THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No:  174/01
REPORTABLE
In the matter between:

ZITHA MABUZA                                                      FIRST APPELLANT
PHILLIP SIMONGO                                            SECOND APPELLANT
OUPA SITHOLE                                                      THIRD APPELLANT

v

THE STATE                                                                         RESPONDENT

Coram:	Nugent, Cachalia JJA et Hurt AJA

Heard:	22 August 2007

Delivered:	20 September 2007

Summary:	It is not a prerequisite for a fair trial that there is a verbatim recording of the magistrate’s explanation of the rights of unrepresented accused and the response of the accused. Sentence of life imprisonment imposed for rape of 15 year old complainant and 15 years’ imprisonment for robbery. Under the Criminal Law Amendment Act 105 of 1997 youthfulness remains a weighty mitigating factor in determining whether substantial and compelling circumstances exist. Sentences set aside and effective sentence of 16 years’ imprisonment imposed.

Neutral citation:	This judgment may be referred to as Mabuza v The State [2007] SCA 110 (RSA)

JUDGMENT

CACHALIA JA
[1]	The three appellants were arrested on 19 August 1998. They faced two charges in the Regional Division of Southern-Transvaal. The first was robbery of the following items of property from Ms Joyce Mazibuko: a television, a ‘hifi’ set, a pair of shoes, an engine-pump, three watches and R1 800 in cash. The combined value of the cash and property was R6 859. The second charge was that they had each raped Mazibuko’s minor daughter, Sibindile Nkuna. The appellants pleaded not guilty and elected to conduct their own defences. After hearing evidence the magistrate convicted them on both counts. 

[2]	The appellants’ convictions made them liable for punishment under s 51 of the Criminal Law Amendment Act 105 of 1997 (the Act). In relation to their convictions for robbery, their conduct fell within s 51(2) read with Part II of Schedule 2, which prescribes a minimum sentence of 15 years’ imprisonment. Their rape convictions placed them under s 51(1)(a) read with several paragraphs of Part 1 of Schedule 2. This included paras (a)(i) and (a)(ii) because each appellant had raped Sibindile. (In the case of appellant 1 the evidence showed that he had raped her twice.) Their conduct also fell within para (b)(i) as she was 15 at the time. Because a sentence of life imprisonment is the prescribed sentence on this charge, the magistrate transferred the case to the Johannesburg High Court for sentencing in accordance with s 52 of the Act. 

[3]	When the matter came before Goldstein J in the High Court, the appellants accepted legal representation from the Legal Aid Board. Probation officers were appointed to compile pre-sentencing reports on their behalf. The High Court was, however, unable to find any substantial and compelling circumstances, as envisaged in s 51(3)(a) of the Act, to justify the imposition of sentences lighter than the prescribed minimum. It therefore imposed, on each appellant, the prescribed sentence both for robbery and for rape. This appeal, against conviction and sentence, is with leave of the High Court.

[4]	The factual findings upon which the magistrate based the appellants’ convictions, which the High Court accepted, are not in issue in this appeal. Their complaint, made for the first time in this court, is that the absence of a verbatim recording of the pre-trial proceedings indicating that the learned magistrate had explicitly alerted them to the Act’s severe penalties, particularly to the threat of life imprisonment on the rape charge, or any indication that they had properly understood this when electing to conduct their own defence, vitiates the proceedings. For this contention they find support in two judgments of the Johannesburg High Court, S v Thompson and S v Sibiya.  

[5]	It is necessary to deal with Thompson in some detail. The accused faced a charged of aggravated robbery. The charge-sheet set out the charge as ‘robbery with aggravating circumstances as intended in s 1 of Act 51 of 1977 and read with the provisions of s 51(2)(a) of the Criminal Law Amendment Act 105 of 1997’. At an initial appearance before the trial’s commencement the magistrate had recorded the following:

‘Accused informed of gravity of charges and coupled to minimum sentences. Rights to legal representation explained. Prefers to conduct own defence.’

In his judgment dealing with the conviction the magistrate explained more fully that:

‘The accused was informed of his rights regarding legal representation on the 18th of October . . . by my colleague Mr Brink. The accused elected to conduct his own defence. Again on the 8th of November . . . (I) explained to the accused the gravity of the charges against him, and the possibility of a minimum sentence that could be imposed should he be convicted. Thereafter the court again explained the rights of the accused to legal representation. Again the accused insisted on conducting his own defence.’

[6]	After convicting the accused the magistrate said the following to him:

‘As I have explained to you before . . . the court has to apply a minimum sentence. You however may escape the minimum sentence should you be able to do the following. The court is compelled to impose a minimum sentence of at least 15 years unless there are substantial and compelling circumstances to impose a lesser sentence, and, sir, unfortunately, the onus is on you to bring those compelling and substantial circumstances to the attention of the court. You now have slightly more than a month and I would urge you to use the time available . . . to get these substantial and compelling circumstances to the fore and be able to present them on the day of sentence. Do you understand this? Also bear in mind, even if you cannot think of such circumstances, sir, that 15 years is the minimum. It could be as high as 30, depending on your previous convictions. So in other words, sir, it is of paramount importance that you apply your mind to this. It may assist you.’

In response to this explanation the record indicates that the accused responded simply by saying: ‘I understand’.

[7]	When the trial resumed for the purposes of sentencing, the magistrate again carefully explained to the accused what the import of the minimum sentence legislation was. In response the accused once again said that he understood, but then asked for a suspended sentence. The magistrate, however, sentenced him to 16 years’ imprisonment. 

[8]	On appeal the High Court (Saldulker AJ, Shakenovsky AJ concurring) set aside the conviction and sentence on the ground that the trial had been conducted unfairly. In arriving at this conclusion it said the following: 

‘In my judgment, the gravity of the consequences of a conviction for an unrepresented accused which result in heavy penalties is an important issue which must weigh with an accused when he is requested to make his election with regard to whether or not he should dispense with legal representation.
In the case before me it is quite clear that the appellant did not fully understand the enormity after conviction when it was explained to him by the magistrate that the minimum sentence was applicable. This was clearly apparent when the appellant asked for a suspended sentence. Clearly he did not fully appreciate or understand the gravity of what he was now facing.
In the absence of the record reflecting precisely and verbatim what the appellant’s response was, as to whether or not he required legal representation, this court of appeal finds itself in difficulty in not being able to establish what precisely was said to the appellant and what his response was in the absence of these replies appearing from the record…
In order to dispel any doubts as to whether the accused was properly informed of his rights, a verbatim recording must appear ex facie the record and not in the form of terse and cryptic notes of what was conveyed to the appellant regarding his right to legal representation that led him to make his election to conduct his own defence. His reasons if given for electing to do so must also be recorded.       
 All the aforegoing must therefore appear ex facie the record.’

The reasoning above followed the earlier reasoning of the same court in Sibiya. The absence of a verbatim record of what the court said, so it was held in both cases, rendered the trial unfair.

[9]	Our courts have indeed established guidelines dealing with what Goldstone J described in S v Radebe; S v Mbonani as the

‘general duty on the part of judicial officers to ensure that unrepresented accused fully understand their rights and the recognition that in the absence of such understanding a fair and just trial may not take place.’ 

He went on to say that:

‘If there is a duty upon judicial officers to inform unrepresented accused of their legal rights, then I can conceive of no reason why the right to legal representation should not be one of them. Especially where the charge is a serious one which may merit a sentence which could be materially prejudicial to the accused, such an accused should be informed of the seriousness of the charge and of the possible consequences of a conviction. Again, depending upon the complexity of the charge, or of the legal rules relating thereto, and the seriousness thereof, an accused should not only be told of this right but he should be encouraged to exercise it. He should be given a reasonable time within which to do so. He should also be informed in appropriate cases that he is entitled to apply to the Legal Aid Board for assistance. A failure on the part of a judicial officer to do this, having regard to the circumstances of a particular case, may result in an unfair trial in which there may well be a complete failure of justice. I should make it clear that I am not suggesting that the absence of legal representation per se or the absence of the suggested advice to an accused person per se will necessarily result in such an irregularity or an unfair trial and the failure of justice. Each case will depend upon its own facts and peculiar circumstances.’  

This court quoted these dicta with approval in S v Mabaso and they have frequently been referred to since.

[10]	When the state intends to rely on a specific sentencing regime, as in the present matter, our courts have in the same vein insisted that a fair trial requires that

‘its intention pertinently be brought to the attention of the accused at the outset of the trial, if not in the charge-sheet then in some other form, so that the accused is placed in a position to appreciate properly in good time the charge that he faces and the possible consequences.’     
      
And it is evident, as Lewis JA said recently in S v Sikhipa 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 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 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.’ 

[11]	But while the trial of an unrepresented accused might be unfair if he or she is not properly informed of rights that are relevant, it does not follow that the failure to record the fact that he or she was so informed, (verbatim or otherwise) equally renders the trial unfair. On the contrary the failure to record what was told to the accused does not impact upon the fairness of the trial and cannot by itself render the trial unfair. To the extent that the contrary was held in Thompson and Sibiya, those cases were wrongly decided.

[12]	There is no suggestion in the present case that the magistrate did not inform the appellants of their right to legal representation. On the contrary, it appears from his cryptic notes and also from his judgment, which was recorded verbatim, that not only did he inform them of their right to legal representation when they first appeared in court and again before the trial commenced, but he also explained its importance, the seriousness of the charges and their right to apply for legal aid. Nor is their any suggestion that they did not understand the magistrate’s explanation when they elected to conduct their own defences. Each indicated he did. 

[13]	Their complaint, as I have mentioned, (and the ground upon which the convictions were set aside in Thompson and Sibiya) is that the absence of a verbatim recording indicating that the magistrate had warned them of their threat of exposure to the Act’s prescribed penalties and that they had understood this is sufficient to vitiate the proceedings. This is because, as I understand counsel’s submission on the appellants’ behalf, it is doubtful that the magistrate made any reference to the prescribed sentences as his contemporaneous cryptic notes contain no such indication. If this is so, counsel submits, it is also doubtful that they properly understood their predicament when electing to conduct their own defence. Their decision to defend themselves in these circumstances, so the submission goes, rendered the trial unfair.    

[14]	The fact that the cryptic notes contain no reference to the magistrate informing the appellants of the prescribed sentences does not necessarily imply that he did not do so. And a court will not set aside proceedings on the mere supposition that he might not have done so. Significantly when the matter came before Goldstein J for sentencing and the appellants were legally represented the learned judge reviewed the record and invited them to make submissions on the propriety of the convictions. None did. Had they done so the judge would necessarily have obtained a statement from the magistrate in accordance with the requirements of s 52(3) of the Act setting forth his explanation of what had transpired before he concluded that the proceedings had been in accordance with justice. Having not availed themselves of the opportunity, the appellants cannot belatedly, and without a proper factual basis, impugn the proceedings in the magistrates’ court.     

[15]	Even if I were to assume, in the appellants’ favour, that the magistrate did not alert them to the Act’s penalties, there is still no basis to set aside the conviction. The notes reveal, albeit in cryptic form, that the appellants were informed that they were facing serious charges. They could thus not reasonably have been under any misconception that they faced the prospect of lengthy terms of imprisonment when they elected to conduct their own defence. In the absence of ‘actual and substantial prejudice’ resulting from the failure to inform them of the Act’s provisions, none of which has been shown in this case, there is no basis for finding that the trial was conducted unfairly.

[16]	Counsel submitted, however, that the fact that appellant 2 believed he should only receive a suspended sentence, as he told the probation officer, is an indication that he did not appreciate the seriousness of the charges. The same submission was also advanced successfully in Thompson. In my view there is no proper basis for this inference. The appeal against their convictions must therefore fail. I turn to consider their appeals against sentence.                            

          [17]	The evidence disclosed that Mazibuko and her daughter, Sibindile, were asleep at their Ivory Park home at 2 am on 10 August 1998 when a sound awoke them. Sibindile remained in her bed as Mazibuko made her way, through the darkness, to the source of the disturbance, a corrugated iron door. There appellant 3 confronted her. She screamed, prompting appellant 3 to hit her on her chest with the knife he wielded as he demanded her silence. As she cowered, she noticed the two other appellants in front of her.  
[18]	The appellants then ushered her into Sibindile’s bedroom. There, they directed a torch-light on to the girl’s face. They ordered her to stand and then switched on the room light. She screamed and two of the appellants responded by threatening her with a knife and a small axe. Appellant 3 demanded money from them. Mazibuko explained that the money was in another room. He went to find it but returned with little and demanded more. Mazibuko responded by leading appellants 2 and 3 into her bedroom, which they then ransacked. They found more money in a bottle. During this time appellant 1 remained with Sibindile in her room. Appellant 2 returned to Sibindile’s room after this, while appellant 3 remained with Mazibuko. 

[19]	Sibindile was now alone in her room with appellants 1 and 2. Appellant 1 demanded that she remove her clothing. She pleaded with him not to hurt her. But he responded by threatening to hit her with the axe if she refused to succumb. In response Sibindile removed her panty and lifted her night-dress as she lay on her bed. Appellant 1 then raped her and demanded that she desist from crying while he did. After he was done, appellant 2 raped her. She pleaded with him to desist, but he too ignored her. Appellant 2 then left the girl’s room and appellant 3 entered. He also raped her in appellant 1’s presence, after which appellant 1 raped her again. The assailants left, an hour after their intrusion, taking with them the items mentioned in the charge sheet. The appellants were arrested shortly thereafter. Most of the stolen items were recovered, but not the cash. 

[20]	This matter was decided shortly after the Act commenced its operation on 1 May 1998. In imposing the prescribed sentence on each appellant in respect of both counts, the High Court adopted the test applied in S v Mofokeng,that the facts of the particular case must be of an exceptional nature to justify the conclusion that there are substantial and compelling circumstances justifying a departure from the prescribed sentence. However in S v Malgas, this court rejected the suggestion that for circumstances to be substantial and compelling they must be ‘exceptional.’ It held that in determining whether there are substantial and compelling circumstances present, a court must be aware that the legislature has set a benchmark of the sentence that should ordinarily be imposed for a specified crime, and that there should be truly persuasive reasons for a different response. And when a court decides whether the particular circumstances call for the imposition of a lesser sentence, it may consider factors traditionally taken into account in making this determination. These include the age of the accused, the nature and number of any previous convictions and the time spent awaiting trial. These factors must of course be weighed against the aggravating factors. But none need be exceptional. 

[21]	The state submits that notwithstanding the High Court’s application of the test that preceded Malgas, its conclusion that there were no substantial and compelling circumstances was nonetheless correct. Accordingly it submits that this court should not interfere with the sentences.          

[22]	The appellants’ dates of birth, as they appear in the SAP 69 forms, are given as 17 June 1978 (appellant 1), 28 July 1979 (appellant 2) and 10 June 1980 (appellant 3). They were thus respectively 20, 19 and 18 years of age at the time they committed these offences and are juveniles, traditionally always considered a weighty mitigating factor in the sentencing process. The reasons are trite but bear repeating briefly. Youthfulness almost always affects the moral culpability of juvenile accused. This is because young people often do not possess the maturity of adults and are therefore not in the same position to assess the consequences of their actions. They are also susceptible to peer pressure and adult influence and are vulnerable when proper adult guidance is lacking. There are however degrees of maturity, the younger the juvenile the less mature he or she is likely to be. Judicial policy has thus appreciated that juvenile delinquency does not inevitably lead to adult criminality and is often a phase of adult development. The degree of maturity must always be carefully investigated in assessing a juvenile’s moral culpability for the purposes of sentencing. The Constitutional Court warned in S v Williams that youthful offenders, particularly, should not be sacrificed on the altar of deterrence. There is therefore compelling justification for the view that youthfulness, at least before the advent of the minimum sentencing regime, was per se a factor mitigating sentence. 

[23]	However in requiring a sentencing court to depart from the prescribed sentence in respect of offenders who have attained the age of 18 only if substantial and compelling circumstances justify this departure the legislature has clearly intended that youthfulness no longer be regarded as per se a mitigating factor. So while youthfulness is, in the case of juveniles who have attained the age of 18, no longer per se a substantial and compelling factor justifying a departure from the prescribed sentence, it often will be, particularly when other factors are present. A court cannot, therefore, lawfully discharge its sentencing function by disregarding the youthfulness of an offender in deciding on an appropriate sentence, especially when imposing a sentence of life imprisonment, for in doing so it would deny the youthful offender the human dignity to be considered capable of redemption.

[24]	Before I deal with the circumstances in this matter, it is necessary to review briefly how our courts have dealt with rape under the Act, perhaps the most difficult and controversial aspect of the legislation. The leading case is S v Mahomotsa. The accused had raped two complainants, the second while he was awaiting trial in respect of the first. Both complainants were fifteen years of age at the time. The State had proved that the accused had had non-consensual sex with the two complainants more than once. He had been armed and on both occasions, assaulted and insulted the complainants. This court considered 8 years’ imprisonment to be appropriate on the first and 12 years’ imprisonment on the second. In arriving at this conclusion it said the following:

‘The rapes that we are concerned with here, though very serious, cannot be classified as falling within the worst category of rape. Although what appeared to be a firearm was used to threaten the complainant in the first count and a knife in the second, no serious violence was perpetrated against them. Except for a bruise to the second complainant's genitalia, no subsequently visible injuries were inflicted on them. According to the probation officer - she interviewed both complainants - they do not suffer from any after-effects following their ordeals. I am sceptical of that but the fact remains that there is no positive evidence to the contrary. These factors need to be taken into account in the process of considering whether substantial and compelling circumstances are present justifying a departure from the prescribed sentence.  

It perhaps requires to be stressed that what emerges clearly from the decisions in Malgas and Dodo is that it does not follow that simply because the circumstances attending a particular instance of rape result in it falling within one or other of the categories of rape delineated in the Act, a uniform sentence of either life imprisonment or indeed any other uniform sentence must or should be imposed. If substantial and compelling circumstances are found to exist, life imprisonment is not mandatory nor is any other mandatory sentence applicable. What sentence should be imposed in such circumstances is within the sentencing discretion of the trial Court, subject of course to the obligation cast upon it by the Act to take due cognisance of the Legislature's desire for firmer punishment than that  which may have been thought to be appropriate in the past. Even in cases falling within the categories delineated in the Act there are bound to be differences in the degree of their seriousness. There should be no misunderstanding about this: they will all be serious but some will be more serious than others and, subject to the caveat that follows, it is only right that the differences in seriousness should receive recognition when it comes to the meting out of punishment. As this Court observed in S v Abrahams 2002 (1) SACR 116 (SCA), 'some rapes are worse than others and the life sentence ordained by the Legislature should be reserved for cases devoid of substantial factors compelling the conclusion that such a sentence is inappropriate and unjust.' 

[25]	In S v Sikhipha this court set aside a sentence of life imprisonment for the rape of a 13 year old girl and in its place substituted a sentence of 20 years’ imprisonment. It regarded as substantial and compelling the fact that the appellant, who was 35 years of age, had a trade and a family that was dependent upon him, that he was capable of rehabilitation and that the complainant had not been badly injured.  

[26]	In S v Nkomo this court also set aside a sentence of life imprisonment where the appellant, who was 29 years of age, had forced the complainant into a hotel room and locked her inside and then raped her. Afterwards she tried to escape by jumping through a window that was some 10 meters from the ground injuring herself in the process, although not seriously. The appellant then forced her back into the hotel room where he raped her four more times. He also made her perform oral sex on him. As in Sikhipha the appellant was employed and had a family who was dependent upon him. A sentence of 16 years’ imprisonment was considered appropriate.

[27]	I revert to the present matter. No viva voce evidence was led on sentence. The pre-sentencing reports were the only evidence before the High Court. They reveal, briefly, that the appellants, all Mozambican, grew up in difficult circumstances. They left their country because of adverse socio-economic conditions to find employment in South Africa. Appellant 1 had no formal education and appellants 2 and 3 were not able to progress beyond primary school. Appellant 1, who had been employed as a gardener at the time of his arrest, was earning a fortnightly wage of R440. The other appellants were unemployed at the time of the commission of these crimes. There is no evidence that they were living under any form of adult supervision at the time they committed the offences.

[28]	They have no previous convictions and were in custody for almost 10 months before being sentenced. The rape was not planned. There was no gratuitous violence in addition to the rape. Sibindile’s examination provided corroboration of ‘forceful sexual intercourse.’ There were no other injuries and the J88 form, which is the report of the medical examination, notes that her physical powers, general state of health and mental state were not perceptibly impaired. Appellant 3 struck Mazibuko once on her chest to silence her. Sibindile’s physical examination revealed that even though there was evidence of a previous sexual encounter, her hymen was bruised and the membrane below the vagina opening had a moderate tear. 

[29]	As against these mitigating factors the aggravating factors must be considered. There can hardly be a more terrifying experience than to be awakened in the middle of the night by armed intruders, to have one’s privacy invaded and to be subjected to an ordeal for an hour with no idea of one’s fate. This is what the appellants subjected Mazibuko and her daughter to. The appellants threatened to hurt them if they did not co-operate. They ignored Sibindile’s crying and pleas not to rape her. It would have been obvious to them that she was distressed but they threatened to chop her with the axe if she refused to succumb to their predatory behaviour. They each raped her in turn and then appellant 1 did so for a second time. They invaded her body, humiliated her and stripped her of her dignity. And despite overwhelming evidence against them, they denied any involvement in the crimes throughout the trial and continued to do so to the probation officers who interviewed them during the compilation of their pre-sentencing reports. 

[30]	I have weighed these factors and conclude that this case warrants a severe sentence, but it is not one that is devoid of substantial and compelling circumstances justifying a lesser sentence than the prescribed minimum. The imposition of the prescribed sentences would be disproportionately harsh. The appeal against sentence is upheld and the sentences imposed by the court below are set aside and replaced with the following:

‘On count 1 (robbery) each accused is sentenced to 8 years’ imprisonment. On count 2 (rape) each accused is sentenced to 16 years’ imprisonment. The sentence on count 1 will run concurrently with that on count 2. In terms of s 276B (2) of the Criminal Procedure Act 51 of 1977 I direct that the non-parole-period shall be 8 years.’

_______________
A CACHALIA
JUDGE OF APPEAL

CONCUR:
NUGENT JA
HURT AJA