[MEDIA SUMMARY] Khoza & another v The State

The appellants and others were charged in the North West Division of the High Court, Mahikeng with murder (count 1) and robbery with aggravating circumstances (count 2). The indictment did not make reference to the Criminal Law Amendment Act 105 of 1997 (Minimum Sentences Act). During the trial, both appellants subjectively formed the perception that the trial judge was biased against them. When the trial judge refused to recuse himself, the appellants terminated the mandate of their legal representatives and took no further part in the trial. The trial court found that the appellants had participated in a planned armed robbery, during which the victim was shot and killed by one of the other accused persons. The trial court convicted the appellants on counts 1 and 2. Only after conviction did the trial court inform the appellants that they were exposed to a sentence of life imprisonment in terms of the Minimum Sentences Act in respect of count 1. The trial court found no substantial and compelling circumstances justifying departure from the prescribed minimum sentence and sentenced the appellants to life imprisonment on count 1 and twenty years imprisonment on count 2. The full court dismissed their appeal.

• Whether the appellants were afforded a fair trial in the sentencing proceedings
• Whether failure to inform accused persons of the applicability of the Minimum Sentences Act before conviction constitutes a procedural irregularity that prejudices the accused
• Whether the lack of notice regarding exposure to mandatory minimum sentences prior to conviction violates the right to a fair trial

The appeal was upheld. The sentences imposed by the trial court were set aside. The matter was remitted to the trial court to impose sentence afresh without the application of the Minimum Sentences Act.

An accused person must be informed of the applicability of the Minimum Sentences Act and their exposure to mandatory minimum sentences at the outset of the trial, not after conviction. Failure to provide such notice constitutes a procedural irregularity that prejudices the accused and violates the right to a fair trial in sentencing proceedings, as it deprives the accused of the opportunity to conduct their case differently with knowledge of the potential sentence they face. Where an accused is only informed of exposure to mandatory minimum sentences after conviction and while unrepresented, and there is a reasonable possibility they may have conducted their case differently with such knowledge, the sentencing proceedings are unfair and must be set aside.

The Court noted that the appellants had subjectively formed the perception that the trial judge was biased against them during trial, and that when the trial judge refused to recuse himself, they terminated their legal representatives' mandate and took no further part in the trial. While this context was noted, the Court's decision was based on the procedural irregularity regarding notice of the Minimum Sentences Act rather than on the recusal issue or the appellants' decision to proceed unrepresented during the trial itself.

This case establishes an important procedural safeguard in South African criminal law requiring that accused persons must be informed at the outset of trial if they face mandatory minimum sentences under the Minimum Sentences Act. The judgment reinforces the constitutional right to a fair trial by ensuring that accused persons have adequate notice of the potential sentences they face, which may affect their decisions regarding legal representation and trial strategy. It clarifies that failure to provide such notice constitutes a material irregularity that prejudices the accused and vitiates the fairness of sentencing proceedings.