Case CCT 122/17; CCT 220/17 and CCT 298/17
[2018] ZACC 27
Hearing Date: 10 May  2018

Judgement Date: 03 September 2018

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

At 10h00 on 3 September 2018, the Constitutional Court handed down a unanimous judgment in three consolidated applications for leave to appeal against sentences imposed under section 51(1) of the Criminal Law Amendment Act 105 of 1997 (Minimum Sentences Act/Act).

Section 51(1) of the Minimum Sentences Act provides that a person convicted of certain serious offences shall be sentenced to life imprisonment. All three applicants were convicted of crimes subject to sentencing under section 51(1). However, the applicants’ main argument was that the Act could not apply to their sentencing because they were not made aware of the applicability of the Act at the beginning of their trials and that this caused demonstrable prejudice.

Mr M T was convicted by the Regional Court on a charge of raping a child under the age of 16. At the time of the hearing, the Regional Court was not empowered to impose life sentences. It therefore referred the matter to the High Court, where Mr T was sentenced to life imprisonment under the Act. Mr T’s counsel argued that the Magistrate was forced to decide the case on the charge sheet. The charge sheet’s silence on the Act meant that Mr T could not be sentenced under the Act. The Magistrate therefore should have sentenced Mr T to a maximum of ten years’ imprisonment under the Magistrates’ Court’s jurisdiction.

Mr A S B was also charged with rape of a child under the age of 16. He pleaded not guilty but was convicted and sentenced to life imprisonment under the Act. He was represented jointly with Mr September, who was convicted of murder, three counts of attempted murder, and robbery with aggravating circumstances, and sentenced to life imprisonment under the Act. They also contended that their sentences were unfair because they were not made aware of the Act at the beginning of their trials, and that this caused demonstrable prejudice.

In a unanimous judgment written by Dlodlo AJ, the Constitutional Court held that the applicants’ claims of trial prejudice were factual questions that fell outside the Court’s jurisdiction. However, whether the failure to include the relevant section of the Minimum Sentences Act in a charge sheet infringes an accused’s right under section 35(3)(a) of the Constitution “to be informed of the charge with sufficient detail to answer it” is a constitutional matter within this Court’s jurisdiction.

Despite this, the Court did not consider it in the interests of justice to entertain the appeals. Based on this Court’s decision in Pennington, it held that leave to appeal is “a requirement needed to ‘protect’ the process of this Court against abuse by appeals which have no merit”.

The applicants failed to establish that their trials or sentences were rendered unfair by the absence of reference to the Minimum Sentences Act in the charge sheet. The precedent established by the Supreme Court of Appeal in Legoa is that it is desirable for charge sheets to refer to the Act, but this does not create a hard-and-fast rule. The question of whether this absence impedes an accused person’s ability to answer the charge has been taken no further by these applications.

The Constitutional Court therefore held that it was not in the interests of justice to consider the constitutional point raised and dismissed each application for leave to appeal.

The Full judgment  here.