S v Mofokeng and Another

• Jurisdiction: South Africa
• Judge: Stegmann J
• Judgment Date: 01 March 1999
• Citation: 1999 (1) SACR 502 (W)
• Hearing Date: 01 March 1999
• Counsel: Ms Cosijn for the accused Ms Van der Colf for the State
• Court: Witwatersrand Local Division

Stegmann J: D

' "Let the jury consider their verdict", the King said, . . . '

"No, No!" said the Queen. "Sentence first - verdict afterwards."

"Stuff and nonsense!" said Alice loudly. "The idea of having the sentence first!" . . .

E "Off with her head!" the Queen shouted at the top of her voice.'

Lewis Carroll, on the trial of the knave of hearts for the alleged theft of a tray of tarts.

The present matter deals with legislation that invokes, not for the first time, the F interesting form of criminal procedure that commended itself to the Queen of Hearts. As the outraged victim of the crime, this royal personage not unnaturally had strong feelings on the subject of how a suspected criminal should be treated in a criminal trial, and also how a member of the public who stood up to her and insisted upon a more logical, and more familiar procedure, should be dealt with by the exercise of State power.

G Mr Marumo Mofokeng and Mr Ezekiel Ntsheno are prisoners of the State. They have been convicted in the regional court for Southern Transvaal, sitting at Kliptown in Soweto, of the crimes of kidnapping and two counts of rape. They have now been brought before this Court, apparently for this Court to go through the H formality of pronouncing a sentence that had actually been imposed by the Legislature long before the regional court had reached its verdict, and indeed, even before the crimes had been committed. The legislation under which they have been brought here is recent. This is the first time that I have been called upon to apply it. I shall therefore set out the steps that it appears to enjoin me to take. There is some uncertainty, in my mind at least, over the way in which this legislation has already been interpreted.

I Mofokeng was the first accused in the trial court. He is now a convicted person. It will be convenient, at this stage, to refer to him as 'the first prisoner'. He did not have the assistance of a legal representative at the trial. However, he was, in the J ordinary way, informed of his right to appoint a legal practitioner of his own choice, or to obtain one through

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the Legal Aid Board or the public defender's office. In this Court he has been A represented by Ms Cosijn.

Ntsheno was the second accused in the trial court, and I shall refer to him as 'the second prisoner'. He, too, defended himself at the trial. In this Court he has also been represented by Ms Cosijn.

Ms Van der Colf has prosecuted on behalf of the State. B

The procedure under ss 51, 52 and 53 of the Criminal LawAmendment Act 105 of 1997:

These sections were brought into operation on 1 May 1998 by Presidential Proclamation R43 of that date. They apply only to crimes committed on or after 1 May 1998. So far as presently relevant, they provide: C

'51(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 - D

(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)

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

(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)

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

(iii)

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

(c)

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

(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; H

Provided that the mximum 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 imposition of a lesser sentence than the I sentence prescribed in those subsections, it shall enter those circumstances on the record of the proceedings and may thereupon impose such lesser sentence.

(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 J

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A commission of the act which constituted the offence in question, it shall enter the reasons for its decision on the record of the proceedings.

(4)

Any sentence contemplated in this subsection shall be calculated from the date of sentence.

(5)

B 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, 1977 (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 commission of the act which constituted the offence in question.

(7)

C 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)

. . . (definition of "law enforcement officer").

52(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)

D a plea of not guilty,

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 E is committed under ss (1)(a) 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, 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 F recorded.

(b)

Unless the High Court in question -

(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,

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

(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 H 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 charge, the Court shall enter a plea of not guilty and proceed with the trial as a summary trial in that Court: Provided that I 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, 1977 (Act 51 of 1977), shall apply with reference to the proceedings under this subsection.

(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

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shall upon proof thereof in the High Court be received by the High Court and form A 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 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 B 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, 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 C 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 give evidence or to produce any D 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...