to
refer to the judgment of this court in S v Matyityi,6 where Ponnan JA
stated:
'It is well established that, the younger the offender, the clearer the evidence needs to
be about his or her background, education, level of intelligence and mental capacity,
in order to enable a court to determine the level of maturity and therefore moral
blameworthiness . . . Thus, whilst someone under the age of 18 years is to be regarded
as naturally immature, the same does not hold true for an adult. In my view a person
of 20 years or more must show by acceptable evidence that he was immature to such
an extent that his immaturity can operate as a mitigating factor. At the age of 27 the
respondent could hardly be described as a callow youth.‘

[23]    In this matter the appellants elected not to testify. There is no
evidence relating to the level of their maturity. However, the principle
enunciated in Matyityi applies to them as well.

6 S v Matyityi 2011 (1) SACR 40 (SCA) para 14.

[24] The appellants did not verbalise any remorse. It was submitted on
their behalf that their plea of guilty may be an indication of remorse. This
submission cannot prevail. It must be borne in mind that the complainant
knew the first appellant therefore the issue of identification of him as one
of the rapists was not in dispute. The second appellant was linked to the
commission of the offence by DNA evidence. It is therefore clear that
there was overwhelming evidence against the appellants. They had no
choice but to plead guilty. Their plea under such circumstances can never
be interpreted as remorse. In S v Matyityi,7 Ponnan JA stated in regard to
remorse:
'There is, moreover, a chasm between regret and remorse. Many accused persons
might well regret their conduct, but that does not without more translate to genuine
remorse. Remorse is a gnawing pain of conscience for the plight of another. Thus
genuine contrition can only come from an appreciation and acknowledgement of the
extent of one‘s error. Whether the offender is sincerely remorseful, and not simply
feeling sorry for himself or herself at having been caught, is a factual question. It is to
the surrounding actions of the accused, rather than what he says in court, that one
should rather look. In order for remorse to be a valid consideration, the penitence
must be sincere and the accused must take the court fully into his or her confidence.
Until and unless that happens, the genuineness of the contrition alleged to exist cannot
be determined.‘

[25]   Against that background the aggravating factors are as follows: The
complainant, who was 54 years old at the time, was raped by four men;
one of whom was a family member. This rape is commonly referred to as
a gang rape. The first appellant watched whilst the complainant was raped
thrice by his friends. He did nothing to stop this injustice. The
complainant‘s mouth was closed during the ordeal to prevent her from
screaming or shouting for help. The complainant did not sustain severe

7 Ibid  para 13.

physical injuries, however she was tender on her chest. The complainant
was raped in the sanctity of her home. In my view, this must have been a
very traumatic experience for her. Rape in this country has reached
pandemic proportions and it has become a cancer in our society. In S v
Chapman,8 Mohamed CJ described rape as follows:
‗Rape is a very serious offence, constituting as it does a humiliating, degrading and
brutal invasion of the privacy, the dignity and the person of the victim . . . Women in
this country are entitled to the protection of these rights. They have a legitimate claim
to walk peacefully on the streets, to enjoy their shopping and their entertainment, to
go and come from work, and to enjoy the peace and tranquillity of their homes
without the fear, the apprehension and the insecurity which constantly diminishes the
quality and enjoyment of their lives.'

[26]     The appellants had admitted in their plea explanation that they had
gone to the house of the complainant with the intention to rape her. They
did not verbalise any remorse. I have already dealt with the issue of
remorse in para 24 above and found that their plea of guilty can never be
interpreted as remorse.

[27]    In the result having regard to all the evidence, there are no
substantial and compelling circumstances justifying the imposition of a
lesser sentence. On the contrary, there are more aggravating features in
the evidence than mitigating circumstances.

[28]   There is one aspect that I am constrained to address. In my view
this is a type of case where imprisonment for life would have been
appropriate but for the careless manner in which the staff in the office of
the National Director of Public Prosecutions handled the matter. The
relevant officials did not approach the matter with the requisite degree of

8 S v Chapman 1997 (2) SACR 3 (SCA) at 5B.

diligence and seriousness. They were aware of the facts - having obtained
a statement from the complainant and had DNA evidence. The four
suspects had been arrested – clearly indicating that this was an allegation
of a gang rape. Had they applied their minds properly, it would have been
clear to them that the accused persons ought to be charged either in terms
of s 51 or s 51(1) of the Act if they desired to be specific. The outcome of
the case is unjust to the complainant and society at large but that is as a
result of the State failing to perform its duties properly.  This is made
even more reprehensible by the fact that starting from Legoa and ending
with Makatu, this court has sounded a salutary warning that care be
exercised in drafting and preparing charge-sheet(s) and indictment(s) to
ensure that they correctly and adequately reflect all the necessary
averments. A situation of this nature cannot be countenanced.

[29] Having regard to all circumstances, I am compelled to impose a
sentence of ten years‘ imprisonment as set out in s 51(2) of the Act.

[30] In the result I make the following order:
1         The appeal is upheld.
2         The sentence imposed by the court below is set aside and replaced
with a sentence of ten years' imprisonment. The sentence is antedated in
terms of s 282 of the Criminal Procedure Act to 27 February 2008, this
being the date when the appellants were originally sentenced.

_______________

N Z MHLANTLA

JUDGE OF APPEAL

PONNAN JA:

[31] I have read the judgment of my colleague Mhlantla JA with which
I regret I am unable to agree. Like my colleague I would also commence
the present enquiry with s 51 of the Criminal Law Amendment Act 105
of 1997. That section, which is set out fully in her judgment,9 must be
read together with s 52 of the Act.

[32] Section 52 headed: 'Committal of accused for sentence by High
Court after plea of guilty or trial in regional court' provides:
'(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.
(2)  (a)  Where an accused is committed under subsection (1) (a) for sentence by a
High Court, the record of the proceedings in the regional court shall upon proof
thereof in the High Court be received by the High Court and form part of the record of
that Court, and the plea of guilty and any admission by the accused shall stand unless
the accused satisfies the Court that such plea or such admission was incorrectly
recorded.
(b)  Unless the High Court in question—
(i)  is satisfied that a plea of guilty or an admission by the accused which is material to
his or her guilt was incorrectly recorded; or
(ii)  is not satisfied that the accused is guilty of the offence of which he or she has
been convicted and in respect of which he or she has been committed for sentence,

9 Para 5.

the Court shall make a formal finding of guilty and sentence the accused as
contemplated in section 51.
(c)  If the Court is satisfied that a plea of guilty or any admission by the accused
which is material to his or her guilt was incorrectly recorded; or is not satisfied that
the accused is guilty of the offence of which he or she has been convicted and in
respect of which he or she has been committed for sentence or that he or she has no
valid defence to the charge, the Court shall enter a plea of not guilty and proceed with
the trial as a summary trial in that Court: Provided that any admission by the accused
the recording of which is not disputed by the accused, shall stand as proof of the fact
thus admitted.
(d)  The provisions of section 112 (3) of the Criminal Procedure Act, 1977 (Act No.
51 of 1977), shall apply with reference to the proceedings under this subsection.
(3)  (a)  Where an accused is committed under subsection (1) (b) for sentence by a
High Court, the record of the proceedings in the regional court shall upon proof
thereof in the High Court be received by the High Court and form part of the record of
that Court.
(b)  The High Court shall, after considering the record of the proceedings in the
regional court, sentence the accused, and the judgment of the regional court shall
stand for this purpose and be sufficient for the High Court to pass sentence as
contemplated in section 51: Provided that if the judge is of the opinion that the
proceedings are not in accordance with justice, he or she shall, without 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.
(c)  If a judge acts under the proviso to paragraph (b), he or she shall inform the
accused accordingly and postpone the case for judgment, and, if the accused is in
custody, the judge may make such order with regard to the detention or release of the
accused as he or she may deem fit.
(d)  The Court in question may at any sitting thereof hear any evidence and for that
purpose summon any person to appear to give evidence or to produce any document
or other article.
(e)  Such Court, whether or not it has heard evidence and after it has obtained and
considered a statement referred to in paragraph (b), may—
(i) confirm the conviction and thereupon impose a sentence as contemplated in section
51;

(ii) alter the conviction to a conviction of another offence referred to in Schedule 2
and thereupon impose a sentence as contemplated in section 51;
(iii) alter the conviction to a conviction of an offence other than an offence referred to
in Schedule 2 and thereupon impose the sentence the Court may deem fit;
(iv) set aside the conviction;
(v) remit the case to the regional court with instruction to deal with any matter in such
manner as the High Court may deem fit; or
(vi) make any 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.'

[33] Part I of Schedule 2 to the extent here relevant provides:
'Rape -
(a)  When committed—
(i)  in circumstances where the victim was raped more than once whether by the
accused or by any co-perpetrator or accomplice;
(ii)  by more than one person, where such persons acted in the execution or
furtherance of a common purpose or conspiracy.'
Whilst Part III of Schedule 2 provides:
‗Rape in circumstances other than those referred to in Part I.‘

[34] Recently in Mthembu v The State (206/11) [2011] ZASCA 17 paras
16 and 17, this court stated:
‗It may be advisable to retrace our steps. That an accused person should be informed
that the minimum sentence is applicable to his or her case owes its genesis to S v
Legoa 2003 (1) SACR 13 (SCA). There Cameron JA, after an examination of the
earlier judgments of this court, expressed the conclusion that under the common law it
was ‗desirable‘ that the charge-sheet should set out the facts the State intended to
prove to bring the accused within an enhanced sentencing jurisdiction. Cameron JA
continued (para 20 and 21):
―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.

The matter is, however, one of substance and not form, and I would be reluctant to lay
down a general rule that the charge must in every case recite either the specific form
of the scheduled offence with which the accused is charged, or the facts the State
intends to prove to establish it. A general requirement to this effect, if applied with
undue formalism, may create intolerable complexities in the administration of justice
and may be insufficiently heedful of the practical realities under which charge-sheets
are frequently drawn up. The accused might in any event acquire the requisite
knowledge from particulars furnished to the charge or, in a Superior Court, from the
summary of substantial facts the State is obliged to furnish. Whether the accused's
substantive fair trial right, including his ability to answer the charge, has been
impaired, will therefore depend on a vigilant examination of the relevant
circumstances.‖

It is noteworthy that Cameron JA declined to lay down any general rule in
Legoa. Legoa was followed shortly thereafter by S v Ndlovu 2003 (1) SACR 331
(SCA). In Ndlovu, Mpati JA stated (para 12):
―The enquiry, therefore, is whether, on a 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 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.‖
In both Legoa and Ndlovu, unlike here, this court was concerned with the case where
the accused had not been warned that the minimum sentence legislation might be
invoked. And, whilst Ndlovu went somewhat further than Legoa, both emphasised
that a fair trial enquiry does not occur in vacuo but that it is first and foremost a fact-
based enquiry.‘

[35] As both Legoa and Ndlovu make plain a ‗vigilant examination of
the relevant circumstances‘ is required (Mthembu para 18). Here the
charge sheet has not been included in the record. We thus simply do not
know what it stated. What the record does reveal though is that the
appellants were informed by the prosecutor at the commencement of the
proceedings that they were charged with ‗the crime of rape read with
section 51(2) of the Criminal Law Amendment Act 105 of 1997‘. Thus,
right from the outset both appellants were informed in unambiguous
terms that the State intended to rely on the minimum sentencing
provisions. In this case however the State went further. Despite there
being no obligation on it to do so, it chose to refer to a specific section of
the Act. In doing so it appears to have referred in error to the wrong
section – s 51(2), instead of s 51(1).

[36] Both appellants, who were legally represented, tendered pleas of
guilty to the offence charged. The record then reads:
'HOF:   Mnr. Van Vuuren [the appellants' legal representative] hierdie is een van
daardie aspekte wat ek net graag sal wil opgeklaar wil hê voor ek oorgaan tot
uitspraak as gevolg van die Wet of Minimum Vonnisse. Dra dit u goedkeuring weg as
ek by beskuldigde 2 en by beskuldigde 3 net vra of hulle bewus is van die Wet of
Minimum Vonnisse.
MNR. VAN VUUREN:   Inderdaad agbare.
HOF:   Baie dankie. Dit is, dit is slegs vir doelmatigheidsredes. Dit het geen refleksie
op u van enige aard nie.
MNR. VAN VUUREN:   Soos dit u behaag agbare.
HOF:   Beskuldigde 2 en 3 u pleit skuldig aan verkragting. Hierdie misdryf is gelees
in terme van die Wet op Minimum Vonnisse. Indien u skuldig bevind word is daar 'n
minimum vonnis wat u kan, opgelê kan word, verstaan u dit?
BEIDE BESKULDIGDES:   Ons verstaan edelagbare.
HOF:   Baie dankie. En ten spyte daarvan pleit julle skuldig en maak u vooraf vir
hulle gaande erkenning soos per Bewysstuk A en B.

BEIDE BESKULDIGDES:   Dit is korrek edelagbare.
HOF:   Dankie. Mnr. Die Aanklaer stem die erkennings in Bewysstuk A en B, does
that correspond, the admissions does that correspond with the evidence at the state's
disposal?
PROSECUTOR:   That is correct your worship.
COURT:   Thank you sir. Goed. Ex-tempore uitspraak.'

[37] The magistrate being satisfied that all of the elements of the
offence had been admitted by the appellants then proceeded to convict
each on the offences charged, on his plea of guilty. The record then reads:
'COURT:   Good. Mr Prosecutor, Mnr. van Vuuren dit is duidelik dat hierdie misdryf
in die omskrywing val waar 'n voorgeskrewe minimum vonnis voorgeskryf word. Die
voorgeskrewe minimum vonnis is buite die bevoegdheid van hierdie hof en derhalwe
staak ek die verrigtinge en word hierdie aangeleentheid verwys vir vonnis na die
Hooggeregshof, watter datum gaan almal pas sodat die oorkonde getik kan word en
dus saam met die dossier versend kan word en dat 'n datum verkry kan word vanaf die
DOV wanneer hierdie verrigtinge in die Hooggeregshof kan dien vir vonnis.
AANKLAER:   U edele ons het 'n datum van 26 Junie vir die oorkonde.
HOF:   Goed. U moet dan intussentyd vir ons 'n in-diepte "assessment reports" verkry
want dit word vereis deur die Hooggeregshof tesame met 'n proefbeampte verslag oor
beskuldigde 2 en 3. So dit is die drie verslae wat dan ook verkry moet word, asseblief.
"Victim's assessment reports" en die proefbeampte verslag. U sê die, watter datum
Mnr. Die Aanklaer?
AANKLAER:   26 Junie.
HOF:   26/06. Mnr. Van Vuuren?
MNR. VAN VUUREN:   (Onhoorbaar).
HOF:   Goed. Hierdie saak word uitgestel na 26 Junie sodat die oorkonde getik kan
word, die bande getranskribeer kan word en dit versend kan word na die
Hooggeregshof, die DOV, sodat die DOV 'n datum met die Hooggeregshof kan
bepaal wanneer hierdie verrigtinge moet voortgaan vir die voorlegging vir die
vonnisverrigtinge. Daar is ook van my kant af 'n versoek dat die staat die nodige
verslae, insluitende proefbeampte verslae, so spoedig as moontlik bekom sodat daar
nie 'n vertraging in daardie opsig is nie. Beide van u bly in hegtenis.

SAAK UITGESTEL TOT 26 JUNIE 2007
HOF VERDAAG.'

[38] Thereafter the appellants were served with an indictment and a
summary of substantial facts. In material part the indictment reads:
'WHEREAS the accused were convicted in the regional court, NIGEL of an offence
referred to in Schedule 2 of the Criminal Law Amendment Act 105 of 1997, to wit the
offence of
RAPE
the facts being that upon or about 1 May 2000 and at or near Blue Gun View,
DUDUZA, in the regional division of GAUTENG, the accused did unlawfully and
intentionally have sexual intercourse with
PHINZI ALBINAH MABHENA
a 55 year old female person, without her consent.
--- as would appear fully from the certified copy of the proceedings, attached hereto
in terms of the provisions of section 52(2)(a) of Act 105 of 1997, read with sections
7610 and 235 of Act 51 of 1977.11

10 '76  Charge-sheet and proof of record of criminal case
(1) Unless an accused has been summoned to appear before the court, the proceedings at a summary
trial in a lower court shall be commenced by lodging a charge-sheet with the clerk of the court, and, in
the case of a superior court, by serving an indictment referred to in section 144 on the accused and the
lodging thereof with the registrar of the court concerned.
(2) The charge-sheet shall in addition to the charge against the accused include the name and, where
known and where applicable, the address and description of the accused with regard to sex, nationality
and age.
(3) (a) The court shall keep a record of the proceedings, whether in writing or mechanical, or shall
cause such record to be kept, and the charge-sheet, summons or indictment shall form part thereof.
(b) Such record may be proved in a court by the mere production thereof or of a copy thereof in
terms of section 235.
(c) Where the correctness of any such record is challenged, the court in which the record is
challenged may, in order to satisfy itself whether any matter was correctly recorded or not, either orally
or on affidavit hear such evidence as it may deem necessary.'
11 '235  Proof of judicial proceedings
(1) It shall, at criminal proceedings, be sufficient to prove the original record of judicial
proceedings if a copy of such record, certified or purporting to be certified by the registrar or clerk of
the court or other officer having the custody of the record of such judicial proceedings or by the deputy
of such registrar, clerk or other officer or, in the case where judicial proceedings are taken down in
shorthand or by mechanical means, by the person who transcribed such proceedings, as a true copy of
such record, is produced in evidence at such criminal proceedings, and such copy shall be prima facie
proof that any matter purporting to be recorded thereon was correctly recorded.
(2) Any person who, under subsection (1), certifies any copy as true knowing that such copy is
false, shall be guilty of an offence and liable on conviction to imprisonment for a period not exceeding
two years.'

AND WHEREAS the proceedings were stopped and the accused committed for
sentence by a High Court in terms of section 52(1)(a) of Act 105 of 1997.'

[39] Before proceeding to sentence the appellants, Prinsloo J first
satisfied himself that the record of the proceedings in the magistrates‘
court was in order. In that regard the record reads:
'PRINSLOO, J:   Can I just then say what I wanted to say, I think we should not put
the cart before the horses, we must first decide whether the record is in order, not so?
MR D. PHAHLANE [Counsel for the appellants]:   That is so M'Lord.
PRINSLOO, J:   Otherwise if it is not, we cannot carry on. Mrs Voster, do you have
any problem with the record?
MRS P. VOSTER:   As the Court pleases. M'Lord, the State will request that the
record be accepted as correct and received as part of this record in terms of Section
52(3).
PRINSLOO, J:   Is it not Section 52(2), because it was a plea of guilty?
MRS P. VOSTER: Indeed M'Lord, I sincerely apologise, indeed it is Section 52(2) of
the Criminal Law Amendment Act 105 of 1997.
PRINSLOO, J:   Thank you. Mr Phahlane, do you have a problem with the record, it
is not a very lengthy record, the section implores as to accepted as part of the record
of these proceedings, if we are happy that the record is in order?
. . .
MR D. PHAHLANE:   Yes, as I said earlier on M'Lord, that I agree that the record
was in order, except to highlight the very same aspects, that from the record mention
is made of accused 1 and 2 previous...[intervenes] [What counsel was alluding to was
an apparent mistake in the numbering of the accused in the court below. But nothing
turns on that.]
. . .
MR D. PHAHLANE ADDRESSES COURT:   M'Lord, in as far as conviction is
concerned, my submission is that it was in order, because both accused pleaded guilty
in the court a quo M'Lord.
. . .
PRINSLOO, J:   Yes. Having heard Mr Phahlane and Mrs Vorster, and taking note of
the record and the plea explanations, where both the accused pleaded guilty with the

assistance of their legal representative, I make a formal finding of guilty in respect of
both accused in terms of Section 52(2)(b) of Act 105 of 1997. Yes?'

[40] In his judgment on sentence the learned Judge states:

'In the result, I made a formal finding of guilty in respect of both the accused
as intended by the requirements of Section 52(2)(b) of Act 105 of 1977. The
prescribed minimum sentence, which Parliament felt was appropriate for a multiple
rape of this nature, is life imprisonment. The type of offence which we deal with here
is described as follows by the Legislator in Part 1 of Schedule 2, where the following
is said in Subsection (a)(ii), dealing with rape:

"Rape,

[a]
When committed;

[ii]
by more than one person, where such persons acted in the execution, or

furtherance of a common purpose, or conspiracy."

This incident is also covered by another subsection in the schedule to which I
have referred, namely (a)(i), which reads as follows:

"Rape, when committed:

[i]
In circumstances where the victim was raped more than once, whether
by the accused, or by any co-perpetrator, or accomplice."'

[41] The learned Judge concluded – as does my colleague Mhlantla JA12
- that there were no substantial and compelling circumstances present. He
thus proceeded to sentence each of the appellants to imprisonment for
life. My learned colleague agrees – as do I – that that sentence was
appropriate. She opines:13‗In my view this is a type of case where
imprisonment for life would have been appropriate but for the careless
manner in which the staff in the office of the National Director of Public
Prosecutions handled the matter.‘ On the very day that they were
sentenced an oral application for leave to appeal was made on their behalf
to the learned Judge. The gist of the application was that the learned

12 Para 27.
13 Para 28.

Judge ought to have found that there were substantial and compelling
circumstances present and that therefore a sentence less than that
ordained by the legislature should have been imposed. The learned Judge
dealt with that application in these terms:

'Nevertheless, although I am alive to the fact that a Court of appeal is slow
generally to interfere with a sentence imposed by a Trial Court, I am also alive to the
fact that there appears to be, and I say this with respect, a tendency in the Supreme
Court of Appeal to impose lesser sentences when it comes to matters of this nature.

There is, for example, a recent case of State versus Nkomo, 2007 (2) SACR
198 SCA, where the victim was subjected to a particularly cruel multiple rape by the
perpetrator. This was referred to me on more than one occasion in the past few weeks
during these Circuit Court sessions. I have not studied the Nkomo judgment, but I am
told that the sentence imposed under those awkward circumstances was 16 years
imprisonment.

In all the circumstances, and without attempting to draw a comparison
between other sentences recently imposed, and the present case, I have come to the
conclusion that there must be a reasonable prospect that a Court of Appeal may
impose a lesser sentence. The order that I will make is that BOTH ACCUSED ARE
GRANTED LEAVE TO APPEAL to the Supreme Court of Appeal against their
sentence, as I imposed it, and they will both remain in custody.'

[42] In heads of argument filed with this court, appellants‘ counsel
conceded:
'Before accepting the appellants' pleas of guilty to the charges read out in the open
court, the Learned Magistrate ensured that they were properly informed and
understood the applicability of the minimum sentence regime.'
And for the first time the following was raised:

'It is submitted that the Learned Judge failed to take notice of the fact that the
charge against the appellants was to be read with Section 51(2) of the Criminal Law
Amendment Act 105 of 1997. Section 51(2) does not make provision for life
imprisonment and it is therefore argued that the Learned Judge erroneously concluded
that the minimum sentence of life imprisonment should be applied

It is furthermore submitted that the accused persons, if they faced
imprisonment for life which is the ultimate penalty available in our justice system,
should have been made aware from the outset what the implications and consequences
of the charge are to which they were requested to plea. Such knowledge would
inevitably impact on the conduct of their defence and might ultimately affect their
right to a fair trial.'

[43] In support of that contention, counsel for the appellant called in aid
S v Makatu 2006 (2) SACR 582 (SCA). In Makatu (para 7), Lewis JA
stated: ‗[a]s a general rule where the State charges an accused with an
offence governed by s 51(1) of the Act, such as premeditated murder, it
should state this in the indictment‘. In my view Makatu is distinguishable
from this case. Makatu was not concerned, as here, with a bifurcated
procedure. Moreover, as Lewis JA was quick to add the rule that she
sought to lay down was ‗clearly neither absolute nor inflexible‘. In this
case before the commencement of the sentencing phase of the trial, the
appellants could have been under no illusion that the minimum
sentencing provision that the State sought to invoke was that which
ordained life imprisonment. That, I daresay, ought to have been patent to
the appellants at a much earlier stage when the proceedings had been
stopped by the magistrate and the matter had been referred to the high
court for sentencing. At that stage as I have already pointed out the
appellants had had the benefit of legal representation. Thus the
significance of the proceedings being stopped and the matter being
referred to the high court could hardly have been lost on them. Indeed the
magistrate explained that the matter was being referred to the high court
because the applicable sentence for an offence of that kind exceeded his
jurisdiction. Had they been misled by what had gone before it was thus
open to them at any time after conviction in the magistrates‘ court and
before sentencing in the high court to have raised that. That they did not

do. The appellants, who were represented before the high court by a
different legal representative to that in the magistrates‘ court, participated
in the sentencing phase of the proceedings, as they earlier did in the
conviction phase, without demur. And as Prinsloo J emphasised in his
judgment on sentence: '[b]efore the hearing today both accused were
again informed about the implications of the minimum sentences
prescribed by Act 105 of 1997.'

[44] Mhlantla JA holds:14‗The misdirection lies in the fact that the
appellant was sentenced for an offence different to the one for which he
was convicted.' I cannot agree. The appellants were charged, convicted
and sentenced for the offence of rape. The Act does not purport to create
any new category of statutory offence. In specifying an enhanced penal
jurisdiction for particular forms of an existing offence, the Legislature
does not create a new type of offence.  In an analogous context Rumpff
CJ stated (S v Moloto 1982 (1) SA 844 (A) at 850):
‗Roof, of poging tot roof, met verswarende omstandighede is nie 'n nuwe soort misdaad wat
deur die Wetgewer geskep is nie. Dit bly steeds roof, of poging tot roof, maar volgens art 277
(1) (c) verleen die aanwesigheid van verswarende omstandighede aan die Verhoorregter 'n
diskresionêre bevoegdheid om by skuldigbevinding die doodvonnis op te lê.‘
All that the Legislature has done, in my view, is to define circumstances
which, if present, brings the matter within the purview of the Act. The
offences specified in the schedule are thus not new offences. They are but
specific forms of existing offences, and when their commission is proved
in the form specified in the Schedule, the sentencing court acquires an
enhanced penal jurisdiction.

[45] Section 52, which I have set out in full, gives to the high court very
wide powers in respect of the magistrates‘ court proceedings. In

14 Para 18.

particular, it preserved the power of the high court to enter a plea of not
guilty if for any reason it deemed it advisable in the interests of justice to
do so. It was thus never intended that the high court would simply rubber
stamp the magistrates‘ court proceedings. The appellants never ever
raised before the high court, even tangentially, the spectre of their guilty
plea or any admission made thereunder having been incorrectly recorded.
Nor did either even hint at the possibility that the proceedings may not
have accorded with justice. Had the point been taken before the high
court - where it ought rightly to have been taken - instead of before this
court for the first time, the State would have had the opportunity to
counter it. For as Cameron JA observed (Legoa para 21): ‗[t]he accused
might in any event acquire the requisite knowledge from particulars
furnished to the charge or, in a Superior Court, from the summary of
substantial facts the State is obliged to furnish.'

[46] Mhlantla JA, however, preferred to approach the matter thus:15
‗Even counsel for the respondent was unable to offer any plausible
explanation for this serious mistake. This failure, unexplained, speaks of
some disturbing flippant attitude on the part of the prosecution. The State
must bear the consequences.‘ With respect to my learned colleague I have
some difficulty with her characterisation of the State‘s conduct. Given the
manner in which the point came to be raised, the State was denied the
opportunity of fully investigating the issue and adducing any such
evidence as may have been available to it to counter the complaint.
Moreover, the manner in which the point came to be raised served to blur
the distinction between an appeal and a review. For, in my view, the point
in issue was not capable of being resolved solely by recourse to evidence
ex facie the record. That had the effect of forcing Counsel for the State to

15 Para 16.

endeavour, impermissibly I should add, to testify from the bar before this
court. There is though a more fundamental difficulty with my learned
colleague‘s conclusion. It is this: if indeed the failure is unexplained –
and I have endeavoured to demonstrate why it has not been explained -
one can hardly infer that that, in and of itself, is a manifestation of a
‗disturbing flippant attitude‘. In my view such an inference lacks any
factual foundation and therefore ought not to have been drawn.  My
colleague appears likewise to be critical of the magistrate‘s conduct. She
states that the magistrate: ‗did not explain what that legislation entailed
nor specify the prescribed sentence applicable to the offence with which
they were charged.‘16 But as I have already pointed out counsel for the
appellants conceded in heads of argument filed with this court on behalf
of the appellants: ‗the Learned Magistrate ensured that they were properly
informed and understood the applicability of the minimum sentence
regime.'

[47] Before us there was some suggestion that the appellants might have
conducted their defence differently had they known at the outset of the
full extent of the risk that awaited them. Mhlantla JA puts paid to that
suggestion in these terms:
‗The appellants had admitted in their plea explanation that they had gone to the house
of the complainant with the intention to rape her.‘17
. . .
‗It must be borne in mind that the complainant knew the first appellant therefore the
issue of identification of him as one of the rapists was not in dispute. The second
appellant was linked to the commission of the offence by DNA evidence. It is
therefore clear that there was overwhelming evidence against the appellants. They had
no choice but to plead guilty.‘18

16 Para 2.
17 Para 26.
18 Para 24.

Moreover, at no stage was it the appellants‘ case that they would have
conducted their defence any differently or that they had been misled into
pleading guilty. On the contrary in applications for leave to appeal filed
by each of them, they state:
'The reason why I'm appealing against sentence is that it is too much. And I pleaded
guilty to the offence without wasting the Court's time. I'm sick and sometimes I do not
get treatment here in prison. So I'm asking the Court to please reduce my sentence.
. . .
The reason why I'm appealing against the sentence is that the sentence is to[o] much.
And I didn't waste the court's time. I pleaded guilty. And in 2000 it was dropped and
by that time I got a house and wife and a child and employed. And when I was
arrested in 2007 again and followed . . .  the police without any struggle. I'm asking
the honourable Court to please reduce my sentence.'

[48] There is nothing therein contained that even remotely suggests that
they had been misled or that they would have conducted their defence
differently had they been appraised at the outset that they were at risk of a
sentence of life imprisonment. It must be remembered that the appellants
pleaded guilty. If their fair trial rights have indeed been impaired, as is
sought to be contended, then its genesis must lie in their decision to plead
guilty. If they were misled at all, its consequence was that it induced a
guilty plea. The decision to plead guilty was thus the logical corollary of
them having been misled. But the appellants have never ever sought to
challenge their convictions or to recant their guilty pleas. This was
pertinently raised with counsel for the appellants during argument, in
particular that the conviction had never been assailed, nor for that matter
had leave to appeal the conviction ever been sought. Counsel from the bar
let it be known that they had no quarrel with the conviction. It follows, by
parity of reasoning, that they could likewise have no quarrel with the
decision to plead guilty upon which the conviction is founded. Implicit in

that concession is the admission that their decision to plead guilty, even
in hindsight, was the correct one. That would explain why there is no
attack on the conviction itself or why the appellants have never ever
sought to impugn the conviction phase of the proceedings in the
magistrates court.

[49] I should perhaps add that the actual proceedings before the
magistrate were relatively brief. It consisted of the charge being formally
put to each appellant, to which each pleaded guilty. Each in amplification
of that plea then adduced a brief statement19 in terms of s 112(2) of the
Criminal Procedure Act 51 of 1977. Both appellants were then duly
convicted on their guilty plea. The proceedings were then stopped. But
not before the magistrate had first warned the appellants of the need for
in-depth probation officers‘ reports. No such reports were however
secured and placed before Prinsloo J. Instead the appellants contented
themselves with an address in mitigation by counsel from the bar. Neither
chose to testify or to call any evidence. By that stage as I have pointed out
they well knew that the minimum sentencing provision that ordained life
imprisonment was being invoked by the State. They were free, armed
with that knowledge, to have conducted the sentencing phase of the
proceedings differently. But chose not to. In those circumstances it is
difficult to comprehend how the appellants‘ fair trial rights could possibly
have been imperilled. At no stage in either of the courts below was it
pertinently raised by either appellant that they had suffered prejudice in
the conduct of their case. Instead the point was raised for the first time
before this court. Even then no tangible complaint was pointedly raised.
Rather there was resort to vague notions of fairness. But as our courts
have pointed out fairness connotes fairness to both sides. The

19 Para 1.

Constitutional Court has made that plain in Key v Attorney-General, Cape
Provincial Division & another 1996 (2) SACR 113 (CC) par 13,
where Kriegler J said ‗fairness is an issue which has to be decided upon
the facts of each case, and the trial Judge is the person best placed to take
that decision‘; and, in S v Jaipal 2005 (1) SACR 215 (CC) para 29, which
held:
'The right of an accused to a fair trial requires fairness to the accused, as well as
fairness to the public as represented by the State. It has to instil confidence in the
criminal justice system with the public, including those close to the accused, as well
as those distressed by the audacity and horror of crime.'

[50] To find in favour of the appellants here would be to put form above
substance. And as Cameron JA cautioned that we should not do.
Moreover, Cameron JA was astute, when declining to lay down a general
rule, to allude to the ‗intolerable complexities‘ that may flow from the
adoption of a general requirement, particularly were it to be applied with
undue formalism. For the reasons stated, I cannot agree with my learned
colleague that the appellants' fair trial rights have been infringed in any
way. Not only has no factual foundation been laid by the appellants in
support of such a finding but, as I have endeavoured to demonstrate, that
was never initially their case. Rather the case sought to be advanced on
appeal on their behalf amounts, in my view, to little more than a
speculative hypothesis. I hesitate to hold that the reference by the State to
the incorrect section of the Act, would, without more, amount to a
misdirection. Much less one, as here, that would serve to vitiate the
sentence. I accordingly decline to endorse any general rule to effect. If it
does indeed amount to a misdirection, as my learned colleague has
concluded, I have some difficulty in comprehending why such a finding
would vitiate the sentence only and not the proceedings in its entirety,

more especially the conviction. I cannot imagine how it is possible for the
conviction to emerge unscathed in the face of that finding.

[51]   I have been at 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.  An examination of those circumstances
leads me to a contrary conclusion to that of my learned colleague and in
the result I would dismiss the appeal.

__________________

V M PONNAN

JUDGE OF APPEAL

APPEARANCES:

For Appellant

:
F van As

Pretoria Justice Centre

Pretoria.

Bloemfontein Justice Centre

Bloemfontein
For Respondent

:
P Vorster

Director of Public Prosecutions

High Court, Pretoria

Director of Public Prosecutions,

High Court, Bloemfontein
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal
DATE

21 February 2012
STATUS

Immediate

Please note that the media summary is for the benefit of the media and
does not form part of the judgment.

Mashinini v The State
(502/11) [2012] ZASCA 1 (21 February 2012)

Media Statement

Today the Supreme Court of Appeal (SCA) upheld an appeal by Mr
Mashinini and Mr Abolisi (the appellants) against a sentence of life
imprisonment handed down by the South Gauteng Court, Johannesburg
on a charge of rape. The sentence was replaced with a sentence of ten
years' imprisonment, which sentence was antedated to the date when the
appellants were originally sentenced.

The appellants, who were legally represented by one legal representative,
were charged in the Regional Court, Nigel with one count of rape read
with the provisions of s 51(2) of the Criminal Law Amendment Act 105
of 1997 (the Act). The appellants pleaded guilty to the charge and after
informing the appellants that the minimum sentence legislation was
applicable; the regional magistrate convicted them as charged.
Proceedings were stopped and the appellants were committed to the high
court for sentencing.  No objection was made by the defence. The court a
quo imposed a sentence of imprisonment for life in terms of s 51(1) read
with Part I of Schedule 2.

In this court the main question on appeal was whether the judge acted
correctly in sentencing the appellants to imprisonment for life when they
had been convicted of rape read with the provisions of s 51(2) of the Act
which carries a penalty of ten years' imprisonment.

The majority, Mhlantla JA, Bosielo JA concurring, held that the solution
to this legal question lies in the right to a fair trial as guaranteed by s

35(3) of the Constitution. The SCA held that the State had had ample
time to amend the charge to cater for the imposition of a sentence in
terms of s 51(1) and had failed to do so. The court found that the
misdirection, which lies in the fact that the appellants were sentenced for
an offence different to the one for which they were convicted, vitiates
sentence.

The court proceeded to consider the issue of sentence afresh. After taking
all the mitigating and aggravating circumstances into account, the court
found that this was the type of case where imprisonment for life would
have been the appropriate sentence. It further held that the careless
manner in which the staff in the office of the National Director of Public
Prosecutions had handled the matter resulted in the fact that only a
sentence of ten years' imprisonment could be imposed.

In a dissenting judgment, Ponnan JA argued that what was needed was a
vigilant examination of the relevant circumstances:  The appellants had
been informed that the State intended to rely on the minimum sentence
legislation; both appellants, who were represented, tendered pleas of
guilty to the offence which the magistrate accepted after being satisfied
that all the elements of the offence had been admitted; the appellants
could have been under no illusion, during the sentencing phase, that the
minimum sentencing provision that the State sought to invoke was that of
life imprisonment; and the appellants participated in the sentencing
proceedings.

Ponnan JA concluded that the appellants on appeal did not argue that they
had been misled or that they would have conducted their defence
differently had they been informed at the outset that they were at risk of a
sentence of life imprisonment.  They chose to plead guilty and also chose
not to appeal against their conviction. He concluded that that he failed to
see how, if the action did amount to a misdirection, why such a finding
would vitiate sentence only and not the proceedings in its entirety.

--- ends ---