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[2014] ZAGPJHC 125
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Mokhari v S (A07/2014) [2014] ZAGPJHC 125 (9 June 2014)
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REPUBLIC
OF SOUTH AFRICA
IN
THE GAUTENG HIGH COURT
LOCAL
DIVISION, JOHANNESBURG
CASE
NO: A07/2014
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between
DECEMBER
OSCAR MOKHARI
APPELLANT
and
THE
STATE
RESPONDENT
J
U D G M E N T
VAN
OOSTEN J:
[1]
The appellant was convicted in the Regional
Court, Johannesburg, of rape and robbery with aggravating
circumstances and sentenced
to life imprisonment and 17 years
’
imprisonment respectively. He was furthermore, in
terms of s 103 of Act 60 of 2000, declared unfit to possess a
firearm. The appeal
is directed against sentence and is with leave of
the court a quo.
[2]
The facts of the matter are these: the complainant, who was [
…
.]
years old at the time, at approximately 05h00 on the day of the
incident, was alone on a small elevation in a park and while
praying
on her knees, the appellant arrived, touched her on the neck and
demanded the handing over of her cell phone. The appellant
was armed
with a screwdriver in the one hand and a knife in the other. The
complainant handed over her cell phone. She then opened
her Bible and
the appellant demanded money. She told him she had none. She took her
jacket off, gave it to the appellant for him
to search for money. He
did so but found nothing. He tossed the jacket back to her. While the
appellant was standing and looking
at her the complainant told him
that she did not like what he was doing but there is a God who could
help him. The appellant walked
away for a short distance and the
complainant continued praying. She felt the contact of a knife on her
neck. It was the appellant
who told her to accompany him to where he
was praying. She refused and he grabbed her and dragged her off to an
open veldt. There
appellant pushed her and she fell to the ground. He
partially undressed her and proceeded to rape her twice. The
complainant got
up, put on her underwear and went back home. Although
her mother and a friend were standing outside their house on her
arrival,
she, without speaking to them, went into the bedroom and
locked herself in. The door of the bedroom was later forced open and
she
was taken to hospital. On medical examination at 11h45 fresh
gynaecological injuries consisting of abrasions and tears with
resultant
bleeding were observed which the doctor testified, were
consistent with forceful vaginal penetration. The appellant was
arrested
11 days later when the complainant incidentally saw him and
alerted the police.
[3]
The regional magistrate having found that no substantial and
compelling circumstances were present and that he was obliged,
in
terms of the provisions of the Criminal Law Amendment Act 105 of 1997
(s 51 read with schedule 2 Part I thereof), to impose
the prescribed
minimum sentence of life imprisonment in respect of the rape based on
the evidence of the complainant that she had
been raped twice. The
finding was attacked on behalf of the appellant on the basis that the
charge sheet did not contain any reference
to the complainant having
been raped twice. The question accordingly arises whether the
appellant was sufficiently apprised of
the circumstances that would
bring the rape within the purview of the section I have referred to.
[4]
In the charge sheet, as for count 1 (rape), the allegations
concerning the rape are set out, to which is added:
‘
read
with the provisions of Section 51 and/or 52 and Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
, as amended
’
.
In a postscript below the charge the following appears:
‘
Section
51
and/or 52 and Schedule 2 of the
Criminal Law Amendment Act 105 of
1997
, as amended is applicable in that: the accused used a screw
driver and a knife
’
.
The
absence of a reference to or reliance on the complainant having been
raped twice is apparent. Moreover, the use of a screw driver
and
knife by the offender, or any other weapons for that matter, is not
referred to at all in schedule 2. The only circumstances
referred to
in schedule 2, of relevance in this matter, are firstly,
‘
where
the victim was raped more than once whether by the accused or by any
co-perpetrator of accomplice
’
,
and, secondly, a rape
‘
involving
the infliction of grievous bodily harm
’
.
The oft repeated warning that care must be exercised in the drafting
and preparing of charge sheets and indictments to ensure
that they
correctly and adequately reflect all the necessary averments again
needs to emphasised (
Mashinini v The
State
(502/11)
[2012] ZASCA 1
(21
February 2012) para 28).
[5]
There is generally no duty on the State to recite in the charge sheet
the facts the State intends to prove to establish the
circumstances
referred to in schedule 2, as was held in
S v Legoa
2003 (1)
SACR 13
(SCA), where Cameron JA stated:
'Under
the common law it was therefore "desirable" that the
charge-sheet should set out the facts the State intended to
prove in
order to bring the accused within an enhanced sentencing
jurisdiction. It was not, however, essential. The Constitutional
Court has emphasised that under the new constitutional dispensation,
the criterion for a just criminal trial is "a concept
of
substantive fairness which is not to be equated with what might have
passed muster in our criminal courts before the Constitution
of the
Republic of South Africa Act 108 of 1996 came into force". The
Bill of Rights specifies that every accused has a right
to a fair
trial. This right, the Constitutional Court has said, is broader than
the specific rights set out in the sub-sections
of the Bill of
Rights' criminal trial provision. One of those specific rights is "to
be informed of the charge with sufficient
detail to answer it".
What the ability to "answer" a charge encompasses this case
does not require us to determine.
But under the constitutional
dispensation it can certainly be no less desirable than under the
common law that the facts the State
intends to prove to increase
sentencing jurisdiction under the 1997 statute should be clearly set
out in the charge-sheet.
The
matter is, however, one of substance and nor form, and I would be
reluctant to lay down a general rule that the charge must
in every
case recite 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.
’
The
enquiry therefore is whether the appellant
’
s
constitutional right to a fair trial in terms of s 35 of the
Constitution was infringed, which requires
‘
a
vigilant examination of the relevant circumstances
’
(see
S v
Ndlovu
2003 (1) SACR 331
(SCA)
para12;
Legoa
para
21), to which I now turn.
[6]
In argument on sentence the regional magistrate raised with the
attorney appearing for the appellant whether it was her understanding
that the minimum sentence of life imprisonment was applicable. The
attorney confirmed as much and commenced by informing the court
that
she had given consideration to obtaining a probation officer
’
s
report. The regional magistrate interrupted her with the remark that
that was not what he was suggesting to which he added
‘
I
just do not want you to misunderstand the possible implications of
the sentence
’
.
The attorney then proceeded to supplement her address in advancing
one single contention which was that the rape was not the worst
kind
of rape and that life imprisonment therefore was not appropriate. The
regional magistrate promptly proceeded to deliver judgment
on
sentence and in particular addressed the evidence that the
complainant had been raped twice which he found brought the appellant
within the minimum sentence jurisdiction.
[7]
I am constrained to remark that it is regrettable that the regional
magistrate, who was acutely aware of a possible misunderstanding
by
the appellant
’
s
attorney concerning the minimum sentence, did not direct her
attention to the facts that the complainant had been raped twice
which he by then already must have considered to be relevant to the
finding he was about to make. From the supplementary argument
presented by the attorney it was quite apparent that she was unaware
of or perhaps oblivious to the relevance of those facts. I
should add
that the prosecutor, likewise, in his address on sentence, did not
refer to those facts and simply expressed the
‘
opinion
’
that
‘
no
compelling circumstances
’
were
present.
[8]
It has often been stated that a criminal trial is not a game where
ambush is permitted (
Mashinini
para
11). The presiding officer has a duty to ensure that justice is done.
In
S v Siebert
1998 (1) SACR 554
(A) Olivier JA (at
558i - 559a) said:
‘
Sentencing
is a judicial function
sui generis
.
It should not be governed by considerations based on notions akin to
onus of proof. In this field of law, public interest requires
the
court to play a more active, inquisitorial role. The accused should
not be sentenced unless and until all the facts and circumstances
necessary for the responsible exercise of such discretion have been
placed before the court.’
Although
reliance can and often must be placed on the competence of legal
representatives appearing for accused, the duty remains
on the
presiding officer, where circumstances demand so, to intervene, in
order to avoid misunderstandings and misconceptions by
legal
representatives (see
S v Mseleku
2006
(2) SACR 574
(D&CLD);
S v Maake
2011 (1) SACR 263
(SCA) para 27
)
.
Where, as in the present matter, the evidence of the complainant that
she had been raped twice was neither referred to in the
charge sheet
nor addressed at all by any of the legal representatives in argument,
it was the duty of the regional magistrate,
who was about to find
that life imprisonment
–
the
most severe sentence a court can impose - was mandatory based on that
very evidence, to invite argument on this aspect (cf
S
v Makatu
2006 (2) SACR 582
(SCA)
para7;
S v Mabaso
2014
SACR 299
(KZP) para 76). His failure to do so, in my view, resulted
in unfairness towards the appellant as far as this aspect of the
sentence
is concerned. In
Mashinini
(para 11), Mhlantla JA, in the
majority judgment, in this regard, stated:
‘
[11]
To my mind, the solution to this legal question lies in s 35(3) of
the Constitution. Section 35(3)(
a
)
of the Constitution provides that every accused person has a right to
a fair trial which, inter alia, includes the right to be
informed of
the charge with sufficient detail to answer it. This section appears
to me to be central to the notion of a fair trial.
It requires in
clear terms that, before a trial can start, every accused person must
be fully and clearly informed of the specific
charge(s) which he or
she faces. Evidently, this would also include all competent verdicts.
The clear objective is to ensure that
the charge(s) is sufficiently
detailed and clear to an extent where an accused person is able to
respond and importantly to defend
himself or herself. In my view,
this is intended to avoid trials by ambush.
’
Applied
to the present matter I am satisfied that the State
’
s
reliance on part 1 of schedule 2 cannot be sustained and that s 51(2)
read with Part III of Schedule 2 of the Act applies, prescribing
a
period of ten years
‘
imprisonment.
As mentioned the regional magistrate found that there were no
substantial and compelling circumstances to justify
the imposition of
a lesser sentence. I am satisfied that the finding, which was not
challenged before us, was correct.
[9]
In the consideration of the sentence to be imposed due cognizance
must be taken of the brutality of the appellant's attack on
the
complainant taking advantage of her vulnerability, that she was raped
more than once, the seriousness of the injuries she sustained
and the
humiliation and degradation that followed, which all constitute
aggravating circumstances (see
N v T
1994 (1) SA 862
(C) 864G;
S v Ncheche
[2005] ZAGPHC 21
;
2005 (2) SACR 386
(W);
S v Chapman
[1997] ZASCA 45
;
1997 (2)
SACR 3
(SCA);
S v SMM
2013 (2) SACR 292
(SCA) para 17). A
lengthy prison sentence of 15 years, in my view, is both appropriate
and proportionate in the circumstances of
this case.
[10]
Next, I turn to deal with the sentence on count 2. The regional
magistrate duly considered the seriousness of the crime of
robbery
and the importance of the interests of society. The appellant was 28
years old at the time of sentencing, single with no
dependents. He
had been awaiting trial in custody for some 16 months. This however
was not his first brush with the law. In 2006
he was convicted of
robbery and sentenced to 8 years
’
imprisonment of which 4 years were
suspended on certain conditions. The sentence obviously did not have
the desired effect as the
present offences were committed less than
four years later. The regional magistrate 'directed' that the
suspended portion of the
sentence, should it be put into operation,
be served concurrently with the sentences imposed in the present
matter. Although I
am doubtful whether the regional magistrate was
empowered to issue such a direction I need not comment any further as
this aspect
is not on appeal before us.
[11]
While one appreciates the regional magistrate
’
s
emphasis on the seriousness of the crime of robbery, its prevalence
and society's justified intolerance concerning robberies,
he did not
take into account that no violence was used, that no injuries were
sustained by the complainant in the robbery and that
she in the face
of a threat, handed the cell phone to the appellant. This in itself
is a misdirection. No evidence concerning the
impact of the robbery
or for that matter, the rape, on the complainant was adduced. The
prosecutor, improperly so, in his address
informed the court that the
complainant had spoken to him at one of the postponements of the
matter, and informed him that 'the
circumstances were very traumatic'
and that she was finding it difficult to forget what had happened to
her. Although this is the
unfortunate result of all violent crimes,
these factors should have been placed before the court by way of
evidence either from
the complainant or other competent witness or in
a victim impact report. The factors I have mentioned should have been
considered
and given due weight by the regional magistrate. In my
view, and considering the dicta in the judgment in
S
v Malgas
2001 (2) SA 1222
(SCA)
1230E-G and 1231A-D, these factors cumulatively constitute
substantial and compelling circumstances, warranting the imposition
of a lesser sentence.
[12] A
sentence of 17 years
’
imprisonment,
having regard to the facts of this matter, strikes me as unduly
harsh. The regional magistrate in his judgment on
sentence expressed
the intention to
‘
be as lenient as
possible under the circumstances
’
but
nothing thereof is reflected in the sentences that were imposed. The
sentence, moreover, in my view, is disproportionate to
the crime of
which the appellant has been convicted (
S
v Vilakazi
2009 (1) SACR 552
(SCA) para
15).
[13]
In the light of what I have stated above this court is entitled to
intervene and to substitute the sentence imposed by the
regional
magistrate with one that is that is appropriate. In my view, having
regard to the totality of the circumstances, a proportionate
sentence
to be imposed is 12 years
’
imprisonment.
[14]
Finally, it is necessary to consider the cumulative effect of the
sentences I am about to impose. An effective sentence of
27 years
’
imprisonment undoubtedly, is excessive
(cf
S v Mabunda
2013
(2) SACR 161
(SCA)). In my view, allowing for the time the appellant
had spent in custody as an awaiting-trial prisoner (
S
v Radebe and another
2013 (2) SACR
165
(SCA) para 14), the fact that the charges arose from essentially
the same incident and in order to ameliorate the harshness of the
cumulative effect of the sentences, I propose to order a certain
measure of concurrence resulting in effective sentence of 18 years
’
imprisonment which in my view is
appropriate.
[15]
In the result the following order is made:
1. The appeal against
sentence is upheld to the extent that the sentences imposed by the
court a quo are set aside and substituted
with the following:
‘
The
accused is sentenced as follows:
1.
On count 1 (Rape): 15 years
’
imprisonment.
2.
On count 2 (Robbery with aggravating
circumstances): 12 years
’
imprisonment.
It is
ordered that 9 of the 12 year
’
s
imprisonment imposed on count 2 are to run concurrently with the
sentence imposed on count 1. The effective term of imprisonment
is
therefore 18 years.
’
2.
The commencement date of the sentences
in paragraph 2 above, in terms of s 282 of Act 51 of 1977, is
antedated to 9 December 2011,
being the date of sentencing.
_________________________
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
I
agree.
__________________________
G
DAMALIS
ACTING
JUDGE OF THE HIGH COURT
COUNSEL
FOR THE APPELLANT
ATTORNEY JESSE PENTON
COUNSEL
FOR THE RESPONDENT
ADV T BYKER
DATE
OF HEARING
9 JUNE 2014
DATE
OF JUDGMENT
9 JUNE 2014