S v Ntsheno; S v Dlamini; S v R

JurisdictionSouth Africa
Citation2010 (1) SACR 295 (GSJ)

S v Ntsheno;
S v Dlamini;
S v R
2010 (1) SACR 295 (GSJ)

2010 (1) SACR p295


Citation

2010 (1) SACR 295 (GSJ)

Case No

A181/2009, A182/2009 and A180/2009

Court

South Gauteng High Court, Johannesburg

Judge

Willis J, Makhanya J and Makgoka J

Heard

August 11-12, 2009; August 13, 2009

Judgment

September 8, 2009

Counsel

M Motaung (attorney) for the appellant in S v Ntsheno.
N Naidoo for the State.
J Penton (attorney) for the appellant in S v Dlamini.)
XT Zitha for the State.
M Motaung (attorney) for the appellant in S v R
ML Gcaba for the State.

Flynote : Sleutelwoorde

Sentence — Prescribed sentences — Minimum sentences — Imposition of in terms of Criminal Law Amendment Act 105 of 1997 — 'Substantial and compelling circumstances' — All factors traditionally taken into account in sentencing, or all 'everyday' factors, to be taken into account in deciding whether court can depart from prescribed minimum sentence. J

2010 (1) SACR p296

Headnote : Kopnota

A In determining whether, in terms of s 51 of the Criminal Law Amendment Act 105 of 1997, 'substantial and compelling' circumstances, justifying a sentence less than the prescribed minimum sentence provided for in that Act for a particular offence, are present, all factors traditionally taken into account in sentencing, or what has sometimes been described as 'everyday' factors, should be taken into account. It is not incorrect, as a matter of law, B to have regard to such 'everyday' factors in deciding whether one could depart from the minimum sentence. The Supreme Court of Appeal has emphasised that they continue to play a role. (At 300h–301b.)

S v Mofokeng and Another 1999 (1) SACR 502 (W) overruled and sentence varied on appeal.

Annotations:

Cases cited

Reported cases

Centre for Child Law v Minister of Justice and Constitutional Development and Others (National Institute for Crime Prevention and the Re-integration of Offenders, as Amicus Curiae) 2009 (2) SACR 477 (CC) (2009 (6) SA 632): dicta in paras [40], [111], [112] and [121] applied C

Mine Workers' Union v Brodrick 1948 (4) SA 959 (A): dictum at 970 applied D

R v Dhlumayo and Another 1948 (2) SA 677 (A): applied

R v Kuzwayo 1949 (3) SA 761 (A): dictum at 765 applied

R v Mlambo 1960 (2) SA 55 (W): applied

R v Taylor 1949 (4) SA 702 (A): dictum at 716 applied

S v Chapman 1997 (2) SACR 3 (SCA) (1997 (3) SA 341; [1997] 3 All SA E 277): dictum at 5b applied

S v Egglestone 2009 (1) SACR 244 (SCA) ([2008] 4 All SA 207): distinguished

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

S v Machasa en Andere 1991 (2) SACR 308 (A): applied

S v Mahomotsa 2002 (2) SACR 435 (SCA) ([2002] 3 All SA 534): F compared and applied

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220): dictum in para [25] applied

S v Mofokeng and Another 1999 (1) SACR 502 (W): overruled and sentence varied on appeal

S v Molale 1973 (4) SA 725 (O): dictum at 726D - E applied

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

S v Pieters 1987 (3) SA 717 (A): referred to

S v V 1972 (3) SA 611 (A): dictum at 614H applied

S v Van Rooi en Andere 1976 (2) SA 580 (A): dictum at 584G - H applied

S v Vilakazi 2009 (1) SACR 552 (SCA) ([2008] 4 All SA 396): compared and distinguished.

Legislation cited

Statutes

H The Criminal Law Amendment Act 105 of 1997, s 51: see Juta's Statutes of South Africa 2008/9 vol 1 at 2-538.

Case Information

Appeals from sentences imposed in the South Gauteng High Court I (Stegmann J, Snyders J and Satchwell J). The facts appear from the judgments on appeal.

M Motaung (attorney) for the appellant in S v Ntsheno.

N Naidoo for the State.

J Penton (attorney) for the appellant in S v Dlamini.

XT Zitha for the State. J

2010 (1) SACR p297

M Motaung (attorney) for the appellant in S v R. A

ML Gcaba for the State.

Cur adv vult.

Postea (September 8). B

Judgment

Willis J:

[1] During the week commencing 11 August 2009 Makhanya, Makgoka JJ and I sat as a full court in the South Gauteng High Court to consider three separate criminal appeals in matters which, in each instance, were C decided by a single judge of this division. These appeals are commonly known as 'full bench appeals'. Each of these appeals has turned on the same legal principle: the correct interpretation relating to the making of an appropriate finding that 'substantial and compelling circumstances' exist, such as to justify the imposition of less than the prescribed minimum sentence in terms of the Criminal Law Amendment Act 105 D of 1997 (the Criminal Law Amendment Act) - more especially when the accused is still relatively youthful but not a juvenile [1] - and, consequent upon the finding that there were indeed such circumstances, the imposition of a just sentence. Makhanya J has written the judgment in the case of S v Dlamini (case No A182/2009), Makgoka J in the case of S v R (case No A180/2009) and I in the case of S v Ntsheno E (case No A181/2009). We have, in each instance, been unanimous in our decision that we should interfere with the sentence imposed by the relevant judge. We have been much influenced by the recent judgment of the Constitutional Court in the case of Centre for Child Law v Minister of Justice and Constitutional Development and Others (CCT 98/08; [2009] F ZACC 18). [*] As far as we are aware, the judgments of this court are the first full bench appeals in this division, concerning the issue of finding that 'substantial and compelling circumstances' exist, such as to justify the imposition of less than the prescribed minimum sentence in terms of the Criminal Law Amendment Act, since the Centre for Child Law case. G Accordingly, we consider that our judgments are, collectively, 'reportable': they may be of considerable practical importance. By reason of the fact that each case was argued separately and on a different day of the week, we have considered it proper that a separate judgment should be delivered in each instance. Nevertheless, we have, unavoidably, considered these cases together. Each of us has, in preparing his written H judgment, inevitably referred to the judgments of the others with

2010 (1) SACR p298

Willis J

A approval. Accordingly, we consider it appropriate to deliver our judgments in a format that reflects the fact that, although we have prepared three separate judgments, they are, for practical purposes, almost to be read as a single judgment dealing with the three separate cases argued together. In certain respects these three judgments, collectively, may be B considered to constitute a trilogy.

S v Ntsheno

[2] I shall now deal specifically with the case of S v Ntsheno. The appellant appeals against sentence only. He was convicted in the Soweto C regional magistrates' court on 9 October 1998 on two counts of rape and one count of kidnapping. The matter was referred to the High Court for sentencing in terms of ss 51, 52 and 53 of the Criminal Law Amendment Act 105 of 1997 which came into operation on 1 May 1998 in terms of Presidential Proclamation R43 of 1 May 1998. The crimes were D committed on 9 August 1998.

[3] The matter came before Stegmann J. He referred the matter of the sentence in respect of the count of kidnapping back to the regional court. It would seem that the learned magistrate imposed a sentence of two E years on that count. The sentence was imposed on 1 March 1999.

[4] The appellant was the second accused in the trial. His co-accused was Marumo Mofokeng. Stegmann J confirmed the convictions of both accused and sentenced both accused to life imprisonment, taking the two counts of rape as one for purposes of sentence. The judgment of F Stegmann J in regard to sentence for rape is reported as S v Mofokeng and Another 1999 (1) SACR 502 (W). It is well known: perhaps because it begins with the famous quote from Lewis Carroll's Alice in Wonderland in which the Queen says 'Sentence first - verdict afterwards', and then proceeds to pronounce 'Off with her head' [2] as the sentence for Alice. G Stegmann J seems to have disapproved of the procedure for sentencing in terms of the Criminal Law Amendment Act, but considered himself duty bound to apply it. [3] Stegmann J found that there were no 'substantial and compelling' circumstances present, such as to justify less than the prescribed minimum sentence of life imprisonment in terms of the Criminal Law Amendment Act (the complainant had been raped more H than once and by more than one person, as provided for in Part I of Schedule 2 of the Criminal Law Amendment Act).

2010 (1) SACR p299

Willis J

[5][*1] Having reached the requisite age in terms of his years of service on A the bench, Stegmann J has since been discharged from active service. [4] The application for leave to appeal came before Mathopo J on 28 August 2007 in the absence of Stegmann J. The application was in respect of sentence only. Mathopo J granted leave. This is the reason that the matter is now before this court.

[6] There can be no question that the crime was serious indeed: the B complainant was gang-raped by five or six youths.

[7] The appellant was 20 years old at the time. He was under the influence of alcohol. He was a first offender. He had been in custody for seven months prior to being sentenced. Counsel for the appellant, both C when the matter came before Stegmann J and in this court, submitted that the facts that no dangerous weapon was used, that there had been no serious physical injury of the complainant and that there had been no serious psychological trauma on the part of the complainant, were factors that should also be taken into account.

[8] The question of correct sentencing in matters such as this is vexing D indeed. In S v Mahomotsa 2002 (2) SACR 435 (SCA) ([2002] 3 All SA 534) the Supreme Court of...

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4 practice notes
  • S v Mthetwa and Others
    • South Africa
    • Invalid date
    ...2012 (1) SACR 431 (SCA) ([2011] ZASCA 166): referred to S v Ndlovu 2007 (1) SACR 535 (SCA): compared S v Ntsheno; S v Dlamini; S v R 2010 (1) SACR 295 (GSJ): referred to E S v Pillay 1977 (4) SA 531 (A): S v Swart 2004 (2) SACR 370 (SCA): referred to S v Whitehead 1970 (4) SA 424 (A): refer......
  • S v Chauke and Another
    • South Africa
    • Invalid date
    ...SACR 331 (SCA) (2005 (10) BCLR 944; [2005] 4 All SA 334) at 341i - 342a, although in a slightly J different context, the court said: 2010 (1) SACR p295 Moshidi 'Judicial officers are not umpires. Their role is to ensure that the parties' A cases are presented fully and fairly, and that the ......
  • S v Mthethwa
    • South Africa
    • Gauteng Division, Pretoria
    • 5 November 2014
    ...of the offence, the personal circumstances of the accused, and the interests of society. See also S v Ntsheno; S v Dlamini & S v R 2010 (1) SACR 295 (GSJ). Malgas received the imprimatur of 2014 JDR 1237 p6 Makgoka J Constitutional Court in S v Dodo 2001 (1) SACR 594 (CC), which described i......
  • S v Rakgwhahla
    • South Africa
    • North Gauteng High Court, Pretoria
    • 17 May 2012
    ...view is S v Vilakazi 2009 (1) SACR 552 (SCA) [2008] ALL SA 396. As an example of the latter view, S v Ntsele, S v Dlamini, S v R 2010 (1) SACR 295 (GSJ) comes to 41. In the Vilakazi case, Stegmann J put it as follows in support of the first point of view above :- "...the absence of previous......
4 cases
  • S v Mthetwa and Others
    • South Africa
    • Invalid date
    ...2012 (1) SACR 431 (SCA) ([2011] ZASCA 166): referred to S v Ndlovu 2007 (1) SACR 535 (SCA): compared S v Ntsheno; S v Dlamini; S v R 2010 (1) SACR 295 (GSJ): referred to E S v Pillay 1977 (4) SA 531 (A): S v Swart 2004 (2) SACR 370 (SCA): referred to S v Whitehead 1970 (4) SA 424 (A): refer......
  • S v Chauke and Another
    • South Africa
    • Invalid date
    ...SACR 331 (SCA) (2005 (10) BCLR 944; [2005] 4 All SA 334) at 341i - 342a, although in a slightly J different context, the court said: 2010 (1) SACR p295 Moshidi 'Judicial officers are not umpires. Their role is to ensure that the parties' A cases are presented fully and fairly, and that the ......
  • S v Mthethwa
    • South Africa
    • Gauteng Division, Pretoria
    • 5 November 2014
    ...of the offence, the personal circumstances of the accused, and the interests of society. See also S v Ntsheno; S v Dlamini & S v R 2010 (1) SACR 295 (GSJ). Malgas received the imprimatur of 2014 JDR 1237 p6 Makgoka J Constitutional Court in S v Dodo 2001 (1) SACR 594 (CC), which described i......
  • S v Rakgwhahla
    • South Africa
    • North Gauteng High Court, Pretoria
    • 17 May 2012
    ...view is S v Vilakazi 2009 (1) SACR 552 (SCA) [2008] ALL SA 396. As an example of the latter view, S v Ntsele, S v Dlamini, S v R 2010 (1) SACR 295 (GSJ) comes to 41. In the Vilakazi case, Stegmann J put it as follows in support of the first point of view above :- "...the absence of previous......

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