THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 1267/2017

In the matter between:

NICO MANUEL KHOZA                                                                      FIRST APPELLANT
SIMON BENNET MHLONGO                                                         SECOND APPELLANT

and

THE STATE                                                                                                                        RESPONDENT

Neutral citation:
Khoza & another v The State (1267/2017) [2018] ZASCA 133
(28 September 2018)

Coram:
Maya P and Van der Merwe JA and Nicholls AJA
Heard:
4 September 2018
Delivered:
28 September 2018

Summary:   Criminal Procedure – sentence – appellants not informed of the
applicable provisions of the Criminal Law Amendment Act 105 of 1997 at the outset of
the trial – right to a fair trial – test for prejudice – reasonable possibility that appellants
may have conducted their cases differently had they been so informed – sentence to
be imposed afresh without consideration of minimum prescribed sentences.

____________________________________________________________________

ORDER

On appeal from: North West Division of the High Court, Mahikeng (Leeuw JP and
Gura and Gutta JJ sitting as court of appeal):
1   The appeal against sentence is upheld.
2   The order of the full court is set aside and replaced with the following:
‘a  The appeal is upheld.
b  The sentences of the appellants are set aside and the matter is remitted to the
trial court to impose sentence afresh.’
3   The registrar of the North West Division of the High Court, Mahikeng is directed to
prioritise the enrolment of the matter.

JUDGMENT

Van der Merwe JA (Maya P and Nicholls AJA concurring)

[1] This is yet another appeal that raises the question whether an appellant’s right
to a fair trial was infringed by the failure to alert them at the outset of the trial to the
applicable provisions of the Criminal Law Amendment Act 105 of 1997 (Minimum
Sentences Act). It is appropriate, at the outset, to draw attention to the duties of courts
and prosecutors in this regard set out in Ndlovu v The State [2017] ZACC 19; 2017 (2)
SACR 305 (CC) paras 53-58.

[2] The appeal against sentence arose in the following manner. The first appellant
and the second appellant were charged together with four others in the North West
Division of the High Court, Mahikeng with murder (count 1), robbery with aggravating
circumstances (count 2) and unlawful possession of firearms and ammunition (counts
3 and 4), respectively. The indictment did not refer to the Minimum Sentences Act.

Neither did it contain factual allegations that rendered the Minimum Sentences Act
applicable.

[3] The trial took place before Hendricks J. The prosecution led the evidence of
several witnesses. The appellants did not testify, an aspect to which I shall return.
At the conclusion of the trial Hendricks J found that the appellants had participated in
a planned armed robbery at the residence of a shopkeeper. During the robbery the
shopkeeper was shot and killed by one of the other accused. The trial court found that
cash in the amount of R5 400, cellphones and a Toyota Hilux vehicle were taken during
the robbery and that the appellants shared in the spoils. The trial court accordingly
convicted the appellants on counts 1 and 2 but acquitted them on counts 3 and 4.

[4] At the commencement of the trial the appellants were represented by separate
legal representatives. During the state case, the legal representative of the second
appellant indicated that he held instructions to apply for the recusal of the trial judge.
However, he argued that the application for recusal should be heard by another judge.
When Hendricks J unsurprisingly ruled that the application for recusal should be
determined by him, the second appellant terminated the mandate of his legal
representative and indicated that he would take no further part in the trial. Hendricks
J urged the second appellant to reconsider and to participate in the trial as well as to
make use of the available legal representation, but the second appellant persisted with
this stance for the remainder of the trial.

[5] After the second appellant took this position, the legal representative of the first
appellant in fact applied that Hendricks J recuse himself. This application was refused,
whereafter the legal representative of the first appellant placed on record that she
withdrew from the matter on the ground that the first appellant too, would take no
further part in the trial. The legal representative was then excused. The trial judge
enquired from the first appellant whether he wished to conduct his own defence or to
obtain legal representation at his own expense. The first appellant did not respond and
the next witness for the state was called. The first appellant also steadfastly remained
unresponsive for the remainder of the trial.

[6] After the appellants were convicted, the trial court informed them as follows:
‘They are convicted of murder and the circumstances under which this murder was committed
is that of robbery where aggravating circumstances are present and also the fact that they
acted in a group when they committed the murder and the robbery. The sentence prescribed
for murder under such circumstances is that of life imprisonment and unless they place before
this Court substantial and compelling circumstance which may persuade the Court to deviate
from the sentence of life imprisonment, this Court will impose life imprisonment for murder.’
This statement was in accordance with s 51(1) of the Minimum Sentences Act, read
with Part I of Schedule 2 thereto. In continuation of the stance taken previously, the
appellants did not respond to this statement.

[7] Hendricks J proceeded to find that there were no substantial and compelling
circumstances that justified a departure from the prescribed minimum sentence of life
imprisonment in respect of the count of murder. He therefore sentenced each of the
appellants to life imprisonment on that count. In terms of s 51(2)(a) of the Minimum
Sentences Act read with Part II of Schedule 2 thereto, the minimum prescribed
sentence applicable to count 2 (the appellants being first offenders) was 15 years
imprisonment. Despite this and the submission of counsel for the prosecution that ‘the
only appropriate sentence’ on count 2 was 15 years imprisonment, Hendricks J
sentenced each of the appellants to 20 years imprisonment on that count. These
sentences were imposed on 11 November 2005.

[8] The appellants’ application for leave to appeal came before Hendricks J nearly
11 years later, on 19 August 2016. He granted them leave to appeal to the full court
of that division only against their sentences. Before the full court, counsel for the
appellants pertinently argued that they were not afforded a fair trial in that they had
only been informed about the applicability of the Minimum Sentences Act when
sentence was considered. Counsel for the respondent, who did not appear at the trial,
conceded that the sentences were affected by an irregularity and that the appellants
should be sentenced afresh. Nevertheless the full court (Leeuw JP, Gura and
Gutta JJ concurring) held that the appellants had been afforded a fair trial and
dismissed the appeal. This court granted special leave to appeal to the appellants in
respect of their sentences.

[9] As I have said, the issue in this appeal has been considered by this court on a
number of occasions.1 The same applies to the closely related issue of the effect of
an incorrect reference to the Minimum Sentences Act in the indictment on fair trial
rights.2

[10] The following principles can be distilled from these judgments. As a general
rule, fair trial rights3 require that an accused person should be informed at the outset
of the trial of the provisions of the Minimum Sentences Act (or other provisions relating
to an increased sentencing regime) that the state intends to rely upon or are
applicable. The accused person should generally be so informed in the indictment or
charge sheet; by notification by the presiding officer or in any other manner that
effectively conveys the applicable provisions to the accused person before or at the
commencement of the trial. This is of particular importance when the accused person
has no legal representation. This, however, is not an absolute rule. Each case must
be determined on its own particular facts and circumstances, bearing in mind the oft-
quoted dictum in S v Jaipal 2005 (4) SA 581 (CC); 2005 (1) SACR 215 (CC) para 29.
There it was stated that the right to a fair trial also requires fairness to the public as
represented by the state and has to instill public confidence in the criminal justice
system. Substance must prevail over form. In the final analysis, the determination of
whether fair trial rights were infringed in these circumstances, turns on the question of
prejudice to the accused.

[11] The question of prejudice is determined by an objective facts-based inquiry. In
my view the test should be similar to that applicable to the question whether an
accused person has been prejudiced by a defective charge, which also directly
implicates s 35(3)(a) of the Constitution. In Moloi & others v Minister for Justice &

1 See S v Legoa 2003 (1) SACR 13 (SCA); S v Ndlovu 2003 (1) SACR 331 (SCA); Tshoga v S [2016]
ZASCA 205; 2017 (1) SACR 420 (SCA). The latter was one of the matters that the Constitutional Court,
in M T v The State; A S B v The State; Johannes September v The State [2018] ZACC 27
(3 September 2018), declined to determine as it was not in the interests of justice to do so.
2 See S v Makatu 2006 (2) SACR 583 (SCA); S v Kolea [2012] ZASCA 199; 2013 (1) SACR 409 (SCA);
Thakeli & another v S [2018] ZASCA 47; 2018 (1) SACR 621 (SCA). In Ndlovu v The State [2017] ZACC
19; 2017 (2) SACR 305 (CC) the Constitutional Court determined a matter of this type on the basis that
the regional court in that matter did not have jurisdiction to impose sentence in terms of s 51(1) of the
Minimum Sentences Act and thus considered it unnecessary to consider the fair trial question.
3 Especially ss 35(3)(a) and (b) of the Constitution which provide: ‘Every accused has a right to a fair
trial, which includes the right – (a) to be informed of the charge with sufficient detail to answer it; (b) to
have adequate time and facilities to prepare a defence.’

Constitutional Development & others [2010] ZACC 2; 2010 (2) SACR 78 (CC) at para
88a the pre-constitutional position was summarized as follows:
‘Whether the accused may be so prejudiced is dependent upon the facts of each case. What
is cardinal, however, is that prejudice, actual or potential, will always exist, unless it can be
established that the defence or response of the accused person would have remained exactly
the same had the state amended the charge.’
In my judgement the same applies to the determination of this question under the
Constitution. This signifies that prejudice will exist if there is a reasonable possibility
that the defence or response of the accused person may not have been the same had
there been an amendment.

[12] It follows, in my view, that there will be prejudice to an accused if he or she
could reasonably have conducted his or her defence differently, had the accused been
informed at the outset of the trial of the applicable provisions of the Minimum
Sentences Act. Thus, if there is a reasonable possibility that the accused may have
conducted his or her case differently, there would in these circumstances be an
infringement of the right to a fair trial.

[13] On an application of these principles to the facts of this case, it has to be
accepted that the appellants were only informed of the applicability of the Minimum
Sentences Act and that they were therefore exposed to a sentence of life
imprisonment, after they had been convicted. It follows that they were unaware of this
critical factor when they resolved to take no further part in the trial. Importantly, they
were informed thereof at a time when they were not legally represented and they
subjectively believed that the trial judge was biased against them. Had the appellants
known from the outset that they were exposed to life imprisonment, they may well have
responded differently or conducted their cases differently. I find that in the peculiar
circumstances of this case, the sentencing proceedings in respect of the appellants
were vitiated by an infringement of their fair trial rights. Counsel for the respondent’s
reiteration in this court of his concession before the full court, was therefore fair and
proper.

[14] It follows that the sentences must be set aside and that the appellants must be
sentenced afresh without the application of the Minimum Sentences Act. Both counsel

requested that the matter be referred back to the trial court for this purpose, with the
direction from this court that it be afforded priority. Despite the lengthy lapse of time, I
am, in the particular circumstances of this case, prepared to accede to this request.
As I have pointed out, the appellants did not participate in the sentencing proceedings
in the trial court. There is good reason to believe that they will do so now, with the
assistance of counsel. The periods of imprisonment already served by the appellants
will no doubt be taken into account when they are sentenced afresh.

[15] In the result the following order is issued:
1   The appeal against sentence is upheld.
2   The order of the full court is set aside and replaced with the following:
‘a  The appeal is upheld.
b  The sentences of the appellants are set aside and the matter is remitted to the
trial court to impose sentence afresh.’
3   The registrar of the North West Division of the High Court, Mahikeng is directed to
prioritise the enrolment of the matter.

_________________________
C H G van der Merwe
Judge of Appeal

APPEARANCES
For Appellants:

N L Skibi

Instructed by:

Mafikeng Justice Centre, Mmabatho

Bloemfontein Justice Centre, Bloemfontein

For Respondent:

T D Muneri

Instructed by:

Director of Public Prosecutions, Mmabatho

Director of Public Prosecutions, Bloemfontein