THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No:  174/01
REPORTABLE
In the matter between:

ZITHA MABUZA                                                      FIRST APPELLANT
PHILLIP SIMONGO                                            SECOND APPELLANT
OUPA SITHOLE                                                      THIRD APPELLANT

v

THE STATE                                                                         RESPONDENT

Coram:
Nugent, Cachalia JJA et Hurt AJA

Heard:
22 August 2007

Delivered: 20 September 2007

Summary:
It is not a prerequisite for a fair trial that there is a verbatim recording of the
magistrate’s explanation of the rights of unrepresented accused and the response
of the accused. Sentence of life imprisonment imposed for rape of 15 year old
complainant and 15 years’ imprisonment for robbery. Under the Criminal Law
Amendment Act 105 of 1997 youthfulness remains a weighty mitigating factor in
determining whether substantial and compelling circumstances exist. Sentences
set aside and effective sentence of 16 years’ imprisonment imposed.

Neutral citation:
This judgment may be referred to as Mabuza v The State [2007]
SCA 110 (RSA)

JUDGMENT

CACHALIA JA

[1] The three appellants were arrested on 19 August 1998. They faced
two charges in the Regional Division of Southern-Transvaal. The first was
robbery of the following items of property from Ms Joyce Mazibuko: a
television, a ‘hifi’ set, a pair of shoes, an engine-pump, three watches and
R1 800 in cash. The combined value of the cash and property was R6 859.
The second charge was that they had each raped Mazibuko’s minor
daughter, Sibindile Nkuna. The appellants pleaded not guilty and elected to
conduct their own defences. After hearing evidence the magistrate convicted
them on both counts.

[2] The appellants’ convictions made them liable for punishment under
s 51 of the Criminal Law Amendment Act 105 of 1997 (the Act). In relation
to their convictions for robbery, their conduct fell within s 51(2) read with
Part II of Schedule 2, which prescribes a minimum sentence of 15 years’
imprisonment. Their rape convictions placed them under s 51(1)(a) read with
several paragraphs of Part 1 of Schedule 2. This included paras (a)(i) and
(a)(ii) because each appellant had raped Sibindile. (In the case of appellant 1
the evidence showed that he had raped her twice.) Their conduct also fell
within para (b)(i) as she was 15 at the time.1 Because a sentence of life
imprisonment is the prescribed sentence on this charge, the magistrate

1 Concerning rape, Part 1 of Schedule II reads as follows:
‘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;
(iii)
. . .
(iv)
. . .
(b)
where the victim –

(i)
is a girl under the age of 16 years;

(ii)
. . .

(iii)
. . .
(c)
. . .’

transferred the case to the Johannesburg High Court for sentencing in
accordance with s 52 of the Act.

[3] When the matter came before Goldstein J in the High Court, the
appellants accepted legal representation from the Legal Aid Board.
Probation officers were appointed to compile pre-sentencing reports on their
behalf. The High Court was, however, unable to find any substantial and
compelling circumstances, as envisaged in s 51(3)(a) of the Act, to justify
the imposition of sentences lighter than the prescribed minimum. It therefore
imposed, on each appellant, the prescribed sentence both for robbery and for
rape. This appeal, against conviction and sentence, is with leave of the High
Court.

[4] The factual findings upon which the magistrate based the appellants’
convictions, which the High Court accepted, are not in issue in this appeal.
Their complaint, made for the first time in this court, is that the absence of a
verbatim recording of the pre-trial proceedings indicating that the learned
magistrate had explicitly alerted them to the Act’s severe penalties,
particularly to the threat of life imprisonment on the rape charge, or any
indication that they had properly understood this when electing to conduct
their own defence, vitiates the proceedings. For this contention they find
support in two judgments of the Johannesburg High Court, S v Thompson2
and S v Sibiya3.

[5] It is necessary to deal with Thompson in some detail. The accused
faced a charged of aggravated robbery. The charge-sheet set out the charge

2 Unreported Case No: A538/03.
3 2004 (2) SACR 82 (W).

as ‘robbery with aggravating circumstances as intended in s 1 of Act 51 of
1977 and read with the provisions of s 51(2)(a) of the Criminal Law
Amendment Act 105 of 1997’. At an initial appearance before the trial’s
commencement the magistrate had recorded the following:

‘Accused informed of gravity of charges and coupled to minimum sentences. Rights to
legal representation explained. Prefers to conduct own defence.’

In his judgment dealing with the conviction the magistrate explained more
fully that:

‘The accused was informed of his rights regarding legal representation on the 18th of
October . . . by my colleague Mr Brink. The accused elected to conduct his own defence.
Again on the 8th of November . . . (I) explained to the accused the gravity of the charges
against him, and the possibility of a minimum sentence that could be imposed should he
be convicted. Thereafter the court again explained the rights of the accused to legal
representation. Again the accused insisted on conducting his own defence.’

[6] After convicting the accused the magistrate said the following to him:

‘As I have explained to you before . . . the court has to apply a minimum sentence. You
however may escape the minimum sentence should you be able to do the following. The
court is compelled to impose a minimum sentence of at least 15 years unless there are
substantial and compelling circumstances to impose a lesser sentence, and, sir,
unfortunately, the onus is on you to bring those compelling and substantial circumstances
to the attention of the court. You now have slightly more than a month and I would urge
you to use the time available . . . to get these substantial and compelling circumstances to
the fore and be able to present them on the day of sentence. Do you understand this? Also
bear in mind, even if you cannot think of such circumstances, sir, that 15 years is the
minimum. It could be as high as 30, depending on your previous convictions. So in other

words, sir, it is of paramount importance that you apply your mind to this. It may assist
you.’

In response to this explanation the record indicates that the accused
responded simply by saying: ‘I understand’.

[7] When the trial resumed for the purposes of sentencing, the magistrate
again carefully explained to the accused what the import of the minimum
sentence legislation was. In response the accused once again said that he
understood, but then asked for a suspended sentence. The magistrate,
however, sentenced him to 16 years’ imprisonment.

[8] On appeal the High Court (Saldulker AJ, Shakenovsky AJ concurring)
set aside the conviction and sentence on the ground that the trial had been
conducted unfairly. In arriving at this conclusion it said the following:

‘In my judgment, the gravity of the consequences of a conviction for an unrepresented
accused which result in heavy penalties is an important issue which must weigh with an
accused when he is requested to make his election with regard to whether or not he
should dispense with legal representation.
In the case before me it is quite clear that the appellant did not fully understand the
enormity after conviction when it was explained to him by the magistrate that the
minimum sentence was applicable. This was clearly apparent when the appellant asked
for a suspended sentence. Clearly he did not fully appreciate or understand the gravity of
what he was now facing.
In the absence of the record reflecting precisely and verbatim what the appellant’s
response was, as to whether or not he required legal representation, this court of appeal
finds itself in difficulty in not being able to establish what precisely was said to the

appellant and what his response was in the absence of these replies appearing from the
record…
In order to dispel any doubts as to whether the accused was properly informed of his
rights, a verbatim recording must appear ex facie the record and not in the form of terse
and cryptic notes of what was conveyed to the appellant regarding his right to legal
representation that led him to make his election to conduct his own defence. His reasons
if given for electing to do so must also be recorded.
All the aforegoing must therefore appear ex facie the record.’4

The reasoning above followed the earlier reasoning of the same court in
Sibiya5. The absence of a verbatim record of what the court said, so it was
held in both cases, rendered the trial unfair.

[9] Our courts have indeed established guidelines dealing with what
Goldstone J described in S v Radebe; S v Mbonani6 as the

‘general duty on the part of judicial officers to ensure that unrepresented accused fully
understand their rights and the recognition that in the absence of such understanding a
fair and just trial may not take place.’7

He went on to say that:

‘If there is a duty upon judicial officers to inform unrepresented accused of their legal
rights, then I can conceive of no reason why the right to legal representation should not
be one of them. Especially where the charge is a serious one which may merit a sentence
which could be materially prejudicial to the accused, such an accused should be informed
of the seriousness of the charge and of the possible consequences of a conviction. Again,

4 Paras 27-30.
5 See paras 37, 43, 46, 47, 48 and 49.
6 1988 (1) SA 191 (T).
7 At 195B.

depending upon the complexity of the charge, or of the legal rules relating thereto, and
the seriousness thereof, an accused should not only be told of this right but he should be
encouraged to exercise it. He should be given a reasonable time within which to do so.
He should also be informed in appropriate cases that he is entitled to apply to the Legal
Aid Board for assistance. A failure on the part of a judicial officer to do this, having
regard to the circumstances of a particular case, may result in an unfair trial in which
there may well be a complete failure of justice. I should make it clear that I am not
suggesting that the absence of legal representation per se or the absence of the suggested
advice to an accused person per se will necessarily result in such an irregularity or an
unfair trial and the failure of justice. Each case will depend upon its own facts and
peculiar circumstances.’8

This court quoted these dicta with approval in S v Mabaso9 and they have
frequently been referred to since.

[10] When the state intends to rely on a specific sentencing regime, as in
the present matter, our courts have in the same vein insisted that a fair trial
requires 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 and the possible
consequences.’10

And it is evident, as Lewis JA said recently in S v Sikhipa11 that

8 At 196F-I.
9 1990 (3) SA 185 (A) at 203C-G.
10 S v Ndlovu 2003 (1) SACR 331 (SCA) at para 12.
11 2006 (2) SACR 439 (SCA) at para 10.

‘where an accused is faced with a charge as serious as that of rape, and especially where
he faces a sentence of life imprisonment, he should not only be advised of his right to a
legal representative but should also be encouraged to employ one and seek legal aid
where necessary. It is not desirable for the trial court in such cases merely to apprise an
accused of his rights and to record this in notes: the court should, at the outset of the trial,
ensure that the accused is fully informed of his rights and that he understands them, and
should encourage the accused to appoint a legal representative, explaining that legal aid is
available to an indigent accused.’

[11] But while the trial of an unrepresented accused might be unfair if he
or she is not properly informed of rights that are relevant, it does not follow
that the failure to record the fact that he or she was so informed, (verbatim or
otherwise) equally renders the trial unfair. On the contrary the failure to
record what was told to the accused does not impact upon the fairness of the
trial and cannot by itself render the trial unfair. To the extent that the
contrary was held in Thompson and Sibiya, those cases were wrongly
decided.

[12] There is no suggestion in the present case that the magistrate did not
inform the appellants of their right to legal representation. On the contrary, it
appears from his cryptic notes and also from his judgment, which was
recorded verbatim, that not only did he inform them of their right to legal
representation when they first appeared in court and again before the trial
commenced, but he also explained its importance, the seriousness of the
charges and their right to apply for legal aid. Nor is their any suggestion that
they did not understand the magistrate’s explanation when they elected to
conduct their own defences. Each indicated he did.

[13] Their complaint, as I have mentioned, (and the ground upon which the
convictions were set aside in Thompson and Sibiya) is that the absence of a
verbatim recording indicating that the magistrate had warned them of their
threat of exposure to the Act’s prescribed penalties and that they had
understood this is sufficient to vitiate the proceedings. This is because, as I
understand counsel’s submission on the appellants’ behalf, it is doubtful that
the magistrate made any reference to the prescribed sentences as his
contemporaneous cryptic notes contain no such indication. If this is so,
counsel submits, it is also doubtful that they properly understood their
predicament when electing to conduct their own defence. Their decision to
defend themselves in these circumstances, so the submission goes, rendered
the trial unfair.

[14] The fact that the cryptic notes contain no reference to the magistrate
informing the appellants of the prescribed sentences does not necessarily
imply that he did not do so. And a court will not set aside proceedings on the
mere supposition that he might not have done so. Significantly when the
matter came before Goldstein J for sentencing and the appellants were
legally represented the learned judge reviewed the record and invited them
to make submissions on the propriety of the convictions. None did. Had they
done so the judge would necessarily have obtained a statement from the
magistrate in accordance with the requirements of s 52(3) of the Act setting
forth his explanation of what had transpired before he concluded that the
proceedings had been in accordance with justice. Having not availed
themselves of the opportunity, the appellants cannot belatedly, and without a
proper factual basis, impugn the proceedings in the magistrates’ court.

[15] Even if I were to assume, in the appellants’ favour, that the magistrate
did not alert them to the Act’s penalties, there is still no basis to set aside the
conviction. The notes reveal, albeit in cryptic form, that the appellants were
informed that they were facing serious charges. They could thus not
reasonably have been under any misconception that they faced the prospect
of lengthy terms of imprisonment when they elected to conduct their own
defence.12 In the absence of ‘actual and substantial prejudice’13 resulting
from the failure to inform them of the Act’s provisions, none of which has
been shown in this case, there is no basis for finding that the trial was
conducted unfairly.

[16] Counsel submitted, however, that the fact that appellant 2 believed he
should only receive a suspended sentence, as he told the probation officer, is
an indication that he did not appreciate the seriousness of the charges. The
same submission was also advanced successfully in Thompson. In my view
there is no proper basis for this inference. The appeal against their
convictions must therefore fail. I turn to consider their appeals against
sentence.

[17] The evidence disclosed that Mazibuko and her daughter, Sibindile,
were asleep at their Ivory Park home at 2 am on 10 August 1998 when a
sound awoke them. Sibindile remained in her bed as Mazibuko made her
way, through the darkness, to the source of the disturbance, a corrugated iron
door. There appellant 3 confronted her. She screamed, prompting appellant 3
to hit her on her chest with the knife he wielded as he demanded her silence.
As she cowered, she noticed the two other appellants in front of her.

12 Cf S v Ndlovu; S v Sibisi 2005 (2) SACR 645 (W) at 654-656, 653b-g and 654b-655b.
13 Cf Hlantlalala v Dyanti 1999 (2) SACR 541 (SCA) at paras 8-10.

[18] The appellants then ushered her into Sibindile’s bedroom. There, they
directed a torch-light on to the girl’s face. They ordered her to stand and then
switched on the room light. She screamed and two of the appellants
responded by threatening her with a knife and a small axe. Appellant 3
demanded money from them. Mazibuko explained that the money was in
another room. He went to find it but returned with little and demanded more.
Mazibuko responded by leading appellants 2 and 3 into her bedroom, which
they then ransacked. They found more money in a bottle. During this time
appellant 1 remained with Sibindile in her room. Appellant 2 returned to
Sibindile’s room after this, while appellant 3 remained with Mazibuko.

[19] Sibindile was now alone in her room with appellants 1 and 2.
Appellant 1 demanded that she remove her clothing. She pleaded with him
not to hurt her. But he responded by threatening to hit her with the axe if she
refused to succumb. In response Sibindile removed her panty and lifted her
night-dress as she lay on her bed. Appellant 1 then raped her and demanded
that she desist from crying while he did. After he was done, appellant 2
raped her. She pleaded with him to desist, but he too ignored her. Appellant
2 then left the girl’s room and appellant 3 entered. He also raped her in
appellant 1’s presence, after which appellant 1 raped her again. The
assailants left, an hour after their intrusion, taking with them the items
mentioned in the charge sheet. The appellants were arrested shortly
thereafter. Most of the stolen items were recovered, but not the cash.

[20] This matter was decided shortly after the Act commenced its
operation on 1 May 1998. In imposing the prescribed sentence on each
appellant in respect of both counts, the High Court adopted the test applied

in S v Mofokeng,14that the facts of the particular case must be of an
exceptional nature to justify the conclusion that there are substantial and
compelling circumstances justifying a departure from the prescribed
sentence. However in S v Malgas,15 this court rejected the suggestion that for
circumstances to be substantial and compelling they must be ‘exceptional.’16
It held that in determining whether there are substantial and compelling
circumstances present, a court must be aware that the legislature has set a
benchmark of the sentence that should ordinarily be imposed for a specified
crime, and that there should be truly persuasive reasons for a different
response. And when a court decides whether the particular circumstances
call for the imposition of a lesser sentence, it may consider factors
traditionally taken into account in making this determination. These include
the age of the accused, the nature and number of any previous convictions
and the time spent awaiting trial. These factors must of course be weighed
against the aggravating factors. But none need be exceptional.17

[21] The state submits that notwithstanding the High Court’s application of
the test that preceded Malgas, its conclusion that there were no substantial
and compelling circumstances was nonetheless correct. Accordingly it
submits that this court should not interfere with the sentences.

[22] The appellants’ dates of birth, as they appear in the SAP 69 forms, are
given as 17 June 1978 (appellant 1), 28 July 1979 (appellant 2) and 10 June
1980 (appellant 3). They were thus respectively 20, 19 and 18 years of age at
the time they committed these offences and are juveniles, traditionally

14 1999 (1) SACR 502 (W).
15 2001 (1) SACR 469 (SCA); 2001 (2) SA 1222 (SCA).
16 S v Mohomotsa 2002 (2) SACR 435 (SCA) at para 10.
17 S v Nkomo 2007 (2) SACR 198 (SCA) at para 3.

always considered a weighty mitigating factor in the sentencing process. The
reasons are trite but bear repeating briefly. Youthfulness almost always
affects the moral culpability of juvenile accused. This is because young
people often do not possess the maturity of adults and are therefore not in
the same position to assess the consequences of their actions. They are also
susceptible to peer pressure and adult influence and are vulnerable when
proper adult guidance is lacking. There are however degrees of maturity, the
younger the juvenile the less mature he or she is likely to be.18 Judicial
policy has thus appreciated that juvenile delinquency does not inevitably
lead to adult criminality and is often a phase of adult development.19 The
degree of maturity must always be carefully investigated in assessing a
juvenile’s moral culpability for the purposes of sentencing. The
Constitutional Court warned in S v Williams20 that youthful offenders,
particularly, should not be sacrificed on the altar of deterrence. There is
therefore compelling justification for the view that youthfulness, at least
before the advent of the minimum sentencing regime, was per se a factor
mitigating sentence.21

[23] However in requiring a sentencing court to depart from the prescribed
sentence in respect of offenders who have attained the age of 18 only if
substantial and compelling circumstances justify this departure the
legislature has clearly intended that youthfulness no longer be regarded as
per se a mitigating factor. So while youthfulness is, in the case of juveniles
who have attained the age of 18, no longer per se a substantial and

18 S v Lehnberg 1975 (4) SA 553 (A).
19 S v Z 1999 (1) SACR 427 (E) at 430E-I.
20 1995 (3) SA 632 (CC) at para 85.
21 Julia-Sloth Nielsen The Role of International Law in Juvenile Justice Reform in South Africa.
Unpublished LL.D thesis, University of the Western Cape, 2001, fn 35 at 375.

compelling factor justifying a departure from the prescribed sentence, it
often will be, particularly when other factors are present. A court cannot,
therefore, lawfully discharge its sentencing function by disregarding the
youthfulness of an offender in deciding on an appropriate sentence,
especially when imposing a sentence of life imprisonment, for in doing so it
would deny the youthful offender the human dignity to be considered
capable of redemption.

[24] Before I deal with the circumstances in this matter, it is necessary to
review briefly how our courts have dealt with rape under the Act, perhaps
the most difficult and controversial aspect of the legislation.22 The leading
case is S v Mahomotsa.23 The accused had raped two complainants, the
second while he was awaiting trial in respect of the first. Both complainants
were fifteen years of age at the time. The State had proved that the accused
had had non-consensual sex with the two complainants more than once. He
had been armed and on both occasions, assaulted and insulted the
complainants. This court considered 8 years’ imprisonment to be appropriate
on the first and 12 years’ imprisonment on the second. In arriving at this
conclusion it said the following:

‘The rapes that we are concerned with here, though very serious, cannot be classified as
falling within the worst category of rape. Although what appeared to be a firearm was
used to threaten the complainant in the first count and a knife in the second, no serious
violence was perpetrated against them. Except for a bruise to the second complainant's
genitalia, no subsequently visible injuries were inflicted on them. According to the
probation officer - she interviewed both complainants - they do not suffer from any after-

22 See S S Terblanche Guide to Sentencing in South Africa 2ed at pp 52-53, 67.
23 2002 (2) SACR 435 (SCA) at paras 17-18.

effects following their ordeals. I am sceptical of that but the fact remains that there is no
positive evidence to the contrary. These factors need to be taken into account in the
process of considering whether substantial and compelling circumstances are present
justifying a departure from the prescribed sentence.

It perhaps requires to be stressed that what emerges clearly from the decisions in Malgas
and Dodo is that it does not follow that simply because the circumstances attending a
particular instance of rape result in it falling within one or other of the categories of rape
delineated in the Act, a uniform sentence of either life imprisonment or indeed any other
uniform sentence must or should be imposed. If substantial and compelling circumstances
are found to exist, life imprisonment is not mandatory nor is any other mandatory
sentence applicable. What sentence should be imposed in such circumstances is within
the sentencing discretion of the trial Court, subject of course to the obligation cast upon it
by the Act to take due cognisance of the Legislature's desire for firmer punishment than
that  which may have been thought to be appropriate in the past. Even in cases falling
within the categories delineated in the Act there are bound to be differences in the degree
of their seriousness. There should be no misunderstanding about this: they will all be
serious but some will be more serious than others and, subject to the caveat that follows,
it is only right that the differences in seriousness should receive recognition when it
comes to the meting out of punishment. As this Court observed in S v Abrahams 2002 (1)
SACR 116 (SCA), 'some rapes are worse than others and the life sentence ordained by
the Legislature should be reserved for cases devoid of substantial factors compelling the
conclusion that such a sentence is inappropriate and unjust.'

[25] In S v Sikhipha24 this court set aside a sentence of life imprisonment
for the rape of a 13 year old girl and in its place substituted a sentence of
20 years’ imprisonment. It regarded as substantial and compelling the fact
that the appellant, who was 35 years of age, had a trade and a family that

24 2006 (2) SACR 439 (SCA).

was dependent upon him, that he was capable of rehabilitation and that the
complainant had not been badly injured.

[26] In S v Nkomo25 this court also set aside a sentence of life
imprisonment where the appellant, who was 29 years of age, had forced the
complainant into a hotel room and locked her inside and then raped her.
Afterwards she tried to escape by jumping through a window that was some
10 meters from the ground injuring herself in the process, although not
seriously. The appellant then forced her back into the hotel room where he
raped her four more times. He also made her perform oral sex on him. As in
Sikhipha the appellant was employed and had a family who was dependent
upon him. A sentence of 16 years’ imprisonment was considered
appropriate.

[27] I revert to the present matter. No viva voce evidence was led on
sentence. The pre-sentencing reports were the only evidence before the High
Court. They reveal, briefly, that the appellants, all Mozambican, grew up in
difficult circumstances. They left their country because of adverse socio-
economic conditions to find employment in South Africa. Appellant 1 had
no formal education and appellants 2 and 3 were not able to progress beyond
primary school. Appellant 1, who had been employed as a gardener at the
time of his arrest, was earning a fortnightly wage of R440. The other
appellants were unemployed at the time of the commission of these crimes.
There is no evidence that they were living under any form of adult
supervision at the time they committed the offences.

25 2007 (2) SACR 198 (SCA).

[28] They have no previous convictions and were in custody for almost
10 months before being sentenced. The rape was not planned. There was no
gratuitous violence in addition to the rape. Sibindile’s examination provided
corroboration of ‘forceful sexual intercourse.’ There were no other injuries
and the J88 form, which is the report of the medical examination, notes that
her physical powers, general state of health and mental state were not
perceptibly impaired. Appellant 3 struck Mazibuko once on her chest to
silence her. Sibindile’s physical examination revealed that even though there
was evidence of a previous sexual encounter, her hymen was bruised and the
membrane below the vagina opening had a moderate tear.

[29] As against these mitigating factors the aggravating factors must be
considered. There can hardly be a more terrifying experience than to be
awakened in the middle of the night by armed intruders, to have one’s
privacy invaded and to be subjected to an ordeal for an hour with no idea of
one’s fate. This is what the appellants subjected Mazibuko and her daughter
to. The appellants threatened to hurt them if they did not co-operate. They
ignored Sibindile’s crying and pleas not to rape her. It would have been
obvious to them that she was distressed but they threatened to chop her with
the axe if she refused to succumb to their predatory behaviour. They each
raped her in turn and then appellant 1 did so for a second time. They invaded
her body, humiliated her and stripped her of her dignity. And despite
overwhelming evidence against them, they denied any involvement in the
crimes throughout the trial and continued to do so to the probation officers
who interviewed them during the compilation of their pre-sentencing
reports.

[30] I have weighed these factors and conclude that this case warrants a
severe sentence, but it is not one that is devoid of substantial and compelling
circumstances justifying a lesser sentence than the prescribed minimum. The
imposition of the prescribed sentences would be disproportionately harsh.
The appeal against sentence is upheld and the sentences imposed by the
court below are set aside and replaced with the following:

‘On count 1 (robbery) each accused is sentenced to 8 years’ imprisonment.
On count 2 (rape) each accused is sentenced to 16 years’ imprisonment. The
sentence on count 1 will run concurrently with that on count 2. In terms of s
276B (2) of the Criminal Procedure Act 51 of 1977 I direct that the non-
parole-period shall be 8 years.’

_______________
A CACHALIA
JUDGE OF APPEAL

CONCUR:
NUGENT JA
HURT AJA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From: The Registrar, Supreme Court of Appeal

Date: 20 September 2007

Status: Immediate

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

Zitha Mabuza and Others

v

The State

The Supreme Court of Appeal today dismissed an appeal by three appellants against
their convictions on charges of rape and robbery. However, it reduced their respective
sentences of life and 15 years’ imprisonment which were imposed by the
Johannesburg High Court. Each appellant received an effective sentence of 16 years’
imprisonment.

The appellants were youths whose ages were 18, 19 and 20 years respectively. The
brief facts of the case are that at about 2am on 10 August 1998, while Ms Joyce
Mazibuko and her daughter Sibindile were asleep at their Ivory Park home, the three
appellants entered their house. Threatening Ms Mazibuko and her daughter with a
knife and an axe, the appellants robbed them of a television set, a “hifi” set, a pair of
shoes, an engine-pump, three watches and R1 800 in cash. The combined value of the
cash and property was R6 859. Also, they had each raped Mazibuko’s daughter,
Sibindile. One of the appellants raped her twice.

The factual findings upon which the magistrate based the appellants’ convictions,
which the high court accepted, were not in issue in this appeal. The only issue was
whether the absence of a verbatim recording of the pre-trial proceedings indicating
that the learned magistrate had explicitly alerted the appellants to the severe penalties
prescribed by the Criminal Law Amendment Act 105 of 1997, particularly to the
threat of life imprisonment on the rape charge, or any indication that they had

properly understood this when electing to conduct their own defence, rendered the
trial unfair.

The SCA concluded that while the trial of an unrepresented accused might be unfair if
he or she is not properly informed of rights that are relevant, it does not follow that
the failure to record the fact that he or she was so informed, (verbatim or otherwise)
equally renders the trial unfair. It said that the failure to record what was told to the
accused did not impact upon the fairness of the trial and cannot by itself render the
trial unfair.

However, on the issue of sentence the SCA concluded that since all the appellants
were still juveniles, this was considered a weighty factor in mitigation of sentence.
The court said that although the legislature, through the provisions of the Criminal
Law Amendment Act 105 of 1997, had clearly intended that youthfulness no longer
be regarded  per se as a mitigating factor, it emphasized that a court cannot lawfully
discharge its sentencing function by disregarding the youthfulness of an offender in
deciding on an appropriate sentence, especially when imposing a sentence of life
imprisonment, for in doing so it would deny the youthful offender the human dignity
to be considered capable of redemption.