S v TSHOGA 2017 (1) SACR 420 (SCA)
Rape — Sentence — Life imprisonment — Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997 — Appellant not informed of possibility of life imprisonment — Charge-sheet stating that appellant raped 10-year-old girl without mentioning applicability of Act — Legally represented appellant not raising prejudice in five separate proceedings — No prejudice suffered and sentence of life imprisonment upheld.
The appellant was convicted in a magistrates’ court of raping a young girl. The charge-sheet stated merely that he had raped the 10-year-old complainant, no mention being made of the provisions of the Criminal Law Amendment Act 105 of 1997 (the Act). After conviction, the magistrate, without any input from the prosecutor or the appellant’s legal representative, transferred the matter to the High Court on the basis that the sentence to be imposed exceeded the magistrates’ court jurisdiction. The High Court imposed a sentence of life imprisonment in terms of s 51(3) of the Act after finding that there were no compelling or substantial circumstances justifying a lighter term. An appeal against this sentence was dismissed by the full court. In the present appeal the point was raised for the first time that the failure by the state to mention in the charge-sheet that the provisions of the Act were applicable, and that the appellant faced a potential sentence of life imprisonment, rendered his trial unfair.
The majority of the court (per Schoeman AJA, Dambuza JA and Nicholls AJA concurring) held that the appellant had had opportunities in five separate proceedings to raise the complaint of possible prejudice, but had failed to do so. He had not been ambushed, as the charge-sheet set out that he was charged with the rape of a 10-year-old girl, which brought the offence within the ambit of s 51(1) of the Act. He had effective legal representation throughout the trial and his counsel could not point to any prejudice he had suffered due to the failure to mention the statutory provisions in the charge-sheet (Paragraphs – at 428g–429d.) Appeal dismissed.
Bosielo JA, Tshiqi JA concurring, disagreed with the majority and found that it would be grossly unfair to an accused person not to be told at all, either through the charge-sheet or during pre-proceedings or at the trial, of the applicability of the minimum-sentence legislation. To inform him about such a patently serious matter at the end of a trial, as happened in the instant case, defeated the very purpose envisaged by s 35(3) of the Constitution. Such was a trial by ambush, which was neither desirable nor permissible in a constitutional democracy underpinned by a Bill of Rights. In terms of the charge-sheet to which the appellant pleaded, he was due to be sentenced to imprisonment not exceeding 10 years, but was sentenced to life imprisonment. This was undoubtedly offensive to any notion of fairness and justice and in such circumstances caused him grave prejudice.
A sentence of 10 years’ imprisonment, the maximum permissible in terms of s 9 of the Magistrates’ Courts Act 32 of 1944, would have been imposed.