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[2016] ZAWCHC 2
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S v R.R and Another (13919/2013, 17/2013, BSH 9/2013) [2016] ZAWCHC 2 (7 January 2016)
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IN THE HIGH COURT OF
SOUTH AFRICA
WESTERN CAPE DIVISION,
CAPE TOWN
High Court Review Ref:
13919/2013
Magistrate’s
serial no. 17/2013
Bredasdorp Magistrates’
Court case no. BSH 9/2013
DATE: 07 JANUARY 2015
In the matter between:
THE STATE
And
[R…….] [R……..]
[A……..] [V……..]
REVIEW JUDGMENT dated 7 January 2016
BINNS-WARD J:
[1] This matter came before me on
special review on 19 September 2013. The accused, who were both
juveniles - accused no. 1 having
been 16 years of age, and accused
no. 2, 14 years old - had been convicted of robbery with aggravating
circumstances. The complainant
had been threatened with a knife
during the robbery. They were legally represented and had both
pleaded guilty to the charge.
[2] Accused no. 2 was also charged with
contravening s 55 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act
32 of 2007 (hereafter referred to for
convenience as ‘the Sexual Offences Act’). The charge
sheet alleged in that
regard that the accused had attempted to commit
a sexual offence, namely by requesting [the complainant] to remove
her trousers
(Afr. ‘gepoog om aan (sic) ’n seksuele
misdryf te pleeg te wete deur [die klaagster]. te versoek om haar
broek af te
trek’).
[3] Accused no. 1 was sentenced to a
term of three years’ correctional supervision and, in addition,
to a period of three
years’ imprisonment suspended for five
years on the usual conditions. There is no difficulty with the
proceedings in respect
of accused no. 1, and in his case the
conviction and sentence will therefore be confirmed. There is also
no reason to question
the propriety of accused no.2’s
conviction on the count of robbery.
[4] As to the charge in terms of the
Sexual Offences Act (count two on the charge sheet), the magistrate
held as follows in her
judgment :
As far as count 2 is concerned, I have
to agree with the submissions made by Mr Du Toit [the accuseds’
attorney] in that the
charge of attempted rape has not been proven.
However, contravening s 5(2) of the Sexual Offences Act has been
proven. That is
the Criminal Law Amendment Act of 2007. The
Criminal Procedure Act 261(1)(c) makes provision for the court to
convict the accused
as such and therefore satisfied the state has
proved its case as far as count 1 is concerned, and as far as count 2
is concerned,
in respect of accused no. 2, he is convicted therefore
of contravening s 5(2) of Act 32 of 2007.
[5] There are a number of difficulties
with the conviction of accused no. 2 in respect of the alleged sexual
offence. Matters were
perhaps destined to go awry because there was
a fundamental flaw in the charge sheet that was not recognised at the
outset.
[6] Section 55 of Act 32 of 2007
provides:
55 Attempt, conspiracy, incitement or
inducing another person to commit sexual offence
Any person who-
(a) attempts;
(b) conspires with any other person; or
(c) aids, abets, induces, incites,
instigates, instructs, commands, counsels or procures another person,
to commit a sexual offence in terms of
this Act, is guilty of an offence and may be liable on conviction to
the punishment to which
a person convicted of actually committing
that offence would be liable.
The term ‘sexual offence’
was defined in s 1 of the Act as follows at the relevant time:
‘“sexual offence”
means any offence in terms of Chapters 2, 3 and 4 and sections 55 and
71 (1), (2) and (6) of
this Act’.
[7] Chapters 2, 3 and 4 of the Sexual
Offences Act provide for a great variety of offences. One of them,
created in terms of s
5(2) of the Act, is to ‘unlawfully and
intentionally inspire the belief in a complainant …that [the
complainant] will
be sexually violated’. It is difficult to
conceive, however, how anyone could attempt to commit the offence
provided in
terms s 5(2) because its commission requires the
complainant to be brought to believe that he or she will be sexually
violated.
When such a belief in the complainant is induced the
offence is choate. Unless such a belief is induced, no offence is,
or can
be, committed. Questions of attempts to commit the crime thus
do not arise, for the elements of the offence require the complainant
to have formed the requisite belief. It thus cannot have been the
state’s intention to allege that the accused had attempted
(in
the sense provided in terms of s 55(a)) to contravene s 5(2) of the
Act.
[8] So what then was the sexual offence
that it was alleged that accused no. 2 had attempted to commit? The
charge did not say.
The prosecutor referred early on in the
proceedings to the charge as being one of rape. The magistrate seems
from the extract
from the judgment quoted earlier to have thought
that the charge was one of attempted rape. The common law offence of
rape has
now been replaced by the offence of an unlawful act of
sexual penetration in terms of s 3 of the Sexual Offences Act.
Requesting
some-one to remove their trousers, which is the actus reus
alleged in the charge sheet, is not an act of ‘sexual
penetration’
within the definition of that term in s 1 of the
Act. Thus any conception based on the express terms of the charge
sheet that
the accused faced a count of rape or attempted rape was
wholly without foundation. Indeed, having not identified any sexual
offence
in terms of the Act whatsoever, the charge sheet was
fundamentally defective. The essential character of any cognisable
offence
was entirely lacking.
[9] The evidence adduced at the trial
made it absolutely clear that the accused had on at least three
occasions during his knife-wielding
confrontation with the
complainant ordered her to remove her trousers. It was plainly
established in the circumstances that the
complainant believed that
she was in serious danger of being raped by him. It is also probable
that by directing her to remove
her trousers the accused intended her
to be put into that state of belief. The complainant was hardly
cross-examined. It was merely
put to her that accused no. 2 had not
intended to rape her and that he denied having told her to remove her
trousers. The accused’s
case was closed without leading any
evidence. In the circumstances it is evident that the evidence
established not the attempted
commission of an (unidentified) sexual
offence in terms of s 55 of the Act, as alleged, but rather the
commission of a choate offence
in terms of s 5(2), with which the
accused had not been charged. It is also apparent that whereas the
charge sheet purported to
prefer a charge of attempt to commit a
sexual offence not specified in the charge sheet, the accused was
convicted of the choate
commission of a sexual offence not specified
in the charge sheet.
[10] The magistrate purported to
convict the accused of contravening s 5(2) of the Act on the basis of
it being a competent verdict
in terms of
s 261(1)(c)
of the
Criminal
Procedure Act 51 of 1977
.
Section 261(1)(c)
provides, insofar as
relevant:
261 Rape, compelled rape, sexual
assault, compelled sexual assault and compelled self-sexual assault
(1) If the evidence on a charge of rape
or compelled rape, as contemplated in
sections 3
or
4
of the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act, 2007
,
respectively, or any attempt to commit any of those offences, does
not prove any such offence or an attempt to commit any such
offence,
but the offence of-
(a) …;
(b) common assault;
(c) sexual assault as contemplated in
section 5
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007
;
(d) … the accused may be found
guilty of the offence so proved.
An offence in terms of s 5(2) of the
Sexual Offences Act qualifies as ‘sexual assault as
contemplated in terms of s 5’
of that Act within the meaning of
s 261(1)(c)
of the
Criminal Procedure Act. Section
261(1), however,
only finds a basis for application if the accused has been charged
with an offence in terms of ss 3 or 4 of the
Sexual Offences Act, or
an attempt to commit any of those offences, which he clearly was not.
[11] My resulting query to the
magistrate about the competence of the conviction in terms of the
competent verdict provision unfortunately
contained a material
typographical error because it referred to s 261(2), and not
s
261(1)(c)
, of the
Criminal Procedure Act. Nevertheless
, it was
apparent from the magistrate’s response, which underlined the
words ‘rape’, ‘
section 3
’ and ‘or any
attempt to commit any of those offences’ in the introductory
part of
s 261(1)
, that she had indeed considered that the charge in
count 2 had been one of attempted rape. It was on the basis of that
apprehension
that she had regarded it to be within her power to bring
in a conviction in terms of s 5(2) of the Sexual Offences Act. It
will
be evident from the discussion in paragraphs [5]-[8], above,
that the magistrate was in point of fact misdirected as to the
character
of the charge and, like the prosecutor and apparently also
the defence attorney, had failed to appreciate the defective nature
of the charge sheet in that the type of sexual offence that the
accused was alleged to have attempted to commit was not identified
therein at all.
[12] The magistrate’s response to
my query was dated 11 December 2013. It is not apparent from the
file when it received
by the Registrar, but it seems that its
delivery must have been delayed because it was only on 16 May 2014
that I referred the
record to the Director of Public Prosecutions
(‘the DPP’) for comment. Counsel in the office of the
DPP prepared a
memorandum dated 8 September 2014, for which I am
grateful. The DPP signed a letter, dated 9 September 2014, addressed
to me enclosing
the memorandum and endorsing its content as
reflecting his own opinion. The letter and enclosure did not reach
me. The record
was returned to me only on 4 January 2016 under cover
of a letter from the DPP’s office, which stated rather
enigmatically
‘Your letter dated 16/05/2014 refers. Attached
hereto please find the original charge sheet.’ It was only
after I
had traced my query to the magistrate and the subsequent
request for comment from the DPP and caused my registrar to make
appropriate
enquiries at the office of the DPP that the
aforementioned memorandum, dated 9 September 2014, was made available
to me. The administrative
muddle that occasioned the inordinate
delay is deplorable, whatever the (as yet undetermined) reasons for
it might have been.
Fortunately, in the peculiar circumstances of
the case, the accused has not been prejudiced.
[13] The DPP has argued that because
the evidence established the commission of an offence in terms of s
5(2) of the Sexual Offences
Act, the defect in the charge sheet
should be remedied by amendment on review to bring it into line with
the proven offence.
[14] It is well established that the
High Court may amend a charge on review. It may do so by virtue of
the effect of
s 304(2)(c)(iv)
of the
Criminal Procedure Act.
However
, as pointed out in S v Barketts Transport (Edms) Bpk en ’n
Ander
1988 (1) SA 157
(A), at 160I, the power thereby afforded to the
review court is no wider than the power that the trial court could
have exercised.
The defect in the charge sheet could notionally have
been remedied by the magistrate in terms of
s 86(1)
of the
Criminal
Procedure Act at
any time before judgment by amending the charge
sheet. I have attached the qualification ‘notionally’
advisedly, because
the power conferred by
s 86(1)
is not
unrestricted. It may not be exercised unless the court is satisfied
that making the amendment will not prejudice the accused.
Furthermore, and of particular pertinence in the current matter, the
power afforded by the provision is one of amendment, not
of
substitution; see Barketts Transport supra, at 161D-I.
[15]
Section 86(1)
of the
Criminal
Procedure Act provides
:
Where a charge is defective for the
want of any essential averment therein, or where there appears to be
any variance between any
averment in a charge and the evidence
adduced in proof of such averment, or where it appears that words or
particulars that ought
to have been inserted in the charge have been
omitted therefrom, or where any words or particulars that ought to
have been omitted
from the charge have been inserted therein, or
where there is any other error in the charge, the court may, at any
time before
judgment, if it considers that the making of the relevant
amendment will not prejudice the accused in his defence, order that
the
charge, whether it discloses an offence or not, be amended, so
far as it is necessary, both in that part thereof where the defect,
variance, omission, insertion or error occurs and in any other part
thereof which it may become necessary to amend.
[16] In Barketts Transport supra, loc.
cit., Vivier JA, treating of
s 86(1)
of the
Criminal Procedure Act,
approved
the import of the word ‘amended’ pronounced in
Risley v Gough
1953 Tas SR 78
, at 79. In that case Gibson J had
remarked ‘I cannot construe the word “amended”
other than to mean the perfecting
or ameliorating of an existing
thing – not supplying a vacuum with something that should be
there’.
[17] After approving the dictum of
Gibson J, Vivier JA continued at pp. 161J-162F of the judgment in
Barketts Transport as follows:
Na my mening is 'n substitusie van
aanklagte nie 'n 'wysiging' binne die betekenis van die woord in art
86(1) nie. Hierdie uitleg
word bevestig deur die samehang waarin die
woord 'wysig' in die subartikel gebruik word, waaruit blyk dat 'n
substitusie van misdrywe
nie inbegrepe is by enige van die soort
wysigings waarvoor uitdruklik voorsiening gemaak word nie. Die
bepaalde opsigte waarin
'n aanklag ingevolge die subartikel gewysig
kan word, hou almal verband met die misdryf gemeld in die aanklag, en
is die volgende:
(a) indien 'n noodsaaklike bewering ontbreek, selfs
waar die aanklag nie 'n misdryf openbaar nie; (b) waar 'n bewering in
die aanklag
verskil van die getuienis wat as bewys van so 'n bewering
aangevoer word; (c) waar woorde of besonderhede wat in die aanklag
moes
gewees het, daaruit weggelaat is; (d) waar woorde of
besonderhede wat uit die aanklag weggelaat moes gewees het, daarby
ingevoeg
is;
(e) waar daar 'n ander fout in die
aanklag is.
'n Substitusie van een misdryf vir 'n
ander is klaarblyklik nòg 'n invoeging van 'n noodsaaklike
bewering, nòg 'n
aanpassing van 'n bewering in die aanklag by
die getuienis, nòg die invoeging van ontbrekende woorde of
besonderhede, nòg
die skrapping van woorde wat nie in die
aanklag moes verskyn het nie. Die vraag is dus of dit dien tot
regstelling van ' 'n ander
fout in die aanklag'. Mnr Marais het
betoog dat dit wel die geval is. Dit is moeilik om te sien hoedat
daar sprake kan wees van
'n 'fout in die aanklag' in die huidige
saak. Die beskuldigdes was aangekla van 'n oortreding van art
31(1)(a) van die Wet en die
klagstaat het 'n korrekte verwysing na,
en uiteensetting van, hierdie misdryf bevat. Wat gebeur het, is dat
hulle van 'n verkeerde
misdryf aangekla is, maar daar is geen sprake
van 'n fout in die sin van die soort gebreke wat in art 86(1) genoem
word nie. Na
my mening moet die woorde 'ander fout in die aanklag',
in die samehang waarin dit in art 86(1) gebruik word, eiusdem generis
vertolk
word, sodat dit verwys na 'n gebrek in die aanklag wat
soortgelyk is aan die soort gebreke wat voorheen in die subartikel
genoem
word, en nie na 'n verkeerde aanklag nie. So bv word die hof
in die laaste gedeelte van die subartikel uitdruklik gemagtig om 'n
wysiging te beveel in sowel dié deel van die aanklag waar die
'gebrek, verskil, weglating, invoeging of fout' voorkom, as
in 'n
ander deel van die aanklag wat dit nodig mag word om te wysig. In 'n
artikel in 1984 THRHR op 240, deur Delport en Van Loggerenberg,
wat
hierdie konstruksie van art 86(1) steun, word tereg daarop gewys dat
'n uitleg wat die substitusie van een misdryf deur 'n
ander toelaat,
die beginsel van ons strafprosesreg, dat 'n beskuldigde vooraf van 'n
aanklag verwittig moet word, geweld sou aandoen.
(underlining
supplied for emphasis).
The effect of Vivier JA’s
approval of the construction of the provisions advocated by Delport
and Van Loggerenberg has, of
course, now been reinforced by the fair
trial requirements in s 35(3) of the Constitution, which include (in
para (a)) the right
of an accused ‘to be informed of the charge
with sufficient detail to answer it’ (underlining supplied for
emphasis)
[18] It follows from the aforegoing
that an amendment to a charge is permissible only when the essential
character of the intended
charge (albeit in defective form) is
evident on the charge sheet to which the accused person was called
upon to plead. In the
current case the charge sheet reflected that
the accused was charged with attempting to commit a sexual offence in
terms of the
Sexual Offences Act. The content of the charge as
framed did not, however, provide any objective support for the notion
that a
charge of attempted rape was being preferred. The essential
character of that offence was not evident on the charge sheet. The
magistrate and the prosecutor’s apprehension to the contrary
does not derogate from or alter that fact. Furthermore, as
I sought
to explain earlier, an offence in terms of s 5(2) of the Act is one
that cannot be reconciled with the provisions of s
55 of the Act,
which pertains only to sexual offences which an offender may attempt
to commit. The charge laid in terms of the
charge sheet was, as
illustrated above, fundamentally predicated on s 55 of the Sexual
Offences Act, even if in a manner that did
not make out a cognisable
offence. Moreover, it is apparent from the evidence adduced by the
state at the trial that the prosecutor
would not have been in a
position to support an application, after the charge had been put and
pleaded to and the evidence adduced,
to rectify the charge sheet to
identify the sexual offence alleged as one of attempted rape, thereby
bringing the case within the
ambit of
s 261(1)
of the
Criminal
Procedure Act.
[19
] In my view it would be prejudicial
to the accused at this stage, considering a suggestion on review that
the charge sheet might
be amended, to put this court ex hypothesi in
a position that the trial court might have been at any stage before
the conclusion
of the evidence. This must be so because it is not
possible at this stage to say what effect the suggested amendment
might have
had on the accused’s response in defence had it been
moved and granted at any earlier stage.
[20] Accordingly it must be accepted at
this stage, for all the aforegoing reasons that the charge sheet is
not amenable to amendment
in terms of
s 86(1)
of the
Criminal
Procedure Act, either
to allege a charge of attempted rape, or an
offence in terms of s 5(2) of the Sexual Offences Act. The remedial
approach suggested
by the DPP thus cannot be adopted.
[21] Section 86(4) and
s 88
of the
Criminal Procedure Act also
do not provide a remedy. The first
mentioned provision is to the effect that, save if the court has
refused to amend the charge
sheet, the fact that a charge that was
amenable to amendment in terms of
s 86(1)
has not been so amended
shall not affect the validity of the proceedings. The second
mentioned provision is to the effect that
‘[w]here a charge is
defective for want of an averment which is an essential ingredient of
the relevant offence, the defect
shall, unless brought to the notice
of the court before judgment, be cured by evidence at the trial
proving the matter which should
have been averred’. I agree
with the observation by the authors of Du Toit et al Commentary on
the Criminal Procedure Act
(Juta) (Looseleaf service 52, 2014), at
14-29 – 14-30, that the import of the two provisions is
practically indistinguishable.
The point made earlier that the
essential character of the alleged offence must be evident from the
defective charge sheet to
which the accused has been asked to plead
is underscored by the words ‘the relevant offence’ in s
88. It confirms
that the essential character of a cognisable offence
must be apparent ex facie the charge sheet, even if defectively
framed to
the point of legal inadequacy. If that were not so one
would not be able to identify ‘the relevant offence’. In
other
words, the inadequacy in the charge sheet must be of such a
nature that one can relate the missing ingredient to an offence that
is identifiable on the basis of the defectively framed allegations in
the charge sheet. That was not the case in respect of count
two on
the charge sheet to which accused no. 2 was required to plead.
[22] In the circumstances it is clear
that the conviction of accused no. 2 in terms of s 5(2) of the Sexual
Offences Act was incompetent
and falls to be set aside.
[23] The magistrate treated the robbery
and the offence in terms of s 5(2) of the Sexual Offences Act as one
for the purposes of
sentence. She sentenced accused no. 2 to five
years’ compulsory residence in the Bonnytoun Child and Youth
Care Centre in
terms of
s 76(1)
of the
Child Justice Act 75 of 2008
and, in addition, to three years’ imprisonment suspended for
five years on condition that he not be convicted of robbery,
theft,
assault with intent to do grievous bodily harm or any attempt to
commit such offences during the period of suspension.
The effective
date of the sentence was antedated to 24 October 2012 (being the date
of the accused’s arrest) in terms of
s 77(5)
of the
Child
Justice Act as
it read prior to its amendment, with effect from 19
May 2014, in terms of s 5 of the Judicial Matters Amendment Act 14 of
2014.
In my view, the sentence imposed remains appropriate despite
the setting aside of the conviction in terms of s 5(2) of the Sexual
Offences Act.
[24] In the result the following order
is made:
1. The conviction and sentence of
accused no. 1 in respect of count one (robbery with aggravating
circumstances) are confirmed on
review.
2. The conviction of accused no. 2
under the defectively framed charge in count two of having committed
an offence in terms of
s 5(2)
of the
Criminal Law (Sexual Offences
and Related Matters) Amendment Act 32 of 2007
is set aside.
3. The conviction of accused no. 2 in
respect of count one (robbery with aggravating circumstances) is
confirmed on review.
4. The sentence of five years’
compulsory residence in the Bonnytoun Child and Youth Care Centre
and, in addition three years’
imprisonment wholly suspended for
five years on condition that he not be convicted of robbery, theft,
assault with intent to do
grievous bodily harm or any attempt to
commit such offences during the period of suspension, imposed on
accused no. 2 in respect
of counts one and two treated as one for the
purposes of sentence and antedated to 24 October 2012 is confirmed in
respect of count
one, and shall be deemed to have been imposed in
respect of count one considered alone.
A.G. BINNS-WARD
Judge of the High Court
STEYN J:
I agree.
E.T. STEYN
Judge of the High Court