SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT
OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

28 September 2018

STATUS

Immediate

Khoza & another v The State (1267/2017) [2018] ZASCA 133
(28 September 2018)

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.

The appellants and others were charged in the North West Division of the
High Court, Mahikeng with, inter alia, murder (count 1) and robbery with
aggravating circumstances (count 2). The indictment did not make reference
to the Criminal Law Amendment Act 105 of 1997 (Minimum Sentences Act).
During the trial both appellants subjectively formed the perception that the trial
judge was biased against him. When the trial judge refused to recuse himself,
the appellants terminated the mandate of their legal representatives and took
no further part in the trial.

The trial court found that the appellants had participated in a planned armed
robbery, during which the victim was shot and killed by one of the other
accused persons. It therefore convicted the appellants on counts 1 and 2.
Only thereafter did the trial court inform the appellants that they were exposed
to a sentence of life imprisonment in terms of the Minimum Sentences Act in
respect of the conviction on count 1. Having found that there were no
substantial and compelling circumstances that justified a departure from the

prescribed minimum sentence, the trial court sentenced the appellants to life
imprisonment on count 1 and to twenty years imprisonment on count 2. The
appellants appealed to the full court against their sentences. They argued that
they had not been afforded a fair trial. The full court, however, dismissed the
appeal.

Today the Supreme Court of Appeal (SCA) upheld the appellants’ further
appeal to it. The SCA held that it had to be accepted that the appellants were
informed of the applicability of the Minimum Sentences Act only after they had
been convicted. Thus, they were not aware that they were exposed to a
sentence of life imprisonment when they resolved to take no further part in the
trial. When they were informed thereof, they were not legally represented. The
SCA held that there was a reasonable possibility that the appellants may have
conducted their cases differently, had they been alerted to the applicable
provisions of the Minimum Sentences Act at the outset of the trial. The SCA
held that the appellants had been prejudiced and that they had not been
afforded a fair trial in respect of the sentencing proceedings. Thus, the SCA
ordered that the sentences be set aside and that the matter be remitted to the
trial court to impose sentence afresh without the application of the Minimum
Sentences Act.