THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No:  00093/2015

Reportable
In the matter between:

RICHARD NEGONDENI

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
Negondeni v the State (00093/15) [2015] ZASCA 132
(29 September 2015)
Coram:
Leach, Willis and Mathopo JJA

Heard:
28 August 2015

Delivered:
29 September 2015

Summary:
Criminal trial – accused given no warning of prospect of minimum
sentence – accused having incompetent legal representative selected by the judge –
s 112 of Criminal Procedure Act 51 of 1977 not properly applied – accused did not
have a fair trial - conviction and sentence set aside – matter remitted to the court a
quo for trial de novo before a different judge.

___________________________________________________________________

ORDER

On appeal from: Limpopo Local Division of the High Court,  Thohoyandou,  (Renke
AJ sitting as the court of first instance)
The appeal is upheld.
The convictions and sentences in respect of all counts are set aside.
The case is remitted to the court a quo for trial de novo before a different
judge.

JUDGMENT

Willis JA (Leach and Mathopo JJA concurring):

[1] The appellant, Mr Richard Negondeni, was indicted in the Limpopo Local
Division, Thohoyandou High Court (Renke AJ) on a count of murder, a count of
robbery and two counts of rape. He pleaded guilty in terms of s 112 of the Criminal
Procedure Act 51 of 1977 (the Criminal Procedure Act) and was convicted on all four
counts. He was sentenced to life imprisonment on the count of murder, with which
lesser sentences imposed on the other counts were ordered to run concurrently.
With the leave of this court, he appeals against his convictions and sentences on all
counts.

[2] The indictment alleges, in relation to the murder count, that the appellant
killed an adult female, Ms Ntsombeni Makhanye (the deceased), on 2 April 2002 at
Ha-Dumasi, in the district of Thohoyando; in relation to the first count of rape that he
did so in respect of the same person at the same place at about the same time; in
relation to the count of robbery that, using force and violence, he took the
deceased’s cellular telephone from her at about the same place and time; and, in

relation to the second count of rape, that he committed the crime on 6 February 1999
at the Thohoyando Technical School, his victim having been another woman, Ms
Sylvia Netshiavha. The indictment made no reference to the prescribed minimum
sentences set out in the Criminal Law Amendment Act 105 of 1997.

[3] In the summary of substantial facts annexed to the indictment it is alleged
that ‘before leaving the scene (where the rape of the deceased had been
committed), the accused robbed the victim and then stoned her to death.’ It is also
alleged that the deceased’s decomposed body was recovered in the bush at Ha-
Dumasi on 11 July 2002 and that: ‘The cause of death could not be determined
because of the advanced state of decomposition of the deceased’s body.’ In respect
of the second count of rape, the summary alleges that the victim was forcefully taken
by the appellant from a shopping complex and then raped in the bush at  knife-point.

[4] At the commencement of the appellant’s trial on 19 February 2007, the state
prosecutor informed the court that he had been given to understand, from the court
orderlies, that the appellant no longer wished to be represented by his legal
representative, appointed by ‘the Law Clinic’. The appellant’s legal representative
appeared to have been taken by surprise by this and said: ‘I have never heard
anything. Can he just speak for himself?’ The judge then asked the appellant
whether he had ‘a problem’. The appellant replied that he did not have a problem ‘so
far’ but said: ‘It is just that we have not yet finished a consultation.’ After further
questioning, the appellant repeated his complaint that: ‘We have not consulted
sufficiently.’ The judge then said that the trial should proceed but the appellant could
consult with his legal representative during the adjournments of the court.

[5] The counts were then put to the appellant. He pleaded guilty to the first count
of murder but, immediately thereafter, when asked by the judge to confirm this, said:
‘Maybe I did not understand well.’ Further discussions took place between the
appellant and the judge whereupon the appellant said: ‘I do understand but when I
am asked to plead on the charge of murder I am not so sure as to whether I should
plead not guilty or I should explain the circumstances.’ The court then decided that
the matter should stand down to the next day so that the appellant could consult

more fully with his legal representative. His legal representative then informed the
court that he would not be available the next day. At this, the court said:
‘I do not want, and I will not tolerate any further delays in the proceedings. The witnesses
are inconvenienced and so am I, and I want to proceed with this matter tomorrow. I
personally arranged with experienced counsel, Mr Dzumba, to come down now to see him.
Mr Dzumba will take over his defence.’

[6] The next day the trial proceeded with counsel, Mr Dzumba, appearing as the
appellant’s legal representative. At the commencement of the proceedings on that
day the court asked the appellant whether he was satisfied ‘with the change in his
legal representation’. The appellant replied: ‘I am satisfied.’

[7] The appellant was then asked to plead once more, and on this occasion he
pleaded guilty to all four counts. Mr Dzumba then read into the record a written
statement by the appellant in terms of s 112 of the Criminal Procedure Act. It reads
as follows:

‘1. I, the undersigned, RICHARD NEGONDENI, hereinafter referred to as Accused, do
hereby plead guilty to all the four counts, namely that of murder, rape, robbery and rape, and
explain as follows for the first three counts:
2. On the 2nd April 2002 as indicated in the indictment, I met the deceased NTSOMBENI
MAKHANYE at the Thohoyandou Shopping Complex.
3. I asked her to accompany me to Ha-Dumasi and we boarded the taxi together.
4. On arrival at Ha-Dumasi we sat in some bushes and I forced to have sexual intercourse
with her, without her consent.
5. We quarreled and I hit her on the head with a stone. She fell down and never spoke
again. I then got shocked, frustrated and confused.
6. I took her cellphone and left for home. I decided to tell nobody about what had happened.
7. In connection with count 4, I plead also guilty to the second charge of rape. I admit that I
met one Sylvia Netshiavha at the Thohoyandou Shopping Centre on the 6th February 1999.

8. I proposed love to her and together we went to Block F not far from the Thohoyandou
Technical School.
9. In the buses not far from the said school I forced one Sylvia Netshiavha to have sexual
intercourse with me without her consent.
10. Afterwards, the victim, one Sylvia Netshiavha, reported the matter to the police and I was
arrested later that day.
I know and understand that it is unlawful to kill another person intentionally without any
justifiable ground.
I further know that it is unlawful to intentionally take another person’s property without her
permission.
I further know that it is unlawful to intentionally have sexual intercourse with a female person
without her consent.’

[8] The judge then asked the appellant whether the statement was correct. The
appellant confirmed that it was. The judge then enquired from the appellant as to the
size of the stone that was used to hit the deceased. After the appellant had
demonstrated, it was agreed among all concerned that it was ‘about the size of a
soccer ball’1. The court then proceeded to find the appellant guilty on all four counts.

[9] The first issue that arises is whether this terse statement, especially insofar as
it relates to the count of murder, is sufficient to satisfy the requirements of s 112
(1)(b) of the Criminal Procedure Act which reads as follows:
‘the presiding judge, regional magistrate or magistrate shall, if he or she is of the opinion that
the offence merits punishment of imprisonment or any other form of detention without the
option of a fine or of  a fine exceeding the amount determined by the Minister from time to
time by notice in the Gazette, or if requested thereto by the prosecutor, question the accused
with reference to the alleged facts of the case in order to ascertain whether he or she admits
the allegations in the charge to which he or she has pleaded guilty, and may, if satisfied that

1 In S v Makhaya 2004 (1) SACR 444 (C); JOL 12062 (C) it was held that it is ‘undesirable that the
accused should do any demonstration in court’ for purposes of section 112(1)(b) but, in the
circumstances of this case that issue is irrelevant.

the accused is guilty of the offence to which he or she has pleaded guilty convict the
accused on his or her plea of guilty of that offence . . . .’.

[10] It has been made clear in S v Mbuyisa2 that s 112(b) contemplates
admissions of facts and not admissions of law or legal conclusions.3 In S v Lebokeng
en ‘n ander4  it was stressed that the court should be satisfied not only that the
accused committed the act in question but that he committed it unlawfully and with
the necessary mens rea. As was stated in S v Nyanga
‘Section 112(1)(b) questioning has a twofold purpose. Firstly, to establish the factual basis
for the plea of guilty and secondly to establish the legal basis for such plea.  In the first
phase of the enquiry, the admissions made may not be added to by other means such as a
process of inferential reasoning. (S v Nkosi 1986 (2) SA 261 (T) at 263H-I; S v Mathe 1981
(3) SA 664 (NC) at 669E-G; S vJacobs (supra at 1177B) (1978 (1) SA 1176 (C) at 1177B).
The second phase of the enquiry amounts essentially to a conclusion of law based on the
admissions.  From the admissions the court must conclude whether the legal requirements
for the commission of the offence have been met.  They are the questions of unlawfulness,
actus reus and mens rea.  These are conclusions of law.  If the court is satisfied that the
admissions adequately cover all these elements of the offence, the court is entitled to convict
the accused on the charge to which he pleaded guilty.

[11]  From the record, it is not clear, beyond reasonable doubt, whether the
appellant admitted that his act of hitting the deceased on the head with a stone
caused her death. In addition, the appellant’s statement that he was shocked,
confused and surprised cries out for further enquiry, as it is not clear whether the
appellant even admitted that he had acted with the requisite intent – either in the
form of dolus directus or dolus eventualis – to kill the deceased, for a conviction on
the count of murder properly to be made. It is therefore not even certain whether the
correct conviction would have been culpable homicide.  The conviction on the count

2 S v Mbuyisa 2012 (1) SACR 571 (SCA); (183/1) [2011] ZASCA 146.
3 Para 7. See also S v Zerky 2010 (1) SACR 460 (KZP) para 20; (R421/09)[2009] ZAKZPHC 17.
4 S v Lebokeng en ‘n ander 1978 (2) SA 674 (O); [1978] 3 ALL SA 139 (O). See also S v
Ngubane1978 (2) PH H189 (N); (30/83) [1985] ZASCA 41; S v Moniz 1982 (1) SA 41 (C) 46; [1982] 3
ALL SA 157 (C); S v Phikwa 1978 (1) SA 397 (E); [1978] 1 ALL SA 557 (E); S v Tshumi & others
1978 (1) SA 128 (N); [1978] 1 ALL SA 273 (N); S v Mthetwa; S v Khanyile 1978 (2) SA 773 (N);
[1978] 2 ALL SA 328 (N);  S v Serumala 1978 (4) SA 811 (NC); [1978] 4 ALL SA 733 (NC). S v Naude
1978 (1) SA 566 (T); [1978] 1 ALL SA 685 (T); S v Thobejane 1978 (1) PH H116 (T); S v Jacobs 1978
(1) SA 1176 (C) 1178; S v Medupa 1978 (2) PH H125 (O); S v Matlabeng en ‘n ander 1983 (4) SA
431 (O) and S v Mbova en andere 1996 (1) SACR 239 (NC) 242(I).

of robbery and both counts of rape may be justified, if one has regard to the contents
of the statement, but clearly the appellant ought not to have been convicted of
murder merely on the strength of the s 112 proceedings.

[12]   In addition, as appears from what is set out below, the events that occurred
after the appellant’s conviction, shows that he did not enjoy a fair trial. After a
previous conviction for assault perpetrated in 1990 was proven against him, the
judge then enquired from counsel for the State and the defence whether the
minimum sentencing provisions of s 51 of the Criminal Law Amendment Act 105 of
1997 were of application and, if so, what they prescribed in relation to the appellant’s
convictions. It is clear, from the record that both the judge and the appellant’s
counsel were unaware of what that Act in fact provided. Indeed it led to the judge
adjourning in order to discuss the provisions of the Criminal Law Amendment Act
with counsel in chambers. This in itself was irregular. It was a discussion which
ought to have taken place in open court.  Importantly, counsel for the State did not
bring the minimum sentencing provisions to the attention either of the appellant or
the court before this enquiry was made, and the appellant’s plea was therefore
clearly tendered without his knowing of them.

[13] After the adjournment, the appellant was briefly led in mitigation. This
established that the appellant was 32 years of age at the time, he left school during
standard nine, had been working at a bakery at the time of his arrest in respect of
counts 1 to 3 and was married with two school-going children. He said he felt
ashamed at what he had done and was sorry for the pain which he had caused the
family of the deceased and the victim of the second count of rape. The state
prosecutor cross-examined the appellant as to the second count of rape. The
appellant explained that, although he had been arrested shortly after the date
relating to count four, ‘the matter was not proceeded with’, he had gone to the
parents of his victim ‘to settle this issue’ and was later informed in court that ‘the
charge was through’. Apart from this, no further evidence was adduced from the
appellant as to the circumstances under which the offences were committed.

[14]  The State led the evidence of a police officer and the father of the deceased
as to the state of decomposition of the deceased’s body and that she had been

identified by her clothing. Photographs taken by the forensic photographer of the
deceased’s badly decomposed body, shortly after it had been discovered, were
handed in as exhibits. The complainant in respect of the second count of rape was
called by the State to testify. She confirmed that she had non-consensual sexual
intercourse with the appellant although the circumstances in which she agreed to
accompany the appellant on a walk from the shopping centre to the technical college
were sketchily put before the court. When asked whether she was scared of men
now, as a result of the rape, she replied: ‘No.’

[15] The court a quo then proceeded to sentence the appellant to life
imprisonment on the count of murder, holding that it was obliged to do so in terms of
the Criminal Law Amendment Act, on account of the close association between the
rape and murder of the deceased. The appellant had at no stage in the trial or, it
would appear from the record, at any time before that, been warned by the court
that, if convicted, he faced the risk of life imprisonment. The court a quo also
sentenced the appellant to ten years’ imprisonment for the rape of the deceased, two
years for the robbery and ten years for the rape of Ms Sylvia Netsiaba. The
sentences on counts two, three and four were, as mentioned previously, ordered to
run concurrently with the sentence on count 1. In any event, in terms of section 39
(2) of the Correctional Services Act, No 111 of 1998, the sentences on counts two,
three and four would automatically run concurrently with the sentence of life
imprisonment.

[16]  In view of the appellant’s patently concerned and hesitant stance at the
commencement of the trial, the court a quo was at the outset of the proceedings
wrong in insisting that the trial proceed as it did. However well-intentioned the court a
quo may have been in appointing Mr Dzumba to act for the appellant, and even
though the appellant confirmed the next day that he was satisfied with this
arrangement, it was wrong for the court a quo to have prevailed upon him to accept
the arrangement. Quite apart from any other difficulties concerning issues of
principle that may exist with this course of action, it did not afford the appellant the
time for a proper consultation to be held. This legal representative’s apparent lack of
awareness about the minimum sentencing provisions in the Criminal Law
Amendment Act is indicative of the fact that the appellant did not have the quality of

legal representation that one could reasonably expect, especially in so gravely
serious a case. This court has repeatedly stressed the importance of warning a
person of the risk of minimum sentences being imposed.5 In the circumstances of
this particular case, the injustice of the appellant not having been so warned is
manifest. This is all the more obvious in a case in which a legal representative
appointed at the 11th hour is not fully aware of the implications of the minimum
sentencing legislation. Against this background the appellant did not have a fair trial.

[17]  When the well settled law relating to the procedural fairness of an accused
person’s trial is applied against the aggregate of the facts and circumstances of this
case, one’s sense that the appellant did not have a fair trial is compounded. The
right of every person to a fair trial is a constitutional one.6 That right was infringed
and for that reason the conviction and sentence cannot be allowed to stand.

[18]   What is to be done? On the one hand, the appellant manifestly did not have a
fair trial. Against this, the State, the victims and their families of serious crimes such
as these, including the family of the deceased also have an interest in the appellant
not being allowed to walk free, without further ado. In this regard the provisions of
s 312 of the Criminal Procedure Act are of importance They provide as follows:
‘(1) Where a conviction and sentence under section 112 are set aside on review or appeal
on the ground that any provision of subsection (1) (b) or subsection (2) of that section was
not complied with, or on the ground that the provisions of section 113 should have been
applied, the court in question shall remit the case to the court by which the sentence was
imposed and direct that court to comply with the provision in question or to act in terms of
section 113, as the case may be.
(2) When the provision referred to in subsection (1) is complied with and the judicial officer is
after such compliance not satisfied as is required by section 112 (1) (b) or 112 (2), he shall
enter a plea of not guilty whereupon the provisions of section 113 shall apply with reference
to the matter.’

5 See, for example, S v Legoa 2003 (1) SACR 13 (SCA) paras 20 and 21; (33/2002)[2002] ZASCA
122; S v Ndlovu 2003 (1) SACR 331 (SCA) para 12; (75/2002) [2002] ZASCA 144; and S v Makatu
2006 (2) SACR 582 (SCA) paras 3 and 17; (245/05) [2006] ZASCA 72.
6See s 34 of the Constitution, 1996.

[19] In S v Tshumi & others7 James JP, with Milne J concurring, said:

‘It is clear that the magistrate failed to appreciate what his duty was as laid down by sec.
112, and failed to satisfy himself on a number of important questions such as whether it was
established by the answers that the accused either individually or collectively acted
unlawfully, or with  common purpose in assaulting the deceased. In fact the magistrate
appears to have completely failed to grasp the fact that since sec. 112 (1)(b) makes it
possible to dispense with evidence to establish all the essential elements of the charge, his
questions must be directed to satisfying himself that an accused fully understands all the
elements of the charge when pleading guilty, and that his answers reveal that he has in fact
committed the actual offence to which he has pleaded guilty.’8
Having found that the conviction could not stand, James JP continued as follows:
‘What should now be done? Clearly the convictions and sentences cannot stand, nor is it
possible, since the magistrate has retired, for the case to be remitted to him to deal correctly
with it by making proper use of the provisions of sec. 112 (1) (b). Justice will, I consider, be
done in these circumstances if the case is sent back for trial by another magistrate.
The convictions and sentences are accordingly set aside and the case is sent back for trial
de novo by another magistrate.’9

[20]   Other cases in which it has been decided that a trial de novo is appropriate in
circumstances such as this include S v Witbooi & others,10S v Mokoena,11 S v Van
Deventer12  S v Mbova en andere13, S v Williams14 and  S v Mofokeng.15 In S v
Heugh & others16 the case was remitted to the magistrate for him to deal with, in his

7 S v Tshumi & others 1978 (1) SA 128 (N); [1978] 1 ALL SA 273 (N).
8 At 130B-D.
9 At 130G-H.
10 S v Witbooi & others 1978 (3) SA 590 (T); [1978] 2 ALL SA 641 (T).
11 S v Mokoena  1982 (3) SA 967 (T); [1982] 4 ALL 461 (T).
12 S v Van Deventer 1978 (3) SA 97 (T); [1978] 2 ALL SA 573 (T).
13 S v Mbova en andere 1996 (1) SACR 239 (NC).
14 S v Williams 2008 (1) SACR 65 (C); (29/04/07) [2007] ZAWCHC 48.
15 S v Mofokeng 2013 (1) SACR 143 (FB); (191/2012) [2012] ZAFSHC 117.
16 S v Heugh & others 1997 (2) SACR 291 (E); [1997] JOL 1408 (E).

discretion, in terms of s 113 of the Criminal Procedure Act17. See also Mkhize v the
State & another Nene & others v the State & another.18 In S v Fikizolo19 the
conviction and sentence was set aside, consequent upon shortcomings applying the
provisions of s 112 of the Criminal Procedure Act properly, without ordering a trial de
novo, but there were additional serious misdirections by the magistrate that
compelled the appeal court to do so.20 Each case must be decided on its own merits.
In particular, as to whether the trial should be heard de novo, the interests of justice,
not only with respect to an accused person but also the State and society as a whole
should be taken into consideration.

[21] Even before s 112 of the Criminal Procedure Act came into operation, there
was precedent in this court for remitting a trial for a hearing de novo where
procedural irregularities had been committed and the interests of justice require it.21

[22] During the course of argument, counsel for the appellant placed considerable
reliance on the unreported judgment in this court in S v Mudau22 in which this court
recognised that, where a trial had been tainted by procedural unfairness, a court of
appeal had a discretion to remit the matter for a hearing de novo. Although in that
case the court declined to do so, each case must be decided on its own merits and
the facts of Mudau were materially different from this one. In this case, despite the

17 Section 113 of the Criminal Procedure Act reads as follows:
(1) If the court at any stage of the proceedings under section 112 (1) (a) or (b) or 112 (2) and before
sentence is passed is in doubt whether the accused is in law guilty of the offence to which he or she
has pleaded guilty or if it is alleged or appears to the court that the accused does not admit an
allegation in the charge or that the accused has incorrectly admitted any such allegation or that the
accused has a valid defence to the charge or if the court is of the opinion for any other reason that the
accused's plea of guilty should not stand, the court shall record a plea of not guilty and require the
prosecutor to proceed with the prosecution: Provided that any allegation, other than an allegation
referred to above, admitted by the accused up to the stage at which the court records a plea of not
guilty, shall stand as proof in any court of such allegation.
(2) If the court records a plea of not guilty under subsection (1) before any evidence has been led, the
prosecution shall proceed on the original charge laid against the accused, unless the prosecutor
explicitly indicates otherwise.
18 Mkhize v the State & another Nene & others  v the State & another 1981 (3) SA 585 (N); [1981] 1
ALL SA 195 (N).
19 S v Fikizolo 1978 (2) SA 676 (NC); [1978] 3 ALL SA 229 (NC).
20 See for example S v Fikizolo 1978 (2) SA 676 (NC).
21 See for example R v Zackey 1945 AD 505. See also R v Read 1924 TPD 718 and S v Vezi 1963
(1) SA 9 (N); [1963] 1 ALL SA 315 (N); R v Foley 1926 TPD 168 and R v Cohen 1942 TPD 266 at
273.
22 S v Mudau (276/13) [2013] ZASCA 172 (28 November 2013.

period of imprisonment that the appellant has already served, the interests of justice
require a fresh trial. The appellant, after all, faces a possible life sentence should he
properly be convicted.

[23] In all the circumstances of this case, the interests of justice will best be served
by setting aside the convictions and sentences and remitting the matter for a trial de
novo. It is appropriate, against the full canvas of events, to direct that the trial be
heard by a different judge.

[24] One further aspect should be mentioned. At the commencement of the
appellant’s application for leave to appeal, his then legal representative (who had
neither appeared at his trial and who did not argue his appeal) stated that he agreed
with the conviction and sentence ‘meted out by the court’ and that he had explained
to the appellant that he had ‘no prospects of success’ in the matter and that, if he
wished to proceed, he would have to do so ‘on his own’. With that he abandoned the
appellant to argue the application in person. This is inexplicable. As should be
apparent from what has been set out above, there was much to be said. It also
constituted an extraordinary dereliction of the duty of defence counsel to do their
best, even if they privately consider the case to be a hopeless one. On his own, the
appellant performed rather well. For example, he submitted that the killing of the
deceased could be construed as ‘an accident’ and ‘it was not like it was planned that
I wanted to kill somebody or the deceased for that matter.’

[25] The following order is made:
1 The appeal is upheld.
2 The convictions and sentences in respect of all counts are set aside.
3 The case is remitted to the court a quo for trial de novo before a different
judge.

_________________________
N P WILLIS

JUDGE OF APPEAL
APPEARANCES:

For the Appellant:
S O Ravele (Attorney)
Instructed by:
S O Ravele Attorneys, Makhado
c/o Phatsoane Henney Attorneys, Bloemfontein

For the Respondent:
M Sebelebele
Instructed by:
The Director of Public Prosecutions, Thohoyandou
The Director of Public Prosecutions, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

29 September 2015

STATUS

Immediate

Negondeni v the State (00093/15) [2015] ZASCA 132 (29 September 2015)

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

Today the Supreme Court of Appeal (SCA) upheld an appeal from the Limpopo
Local Division of the High Court, Thohoyandou  (Renke AJ) set aside the convictions
and sentences in respect of all counts and remitted the case is remitted to the high
court for trial de novo before a different judge.

The appellant, Mr Richard Negondeni, had been indicted in the Limpopo Local
Division, Thohoyandou  High Court (Renke AJ) on a count of murder, a count of
robbery and two counts of rape. He pleaded guilty in terms of s 112 of the Criminal
Procedure Act 51 of 1977 (the Criminal Procedure Act) and was convicted on all four
counts. He was sentenced to life imprisonment on the count of murder, with which
lesser sentences imposed on the other counts were ordered to run concurrently.

The indictment alleged, in relation to the murder count, that the appellant killed an
the deceased) on 2 April 2002 at Ha-Dumasi, in the district of Thohoyando; in
relation to the first count of rape that he did so in respect of the same person at the
same place at about the same time; in relation to the count of robbery that, using
force and violence, he took the deceased’s cellular telephone from her at about the
same place and time; and, in relation to the second count of rape, that he committed
the crime on 6 February 1999 at the Thohoyando Technical School, his victim having
been another woman. The indictment made no reference to the prescribed minimum
sentences set out in the Criminal Law Amendment Act 105 of 1997.

In the summary of substantial facts annexed to the indictment it had been alleged
that ‘before leaving the scene (where the rape of the deceased had been
committed), the accused robbed the victim and then stoned her to death.’ It is also
alleged that the deceased’s decomposed body was recovered in the bush at Ha-
Dumasi on 11 July 2002 and that: ‘The cause of death could not be determined
because of the advanced state of decomposition of the deceased’s body.’ In respect
of the second count of rape, the summary alleged that the victim was forcefully taken
by the appellant from a shopping complex and then raped in the bush at  knife-point.

At the commencement of the appellant’s trial on 19 February 2007, the state
prosecutor informed the court that he had been given to understand, from the court
orderlies, that the appellant no longer wished to be represented by his legal
representative, appointed by ‘the Law Clinic’. The appellant’s legal representative
appeared to have been taken by surprise by this and said: ‘I have never heard
anything. Can he just speak for himself?’ The judge then asked the appellant
whether he had ‘a problem’. The appellant replied that he did not have a problem ‘so
far’ but said: ‘It is just that we have not yet finished a consultation.’ After further
questioning, the appellant repeated his complaint that: ‘We have not consulted
sufficiently.’ The trial judge then said that the trial should proceed but the appellant
could consult with his legal representative during the adjournments of the court.

The counts were then put to the appellant. He pleaded guilty to the first count of
murder but, immediately thereafter, when asked by the judge to confirm this, said:
‘Maybe I did not understand well.’ Further discussions took place between the

appellant and the judge whereupon the appellant said: ‘I do understand but when I
am asked to plead on the charge of murder I am not so sure as to whether I should
plead not guilty or I should explain the circumstances.’ The court then decided that
the matter should stand down to the next day so that the appellant could consult
more fully with his legal representative. His legal representative then informed the
court that he would not be available the next day. At this, the court said that it would
not tolerate any further delays in the proceedings and that it wished proceed with the
matter. The trial judge then informed that he had ‘personally arranged with experienced
counsel, Mr Dzumba, to come down now to see him. Mr Dzumba will take over his defence.’

The next day the trial proceeded with  Mr Dzumba appearing as the appellant’s legal
representative. At the commencement of the proceedings on that day the court
asked the appellant whether he was satisfied ‘with the change in his legal
representation’. The appellant replied: ‘I am satisfied.’

The appellant was then asked to plead once more, and on this occasion, he  pleaded
guilty to all four counts. Mr Dzumba then read into the record a written statement by
the appellant in terms of s 112 of the Criminal Procedure Act.

The judge then asked the appellant whether the statement was correct. The
appellant confirmed that it was. The judge then enquired from the appellant as to the
size of the stone that had been used to hit the deceased. After the appellant had
demonstrated, it was agreed among all concerned that it was ‘about the size of a
soccer ball’. The court then proceeded to find the appellant guilty on all four counts.

The SCA found that it was not clear, beyond reasonable doubt, whether the
appellant admitted that his act of hitting the deceased on the head with a stone
caused her death. In addition, the appellant’s statement that he was shocked,
confused and surprised cries out for further enquiry, as it is not clear whether the
appellant even admitted that he had acted with the requisite intent – either in the
form of dolus directus or dolus eventualis – to kill the deceased, for a conviction on
the count of murder properly to be made. It is therefore not even certain whether the
correct conviction would have been culpable homicide.  The SCA found that the
conviction on the count of robbery and both counts of rape may be justified, if one

has regard to the contents of the statement, but clearly the appellant ought not to
have been convicted of murder merely on the strength of the s 112 proceedings.

The SCA said that it was clear,from the record that both the trial judge and the
appellant’s counsel were unaware of what that Act in fact provided. Indeed it led to
the judge adjourning in order to discuss the provisions of the Criminal Law
Amendment Act with counsel in chambers. This in itself was irregular. It was a
discussion which ought to have taken place in open court.  Importantly, counsel for
the State did not bring the minimum sentencing provisions to the attention either of
the appellant or the court before this enquiry was made, and the appellant’s plea was
therefore clearly tendered without his knowing of them.

The appellant had briefly been led in mitigation of sentence. The trial court then
proceeded to sentence the appellant to life imprisonment on the count of murder,
holding that it was obliged to do so in terms of the Criminal Law Amendment Act, on
account of the close association between the rape and murder of the deceased. The
appellant had at no stage in the trial or at any time before that, been warned by the
court that, if convicted, he faced the risk of life imprisonment. The court a quo also
sentenced the appellant to ten years’ imprisonment for the rape of the deceased, two
years for the robbery and ten years for the other rape.

The SCA found that, in view of the appellant’s patently concerned and hesitant
stance at the commencement of the trial, the court a quo was at the outset of the
proceedings wrong in insisting that the trial proceed as it did. However well-
intentioned the court a quo may have been in appointing Mr Dzumba to act for the
appellant, and even though the appellant confirmed the next day that he was
satisfied with this arrangement, it was wrong for the court a quo to have prevailed
upon him to accept the arrangement. Quite apart from any other difficulties
concerning issues of principle that may exist with this course of action, it did not
afford the appellant the time for a proper consultation to be held. The legal
representative’s apparent lack of awareness about the minimum sentencing
provisions in the Criminal Law Amendment Act is indicative of the fact that the
appellant did not have the quality of legal representation that one could reasonably
expect, especially in so gravely serious a case.

The SCA has repeatedly stressed the importance of warning a person of the risk of
minimum sentences being imposed. In the circumstances of this particular case, the
injustice of the appellant not having been so warned was manifest. Against this
background, the appellant did not have a fair trial.

The SCA held that, when the well settled law relating to the procedural fairness of an
accused person’s trial is applied against the aggregate of the facts and
circumstances of this case, one’s sense that the appellant did not have a fair trial
was compounded. That right was infringed and for that reason the conviction and
sentence cannot be allowed to stand.

Against this, the SCA concluded that the State, the victims and their families of
serious crimes such as these, including the family of the deceased, also have an
interest in the appellant not being allowed to walk free, without further ado.

The SCA decided that, in all the circumstances of this case, the interests of justice
will best be served by setting aside the convictions and sentences and remitting the
matter for a trial de novo. The SCA found that it was appropriate, against the full
canvas of events, to direct that the trial be heard by a different judge.

The SCA also drew attention to the fact that, at the commencement of the
appellant’s application for leave to appeal, his then legal representative (who had
neither appeared at his trial and who did not argue his appeal) stated that he agreed
with the conviction and sentence ‘meted out by the court’ and that he had explained
to the appellant that he had ‘no prospects of success’ in the matter and that, if he
wished to proceed, he would have to do so ‘on his own’. With that he abandoned the
appellant to argue the application in person. The appellant’s counsel was criticised
for an extraordinary dereliction of the duty of defence counsel to do their best, even if
they privately consider the case to be a hopeless one.