S v ZW 2015 (2) SACR 483 (ECG)

Indictment and charge — Charge — Putting of charge to accused — Provisions of Criminal Procedure Act peremptory — Prosecutor must put charge to accused, not his legal representative — Criminal Procedure Act 51 of 1977, s 105.

Indictment and charge — Defective charge — Amendment of — Resort to be had to provisions of Criminal Procedure Act as soon as it becomes clear charge defective — Complainant raped repeatedly over period of six years but appellant only charged with two counts of rape — But for irregularities in charge-sheet, accused could have been sentenced to life imprisonment — Prosecutor should have realised at outset charge-sheet defective — Criminal Procedure Act 51 of 1977, s 86.

The appellant was charged in a regional magistrates’ court on two counts of the rape of his daughter who was between the ages of 12 and 16 at the time. The two counts were separated by a period of two years. He was convicted on both counts and was sentenced to life imprisonment. He appealed against the convictions and the sentence imposed. During the course of the trial it became apparent that it was not only on the two occasions that the appellant had raped his daughter but that he had done so repeatedly over a period of six years, continually and practically on a daily basis. It appeared furthermore that the charge had not been put to the accused by the prosecutor, and the magistrate elected to leave the putting of the charges to the appellant’s legal representative.

Held, as regards the putting of the charge to the appellant, that s 105 of the Criminal Procedure Act 51 of 1977 was peremptory not only in respect of the stating of the charges in open court, but also particularly with respect to the party who had the duty to do so, namely the prosecutor who was the official representative of the state, being the accused’s accuser. The magistrate’s failure to intervene to ensure that the charge was properly put to the accused amounted to a misdirection.

Held, further, that resort ought to have been had to the provisions of s 86 of the Criminal Procedure Act as soon as it became clear that the acts of sexual intercourse had been ongoing and frequent for a period of at least six years. Indeed, it ought to have been resorted to at the commencement of the trial, when the charges were being put to the appellant, which was the time that any prudent prosecutor ought to have realised that the charge-sheet was defective in at least three respects: it referred to portions of the minimum sentence legislation which had long since been repealed; it described a scenario which was not consistent with the facts; and it referred to minimum sentence provisions which did not apply to the offences in respect of which the appellant had been charged nor the offences borne out by the evidence.

Held, further, that, but for the problems, irregularities and misdirections, a sentence of life imprisonment would, in the light of the applicable minimum sentence provisions, have been an appropriate sentence. The interests of justice, however, dictated that the sentence imposed could not be permitted to stand in the circumstances. No case had been made out for the existence of substantial or compelling circumstances to dictate why a minimum sentence of 10 years’ imprisonment on each of the rape counts should not be imposed. The sentences were altered accordingly.