Nxele v S (SCA) (unreported case no 271/19, 12-3-2020) (Ledwaba AJA) (Ponnan and Nicholls JJA concurring)

The sentencing phase requires a diligent application of expert skills, which should not be applied swiftly. Too often this is the phase in a criminal trial that is neglected. Section 51 of the Criminal Law Amendment Act 105 of 1997 (the Act) prescribes the minimum sentence of imprisonment for specific serious offences. The presiding officer will only deviate from the prescribed minimum sentence if there are substantial and compelling circumstances to deviate from.

The Supreme Court of Appeal (SCA) was tasked with the determination of whether a presiding officer may rely on s 51 of the Act if it was not specifically referred to in the charge sheet or indictment. The appeal was against a judgment of the Full Court of the KwaZulu-Natal Division of the High Court in Pietermaritzburg, which confirmed a sentence of life imprisonment imposed on the appellant by a single judge of the division. The Full Court was of the view that life imprisonment was the appropriate sentence and that the provisions of the Act were applicable and even if the trial court was wrong in applying the provisions of the Act, the court still had its common law jurisdiction.

The accused in this matter was legally represented and entered a guilty plea to the charge of murder. The accused was subsequently convicted and sentenced to life imprisonment. The murder was premediated, therefore, the minimum sentence provisions of life imprisonment found application (even though it was not specifically stated in the charge sheet). The mitigating circumstances placed on record were not enough to constitute substantial and compelling circumstances to deviate from the prescribed minimum sentence.

Where s 51 of the Act is not referred to specifically in the charge sheet or indictment a court should determine whether the accused’s constitutional right to a fair trial had been breached at the sentencing stage. In Legoa v S [2002] 4 All SA 373 (SCA) and Ndhlovu and Others v S [2002] 3 All SA 760 (SCA) the court held that ‘a vigilant examination of the relevant circumstances’ is required to determine whether the accused’s constitutional rights as set out in s 35(3) of the Constitution have been compromised or not.

Both counsel and the trial court approached the matter as if the minimum sentence provision of life imprisonment found application. It is clear that each case will be dealt with in accordance with the facts presented. The main determination will be whether the presiding officer is satisfied that the interests of justice are served.

Charnét Swart LLB (UP) is a non-practising legal practitioner in Pretoria. Ms Swart has written this article in her own capacity.

This article was first published in De Rebus in 2020 (June) DR 29.