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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable

Case no: 231/2017

In the matter between:

SENTE JOSEPH THAKELI                                                FIRST APPELLANT
SAMUEL ZAMBUK MARUMO

SECOND APPELLANT

and

THE STATE                                                                                 RESPONDENT

Neutral citation:
Thakeli v S (231/2017) [2018] ZASCA 47 (28 March 2018)

Coram:
Lewis, Seriti, Saldulker and Van der Merwe JJA and
Makgoka AJA

Heard:
15 February 2018

Delivered:
28 March 2018

Summary: Criminal Law: appellants indicted for murder – charge sheet
referred to s 51(2) of the Criminal Law Amendment Act 105 of 1997 (the Act) –
trial court amended charge sheet, after appellants testified in their defence, by
deleting subsection (2), in terms of s 86 of the Criminal Procedure Act 51 of
1977 – no opportunity afforded to appellants to address the court in respect of
amendment – appellants convicted and sentenced by the trial court in terms of
s 51(1) of the Act – sentence set aside – appellants ultimately sentenced to 15
years' imprisonment in terms of s 51(2) of the Act.

_____________________________________________________________

ORDER
______________________________________________________________

On appeal from: Free State Division of the High Court, Bloemfontein
(Mocumie J and Chesiwe AJ sitting as court of appeal):
1 The appeal against the sentence imposed on both appellants is upheld.
2 The sentence imposed by the trial court on the appellants is set aside and
substituted as follows:
‘Accused 1 and accused 4 are each sentenced to 15 years' imprisonment.'
______________________________________________________________

JUDGMENT
______________________________________________________________

Saldulker JA (Lewis, Seriti and Van der Merwe JJA and Makgoka AJA
concurring):

[1] The appellants, Mr Sente Joseph Thakeli (first appellant) and Mr
Samuel Zambuk Marumo (second appellant), were indicted in the regional
court, Welkom, on a charge of murder, subject to the provisions of s 51(2) of
the Criminal Law Amendment Act 105 of 1997. Both appellants were convicted
on 23 August 2011 on the murder count and sentenced to 28 years'
imprisonment in terms of s 51(1) of the Act, and declared unfit to possess a
firearm. Their application for leave to appeal against conviction and sentence
in the regional court was unsuccessful. However, leave to appeal was granted
on petition against their conviction and sentence to the full bench of the Free
State High Court. On 23 March 2016, their appeal against both conviction and
entence was dismissed by the court a quo (Chesiwe AJ, Mocumie J
(concurring)). This appeal, against sentence only, is with special leave of this
court.

[2] The crisp issue is whether the trial court misdirected itself by amending
the charge sheet after the appellants had pleaded and testified to a charge of

murder read with the provisions of s 51(2) of the Act, and then convicted them
in terms s 51(1), thereby increasing the sentence faced by the appellants.

[3] Section 51(1) of the Act, read with Part 1 of Schedule 2, requires the
imposition of a minimum sentence of life imprisonment for murder when it is
planned or premeditated, unless there are substantial and compelling factors
that justify the imposition of a lesser sentence. In terms of s 51(2) of the Act,
read with Part II of Schedule 2, the minimum sentence to be imposed for
murder on a first offender following a conviction is 15 years’ imprisonment
unless there are substantial and compelling circumstances. I turn to consider
briefly the facts giving rise to the appeal.

[4] At the commencement of the trial in the regional court, the appellants
pleaded not guilty and tendered no plea explanation. Several witnesses
testified for the State and identified the appellants as the attackers who
confronted the unarmed deceased at his home, brutally stabbing him with a
pitchfork and knives. As a result of this attack the deceased succumbed to his
injuries. The appellants denied being involved in the deceased’s murder. At the
close of the defences’ case an application to re-open the State’s case was
allowed. Thereafter two witnesses called by the trial court testified. At the end
of their testimony the trial court amended the charge sheet in terms of s 86(4)
of the Criminal Procedure Act 51 of 1977, by deleting subsection (2) of s 51 of
the Act, stating that the amendment would not prejudice the appellants. The
charge was then vague – reference must be made to one of the two
subsections so that there is clarity as to which sentence is to be imposed.

[5] Thereafter the trial court convicted the appellants of murder in terms of
s 51(1) read with Part 1 of Schedule 2, on the basis of the amended charge
sheet, carrying with it the sentence of life imprisonment. However, the trial
court found that there were substantial and compelling circumstances justifying
a departure from the prescribed minimum sentence of life imprisonment and
sentenced the appellants to 28 years' imprisonment each. On appeal the court
a quo held that the amendment effected by the trial court was akin to curing a

‘typing error’ which did not go to the substance of the charge nor the
sentencing regime.

[6] This court has held in numerous decisions that an accused person must
be apprised from the outset what charge he or she has to meet, so that he or
she not only appreciates properly and in good time what the charges are that
he or she is facing but also the consequences. In S v Makatu,1 Lewis JA put it
succinctly:2
‘. . . [A]n accused faced with life imprisonment – the most serious sentence that can
be imposed – must from the outset know what the implications and consequences of
the charge are. Such knowledge inevitably dictates decisions made by an accused,
such as whether to conduct his or her own defence; whether to apply for legal aid;
whether to testify; what witnesses to call and any other factor that may affect his or
her right to a fair trial. If during the course of a trial the State wishes to amend the
indictment it may apply to do so, subject to the usual rules in relation to prejudice.'
See also S v Ndlovu 2003 (1) SACR 331 (SCA).3

[7] The effect of the amendment of the charge sheet brought about by the
magistrate was to expose the appellants to the prescribed minimum sentence
of life imprisonment as opposed to a prescribed minimum sentence of 15
years' imprisonment. This was done after all the evidence had been led and
without affording the appellants any opportunity to address the court on the
question of prejudice, and whether the amendment should be effected. The
failure to afford the appellants a full and proper opportunity to address this
question, in my view constituted a fundamental irregularity that infringed the
fair trial rights of the appellants, and destroyed the validity of the amendment. It
follows that it is not possible to say with certainty that the appellants suffered

1 S v Makatu 2006 (2) SACR 582 (SCA); [2007] All SA 470 (SCA).
2 Paragraph 7.
3 Mpati JA in S v Ndlovu 2003 (1) SACR 331 (SCA), stated at para 12 that ‘… 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 generally demand that its intention be pertinently bought 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 properly appreciate 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’.

no prejudice as a result of the amendment and that they should have been
sentenced in terms of s 51(2) of the Act. Had the appellants known that they
were being charged with murder that was premeditated, or that they had a
common purpose in killing the deceased, they may well have conducted their
defence differently.

[8] This matter is thus to be distinguished from those in which it was held
that an irregularity did not vitiate the proceedings, such as S v Kolea,4 where it
was found that the accused had known at the outset what charges they faced.
For these reasons the court a quo erred in dismissing the appeal.

[9] Accordingly, the appeal against sentence must succeed. Consequently
the appellants ought to have been sentenced to 15 years’ imprisonment in
terms of s 51(2) unless there were substantial and compelling factors justifying
a deviation. I turn to consider whether there are any. The personal
circumstances of both appellants are similar. Both are young, first offenders
and have spent at least two and half years incarcerated. These factors are to
be taken into account in determining whether a sentence of 15 years is
appropriate. The court must also take into account the aggravating factors
which are significant. The deceased died of eight stab wounds, four of which
penetrated the heart and the chest. This was a vicious and cruel attack
perpetrated with knives and a garden fork on an unarmed man: that it was a
heinous attack is apparent from the nature of the injuries and wounds.
Cumulatively the aggravating factors far outweigh the mitigating factors. There
is nothing exceptional about the personal circumstances of either of the
appellants. In S v Vilakazi 2009 (1) SACR 552 (SCA) para 58, Nugent JA
stated as follows: ‘[i]n cases of serious crime the personal circumstances of the
offender, by themselves will necessarily recede into the background'. In my
view, taking into account all of these factors, there are no substantial and
compelling circumstances present justifying a deviation from the prescribed
sentence of 15 years' imprisonment. It is a salutary sentence in the
circumstances of this case for both appellants.

4 S v Kolea [2012] ZASCA 199; 2013 (1) SACR 409 (SCA).

[9] Accordingly, the appeal is upheld. The following order is made:
1 The appeal against the sentence imposed on both appellants is upheld.
2 The sentence imposed by the trial court on the appellants is set aside and
substituted as follows:
‘Accused 1 and accused 4 are each sentenced to 15 years' imprisonment.'

______________________
H K Saldulker

Judge of Appeal

APPEARANCES:

For the Appellant:

S Kruger

Instructed by:
Bloemfontein Justice Centre

For the Respondent:
E Liebenberg
Instructed by:

Director of Public Prosecutions, Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY –  JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

28 March 2018

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.

Thakeli v S (231/2017) [2018] ZASCA 47 (28 March 2018)
___________________________________________________________________________

The SCA today set aside a decision of the Free State Division of the High Court and upheld the
appeal against sentence imposed on the appellants. Both were indicted in the regional court, Welkom
on a charge of murder, subject to the provisions of s 51(2) of the Criminal Law Amendment Act 105 of
1997(the Act) and convicted on the murder count and sentenced to 28 years' imprisonment in terms
of s 51(1) of the Act, and declared unfit to possess a firearm.

At the close of the defences’ case an application to re-open the State’s case was allowed. Thereafter
two witnesses called by the trial court testified. At the end of their testimony the trial court amended
the charge sheet in terms of s 86(4) of the Criminal Procedure Act 51 of 1977, by deleting subsection
(2) of s 51 of the Act, and stating that the amendment would not prejudice the appellants. Thereafter
the appellants were convicted of murder in terms of s51(1) read with Part 1 of Schedule 2 on the
basis of the amended charge sheet and sentenced to 28 years’ imprisonment.

The SCA held that the effect of the amendment of the charge sheet was to expose the appellants to
life imprisonment as opposed to the prescribed sentence of 15 years’ imprisonment. This was done
after all the evidence had been led and without affording the appellants an opportunity to address the
court on the question of prejudice, and whether the amendment should be effected.  The SCA held
that an accused person must be apprised from the outset what charge he or she had to meet, so that
he or she not only appreciated properly and in good time what the charges were that he or she was
facing but also the consequences.

The SCA held that the failure to afford the appellants a full and proper opportunity to address the
question of prejudice, and whether the amendment should be effected, constituted a fundamental
irregularity that infringed the fair trial rights of the appellants, and destroyed the validity of the
amendment. Had the appellants known that they were being charged with murder that was
premeditated, or that they had a common purpose in killing the deceased, they may well have
conducted their defence differently. This matter was thus to be distinguished from those in which it
was held that an irregularity did not vitiate the proceedings. The SCA held that the appellants should
have been sentenced in terms of s 51(2) of the Act. The SCA held further, that cumulatively the
aggravating factors far outweighed the mitigating factors. There were no substantial and compelling
circumstances justifying a deviation from the prescribed sentence of 15 years’ imprisonment. Both the
appellants were sentenced to 15 years imprisonment in terms of s 51(2) of the Act.