S v Dzukuda and Others; S v Tshilo

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Yacoob J and Madlanga AJ
• Judgment Date: 27 September 2000
• Citation: 2000 (2) SACR 443 (CC)
• Hearing Date: 16 August 2000
• Counsel: U R D Mansingh for the first applicant, instructed by the Legal Aid Board. N Makopo for the second applicant, instructed by the Legal Aid Board. F Snyckers for the third applicant. S A Jazbhay for the amicus curiae. J A van de S d'Oliveira SC (with him A Nieman, A M Persad and Z J van Zyl) for the State.
• Court: Constitutional Court

Ackermann J: G

Introduction

[1] Both these matters arise out of an order made by Lewis J in the Witwatersrand High Court on 17 May 2000, declaring s 52 of the Criminal Law Amendment Act 105 of 1997 (the Act) to be inconsistent with s 35 of the H Constitution of the Republic of South Africa 108 of 1996 and invalid. [1] This order has been referred to this Court for confirmation under the provisions of s 172(2)(a) of the Constitution. The first matter (case CCT 23/00) relates to the confirmation of this order, which followed on the three applicants having been convicted of rape in a I regional court and committed for sentence by the High Court under the provisions of s 52 of the Act. The second matter (case CCT 34/00) is an application by the third applicant in the first matter (to whom reference

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A will be made throughout as 'the third applicant') for leave to appeal against the refusal by the High Court to set aside his conviction.

[2] The two matters were heard together by this Court and in both the State was represented by counsel on behalf of the National Director of Public Prosecutions and the Director of Public Prosecutions: Witwatersrand B High Court. The directions in the first matter, together with a copy of the High Court judgment were drawn to the attention of the General Council of the Bar of South Africa, the Law Society of South Africa and the Human Rights Commission. Pursuant thereto the Law Society of South Africa delivered written representations, in support of C the confirmation, to which due regard has been given. The Court is indebted to Mr Snyckers, who appeared pro bono for the third applicant, instructed by the Witwatersrand University Law Clinic, for his comprehensive and helpful argument.

[3] It is necessary at the outset to quote both ss 51 and 52 of the Act in order to appreciate the issues involved in these cases:

D '51 Minimum sentences for certain serious offences

(1) Notwithstanding any other law but subject to ss (3) and (6), a High Court shall, if it has convicted a person of an offence referred to in Part I of Schedule 2, sentence the person to imprisonment for life.

(2) Notwithstanding any other law but subject to ss (3) and (6), a regional court or a High Court shall - E

(a)

if it has convicted a person of an offence referred to in Part II of Schedule 2, sentence the person, in the case of -

(i)

a first offender, to imprisonment for a period not less than 15 years;

(ii)

F a second offender of any such offence, to imprisonment for a period not less than 20 years; and

(iii)

a third or subsequent offender of any such offence, to imprisonment for a period not less than 25 years;

(b)

if it has convicted a person of an offence referred to in Part III of Schedule 2, sentence the person, in the case of -

(i)

a first offender, to imprisonment for a period not less than 10 years;

(ii)

G a second offender of any such offence, to imprisonment for a period not less than 15 years; and

(iii)

a third or subsequent offender of any such offence, to imprisonment for a period not less than 20 years; and

(c)

H if it has convicted a person of an offence referred to in Part IV of Schedule 2, sentence the person, in the case of -

(i)

a first offender, to imprisonment for a period not less than five years;

(ii)

a second offender of any such offence, to imprisonment for a period not less than seven years; and

(iii)

a third or subsequent offender of any such offence, to imprisonment for a period not less than 10 years:

I Provided that the maximum sentence that a regional court may impose in terms of this subsection shall not be more than five years longer than the minimum sentence that it may impose in terms of this subsection.

(3) (a) If any court referred to in ss (1) or (2) is satisfied that substantial and compelling circumstances exist which justify the J imposition of a lesser sentence than the sentence prescribed in those subsections, it shall enter

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those circumstances on the record of the proceedings and may thereupon impose such lesser sentence. A

(b) If any court referred to in ss (1) or (2) decides to impose a sentence prescribed in those subsections upon a child who was 16 years of age or older, but under the age of 18 years, at the time of the commission of the act which constituted the offence in question, it shall enter the reasons for its decision on the record of the proceedings. B

(4) Any sentence contemplated in this section shall be calculated from the date of sentence.

(5) The operation of a sentence imposed in terms of this section shall not be suspended as contemplated in s 297(4) of the Criminal Procedure Act 51 of 1977.

(6) The provisions of this section shall not be applicable in respect of a child who was under the age of 16 years at the time of the C commission of the act which constituted the offence in question.

(7) If in the application of this section the age of a child is placed in issue, the onus shall be on the State to prove the age of the child beyond reasonable doubt.

(8) For the purposes of this section and Schedule 2, ''law enforcement officer'' includes - D

(a)

a member of the National Intelligence Agency or the South African Secret Service established under the Intelligence Services Act 38 of 1994; and

(b)

a correctional official of the Department of Correctional Services or a person authorised under the Correctional Services Act 8 of 1959. E

52 Committal of accused for sentence by High Court after plea of guilty or trial in regional court

(1) If a regional court, after it has convicted an accused of an offence referred to in Schedule 2 following on -

(a)

a plea of guilty; or

(b)

a plea of not guilty, F

but before sentence, is of the opinion that the offence in respect of which the accused has been convicted merits punishment in excess of the jurisdiction of a regional court in terms of s 51, the court shall stop the proceedings and commit the accused for sentence by a High Court having jurisdiction.

(2) (a) Where an accused is committed under ss (1)(a) for sentence by a High Court, the record of the proceedings in the regional G court shall upon proof thereof in the High Court be received by the High Court and form part of the record of that Court, and the plea of guilty and any admission by the accused shall stand unless the accused satisfies the Court that such plea or such admission was incorrectly recorded.

(b) Unless the High Court in question - H

(i)

is satisfied that a plea of guilty or an admission by the accused which is material to his or her guilt was incorrectly recorded; or

(ii)

is not satisfied that the accused is guilty of the offence of which he or she has been convicted and in respect of which he or she has been committed for sentence,

the Court shall make a formal finding of guilty and sentence the accused as contemplated in s 51. I

(c) If the Court is satisfied that a plea of guilty or any admission by the accused which is material to his or her guilt was incorrectly recorded, or if the Court is not satisfied that the accused is guilty of the offence of which he or she has been convicted and in respect of which he or she has been committed for sentence or that he or she has no valid defence to the J

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A charge, the Court shall enter a plea of not guilty and proceed with the trial as a summary trial in that Court: Provided that any admission by the accused the recording of which is not disputed by the accused, shall stand as proof of the fact thus admitted.

(d) The provisions of s 112 (3) of the Criminal Procedure Act 51 of 1977, shall apply with reference to the proceedings under this subsection.

B (3) (a) Where an accused is committed under ss (1)(b) for sentence by a High Court, the record of the proceedings in the regional court shall upon proof thereof in the High Court be received by the High Court and form part of the record of that Court.

(b) The High Court shall, after considering the record of the proceedings in the regional court, sentence the accused, and the C judgment of the regional court shall stand for this purpose and be sufficient for the High Court to pass sentence as contemplated in s 51: Provided that if the Judge is of the opinion that the proceedings are not in accordance with justice or that doubt exists whether the proceedings are in accordance with justice, he or she shall, without sentencing the accused, D obtain from the regional magistrate who presided at the trial a statement setting forth his or her reasons for convicting the accused.

(c) If a Judge acts under the proviso to para (b), he or she shall inform the accused accordingly and postpone the case for judgment, and, if the accused is in custody, the Judge may make such order with regard to the detention or release of the accused as he or she may deem fit.

(d) The Court in question may at any sitting thereof hear any evidence and for that purpose summon any person to appear to E give evidence or to produce any document or other article.

(e) Such Court, whether or not it has heard evidence and after it has obtained and considered a statement referred to in para (b), may -

(i)

confirm the conviction and thereupon impose a sentence as contemplated in s 51;

(ii)

F alter the conviction to a conviction of another offence referred to in Schedule 2 and thereupon impose a sentence as contemplated in s 51;

(iii)

alter the conviction to a conviction of an offence other than an offence referred to in Schedule 2 and thereupon impose the sentence the Court may deem fit;

(iv)

G set aside the conviction;

(v)

remit the case to the regional court with instruction to deal with any matter in such manner as the High Court may deem fit; or

(v...