THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case No: 140/2016

In the matter between:

VUSUMUZI NKOSINATHI MHLONGO                                                        APPELLANT

and

THE STATE                                                                                               RESPONDENT

Neutral citation:
Mhlongo v The State (140/16) [2016] ZASCA 152 (3 October 2016)

Coram:
Bosielo, Swain, Zondi and Mocumie JJA and Dlodlo AJA

Heard:

24 August 2016

Delivered:

3 October 2016

Summary:
Criminal Law and Procedure ─ conviction on one count of rape ─ the charge
sheet erroneously referred to Part 2 of Schedule 2 and not Part 1 of Schedule 2 to s 51(1) of the
Criminal Law Amendment Act 105 of 1997 ─ sentence of life imprisonment imposed ─ whether
this irregularity vitiated the sentence proceedings ─ application in terms of s 276B of the
Criminal Procedure Act 51 of 1977 ─ importance and permanent infusion of the Victim Impact
Statement at the sentencing stage ─ duty of the prosecution to place all information before the
court ─ Comprehensive guidelines, protocol and model VIS instruments must be drafted by the
National Director of Public Prosecutions ─ matter remitted to court a quo.

______________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: KwaZulu-Natal Division of the High Court, Pietermaritzburg (Van Zyl J
and Vahed J sitting as court of appeal):

1. The appeal is upheld.
2. The order of the court a quo in terms of s 276B of the Criminal Procedure Act 51 of
1977 is set aside.
3. The matter is remitted to the court a quo for the parties to make representations on
the desirability of granting an order in terms of s 276B of the Criminal Procedure Act 51
of 1977.
_____________________________________________________________________
JUDGMENT
______________________________________________________________________

Mocumie JA (Bosielo, Swain and Zondi JJA and Dlodlo AJA concurring):

[1] On 10 March 2009 the appellant was charged with and convicted by the Regional
Court, Empangeni, on one count of rape. On 12 March 2009 he was sentenced to life
imprisonment. Subsequently, on 8 September 2011, he applied for and was granted
leave to appeal against his conviction and sentence to the full court of the KwaZulu-
Natal Division, Pietermaritzburg. The full court dismissed the appeal against the
conviction but upheld the appeal against the sentence of life imprisonment and
substituted it with a sentence of 18 years‟ imprisonment. In addition, it fixed a non-
parole period of 12 years in terms of s 276B of the Criminal Procedure Act 51 of 1977
(the Act). The appellant appeals against the sentence imposed and the fixing of the
non-parole period with special leave of this court.

[2] In relation to the non-parole period, the appellant launched a three pronged
attack. First, he contends that there was no application made by the State to fix the non-
parole period either before the regional court or before the full court. Secondly, that he

was not given a notice that s 276B will be invoked. Thirdly, that the parties were not
given an opportunity to present argument or evidence for or against the fixing of a non-
parole period. The appellant contends further that there was no basis or finding that his
character could only be rehabilitated after a period of 12 years. The full court gave no
reasons for fixing the non-parole period. As to the invocation of s 51(1) of Part I of
Schedule 2 of the Criminal Law Amendment Act 105 of 1997 (the Criminal Law
Amendment Act) by the regional court, the appellant contends that since s 51(1) was
not specified in the charge sheet, it committed a material misdirection by imposing the
sentence of life imprisonment.

[3] A non-parole order is a determination that has serious consequences for an
accused. „. . . [I]t is an order that a person does not deserve being released on parole in
future.1‟ Its effect is to ultimately restrict the liberty of a person who is sentenced to a
term of imprisonment, since such a person cannot be released on parole, or correctional
supervision, until the expiry of the non-parole period.2 The fixing of a non-parole period
entails the exercise of a discretion vested in a court which like all discretionary powers
must be judicially exercised. Especially in criminal matters where the liberty of a person
is at stake, it must be exercised judiciously and in accordance with principles of fairness
and justice.

[4] In S v Pakane & others3 this Court said that the intention of the legislature in
enacting s 276B of the CPA is to invest sentencing courts with discretionary power to
„control the minimum or actual period to be served by the convicted person‟.4
Furthermore, this section provides the courts with the „overall latitude‟ and flexibility in
determining whether to fix or refrain from fixing non-parole periods, but not as a matter
of routine.5 Hence, in interpreting s 267B of the Act, this Court in Mthimkhulu in
recognising a progression from subsection 1 to subsection 2, said that:

1 Strydom v S [2015] ZASCA 29 para 16; S v Bull & another [2001] ZASCA 105 at 692D-I, 693D-G and
697A.
2 S v Williams; S v Papier [2006] ZAWCHC 5; 2006 (2) SACR 101 (C).
3 S v Pakane & Others [2007] ZASCA 134; 2008 (1) SACR 518 (SCA).
4 Ibid paras 46–47.
5 Mthimkhulu v S [2013] ZASCA 53; 2013 (2) SACR 89 (SCA) para 14.

„What s 276B(2) in fact does is to enjoin a sentencing court, once it has exercised its discretion
under s 276B(1)(a) against the convicted person, to then fix the non-parole period in respect of
the effective period of imprisonment taking cognisance of the provisions of s 276B(1)(b)‟.6

[5] The principles that determine the exercise of this exceptional order of non-parole
are well-stated; first, as to why a court should exercise the discretionary power; second,
as to what facts are germane to its exercise, and third, as to the procedure to be
followed. In Mthimkhulu,7 this court held:
„An order in terms of s 276B should therefore only be made in exceptional circumstances, when
there are facts before the sentencing court that would continue, after sentence, to result in a
negative outcome for any future decision about parole‟.8 The judiciary, within the matrix of South
Africa‟s constitutional democracy, stands as a bulwark against any arbitrary exercise of power
and owes every citizen a duty of ensuring that every exercise of power conforms to the Bill of
Rights. The principle of fair hearing enshrined in the South African Bill of Rights is a key aspect
of the rule of law.‟9

[6] This Court has consistently held in several reported judgments that the
provisions of s 276B must be invoked for substantial reasons. Three of these decisions
warrant special mention. They are Strydom v S,10 S v Stander11 and Mthimkulu v S12. In
Strydom, the appellant was convicted of 36 charges of fraud involving a benefit of R375
816.92. She was consequently sentenced to serve a term of five years‟ imprisonment
with the provision that in terms of s 276B of the Act the appellant serve three years of
imprisonment before being placed on, or being considered eligible for parole. On appeal
this court stated the following:
„[A] court should not resort to s 276B of the CPA lightly and rather, as this court has often
indicated, allow the officials of the Department of Correctional Services, who are guided by the

6 Ibid para 16.
7 See also S v Stander [2011] ZASCA 211; 2012 (1) SACR 537 (SCA) para 16.
8 Above fn 6 para 19.
9 Section 34 of the Constitution of the Republic of South Africa 108, 1996 provides: „Everyone has the
right to have any dispute that can be resolved by the application of law decided in a fair public hearing
before a court or, where appropriate, another independent and impartial tribunal or forum‟.
10 Strydom v S [2015] ZASCA 29.
11 S v Stander 2012 (1) SACR 537 (SCA).
12Mthimkhulu v S 2013 (2) SACR 89 (SCA); See also S v Mhlakaza & another [1997] ZASCA 7; 1997 (1)
SACR 515 (SCA).

[Correctional Services Act 111 of 1998] (CSA) and the attendant regulations, to make such
assessments and decisions as well as the parole board.‟13.

[7] In Stander, the appellant was sentenced to eight years‟ imprisonment for fraud,
two years of which were conditionally suspended for five years. The trial court also
ordered, in terms of s 276B of the CPA that the appellant serve at least 36 months of
her sentence before she could be considered for parole (the non-parole order).14 On
appeal the court held that the failure of the magistrate to give reasons for the sentence
made it impossible to assess what prompted the order in the first instance. On appeal,
this Court found that a court can only invoke s 276B when there are circumstances
specifically relevant to parole in addition to any aggravating factors pertaining to the
commission of the crime, and where a proper, evidential basis had been laid for a
finding that such circumstances exist so as to justify the imposition of such an order.15

[8] In Mthimkulu, the appellant was convicted in the high court on one count of
murder, possession of a fully automatic firearm (an AK47 assault rifle) without a licence
to possess such firearm and possession of five rounds of live ammunition (7.62 mm)
without the required licence. The appellant was sentenced to 20 years‟ imprisonment on
the murder count and five years for both unlawful possession of a prohibited firearm and
ammunition. The trial court directed that the term of five years‟ imprisonment in respect
of the latter two counts, run concurrently with the 20 years‟ imprisonment imposed in
respect of the murder count and fixed a non-parole period of 13 years. There was no
invitation by the trial court to counsel to address it prior to the fixing of the non-parole
order. This Court held that the failure to afford the parties the opportunity to address the
sentencing court might, depending on the facts of each case, constitute an infringement
of fair-trial rights.16

13 Strydom para 15.
14 Stander para 1.
15 Ibid para 20.
16 Mthimkhulu para 21.

The procedure for fixing a non-parole period and the accused’s entitlement to be
heard
[9] A trial court has a duty to impose an appropriate sentence according to long
standing principles of punishment and judicial discretion. A convicted person, generally
speaking, has a reasonable expectation of being paroled after serving a portion of the
term of imprisonment. Parole can therefore be regarded as an essential element in the
punishment of an offender. The right of an accused to a fair trial extends throughout the
entire proceedings, including the sentencing stage.17 The fixing of a non-parole period is
part of a criminal trial and it must thus accord with the dictates of a „fair trial‟ that an
accused person be given notice of the court‟s intention to invoke s 276B of the Act and
to be heard before a non-parole period is fixed. Failure to do so amounts to a
misdirection by the sentencing court.18

[10] In Stander this Court stated categorically, „[a]t least two questions arise when
such an order [non-parole order] is considered: first, whether to impose such an order
and second, what period to attach to the order. In respect of both considerations the
parties are entitled to address the sentencing court. Failure to afford them the
opportunity to do so constitutes misdirection.’19 (My emphasis)

[11] At the heart of the right to a fair criminal trial and what infuses its purpose, is for
justice to be done and also be seen to be done. Dignity, freedom and equality are the
foundational values of the Constitution. In relation to sentencing, what the right to a fair
trial requires, amongst other things, is a procedure which does not prevent any factor
which is relevant to the sentencing process and which could have a mitigating effect on
the punishment to be imposed, from being considered by the sentencing court. The
Constitutional Court emphasised „[i]n the present circumstances a fair trial would also
have to ensure that, in the process of the sentencing court being put in possession of

17 S v Dodo [2001] ZACC 16; 2001 (1) SACR 594 (CC) at para 38; Prinsloo v Van der Linde & another
[1997] ZACC 5; 1997 (3) SA 1012 (CC) para 31. S v Stander para 22.
18 Strydom para 17; See generally: Mthimkulu and Stander.
19 Stander para 22.

the factors relevant to sentencing, the accused is not compelled to suffer the
infringement of any other element of the fair trial right.‟20

[12] The principle to be derived from Strydom, Stander and Mthimkhulu is that the
discretion to fix a non-parole period must not be exercised lightly, but only in exceptional
circumstances which can only be established by an investigation and a consideration of
salient facts, and further evidence upon which such a decision rests.21 Giving reasons
for decisions is a long-standing and salutary practice that serves the interests of justice.
Furthermore, it helps to show the rationale for the decision.22 Without reasons for a
judgment on sentence as is the case in this matter, in respect of the invocation
of s 276B, such lack of reasons is highly prejudicial to the accused person. Thus the
court a quo‟s failure to state the rationale for its judgment is a vitiating factor.
[13] It is clear, as the State conceded, that the court a quo erred materially. This
Court is therefore bound to set aside the order in terms of s 276B and remit the matter
to the court a quo to afford the parties an opportunity to address it.

[14] The appellant also assailed the sentence imposed by the regional court on the
basis that the trial court misdirected itself by sentencing him in terms of the provisions of
s 51(1) Part I of Schedule 2 of the Criminal Law Amendment Act whereas Part 2 of
Schedule 2 was specified in the charge sheet. In other words, it was not specified that
life imprisonment was the prescribed minimum sentence. Further, no clear and
unambiguous explanation was given to the appellant at the commencement of the trial,
as to the applicability of a mandatory sentence of life imprisonment in the event of a
conviction.

[15] Section 35(3) of the Constitution guarantees the right to a fair trial for everyone
charged with a criminal offence,23 while s 84(1) of the CPA stipulates that a charge must

20 S v Dzukuda & others; S v Tshilo [2000] ZACC 16; 2000 (2) SACR 443 (CC) paras 11-12.
21 Strydom para 16.
22 See Stander fn 8 with reference to S v Immelman 1978 (3) SA 726 (A) at 726A.
23 Section 35 of the Constitution provides:
„(3) Every accused person has a right to a fair trial, which includes the right─
(a) to be informed of the charge with sufficient detail to answer it;

contain the essential particulars of an offence.24 Considering the constitutional right of
an accused to be sufficiently informed of the charge, and other underlying values of the
Constitution, it is very important that a charge sheet makes reference to provisions
relevant to the sentence for a particular offence; otherwise the Constitution would
become a dead letter.25 This Court has said on numerous occasions that it is always
desirable that a charge sheet refers to those provisions of the law of relevance to the
sentence to be imposed for the offence charged.26 Although there is no fixed rule, a
failure to state the relevant section in the Act, unless it occasions substantial prejudice
to the accused, does not necessarily vitiate the whole trial.27 In Ndlovu, this Court held
that the State‟s failure to give the accused sufficient prior notice of the applicability of
the statute was fatal to the sentence imposed, more so when the accused was
unrepresented.28 In Legoa this Court did not prescribe any general rule on the issue, but
emphasised the importance of a clearly drafted charge sheet and the reflection of the
fundamental principle of a fair hearing in the entire trial process. It also stressed that an
accused person should be given sufficient notice of the State‟s intention to rely on the
minimum mandatory sentencing regime in every instance.29

[16] I now turn to consider the question of whether the relevant provisions of the
Criminal Law Amendment Act were brought to the attention of the appellant. The
appellant contends that the legislation was referred to for the first time by the prosecutor

(b) to have adequate time and facilities to prepare a defence. . .‟
24 Section 84 of the CPA dealing with „essentials of charge‟ provides as follows:
„(1) Subject to the provisions of this Act and of any other law relating to any particular offence, a charge
shall set forth the relevant offence in such manner and with such particulars as to the time and place at
which the offence is alleged to have been committed and the person, if any, against whom and the
property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably
sufficient to inform the accused of the nature of the charge.
(2) Where any of the particulars referred to in subsection (1) are unknown to the prosecutor it shall be
sufficient to state that fact in the charge.
(3) In criminal proceedings the description of any statutory offence in the words of the law creating the
offence, or in similar words, shall be sufficient.‟
25 S v Ndlovu [2002] ZASCA 144; 2003 (1) SACR 331 (SCA) para 11; R v Zonele & others 1959 (3) SA
319 (A) at 323A-H; S v Moloi 1969 (4) SA 421 (A) at 424 A-C; S v Legoa [2002] ZASCA 122; 2003 (1)
SACR 13 (SCA) para 20.
26 Ibid.
27 Legoa paras 20-21.
28 Ndlovu para 12. See also Seleke & andere 1976 (1) SA 675 (T) at 682H.
29 Legoa para 21.

in his address in aggravation of sentence, when he said: „Your worship, the State would
submit that there are no substantial and compelling circumstances which the defence
has brought to the court's attention.‟ However, if one reads the record as a whole and
despite the incorrect reference to Part 2 of Schedule 2 to section 51of the Criminal Law
Amendment Act, there is no doubt that the appellant was apprised of his rights and was
well aware of same throughout the proceedings. That the appellant was apprised of his
rights in relation to the minimum sentencing regime is borne out by the record. First, the
charge, to which the appellant pleaded, is worded unambiguously as follows:
„The accused is guilty of the crime of rape . . .
In that upon or about and or between 16 March 2006 at or near Ngwelezane B section in the
Regional Division of Natal, the said accused did wrongfully and unlawfully have sexual
intercourse with Ntuli Bongangithini without her consent, and or against her will in
circumstances where she was raped more than once by the accused.‟ (My emphasis)
Secondly, not only was the appellant made aware of his rights within the purview of the
Criminal Law Amendment Act at the beginning of the trial, but he was conscious of the
seriousness of the charge because he even sought the regional court‟s indulgence for a
postponement to discuss this very aspect with his parents; which indulgence the
regional court granted from 2 February 2006 to 14 February 2006. Thirdly, and crucially,
the appellant was at all times legally represented.

[17] From these three aspects, it is undoubtedly clear, as counsel for the appellant
was constrained to concede, that the fact that the charge sheet had a defect which was
never rectified in terms of s 86(1) of the CPA, did not of its own vitiate the sentencing
proceedings.30 The facts of this case are for that matter, distinguishable from those of
Ndlovu and subsequent cases in which this court considered the irregularity on the part
of the State which it found to be so material misdirection, that it vitiated the whole
proceedings. As this Court has repeatedly emphasised, each case must be treated and
judged on its own facts, before any decision to set aside the proceedings can be taken.

30 S v Kolea [2012] ZASCA 199; 2013 (1) SACR 409 (SCA) para 18.

In S v Ndlovu; Sibisi31, which was cited with approval by this Court in S v Mabuza &
others,32 it was said that:
„It will not be essential to inform [the accused person] that he is facing the possibility of a
substantial prison sentence or a sentence which may be “materially prejudicial” if he can
reasonably be expected to be aware of this.‟33

[18] Turning to the sentence imposed by the regional court, which was then set aside
by the court a quo, the salient facts relevant to the sentence are as follows. The
complainant, a 27 year old young woman, testified that she was lured by the appellant
and his uncle to get a lift home on the fateful afternoon of 16 March 2006 as it was
raining and there were no buses from Empangeni to her home, due to a strike. After
dropping off an older man whom she believed to be the uncle of the appellant, the
appellant drove in the opposite direction to her home until he reached his own home.
Once inside the house, he demanded to have sexual intercourse with her. When she
refused, he assaulted her and threatened to kill her. Ultimately he overpowered and
raped her repeatedly throughout the night until he released her the next day. She went
directly to a clinic where she made a report to a nurse. She testified that she was still a
virgin and further that she was subsequently diagnosed with HIV. When the trial ended,
the State placed on record without any demur from the defence that she succumbed to
Aids thereafter. Regrettably, the State did not tender evidence to link her Aids status to
the appellant.

[19] In imposing sentence, the regional court found that no substantial and compelling
circumstances existed which justified a departure from the minimum sentence of life
imprisonment, specified in Part 1 of Schedule 2 of the Criminal Law Amendment Act,
where the complainant was raped more than once by the same person. The regional
court then imposed the ordained life imprisonment. Disgruntled with the sentence, the
appellant appealed to the court a quo.

31 S v Ndlovu; S v Sibisi 2005 (2) SACR 645 (W).
32 S v Mabuza & others [2007] ZASCA110; 2009 (2) SACR 435 (SCA) para 15.
33 At 654F-G.

[20] In upholding the appeal against the sentence the court a quo found that:
„[I]n the present [case] there is a significant degree of callousness in the manner in which the
complainant was enticed into the vehicle, effectively abducted, and subjected to a night of terror
and repeated rapes. The crimes, of which the appellant had been convicted, fall into a serious
category which requires direct imprisonment for a lengthy period. The appellant acted with
callous disregard to the rights, feelings, welfare or the impact of his actions, upon the life and
wellbeing of the complainant. At no stage did he indicate any genuine remorse for his actions.
Nevertheless, this is not the worst kind of rape one can imagine. Although that is not necessarily
the criteria for avoiding a sentence of life imprisonment, in all the circumstances of this case, I
take the view that a sentence of imprisonment of life, is disproportionate to the nature of the
crime and that an injustice would result if that sentence were permitted to stand. I would uphold
the appeal against sentence and propose that the sentence, imposed by the magistrate be set
aside and replaced by a sentence of eighteen (18) years‟ imprisonment.‟ (My emphasis.)

[21] This court harboured considerable disquiet concerning the sentence imposed by
the court a quo, which was canvassed with counsel. There was no justification for the
court a quo to interfere with the sentence imposed by the regional court. The facts of
this case are very similar to those in S v Nkomo.34 The court a quo stated, in its reasons
for sentence that „it is clear from the evidence of the complainant in this case, that the
rapes had a profound effect upon her psychologically.‟ The court a quo also found that
„there was significant callousness in the manner in which the complainant was enticed
into the vehicle, effectively abducted and subjected to a night of terror and repeated
rapes. Yet, the court unconvincingly came to the conclusion that „nevertheless this is not
the worst kind of rape one can imagine . . .‟ To use the words of Theron JA in her
minority judgment in Nkomo35 contrary to the sentiments echoed in S v Abrahams36 and
S v Mahomotsa:37
„If life imprisonment is not appropriate in a rape as brutal as this, then when would it be
appropriate? I am of the view that this is precisely the kind of matter the Legislature had in mind
for the imposition of the minimum sentence of life imprisonment. Courts must not shrink from

34 S v Nkomo [2006] ZASCA 139; 2007 (2) SACR 198 (SCA).
35 Ibid paras 27–28.
36 S v Abrahams 2002 (1) SACR 116 (SCA) para 29.
37 S v Mahomotsa [2002] ZASCA 61: 2002 (2) SACR 435 (SCA) paras 17-19.

their duty to impose, in appropriate cases, the prescribed minimum sentences ordained by the
Legislature. Society‟s legitimate expectation is “that an offender will not escape life
imprisonment ─ which has been prescribed for a very specific reason ─ simply because
[substantial and compelling] circumstances are, unwarrantedly, held to be present”. In our
constitutional order women are entitled to expect and insist upon the full protection of the law.‟
Even stronger sentiments have been echoed by this court in S v Matyityi38 and
subsequent cases. But, in the light of there being no cross appeal by the State against
sentence; this court can, unfortunately, do no more39.

[22] There are two further areas of concern in this case. First, the failure on the part of
the State to obtain a Victim Impact Statement (VIS) for purposes of sentence. Secondly,
the failure by the State to cross appeal the sentence imposed by the court a quo, which
is too lenient in the circumstances. The State acknowledged that it did not compile a
VIS during the trial. In Matyityi40 this Court with reference to the Convention on the
Elimination of all Forms of Discrimination Against Women (CEDAW),41 UN Declaration
of the Basic Principles of Justice for Victims of Crime and Abuse of Power42 and the
Service Charter for Victims of Crime in South Africa,43 sent a powerful message on the
importance of a VIS which seems to be disregarded wantonly and without fear of any
repercussions, by the State. A VIS forms an integral part of the last phase of the trial. It
is essential for the court in arriving at a decision that is fair to the offender, victim and
the public at large. It serves a greater purpose than contributing only to the quantum of
punishment.44 It generally gives the sentencing court a balanced view of all aspects in
order to impose an appropriate sentence. It accommodates the victim more effectively,
thus giving her or him a voice and the only opportunity to participate in the last phase of
the trial. Moreover, the VIS, gives the victim the opportunity to say in her or his own

38 S v Matyityi [2010] ZASCA 127; 2011 (1) SACR 40 (SCA).
39 Kellerman v S [1997] 1 All SA 127 (A).
40Matyityi paras16-17.
41 International treaty adopted in 1979 by the United Nations General Assembly.
42 Resolution 40/34 adopted by the General Assembly on 29 November 1985.
43 Approved by Cabinet on 2 December 2004.
44 K Muller & A van der Merwe „Recognising the victim in the sentencing phase: The use of Victim Impact
Statements in Court‟ (2006) 22 SAJHR at 647–663.

voice how the crime has affected him or her. This is particularly so where no expert
evidence is led by the State to indicate the impact of the crime on the victim.

[23] After several judgments of this Court have pointed out the substantial importance
of the VIS and that it must form part of the sentencing process, the South African
criminal justice system requires the permanent infusion of a VIS into the justice process.
Comprehensive guidelines, protocols and model VIS instruments must be drafted by the
National Director of Public Prosecutions in order to achieve that. This will address the
lackadaisical manner in which the State treats victims of violent crimes and in particular,
rape. If this is not dealt with decisively, there will soon come a time when the State will
be held accountable for this failure of its duty,45 by victims of violent, particularly sexual
crimes such as rape.

[24] The failure by the State to cross appeal the sentence imposed by the court a quo
merits mention. In addressing this court, the State was initially in agreement with the
appellant that a sentence of 18 years imposed by the court a quo was sufficient.
However, after this Court had pointed out several seriously aggravating aspects of the
evidence of the complainant and the devastating effect the rapes had on her, counsel
for the State accepted the sentence was too lenient. It is a travesty of justice that the
State failed to lead expert evidence on the impact of the rapes on the complainant and
in particular the possible link between her death and being infected with HIV by the
appellant.

[25] Rape is undoubtedly a serious crime which violates the dignity, security, freedom
and wellbeing of the victim. The wave of rape cases is increasing at an alarming rate
and it is a crime which calls for long term imprisonment.46 According to the Law Reform
Commission statistics it is estimated there are 1,7 million rapes a year. On average only

45 In terms of s 174 of the Criminal Procedure Act 51 of 1977 read with s 179 of the Constitution of South
Africa together with s 22 (6)(a) of the National Prosecuting Authority Act 32 of 1998 (Code of Conduct)
and the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) it is the
duty of the prosecution to place all the information before the court which assists the court in arriving at a
fair and just sentence.
46 Matyityi para 22.

54 000 rape survivors lay charges.47 Only 344 out of every 1000 sexual assaults are
reported to the police, which means approximately two out of three sexual assaults
remain unreported.48 The rape rate refers to the number of reported rapes which occur
per 100,000 people.49 Despite these distressing statistics the State chose not to cross
appeal against the sentence imposed by the court a quo.

[26] Lastly, one aspect requires comment i.e. the number of appeals against s 276B
non-parole orders emanating from various Divisions of the high court. From my
observation on reported cases of this Court50, it is clear that appeals on s 276B are
multiplying in numbers every year. This is inappropriate and results in cases of greater
complexity and truly deserving of the attention of this Court having to compete for a
place on the court roll. 51

[27] In the result, the following order is made:
1. The appeal is upheld.
2. The order of the court a quo in terms of s 276B of the Criminal Procedure Act 51 of
1977 is set aside.
3. The matter is remitted to the court a quo for the parties to make representations on
the desirability of granting an order in terms of s 276B of the Criminal Procedure Act 51
of 1977.

_________________
BC Mocumie
Judge of Appeal

47 L du Toit A Philosophical Investigation of Rape: The Making and Unmaking of the Feminine Self 6ed
(2009) at 186.
48 Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, National Crime
Victimization Survey, 2010–2014 (2015).
49 South African Police Service analysis of the 2014/15 national crime statistics and the Statistics of South
Africa‟s mid-year population estimates for annual rape rates from 2008/09 to 2014/15.
50 Between 2006 and 2016, this Court had to deal with eleven appeals on s 276B of the Criminal
Procedure Act 51 of 1977 from various Divisions of the High court.
51 S v Monyane & others 2008 (1) SACR 543 (SCA) para 28.

Appearances
For Appellant:
S B Mngadi

Instructed by:
Durban Justice Centre, Durban
Bloemfontein Justice Centre, Bloemfontein

For Respondent:

F van Heerden
Instructed by:
The Director of Public Prosecutions, Pietermaritzburg
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

3 October 2016

STATUS

Immediate

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

Mhlongo v The State
(140/16) ZASCA 152 [2016]

MEDIA STATEMENT

Today the Supreme Court of Appeal (SCA) upheld the appeal by the appellant against the order of
the KwaZulu-Natal Division of the High Court, Pietermaritzburg in terms of which the court a quo had
fixed a non-parole period of 12 years in respect of the effective period of 18 years’ imprisonment
imposed on the appellant. The order was set aside and the matter was remitted to the court a quo for
the parties to make representations on the desirability of granting an order in terms of s 276B of the
Criminal Procedure Act 51 of 1977.

The issues before the SCA were (i) whether the incorrect reference to Part 2 of Schedule 2 and not
Part 1 of Schedule 2 to s 51(1) of the Criminal Law Amendment Act 105 of 1997 vitiated the sentence
proceedings and (ii) the application of s276B of the Criminal Procedure Act 51 of 1977.

The appellant was charged and convicted on one count of rape by the regional court and sentenced
to life imprisonment.  On appeal the conviction was upheld and the sentence of life imprisonment was
substituted with a sentence of 18 years’ imprisonment and a fixed non-parole period of 12 years in
terms of s 276B of the Criminal Procedure Act 51 of 1977.  The appellant contended that the State
made no application to fix the non-parole period, that the appellant was not given notice and the
opportunity to present argument or evidence for or against the fixing of a non-parole period.

On appeal, the SCA held that the fact that the charge sheet had a defect which was never rectified in
terms of s 86(1) of the Criminal Procedure Act did not of its own vitiate the sentencing proceedings.
That each case must be treated and judged on its own facts, before any decision to set aside the

proceedings can be taken.  The SCA held further that on a proper interpretation of s 276B and having
regard to several reported judgments of this court, s 276B must be invoked for substantial reasons
and that the discretion to fix a non-parole period must not be exercised lightly, but only in exceptional
circumstances which can only be established by an investigation and a consideration of salient facts
and further evidence.  It therefore followed that there was no justification for the court a quo to have
interfered with the sentence imposed by the regional court.

The SCA also remarked that the failure on the part of the State to obtain a Victim Impact Statement
(VIS) for purposes of sentence and the failure to cross appeal the sentence imposed by the court a
quo was a travesty of justice.  The SCA held further that legal representatives should realise their
duty and roles in criminal cases, especially at the sentencing stage and the importance of the VIS in
order to place all information before the court.

The SCA set aside the order of the court a quo and remitted the matter back to the court a quo for the
parties to make representations in terms of s 276B of the Criminal Procedure Act 51 of 1977.

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