Lungisani Brian Botsotso Nxele v. The State - (12 Mar 2020)

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

Criminal

Present is an appeal, with the special leave of present court, against a judgment of the High Court, which confirmed a sentence of life imprisonment imposed on the Appellant. The Appellant, who was legally represented, pleaded guilty to the charge and was convicted of murder. He was consequently sentenced to life imprisonment.

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. 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.

Counsel for the Appellant contended that, the sentence was vitiated by an irregularity as the indictment did not make reference to Section 51(1) of the Criminal Law Amendment Act, 1997. This court has held, with reference to the provisions of Section 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'.

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. 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.

Recently, in S v Tshoga, 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. In the majority judgment of the court it is held that, the Act had to be mentioned in the charge- sheet or at the outset of the trial would. 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.

The crime of which the appellant stands convicted, is of such a nature that, present Court 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 view of present Court, the Court was entirely correct in imposing a sentence of imprisonment for life. The reasoning of the full court cannot be faulted. The trial Court properly considered the facts and relevant circumstances of this case. The appeal should be dismissed.

Tags : CONVICTION FAIR TRIAL LEGALITY