THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 271/19

In the matter between:
LUNGISANI BRIAN BOTSOTSO NXELE
APPELLANT

and

THE STATE
RESPONDENT

Neutral citation:
Nxele v S (271/19) [2020] ZASCA 6 (12 March 2020)

Coram:
PONNAN and NICHOLLS JJA and LEDWABA AJA

Heard:
18 February 2020

Delivered:
12 March 2020

Summary: Murder – Life imprisonment – Failure to mention provisions of Criminal
Law Amendment Act constituting a misdirection – common law jurisdiction.

________________________________________________________________
ORDER
________________________________________________________________

On appeal from: KwaZulu-Natal Division of the High Court, Pietermaritzburg
(Booyens, Ploos van Amstel and Van Zyl JJ, sitting as court of appeal):
The appeal against sentence is dismissed.
________________________________________________________________
JUDGMENT
________________________________________________________________
Ledwaba AJA (Ponnan and Nicholls JJA concurring)

[1] This is an appeal, with the special leave of this court, against a judgment of
the full court of the KwaZulu-Natal Division of the High Court, Pietermaritzburg,
which confirmed a sentence of life imprisonment imposed on the appellant by a
single judge of that division.

[2] The appellant, who was legally represented, pleaded guilty to the charge
and was convicted of murder. He was consequently sentenced to life
imprisonment.

[3] The facts giving rise to the charge of murder are briefly as follows. The
deceased, Mr Moses Shelane, was a taxi owner and driver. The deceased and Mr
Siqubele Jiyane had a dispute. Jiyane requested Mr Sbongalo Ndlovu to arrange
a person to kill the deceased for the sum of R10 000. Ndlovu secured the services
of the appellant. Jiyane, together with Ndlovu and the appellant, planned the
murder of the deceased and provided the appellant with a firearm. In accordance
with the plan, the appellant and Ndlovu boarded the deceased's taxi as ordinary
passengers and sat behind him. During the course of the journey, when the taxi
had stopped, the appellant fired a shot which struck the deceased in the back of
his head. The deceased died at the scene. According to the appellant, he was only
paid R1 500 instead of R10 000 as promised.

[4] Counsel for the appellant placed on record before the trial court the
following mitigating circumstances: the appellant was 19 years old when he
committed the offence; he was unmarried; he was a first offender; he was in
Grade 11 at school; he had a child aged one year three months and another child
was expected to be born around April 2010; his father had abandoned the family;
he was convicted of housebreaking and theft after he had committed the murder;
he could not exercise a mature judgment; he was influenced by Jiyane and Ndlovu;
he made a confession and cooperated with the police and  he was remorseful.

[5] He further argued that the appellant's circumstances, cumulatively
considered, constitute substantial and compelling circumstances and that a long
term of imprisonment should be imposed instead of life imprisonment.

[6] In imposing sentence, the trial court took into account that the murder was
premeditated and that it was enjoined to impose a sentence of life imprisonment,
unless it found substantial and compelling circumstances to exist. It could find
none.

[7] Counsel for the appellant contended that the sentence was vitiated by an
irregularity inasmuch as the indictment did not make reference to s 51(1) of the
Criminal Law Amendment Act 105 of 1997 (the Act). This court has held, with
reference to the provisions of s 51 of the Act, that the question whether the
accused's constitutional right to a fair trial has been breached at the sentencing
phase, can only be answered after 'a vigilant examination of the relevant
circumstances'. See S v Legoa 2003 (1) SACR 13 (SCA) and S v Ndlovu 2003 (1)
SACR 331 (SCA) para 12.

[8] In Legoa para 21 the following observations were made:
‘The matter is, however, one of substance and not form, and I would be reluctant to lay
down a general rule that the charge must in every case 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.  A general requirement to this effect, if applied with undue formalism,
may create intolerable complexities in the administration of justice and maybe insufficiently
heedful of the practical realities under which charge-sheets are frequently drawn up. The
accused might in any event acquire the requisite knowledge from particulars furnished to
the charge or, in a Superior Court, from the summary of substantial facts the State is
obliged to furnish.  Whether the accused’s substantive fair trial right, including his ability
to answer the charge, has been impaired, will therefore depend on a vigilant examination
of the relevant circumstances.’

[9] Recently, in S v Tshoga [2016] ZASCA 2015; 2017 (1) SACR 420 (SCA)
this court had to consider whether life imprisonment was competent where the
provisions of the Act were not mentioned in the charge-sheet at all, nor was any
reference made to the Act during the trial, or before conviction. The possibility of
life imprisonment was mentioned for the first time during the magistrate’s judgment
convicting the appellant. In the high court, where the matter had been referred for
sentence, life imprisonment was imposed. On appeal to this court, counsel
submitted that as the charge-sheet had not made reference to the prescribed
minimum sentences, the appellant’s fair trial right had been infringed by the
imposition of life imprisonment. In the majority judgment of the court Schoeman
AJA in para 22 said the following:
'. . . I am of the view that a pronouncement that the Act had to be mentioned in the
charge- sheet or at the outset of the trial would be elevating form above substance. Every
case must be approached on its own facts and it is only after a diligent examination of all
the facts that it can be decided whether an accused had a fair trial or not.'

[10] In Tshoga the appellant's application for leave to appeal was dismissed by
the Constitutional Court in M T v S; A S B v S; September v S [2018] ZACC 27;
2018 (2) SACR 592 (CC) on the basis that ‘most of the issues raised were
questions of fact and, on the points of law, it is not in the interests of justice to
consider them at this stage’. However, at para 40 the Constitutional Court did state
that:

'It is indeed desirable that the charge sheet refers to the relevant penal provision of the
Minimum Sentences Act. This should not, however, be understood as an absolute rule.
Each case must be judged on its particular facts. Where there is no mention of the
applicability of the Minimum Sentences Act in the charge sheet or in the record of the
proceedings, a diligent examination of the circumstances of the case must be undertaken
in order to determine whether that omission amounts to unfairness in trial. This is so
because even though there may be no such mention, examination of the individual
circumstances of a matter may very well reveal sufficient indications that the accused's
section 35(3) right to a fair trial was not in fact infringed.'

[11] In this case, although it appears that the Act was not specifically mentioned
in the indictment, both counsel and the trial court approached the matter as if the
Act found application. At the trial, counsel for the State submitted that the
imposition of life imprisonment as a minimum sentence is applicable and he further
referred to Malgas1.

[12] Before the full court, counsel for the appellant accepted that it is quite plain
that everybody was on the same page that if substantial and compelling
circumstances do not exist, life imprisonment should be imposed. Later the
following is recorded:
‘VAN ZŸL J: . . . The State has dealt in paragraph 5 of Miss Senekal’s heads with the fact
that the indictment did not contain any reference to the minimum sentencing provisions of
Act 105 of 1997. Are you taking that point on appeal or not?
MR BUTLER:  M’Lord, as I mentioned earlier in my opening address, I did not really focus
on that point. Obviously if Your Lordships find that is an important point . . . [intervention]
VAN ZŸL J:  It seems to me that it is probably six of one and half a dozen of the other,
because on the authorities Miss Senekal advanced here, the effect of that is that where
an accused has not been warned, and I cannot imagine that Mr Du Toit had not discussed
it with him. Because he is an experienced practitioner, all – known to us all, but assuming
that he had not been warned of the provisions of the Act, that in itself would entitle the
Court to impose a sentence of less than the prescribed minimum. But the Court has, in

1S v Malgas 2001 (1) SACR 469 (SCA).

this case, a common law jurisdiction in any event to impose life, so that the same
considerations it seems to me would apply whether the provisions of the Act had been
drawn to his attention or not.
. . .
VAN ZŸL J:  And that in the final analysis it is probably not likely to make a difference to
the outcome, but I thought I would raise it with you because it is raised in Miss Senekal’s
heads and you had not addressed the point at all in your submissions to us.
MR BUTLER:  No, M’Lord, I was thinking very much along the lines of Your Lordship that
maybe a slightly different angle that having regard to the way the matter was dealt with,
and the whole discussion was about substantial and compelling circumstances, and the
learned Judge and obviously both counsel were well aware that that was . . . [intervention]
VAN ZŸL J:  Well that was the tenor of the debate.
MR BUTLER:  Yes, it was.
VAN ZŸL J:  In making it – when Mr Du Toit made submissions to the Court.
MR BUTLER:  Absolutely, it was very pointedly on that aspect.
VAN ZŸL J:  One would infer that everybody was alive to the provisions of the Act . . .
[intervention]
MR BUTLER:  That is so.
VAN ZŸL J:  . . . without having expressly stated that.
MR BUTLER:  That is so. Sorry, M’Lord, I cannot really take that matter much further. I do
submit that it – yes, it probably does not sway the matter one way or the other markedly.’

[13] The full court held:
'In my view, the crime of which the appellant stands convicted, is of such a nature that I
do not believe that the court a quo erred, or misdirected itself, in taking the approach that
no substantial and compelling circumstances existed, which would justify a sentence of
less than imprisonment for life. But, even if it would be held that the court a quo was wrong
in applying the provisions of Act 105 of 1997 to the present matter and should rather have
sentenced the appellant in the exercise of its common law jurisdiction, then, in my view,
the Court was entirely correct in imposing a sentence of imprisonment for life.'

[14] The reasoning of the full court cannot be faulted and I agree with it. The trial
court properly considered the facts and relevant circumstances of this case. The
appeal should be dismissed.

[15] In the result the following order is made:
The appeal against sentence is dismissed.

____________________
A P Ledwaba
Acting Judge of Appeal

Appearances

For appellant:
P Andrews
Instructed by:

PMB Justice Centre, Pietermaritzburg

Bloemfontein Justice Centre, Bloemfontein

For respondent:
J M Khathi
Instructed by:

The Director of Public Prosecutions, Pietermaritzburg

The Director of Public Prosecutions, Bloemfontein