THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 959/13
Not reportable

In the matter between:

NYELISANI NNDATENI
Appellant

and

THE STATE
Respondent

Neutral citation:
Nndateni v The State (959/13) [2014] ZASCA 122
(19 September 2014)
Coram:
Mhlantla, Theron, Willis and Swain JJA and Legodi AJA
Heard:
22 May and 16 September 2014
Delivered:
19 September 2014
Summary:
Sentence – appeal against - rape – accused not charged in
terms of the provisions of Criminal Law Amendment Act 105 of 1997 – high
court however sentencing appellant to life imprisonment in terms of Act –
such constituting material misdirection – sentence set aside – case remitted
to the high court for the reconsideration of sentence.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from the Limpopo High Court, Thohoyandou (Hetisani J) sitting as
court of first instance):
The appeal is upheld.
The sentence imposed by the high court is set aside.
The matter is remitted to the high court for the reconsideration of
sentence.
______________________________________________________________

JUDGMENT
______________________________________________________________

Legodi AJA (Mhlantla, Theron, Willis and Swain JJA concurring):

[1] This appeal with the leave of the Limpopo High Court, Thohoyandou, is
directed against sentence only. The appellant was indicted before Hetisani J
on one count of rape.1 He pleaded not guilty and elected to remain silent. At
the end of the trial he was found guilty as charged and sentenced to life
imprisonment.

[2] The background facts underlying the conviction may be summarised as
follows. The complainant lived with her daughter who is physically disabled.
Her son, who was the appellant‟s friend, had died a few years before the
incident. On 20 August 2006 at about 19h00 the appellant arrived at the home
of the complainant. He joined the complainant who was inside the lapa. After
a while, the complainant went out and on her return, found the appellant
standing at the corner of the house. He grabbed the complainant by her throat

1 Rape in that on or about 20 August 2006 and at or near Ngovhela- Madamalala Location, in
the district of Thohoyandou, the accused did unlawfully and intentionally have sexual
intercourse with S.S (the complainant), a 66 year old female person without her consent.

causing her to fall. He raped her repeatedly both anally and vaginally until
dawn. She soiled herself as a result of the rape. The appellant also assaulted
the complainant because she offered some resistance during the incident.
She sustained bodily injuries. She also had marks on her throat after being
throttled by the appellant. The appellant threatened to kill her by hanging her
in the same manner in which her son had died. At dawn, whilst the appellant
was raping the complainant, she enquired if he wanted to kill her. He did not
respond but stopped raping her and ran away. Throughout this incident, the
complainant's daughter was alone inside the house. She could not help her
mother owing to her disability.

[3] Immediately after the incident, the complainant could not walk due to
her injuries. She crawled to the lapa and entered the house. She slept for a
while and thereafter went outside and called for help. Mrs Mogedzi, her
neighbour, came. The complainant reported the incident to Mrs Mogedzi, who
contacted the complainant's elder sister. The complainant was thereafter
taken to the hospital.

[4] The complainant was examined by a doctor, who recorded that she
was emotionally upset and appeared to be shocked and anxious. The doctor
noted the following bodily injuries: the left side of the face and cheeks was
bruised; very swollen, tender and contused lips; swollen and bruised right
thigh and abrasion wounds on her neck and both sides of her trachea. The
gynaecological examination revealed the following: reddish and bruised
urethral orifice, the folds of the labia majora were lacerated, the labia minora
was bruised and swollen, the para-urethral folds, posterior fourchette, the
fossa navicularis and the introitus were bruised, blood stained and swollen.
The doctor recorded that the examination was painful.

[5] The appellant maintained his innocence throughout the trial and raised
an alibi defence. After conviction he chose not to testify in mitigation. His legal
representative addressed the court from the Bar.

[6] In his judgment on sentence Hetisani J stated:

„The court is well aware of the fact that where there are substantial and compelling
circumstances the court may not impose the life sentence. Normally it happens
where the victim was of tender age. Here we have it the other way around; the victim
was 42 years older than the perpetrator.‟
It is therefore apparent that Hetisani J believed that the provisions of s 51 of
the Criminal Law Amendment Act 105 of 1997 (the Act) read together with
Part 1 of Schedule 2 to that Act applied. A minimum sentence of life
imprisonment was provided for where the victim was raped more than once,
as occurred in the present appeal. On appeal, it was common cause between
the parties that, prior to the judgment on sentence, there was no indication
that the State intended relying on the minimum sentencing regime created by
the Act.

[7] On 22 May 2014, the appeal was heard in this court. After argument,
we considered it to be in the interests of justice to seek submissions from the
Womens Legal Centre, Centre for Child Law, Legal Resources Centre and
Lawyers for Human Rights (the amicus curiae). The parties and the amici
were requested to make submissions on inter alia:
(a) whether the failure to warn an accused person that he faces a prescribed
minimum sentence affects his right to a fair trial in respect of sentence; and
(b) whether a court on appeal, when considering a sentence afresh, may
impose a sentence equal to the prescribed sentence where the accused was
not so warned, having regard to the provisions of s 35(3) of the Constitution.
We received submissions from the parties and the amici. The amici submitted
comprehensive heads of argument. We are grateful for their participation and
valuable submissions in this matter.

[8] Before us it was accepted that the trial court committed a procedural
irregularity by invoking the provisions of the Act when the appellant‟s attention
was not drawn thereto. The issue was, however, whether such irregularity
was prejudicial to the appellant which, accordingly, rendered the trial unfair to
the extent that the sentence of life imprisonment could not stand.

[9] The provisions of s 35 of the Constitution provide that every accused
person has a right to a fair trial. This includes the right to be informed of the
charge with sufficient detail to answer. Cameron JA in S v Legoa 2003 (1)
SACR 13 (SCA) at 22h-23b said the following:
„The Bill of Rights specifies that every accused has a right to a fair trial. This right, the
Constitutional Court has said, is broader than the specific rights set out in the sub-
sections of the Bill of Rights‟ criminal trial provision. One of those specific rights is “to
be informed of the charge with sufficient detail to answer it”. What the ability to
“answer” a charge encompasses this case does not require us to determine. But
under the constitutional dispensation it can certainly be no less desirable than under
the common law that the facts the State intends to prove to increase sentencing
jurisdiction under the 1997 statute should be clearly set out in the charge-sheet.‟

[10] In S v Ndlovu 2003 (1) SACR 331 (SCA) at 337a-c Mpati JA stated:
„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.‟

[11] In Sv Makatu 2006 (2) SACR 582 (SCA) at para 7, Lewis JA said in
relation to details that should be furnished to an accused person charged with
an offence in terms of s 51(1) of the Act:
„As a general rule, where the State charges an accused with an offence governed by
s 51(1) of the Act, such as premeditated murder, it should state this in the indictment.
This rule is clearly neither absolute nor inflexible. However, an accused faced with
life imprisonment ─ the most serious sentence that can be imposed ─ must from the
outset know what the implications and consequences of the charge are. Such
knowledge inevitably dictates decisions made by an accused, such as whether to

conduct his or her own defence; whether to apply for legal aid; whether to testify;
what witnesses to call; and any other factor that may affect his or her right to a fair
trial. If during the course of a trial the State wishes to amend the indictment it may
apply to do so, subject to the usual rules in relation to prejudice.‟

[12] In S v Kolea 2013 (1) SACR 409 (SCA), the high court in Bloemfontein
confirmed the conviction by the regional court and imposed a sentence of 15
years‟ imprisonment. On appeal against both the conviction and sentence to
the full court, the conviction was confirmed but the sentence of 15 years‟
imprisonment was increased to one of life imprisonment. In a further appeal to
this court against both the conviction and sentence, the main issue was
whether on a charge of rape a sentencing court is precluded from imposing a
life sentence, or from referring the matter to the high court for consideration of
that sentence, solely on the basis that the charge sheet refers to s 51(2)
instead of s 51(1) of the Act. Mbha AJA at para 11 stated:
„In this case the state‟s intention to rely on and invoke the minimum sentencing
provisions was made clear from the outset. The charge-sheet expressly recorded
that the appellant was charged with the offence of rape, read together with the
provisions of s 51(2) of the Act. I am accordingly satisfied that the appellant, who was
legally represented throughout the trial, well knew of the charge he had to meet and
that the state intended to rely on the minimum sentencing regime created in the Act.‟
Further at para 12 he stated:
„ . . . Significantly, there was no objection to the fact that the matter was now being
transferred to the high court and to the prospect of a sentence of life imprisonment
being imposed on the appellant, as provided for in s 51(1) and not s 51(2) of the Act.‟
It was further held that in both the high court and full court there was no
objection to the indictment or summary of substantial facts and that the
appellant‟s counsel conceded in both courts that the appellant had been
correctly convicted. He pleaded not guilty to the charge and fully participated
in the trial. He was convicted in accordance with the evidence that was led in
relation to the charge of rape. It was further held that it had not been
demonstrated that the appellant would have acted differently, had the mistake
not been made in the charge-sheet.

[13] The present case is distinguishable from the decisions in Kolea and
Makatu as in both these cases, the indictment and the charge-sheet referred
to the provisions of the Act. In the present matter the indictment did not refer
to s 51 or any other provisions of the Act. Neither the indictment nor the
summary of substantial facts referred to the elements of the crime that would
if proven, invoke a minimum sentence of life imprisonment in terms of s 51(1)
of the Act. There is no mention in the charge-sheet that the complainant was
raped more than once. This aspect emerged for the first time from the
evidence. The accused was not warned at any stage during the proceedings
that he may face a minimum sentence upon conviction. As a result the
appellant was not placed in a position to appreciate properly and in good time
the seriousness of the charge he faced as well as its possible consequences.
This may have affected his faculty to make appropriate decisions on how to
conduct his defence. There is no indication in the record that the appellant or
his legal representative had any knowledge that the appellant faced the
possibility of a minimum sentence upon conviction. It was only during the
course of the delivery of the judgment on sentence that the appellant was
alerted that he faced a prospect of life in prison.

[14] In the result, the process that led to the imposition of sentence was
irregular and infringed the appellant‟s right to a fair trial in respect of sentence.
This much was conceded by counsel for the State.

[15] As stated in S v Langa 2010 (2) SACR 289 (KZP) at 306D-G:
„If applying the provisions of the Act would give rise to an unfair trial on sentence, the
provisions of the Act must be regarded as irrelevant to any consideration of
sentence, in order for the trial to be fair. If irrelevant considerations are taken into
account on sentence, this amounts to a misdirection, warranting the setting-aside of
the sentence and requiring the appeal court to begin the sentencing process de
novo, if it is in a position to do so. I am therefore of the view that, for a trial court to
apply a sentencing regime of which the accused has not had adequate and timeous
knowledge, qualifies, par excellence, as a material misdirection. In my view,
therefore, the consequence of a trial court applying the provisions of the Act, in a
situation where the requisite knowledge was lacking, amounts to a misdirection,

warranting the setting-aside of the sentence and fresh adjudication of an appropriate
sentence.‟

[16] It follows that the reliance by Hetisani J on the provisions of s 51 of the
Act constitutes a material misdirection which is sufficient to vitiate the
sentence. The sentence is accordingly set aside.

[17] The issue that remains is whether this matter should be remitted to the
high court for sentencing or this court on appeal should consider sentence
afresh. In considering this issue this court has to consider the following
questions: First, how much time has elapsed since conviction and sentence.
Second, would the appellant be prejudiced by the further delay occasioned by
remitting the case. Third, does the court have sufficient information to
exercise its discretion properly. Regarding the aspect relating to the
sufficiency of information, Shongwe JA said in S v EN 2014 (1) SACR 198
(SCA) at para 14:
„. . . Sentencing is the most difficult stage of a criminal trial, in my view. Courts should
take care to elicit the necessary information to put them in a position to exercise their
sentencing discretion properly . . . Life imprisonment is the ultimate and most severe
sentence that our courts may impose; therefore a sentencing court should be seen to
have sufficient information before it to justify that sentence.‟

[18] In this matter the relevant information to enable this court to consider
sentencing afresh is sparse. The appellant did not testify in mitigation of
sentence. From the bar it was placed on record that he was 28 years old at
the time of the commission of the offence, illiterate and unemployed. The
conduct of the appellant in committing this particular crime was bizarre, but
there was no evidence in the form of a pre-sentencing report. Such a report
usually sheds light on the appellant‟s background and upbringing and in some
instances may indicate what motivated him to commit the offence and
whether he is remorseful. The pre-sentencing report could have covered
some of these issues. Counsel for both parties conceded that there was a
paucity of information from the record and agreed that a remittal of the matter
to the high court for reconsideration would be appropriate under the

circumstances. The amici were of one accord that the information on the
record was insufficient for the court to consider sentence afresh.

[19] It is so that the appellant has to date served a period of five years in
prison. He was convicted of a very serious offence which justifies the
imposition of a severe custodial sentence. A reconsideration of sentence by
remitting the matter to the high court for this purpose will not occasion any
delays which will prejudice the appellant. On the contrary, it may inure to his
benefit.

[20] The matter should therefore be remitted to the high court for the
reconsideration of sentence after obtaining a pre-sentencing report. This
should not only deal with the appellant‟s circumstances but in addition the
impact the incident has had on the complainant.

[21] In the result the following order is made:
The appeal is upheld.
The sentence imposed by the high court is set aside.
The matter is remitted to the high court for the reconsideration of
sentence.

M F LEGODI

ACTING JUDGE OF APPEAL

APPEARANCES:

For Appellant:
A L Thomu

Instructed by:

Thohoyandou Justice Centre, Thohoyandou

Justice Centre, Bloemfontein

For Respondent:
A Madzhuta
Instructed by:

The Director of Public Prosecutions,
Thohoyandou

Director of Public Prosecutions, Bloemfontein

For First Amicus Curiae:
A Du Toit

Instructed by:

Trustees For the Time Being of the Women‟s

Legal Centre Trust, Cape Town

Webbers, Bloemfontein

For Second to Fourth
Amicus Curiae:

M Bishop

Instructed by:

Legal Resources Centre, Cape Town

Webbers, Bloemfontein