THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGEMENT

Case No: 828/13

In the matter between

Not Reportable

P N

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Nekuvule v The State (828/13) [2014] ZASCA 24 (27 March
2014)

Coram:
Navsa, Leach and Saldulker JJA

Heard:
14 MARCH 2014

Delivered:
27 MARCH 2014

Summary:
Rape – Sentence – No reference in the charge sheet to the
prescribed minimum sentence in terms of Criminal Law Amendment Act 105
of 1997 – Provisions not brought to the attention of the unrepresented
accused – sentences set aside.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: Limpopo High Court (Lukoto J sitting as court of first
instance):

The following order is made:
1 The appeal against the sentence is upheld. The sentence of life
imprisonment imposed by the court a quo on each of the two counts of rape is
set aside and substituted with the following sentence:
‘(a) On count one – the accused is sentenced to 20 years’ imprisonment.
(b)  On count two – the accused is sentenced to 20 years’ imprisonment.
(c)  Ten years of the sentence on count two are to run concurrently with the
sentence on count one. The accused is sentenced to an effective 30
years’ imprisonment.’
2 The sentence is antedated to 29 June 2001, in terms of s 282 of the
Criminal Procedure Act 51 of 1977, being the date upon which the sentences
were   imposed.

______________________________________________________________

JUDGMENT
______________________________________________________________

SALDULKER JA (NAVSA and LEACH JJA concurring):

[1] This is an appeal directed against sentence only. On 26 April 2001, the
appellant, Mr P N, was convicted in the regional court, Thohoyandou on two
counts of rape of two young girls eight and ten years old, respectively.
Following the conviction, the regional magistrate stopped the proceedings and

committed the appellant for sentencing by a high court in terms of s 52(1)(b)1
of the Criminal Law Amendment Act 105 of 1997 (the Act).

[2] In the high court, Lukoto J confirmed the convictions of the appellant in
terms of s 52(2)(b) of the Act, and sentenced the appellant to life
imprisonment on each count, that being the prescribed minimum sentence in
terms of the Act. These sentences were ordered to run concurrently. An
application for leave to appeals against the conviction and sentences was
refused. The appellant appeals against the sentences imposed with the leave
of this court.

[3] Before turning to consider the propriety of the sentences imposed, I set
out the background in brief. The appellant was charged with the rape of his
biological daughter and her young friend, a neighbour. Before the trial
commenced,
the
regional
magistrate
explained
the
right
to
legal
representation to the appellant, and he chose to conduct his own defence.
The appellant’s daughter and her friend testified that the appellant had called
them into his room, undressed himself and ordered them to also undress, and
then raped them in turn. Thereafter he gave them money to buy sweets and
warned them not to tell anyone about the incident. They reported the incident
to members of their family, whereafter they were taken to hospital where a
medical examination confirmed that they had been raped.

[4] After convicting the appellant, but before referring the matter to the
high court, the regional magistrate recorded that he had omitted to inform the
appellant of the minimum sentence provisions. He stated the following:
‘It is imperative in terms of the case that an undefended accused be explained
accordingly and I realise that I did not tell you at the beginning. AS A RESULT I
DECIDED TO REMIT THIS MATTER FOR DIRECTIVES TO AND BY THE HIGH
COURT.’ (Emphasis in original.)

1 This section was repealed on 31 December 2007 by section 2 of the Criminal Law
(Sentencing) Amendment Act 38 of 2007.

[5] The high court did not consider the magistrate’s failure to advise the
appellant of the minimum sentence regime to be a problem, and went on to
impose the minimum sentence as prescribed in Part I of Schedule 22 to the
Act for the rape of the two young girls.

[6] In S v Ndlovu 2003 (1) SACR 331 (SCA) para 12, Mpati JA said the
following:
‘The enquiry, therefore, is whether, on a vigilant examination of the relevant
circumstances, it can be said that an accused had had a fair trial. And I think it is
implicit in these observations that where the State intends to rely upon the
sentencing regime created by the Act a fair trial will generally demand that its
intention pertinently be brought to the attention of the accused at the outset of the
trial, if not in the charge-sheet then in some other form, so that the accused is placed
in a position to appreciate properly in good time the charge that he faces as well as
its possible consequences. Whether, or in what circumstances, it might suffice if it is
brought to the attention of the accused only during the course of the trial is not
necessary to decide in the present case. It is sufficient to say that what will at least
be required is that the accused be given sufficient notice of the State’s intention to
enable him to conduct his defence properly.’(My emphasis.)

[7] The charge sheet did not refer to the minimum sentence provisions
mentioned above. Neither the regional magistrate nor the State made any
attempt during his trial to bring it to the appellant’s attention. In addition, it
should be borne in mind that the appellant was unrepresented, requiring
greater care on the part of the State and the regional magistrate.

[8] Counsel for the State was constrained to concede that in the
circumstances of this case the sentences fall to be set aside in a similar
manner to that which occurred in Ndlovu.

2 Section 51(1) provides: ‘Notwithstanding any other law, but subject to subsection (3) and
(6), a regional court or a High Court shall sentence a person it has convicted of an offence
referred to in Part I of Schedule 2 to imprisonment for life.’ Part I of Schedule 2 includes rape
when committed ‘(b) where the victim- (i) is a person under the age of 16 years’.

[9] The appellant raped his own daughter and her little friend, which
makes the acts in question all the more heinous. The acts committed by the
appellant warrant lengthy terms of imprisonment, as reflected in the
substituted order set out hereafter. It is necessary to record that the appellant
has already spent about 13 years in prison. Counsel for both the appellant
and the state were agreed that justice would be served by imposing a
sentence of 20 years’ imprisonment on each count, with 10 years’
imprisonment on the second count being ordered to run concurrently. That
seems to me to be a fair sentence given the circumstances of this case, and
will be reflected in the order below.

[10] In the result, the following order is made:
1 The appeal against the sentence is upheld. The sentence of life
imprisonment imposed by the court a quo on each of the two counts of rape is
set aside and substituted with the following sentence:
‘(a) On count one – the accused is sentenced to 20 years’ imprisonment.
(b) On count two – the accused is sentenced to 20 years’ imprisonment.
(c) Ten years of the sentence on count two are to run concurrently with the
sentence on count one. The accused is sentenced to an effective 30
years’ imprisonment.’
2 The sentence is antedated to 29 June 2001, in terms of s 282 of the
Criminal Procedure Act 51 of 1977, being the date upon which the sentences
were   imposed.

_________________

HK SALDULKER

JUDGE OF APPEAL

APPEARANCES
For appellant:
M J Manwadu

Thohoyandou Justice Centre

For respondent:
RJ Makhera

Office of the Director of Public Prosecutions,
Thohoyandou