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[2016] ZASCA 153
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Seedat v S (731/2015) [2016] ZASCA 153; 2017 (1) SACR 141 (SCA) (3 October 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 731/2015
In
the matter between:
ABOO
BAKER
SEEDAT
APPELLANT
and
THE
STATE RESPONDENT
Neutral
Citation:
Seedat
v S
(731/2015)
[2016] ZASCA 153
(03 October 2016)
Coram:
Tshiqi,
Seriti, Saldulker and Mathopo JJA and Fourie AJA
Heard:
24
August 2016
Delivered:
03
October 2016
Summary:
Criminal
Law and Procedure – Conviction of rape where minimum sentence
applied – Appeal by the state on a question of
law –
Section 311 of the Criminal Procedure Act applicable – Sentence
imposed by court and ‘restorative justice
award’ not
competent in terms of ss 279(1) and (4) of the Act – Sentence
set aside and substituted with sentence of
four years’
imprisonment.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Mavundla J and Strauss AJ
sitting as court of appeal): reported
sub
nom
S
v Seedat
2015 (2) SACR 612
(GP).
1.
The appeal
against the conviction is dismissed.
2.
The appeal
by the State against the sentence imposed by the full bench is
upheld.
3.
The
sentence imposed by the full bench is set aside and is substituted as
follows:
‘
The accused is
sentenced to four years’ imprisonment.’
JUDGMENT
Tshiqi
JA (Seriti, Saldulker, and Mathopo JJA and Fourie AJA concurring)
[1]
The
appellant, Mr Aboo Baker Seedat, aged 60 at the time, was charged in
the Schweizer-Reneke Regional Court with rape, read with
the
provisions of ss 51 and 52 of the Criminal Law Amendment Act 105 of
1997 (the minimum sentence legislation). He had legal representation
and pleaded not guilty. It was alleged that he raped Ms J M, then a
57 year old woman, by inserting his penis into her vagina.
He was
convicted and sentenced to 7 years’ imprisonment and was at the
time of the sentence aged 63 years.
[2]
The rape
for which the appellant was convicted allegedly occurred at the
complainant’s home in her bedroom. It is common cause
that on
the day of the alleged incident the appellant, a general dealer
visited the complainant’s home in order to deliver
a bed-side
lamp and groceries that were bought by the complainant’s
daughter from the appellant’s shop. When he arrived
the
complainant was alone in her home and she allowed him to enter the
house and also permitted him to enter the bedroom, apparently
to test
whether the lamp was in working condition. He connected the lamp and
they were both satisfied that it was indeed in working
condition.
[3]
Their
respective versions on what occurred thereafter differ. The
complainant testified that as she turned around to leave the bedroom,
the appellant grabbed her, threw her against the dressing table,
pulled off her trousers and panties, picked her up and threw her
on
her back and penetrated her from behind and had anal intercourse with
her. Thereafter he turned her around and had vaginal intercourse
with
her. After finishing he then left. She stated that during the
incident she screamed but no one heard her.
[4]
She ran
outside screaming but no one was there. She then went back into the
house and tried to phone the police at Schweizer-Reneke,
but her
phone-call was not picked up. She then dialled her daughter’s
cellular phone number so as to send her a “missed
call”’.
When her daughter called her back, she accused her of having sent the
appellant to her house, but this she
said was ‘want ek was baie
geskok en dit was baie lelik wat ek vir haar gese het. En sy het
gedink ek maak n grap.’
She thereafter cleaned herself because
she was full of blood between her legs and the blood was running down
her legs. She drank
sleeping pills and went to her bed, and slept.
The next day she woke up around 10h00, drank coffee, ate and paced
around in her
house. When her domestic worker came to her house, she
told her about the incident and the domestic worker in turn called
the complainant’s
neighbour who was also informed about the
alleged incident. When her daughter ultimately came the complainant
was accompanied to
the police station and thereafter to hospital
where she was examined by a medical practitioner, Dr D M Nganda.
[5]
A
medico-legal examination report completed by Dr Nganda after the
examination (J88) was admitted into evidence by agreement between
the
parties and its contents were not in dispute. In fact, defence
counsel admitted it in terms of s 220 of the Criminal Procedure
Act
51 of 1977 (the Act). As a result Dr Nganda, who was available, was
not called to testify. He recorded the following findings
on the
J88:
‘
[P]atient was anxious, stressed
and crying that day.
Clinical findings
After my physical, psychological and
genital examination there is evidence probable of dry penetration.
From genital organ there was abrasion
on perennial area.
From anus there is traumatic lesion
with penetration.
Gynaecological Examination:
Painfully, Labia majora inflamed
Fourchette: Abrasion
Perineum, anus: perineum abrasions and
inflamed anus
Discharge, haemorrhage: slight blood’.
On the schematic drawing
Dr Nganda noted that there was an abrasion on the vaginal area and
that the anus was inflamed.
In response to a standard
question in the J88 on whether the person bathed, urinated, douched
or changed clothing since the alleged
offence took place, the doctor
circled ‘no’ as the applicable option.
[6]
The State
also led the evidence of the complainant’s daughter, Ms M K.
She confirmed that she had received a missed call notification
from
the complainant’s phone on the date of the alleged rape and
that when she spoke to her the following day, the Sunday,
the
complainant accused her of sending the appellant to her house to rape
her. She also confirmed that she was there when the complainant
was
taken to the police station and to hospital.
[7]
The
appellant testified in his own defence and called two witnesses: his
son, Mr Josef Seedat and the complainant’s neighbour,
Mr C L
Butler. The appellant agreed that he had visited the complainant’s
home to deliver the lamp, confirmed that he entered
the house, tested
the lamp and that only the two of them were inside the house. He
however denied that he raped her. He stated
that he left immediately
after satisfying himself that the lamp was in working condition. He
did not dispute the complainant’s
version that she was raped
but instead suggested that she may have been raped by someone else.
He also suggested that the complainant
was intoxicated on the day of
the incident and that she probably falsely accused him because she
had been too drunk to recall who
had raped her.
[8]
The
evidence of Mr Josef Seedat and Mr Butler did not really assist the
appellant. They both did not know what happened at the complainant’s
house or in her bedroom. Mr Butler confirmed that he saw the
appellant when he arrived as he was outside but that he subsequently
entered his house. Whilst in the house he did not see or hear
anything and when he went outside again he realised that the
appellant
was gone. Mr Butler could thus not shed light on what
happened inside the complainant’s house and her yard. Mr Josef
Seedat
was not even there on the day of the incident. The complainant
was thus a single witness in connection with the alleged rape
incident.
[9]
The
magistrate found that although the complainant was a single witness,
she did not contradict herself and was able to answer the
questions
honestly despite having been subjected to lengthy cross-examination.
The magistrate accepted her evidence, rejected that
of the appellant,
convicted him of one count of rape and postponed the matter for
sentencing.
[10]
On the day
on which the sentencing proceedings were scheduled to commence,
appellant’s counsel made an application for the
case to be
re-opened as he wished to lead further medical evidence of Drs Kajee
and Okanlomo, and to present DNA results which
were not presented to
the court by the State. The two doctors did not examine the
complainant but had looked at the clinical findings
on the J88 and
would have been called in order to express certain opinions on the
findings. Regarding the DNA results, counsel
for the appellant wished
to take issue with the finding on the DNA results which stated: ‘no
presumable semen could be detected
and consequently no DNA comparison
was carried out’. This, counsel argued, was at odds with the
examining doctor’s
note on the J88 stating that she did not
bath, urinate, douche or change clothing since the alleged offence
took place. Counsel
contended that the medical evidence and the DNA
results would show that the complainant was not raped. This
submission was made
despite the fact that the J88 was admitted by
agreement and the appellant did not dispute its contents and also did
not dispute
that the complainant was raped. Counsel also took issue
with what was described as dry penetration in the J88. He submitted
that
it was necessary for it to be clarified. The magistrate
dismissed the application to re-open the case on the basis that he
was
functus
officio
as he had already convicted the appellant. The matter then proceeded
to the sentencing stage.
[11]
In
mitigation of sentence, counsel for the appellant led the evidence of
Dr Kajee who testified that the appellant had been suffering
from
heart problems for some time before the date of sentencing and had a
very severe skin problem called psoriasis which caused
arthritis
complications. Appellant’s counsel also led the evidence of a
clinical psychologist who prepared a pre-sentencing
report after she
had interviewed both the appellant and the complainant. Concerning
the appellant’s personal circumstances,
the clinical
psychologist stated inter alia that: The appellant is married, his
wife is unemployed, he uses medication for his
heart condition, has
cholesterol and hypertension. He is a businessman, but he informed
the clinical psychologist that his business
was adversely affected by
the incident as people in the community labelled him as a man of
Indian origin who had raped a white
woman. The clinical psychologist
also stated that she had interviewed other members of the appellant’s
community who told
her that he is a helpful and caring person and is
involved in many charity organisations. She also informed the court
that she
had sight of the appellant’s schedule reflecting
previous convictions (SAP 69) and noted that his convictions dated
back
17 years.
[12]
Regarding
the complainant, the clinical psychologist stated that the
complainant had informed her that she received counselling
after the
rape and was able to move on with her life but would never forget the
rape incident. She confirmed that the complainant
was 58 years old at
the time of the incident and had not had any sexual relationship for
26 years. An HIV test conducted after
the rape was negative. The
clinical psychologist informed the court that the complainant had
informed her that she wished that
the court would impose a community
based sentence on the appellant and also make an order for financial
compensation to be paid
by the appellant to her for the rape and
trauma she suffered. She asked the clinical psychologist to convey
her request to the
court. She wanted the appellant to pay her
R500 000 and also purchase a Toyota motor vehicle for her but
was even willing
to accept an amount of R100 000 as she was in a
dire financial situation at the time. She also told the clinical
psychologist
that she gave up her home subsequent to the incident as
it was destroyed by unknown people.
[13]
The
clinical psychologist also conveyed to the court that the complainant
had informed her that she and her daughter had approached
the
prosecutor soon after the criminal proceedings had commenced and made
her request for compensation. The complainant also told
her that she
had a serious problem with alcohol and at times experienced blackouts
such that her children had, in the past asked
for intervention from
social workers.
[14]
The
complainant testified in aggravation of sentence. She confirmed that
she had asked for compensation in the amount of R500 000
and
also asked for a Toyota motor vehicle. Her testimony in that regard
proceeded as follows:
‘
Prosecutor:
. . . Wat watse vonnis moet die beskuldigde opge-lê word?
Complainant: Ek glo nie daar is
regtig ‘n regverdige veroordeling vir hom behalwe doodstraf.
Want wat hy aan my gedoen
het, is baie erg. En daarom het ek besluit
om van sy geld weg te vat, wat ek in my paar dae (tussenbei).
. . .
Prosecutor: Sê
vir my die, die idee van geldelike vergoeding vir die saak, van
wanneer af het u die idee
gehad ten opsigte van die aangeleentheid se
afhandeling?
Complainant: Ag weet jy my, die
tyd het, ek kan nie glo dis al so lank wat ek sukkel met hierdie saak
om afgehandel te kry
nie en dit het nou plus-minus ‘n jaar en
‘n half, miskien gouer, miskien ag reg van die begin af wou ek
geld eis dalk,
ek weet nie regtig wanneer het dit tot by my, my
deurgedring, hoekom moet ek swaar kry? Hy gaan sit in die
tronk, more or
oormore word hy vrygelaat en loop en lag en ek sit nog
steeds waar ek sit.
. . .
. . . Ek word ouer by die dag. My
vervoer is pateties. Hoekom moet ek nog bly sukkel as ‘n
voordeel kan trek vir die skade
wat ek gely het.’
[15]
After the
complainant testified in aggravation of sentence, the matter was
adjourned for a few minutes to enable the State and the
defence
counsel to discuss the request for financial compensation by the
complainant. When the trial court reconvened, the State
did not
support her request for financial compensation but argued for a
lengthy term of imprisonment.
[16]
In imposing
sentence, the trial court found the factors that: the complainant was
a first offender (in the light of the fact that
his previous
convictions were more than 10 years ago); his advanced age; and the
fact that he was not in good health – to
be substantial and
compelling circumstances that justified deviation from the prescribed
minimum sentence of 10 years imprisonment.
It then sentenced the
appellant to a term of 7 years’ imprisonment.
[17]
The
appellant brought an application for leave to appeal against the
conviction and sentence and simultaneously brought an application
for
leave to adduce further evidence in terms of s 309B of the Act. Leave
to appeal against the conviction and sentence was granted
by the
trial court to the high court, but it did not grant leave to adduce
further evidence. Leave to appeal the refusal of the
application to
adduce evidence was subsequently granted by the high court on
petition. The high court thus had to deal with the
merits of the
appeal against the conviction and sentence together with the
application to adduce further evidence.
[18]
The
Gauteng
Division, Pretoria (Mavundla J and Strauss AJ)
dismissed the application
for leave to adduce further evidence. In respect of the merits, it
dismissed the appeal on the conviction
but set aside the sentence
imposed and substituted it as follows: (para 50):
‘
That the sentencing of the
accused is suspended for a period of five years on the following
conditions:
(i) That the accused pays the
complainant a total amount of R100 000 as follows:
(a) R10 000 within ten days of
the delivering of this order;
(b) R2 500 per month to be paid on or
before 7th of every subsequent month until the full payment of the
total amount of R100 000
mentioned herein above.
(c)
That all the above mentioned
amounts shall be paid into the bank account of the complainant the
details of which to be provided
to the appellant by the complainant,
within ten days of the grant of this order.’
[19]
The
Director of Public Prosecutions, Gauteng sought special leave to
appeal to this court against the sentence of the high court
on the
basis that the sentence was incompetent and invalid. This court
granted special leave in that regard to the State on 3 August
2015.
The appellant now also appeals against the conviction, special leave
to appeal against the conviction having been granted
by this court on
10 November 2015. However in terms of the heads filed on his behalf,
he also seeks an order that the matter be
remitted to the trial court
for a re-hearing on two grounds: First, in that the high court erred
in dismissing his application
to lead further evidence; and second,
he contends that the quality of legal representation during the trial
was poor and that he,
as a result did not enjoy a fair trial. The
appeal of the State on the other hand is grounded on s 311 of the Act
and it submits
that the high court, sitting as a court of appeal
committed an error on a question of law.
The
application for leave to adduce further evidence and the attack on
the quality of legal representation
[20]
The State
has correctly submitted that this court did not grant the appellant
special leave to appeal against the refusal by the
high court to
allow the appellant to lead further evidence and the issue pertaining
to the quality of legal representation. These
issues were raised in
the appellant’s application for special leave to appeal to this
court but the court granted the appellant
special leave to appeal
against conviction only. These two issues are thus not before
us. I shall however deal with them
briefly merely for the purposes of
illustrating that they both have no merit.
[21]
The grounds
for leading of further evidence, were summed up by this court in
S
v De Jager
1965 (2) SA 612
(A) as follows (at 613D):
(a)
There
should be a reasonably sufficient explanation, based on allegations
which may be true, why the evidence which is sought to
be led was not
led at the trial.
(b)
There
should be a prima facie likelihood of the truth of the evidence; and
(c)
The
evidence should be materially relevant to the outcome of the trial.
(See
also
S v Britz
[2010] ZASCA 71
;
2010 (2) SACR 524
(SCA) para
5;
S v Marais
[2010] ZACC 16
;
2010 (2) SACR 606
(CC) para 21;
and
S v Mulula
[2014] ZASCA 103
paras 12-14.)
[22]
On the
first requirement, I agree with the magistrate that there was no
reasonable explanation given why the evidence was not led
earlier. On
the further two requirements, the high court was correct in stating
that the medical evidence sought to be introduced
would not negate
the fact that the complainant had abrasions on her genitalia and
inflammation of her anus. It would also not show
that Dr Nganda was
wrong when he noted that there had been slight blood on her genitalia
and that ‘she was anxious, stressed
and crying that day’.
The discrepancy between Dr Nganda’s notes in the J88 and the
evidence of the complainant on whether
she had bathed, urinated,
douched or changed clothing since the alleged offence cannot be
resolved by medical evidence. In any
event, the appellant’s
defence was not that the complainant was not raped. He simply denied
that he was the culprit. All
that was required of the State was to
prove that he was the perpetrator. Absent any misdirections on the
part of the trial court,
it is not in the interests of justice that
issues of fact, once judicially investigated and determined, should
lightly be re-opened
and amplified. There is always a possibility
that an accused, having seen where the shoe pinches – to put it
colloquially,
may tend to recast evidence to meet the difficulty. It
seems to me that this is what the appellant seeks to do in this
matter.
(See
S
v Ndweni & others
1999 (2) SACR 225
(SCA) at 227
e
).
There is thus no merit in the application to lead further evidence.
[23]
With regard
to the criticism levelled at the quality of legal representation of
the appellant during the trial, the high court correctly
stated that
the issue whether an accused had a fair trial is a value judgment
arrived at by looking at the trial record. Ultimately,
fairness is an
issue which has to be decided upon the facts of each case, and the
trial judge is the person best placed to make
that decision. (See
Key
v Attorney-General, Cape Provincial Division & another
[1996] ZACC 25
; 1996 (4) SA187 (CC) para 13;
S
v Bogaards
[2012] ZACC 23
; 2013(1) SACR 1 (CC) para 91.) A perusal of the trial
record shows that counsel representing the appellant during the trial
had
subjected the State witnesses to intense cross-examination and
was a well-grounded and seasoned practitioner. The finding by the
high court concerning the quality of the legal representation can
thus not be faulted.
The
merits of the conviction
[24]
The
appellant and the complainant knew each other before the day of the
incident. He admitted that on the day of the incident, he
visited the
complainant’s home, entered the house to deliver the bed-side
lamp and checked whether it was in working condition,
thus placing
himself at the scene of the alleged rape. His evidence in that regard
supports that of the complainant. The only point
of difference in
their versions is whether he raped her as alleged by the complainant
or delivered the lamp and left, as he stated.
The complainant did not
contradict herself on what happened during the alleged rape incident.
Although she was only examined by
a doctor the next day, the J88
supports her version that vaginal and anal penetration took place in
that it states that her genitalia
were bruised and the anus inflamed.
Her version that she called her daughter’s cellular phone
immediately after the incident
was corroborated by her daughter who
confirmed that she had received a missed call notification from the
complainant’s phone
on the date of the alleged rape. Her
daughter also confirmed that when she spoke to the complainant the
next day, the complainant
accused her of sending the appellant to her
house to rape her.
[25]
In an
attempt to attack the complainant’s credibility and
consequently the conviction, counsel for the appellant has suggested
that the complainant’s repeated requests for monetary
compensation and for the purchase of a motor vehicle should be taken
to mean that the complainant was not raped but that she falsely
implicated the appellant in order to extort money from him. That
inference is not supported by the evidence. When the complainant was
questioned on her request for financial compensation she explained
her thinking and stated:
‘
[H]oekom moet ek swaar kry? Hy
gaan sit in die tronk, more or oormore word hy vrygelaat en loop en
lag en ek sit nog steeds waar
ek sit.
. . .
. . . Ek word ouer by die dag. My
vervoer is pateties. Hoekom moet ek nog bly sukkel as ‘n
voordeel kan trek vir die skade
wat ek gely het . . .’
[26]
I accept,
that it is very rare, that a complainant in a rape case would
motivate for a lenient sentence to be imposed on an accused
in
exchange for financial compensation. But does this mean that she
fabricated the rape allegations? I think not. She informed
the court
that she believed that the appellant would be freed very soon, come
back and laugh and nothing would have changed on
her part. She also
informed the court that she needed the motor vehicle as her own motor
vehicle was not in a good condition. Her
request may have been
unusual and unwise but, in light of the evidence, I am not convinced
that it was in perpetuation of a desire
to blackmail the appellant.
[27]
I am
fortified in this view by the fact that she did not approach the
appellant directly about this request immediately after the
date of
the alleged incident even though she knew where his business is
located. She made the request approximately a year after
the incident
and when she eventually did so, she did not approach him directly but
made it through the prosecutor and also informed
the clinical
psychologist about it. In court, during her testimony in aggravation
of sentence, she repeated the requests. I did
not get the impression
that she was blackmailing him. In fact it appears that she genuinely
thought that it was the best way to
punish the appellant. I say so
because she prefixed the request by saying that the crime is very
serious and she believed that
an appropriate punishment was nothing
short of a ‘death sentence’. She said:
‘
Ek glo nie daar is regtig ‘n
regverdige veroordeling vir hom behalwe doodstraf. Want wat hy aan my
gedoen het, is baie erg.’
Her
sentiments on the seriousness of the offence cannot be ignored and a
conclusion that she falsely implicated the complainant
in order to
extort money from him is not justified.
[28]
Counsel for
the appellant sought to persuade us to find that the failure by the
State to adduce evidence of the sexual assault evidence
kit is
indicative of the complainant not having been raped at all, and the
fact that the DNA test was negative indicated that possibly
no sexual
act took place. The DNA results are self explanatory and simply
state:
‘
No presumable semen could be
detected on (3 genital, 2 rectal oral swabs) panty and cotton.
Consequently no DNA comparison will
be carried out.
Due to numerous factors that can lead
to negative preliminary results, the possibility of penetration
and/or ejaculation cannot
be excluded.’
That
does not, in my view, support the submission that she was not raped.
On the contrary the DNA results state that that the negative
finding
does not exclude penetration or ejaculation. The fact that no semen
could be detected is also not a conclusive indication
that sexual
intercourse did not take place. It may well be attributed to the fact
that the complainant reported the rape to the
police station the next
day after she had ‘cleaned herself’. Although she did not
elaborate on how she cleaned herself,
the J88 states there was still
discharge and slight blood in her genitalia. At best for the
appellant the DNA results are neutral
but it cannot be concluded that
they show that no sexual act took place. For all those reasons there
is no basis to find that the
trial court erred in convicting the
appellant.
The
appeal by the State against sentence
[29]
The appeal
by the State is against the sentence imposed by the high court
sitting as a court of appeal. The right of the State to
appeal
against sentence imposed by lower and superior courts was clarified
by this court in
Director
of Public Prosecutions v Olivier
[2005] ZASCA 121
;
2006 (1) SACR 380
(SCA) para 13 to 15, thus:
‘
The Criminal Law Amendment Act,
107 of 1990 introduced ss 310A and 316B, which granted the DPP the
right to appeal against sentences
imposed by lower and superior
courts. Before that no such right existed.
Section 310A(1) deals with an appeal
by the DPP against a sentence imposed by a lower court:
“
The
attorney-general may appeal against a sentence imposed upon an
accused in a criminal case in a lower court, to the provincial
or
local division having jurisdiction, provided that an application for
leave to appeal has been granted by a Judge in chambers.”
Section 316B(1) of the CPA deals with
appeals against sentence by the DPP to this court:
“
Subject
to subsection (2), the attorney-general may appeal to the Appellate
Division against a sentence imposed upon an accused
in a criminal
case in a Superior Court.”
This subsection provides for appeals
to this Court from a sentence imposed by a superior court. This does
not mean a superior court
sitting as a court of appeal. It clearly
means a superior court sitting as a court of first instance.’
(See
also
Director of Public Prosecutions, North Gauteng v Thabethe
[2011] ZASCA 186
;
2011 (2) SACR 567
(SCA) paras 15 and 21;
S v
Nabolisa
[2013] ZACC 17
;
2013 (2) SACR 221
(CC) para 81 to 82.)
[30]
In
Olivier
,
this court was not required to deal with the right of the State to
appeal from a decision of a provincial or local division on
appeal,
where the State seeks to set aside a decision on the basis that it
was occasioned by an error on a question of law. Such
appeals may be
brought in terms of s 311 of the Act but its provisions did not arise
in
Olivier
and were thus not considered. Section 311 of the Act provides:
(
1)
Where the provincial or local division on appeal, whether brought by
the attorney-general or other prosecutor or the person convicted,
gives a decision in favour of the person convicted on a question of
law, the attorney-general or other prosecutor against whom
the
decision is given may appeal to the Appellate Division of the Supreme
Court, which shall, if it decides the matter in issue
in favour of
the appellant, set aside or vary the decision appealed from and, if
the matter was brought before the provincial or
local division in
terms of-
(a)
section 309 (1), re-instate
the conviction, sentence or order of the lower court appealed from,
either in its original form or in
such a modified form as the said
Appellate Division may consider desirable; or
(b)
section 310 (2), give such
decision or take such action as the provincial or local division
ought, in the opinion of the said Appellate
Division, to have given
or taken (including any action under section 310 (5)), and thereupon
the provisions of section 310 (4)
shall
mutatis
mutandis
apply.
This
appeal falls squarely within the scope of the provisions of s 311 and
this court has jurisdiction to entertain it.
[31]
The
criticism levelled at the high court, before us, is that when it
sought to justify its decision to substitute the sentence imposed
by
the trial court, it sought to place reliance on ss 297(1) and (4) of
the Act, but that in its reasoning, it conflated those
provisions. As
a result, so the argument goes, it imposed a sentence that is
incompetent, unenforceable and which exceeded its
powers.
[32]
Section
297(1)
(a)
(i)
(aa)
and
(4) provide:
‘
(1) Where a court convicts a
person of any offence, other than an offence in respect of which any
law prescribes a minimum punishment,
the court may in its discretion-
(a)
postpone for a period not
exceeding five years the passing of sentence and release the person
concerned-
(i) on one or more conditions, whether
as to-
(aa)
compensation;
.
. .
(4) Where a court convicts a person of
an offence in respect of which any law prescribes a minimum
punishment, the court may in
its discretion pass sentence but order
the operation of a part thereof to be suspended for a period not
exceeding five years on
any condition referred to in paragraph
(a)
(i) of subsection (1).’
[33]
Section
297(1)
(a)
(i)
(aa)
permits
a court that convicts a person for an offence
other
than an offence in respect of which any law prescribes a minimum
punishment
,
to
postpone
the passing of sentence for a period not exceeding five years and
release that person concerned on one or more conditions , including
compensation. Section 297(4) on the other hand permits a court that
convicts
a person of an offence of which any law prescribes a minimum
punishment
,
to pass sentence in its discretion and to order the operation of a
part thereof to be
suspended
for a
period not exceeding five years on any condition referred to in
paragraph
(a)
of subsection (1).
[34]
The high
court accepted that the trial court was correct in its finding that
there were substantial compelling circumstances that
justified
deviation from the prescribed minimum sentence. It then stated that
the trial court did not consider s 297(1). The high
court then
reasoned that once the magistrate was no longer enjoined to sentence
the appellant in terms of the prescribed minimum
sentence, ‘he
was at large to suspend the imposition of sentence for five years,
and make a restorative justice award’.
[35]
This
reasoning by the high court is flawed. Section 297(1), was not
available as a sentencing option in this matter and could not
be
invoked because it specifically prohibits postponement of a sentence
where a person has been convicted of an offence in respect
of which
the law prescribes a minimum sentence. In any event Section 297(1)
does not provide for
suspension
but for
postponement
of
sentence.
[36]
If it was
the intention of the high court to invoke the provisions of s 297(4),
it could do so, as it had already accepted that
there were
substantial and compelling circumstances that justified a deviation
from the prescribed minimum sentence. However, in
order for that
sentence to be competent, the court would have to impose a sentence
for a specific term of imprisonment. The court
could then order that
the operation of a part of that term of imprisonment be suspended for
a specific period not exceeding five
years on any condition,
including compensation. This is not what the court did. It instead
stated that ‘the
sentencing
of the appellant is suspended for a period of five years
on the following conditions. . .’ In so doing, it did not
impose a specific sentence or a specific term of imprisonment.
Such a
sentence is not competent in terms of s 297 and there is no provision
in law permitting a court to so
suspend
the
sentencing of an accused. The unintended consequence occasioned by
the error committed by the high court was that there was
no competent
sentence imposed on the appellant.
[37]
There is
another reason why the sentence imposed by the high court cannot
stand. Section 297(4) envisages that only
a
part of the sentence should be suspended
and not the whole sentence. So, even if the court sought to impose a
suspended sentence, it could not suspend the whole sentence.
For all
those reasons the high court thus committed an error on a question of
law and the sentence it imposed stands to be set
aside. It thus
remains for this court to consider an appropriate sentence.
[38]
I have no
difficulty in accepting the finding by both the trial and high court
that there were substantial and compelling circumstances
that
justified deviation from the prescribed minimum sentence. The
appellant is an elderly man who was a first offender (in the
light of
the fact that his previous convictions were more than 10 years ago),
and he was not in good health. I, however do not
share the sentiments
of the high court that restorative justice is an appropriate
sentencing option in this matter. As this court
stated in
Director
of Public Prosecutions, North Gauteng v Thabethe
[2011] ZASCA 186
;
2011 (2) SACR 569
(SCA) para 20:
‘
I have no doubt about the
advantages of restorative justice as a viable alternative sentencing
option provided it is applied in
appropriate cases. Without
attempting to lay down a general rule I feel obliged to caution
seriously against the use of restorative
justice as a sentence for
serious offences which evoke profound feelings of outrage and
revulsion amongst law abiding and right-thinking
members of society.
An ill-considered application of restorative justice to an
inappropriate case is likely to debase it and make
it lose its
credibility as a viable sentencing option’.
In
regard to the wishes of the victim the court stated (para 21):
‘
A controversial and intractable
question remains: do the views of the victim of the crime have a role
to play in the determination
of an appropriate sentence? If so, what
weight is to be attached thereto? That the victim’s voice
deserves to be heard admits
of no doubt. After all, it is the victim
who bears the real brunt of the offence committed against him or her.
It is only fair
that he/she be heard on, amongst other things, how
the crime has affected him/her. This does not mean, however, that
his/her views
are decisive’.
[39]
Whilst I
accept that the complainant may have thought that it would be
appropriate to make the appellant rather pay monetary compensation
for what he did, her views are not the only factor to be taken into
account. Rape has become a scourge in our society and the courts
are
under a duty to send a clear message, not only to the accused, but to
other potential rapists and to the community that it
will not be
tolerated. (See
S
v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) at 344-345D.) Whilst the object of sentencing
is not to satisfy public opinion, it needs to serve the public
interest. (See
S
v Mhlakaza & another
1997 (1) SACR 515
(SCA) at 518
e-f
;
S v
Maseola
[2010] ZASCA 37
;
2010 (2) SACR 311
(SCA) para 13.) Criminal
proceedings need to instil public confidence in the criminal justice
system with the public including
those close to the accused, as well
as those distressed by the audacity and horror of crime. (
S
v Jaipal
[2005] ZACC 1
;
2005 (1) SACR 215
(CC) para 29.) Indeed the public would justifiably
be alarmed if courts tended to impose a suspended sentence coupled
with monetary
compensation for rape.
[40]
As the
State has contended, a sentence entailing a businessman being ordered
to pay his rape victim in lieu of a custodial sentence
is bound to
cause indignation with at least a large portion of society. This is
so because rape is considered one of the most serious
offences ‘
constituting as it does a humiliating, degrading and brutal invasion
of the privacy, the dignity and the person
of the victim. The rights
to dignity, privacy and the integrity of every person are basic to
the ethos of the Constitution and
to every defensible civilization.’
(See
S v
Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) at 344.)
[41]
As stated
above, the appellant’s age and his deteriorating health are
relevant factors to be taken into account in determining
an
appropriate sentence. However those factors do not necessarily mean
that a custodial sentence cannot be imposed. Recently, in
Hewitt
v S
[2016]
ZASCA 100
, this court, whilst acknowledging that the appellant was an
elderly man of 75 years at the time of his conviction and was in poor
health, stated that:
‘
he does not suffer from a
terminal or incapacitating illness . . . It was also not disputed
that the medical treatment and care
that he requires would be
available in prison. Regarding his age, whilst courts have considered
oldness as a mitigating factor,
it certainly is not a bar to a
sentence of imprisonment.’
(See also
S v Zinn
1969 (2) SA 537
(A) at 542B-C;
S v Heller
1971 (2) SA 29
(A)
at 55D;
S v Munyai & others
1993 (1) SACR 252
(A) at
225
g
-256
a
.)
[42]
Counsel for
the state has informed us that the appellant has already sought to
comply with the order of the high court and has paid
an amount of
R15000 to the complainant. She also stated that the complainant will
probably not be able to return the amount if
it is reclaimed from her
as a result of the fact that the sentence is set aside. The state
urged the court to take this into account
when considering sentence
as a factor that indicates the willingness on the part of the
appellant to comply with what he thought
was a competent court order
and, if possible, to reduce sentence accordingly. Whilst I am in no
way endorsing the award of compensation
for such a serious offence, I
agree with the state that his willingness to comply with what he
thought to be a competent court
order is to be taken into account in
his favour. As stated above, the application for leave to adduce
further evidence and the
attack on the quality of legal
representation are not before us, it is thus not necessary to make an
order concerning those two
issues. The order will thus be confined to
the appeal against the conviction and sentence.
[43]
I therefore
make the following order:
1.
The appeal
against the conviction is dismissed.
2.
The appeal
by the state against the sentence imposed by the high court is
upheld.
3.
The
sentence imposed by the high court is set aside and is substituted as
follows:
‘
The
accused is sentenced to four years’ imprisonment.’
___________________
ZLL Tshiqi
Judge
of Appeal
APPEARANCES
For
Appellant:
M M
Hodes SC
Instructed
by:
Jaffer Incorporated, Pretoria
Symington
& De Kok, Bloemfontein
For
Respondent:
A
Coetzee
Instructed
by:
Director of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein