S v Shiburi

JurisdictionSouth Africa
JudgeShongwe ADP, Saldulker JA, Pillay AJA, Makgoka AJA and Hughes AJA
Judgment Date29 August 2018
Citation2018 (2) SACR 485 (SCA)
Docket Number205/2017 [2018] ZASCA 107
Hearing Date29 May 2018
CounselSO Ravele for the appellant. TE Mabape for the state.
CourtSupreme Court of Appeal

Makgoka AJA (Shongwe ADP, Saldulker JA and Hughes AJA concurring):

[1] This appeal concerns, in the main, the proper application of s 112 of the Criminal Procedure Act 51 of 1977 (the CPA). The ancillary issue is G whether the evidence was sufficient to sustain a charge of rape. These arise against the following factual background. On 19 August 2005, midday, a young woman aged 18 and a 15-year-old girl were accosted by two men who subsequently raped them in the nearby bush. Later those men swopped places with their victims, and raped the one who had earlier been raped by the other. On 23 February 2006, a young woman, H 18 years of age, was allegedly raped.

In the regional court

[2] The appellant was subsequently arrested and charged with three I counts of rape, following the above complaints. Counts 1 and 2 were in respect of the rapes of the two girls on 19 August 2005, while count 3 concerned the rape which allegedly occurred on 23 February 2006. All three counts were stated to be 'read with the provisions of section 51 and schedule 2 of the Criminal Law Amendment Act 105 of 1997, as amended'. J

Makgoka AJA (Shongwe ADP, Saldulker JA and Hughes AJA concurring)

[3] A The appellant, who was not legally represented, appeared in the regional court, Ritavi. He pleaded guilty to all three counts. The regional magistrate proceeded to question him in terms of s 112(1)(b) of the CPA to satisfy herself that the appellant admitted all the elements of the offences. In respect of counts 1 and 2 the appellant explained that on B 19 August 2005, the day of the incident, he was in the company of one Walter Ngobeni when they came across the complainants. Ngobeni produced a knife and told him that he was going to grab one of the complainants, and told him to also grab the other. He obliged, and both grabbed the two complainants and dragged them to a nearby bush. Ngobeni instructed him to rape the one complainant, which he did, C whilst he, Ngobeni, raped the other. Thereafter they swopped — the appellant raped the complainant who had just been raped by Ngobeni, while the latter raped the one just raped by the appellant.

[4] The appellant explained to the court that he was afraid that Ngobeni, who was older than he and wielding a knife, would harm him if he did D not commit the rapes as directed by him. Thus, the gravamen of the appellant's explanation was that he was compelled by fear to rape the complainants. At the end of the questioning in terms of s 112(1)(b) of the CPA, the regional magistrate enquired of the prosecutor whether the state accepted the appellant's plea of guilty on each of counts 1 and 2, to E which the prosecutor answered in the affirmative. The court convicted the appellant of both counts. In respect of count 3, the court was not satisfied that the appellant admitted all the elements of the offence, and, in terms of s 113 of the CPA, altered the appellant's plea of guilty to one of not guilty. Evidence was led on this count, after which the appellant was also convicted on count 3. He was sentenced to 15 years' imprisonment F for counts 1 and 3 each, and imprisonment for life on count 2.

In the High Court

[5] After he was sentenced, the appellant, who was then legally represented, appealed against the convictions on all counts and the resultant G sentences. The appeal came before a full bench of the Limpopo Division of the High Court, Polokwane (the High Court). The appellant attacked the convictions on counts 1 and 2 on the basis that the questioning by the regional magistrate revealed a defence of compulsion. In respect of count 3, the appellant contended that the evidence was insufficient to sustain a conviction. The High Court rejected all these contentions and H dismissed the appeal against the convictions.

[6] With regard to the sentences, the High Court found that the age of the complainant in count 2 (who had been stated in the charge-sheet to have been 15 years old) had not been proven in the regional court. The importance of the complainant's age is that if she was under the age I of 16 years, life imprisonment is the prescribed minimum sentence in terms of s 51(1) of the Criminal Law Amendment Act 105 of 1997 (the CLAA). This is so, unless substantial and compelling circumstances are established. It should be borne in mind that the regional court had imposed life imprisonment in respect of count 2. This was ostensibly on J the basis that the complainant was under the age of 16.

Makgoka AJA (Shongwe ADP, Saldulker JA and Hughes AJA concurring)

[7] Despite finding that the age of the complainant in count 2 had not A been proven, the High Court concluded that the sentence of life imprisonment should stand. It based its reasoning on s 51(1) of the CLAA, which provides that where a victim is raped more than once by two people, the prescribed minimum sentence is life imprisonment. As the complainants were raped by the appellant and Ngobeni in the circumstances envisaged in the section, so concluded the High Court, life B imprisonment was the appropriate sentence. It therefore dismissed the appellant's appeal against sentence.

In this court

[8] The appellant's appeal is before us with the special leave of this court. C Three key submissions were advanced on behalf of the appellant in this court. First, that the court failed to encourage the appellant to exercise his right to legal representation, in the light of the seriousness of the charges he faced. Second, that the explanation by the appellant during the questioning in terms of s 112(1)(b) raised a defence of compulsion, D and the court should therefore have altered the plea of guilty to one of not guilty in terms of s 113 of the CPA. Third, that the appellant's right to a fair trial was infringed. This, so was the submission, was because the appellant was sentenced in terms of s 51(1) of the CLAA (life imprisonment) whereas this had not been specifically mentioned in the charge-sheet. It was submitted that under the circumstances, the regional court E lacked the necessary jurisdiction to sentence the appellant to life imprisonment. I deal with these submissions in turn.

Legal representation

[9] At his first appearance in the regional court on 3 March 2010, the F appellant's right to legal representation was explained by the regional magistrate. He elected to apply for Legal Aid representation. Indeed, on his second appearance, he was represented by an attorney from Legal Aid South Africa. The matter was remanded for several occasions while the appellant continued to be represented. The trial date was set for G 15 October 2010. On that occasion the appellant's attorney was present at court, but, due to ill health, could not proceed with the trial. The appellant indicated to the court that he wished to proceed with the trial, and would conduct his own defence. The attorney sought, and was granted, leave to withdraw as the appellant's attorney. Before he pleaded to the charges, the court enquired of the appellant whether he persisted H with conducting his own defence, which he confirmed.

[10] In the heads of argument on behalf of the appellant the contention was that under these circumstances, the court was enjoined to explain to the appellant the consequences of not having legal representation 'by I making sure he clearly understood the danger of conducting own defence'. It was further submitted that the court should have encouraged the appellant to seek legal representation, and enquired of him the reason he did not. Failure to encourage the appellant to seek legal representation resulted in the appellant not receiving a fair trial, and has thus suffered prejudice resulting in a miscarriage of justice, so argued on J

Makgoka AJA (Shongwe ADP, Saldulker JA and Hughes AJA concurring)

behalf A of the appellant. Reliance was placed in this regard on S v Sikhipha 2006 (2) SACR 439 (SCA) (Sikhipha).

[11] In considering this argument, the peculiar facts of the present case must be borne in mind. They differ from those in Sikhipha, where the accused never enjoyed legal representation at all. As stated earlier, B the appellant initially exercised his right to legal representation, after the court had explained to him the right. It is therefore untenable to suggest that he was not aware of his right in this regard. The passage in Sikhipha upon which reliance was placed, is in para 10, where the following remarks were made:

'It C should be said, however, that where an accused is faced with a charge as serious as that of rape, and especially where he faces a sentence of life imprisonment, he should not only be advised of his right to a legal representative but should also be encouraged to employ one and to seek legal aid where necessary. It is not desirable for the trial court in such cases merely to apprise an accused of his rights and to record this in D notes: the court should, at the outset of the trial, ensure that the accused is fully informed of his rights and that he understands them, and should encourage the accused to appoint a legal representative, explaining that legal aid is available to an indigent accused.'

[12] This paragraph must be read in its context. Importantly, Sikhipha E concerned an unrepresented accused who never had legal representation at any stage of the proceedings in the trial court. He had elected to conduct his own defence from the outset, unlike the appellant who had initially been legally represented. The complaint in Sikhipha was that the right to legal representation was not explained to the appellant properly. In para 9, Lewis JA had rejected that complaint on the basis that the F record revealed that the rights to legal representation and legal aid had been explained to him, and he elected to conduct his own defence.

[13] It must be emphasised that the application of the rule...

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2 practice notes
  • An introduction to proof in South Africa
    • South Africa
    • Juta South African Law Journal No. , December 2022
    • December 12, 2022
    ...SACR 543 (SCA) para 21; S v Van Devent er 2011 (1) SACR 238 (SCA) para 8; S v S hilakwe 2012 (1) SACR 16 (SCA) para 11; S v Shiburi 2018 (2) SACR 485 (SCA) para 30; S v Oosthuizen 2020 (1) SACR 561 (SCA) para 20; S v Doorewaard 2 021 (1) SACR 235 (SCA) para 133; S v Machi [2021] ZASCA 106 p......
  • S v Botes
    • South Africa
    • KwaZulu-Natal Division, Pietermaritzburg
    • September 11, 2020
    ...and to whether the evidence adduced has led justifiably to the conviction and sentence.' These views were repeated in S v Shiburi 2018 (2) SACR 485 (SCA) para 13 where the court '[13] It must be emphasised that the application of the rule regarding legal representation is context-sensitive.......
1 cases
  • S v Botes
    • South Africa
    • KwaZulu-Natal Division, Pietermaritzburg
    • September 11, 2020
    ...and to whether the evidence adduced has led justifiably to the conviction and sentence.' These views were repeated in S v Shiburi 2018 (2) SACR 485 (SCA) para 13 where the court '[13] It must be emphasised that the application of the rule regarding legal representation is context-sensitive.......
1 books & journal articles
  • An introduction to proof in South Africa
    • South Africa
    • Juta South African Law Journal No. , December 2022
    • December 12, 2022
    ...SACR 543 (SCA) para 21; S v Van Devent er 2011 (1) SACR 238 (SCA) para 8; S v S hilakwe 2012 (1) SACR 16 (SCA) para 11; S v Shiburi 2018 (2) SACR 485 (SCA) para 30; S v Oosthuizen 2020 (1) SACR 561 (SCA) para 20; S v Doorewaard 2 021 (1) SACR 235 (SCA) para 133; S v Machi [2021] ZASCA 106 p......

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