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[2016] ZASCA 205
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Tshoga v S (635/2016) [2016] ZASCA 205; 2017 (1) SACR 420 (SCA) (15 December 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 635/2016
In
the matter between:
MOSES
TSHOGA
APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Moses
Tshoga v The State
(635/2016)
2016 ZASCA 205
(15
DECEMBER 2016)
Coram:
Bosielo,
Tshiqi and Dambuza JJA, Schoeman and Nicholls AJJA
Heard:
11
November 2016
Delivered:
15
December 2016
Summary:
Criminal
law: rape of a ten-year-old girl : failure to refer to the
Criminal
Law Amendment Act 105 of 1997
in
the charge sheet or at the commencement of a trial does not
necessarily vitiate a sentence of life imprisonment imposed in terms
of the Act : the appellant was sentenced to life imprisonment in
terms of subsecs 52(1) and 51(1) of the Act : no substantial and
compelling reasons to deviate from the minimum sentence of life
imprisonment.
ORDER
On
appeal from:
Gauteng
Local Division of the High Court, Johannesburg (Van Oosten,
Kathree-Setiloane, Labuschagne JJ sitting as a full court):
The
appeal is dismissed.
JUDGMENT
Schoeman
AJA (Dambuza JA and Nicholls AJA concurring):
[1]
This is an appeal against a sentence of life imprisonment that was
imposed after the appellant was convicted of the rape of
a
ten-year-old girl. This court granted the appellant special leave to
appeal against the sentence imposed after the Gauteng Local
Division
of the High Court, Johannesburg (Van Oosten, Kathree-Setiloane,
Labuschagne JJ) dismissed his appeal.
Background
[2]
On the Saturday of 9 January 1999 the appellant, who is related to
the complainant, raped her in a veld. The complainant was
ten years
old at the time. The incident occurred after her father, on the
appellant’s suggestion, instructed her to accompany
the
appellant. The appellant and the complainant’s father had been
drinking and when the liquor was finished, the appellant
said that he
would go with the complainant to fetch money from a friend. They set
off on their errand by foot, using a shorter
route through the veld.
Whilst they were on their way and near a clinic, the appellant
tripped the complainant and when she fell,
he throttled her. She
attempted to run away, but the appellant grabbed her, threw her to
the ground, took off some of her clothes
and raped her. In the
process she was injured as she struck her head against a rock. After
he had raped her he threatened
to kill her, if she told her parents.
[3]
He compounded her humiliation by walking her back to her home, whilst
she was naked from her waist up, as he had torn her t-shirt.
At home
she immediately informed her parents that the appellant had raped
her. The appellant denied this. The complainant’s
father then
instructed her mother and grandmother to examine her, and her
grandmother observed that her vagina was ‘red and
slightly
open’. The complainant was taken to the police station and
later to hospital. The medical examination revealed that
the
complainant’s hymen was broken and that she was freshly torn
alongside the vaginal opening. The appellant was then arrested.
[4]
Following a trial in the Regional Court Boksburg, the appellant,
having pleaded not guilty, was convicted on 1 December 1999
of the
rape of a ten-year-old child. This offence (of raping a child under
the age of 16 years) falls under
s 51(1)
read with
Part I
of Schedule
2 of the Criminal Law Amendment Act 105 of 1997 (the Act). And, in
terms of the provisions of s 52(1) of the Act, prevailing
at the
time, the trial magistrate was compelled to transfer the matter to
the high court for sentencing purposes.
[5]
On 13 March 2000, Labe J, in the Witwatersrand Local Division,
confirmed that the conviction was in accordance with justice
and
sentenced the appellant to life imprisonment in terms of the
provisions of s 52(1) read with s 51(1) and Part I of Schedule
2 of
the Act. The appellant subsequently sought leave to appal against the
conviction and sentence. Labe J granted leave to appeal
only against
the sentence. On appeal, the full court of the Witwatersrand Local
Division, based on
Rammoko
v Director of Public Prosecutions
[1]
,
found
that the sentencing court should have obtained and considered further
evidence regarding the psychological impact the rape
had on the
victim and remitted the matter to the sentencing court to sentence
the appellant afresh.
[6]
At the hearing of the second sentencing procedure, the contents of a
report compiled by Mr Louw, a counselling psychologist
of the Teddy
Bear Clinic was accepted by counsel for the appellant and the State
and the report was handed in by consent. The court
also accepted the
report prepared by Mr Maluleka, a probation officer in the employ of
the Department of Social Development, who
compiled a report regarding
the appellant and his personal circumstances. After Mr Maluleka’s
testimony and cross-examination,
the appellant chose not to testify.
The appellant was again sentenced to life imprisonment by the high
court on 15 March 2007.
No order was made that the sentence be
ante-dated. The appellant applied for leave to appeal against the
conviction and sentence
and this time round, Mojapelo DJP granted
leave to appeal to the full court on the basis that the court had
previously granted
leave to appeal.
[7] On 12 October
2011 the full court dismissed the appeal against sentence, but
ante-dated the sentence to 15 March 2000. Almost
a year later, this
court granted special leave in respect of the sentence imposed.
Grounds of appeal
[8]
The appellant’s appeal essentially rests on two legs: (a) that
the sentence was shockingly inappropriate; and (b) the
appellant was
never warned that he faced a sentence of life imprisonment in terms
of the provisions of s 51(1) of the Act, prior
to the commencement of
his trial, or during the trial.
[9]
I should mention at this stage that the record shows (and it is
common cause) that the charge sheet does not refer to the Act
and
that neither the magistrate nor the prosecutor referred to the Act
during the trial, or before conviction. The first time that
the
magistrate mentioned s 51 of the Act was when he pronounced that he
was convicting the appellant of ‘the rape of this
girl under
the age of 16 years’. The magistrate further informed the
appellant that the effect of the conviction was that
s 51 of the Act
which sets life imprisonment as the minimum sentence for rape of a
girl of under 16 years, was applicable and that
the appellant would
have to be referred to the Supreme Court for sentence purposes, as
the magistrate could not impose a life sentence.
Thereafter the
matter was, as mentioned earlier, transferred to the high court for
sentencing.
[10] It is apposite
to first deal with the failure of the magistrate and the State to
warn the appellant of the provisions of s
51 of the Act and the
implications of such failure.
Failure by the
trial court to alert the appellant to the provisions of s 51 of the
Act
[11]
It is well known that the foundation of a criminal trial is the
accused’s right to a fair trial as set out in s 35(3)
of the
Constitution, with specific reference to s 35(3)
(a)
which provides that an accused has the right to be informed of a
charge with sufficient detail to answer to it. This court
has
on several occasions held, with reference to the provisions of s 51
of the Act, that the question whether the accused's constitutional
right to a fair trial has been breached at the sentencing phase, can
only be answered after 'a vigilant examination of the relevant
circumstances'.
[2]
One of the
first cases of this court dealing with an accused’s right to a
fair trial in relation to the terms of the Act
was
S
v
Legoa.
[12]
In
S
v Legoa
[3]
the
appellant had pleaded guilty and was convicted of dealing in 216,3
kilograms of dagga. After his conviction the State led evidence
as to
the value of the dagga, despite the defence’s objections. The
magistrate found the value of the dagga brought it within
the ambit
of the provisions of s 51(2)
(a)
(i),
read with Part II of Schedule 2, of the Act and sentenced
the appellant to 15 years' imprisonment.
The court found
that:
‘
.
. . [For] the minimum sentencing jurisdiction to exist in respect of
an offence, the accused's conviction must encompass all the
elements
of the offence set out in the Schedule. (This does not apply when the
Schedule specifies an attribute not of the offence,
but of the
accused, such as rape when committed “by a person who has been
convicted of two or more offences of rape, but
has not yet been
sentenced in respect of such convictions”.)’
[4]
[13]
In dealing with the contents of the charge sheet and what should be
contained therein, and comparing the position
pre- and post-
Constitution, the court found that the salient facts the State
intended
to
prove in order to increase sentencing jurisdiction under the Act
ought to be clearly set out in the charge sheet. But, the court
continued, the matter was one of substance and not form and as a
result concluded that a requirement that every charge must set
out
either the ‘specific form of the scheduled offence with which
the accused is charged, or the facts the State intends
to prove to
establish it, if applied with undue formalism may be insufficiently
heedful of the practical realities under which
charge sheets are
frequently drawn up.’
[5]
[14]
As stated above, a vigilant examination of the relevant circumstances
is necessary to determine whether an accused has had
a fair trial.
Thus,
Legoa
pertinently required that the evidence, before
conviction, should encompass all the elements that bring it within
the purview of
s 51 of the Act and the increased penal regime. It was
not a requirement that the provisions of the Act should be set out in
the
charge sheet, but the enquiry remained whether the accused had a
fair trial, which included his ability to answer the charge.
[15]
Later in
S
v Mthembu
[6]
this
court (Ponnan JA and Petse AJA writing for a full court) stated, with
reference to
Legoa
and
Ndlovu
,
that 'a fair trial enquiry does not occur in vacuo, but . . . is
first and foremost a fact-based enquiry'.
[16]
In
S
v Ndlovu
[7]
the issue whether a firearm was a semi-automatic weapon was not
mentioned in the charge sheet. The prosecutor did not lead evidence
in that regard and a policeman, in response to a question by the
magistrate, casually mentioned that the firearm in question was
a
semi-automatic firearm, without providing a basis for this
conclusion. In setting aside the compulsory sentence of 15 years’
imprisonment and substituting it with three years’
imprisonment, Mpati JA said:
‘
The
enquiry, therefore, is whether, on a vigilant examination of
the relevant circumstances, it can be said that an accused
had
had a fair trial. And I think it is implicit in these observations
that where the State intends to rely upon the sentencing
regime
created by the Act a fair trial will generally demand that its
intention pertinently be brought to the attention of the
accused at
the outset of the trial, if not in the charge sheet then in some
other form, so that the accused is placed in a position
to appreciate
properly in good time the charge that he faces as well as its
possible consequences. Whether, or in what circumstances,
it might
suffice if it is brought to the attention of the accused only during
the course of the trial is not necessary to decide
in the present
case. It is sufficient to say that what will at least be required is
that the accused be given sufficient notice
of the State’s
intention to enable him to conduct his defence properly.’
[17]
In
S
v Mashinini
[8]
the appellants were charged with rape and reference was incorrectly
made in the charge sheet to s 51(2) of the Act, which carries
a
compulsory sentence of ten years’ imprisonment. However, the
evidence that it was a gang rape placed the offence within
the ambit
of s 51(1) of the Act, with a concomitant sentence of life
imprisonment. The matter was transferred to the high court
for
sentencing purposes in terms of s 52 of the Act, which court imposed
life imprisonment. On appeal to this court, in the minority
judgment,
Ponnan JA
[9]
again reiterated
that a 'vigilant examination of the relevant circumstances'
[10]
was required. Ponnan JA went on the say that, the factual
circumstances were such that 'right from the outset both appellants
were informed in unambiguous terms that the State intended to rely on
the minimum sentencing provisions'
[11]
even though the State had in error referred to the wrong section in
the Act. Further, the appellants chose not to testify or to
call any
witnesses for sentencing purposes, despite the fact that they well
knew that the minimum sentencing provision that ordained
life
imprisonment was being invoked by the State. They also never alleged
prejudice during the whole process and only raised the
State's error
for the first time before this court.
[12]
Further, Ponnan JA continued, there was nothing of substance
indicating that the appellants would have conducted their defence
differently or that they had been misled to plead guilty.
[13]
He thus concluded that he would have dismissed the appeal, as the
finding of the majority placed form over substance.
[18]
Recently, in
S
v Kolea
[14]
the appellant had been charged and convicted in the regional court of
one count of rape, although the complainant testified that
she had
been raped more than once.
[15]
The charge sheet made mention of the provisions of s 51(2) of the
Act, which, read with Schedule 2 Part III provided for a minimum
sentence of ten years’ imprisonment, instead of s 51(1) which
prescribes a minimum sentence of life imprisonment. The
high
courts, acting in terms of s 51(1) of the Act, found that there were
substantial and compelling circumstances and imposed
a sentence of 15
years’ imprisonment. The appellant appealed to the full
court and on a cross-appeal by the State,
the sentence was increased
to life imprisonment.
[19]
On appeal to this court the appellant contended that, as he had been
charged and convicted in terms of s 51(2) of the Act,
it was
irregular for the State thereafter to rely on s 51(1) which provides
for a more severe sentence. It was argued that the
regional court was
competent to impose a sentence of ten years’ imprisonment in
terms of s 51(2) and therefore the regional
court had no authority to
refer the matter to the high court for sentencing purposes. Mbha JA,
writing for the court, said the
following:
[16]
‘
The
accused's right to be informed of the charge he is facing, and which
must contain sufficient detail to enable him or her to
answer it, is
underpinned by s 35(3)
(a)
of the Constitution, which provides that every accused person
has a right to a fair trial. The objective is not only to avoid
a
trial by ambush, but also to enable the accused to prepare adequately
for the trial and to decide, inter alia, whether or not
to engage
legal representation, how to plead to the charge and which witnesses
to call
.
It follows that, if the State intends to rely on the minimum
sentencing regime created in the Act, this should be brought to
the attention of the accused at the outset of the trial.
The question which must be answered, though, is what does sufficient
detail in the charge entail.’
(My emphasis.)
[20]
This court in
Kolea
thus digressed from the other cases
that said that there had to be a vigilant examination (
Legoa
and
Mashinini
); 'a fair trial enquiry does not occur in
vacuo, but . . . is first and foremost a fact-based enquiry'
(
Mthembu
); that ‘[T]he enquiry, therefore, is whether,
on a vigilant examination of the relevant circumstances, it can be
said that
an accused had had a fair trial’; and ‘. . . at
least be required that the accused be given sufficient notice of the
State’s intention to enable him to conduct his defence properly
(
Ndlovu
). The court however found, in
Kolea
, that the
appellant had not been prejudiced. The court considered the fact the
appellant did not raise any prejudice in the conduct
of his trial due
to the failure to refer to s 51(1) of the Act in the charge sheet in
the regional court. Nor was this an issue
on two occasions in the
high court on sentencing and appeal. It was raised for the first time
in this court. The court also had
regard to the fact that the State
had, at the outset, made it clear that it intended to rely on the Act
in the charge sheet. It
is this latter factor that distinguishes
Kolea
from the instant matter: no reference to the Act was
made in the charge sheet.
[21]
What then is the effect of the pronouncement in
Kolea
that
the Act must be brought to the attention of the accused at the outset
of the trial? The difference between the ratio
decidendi and
obiter dictum of a judgment was described as follows in
Turnbull-Jackson
v Hibiscus Coast Municipality & others
[17]
:
‘
Literally,
obiter dicta are things said by the way or in passing by a court.
They are not pivotal to the determination of the issue
or issues at
hand and are not binding precedent. They are to be contrasted with
the ratio decidendi of a judgment, which is binding.
And
(para 56):
'Only
that which is truly obiter may not be followed. But depending on the
source, even obiter dicta may be of potent persuasive
force and only
departed from after due and careful consideration.'
[22]
In
Kolea
the
court was not saddled with, and it did not pronounce upon, what the
position would have been had the Act not been mentioned,
as it had
been mentioned. Therefore the pronouncement that the Act had to be
mentioned in a charge sheet at the outset of a trial
was
obiter
dictum
for it was not necessary for the decision of this Court in
determining whether or not there had been prejudice. Since it decided
that there was a reference to the Act any discussion as to what the
position would have been had there been no reference to the
Act,
‘could not advance the reasoning by which the decision was
reached.’
[18]
It is also
clear that the discussion in
Kolea
as to the possibility of prejudice considered that substance was of
paramount importance and that form was secondary. I am of the
view
that a pronouncement that the Act had to be mentioned in the charge
sheet or at the outset of the trial would be elevating
form above
substance. Every case must be approached on its own facts and it is
only after a diligent examination of all the facts
that it can be
decided whether and accused had a fair trial or not.
[23]
The appellant in this matter had opportunities in five separate
proceedings to raise a complaint of possible prejudice in the
proceedings: in the regional court after conviction, during two
sentencing procedures in the high court and during two appeals
to the
full court. He failed to do so and only belatedly raised it in this
court. He was not ambushed as the charge sheet set out
that he was
charged with the rape of a ten-year-old girl, which brought the
offence within the ambit of s 51(1) of the Act as was
required in
Legoa
.
He was convicted of the rape of a girl under 16 years, which is a
conviction that attracts the minimum sentencing regime in terms
of
the Act. He had effective legal representation throughout the trial
until his conviction and the transfer to the high court.
Furthermore,
he was legally represented during both sentencing proceedings in the
high court and in both appeals to the full court.
There was no
objection in the regional court after his conviction to the fact that
the matter was being transferred to the high
court and to the
prospect of life imprisonment being imposed.
[19]
He participated fully in the trial and pleaded not guilty. He did not
raise any prejudice prior to either of the two sentencing
procedures
in the high court or raised it in either of the two appeals to the
full court. In both sentencing proceedings he knew
the consequences
of his conviction, as the magistrate informed him that he faced life
imprisonment, but he chose not to testify
during the sentencing
procedures.
[24]
On appeal in this court counsel for the appellant could not point to
any prejudice the appellant had suffered due to the failure
to
mention the Act in the charge sheet or at the outset of the trial,
except that there might have been the possibility that the
appellant
could have pleaded guilty. However, that possibility is remote, as
the appellant, eight years after the incident and
after his
application for leave to appeal against his conviction had been
dismissed, still professed his innocence to Mr Maluleka,
who compiled
the presentencing report.
[25]
I am of the view that the appellant suffered no prejudice, in the
circumstances of this case, by the fact that the provisions
of the
Act had not been mentioned in the charge sheet and that he had been
referred to the provisions of the Act by the trial court
only after
conviction and prior to the commencement of the sentencing
proceedings.
[26]
Furthermore,
the
principle of fairness connotes fairness to the appellant, society at
large and to the victim of the crime. The Constitutional
Court, in
S
v Jaipal
[20]
said the following:
'The
right of an accused to a fair trial requires fairness to the accused,
as well as fairness to the public as represented by the
State. It has
to instil 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.'
Accordingly, the
provisions of the Act are applicable and the appellant did have a
fair trial.
Were there
substantial and compelling circumstances present not to impose life
imprisonment?
[27]
The sentencing court took the appellant’s personal
circumstances, the impact the crime had on the victim and the
appellant’s
chances of rehabilitation into account when
determining that there were no substantial and compelling
circumstances. It was not
argued that there were substantial and
compelling circumstances, but that the sentence was shockingly
inappropriate – in
other words that the sentence was unjust in
the circumstances of the case.
[28]
It
is important
when
sentencing, to bear in mind the chief objectives of criminal
punishment, namely retribution, the prevention of crime, the
deterrence of criminals, and the reformation of the offender. At the
same time none of the elements of proper punishment must be
over or
under emphasised when considering an appellant’s personal
circumstances, the crime and the interest of society.
Majiedt
JA said in
S
v Mudau
:
[21]
‘
I
hasten to add that it is trite that each case must be decided on its
own merits. It is also self-evident that sentence must always
be
individualised, for punishment must always fit the crime, the
criminal and the circumstances of the case. It is equally important
to remind ourselves that sentencing should always be considered and
passed dispassionately, objectively and upon a careful consideration
of all relevant factors. Public sentiment cannot be ignored, but it
can never be permitted to displace the careful judgment and
fine
balancing that is involved at arriving at an appropriate sentence.
Courts must therefore always strive to arrive at a sentence
which is
just and fair to both the victim and the perpetrator, has regard to
the nature of the crime and takes account of the interests
of
society. Sentencing involves a very high degree of responsibility
which should be carried out with equanimity. . .’
[29]
In
S
v
Malgas
[22]
it
was found that the usual mitigating factors are taken into account to
determine whether there are substantial and compelling
circumstances
present, but that the prescribed sentences should not be deviated
from for flimsy reasons.
As
mentioned earlier, prior to passing sentence the second time, a
victim impact report was obtained as well as a report regarding
the
personal circumstances of the appellant. Mr Maluleka, the probation
officer who testified at the sentencing proceedings, compiled
a
pre-sentencing report in respect of the appellant.
From
this report it transpired that the appellant was 28 years old,
employed and engaged to the complainant’s aunt. They had
one
child. He was employed and he had passed matric in 1988. While he was
awaiting trial, the appellant was incarcerated for 12
months as an
awaiting trial prisoner. Between the initial sentence in 2000 and the
resentencing after the first appeal, while in
prison, the appellant
had completed a Higher Certificate in Adult Basic Education and
Training through UNISA. He had further completed
various life skills
programmes and completed various certificates in bible studies.
[30]
Mr Maluleka testified, as previously mentioned, that the appellant
still maintained his innocence despite then having spent
nearly eight
years in prison. According to Mr Maluleka, this lack of remorse and
failure to accept responsibility for his crime
impacted negatively on
his possible rehabilitation, in spite of the programmes he had
attended. His opinion was that without the
appellant accepting
responsibility, no course he might attend would result in his
rehabilitation, and he may rape someone else,
once released. This is
a significant factor as the appellant had previously been convicted
of rape and was sentenced to lashes,
nearly ten years prior to the
commission of this offence.
[31]
Mr Louw, the counselling psychologist of the Teddy Bear Clinic
compiled a victim impact report. This report reflects the impact
the
rape had on the complainant approximately eight years after the rape.
As mentioned, the appellant and the State accepted the
facts
contained in the report to be correct as well as Mr Louw’s
conclusions. From this victim impact report the following
emerged
with regard to the tests conducted and the conclusions reached by Mr
Louw.
‘
Results
of CITES-R assessment:
On
the PTSD Sub scale of Intrusive Thoughts (IT) [the complainant]
scored 11 out of a maximum of 14 points, which indicates a
percentage of 71.
This
indicates that [complainant] re-experiences the traumatic event at a
clinically significant level, as related to symptoms,
nightmares,
intrusive thoughts, memories and images.
On
the PTSD Sub scale of Avoidance (AV) [the complainant] scored nine
out of a maximum of 16 points, which indicates a percentage
of 56.
This
is an indication that [the complainant] does sometimes attempt to
avoid being reminded about the traumatic event.
On
the PTSD Sub scale of Hyperarousal (HYP-AR) [the complainant] scored
nine out of a maximum of 12 points which indicates a percentage
of
75.
This
high percentage indicates that [the complainant] is exposed to
feelings of hyperarousal, and that she feels irritable, struggles
to
concentrate, has an exaggerated startle response and feels restless
and jumpy as a result.
On
the PTSD Sub scale of Sexual Anxiety (SX-A) [the complainant] scored
10 out of a maximum of ten points, which indicates a percentage
of
100.
The
high percentage indicates a pathological high level of anxiety that
[complainant] associates with sexual issues, as a result
of the
sexual assault. She becomes upset when thinking about sexual issues,
and wishes that there were no such thing as sex.
She also struggles
to see herself ever having a normal, mature sexual relationship.
On
the Social Reactions Sub Scale of Negative Reactions by Others (NRO)
[the complainant] scored two out of a maximum of 18 points,
which
indicates a percentage of 11. This score indicates that [the
complainant] did not experience negative reactions by other
people
following her disclosure, and that she feels that her family reacted
appropriately to the situation.
On
the Social Reactions Sub Scale of Social Support (SS) [the
complainant] scored eight out of a maximum of 12 points, which
indicates a percentage of 67. This indicates that [the complainant]
did feel believed and supported by the people closest to her
that
she disclosed to. She feels that her family is trying to help and
assist her, and is appreciative of their support.
On
the Attributions about Abuse Sub Scale of Self Blame/Guilt (SB-GU)
[the complainant] scored nine out of a maximum of 24 points,
which
indicates a percentage of 38. This indicates that [the complainant]
does not relate to clinically significant levels of
self-blame, and
does not take undue responsibility for what occurred.
On
the Attributions about Abuse Sub scale of Personal Vulnerability
(PV) [the complainant] scored 14 out of a maximum of 18 points,
which indicates a percentage of 78.
Based
on this it can be assumed that [the complainant] does suffer from …
believe that sexual assault happens to a lot
of children, and that
it may occur to her again.
On
the Attributions about Abuse Sub scale of Dangerous World (DW) [the
complainant] scored 9 out of a maximum of 10 points, which
indicates
a percentage of 90.
[The
complainant] perceives the world as a very dangerous place, and does
tend to struggle to trust people, following the sexual
abuse.
On
the Attributions about Abuse Sub scale of Empowerment (EMP) [the
complainant] scored ten out of a maximum of 14 points, which
indicates a percentage of 71. This indicates that [the complainant]
feels empowered in terms of having more knowledge relating
to
abusive situations, which she can use to better protect herself in
future.
On
the Eroticism Sub scale Eroticism (ERO) [the complainant] scored 2
out of a maximum of eight points, which indicates a percentage
of 25
per cent. This is an indication that [the complainant] does not
associate with an increase in sexual feelings, more than
other
individuals in her peer group do.
CONCLUSION
AND RECOMMENDATIONS
Based
on the information obtained from the clinical interview, as well as
the results of the psychometric testing, the following:
[The
complainant] related several changes in her life, which she
attributes to the incident in question. She related to severe
disruptions in her sexual development, and that the meaning she
attaches to sexuality continues to cause problems in her current
romantic relationship. She noted that she is still often reminded of
what happened, and that she experiences an uncomfortable emotional
response when reminded. She tries to avoid being reminded, and also
avoids conversations relating to the incident. Her sense of
trust in
others was affected, and she also feels that her personality was
changed, in terms of being more irritable and angry.
According
to the results of the CITIES-R, [the complainant] continues to
experience elevated symptoms in terms of having intrusive
thoughts,
hyperarousal, sexual anxiety (very high), feeling personally
vulnerable, and seeing the world as a dangerous place (very
high).
Based
on the results of this assessment, the assessor is of the opinion
that the incident in question continues to have a daily
and
significant impact in [the complainant]’s life. When it is
taken into account that the incident occurred about eight
years ago,
the profound impact becomes apparent.
The
rape was not just a physical act, causing her physical injuries. The
psychological impact remains, years after the incident,
and continues
to have a debilitating effect in her life.
The
assessor recommends that the court take the results of this
assessment into account when sentencing is considered, in terms
of
the life-long and continuous harm that was inflicted by a person who
was in a trusting and familiar relationship with the victim.’
(My emphasis.)
[32]
It is clear from the report that the complainant’s life has
been altered tremendously by the incident. The crime committed
was a
callous exploitation of the complainant, a young girl with whom the
appellant was in a trusting relationship. It was cruel
and degrading
to the extent that the complainant was compelled to walk back home
with her upper body naked, as the appellant had
torn her blouse. He
throttled her and threatened her with death if she were to report the
matter. This court has before said that
rape is generally degrading,
humiliating and a brutal invasion which is a violent infringement of
a person’s fundamental
right to be free from all forms of
violence and not to be treated in a cruel, inhumane or degrading
way.
[23]
Furthermore, it
infringed the complainant’s fundamental right, as a child, to
be protected from maltreatment, degradation
and abuse.
[24]
The rape was very serious with the complainant suffering
debilitating, life-long consequences, namely (a) severe disruption of
her sexual development which caused problems in her romantic
development; (b) a lack of trust in others; (c) personality changes
in that she became more irritable and angry; (d) she suffers from
hyperarousal with an exaggerated startle response; and (e) she
feels
personally vulnerable and sees the world as a dangerous place.
[33]
The conclusion of Mr Louw that the rape has had a long lasting
negative effect on the complainant was further confirmed by
the fact
that the complainant was not called to testify in the second
sentencing procedure, eight years later, as it would have
upset her
severely. The positive aspects apparent from Mr Louw’s report
are that the complainant felt she had the support
of her family who
tried to assist her and she does not blame herself for the crime that
was committed against her. However
these positive aspects pale
in comparison to the psychological harm the complainant has suffered
and continues to suffer.
[34]
T
here
are numerous cases of this court where it has been said that there
are different degrees of seriousness of rape. Cases
such as
Rammoko
v Director of Public Prosecutions
,
[25]
S v
Abrahams
[26]
and
S
v Mahomotsa
[27]
held that the objective gravity of the offence play an important role
in sentencing. However, the rape in this instance
can be
said to be extremely serious: a young child was raped by a relative,
who was trusted by the family with devastating psychological
life-long consequences; she suffered humiliation and physical abuse.
It is significant that the appellant was not a first time
offender
and has raped before. His chances of rehabilitation are minimal as he
persists with his innocence, despite overwhelming
evidence against
him.
[35]
I am of the view that there are no substantial and compelling
circumstances to deviate from the prescribed sentence. Furthermore,
the prescribed sentence would not be unjust, for even if there were
no prescribed sentence, life imprisonment, in my view, would
have
been the appropriate sentence.
The
appellant’s counsel suggested that the sentence should be
substituted with a sentence of 25 years’ imprisonment.
This
sentence, however, will not give effect to the gravity of the offence
or be fair to the complainant and society at large.
I am of the view
that a life sentence is the only suitable sentence in the
circumstances of this case.
[36] Therefore the
following order is made:
‘
The
appeal is dismissed.’
______________________
I
SCHOEMAN
ACTING
JUDGE OF APPEAL
Bosielo JA
(Tshiqi JA concurring):
[37]
I have had the benefit of reading a comprehensive judgment penned by
my colleague, Schoeman AJA. The salient facts relevant
to the issue
to be decided have been fully set out in her judgment. There is
therefore no need to repeat them. However, for the
reasons set out
hereunder, I do not agree with both her reasoning and conclusion.
[38] It is common
cause as my colleague has recorded in her judgment that,
notwithstanding the fact that the appellant was charged
with the rape
of a 10 year old female, which brings this offence within the purview
of s 51(1) of the Criminal Law Amendment Act
105 of 1997 (the Act),
which calls for a minimum sentence of life imprisonment unless the
court found that substantial and compelling
circumstances existed
which justified a lesser sentence in terms of (s 51(3)), and
that there was no mention of this crucial
element of the charge
either in the charge sheet, during the plea proceedings, or even
during the entire trial, the appellant was
nonetheless sentenced to
life imprisonment purportedly under s51(1). The transcript shows that
the issue of life imprisonment was
only raised perfunctorily by the
trial court after conviction. To be precise this occurred only at the
sentencing stage. It was
explained to the appellant as follows:
‘
YOU
ARE THEN FOUND GUILTY OF RAPE OF THIS GIRL UNDER THE AGE OF 16 YEARS.
That
of course also implies when you come to the sentence aspect that I
will have to apply section
51, Act 105
of 1997, minimum sentences for
certain serious offences. It says notwithstanding any other law but
subject to sub-section (3) and
(6) a high court shall, if it has
convicted a person of an offence referred to in part 1 of Schedule 2,
sentence the person to
life imprisonment. Part 1 of Schedule 2 states
as regards rape, when the victim is a girl under the age of 16 years.
I
will therefore have to refer you to the Supreme Court for sentence. I
cannot impose life imprisonment.’
[39]
The crisp question to be answered in this appeal is whether the
failure to inform the appellant clearly and properly either
at the
beginning of the trial or during the trial of the exact nature, the
details and the consequences of the offence that he
faced, has denied
him his right to a fair trial. Both counsel conceded, correctly in my
view, that the failure to alert the appellant
properly of the charge
which he was facing and that he faced the peril of life imprisonment
is an irregularity. However, they differed
on whether this
irregularity is so gross as to render the trial unfair.
[40] At the heart of
this appeal lies the right to a fair trial to which every accused is
entitled. To the extent relevant, s 35(3)
of the Constitution
provides:
‘
Every
accused person has a right to a fair trial, which includes the right
–
(
a
)
to be informed of the charge with sufficient detail to answer it.’
[41] Our courts, in
particular this Court, have grappled with this subsection on many
occasions. In the process they have produced
a long list of cases
which attempted to define the concept of a fair trial. I think the
correct starting point is
S v Zuma
[1995] ZACC 1
;
1995 (1) SACR 568
(CC) para
16 where the Constitutional Court stated the following:
‘…
The
right to a fair trial conferred by that provision [s 25(3) of the
interim Constitution] is broader than the list of specific
rights set
out in paras (
a
)
to (
j
)
of the subsection. It embraces a concept of substantive fairness
which is not to be equated with what might have passed muster
in our
criminal courts before the Constitution came into force.
In
S v Rudman and Another; S v Mthwana
1992 (1) SA 343
(A), the
Appellate Division, while not decrying the importance of fairness in
criminal proceedings, held that the function of a
Court of criminal
appeal in South Africa was to enquire
“
whether
there has been an irregularity or illegality, that is a departure
from the formalities, rules and principles of procedure
according to
which our law requires a criminal trial to be initiated or
conducted”.
A
Court of appeal, it was said (at 377)
“
does
not enquire whether the trial was fair in accordance with “notions
of basic fairness and justice”, or with the
“ideas
underlying the concept of justice which are the basis of all
civilized systems of criminal administration”.’
That
was an authoritative statement of the law before 27 April 1994. Since
that date s 25(3) has required criminal trials to be
conducted in
accordance with just those “notions of basic fairness and
justice”. It is now for all courts hearing criminal
trials or
criminal appeals to give content to those notions.
’
(Own
emphasis.)
See also
National
Director of Public Prosecutions v King
[2010] ZASCA 8
;
2010 (2)
SACR 146
(SCA) para 4.
Section
25(3) of the interim Constitution has been replaced by s 35(3) of the
final Constitution. Hence I find the dictum in
Zuma
applicable
to this case.
[42]
As
Zuma
demands the question to be answered is whether it can
be said that the appellant’s trial was conducted in accordance
with
those basic notions of fairness and justice. The first case on
point is
S v Legoa
2003 (1) SACR 13
(SCA) where the appellant
was charged with dealing in dagga. The appellant pleaded guilty to
the charge as read out, which plea
the State accepted. Specific
mention was made in the charge sheet of the penalty provisions of the
Drugs and Drug Trafficking Act 140 of 1992
. No reference or mention
was made of the
Criminal Law Amendment Act (the
Act). As a result,
the appellant had not been warned that the minimum sentencing
provisions would be applicable to him. He was
only informed that the
penal provisions under the
Drugs and Drug Trafficking Act would
be
applicable. This is the case that he faced and answered to. The issue
on appeal was whether, notwithstanding the fact that the
appellant
was not informed of the offence that he faced was subject to the
minimum sentencing legislation, he could nonetheless
still be
sentenced under that Act. After a consideration of previous cases
like
S v Seleke en andere
1976 (1) SA 675
(T),
R v Zonele &
others
1959 (3) SA 319
(A), this Court held that it was highly
unfair to confront the appellant for the first time, after he had
pleaded and been convicted
of an offence under a different statute
with different penal provisions, to thereafter proceed and sentence
him under the Minimum
Sentence Act. However, this Court refrained
from being pedantic and laying down a general and inflexible rule
that it is obligatory
for the State to set out clearly in the charge
sheet the facts which it intends to rely on to bring an accused
within the ambit
of the minimum sentence regime as well as the
statute under which he or she is charged. But it held that if this
was seen to be
desirable or important in the pre constitutional era
as it was found in
Seleke
, it should be given more importance
now as it is an entrenched constitutional right. However, this Court
cautioned that this is
a matter of substance and not form and that
this required that the facts of each case should be analysed
scrupulously to determine
if there has indeed been a failure of
justice - this being a factual enquiry.
[43]
Then followed
S v Ndlovu
2003 (1) SACR 331
(SCA) where the
appellant was charged and convicted of the unlawful possession of a
firearm and ammunition. The charge sheet did
not specify that the
firearm was a semi-automatic firearm which called for a minimum
sentence of not less than 15 years’
imprisonment in terms of
s
51(2)
(a)
of the
Criminal Law Amendment Act. It
was not
disputed that the appellant had not been alerted of the important
fact that he was charged under the minimum sentencing
regime and that
he faced the peril of a sentence in terms of that Act. Faced with
this legal conundrum, this Court endorsed both
Seleke
and
Legoa
, and held at para 14 that ‘by invoking the
provisions of the Act without it having been brought pertinently to
the appellant’s
attention that this would render the trial in
that respect substantially unfair. That, in my view constituted a
substantial and
compelling reason why the prescribed sentence ought
not to have been imposed’.
[44] In upholding
the appeal in
Ndlovu
, this Court went further and stated at
para 12:
‘
[W]here
the state intends to rely upon the sentencing regime created by the
Act, a fair trial will generally demand that its intention
pertinently be brought to the attention of the accused at the outset
of the trial, if not in the charge sheet then in some other
form, so
that the accused is placed in a position to appreciate properly in
good time the charge that he faces as well as its possible
consequences . . . It is sufficient to say that what will at least be
required is that the accused be given sufficient notice of
the
State’s intention to enable him to conduct his defence
properly.’
[45]
It is clear from the two cases cited above that without laying an
inflexible rule, this Court reiterated and confirmed the
principle
that every accused is entitled to a fair trial as peremptorily
decreed by our Constitution. In the context of the specificity
or
sufficiency of details in the charge sheet as envisaged by s35(3)
(a)
,
this Court held that, depending on the facts of each case, a
failure to provide sufficient details in the charge sheet of
the
offence for which the accused is charged and the relevant legislation
particularly where the State would want to rely on an
increased penal
jurisdiction , or advise an accused fully and properly of the charge
he or she is facing, either at the beginning
of the trial, or at any
stage of the trial, but before its conclusion, might lead to the
conclusion that he or she did not receive
a fair trial.
[46]
In order to appreciate the importance of why s 35(3) of the
Constitution guarantees the right of every accused person to a
fair
trial, it is important to interrogate its underlying rationale.
Section 35(3) sets out clearly that every accused person must
be
informed of the charge which he or she is facing with sufficient
detail to answer it. It is axiomatic that an accused person
will
never be able to defend him or herself effectively unless he or she
knows what the charge against him or her is. Evidently,
this requires
that he or she must fully understand what the charge is, the law
under which he or she is charged and what the possible
consequences
for him or her are upon conviction. It is intended to ensure that an
accused person is put in a position where he
or she can put up his or
her best defence. Undoubtedly, this is essential as it will enable
him or her to consider and decide on
the best strategy to adopt, and
whether to enlist legal assistance, or not, and if so, what kind of
legal assistance. The accused
may also decide to plead guilty or to
enter into a plea bargaining agreement with the State.
[47]
As this Court held in
Ndlovu
, it would be grossly unfair to an
accused person not to be told at all, either through the charge sheet
or during plea proceedings
or at the trial in regard to the
applicability of the minimum sentence legislation. To inform him
about such a patently serious
matter at the end of a trial as it
happened in this case, defeats the very purpose envisaged by s 35(3)
of the Constitution. The
options that he or she can still exercise at
such a late stage are severely limited or non-existent as the horse
has already bolted.
Why charge an accused with a particular statute
that calls for a particular sentence and only after he or she is
convicted to change
and sentence him to a period that does not form
of part the charge for which he or she stood trial and for which he
or she was
convicted. Put simply, such a trial is a trial by ambush
which is neither desirable nor permissible in a constitutional
democracy
underpinned by a Bill of Rights.
[48]
Importantly, in terms of the charge sheet to which the appellant
pleaded, he was due to be sentenced to a sentence of imprisonment
not
exceeding 10 years in terms of
s 92
of the
Magistrates’ Courts
Act 32 of 1944
upon conviction. In contrast, he was sentenced to
imprisonment for life in terms of s 51(1) of the Act after the court
had found
that there were no substantial and compelling present
circumstances to justify a lesser sentence. Undoubtedly, this is
offensive
to any notion of fairness and justice to the appellant.
[49]
My colleague found that the failure by either the magistrate or the
prosecutor to inform the appellant of the applicability
of the
minimum sentence legislation, and the undisputed fact that even the
charge sheet was silent about this crucial element of
the charge, did
not render the appellant’s trial unfair. She bases this on the
fact that the appellant went through five
separate proceedings during
the sentencing stages but never raised this issue as a complaint.
Based on this, she concludes that
‘he was not ambushed as the
charge sheet set out that he was charged with the rape of a ten year
old girl which brought the
offence within the ambit of s 51(1) of the
Act’. This statement assumes that that the appellant knew that
he could object
or that his legal representative knew that he could
object. What is clear is that neither his lawyer nor the appellant
were afforded
any opportunity to say anything in respect of the
decision to refer the matter to the High Court. It was a final and an
unequivocal
order by the magistrate. Unfortunately, this statement
seems to suggest that the appellant had the responsibility to ensure
that
he received all the necessary details that would make the charge
more serious than what the State, armed with all the relevant
information contained in the docket, has elected to charge him with.
Needless to state that it is the State which elected which
charge to
prefer against an accused. Public prosecutors who are representatives
of the State are legally trained to read the docket
and decide which
is the appropriate charge against an accused and not the other way
round. An accused plays no part in this election.
In any event it is
clear from the plain reading of s 35(3) that the responsibility
is on the State and the presiding officer
to observe, respect and
protect the right of every accused to a fair trial.
[50]
I do not agree with the finding by my colleague as it suggests that
the mere mention of a rape of a 10 year old girl is sufficient
to
alert the appellant that this is not an ordinary rape but rape under
s 51(1) of the Act. Even if it did, a reference to rape
of a 10 year
old girl does not on its own tell an accused that he is facing the
real peril of imprisonment for life as opposed
to any lengthy term of
imprisonment. It is important to remember that our criminal justice
system is adversarial. Every accused
person must be afforded an
opportunity to be able to present an answer to the charge against him
or her. This is in line with the
fact that until proven guilty an
accused is presumed to be innocent. Furthermore, there is no
obligation on him or her to assist
the State in making or proving a
case against him or her. The Constitution provides him or her with
certain procedural safeguards.
These include the right to remain
silent and right against self- incrimination. Even more important is
the fact that the duty lies
on the State to adduce sufficient and
relevant evidence to prove the guilt of an accused beyond reasonable
doubt. The corollary
hereof is that there is no duty on the part of
an accused to assist the State in his or her prosecution. This is so
because every
criminal trial holds the potential of grave
consequences for every accused. It is a truism that life imprisonment
has replaced
the death penalty as the ultimate sentence. It is a
sentence that should not be lightly imposed. Where an accused faces a
charge
that might attract life imprisonment as an appropriate
sentence, it is only fair that such an accused should be fully aware
of
the charge that he is facing, its details and the probable
sentence that might be imposed on him, should he be convicted. This
is what the Constitution demands.
[51]
This matter is distinguishable from
S v
Kolea
[2012]
ZASCA 199
;
2013 (1) SACR 409
(SCA). In
Kolea
the state’s
intention to rely on the minimum sentencing regime was made clear to
the appellant from the outset. Unlike in
this case, the charge sheet
made it clear that the appellant was charged with rape read together
with the provisions of s 51(2)
of the Act although on the proven
facts, it should have been s 51(1). It was on this basis that this
Court found that, notwithstanding
the fact that the charge sheet
referred to a wrong section, the appellant had nonetheless been
sufficiently informed of the charge
which he faced. As a result this
Court found that the mistake about the correct section did not cause
him any prejudice that might
render the trial unfair.
[52]
In this case the charge sheet informed the appellant that he was
charged with rape of a 10 years old girl and nothing more.
There is
no mention of the minimum sentence legislation. At no stage did the
prosecutor apply to have the charge sheet duly amended
to reflect the
correct charge. This is notwithstanding the fact
s 86
(1) of the
Criminal Procedure Act 51 of 1977
permits him or her. One is driven
to conclude that the State was happy to charge him with and convict
him on the charge as it stood
in the charge sheet. For all intents
and purposes this is an ordinary rape which does not call for life
imprisonment as a mandatory
sentence. At the time the law prescribed
a sentence not exceeding 10 years for such an offence. In all
likelihood this is the sentence
which the appellant expected and not
imprisonment for life. The complaint raised by the appellant cannot
be described as mere legal
technicalities or stratagems as it sits at
the heart of a constitutionally protected right to a fair trial. I
have no doubt that
the imposition of life imprisonment in
circumstances where he was never so alerted, caused the appellant
grave prejudice. Such
has resulted in the appellant being denied his
constitutionally protected right to a fair trial. This goes against
the spirit and
purport of the Bill of Rights, which is the
cornerstone of our democracy which resulted in him not having a fair
trial. What this
means is that, as the appellant had not been
informed of the applicability of the
Criminal Law Amendment Act, it
was inappropriate and impermissible for the regional magistrate to
refer the proceedings to the High Court for sentencing. The
regional
magistrate should have sentenced the appellant for the rape in line
with the penal jurisdiction of the magistrate court
in place at the
time. This is so because in law the appellant was convicted of
ordinary rape and could only be sentenced for ordinary
and not rape
read with
s 51(1)
of the
Criminal Law Amendment Act. It
follows that
this sentence cannot stand.
[53]
Having set the sentence of life imprisonment aside, what then would
be an appropriate sentence? As I said earlier, the appellant
was
charged and convicted of rape of a 10 year old girl. A Magistrates’
Court is a creature of statute. Its powers and penal
jurisdiction is
as set out in the
Magistrates’
Courts
Act. It
cannot
impose any sentence in excess of what the Act prescribes. This is in
line with the hallowed principle of legality enshrined
in our
Constitution. Section 9 of the
Magistrates’ Courts Act as
it
applied then prescribed a sentence of not more than 10 years.
Although this offence calls for life imprisonment in terms of
the
Criminal Law Amendment Act, this
Court cannot as a court of appeal
impose any other sentence outside the one statutorily prescribed by
s
9
of the
Magistrates’ Courts Act. This
Court is bound to impose
a sentence which the regional magistrate was competent to impose. Our
task therefore is to determine what
an appropriate sentence should
be, given all the facts relevant to this case. This should not be
misconstrued to imply that this
Court fails to appreciate the
seriousness and prevalence of this offence. Our courts, but in
particular, this Court has spoken
in numerous judgements about the
horrors of this offence and its deleterious effect on its victims,
family members and the broader
society. The nature of this offence,
its effect, impact on the complainant and the personal circumstances
of the appellant have
been fully set out by my colleague. There is no
doubt that this is a very serious offence which calls for a severe
sentence which
will adequately reflect its seriousness and
society’s legitimate outrage and indignation at the people who
commit such
crimes. This is so because such crimes bring about pain,
heartbreak and destruction of the victims’ lives. Our courts
have
a huge responsibility to protect society against such crimes by
imposing appropriate sentences. The appellant’s circumstances
pale when one reads them against the seriousness of the offence.
Ordinarily, as the majority judgement holds, he deserved a more
severe sentence. However, as the law stood then, the appellant stood
to be sentenced to imprisonment for a period not exceeding
10 years
imprisonment for the crime with which he was charged and for which he
was convicted.
[54] In the result:
1 The appeal against
sentence is upheld.
2 The sentence of
life imprisonment imposed on the appellant is set aside and replaced
with a sentence of 10 years’ imprisonment.
3 The sentence
imposed is antedated in terms of s282 of the Criminal Procedure Act
51 of 1997 to 15 March 2000.
______________________
L
O BOSIELO
JUDGE
OF APPEAL
APPEARANCES
For
Appellant:
W A Karam
Instructed
by:
Johannesburg
Justice Centre
Johannesburg
Justice Centre, Johannesburg
Bloemfontein
Justice Centre, Bloemfontein
For
Respondent:
L A Surendra
Instructed
by:
Director
of Public Prosecutions
Director of Public
Prosecutions, Johannesburg
Director of Public
Prosecutions, Bloemfontein
[1]
Rammoko v
Director of Public Prosecutions
2003
(1) SACR 200
(SCA) para 13.
[2]
S
v Legoa
2003
(1) SACR 13
(SCA) para 21;
S
v Ndlovu
2003
(1) SACR 331
(SCA) para 12.
[3]
Ibid.
[4]
Para
14.
[5]
Para
21.
[6]
S
v Mthembu
[2011]
ZASCA 179
;
2012 (1) SACR 517
(SCA) para 17.
[7]
S
v Ndlovu
2003 (1) SACR 331
(SCA) para 12.
[8]
S
v Mashinini & another
[2012]
ZASCA 1; 2012 (1) SACR 604 (SCA).
[9]
The
minority judgment was later followed and approved in
S
v Kolea.
[2012]
ZASCA 199; 2013 (1) SACR 409 (SCA).
[10]
Para
18.
[11]
Para
35.
[12]
Para
49.
[13]
Para
47.
[14]
S
v Kolea
Ibid
[15]
S
51(1) read with Schedule 2 Part I of the Act determines that if the
victim is raped more than once, the prescribed minimum sentence
is
life imprisonment, unless there are substantial and compelling
circumstances not to impose life imprisonment.
[16]
Para
7.
[17]
Turnbull-Jackson
v Hibiscus Coast Municipality & others
[2014]
ZACC 24
;
2014 (6) SA 592
(CC) para 61
[18]
R
v Crause
1959
(1) SA 272
(A) at 281C-D;.
Pretoria
City Council v Levinson
1949
(3) SA 305
(A) at 317.
[19]
S
v Kolea
ibid, para 12.
[20]
S
v Jaipal
[2005] ZACC 1
;
2005
(1) SACR 215
(CC) para 29.
[21]
S v Mudau
2013 JDR
0938 (SCA) para 13.
[22]
S
v
Malgas
2001
(1) SACR 469 (SCA).
[23]
Section
12
(c)
and
(e)
of the Constitution. See also
S
v Chapman
[1997] ZASCA 45
;
1997
(3) SA 341
(SCA) at 344J-345B.
[24]
Section
28
(d)
of the Constitution.
[25]
Rammoko v
Director of Public Prosecutions
2003
(1) SACR 200
(SCA) para 12.
[26]
S
v Abrahams
2002
(1) SACR 116
(SCA) para 29.
[27]
S
v Mahomotsa
2002
(2) SACR 435
(SCA) para 17.