S v MAKATU 2014 (2) SACR 539 (SCA)

Sentence — Prescribed sentences — Minimum sentence — Imposition of in terms of Criminal Law Amendment Act 105 of 1997 — Indictment — Indictment made no mention of part I of sch 2 to CLAA, nor did it indicate whether there were any aggravating features which would bring charge within ambit of minimum sentencing regime — Charge defective — Sentence of life imprisonment set aside.


The appellant was convicted in the high court, of murder, rape and theft, and sentenced to life imprisonment for the murder, to 20 years’ imprisonment for the rape, and to six months’ imprisonment for the theft. He appealed against the convictions and sentences. The court dismissed the appeal against the convictions. It appeared that, as to the murder count the indictment made no mention of part I of sch 2 to the Criminal Law Amendment Act 105 of 1997. Nor did it indicate whether there were any aggravating features which would bring the charge within the ambit of the minimum sentencing regime.

Held, that the deficiencies in the charge and the fact that no evidence had been led to bring the murder within the purview of the section, together with the fact that no mention had been made of the applicable section, except in a cursory manner during the sentencing stage, led to the ineluctable conclusion that the sentence of life imprisonment had been wrongly imposed.

Held, further, that the description in the indictment of the rape as falling under F s 51(1)(a) of the Criminal Law Amendment Act could not be correct as there was no such section. The only part of the Act that might be relevant was s 51(2)(b) which referred to part III of the schedule which prescribed a sentence of not less than 10 years’ imprisonment for a first offender unless there were substantial and compelling circumstances to justify a lesser sentence as contemplated in s 51(3) of the Act. The disparity between 10 and 20 years was stark but even more disturbing was the fact that the record was silent regarding any facts or circumstances which justified such a drastic departure from the threshold, being a minimum of 10 years, to 20 years. There was no justification for such a huge disparity and this was yet another misdirection by the trial court.

Held, further, that a sentence of 20 years’ imprisonment on the count of murder would serve the purposes of punishment and a sentence of imprisonment for 10 years on the rape count would be appropriate. Appeal upheld.