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[2015] ZASCA 65
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Mashigo and Another v S (20108/2014) [2015] ZASCA 65 (14 May 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 20108/2014
Not
Reportable
In
the matter between
JOHANNES
MOYA
MASHIGO
........................................................................
FIRST
APPELLANT
MANKGE
RAKOLOTA
................................................................................
SECOND
APPELLANT
and
THE
STATE
...................................................................................................................
RESPONDENT
Neutral
citation:
Mashigo & another v
The State
(20108/2014)
[2015] ZASCA 65
(14 May 2015)
Coram:
Bosielo, Majiedt and Pillay JJA
Heard:
02 March 2015
Delivered:
14 May 2015
Summary
:
Criminal appeal –first appellant appeals against sentence only
whilst second appellant appeals against both conviction and
sentence
– multiple contradictions in the State’s case –
effect thereof – whether the evidence of identification
sufficient and reliable to justify a conviction of second appellant –
whether a sentence of life imprisonment in respect
of the first
appellant in terms of s 51 of Act 105 of 1997 is appropriate.
ORDER
On
appeal from:
North Gauteng High Court,
Pretoria (Goodey and Omar AJJ sitting as court of appeal):
1.
The appeal against the sentence of imprisonment for life imposed in
respect of the first appellant is dismissed.
2.
The appeal against both conviction and sentence of imprisonment for
life imposed in respect of the second appellant is upheld.
The
conviction and the sentence are set aside.
3.
The Registrar of this Court is directed to send a copy of this
judgment to the Judge President, North Gauteng High Court, Pretoria.
JUDGMENT
Bosielo
JA (Majiedt and Pillay JJA concurring):
[1]
This is an appeal against the judgment of the North Gauteng High
Court, Pretoria (Goodey and Omar AJJ) in respect whereof they
dismissed the appeal by both appellants against their conviction and
sentence imposed on them by the regional magistrate in the
Regional
Division of Gauteng, sitting in Pretoria on a count of rape on 19
February 2009. The appeal is with the leave of the court
below.
[2]
The State relied on the evidence of three witnesses whose evidence
can be broadly set out as follows:
In
the early hours of 18 November 2006, the complainant, Ms P[…]
P[…] (P[…]) was returning from her sister’s
home
en route to her home. The two houses are situated in the same yard,
approximately 15 metres apart. Whilst on her way home,
she was
accosted by the first appellant who was accompanied by two other men.
She knows the first appellant as Johannes Moya Mashigo
(Moya) as he
used to frequent the yard where she stayed and they also reside in
the same street in the same location. She had known
him for
approximately three months before this incident. She did not know the
second appellant and was seeing him for the first
time on that night
nor did she know the third person, who managed to flee.
[3]
Regarding the actual incident, P[...] testified that the first
appellant enquired from her about the whereabouts of a lady called
Thulisiwe. When she responded that she did not know, the three of
them started to assault and pelt her with stones. The first
appellant, who had a broken bottle with him, scratched her with it on
her face. All three of them then forced her to the ground
and raped
her in turn.
[4]
Although she did not know the third person who managed to flee and
was therefore not an accused at the trial, she testified
that he was
referred to as Gilbert at the crime scene. She testified that he was
the first to rape her. However, later in her evidence
she changed and
stated that it is the second appellant who undressed her and raped
her first, followed by Gilbert, and then the
first appellant, whom
she testified further that he raped her twice. As fate would have it,
he was arrested by the people whilst
still on top of her. The second
appellant was arrested at the gate not far from the scene. It is
unclear whether he was arrested
inside or outside the gate.
[5]
I pause to observe that P[...] did not fare well in
cross-examination. She gave conflicting versions on the sequence of
the
rape.
First,
she stated that it was, Gilbert who raped her first, followed by the
second appellant and the last being the first appellant.
Much later
she changed her version to state that it was the first appellant
(Moya) who raped her first and then repeated himself.
However she was
adamant that the person who raped her first, raped her twice. To
compound the problem, she then changed again and
stated that it is
Gilbert, who raped her first, then the second appellant followed by
the first appellant who raped her twice.
[6]
It is clear that P[...] was confused in her recollection of the
events of the ill-fated night. She not only contradicted herself
in
evidence in chief and in cross-examination, she also contradicted the
statement that she had made to the police.
[7]
The contradictions in her evidence are so material that, to my mind,
they render her evidence unreliable when it stands alone.
However,
this should not be misconstrued to mean that she is a dishonest
witness who lied to the court deliberately. I ascribe
her confusion
about the events of the fateful night to the trauma which she must
have experienced as a victim. She was accosted
by three hostile and
violent men in the early hours of the morning who assaulted her
severely and then gang-raped her. To expect
her to give a clear and
meticulous account of who did what first, is to expect the
impossible. Her confusion is, to my mind understandable.
She is only
human. Unfortunately, much as she has my sympathy, these
contradictions render her evidence unreliable.
On its own
it does not pass muster.
[8]
The state then called Morris Maluleka (Morris), ostensibly to
corroborate the version of P[...]. Unfortunately, instead of
corroborating P[...], he contradicted her on material aspects of the
case as I will demonstrate hereunder. Morris testified that
he heard
someone screaming whilst at his home in the same yard at
approximately 01h00. He peeped through a hole in the door and
saw
Moya and two other men with P[...]. They were making noise and saying
that they will take P[...] as they did not find Thulisiwe.
He
testified further that the second appellant and the one called
Gilbert, forced P[...] to go with them. As they were assaulting
P[...], he telephoned one Victor Mampuru (Victor) who apparently
stays nearby, for assistance. He also called P[...]’s sister.
According to Morris, it is Gilbert who raped P[...] first, followed
by the second appellant. Contrary to P[...], Morris testified
that
all three persons (the two appellants and Gilbert) each raped P[...]
twice. However, Morris corroborated P[...] that he is
the one who
caught the first appellant whilst still raping her, whilst the second
appellant was caught at the gate by Victor.
[9]
Dr Carel Grovè Kleynhans is the medical doctor who examined
P[...] on 18 November 2006. He prepared a J88 medical report,
which
was handed in as an exhibit by the appellant. He testified that as
P[...] was bleeding profusely from her vagina ostensibly
due to
menstruation, and further that she had had three previous deliveries,
he could find no signs of injury to her genitals.
As a result he was
unable to make any conclusive findings regarding the alleged rape.
However, he observed an injury on the right
side of her face
consistent with a human bite mark. He recorded further that P[...]
had reported to him that she was threatened
with a bottle. I hasten
to comment that this is contrary to P[...]’s evidence that she
was scratched with a broken bottle
on her face.
[10]
The two appellants testified in their defence. It suffices to state
that, although they both admitted to having been with P[...]
later
that night, they both denied having assaulted or raped her. As the
first appellant is not appealing against his conviction,
I will not
comment about his version.
[11]
In a nutshell, the version of the second appellant is that he was
with the first appellant and P[...] earlier that evening.
He later
parted with them to go home. Whilst on his way home he heard some
noise coming from where he had left the first appellant.
He then went
to where the noise came from to investigate. He found people
assaulting the first appellant. As he tried to intervene,
he was also
assaulted. Whilst walking away, someone caught him. He denied that he
raped P[...].
[12]
It suffices to state that the second appellant kept to his version
even under cross-examination. No contradictions or inconsistencies
emerged from his evidence.
[13]
The vexed legal question is whether the State’s evidence passed
the legal test or threshold of proof beyond reasonable
doubt.
[14]
The following facts are not in dispute: that P[...] and the two
appellants were together at some stage at about 01h00 on the
morning
of 18 November 2006; that P[...] was assaulted and raped by three men
and that both the appellants were arrested by neighbours
at or near
the scene.
[15]
The issue which this Court has to decide is whether the State’s
evidence, given its imperfections, deficiencies and contradictions
was of such a calibre that it could satisfy the trial court that the
guilt of the appellants had been proved beyond reasonable
doubt.
[16]
I regret to state that contrary to a plethora of case law on the
point, the regional magistrate adopted a wrong judicial approach
to
the evaluation of evidence. The regional magistrate expressed himself
in the judgment as follows:
‘
The
evidence of both accused is improbable and contradictory, and the
court cannot find that it is truthful beyond reasonable doubt’.
Undoubtedly,
the regional magistrate misdirected himself.
[17]
It is trite that in a criminal trial, the State bears the onus to
prove the guilt of an accused beyond reasonable doubt. There
is no
onus on the part of an accused to prove his innocence or to convince
the court of the truthfulness of any explanation that
he or she
gives.
S v Jochems
1991 (1) SACR 208
(A) at 211E-G. It is not
enough or proper to reject an accused’s version on the basis
that it is improbable only. An accused’s
version can only be
rejected once the court has found, on credible evidence, that it is
false beyond reasonable doubt.
S v V
2000 (1) SACR 453
(SCA)
para 3. In other words, if the appellants’ version is
reasonably possibly true, he is entitled to be acquitted.
[18]
I interpose to state that counsel for the respondent was invited to
give any acceptable reason why the second appellant’s
version
was rejected by the regional magistrate. To his credit, he conceded
that he could find none. It follows ineluctably that
the regional
magistrate erred in rejecting the second appellant’s version in
the face of the State’s version which
is riddled with material
contradictions which go to the heart of the case regarding the
sequence of how P[...] was raped.
[19]
The judgment of the regional magistrate does not show if any caution
was exercised whilst evaluating the evidence of P[...].
This is of
great significance on the facts of this case as she on numerous
occasions became confused regarding who raped her and
in what order.
When confronted with some glaring contradictions in her evidence, she
readily conceded that she was getting ‘mixed
up’.
Furthermore, she was shown to have contradicted her statement which
she had made to the police.
[20]
The problem is further exacerbated by the contradictions in her
evidence and that of Morris regarding the identity of who did
what
and when. Given these glaring contradictions, one would have expected
the regional magistrate to have shown some caution by
asking the
witnesses about the opportunities available to them to observe and
identify the second appellant; to indicate any features
with which
they identified the second appellant, given the fact that he was
unknown to them.
[21]
The following facts are relevant to an evaluation of the evidence;
that it was in the early hours of the morning; she had been
drinking
liquor; she was seriously assaulted and raped by three men; that she
must have been traumatised; the fact that Morris
observed the
incident from a distance from a hole in the door and, importantly,
the fact that the second appellant was not known
to both of them and
the reliability of his identification is highly questionable. In my
view, these circumstances are such that
it cannot be found with
certainty that they had sufficient opportunity to make reliable
observations and identification of the
second appellant as one of the
rapists.
[22]
I interpose to state that according to Morris, the second appellant
was caught by one Victor at the gate. However, Victor was
never
called to testify. No explanation was tendered. From the evidence it
is clear that Victor was an essential witness. In all
probability, he
is the only person who could have explained to the court exactly
where, how and why he arrested the second
appellant. The
inexplicable failure by the state to call him has had the effect of
weakening the State’s case even further
regarding the
identification of the second appellant.
[23]
In the circumstances, I am not satisfied that the evidence relating
to the identification of the second appellant relied upon
by the
regional magistrate was sufficiently reliable to constitute proof
beyond reasonable doubt. It follows that the conviction
of the second
appellant cannot stand. What remains for consideration is the
sentence imposed on the first appellant.
[24]
I have already indicated that the first appellant is appealing
against his sentence of life imprisonment only. The main submissions
put forward on his behalf is first, as P[...] did not sustain any
injuries whatsoever to her genitals, this rape does not qualify
as
the worst case of rape that warrants the imposition of the ultimate
sentence of imprisonment for life; second, it was submitted
that the
regional magistrate erred in failing to take into account, amongst
other factors, the fact that the appellant had already
spent two and
a half years in jail whilst awaiting trial, and further that he was a
first offender; and third, that the regional
magistrate, having
considered life imprisonment as a real possibility, misdirected
himself by sentencing the appellant to life
imprisonment without
having had the benefit of a probation officer’s report and the
victim impact report.
[25]
The State countered this by submitting that the circumstances under
which this rape was committed and the brutal and brazen
assault which
accompanied it, justified life imprisonment. Furthermore, the
respondent argued that the first appellant’s
personal
circumstances do not amount to substantial and compelling
circumstances to justify a lesser sentence. As a result, it
was
contended that this Court, sitting as a Court of Appeal has no right
to interfere with the sentence.
[26]
It is correct as counsel for the first appellant submitted that
imprisonment for life which is the ultimate sentence should
not be
lightly imposed.
It is the kind of sentence
that should be imposed only after due consideration of all the facts
and circumstances relevant to sentencing,
in particular the life
history of an accused, his or her upbringing, his or her career if
any, prospects of rehabilitation and,
of course, the nature, impact
and effect of the offence on the complainant. See
S
v Siebert
1998 (1) SACR 554
(SCA).
[27]
The regional magistrate did not obtain a probation officer’s
report nor a victim impact report. Is this an irregularity
as
contended for by the first appellant? If so, is it so gross that it
can be said that the appellant did not receive a fair trial.
The
answer must be in the negative as it is clear from the record that
the regional magistrate had all the facts relevant to sentencing
at
his disposal when he sentenced the appellant.
[28]
It is certainly desirable that pre-sentencing reports be procured
before sentencing, particularly in cases where life imprisonment
is a
real possibility. However, there is no hard and fast rule that such
reports be obtained in all cases. The peculiar facts of
each case
will determine if pre-sentencing reports are essential. I do not
think that this was such a case. Furthermore, it was
not argued
before us that the regional magistrate failed to exercise his
sentencing discretion or exercised it improperly or unreasonably.
A
failure to call for pre-sentencing reports by the regional magistrate
in this case cannot without more constitute the kind of
misdirection
which vitiates its decision on sentence.
[29]
However, as appellants’ counsel conceded, correctly in my view,
the facts of this case prove beyond doubt that this rape
falls
squarely within the ambit of s 51(1) of the Criminal Law Amendment
Act 105 of 1997 (the Act). The evidence paints a horrid
picture of
three men waiting in the dark for the poor and vulnerable
complainant. As she emerged they pounced on her
like
hungry wolves. All three of them assaulted her with stones. One of
them bit her whilst another one scratched her with a broken
bottle on
her face. This behaviour shows lack of respect for the complainant’s
right to life, her physical integrity, freedom
of movement and
importantly, her human dignity. The appellant has proffered no
explanation for this egregiously barbaric behaviour.
To my mind,
there are no facts that could qualify as substantial and compelling
to justify a lesser sentence than imprisonment
for life.
[30]
Nearly 18 years ago, this Court sounded a clear warning to rapists
and men who abuse women in
S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA)
at 344J-345B as follows:
‘
Rape
is a very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, dignity and
the person
of the victim. The rights to dignity, to privacy and the integrity of
every person are basic to the ethos of the Constitution
and to any
defensible civilisation. Women in this country are entitled to the
protection of these rights. They have a legitimate
claim to walk
peacefully on the streets, to enjoy their shopping and their
entertainment, to go and come from work, and to enjoy
the peace and
tranquillity of their homes without the fear, the apprehension and
the insecurity which constantly diminishes the
quality and enjoyment
of their lives.’
[31]
It is sad and a bad reflection on our society that 21 years into our
nascent democracy underpinned by a Bill of Rights, which
places a
premium on the right to equality (s 9) and the right to human dignity
(s 10), we are still grappling with what has
now morphed into a
scourge to our nation. It is clear that this salutary warning
expressed by this Court in
Chapman
went unheeded. Needless to
state that courts across the country are dealing with instances of
rape and abuse of women and children
on a daily basis. Our media in
general is replete with gruesome stories of rape and women and child
abuse on a daily basis.
[32]
In 1997, Parliament took a bold step in response to the public outcry
about serious offences like rape and introduced the Act,
colloquially
called the Minimum Sentences Act which prescribes severe minimum
sentences for certain serious crimes. Self-evidently,
the
Government’s intention and hope was that such severe sentences
would serve as an effective deterrent whilst at the same
time taking
those who have proved to be a danger to society out of circulation
for long periods including life. Sadly, statistics
prove that the
Minimum Sentences Act has not had the desired effect. Violent crimes
like rape and abuse of women and children in
various guises still
occur unabated. What then can the courts do to help stem this tide
which has the potential to destroy the
very fabric of our society?
This Court answered this question in
Chapman
at 345 D (supra)
with the following clear message to the courts:
‘
The
Courts are under a duty to send a clear message to the accused to
other potential rapists and to the community: We are determined
to
protect the equality, dignity and freedom of all women, and we shall
show no mercy to those who seek to invade these rights.’
[33]
Unlike at the time of
Chapman
, the Courts now have an
effective tool in the form of the severe sentences prescribed in the
Minimum Sentences Act to fight this
scourge. As stated in
S v
Malgas
2001 (1) SACR 469
(SCA) the courts must, where there are
no substantial and compelling circumstances in crimes like this one,
which fall under s 51(1),
not hesitate to impose the ultimate
sentence prescribed. No court should permit flimsy reasons, undue or
maudlin sympathy with
an accused, personal doubt regarding the
effectiveness of the sentence to deflect it from executing its task
to impose appropriate
sentences. Courts must accept that as the
Legislature has decreed, these crimes warrant a severe, standardised
and consistent response
from the courts.
S v Malgas
(supra) at
para 25.
[34]
Although the appellant’s counsel was hard-pressed to concede
that rape has become endemic in the country and that Parliament
has
identified it as one of those crimes which must be visited with
severe minimum sentences, he submitted that the regional magistrate
erred in proceeding to sentence the first appellant to life
imprisonment without having had the benefit of a probation officer’s
report, and a victim impact report. The nub of the contention was
that as life imprisonment is the ultimate sentence, no sentencing
officer should impose it without being satisfied that he or she has
been placed in possession of all facts relevant to a consideration
of
an appropriate sentence. I can find no fault with this submission.
[35]
It is axiomatic that the sentencing stage is different to the trial
stage where the issue of the burden of proof is crucial
in
determining the guilt or innocence of an accused. Where sentencing is
involved no sentencing officer can remain supine and leave
the
fortunes of an accused to the vagaries of trial lawyers. A sentencing
court must be proactive to ensure that he or she is fully
informed of
all the facts which impact on the accused, like his/her family
history, upbringing, career, his psycho-emotional wellbeing,
his
moral and ethical standards and any other factors which may have had
an influence on him or her committing the crime for which
he or she
is convicted. This is normally done through reports by expert
witnesses like a probation officer. Equally, to have a
complete and
balanced picture, a sentencing officer will require a victim impact
report, essentially to inform him or her of the
victim; her family
history, upbringing, career and, crucially, the impact and effect of
the offence on her and her family. Self-evidently,
such reports will
enable a sentencing officer to explore a whole range of sentencing
options to be able to decide on a sentence
which is balanced, fair to
both the accused and the victim, whilst taking appropriate account of
the moral indignation engendered
in the right thinking members of the
community.
[36]
Having said this, I agree with the regional magistrate that the
appellants’ circumstances do not qualify as substantial
and
compelling as envisaged by s 51(3) of the Act. Furthermore, I am
unable to find any misdirection on the part of the regional
magistrate in regard to sentencing the first appellant. This being a
Court of Appeal, our powers to interfere with a sentence properly
imposed by the trial court are strictly circumscribed.
S v
Kgosimore
1999 (2) SACR 238
(SCA). This is so as the prerogative
to impose an appropriate sentence resides with the trial court. We
cannot be seen to be usurping
the sentencing discretion of the trial
court.
[37]
There is an aspect of this matter which warrants some comment. Having
been convicted by a regional magistrate of rape which
falls within
the purview of s 51(1) of the Act, both appellants were sentenced to
life imprisonment after the regional magistrate
had found that there
were no substantial and compelling circumstances to justify a lesser
sentence. Aggrieved by this judgment,
they both appealed to the North
Gauteng High Court, Pretoria. Two Acting Judges heard this appeal.
[38]
On 5 July 2010, they delivered a judgment dismissing this appeal.
Regrettably, this is no judgment at all. It is merely an
order which
is paraded as a judgment. It is cryptic and comprises five lines
only. Contrary to established and salutary judicial
tradition, it
neither deals with the facts nor the law. Even more disconcerting is
the absence of reasons for the decision. The
entire ‘judgment’
reads as follows:
‘
We
once again thank the advocates for the heads and the argument of each
counsel in this regard. After having carefully considered
this case,
I have no doubt that there is no reason to interfere with the
judgment of the magistrate on conviction and neither on
sentence.
Therefore I am of opinion that the appeal should be dismissed.’
[39]
Dealing with a failure by a judicial officer to give reasons for his
or her decision, this Court held as follows in
S v Mokela
2012
(1) SACR 431
(SCA) paras 12 and 13:
‘
I
find it necessary to emphasise the importance of judicial officers
giving reasons for their decisions. This is important and critical
in
engendering and maintaining the confidence of the public in the
judicial system. People need to know that courts do not act
arbitrarily but base their decisions on rational grounds. Of even
greater significance is that it is only fair to every accused
person
to know the reasons why a court has taken a particular decision,
particularly where such a decision has adverse consequences
for such
an accused person. The giving of reasons becomes even more critical,
if not obligatory where one judicial officer interferes
with an order
or ruling made by another judicial officer. To my mind this underpins
the important principle of fairness to the
parties. I find it
un-judicial for a judicial officer to interfere with an order made by
another court, particularly where such
an order is based on the
exercise of a discretion, without giving any reasons therefore. In
Strategic Liquor Services v Mvumbi NO &
others
2010 (2) SA 92
(CC)
(2009 (10)
BCLR 1046)
para 15 the Constitutional Court whilst dealing with a
failure by a judicial officer to give reasons for a judicial
decision, stated
that:
“
Failure
to supply them will usually be a grave lapse of duty, a breach of
litigants’ rights, and an impediment to the appeal
process”.
See
also
Botes & another v Nedbank Ltd
1983 (3) SA 27
(A) at
28.
[13]
Regarding the duty of judicial officers to give reasons for their
decisions, it is instructive to have regard to what the Right
Honourable Sir Harry Gibbs, GCMG, AC, KBE, the former Chief Justice
of the High Court of Australia, stated in the
1993 (67A)
Australian
Law Journal
494
where he said at 494:
“
The
citizens of a modern democracy – at any rate in Australia –
are not prepared to accept a decision simply because
it has been
pronounced, but rather are inclined to question and criticise any
exercise of authority, judicial or otherwise. In
such a society it is
of particular importance that the parties to litigation – and
the public – should be convinced
that justice has been done, or
at least that an honest, careful and conscientious effort has been
made to do justice, in any particular
case, and that the delivery of
reasons is part of the process which has that end in view…”.
See
also
Mphahlele v First National Bank of SA Ltd
[1999] ZACC 1
;
1999 (2) SA 667
(CC)
(1999 (3) BCLR 253)
para 12;
Commissioner, South African
Revenue Service v Sprigg Investment 117 CC t/a Global Investment
2011 (4) SA 551
(SCA) paras 28-30.’
[40]
It suffices to state that this is a serious dereliction of duty by
the two judges. As one can see from the record, it assists
neither
the appellants nor the Appeal Court to understand the basis on which
the appeal was dismissed. This failure becomes even
more important in
the light of the fact that having read the record, we found that the
regional magistrate had no reasons to reject
the version of the
second appellant as it could not be said to be false beyond
reasonable doubt. As this judgment shows, there
were serious issues
surrounding the identification of the appellants which the court
below failed inexplicably to deal with.
[41]
To my mind, the conduct of the two judges is so egregious that it
cannot be countenanced. It has the potential of eroding the
public
confidence in the judiciary. It is for this reason that we believe
that a copy of this judgment should be sent to the Judge
President,
North Gauteng High Court, Pretoria for his urgent attention.
[42]
In the result:
1.
The appeal against the sentence of imprisonment for life imposed in
respect of the first appellant is dismissed.
2.
The appeal against both conviction and sentence of imprisonment for
life imposed in respect of the second appellant is upheld.
The
conviction and the sentence are set aside.
3.
The Registrar of this Court is directed to send a copy of this
judgment to the Judge President, North Gauteng High Court, Pretoria.
_________________
L
O BOSIELO
JUDGE
OF APPEAL
Appearances:
For
Appellants: JM Mojuto
Instructed
by:
Legal
Aid South Africa, Pretoria
Bloemfontein
Justice Centre, Bloemfontein
For
Respondent : HA Thenga
Instructed
by:
Director
Public Prosecutions, Pretoria
Director
Public Prosecutions, Bloemfontein