S v Mabuza and Others

• Jurisdiction: South Africa
• Citation: 2009 (2) SACR 435 (SCA)

S v Mabuza and Others
2009 (2) SACR 435 (SCA)

2009 (2) SACR p435

Citation	2009 (2) SACR 435 (SCA)
Case No	174/2001
Court	Supreme Court of Appeal
Judge	Nugent JA, Cachalia JA and Hurt AJA
Heard	August 22, 2007
Judgment	September 20, 2007
Counsel	L Theron for the appellants, instructed by the Legal Aid Board, Johannesburg and Bloemfontein.; S van der Wath for the State.

Flynote : Sleutelwoorde

Trial — The accused — Rights of — Requirement that accused be informed of B his/her rights — Trial might be unfair if accused not informed of rights — Failure to record fact that accused was so informed, verbatim or otherwise, not by itself rendering trial unfair.

Sentence — Prescribed sentence — Minimum sentences — Imposition of in C terms of Criminal Law Amendment Act 105 of 1997 — 'Substantial and compelling circumstances' — Youthfulness — Legislature intending that, in respect of juveniles who have attained age of 18, youthfulness no longer per se a mitigating factor — Although no longer per se a substantial and compelling factor, it often might well be so, particularly when other factors present — Must be taken into account when discharging sentencing function, D especially when considering life imprisonment — Youthful offenders not to be denied human dignity of being considered capable of redemption.

Headnote : Kopnota

While the trial of an unrepresented accused might be unfair if he or she is not properly informed of rights that are relevant, it does not follow that the E failure to record the fact that he or she was so informed (verbatim or otherwise) equally renders the trial unfair. On the contrary, the failure to record what was told to the accused does not impact upon the fairness of the trial and cannot by itself render the trial unfair. (Paragraph [11] at 440e–f.)

In requiring a sentencing court to depart from the prescribed sentence in respect F of offenders who have attained the age of 18 only if substantial and compelling circumstances, as envisaged in s 51(3)(a) of the Criminal Law Amendment Act 105 of 1997, justify this departure, the legislature has clearly intended that youthfulness no longer be regarded as per se a mitigating factor. So while youthfulness is, in the case of juveniles who have attained the age of 18, no longer per se a substantial and compelling factor G justifying a departure from the prescribed sentence, it often will be, particularly when other factors are present. A court cannot, therefore, lawfully discharge its sentencing function by disregarding the youthfulness of an offender in deciding on an appropriate sentence, especially when imposing a sentence of life imprisonment, for in doing so it would deny the youthful offender the human dignity to be considered capable of redemption. H (Paragraph [23] at 443f–444a.)

Annotations:

Cases cited

Reported cases

Hlantlalala and Others v Dyantyi NO and Another 1999 (2) SACR 541 (SCA) ([1999] 4 All SA 472): dictum in paras [8] - [10] compared I

S v Lehnberg en 'n Ander 1975 (4) SA 553 (A): considered

S v Mabaso and Another 1990 (3) SA 185 (A): dictum at 203C - G applied

S v Mahomotsa 2002 (2) SACR 435 (SCA) ([2002] 3 All SA 534): dictum in para [10] applied

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220): applied J

2009 (2) SACR p436

S v Mofokeng and Another 1999 (1) SACR 502 (W): not followed A

S v Ndlovu 2003 (1) SACR 331 (SCA) ([2003] 1 All SA 66): dictum in para [12] applied

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

S v Nkomo 2007 (2) SACR 198 (SCA): dictum in para [3] applied

S v Radebe; S v Mbonani 1988 (1) SA 191 (T): approved and applied

S v Sibiya 2004 (2) SACR 82 (W): not approved B

S v Sikhipha 2006 (2) SACR 439 (SCA): dictum in para [10] applied

S v Williams and Others 1995 (2) SACR 251 (CC) (1995 (3) SA 632; 1995 (7) BCLR 861): considered

S v Z en Vier Ander Sake 1999 (1) SACR 427 (E): dictum at 430E - I considered.

Unreported cases

S v Thompson (WLD case No A538/2003): not approved. C

Legislation cited

Statutes

D The Criminal Law Amendment Act 105 of 1997, s 51(3)(a): see Juta's Statutes of South Africa 2008/9 vol 1 at 2-539.

Case Information

Appeal from convictions and sentences in the Witwatersrand Local Division (Goldstein J). The facts appear from the reasons for judgment.

L Theron for the appellants, instructed by the Legal Aid Board, Johannesburg and Bloemfontein. E

S van der Wath for the State.

Cur adv vult.

Postea (September 20). F

Judgment

Cachalia JA:

[1] The three appellants were arrested on 19 August 1998. They faced G two charges in the regional division of Southern Transvaal. The first was robbery of the following items of property from Ms M: a television, a 'hi-fi' set, a pair of shoes, an engine-pump, three watches and R1800 in cash. The combined value of the cash and property was R6859. The second charge was that they had each raped M's minor daughter, S. The H appellants pleaded not guilty and elected to conduct their own defences. After hearing evidence the magistrate convicted them on both counts.

[2] The appellants' convictions made them liable for punishment under s 51 of the Criminal Law Amendment Act 105 of 1997 (the Act). In relation to their convictions for robbery, their conduct fell within s 51(2) I read with Part II of Schedule 2, which prescribes a minimum sentence of 15 years' imprisonment. Their rape convictions placed them under s 51(1)(a) read with several paragraphs of Part I of Schedule 2. This included paras (a)(i) and (a)(ii) because each appellant had raped S. (In the case of appellant No 1 the evidence showed that he had raped her J twice.) Their conduct also fell within para (b)(i) as she was 15 at the

2009 (2) SACR p437

Cachalia JA

time. [1] Because a sentence of life imprisonment is the prescribed sentence A on this charge, the magistrate transferred the case to the Johannesburg High Court for sentencing in accordance with s 52 of the Act.

[3] When the matter came before Goldstein J in the High Court, the appellants accepted legal representation from the Legal Aid Board. Probation officers were appointed to compile pre-sentencing reports on B their behalf. The High Court was, however, unable to find any substantial and compelling circumstances, as envisaged in s 51(3)(a) of the Act, to justify the imposition of sentences lighter than the prescribed minimum. It therefore imposed, on each appellant, the prescribed sentence both for robbery and for rape. This appeal, against conviction and sentence, is with leave of the High Court. C

[4] The factual findings upon which the magistrate based the appellants' convictions, which the High Court accepted, are not in issue in this appeal. Their complaint, made for the first time in this court, is that the absence of a verbatim recording of the pre-trial proceedings indicating D that the learned magistrate had explicitly alerted them to the Act's severe penalties, particularly to the threat of life imprisonment on the rape charge, or any indication that they had properly understood this when electing to conduct their own defence, vitiates the proceedings. For this contention they find support in two judgments of the Johannesburg High Court, S v Thompson [2] and S v Sibiya. [3] E

[5] It is necessary to deal with Thompson in some detail. The accused faced a charged of aggravated robbery. The charge-sheet set out the charge as 'robbery with aggravating circumstances as intended in s 1 of Act 51 of 1977 and read with the provisions of s 51(2)(a) of the Criminal F Law Amendment Act 105 of 1997'. At an initial appearance before the trial's commencement the magistrate had recorded the following:

'Accused informed of gravity of charges and coupled to minimum G

2009 (2) SACR p438

Cachalia JA

A sentences. Rights to legal representation explained. Prefers to conduct own defence.'

In his judgment dealing with the conviction the magistrate explained more fully that:

'The accused was informed of his rights regarding legal representation B on the 18th of October . . . by my colleague Mr Brink. The accused elected to conduct his own defence. Again on the 8th of November . . . (I) explained to the accused the gravity of the charges against him, and the possibility of a minimum sentence that could be imposed should he be convicted. Thereafter the court again explained the rights of the accused to legal representation. Again the accused insisted on conducting C his own defence.'

[6] After convicting the accused the magistrate said the following to him:

'As I have explained to you before . . . the court has to apply a minimum sentence. You however may escape the minimum sentence should you D be able to do the following. The court is compelled to impose a minimum sentence of at least 15 years unless there are substantial and compelling circumstances to impose a lesser sentence, and, sir, unfortunately, the onus is on you to bring those compelling and substantial circumstances to the attention of the court. You now have slightly more than a month and I would urge you to use the time available . . . to get E these substantial and compelling circumstances to the fore and be able to present them on the day of sentence. Do you understand this? Also bear in mind, even if you cannot think of such circumstances, sir, that 15 years is the minimum. It could be as high as 30, depending on your previous convictions. So in other words, sir, it is of paramount importance that you apply your mind to this. It may assist you.'

F In response to this explanation the record indicates that the accused responded simply by saying: 'I understand.'

[7] When the trial resumed for the purposes of sentencing, the magistrate again carefully explained to the accused what the import of the minimum sentence legislation...