Thakeli v S

The appellants, Mr Sente Joseph Thakeli (first appellant) and Mr Samuel Zambuk Marumo (second appellant), were indicted in the regional court, Welkom, on a charge of murder read with s 51(2) of the Criminal Law Amendment Act 105 of 1997. Both appellants pleaded not guilty. The State led evidence that the appellants confronted the unarmed deceased at his home and brutally stabbed him with a pitchfork and knives. The deceased succumbed to his injuries from eight stab wounds, four of which penetrated the heart and chest. The appellants denied involvement in the murder. After the close of the defence case, the State was allowed to re-open its case and two witnesses testified. At the end of their testimony, the trial court amended the charge sheet in terms of s 86(4) of the Criminal Procedure Act 51 of 1977 by deleting the reference to subsection (2) of s 51, without affording the appellants any opportunity to address the court on the question of prejudice or whether the amendment should be effected. The appellants were convicted on 23 August 2011 of murder in terms of s 51(1) read with Part 1 of Schedule 2, and sentenced to 28 years' imprisonment each (finding substantial and compelling circumstances to depart from life imprisonment). Their appeal against conviction and sentence to the Free State High Court was dismissed on 23 March 2016. They appealed to the SCA against sentence only with special leave.

• Whether the trial court misdirected itself by amending the charge sheet after the appellants had pleaded and testified to a charge of murder read with s 51(2) of the Act, and then convicting them in terms of s 51(1), thereby increasing the sentence faced by the appellants
• Whether the amendment of the charge sheet after all evidence had been led, without affording the appellants an opportunity to address the court on prejudice, constituted a fundamental irregularity
• Whether there were substantial and compelling circumstances justifying a deviation from the prescribed minimum sentence of 15 years' imprisonment under s 51(2) of the Act

1. The appeal against the sentence imposed on both appellants is upheld. 2. The sentence imposed by the trial court on the appellants is set aside and substituted with: 'Accused 1 and accused 4 are each sentenced to 15 years' imprisonment.'

An accused person must be apprised from the outset what charge he or she has to meet and its consequences, as such knowledge dictates decisions that affect the right to a fair trial, including whether to conduct one's own defence, apply for legal aid, testify, and what witnesses to call. Where the trial court amends a charge sheet after the accused has pleaded and all evidence has been led, thereby exposing the accused to a higher prescribed minimum sentence (from s 51(2) to s 51(1) of the Criminal Law Amendment Act 105 of 1997), without affording the accused any opportunity to address the court on the question of prejudice and whether the amendment should be effected, this constitutes a fundamental irregularity that infringes fair trial rights and destroys the validity of the amendment. In such circumstances, it is not possible to say with certainty that the accused suffered no prejudice, as they may have conducted their defence differently had they known the true nature of the charge from the outset.

The court noted that in cases of serious crime, the personal circumstances of the offender, by themselves, will necessarily recede into the background (referring to S v Vilakazi 2009 (1) SACR 552 (SCA) para 58). The court also observed, without deciding, that the circumstances in which it might suffice to bring the State's intention to rely on the sentencing regime of the Criminal Law Amendment Act to the accused's attention only during the course of the trial, rather than at the outset, would require at least that the accused be given sufficient notice to enable him to conduct his defence properly (referring to S v Ndlovu 2003 (1) SACR 331 (SCA)).

This case is significant in South African criminal procedure and sentencing law as it reaffirms the fundamental principle that an accused person must know from the outset what charges they face and the consequences thereof. The judgment emphasizes that this knowledge is essential for a fair trial as it affects critical decisions about how to conduct a defence. The case establishes that amendment of a charge sheet after evidence has been led, particularly when it increases the potential sentence an accused faces (from s 51(2) to s 51(1) of the Criminal Law Amendment Act), without affording the accused an opportunity to address the court on prejudice, constitutes a fundamental irregularity that vitiates the proceedings. The case also reinforces the principle from S v Makatu and S v Ndlovu that where the State intends to rely on the sentencing regime created by the Criminal Law Amendment Act, a fair trial demands that this intention be brought to the accused's attention at the outset. The judgment demonstrates the courts' commitment to protecting fair trial rights even in cases involving serious violent crimes.