Mhlongo v The State

On 10 March 2009, the appellant was convicted by the Regional Court, Empangeni, on one count of rape. He was sentenced to life imprisonment on 12 March 2009. The appellant was granted leave to appeal to the full court of the KwaZulu-Natal Division, Pietermaritzburg. The full court dismissed the appeal against conviction but upheld the appeal against sentence, substituting life imprisonment with 18 years' imprisonment and fixing a non-parole period of 12 years in terms of s 276B of the Criminal Procedure Act 51 of 1977. The complainant, a 27-year-old virgin, was lured by the appellant and his uncle to accept a lift home on 16 March 2006 during a bus strike. After dropping off the uncle, the appellant drove to his own home, where he demanded sexual intercourse. When the complainant refused, he assaulted her, threatened to kill her, and raped her repeatedly throughout the night. She was released the next day, went directly to a clinic to report the incident, and was subsequently diagnosed with HIV. The State placed on record that she later succumbed to AIDS. The charge sheet erroneously referred to Part 2 of Schedule 2 instead of Part 1 of Schedule 2 to s 51(1) of the Criminal Law Amendment Act 105 of 1997. The full court fixed the non-parole period without inviting counsel to address it and without giving reasons for its decision.

• Whether the error in the charge sheet referring to Part 2 instead of Part 1 of Schedule 2 to s 51(1) of the Criminal Law Amendment Act 105 of 1997 vitiated the sentencing proceedings
• Whether the fixing of a non-parole period without notice to the accused, without affording the parties an opportunity to address the court, and without giving reasons constituted a material misdirection
• What procedure must be followed when a court considers fixing a non-parole period in terms of s 276B of the Criminal Procedure Act 51 of 1977
• The proper approach to Victim Impact Statements in sentencing proceedings
• Whether the sentence of 18 years' imprisonment was appropriate in the circumstances

1. The appeal was upheld. 2. The order of the court a quo in terms of s 276B of the Criminal Procedure Act 51 of 1977 was set aside. 3. The matter was remitted to the court a quo for the parties to make representations on the desirability of granting an order in terms of s 276B of the Criminal Procedure Act 51 of 1977.

1. A non-parole period in terms of s 276B of the Criminal Procedure Act 51 of 1977 may only be fixed in exceptional circumstances after proper investigation and consideration of salient facts, not as a matter of routine. 2. Before fixing a non-parole period, the court must give notice to the accused and afford both parties an opportunity to address the court on two questions: (a) whether to impose such an order, and (b) what period to attach to the order. Failure to afford parties this opportunity constitutes a misdirection. 3. Courts must provide reasons for fixing non-parole periods. Failure to give reasons is highly prejudicial to the accused and is a vitiating factor. 4. The right to a fair trial extends throughout the entire proceedings, including the sentencing stage, and encompasses the fixing of non-parole periods. 5. A defect in the charge sheet (such as referring to the wrong part of a Schedule) does not necessarily vitiate the proceedings if the accused was otherwise sufficiently informed of the nature of the charge and the potential consequences, particularly where the accused is legally represented and demonstrates awareness of the seriousness of the charge. 6. Each case must be judged on its own facts when determining whether an irregularity in the charge sheet is material enough to vitiate the proceedings.

The court made several important non-binding observations: 1. On Victim Impact Statements: The court strongly criticized the State's failure to obtain a Victim Impact Statement and emphasized that VIS must form a permanent and integral part of the sentencing process. The court called upon the National Director of Public Prosecutions to draft comprehensive guidelines, protocols and model VIS instruments to address the "lackadaisical manner in which the State treats victims of violent crimes and in particular, rape." The court warned that if this is not dealt with decisively, the State may be held accountable for this failure of duty by victims of violent and sexual crimes. 2. On the lenient sentence: The court expressed "considerable disquiet" about the 18-year sentence imposed by the full court, suggesting it was too lenient given the brutal, callous nature of the repeated rapes and the devastating impact on the victim. The court stated: "If life imprisonment is not appropriate in a rape as brutal as this, then when would it be appropriate?" However, the court could not interfere due to the absence of a cross-appeal by the State. 3. On the State's failure to cross-appeal: The court criticized the State for failing to cross-appeal the lenient sentence and for failing to lead expert evidence on the impact of the rapes on the complainant, particularly regarding the possible link between her HIV infection and death and the appellant's conduct. The court characterized this as a "travesty of justice." 4. On the prevalence of rape: The court noted the alarming statistics on rape in South Africa, including that an estimated 1.7 million rapes occur annually but only approximately 54,000 are reported, and only 344 out of every 1,000 sexual assaults are reported to police. 5. On appeals regarding s 276B: The court observed with concern that appeals on s 276B non-parole orders from various High Court Divisions are multiplying, stating this is "inappropriate and results in cases of greater complexity and truly deserving of the attention of this Court having to compete for a place on the court roll." This suggests high courts should be more careful in properly applying s 276B provisions to avoid unnecessary appeals.

This case is significant for establishing clear procedural guidelines for the fixing of non-parole periods in South African criminal law. It emphasizes that: 1. Section 276B non-parole orders should only be made in exceptional circumstances and cannot be imposed as a matter of routine. 2. Accused persons have a constitutional right to be given notice of the court's intention to invoke s 276B and must be afforded an opportunity to address the court on both whether such an order should be made and what period should be fixed. 3. Courts must provide reasons for fixing non-parole periods. 4. Failure to follow proper procedure in fixing non-parole periods constitutes a material misdirection vitiating the order. The judgment also strengthens the importance of Victim Impact Statements in sentencing proceedings and calls for the development of comprehensive guidelines and protocols by the National Director of Public Prosecutions. The court expressed concern about the increasing number of appeals on s 276B issues, suggesting that high courts should be more careful in applying these provisions. The case underscores the tension between the legislature's mandatory sentencing regime for serious crimes like rape and the judiciary's role in ensuring procedural fairness and proportionate sentencing. It also highlights the State's duty to place all relevant information before the court, including Victim Impact Statements and expert evidence linking crimes to their consequences.