S v Langa

JurisdictionSouth Africa
Citation2010 (2) SACR 289 (KZP)

S v Langa
2010 (2) SACR 289 (KZP)

2010 (2) SACR p289


Citation

2010 (2) SACR 289 (KZP)

Case No

498/2009

Court

KwaZulu-Natal High Court, Pietermaritzburg

Judge

Gorven J, Steyn J and Govindasamy AJ

Heard

February 3, 2010

Judgment

April 23, 2010

Counsel

P Marimuthu for the appellant, instructed by the Justice Centre, Pietermaritzburg.
S Senekal (DPP, Pietermaritzburg) for the State.

Flynote : Sleutelwoorde

Sentence — Prescribed sentences — Minimum sentence — Imposition of in terms F of Criminal Law Amendment Act 105 of 1997 — Charge-sheet — Failure to advise accused of implications of Act — Fair trial demanding that accused be aware of State's intention to rely on Act's sentencing regime in sufficient time to make critical decisions — Representation by legal practitioner not sufficient for court to be satisfied that accused aware of State's intention — G In some situations court able to make such finding by drawing inference from conduct of accused or legal practitioner — But if Act's provisions applied in situation where accused becoming aware of them only after conviction, this offending against substantive fairness provisions of Constitution, and amounting to unfair trial on sentence.

Sentence — Prescribed sentences — Minimum sentence — Imposition of in H terms of Criminal Law Amendment Act 105 of 1997 — Charge-sheet — Failure to advise accused of implications of Act — Nothing on record to indicate satisfactorily that appellant aware of State's intention to rely on Act at all, let alone s 51(1), as opposed to s 51(2) thereof — That this might be inferred from summary of facts not sufficient — Necessary to make factual I finding that appellant or representative having indeed drawn such inference — In addition, necessary to find as fact that such inference understood to mean that State intending to rely on s 51(1) of Act — Nothing on record to show that connection made between summary of substantial facts and State's intention to rely on s 51(1) — Accordingly, trial on sentence substantively unfair and sentence to be set aside and considered afresh. J

2010 (2) SACR p290

Headnote : Kopnota

A The appellant was convicted in the High Court on two counts of murder, two of kidnapping and one each of theft and malicious damage to property. The minimum sentencing provisions of the Criminal Law Amendment Act 105 of 1997 (the Act) were found to be applicable, and she was sentenced to life imprisonment on the first murder count; to 20 years' imprisonment on the second; and to lesser periods of imprisonment on the other counts. The first B murder was committed for economic reasons, the victim being a business rival of the appellant. The second murder was committed in an attempt to cover up the first. The appeal lay against sentence only, and argument focused on the life sentence imposed on the first count.

In a separate judgment, Steyn J found that although the provisions of the Act had not been referred to in the indictment, and although the appellant had not C been specifically informed thereof, she had been legally represented and it had been clear from the summary of facts that a conviction would attract a life sentence. There had, accordingly, been no failure of justice, depriving the appellant of a fair trial. Steyn J went on to propose that the appeal be dismissed, but that it be ordered that the appellant's six minor children should be properly cared for; that they should remain in contact with her D during her imprisonment; that everything reasonably possible should be done to ensure that she be 're-unified' with her children; and that the interests of the family be promoted.

Held (per Gorven J; Govindasamy AJ concurring), that a fair trial demanded that an accused must be aware of the State's intention to rely on the Act's sentencing regime in sufficient time to make critical decisions which could E bear on the outcome of the case as a whole, including sentence. It was difficult to see how the requisite knowledge could inform all crucial decisions, unless it was obtained at a stage prior to the accused pleading to the charge. Representation by a legal practitioner did not, without more, mean that it was unnecessary for a court to satisfy itself that the accused was aware of the State's intended reliance on the minimum sentence provisions. F The enquiry was a factual one, and there might well be situations where a court could make such a finding of fact by drawing an inference from the conduct of the accused or the legal practitioner; in such cases the test would be satisfied. On the other hand, if the Act's provisions were applied in a situation where the accused became aware of them only after conviction, this would offend against the substantive fairness provisions of the Constitution, G and amount to an unfair trial on sentence. If applying the provisions of the Act would give rise to an unfair trial on sentence, those provisions must be regarded as irrelevant to any consideration of sentence, in order for the trial to be fair. And to take account of irrelevant considerations would constitute a misdirection, warranting the setting-aside of the sentence and requiring the appeal court to begin the sentencing process de novo, if it was H in a position to do so. (Paragraphs [23]–[27] at 304e–306g.)

Held, further, that in the present matter there was nothing on the record, whether by way of the indictment, the summary of substantial facts, the evidence led, or the conduct of the appellant or her legal representative, which indicated satisfactorily that she had been aware of the State's intention to rely on the Act at all, let alone s 51(1), as opposed to s 51(2) thereof. That I it might be inferred from the summary of facts that the State would allege planning and premeditation of the murder, did not go far enough. It was necessary to make a factual finding that the appellant herself, or her representative, had indeed drawn that inference. In addition, it was necessary to find as a fact that such an inference had been understood to mean that the State intended to rely on s 51(1) of the Act; and there was J nothing on the record to show that either the appellant or her representative

2010 (2) SACR p291

had made the connection between the summary of substantial facts and the A State's intention to rely on s 51(1). Accordingly, the trial on sentence had been substantively unfair, and sentence had to be set aside and considered afresh. (Paragraphs [33]–[35] at 308h–309g.)

Held, further, regarding an appropriate sentence, that the appellant had initiated the killings. She had expressed no remorse, persisting in her denial, and there was no indication that she was a good candidate for rehabilitation. B Despite her personal circumstances, the appropriate sentence on count one was life imprisonment. (Paragraph [36] at 309h–310b.)

Appeal dismissed.

Annotations:

Cases cited

Reported cases

Hlantlalala and Others v Dyantyi NO and Another 1999 (2) SACR 541 (SCA) ([1999] 4 All SA 472): referred to C

Key v Attorney-General, Cape Provincial Division, and Another 1996 (2) SACR 113 (CC) (1996 (4) SA 187; 1996 (6) BCLR 788): referred to

R v Zonele and Others 1959 (3) SA 319 (A): referred to D

S v Carter 2007 (2) SACR 415 (SCA): referred to

S v Dzukuda and Others; S v Tshilo 2000 (2) SACR 443 (CC) (2000 (4) SA 1078; 2000 (11) BCLR 1252): referred to

S v GN 2010 (1) SACR 93 (T): referred to

S v Howells 1999 (1) SACR 675 (C) ([1999] 2 All SA 233): referred to

S v Jaipal 2005 (1) SACR 215 (CC) (2005 (4) SA 581; 2005 (5) BCLR 423): E referred to

S v Johaar en 'n Ander 2010 (1) SACR 23 (SCA): referred to

S v Legoa 2003 (1) SACR 13 (SCA) ([2002] 4 All SA 373): followed

S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC) (2008 (3) SA 232; 2007 (12) BCLR 1312): referred to

S v Makatu 2006 (2) SACR 582 (SCA): dictum in para [7] applied F

S v Moodie 1961 (4) SA 752 (A): referred to

S v Mseleku 2006 (2) SACR 574 (D): followed

S v Msithing 2006 (1) SACR 266 (N): referred to

S v Mushimba en Andere 1977 (2) SA 829 (A): referred to

S v Mvelase 2004 (2) SACR 531 (W): not followed

S v Ndlovu 2003 (1) SACR 331 (SCA) ([2003] 1 All SA 66): followed G

S v Ndlovu; S v Sibisi 2005 (2) SACR 645 (W): referred to

S v Raath 2009 (2) SACR 46 (C): compared

S v Shabalala 2006 (1) SACR 328 (N): followed

S v Shikunga and Another 1997 (2) SACR 470 (NmS) (2000 (1) SA 616; 1997 NR 156; 1997 (9) BCLR 1321): referred to

S v Smile and Another 1998 (1) SACR 688 (SCA) (1998 (5) BCLR 519; H [1998] 2 All SA 613): referred to

S v Thembalethu 2009 (1) SACR 50 (SCA): referred to

S v Zinn 1969 (2) SA 537 (A): referred to

S v Zuma and Others 1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401): referred to. I

Unreported cases

Howells v S [2000] JOL 6577 (SCA): referred to.

Legislation cited

Statutes

The Criminal Law Amendment Act 105 of 1997, s 51: see Juta's Statutes of South Africa 2009/10 vol 1 at 2-541. J

2010 (2) SACR p292

Case Information

A Appeal against sentence imposed in the KwaZulu-Natal High Court (Magid J). The facts appear from the judgment of Gorven J, in which Govindasamy AJ concurred; and from the separate judgment of Steyn J.

P Marimuthu for the appellant, instructed by the Justice Centre, B Pietermaritzburg.

S Senekal (DPP, Pietermaritzburg) for the State.

Cur adv vult.

Postea (April 23). C

Judgment

Steyn J:

[1] The appellant, charged with three other accused, appeared before Magid J on seven counts, that included: two of murder, two of kidnapping, one of robbery with aggravating circumstances, one of D unlawful possession of a firearm, and a count of malicious injury to property. On 5 June 2002, after a protracted trial, she was convicted by the learned trial judge on six of the counts, namely, two counts...

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9 practice notes
  • 2012 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...106KKruger v President of the RSA 2009 (1) SA 417 (CC) .......................... 132LLanga v S 2010 (2) SACR 289 (KZP) ................................................... 107, 109Lee v Minister of Correctional Services 2011 (2) SACR 603 (WCC) .... 169-172MM v The State (Centre for Child la......
  • S v Ndlovu
    • South Africa
    • Invalid date
    ...[1997] 3 All SA277; [1997] ZASCA 45): dictum at 5 appliedS v Kolea 2013 (1) SACR 409 (SCA) ([2012] ZASCA 199): referred toS v Langa 2010 (2) SACR 289 (KZP): referred toS v Legoa 2003 (1) SACR 13 (SCA) ([2002] 4 All SA 373; [2002] ZASCA122): referred toS v Mahlaba [2016] ZAFSHC 135: referred......
  • S v Essop
    • South Africa
    • Invalid date
    ...SA 536 (A): referred to S v Kruger en Andere 1989 (1) SA 785 (A): referred to S v Kuse 1990 (1) SACR 191 (E): referred to S v Langa 2010 (2) SACR 289 (KZP): referred to S v Lavhengwa 1996 (2) SACR 453 (W): dictum at 482 f – g applied E S v Legoa 2003 (1) SACR 13 (SCA) ([2002] 4 All SA 373; ......
  • S v Longano
    • South Africa
    • Invalid date
    ...S v Jaipal 2005 (1) SACR 215 (CC) (2005 (4) SA 581; 2005 (5) BCLR 423; [2005] ZACC 1): dictum in para [39] applied S v Langa 2010 (2) SACR 289 (KZP): dicta at 295c – 296b S v Moodie 1961 (4) SA 752 (A): compared C S v Naidoo 1962 (4) SA 348 (A): considered S v Seheri en Andere 1964 (1) SA 2......
  • Request a trial to view additional results
8 cases
  • S v Ndlovu
    • South Africa
    • Invalid date
    ...[1997] 3 All SA277; [1997] ZASCA 45): dictum at 5 appliedS v Kolea 2013 (1) SACR 409 (SCA) ([2012] ZASCA 199): referred toS v Langa 2010 (2) SACR 289 (KZP): referred toS v Legoa 2003 (1) SACR 13 (SCA) ([2002] 4 All SA 373; [2002] ZASCA122): referred toS v Mahlaba [2016] ZAFSHC 135: referred......
  • S v Essop
    • South Africa
    • Invalid date
    ...SA 536 (A): referred to S v Kruger en Andere 1989 (1) SA 785 (A): referred to S v Kuse 1990 (1) SACR 191 (E): referred to S v Langa 2010 (2) SACR 289 (KZP): referred to S v Lavhengwa 1996 (2) SACR 453 (W): dictum at 482 f – g applied E S v Legoa 2003 (1) SACR 13 (SCA) ([2002] 4 All SA 373; ......
  • S v Longano
    • South Africa
    • Invalid date
    ...S v Jaipal 2005 (1) SACR 215 (CC) (2005 (4) SA 581; 2005 (5) BCLR 423; [2005] ZACC 1): dictum in para [39] applied S v Langa 2010 (2) SACR 289 (KZP): dicta at 295c – 296b S v Moodie 1961 (4) SA 752 (A): compared C S v Naidoo 1962 (4) SA 348 (A): considered S v Seheri en Andere 1964 (1) SA 2......
  • S v Ndlovu
    • South Africa
    • Constitutional Court
    • 15 June 2017
    ...417; [2008] ZASCA 9); Makatu above n9; Legoa above n10; S v WV 2013 (1) SACR 204 (GNP); S v Mahlaba [2016] ZAFSHC 135; and S v Langa 2010 (2) SACR 289 (KZP). [23] See s 73(6)(b) of the Correctional Services Act 111 of 1998, which 'A person who has been sentenced to — . . . (iv) life incarce......
  • Request a trial to view additional results
1 books & journal articles
  • 2012 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...106KKruger v President of the RSA 2009 (1) SA 417 (CC) .......................... 132LLanga v S 2010 (2) SACR 289 (KZP) ................................................... 107, 109Lee v Minister of Correctional Services 2011 (2) SACR 603 (WCC) .... 169-172MM v The State (Centre for Child la......

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