Tlhako v The State

The appellant was convicted on 19 November 2003 in the Polokwane Regional Court on two counts of robbery with aggravating circumstances (counts 5 and 8). On count 5, on 18 July 2001, the appellant and an accomplice, armed with a firearm, confronted Mr Manamela and his wife at their vehicle outside their home in Seshego. They forced them into the back seat, drove them to Seshego cemetery, and robbed them of a cellular phone, wallet, credit card, R50 cash, and the motor vehicle. On count 8, on 11 August 2001, the appellant and two others, armed with firearms, confronted Mr Sebola and Ms Madiba who were sitting in his vehicle. They drove them to Bloodriver Cemetery and robbed them of items valued over R6,500 and the motor vehicle. The appellant was sentenced to 15 years' imprisonment on each count under s 51(2)(a)(i) of the Criminal Law Amendment Act 105 of 1997 (30 years effective), despite never being informed during the trial that the Act would be applied. The appellant was 35 years old at sentencing, married with two children, and had one previous conviction for possession of stolen property in 1995.

• Whether the trial court misdirected itself by imposing a sentence in terms of the Criminal Law Amendment Act 105 of 1997 without informing the accused that the Act would be invoked
• Whether the failure to notify the accused of the State's intention to rely on the sentencing regime of the Act rendered the sentencing process unfair and constituted a violation of the right to a fair trial
• Whether the effective sentence of 30 years' imprisonment was too harsh in the circumstances
• What constitutes an appropriate sentence for robbery with aggravating circumstances balancing the interests of the accused, society, and the nature of the offence

The appeal was allowed. The order of the court below was set aside and substituted with an order that: (a) the accused is sentenced to 10 years' imprisonment in respect of count 5 and 10 years' imprisonment in respect of count 8; (b) the accused is declared incompetent to be in possession of a firearm; (c) the imposition of the sentences is ante-dated to 15 December 2003.

Where the State intends to rely on the sentencing regime created by the Criminal Law Amendment Act 105 of 1997 in the event of a conviction, the constitutional right to a fair trial generally requires that such intention be brought to the attention of the accused timeously to enable proper conduct of the defence. Failure to alert the accused of the sentencing regime intended to be relied upon precludes the use of the Act. The application of the Act without such notice constitutes a misdirection that renders the sentencing process substantially unfair. An accused person has a constitutionally protected right to a fair trial, which includes the sentencing process, and must be placed in a position to understand exactly the case he or she has to meet so that the defence can be conducted properly. When imposing sentences for multiple offences, courts must bear in mind the aggregate of the effective punishment and, where appropriate, ameliorate it, as there is generally a threshold beyond which further incarceration serves no purpose.

The court noted that while Cameron JA in S v Legoa alluded to an unfair trial, he was referring specifically to the sentencing process rather than the entire trial. The court observed that Cameron JA was reluctant to lay down a general rule requiring that specific reference to the Act must be incorporated into the charge sheet. The court emphasized that it is advisable and desirable, highly desirable in the case of an undefended accused, that the charge sheet should refer to the penalty provision to ensure a fair trial. The court commented that an effective sentence of 30 years' imprisonment is 'extremely harsh, shocking and disturbing', and that the court below was entitled to and should have intervened on that ground alone.

This case is significant in South African criminal procedure and sentencing law for establishing the principle that where the State intends to rely on the sentencing regime created by the Criminal Law Amendment Act 105 of 1997, the constitutional right to a fair trial generally requires such intention to be brought to the attention of the accused timeously to enable proper conduct of the defence. Failure to provide such notice constitutes a misdirection and precludes application of the Act's minimum sentences. The case reinforces the importance of procedural fairness in sentencing and clarifies that substantial unfairness in the sentencing process renders the sentence, rather than the entire trial, unfair. It also provides guidance on determining appropriate sentences for robbery with aggravating circumstances, emphasizing the need to balance individual circumstances against societal interests and deterrence, while ensuring that cumulative sentences do not exceed an appropriate threshold of punishment.