THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case No: 817/11
In the matter between:
Phithela Mapule
Appellant

and

The State
Respondent

Neutral citation:
Mapule v The State (817/11) [2012] ZASCA 80 (30 May 2012)
Coram:
BRAND, SNYDERS, MHLANTLA JJA AND SOUTHWOOD AND
PETSE AJJA
Heard:
18 May 2012
Delivered:
30 May 2012
Summary:
Sentence – imposition of minimum sentence in terms of Criminal Law
Amendment Act 105 of 1997 – sentenced for a crime not convicted of
– right to a fair trial.

ORDER
On appeal from: Venda Provincial Division of the High Court (Makgoba AJ sitting as
court of first instance):
1  The appeal on conviction is dismissed.
2 The appeal on sentence is upheld.
3 The sentence imposed by the court below is set aside and replaced by the
following:
‘The accused is sentenced to 10 (TEN) years’ imprisonment.’
4 In terms of s 282 of the Criminal Procedure Act 51 of 1977 the sentence is ante-
dated to 26 October 2001.

JUDGMENT

SNYDERS JA: (BRAND and MHLANTLA JJA and SOUTHWOOD and PETSE AJJA
concurring)
[1] On 5 September 2001 the appellant was convicted in a regional court of rape and on
26 October 2001 he was sentenced by the Venda Provincial Division of the High Court
(Makgoba AJ sitting as court of first instance) to life imprisonment, the matter having
been referred to that court in terms of the provisions of the Criminal Law Amendment
Act 105 of 1997 (the minimum sentence legislation). Seven years later the appellant
applied for leave to appeal from the court below. Leave to appeal was granted to this
Court only on conviction and refused on sentence. After an enquiry by this Court an
obviously meritorious application for leave to appeal against the sentence was brought
and granted.

[2] The appeal was heard on 18 May 2012 and an order was made at the conclusion of
the hearing, with an indication that reasons would follow. This is the order that was
made:
‘1  The appeal on conviction is dismissed.
The appeal on sentence is upheld.
The sentence imposed by the court below is set aside and replaced by the following:
‘The accused is sentenced to 10 (TEN) years’ imprisonment.’
In terms of s 282 of the Criminal Procedure Act 51 of 1977 the sentence is ante-dated to
26 October 2001.’
What follows are the reasons for the order.
[3] The complainant recounted the following events. In the early hours of 1 January
1999 the complainant was celebrating New Year with friends when she was approached
by the appellant. They knew each other. He was romantically interested in her, but she
did not have a similar inclination towards him. When he asked her about her feelings for
him she expressed her lack of interest. In response he threatened to stab her with a
bottle he had in his hand, he slapped her and ordered her to walk with him. He took her
to the grounds of a nearby primary school where he again threatened to stab her, this
time with a knife he said he had in his pocket and ordered her to undress. When she
refused, he slapped her. Because she was scared that he might stab her, she then
obeyed his instructions to undress and lie down. He proceeded to have sexual
intercourse with her against her wishes. She experienced pain as a result of the
intercourse and cried. He let her go and walked her to her home, telling her that from
then on they were lovers.
[4] The complainant was examined by a doctor later the same day. He found that her
hymen was freshly torn, the vestibule was a bit swollen and that there was a fresh
abrasion on the faucet. He concluded that her genitalia ‘showed evidence of recent
penetration by an object that might be a penis’. This evidence corroborated the
complainant’s allegation that she was raped.
[5] According to the appellant he wanted to have sexual intercourse with the
complainant that night. Together they walked to the school where he asked her to have
intercourse, but she refused. Nevertheless, she proceeded to take off her clothes, but

he then declined her. He denied that he had intercourse with her at any stage. His
version suggests that when he wanted intercourse, she did not, but moments later when
she wanted intercourse, he did not, however, later the same night someone had
intercourse with her and she decided to falsely accuse him of rape whilst willingly letting
the real culprit go free. His version is inherently so improbable that it could not be
accepted as being reasonably possibly true. The magistrate and the court below, rightly,
came to the conclusion that the complainant’s version was reliable and was
corroborated by the medical evidence and therefore that the appellant’s version was to
be rejected.
[6] The magistrate convicted the appellant of rape, ‘as charged’. The charge-sheet
reads:
‘The accused is guilty of the offence of rape in that upon or about the 1st day of January 1999
and at or near Madodonga Village in the Tshilwavhusiku district in the Regional Division of
Northern Province the said accused did unlawfully and intentionally have sexual intercourse with
. . . a female person, without her consent.’
No mention is made of the complainant’s age or the provisions of the minimum
sentence legislation. The obviously hearsay and unreliable evidence by the complainant
that she was 12 years old at the time of the incident, was gainsaid by the doctor who
examined her. His impression from her physical development was that she might well
have been older. The State failed to tender reliable evidence to resolve the uncertainty
regarding the complainant’s age.
[7] Therefore, when, subsequent to conviction, the magistrate advised the appellant of
his rights and said that because the complainant was 12 years old at the time of the
incident, the provisions of the minimum sentence legislation compelling the imposition of
life imprisonment had to be applied, he erred in two respects. First, the complainant was
not proved beyond reasonable doubt to have been under the age of 16 years at the time
of the incident. Second, the State did not prosecute the appellant for the rape of a girl
under the age of 16 years in terms of s 51(1) read with Part I Schedule 2 of the

minimum sentence legislation. When the court below sentenced the appellant, it erred in
the same respects.1
[8] The wording of the minimum sentence legislation makes it clear that it applies to
persons convicted of the offences listed in the schedules. The particular crime a person
is convicted of is therefore a jurisdictional fact essential to the application of the various
sentences prescribed in the minimum sentence legislation. The rape of a child under the
age of 16 years resorts under Part I Schedule 2 and in terms of s 51(1) attracts a
minimum sentence of life imprisonment, unless substantial and compelling
circumstances are shown to exist that justify the imposition of a lesser sentence.2
[9] In S v Legoa 2003 (1) SACR 13 (SCA) the ratio of the decisions in S v Seleke 1976
(1) SA 675 (T) at 685A-D and S v Nziyane 2000 (1) SACR 605 (T) at 609d were
approved. Cameron JA stated:3
‘These principles [stated in Seleke] were illuminatingly applied in regard to the 1997 statute’s
minimum sentencing provisions in S v Nziyane. There the scheduled offence was possession of
a semi-automatic weapon, which for a first offender similarly carries a minimum 15-year
sentence. The charge-sheet averred possession of a Norinco pistol, and specified that this was
a semi-automatic weapon. However, in its verdict the trial court, though observing that it was
common cause that a Norinco pistol was in general a semi-automatic weapon, failed to make a
specific finding to this effect. Only after the conviction was entered did the State lead expert
evidence establishing that the pistol the accused possessed was in fact semi-automatic. The
Court correctly laid emphasis on the 1997 Act’s requirement that the accused must be convicted
of the scheduled offence. The minimum sentencing provisions therefore did not apply. Although
the Legislature had not created new offences, it had to appear at conviction that elements in
question were present.’
[10] As the appellant was not charged with nor convicted of the rape of a girl under the
age of 16, the minimum sentence of life imprisonment did not apply.
[11] Even if the evidence that suggested that the complainant was under the age of 16
years old, was acceptable, - which it was not - it should not have resulted in the

1 Prior to the replacement of s 51 by Act 38 of 2007, regional courts had no jurisdiction to sentence
offenders convicted of such a crime.
2 Section 51(3) of the minimum sentence legislation.
3 Para 24.

imposition of a term of life imprisonment. Section 35 of the Constitution 108 of 1996
provides for a fair trial for any accused person. In order to secure a conviction that
would involve the minimum sentence legislation compliance with fair trial requirements
is essential. To be informed, right at the outset of the trial, of the charge faced, is one of
the demands of fairness that is not only expressly mentioned in s 35(3)(a) of the
Constitution, but also written into s 84(1) of the Criminal Procedure Act 51 of 1977 (the
CPA).4
[12] Infringements of the right to a fair trial have formed the subject of many decisions of
this court. I intend to refer only to some. In Legoa para 20 Cameron JA stated:
‘Under the common law it was therefore “desirable” that the charge-sheet should set out the
facts the State intended to prove in order to bring the accused within an enhanced sentencing
jurisdiction. It was not, however, essential. The Constitutional Court has emphasized that under
the new constitutional dispensation, the criterion for a just criminal trial is “a concept of
substantive fairness which is not to be equated with what might have passed muster in our
criminal courts before the Constitution of the Republic of South Africa Act 108 of 1996 came into
force”. The Bill of Rights specifies that every accused has a right to a fair trial. This right, the
Constitutional Court has said, is broader than the specific rights set out in the sub-sections of
the Bill of Rights’ criminal trial provision. One of those specific rights is “to be informed of the
charge with sufficient detail to answer it”. What the ability to “answer” a charge encompasses
this case does not require us to determine. But under the constitutional dispensation it can
certainly be no less desirable than under the common law that the facts the State intends to
prove to increase sentencing jurisdiction under the 1997 statute should be clearly set out in the
charge-sheet.’
[13] In S v Ndlovu 2003 (1) SACR 331 (SCA) para 12 Mpati JA concluded:
‘The enquiry, therefore, is whether, on a vigilant examination of the relevant circumstances, it
can be said that an accused had had a fair trial. And I think it is implicit in these observations
that where the State intends to rely upon the sentencing regime created by the Act a fair trial will

4 Section 35(3)(a) of the Constitution: ‘Every accused person has a right to a fair trial, which includes the
right – (a) to be informed of the charge with sufficient detail to answer it’.
Section 84(1) of the CPA: ‘Subject to the provisions of this Act and of any other law relating to any
particular offence, a charge shall set forth the relevant offence in such manner and with such particulars
as to the time and place at which the offence is alleged to have been committed and the person, if any,
against whom and the property, if any, in respect of which the offence is alleged to have been committed,
as may be reasonably sufficient to inform the accused of the nature of the charge.’

generally demand 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 as well as its
possible consequences. Whether, or in what circumstances, it might suffice if it is brought to the
attention of the accused only during the course of the trial is not necessary to decide in the
present case. It is sufficient to say that what will at least be required is that the accused be given
sufficient notice of the State’s intention to enable him to conduct his defence properly.’
[14] At no stage prior to his conviction was it brought to the appellant’s attention that he
could be sentenced by the high court or that he could be sentenced to life
imprisonment. These possibilities were relevant to decisions he made during the
conduct of his defence, particularly to conduct his case after his legal representative
withdrew during the cross examination of the complainant.
[15] In view of the charge-sheet, the evidence and the advice given to the appellant
during the trial he could only have been fairly convicted and sentenced of rape. The
nature of the unfairness and irregular sentencing procedure are such that it could be
effectively excised from the proceedings in a manner that leaves a proper conviction for
rape in terms of the charge-sheet that satisfies the demands of a fair trial. Once that is
done no failure of justice which demands the setting aside of the conviction has
occurred.5 In terms of s 51(2)(b) of the minimum sentence legislation such a conviction
attracts a minimum sentence of 10 years’ imprisonment in the absence of substantial
and compelling circumstances. Even if no regard is had to the minimum sentence
legislation a discretionary sentence of 10 years’ imprisonment would be appropriate in
the circumstances. The appellant has been incarcerated since he was sentenced,
almost 11 years ago. If he was not released on bail after his arrest on 2 January 1999, a
fact not known to this Court, the period stretches to almost 13 years. To set aside the
sentence and refer the matter back for that purpose would compound the unfairness
that the appellant has already suffered, as such a process could, at least potentially but
probably, take more than a year. These circumstances demand that the procedural
injustices not be compounded but that substantial justice be served by setting aside the

5 S v Jaipal 2005 (1) SACR 215 (CC) para 39; S v Carter 2007 (2) SACR 415 (SCA).

sentence and imposing a sentence that would have been appropriate if the proceedings
were fairly conducted. A similar approach was adopted in Legoa.
[16] For these reasons the above stated order was made and conveyed to the relevant
prison where the appellant was incarcerated.

___________________

S SNYDERS

Judge of Appeal

APPEARANCES:

For the Appellant:
A L Thomu

Instructed by:

Thohoyandou Justice Centre; Thohoyandou

Bloemfontein Justice Centre, Bloemfontein

For the Respondent: R J Makhera

Instructed by:

The Director of Public Prosecutions, Thohoyandou

The Director of Public Prosecutions, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
30May2012
Status:
Immediate

Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal.
* * *

The appellant was convicted of rape in a regional court in Venda. Upon
conviction his case was referred to the Venda High Court for sentence to be
imposed in terms of the so-called minimum sentence legislation. He was
sentenced to life imprisonment. Seven years after he was sentenced the
appellant applied for leave to appeal. He was granted such leave only in
respect of.

At no stage prior to the appellant’s appeal to this court was it noticed that the
appellant was wrongly sentenced as if he was convicted of raping a girl
under the age of 16 years. The Supreme Court of Appeal extended the leave
to appeal to include an appeal on sentence. After the matter was heard an
order was issued confirming the conviction, setting aside the sentence of life

imprisonment and imposing a sentence of 10 years’ imprisonment ante-
dated to the date when the appellant was first sentenced, 26 October 2001.
The Department of Correctional Services was promptly notified of the
reduction in the sentence.

The Supreme Court of Appeal today delivered the reasons for the order
made.