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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE – GRAHAMSTOWN)

Case No: CA&R 59/2010

Date Heard: 25/08/10

Date Delivered: 21/10/10

In the matter between

ANDILE MANYOLO …..........................................................Appellant

and

THE STATE …..................................................................Respondent

APPEAL JUDGMENT

REVELAS J

[1] The appellant was charged in the regional court, Port Elizabeth, with housebreaking with the intention to rape, and rape. On 24 November 2006 he pleaded not guilty, and on 24 November 2009, he was convicted as charged. With leave of the trial magistrate, the appellant appeals against the sentence of 28 years imprisonment imposed upon him on 30 November 2009.

[2] The magistrate, in holding the view that the provisions of Section 51 (1) of the Criminal Law Amendment Act 105 of 1997 (‘the Act’) were applicable, found that there were substantial and compelling circumstances, as envisaged in Section 51 (3) of the Act, which justified a departure of the minimum sentence of life imprisonment, which he would otherwise have been obliged to impose, since the complainant was elderly and disabled.

[3] The appellant was the former lover of the complainant’s daughter. Their relationship ended when, after a violent quarrel, the appellant was arrested by the police and incarcerated. Shortly after his release from custody, the appellant broke into the home of the 78-year old complainant which she shared with her daughter. He broke the security padlock to gain entry. It was about five o’clock in the morning when he entered the bedroom where the complainant was sleeping in her bed. When she was not in her bed, the complainant, who was disabled, was confined to a wheelchair.

[4] She was awake when the appellant entered, having been woken up by the noise made by the appellant when he was hacking away at the padlock to force the door open. She heard him say that “the old lady”, referring to her, was awake and that he was going to kill her because he “was in prison because of her”.

[5] This statement suggests that the appellant’s actions were motivated by revenge and were premeditated. While he raped her, the appellant held a butcher’s knife to the complainant’s neck. Bloodstains on the front of the T-shirt she was wearing indicated that the knife must have caused some injury, although it was not serious.

[6] The magistrate found the following facts to be sufficiently substantial and compelling to justify a departure from the prescribed minimum sentence:

(a) The passage of time between his previous conviction for rape in 1987, and the present one.

(b) The appellant was 52 years old and “an element of mercy” should be shown to the appellant, so that he should not spend the rest of his life in prison.

(c) The complainant did not suffer serious injuries.

(d) The complainant had passed away in the interim, (before judgment). One can assume that the magistrate meant that she no longer had a personal interest in the type of sentence to be imposed on her rapist.

(7) The aggravating features of this rape are obvious. The complainant was a 78-year old invalid and the probabilities indicate that her rape – in the sanctity of her own home -- was a premeditated act of revenge. The circumstances surrounding the rape are those envisaged in Schedule 2, Part 1 of the Act. These facts justify a severe sentence, and the sentence of 28 years imprisonment imposed by the magistrate may well have been appropriate.

(8) This court is, however, obliged to interfere with the sentence imposed by the magistrate because the appellant was never informed in the charge sheet or otherwise that the State intended to prove certain facts that, if proved, and on his conviction, would mean that he would be facing a minimum sentence of life imprisonment in terms of Section 51 of the Act. This failure to warn the accused constitutes an irregularity, sufficiently serious to set aside the sentence and impose a sentence as if the legislation in question is not applicable.

(9) The primary question to be answered is whether the accused had a fair trial. In S v Legoa,¹ which was followed in S v Cunningham,² Cameron JA (as he then was), expressed his reluctance to lay down a general rule that a charge in each case must recite either the specific form of the scheduled offence with which the accused is charged, or the facts the State intends to prove to establish it, and referred to “intolerable complexities” which could be created thereby in the administration of justice. Therefore, the learned judge of appeal then added the qualification that to establish whether the accused’s right to a fair trial, “including his ability to answer the charge” has been impaired, will depend on “a vigilant examination of the relevant circumstances”.³

(10) The charge sheet in this case makes no reference to the application of the legislation in question, and in particular, there is no mention that the State intended to prove certain facts and circumstances as envisaged in Schedule 2, Part 1 of the Act, which would activate the minimum sentence legislation. It was not mentioned when the appellant pleaded either. The first time section 51 of the Act was referred to, was in the magistrate’s judgment on sentence. There is also nothing on the record from which it can be inferred that it was explained to the appellant, by his legal representative, Ms Campbell. These circumstances indicate that the appellant’s right to a fair trial has been impaired and he therefore has to be sentenced as if the Act did not exist.

(11) The sentence imposed by the magistrate therefore falls to be set aside. In terms of the ordinary penal jurisdiction of a regional court, it would be impermissible for a regional magistrate to impose a sentence exceeding fifteen years imprisonment. In my view it is not necessary to remit the matter to the trial court for an appropriate sentence to be considered afresh. The proven facts surrounding the offence are sufficiently serious to warrant the maximum sentence under the regional court’s penal jurisdiction. There can be no question of a lesser sentence. It is a matter of great concern to this Court that an accused who is clearly deserving of a longer prison sentence, should have had his sentence reduced by thirteen years, because of an unnecessary oversight in the process of charging him.

(12) In the result, the appeal against the sentence imposed on the appellant is upheld and it is ordered that:

1. The sentence of 28 years imprisonment is set aside and a sentence of fifteen years is substituted.

2. The sentence is antedated to 24 April 2009.

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E REVELAS

Judge of the High Court

Plasket J: I agree.

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C PLASKET

Judge of the High Court

For the Appellant: Adv MM Xozwa

Instructed by: Justice Centre, Grahamstown

For the Respondent: Adv D Els

Instructed by: Director of Public Prosecutions

Grahamstown

Date Heard: 25 August 2010

Date Delivered: 21 October 2010

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