THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

REPORTABLE
Case number :  416/04

In the matter between :

SIYABULELA GAGU

FIRST APPELLANT
ZAMIKHAYA MATYHILA

SECOND APPELLANT

and

THE STATE

RESPONDENT

CORAM :

NAVSA, BRAND et VAN HEERDEN JJA

HEARD :

21 FEBRUARY 2006

DELIVERED :

9 MARCH 2006

Summary:
Minimum sentences – Act 105 of 1997 – rape – whether Part I or Part III of
Schedule 2 applicable – accused under 18 – court’s discretion – sentencing
court’s duty to establish relevant facts and circumstances – matter referred
back to trial court for sentencing after proper investigation.

Neutral citation:
This judgment may be referred to as Gagu v The
State [2006] SCA 5 (RSA)
_____________________________________________________

JUDGMENT
_____________________________________________________
BRAND JA/

BRAND JA:
[1] This is an appeal from the Grahamstown High Court. It stems from the
imposition of a sentence of 15 years imprisonment upon each of the two
appellants by the Regional Court, East London for the crimes of
housebreaking with intent to rape and rape. Though the background facts
were fairly straightforward, they somehow gave rise to a great deal of
procedural confusion. I therefore find it convenient to set out the procedural
history in chronological form before identifying the issues involved.

[2] At the commencement of proceedings in the Regional Court, the
appellants pleaded guilty to the charges against them and their legal
representative handed in statements in terms of s 112(2) of the Criminal
Procedure Act 51 of 1977 on their behalf. According to the two statements,
which were for all intents and purposes in identical terms, each appellant
admitted that:
'Upon or about the 22nd of August 1999 and at or near Kidd's Beach in the district of East
London, in the regional division of the Eastern Cape, I did wrongfully and unlawfully break into
and enter the house of Collina Njongi with the intent to rape and did there and then unlawfully
assault and have sexual intercourse with Collina Njongi, a female person, against her will. I
entered the house by opening the front door which was closed but not locked. The said Njongi
did not give her consent to sexual intercourse. It was my intention when breaking into the
premises to rape the said Njongi. I am aware that my actions were both wrongful and
unlawful, and accordingly I plead guilty to the crime of housebreaking with intent to rape and
rape.'

[3] In the light of these statements, the trial court was rightly satisfied that
the appellants were guilty as charged and convicted them accordingly. During
the sentencing proceedings that followed, it was recorded that, at the time of
the trial, ie 1 November 2000, the first and second appellants were 18 and 19
years of age, respectively, and that neither of them had any previous
convictions. No further evidence was led, either by the state or on behalf of
the two appellants. From the trial court's judgment it appears that the only
addition to these scant facts was the information conveyed by the appellants’
attorney that they acted under the influence of intoxicating liquor when they

committed the offences and that they were remorseful for what they had done.
That was in essence the sum total of the facts on which the appellants were
each sentenced to 15 years imprisonment.

[4] In his judgment on sentence, the magistrate made mention of
‘minimum penalties’ prescribed by ‘the legislature’. Though he did not refer to
any specific statute, it seems fair to assume that he had the provisions of s 51
of the Criminal Law Amendment Act 105 of 1997 (‘the Act’) in mind. It also
appears from the judgment that the magistrate was under the impression that
the minimum sentence prescribed by the Act for the offences of which the
appellants had been convicted, was 15 years imprisonment. Because, so the
magistrate said, he could find no circumstances contemplated by the Act to
justify any lesser sentence, he considered himself bound to impose what he
thought to be the prescribed minimum sentence, which he then proceeded to
do.

[5] Against these sentences the appellants went on appeal to the
Grahamstown High Court. There it was held (by Quinn AJ, with Chetty J
concurring) that, by virtue of s 52(1)(a)(i) of the Act, the Regional Court had
no jurisdiction to sentence the appellants at all. That section provides, in
essence, that if a regional court has convicted an accused person of an
offence referred to in Part 1 of Schedule 2 to the Act, for which the minimum
sentence of life imprisonment is prescribed, ‘the court shall stop the
proceedings and commit the accused for sentence . . . by a High Court having
jurisdiction’. For his conclusion that the offences of which the appellants had
been convicted fell within the ambit of Part 1 of Schedule 2 to the Act, Quinn
AJ relied on the reference in this part of the schedule, to 'Rape – when
committed ... by more than one person, where such persons acted in the
execution or furtherance of a common purpose or conspiracy'. A question
which obviously escaped the court’s attention was whether on the established
facts the elements of this definition had been satisfied. The court then
proceeded to set aside the sentences imposed by the Regional Court and
referred the matter to the High Court 'to be dealt with in terms of ss 51 and 52
of Act 105 of 1997’.

[6] The matter was then enrolled in the East London High Court where it
came before Nepgen J. Unlike Quinn AJ and Chetty J in the court a quo, his
conclusion was, however, that the offence of which the appellants had been
convicted did not fall within the parameters of Part 1 of Schedule 2. This is so,
he found, because there was no evidence before the court that the appellants
had acted 'in the execution or furtherance of a common purpose or
conspiracy' when they committed their individual crimes. He therefore
concluded, first, that he had no jurisdiction to impose sentence on the
appellants and, second, that the resulting procedural deadlock could only be
resolved by this court in an appeal against the judgment of the court a quo.
Following upon the suggestions by Nepgen J, the appellants then sought and
obtained the court a quo’s leave for the present appeal.

[7] With regard to these divergent views, I agree with the conclusion by
Nepgen J that the appellants were not convicted of an offence referred to in
Part 1 of Schedule 2 to the Act. As was pointed out by Cameron JA in S v
Legoa 2003 (1) SACR 13 (SCA) para 14 it is evident from the wording of
s 51(1) of the Act, first, that the elements of the offence of which the accused
person had been convicted must be established before conviction and,
second, that such conviction must encompass all the elements of the offence
set out in the particular part of Schedule 2. It follows that, since the two
appellants were convicted exclusively on the basis of their s 112(2)
statements, the offence contemplated in s 51(1) of the Act must be
determined solely with reference to the contents of these statements. It is
evident, in my view, that these statements make no mention of any common
purpose or conspiracy between the two of them. While the admitted facts
seem to suggest that the appellants did act in concert, it is clear, in my view,
that the wording of s 51(1) does not allow for this kind of suggestion.

[8] It follows that I do not agree with the court a quo’s conclusion that the
regional magistrate lacked jurisdiction to sentence the appellants and that the
sentences imposed upon them should for that reason be set aside. At the
same time, however, I am of the view that the magistrate’s judgment on
sentence reveals a number of misdirections as a result of which the

sentences cannot be sustained. I do not find it necessary to enumerate all
these misdirections. I limit myself to what I consider to be the most serious
ones.

[9] The first misdirection in this category was that the magistrate was
somehow led to believe that the minimum sentence prescribed for the offence
of rape is 15 years imprisonment. That is not so. On a proper reading of
Schedule 2 of the Act as a whole, it is plain that offences of rape which are
not of the aggravated kind contemplated in Part 1 of the schedule are
included under Part III. The minimum sentence for Part III offences is
prescribed by s 51(2)(b).  It is 10 years imprisonment in the case of a first
offender. In terms of s 51(2)(a) the minimum  sentence of 15 years (for first
offenders) is reserved for offences referred to in Part II, which finds no
application in this matter at all.

[10] The second serious misdirection reflected by the trial court’s judgment
is linked to the age of the first appellant. Though the first appellant was 18
years old at the time of his conviction and sentence, it is common cause that
he was only 17 when he committed the crime. In consequence, he qualified
for the special dispensation created by s 51(3)(b) of the Act for accused
persons who were between 16 and 18 years ‘at the time of the commission of
the act which constituted the offence in question’. The import of this special
dispensation appears from the following dictum by Ponnan AJA in para 12 of
his judgment in Brandt v S [2005] 2 All SA 1 (SCA) (delivered on 30
November 2004):
'The effect of the provision is thus that s 51(3)(b) automatically gives the sentencing court the
discretion that it acquires under s 51(3)(a) only where it finds substantial and compelling
circumstances. It follows that the “substantial and compelling” formula finds no application to
offenders between 16 and 18. A court is therefore generally free to apply the usual sentencing
criteria in deciding on an appropriate sentence for a child between the ages of 16 and 18. As
in a case where s 51(3)(a) finds application, the court in arriving at an appropriate sentence
must, however, not lose sight of the fact that offenders of the kind specified in Schedule 2 of
the Act have been singled out by the Legislature for severe sentences.'

[11] It follows that, with reference to the first appellant, the trial court
needed no finding of substantial and compelling circumstances, as
contemplated in s 51(3)(a), for the establishment of its discretion to impose a
sentence other than the prescribed minimum. Without the benefit of the
interpretation by this court in Brandt, the magistrate’s failure to appreciate this
was understandable, but nevertheless fatal to the proper exercise of his
discretion.

[12] Further misdirections evinced by the trial court’s judgment can be
collected under the rubric of considerations taken into account for purposes of
sentencing that were simply unwarranted. Examples of these appear from the
following two quotations from the judgment:
‘[A]ccused persons who are convicted of rape . . . still get away scot-free, in the light of the
fact that there is no legislation which provides for them being forced to undergo . . . HIV tests
to establish whether or not they are indeed HIV positive. Consenting parties who have both
consented to have sexual intercourse are urged by the authorities to seriously consider
practising safe sex, but with rapists, they just do it with impunity. It is therefore the view of the
court that the fact that a person has raped a complainant and not used a condom should be
treated as an aggravating factor.’
And:
‘No evidence has been placed before this court that anyone of you ever tried to propose love
to the complainant and she refused. Probably if you had followed the normally accepted
channels of communication by approaching the lady, proposing love, chances are that she
would have agreed, and you would not be standing in the dock today.’
The remarks in the last sentence are not only without foundation, but could
well be construed as gender insensitive.

[13] Lastly, the trial court misdirected itself by sentencing these two youthful
appellants, essentially, without any enquiry into the facts at all. In reality, the
learned magistrate imposed sentence on the basis of little more than the
allegations in the charge sheet. Although the court professed to have
‘considered the triad, namely your personal factors, the seriousness of the
offence and the interest of the community’, there were no facts before him,
upon which such consideration could have been properly founded. It is a trite
principle, well established, inter alia by judgments of this court, that, in the

final instance, the responsibility for establishing the facts and circumstances
necessary for imposing a proper sentence, is that of the sentencing court.
This is particularly so where the offence, as in this case, is serious and where
lengthy prison sentences are considered for youthful offenders (see eg S v
Soci 1986 (2) SA 14 (A) at 17H-18A; S v Peterson  2001 (1) SACR 16 (SCA)
paras 20-23; S v Brandt (supra) paras 13-18). In this matter I would have
expected, at the very least, an enquiry by the trial court into the availability of
any medical report pertaining to the complainant. Moreover, I would, in the
circumstances, have expected a request by the court to be provided with
reports by probation officers regarding the personal circumstances of the
appellants.

[14] The last mentioned misdirections, in my view, render it impossible for
this court to impose sentence itself. We simply do not have sufficient
information to do so. Apart from the time-consuming and otherwise wasteful
procedural labyrinth that had been traversed, it transpired that  the two
appellants had already served six years of their sentences. It would therefore
be eminently preferable at this stage to dispose of the matter finally. For
reasons I have stated, we are, however, unfortunately not in a position to do
so. Sentencing has again to be entrusted to the discretion of the trial court.
But this time it will obviously have regard to the comments made above when
that discretion is exercised. The office of the Director of Public Prosecutions,
Eastern Cape, is requested to give effect to the undertaking made by its
representative at the hearing in this court, that the matter will be enrolled
before the trial court at the earliest available opportunity.

[15] For these reasons:
1.
The appeal is upheld and for the order of the court a quo there is
substituted the following:
‘(a)
In respect of both appellants, the sentences imposed by the
Regional Court for the Eastern Cape region (“the trial court”) are
set aside.

(b)
The matter is referred back to the trial court for imposition of
sentence afresh after proper investigation of the pertinent facts
and circumstances.’
2.
A copy of this judgment is to be sent to the Director of Public
Prosecutions, Eastern Cape.

……………………….
F D J BRAND
JUDGE OF APPEAL

Concur:

Navsa JA
Van Heerden JA