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[2014] ZASCA 13
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Madiba v S (497/2013) [2014] ZASCA 13; 2015 (1) SACR 485 (SCA) (20 March 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case No: 497/2013
In
the matter between:
MAPOSA
FRANS
MADIBA
.............................................................................
APPELLANT
and
THE
STATE
......................................................................................................
RESPONDENT
Neutral
citation
:
Madiba
v The State
(497/2013)
[2014] ZASCA 13
(20 March 2014)
Coram
:
Ponnan JA and Swain and Mathopo AJJA
Heard
:
5 March 2014
Delivered:
20 March 2014
Summary
:
Appeal against conviction on
charges of attempted rape and rape dismissed – material
misdirection by trial court in passing
sentence – appeal court
at large to impose sentences on all counts – appeal against
sentence partially upheld.
Order
On
appeal from
Limpopo High Court, Thohoyandou (Hetisani J sitting
as court of first instance):
1
The appeals against the convictions of attempted rape and rape are
dismissed.
2
The appeal against the sentences imposed on all counts are upheld,
the sentences imposed are set aside and the appellant is sentenced
to
the following terms of imprisonment:
Count
1 – attempted rape: 5 years’ imprisonment
Count
2 – kidnapping: 6 years’ imprisonment
Count
3 – rape: life imprisonment
Count
4 – murder: 35 years’ imprisonment
3
It is ordered that the sentences are to run from the date when
sentence was originally imposed being 4 May 2009.
JUDGMENT
Swain
Aja
(
Ponnan
JA and Mathopo AJA
concurring):
[1]
The appellant Mr Maposa Madiba was
convicted of the crimes of attempted rape, kidnapping, rape and
murder by the Limpopo High Court
(Hetisani J) and sentenced to terms
of imprisonment of 10 years, 15 years, life and 35 years respectively
in respect of each conviction.
The sentences were ordered to run
concurrently. Hetisani J wrongly added that the appellant had
effectively been sentenced to 70
years’ imprisonment.
[2]
The appellant was subsequently granted
leave by Makhafola J to appeal to this court against his convictions
for attempted rape and
rape, as well as the sentences imposed on all
counts.
[3]
The salient facts forming the basis for the
conviction of the appellant on all of the counts, was that he had
broken into the home
of L[…] M[…] where she was
sleeping with her nine year old son R[…] and her three year
old daughter R[…].
The appellant stated ‘R[…]’s
mother, it is long that I wanted to have sex with you’, at
which stage R[…]
ran out of their home. The appellant then
held L[…] and attempted to trip her but she in turn managed to
trip the appellant
causing him to fall down. She then ran out of her
home chased by the appellant, leaving R[…] behind lying on the
bed. The
appellant managed to grab L[…] outside her home and
again tried to trip her but she again succeeded in tripping the
appellant,
causing him to fall. This enabled her to make good her
escape. She then saw the appellant re-enter her home but did not see
him
leave. A short while later in the company of other persons she
returned to her home only to find that R[…] was missing. A
search was then conducted, the police were called and the appellant
was found hiding in the bush. The appellant then pointed out
the body
of R[…] to the police.
[4]
The challenge advanced by counsel for the
appellant against the conviction of attempted rape of L[…] was
that on the evidence
the action of the appellant had not reached a
point where it could be said beyond reasonable doubt that the
appellant wanted to
rape L[…]. Counsel referred to the
evidence that the appellant and L[…] were fully dressed, the
appellant did not
touch L[…]’s private parts and L[…]
had managed to trip the appellant causing him to fall.
[5]
In
R v B
1958 (1) SA 199
(A) at 204 C-D Schreiner JA stated:
‘
I
apprehend that if a man assaults a woman in order to have intercourse
with her against her will he attempts to rape her. In my
view, which
I believe accords with the general practice, the stage of attempt is
reached as soon as the assault takes place and
before any direct
effort is made to effect penetration.’
It
is quite clear on the evidence, namely the attempt by the appellant
to subdue the complaint coupled with his utterance, that
this stage
had been reached and there is accordingly no basis to interfere with
the conviction of attempted rape. When faced with
this authority
counsel for the appellant fairly and properly conceded that this
charge had been proved against the appellant.
[6]
As regards the conviction of the rape of
R[…], counsel for the appellant submitted that there was no
direct or circumstantial
evidence that the victim’s vagina was
penetrated, alternatively penetrated by a penis. It was submitted
that all that was
relied upon was the post mortem report conducted on
the body of R[…] as well as the photo album containing photos
of R[…]’s
body at the scene.
[7]
However, several witnesses including Martha
Tshirana, inspector Tshikudo and inspector Tshisudzungwane all stated
that they had
seen the body of R[…] and that blood was flowing
from her vagina or ‘private parts’. This evidence appears
on
the photos taken of R[…]’s body contained in the
photo album. The post mortem report which was handed in by consent
and which in terms of s 212(4) of the Criminal Procedure Act 51 of
1977 (the Act) constituted proof of its contents, states ‘large
amount of blood in vulva’ and that one of the causes of death
was ‘sexual homicide’.
[8]
If the State had taken the trouble to call
the doctor who had performed the post mortem to explain the contents
of the report, this
issue would probably have been clarified. There
appears to be a disturbing tendency on the part of the
representatives of the State
not to call the doctor who conducted the
post mortem or performed an examination and completed the report, to
testify. However,
there are many cases where this evidence is
essential to the just determination of a case and in many cases is of
great value in
assessing guilt.
[9]
When regard is had to the totality of the
evidence – that the appellant wanted to rape R[…]’s
mother and violently
attempted to do so, but when this failed
immediately kidnapped R[…], who was thereafter found dead,
bleeding from her vagina
– taken together with the appellant’s
mendacity as a witness, and the medical evidence the only reasonable
inference
to be drawn is that the appellant raped R[…]. There
is accordingly no basis to interfere with the conviction of rape.
Counsel
for the appellant, again, when faced with these facts, fairly
and properly conceded the charge of rape had been proved against the
appellant.
[10]
Turning to the issue of the sentences
imposed. This court can only interfere with the sentence imposed by
the trial court where
it is vitiated by a material misdirection or
where the disparity between the sentence of the trial court and the
sentence that
the appellate court would have imposed, had it been the
trial court, is so marked that it can be described as ‘shocking’,
‘startling’, or ‘disturbingly inappropriate’
(see
S v Malgas
2001 (1) SACR 469
SCA at 478 E-H).
[11]
It is quite clear that Hetisani J
misdirected himself when he stated that the cumulative effect of the
sentence imposed was that
the appellant was sentenced to 70 years’
imprisonment. Regard being had to the fact that one of these
sentences imposed was
life imprisonment, it is incomprehensible how
Hetisani J came to this conclusion.
[12]
This court is accordingly at large to
reconsider the sentences imposed. As regards the sentences imposed
for the convictions for
attempted rape and kidnapping of 10 years’
and 15 years’ imprisonment respectively, counsel for the
appellant and the
State were agreed that these sentences should be
reduced to five and six years’ imprisonment respectively. I
agree that these
are appropriate sentences in all of the
circumstances.
[13]
As regards the sentence of life
imprisonment for the rape of Ratani, counsel for the appellant sought
to persuade us that substantial
and compelling circumstances were
present, which circumstances justified the imposition of a lesser
sentence. He referred to the
fact that the appellant had been
assaulted by the community at the time the appellant had pointed out
the body of the deceased
and had spent one year and five months in
detention awaiting trial. He also sought to rely upon a statement
made by Hetisani J
when passing sentence that the appellant was under
the influence of liquor when he perpetrated the crimes. No evidence,
however,
was led in this regard to justify this conclusion. In any
event, all of these factors pale into insignificance when the
brutality
of the rape perpetrated by the appellant on R[…], a
three year old girl, is considered. I am accordingly satisfied that
no substantial and compelling circumstances are present to justify
the imposition of a sentence less than the prescribed minimum
sentence of life imprisonment.
[14]
I turn to the sentence of 35 years
imprisonment imposed by Hetisani J for the murder of the three year
old girl, R[…]. Hetisani
J furnished no reasons for imposing a
lesser sentence for the murder of R[…] than he imposed for her
rape. Her murder was
undoubtedly deserving of a sentence of life
imprisonment. The State, however, did not seek leave to appeal
against this sentence
and in fact asked for the sentence to be
confirmed. This court is accordingly not entitled to increase the
sentence (see
Frank Nabolisa v The State
2013 (2) SACR 221
(CC)).
[15]
The following order is made:
1
The appeals against the convictions of attempted rape and rape are
dismissed.
2
The appeal against the sentences imposed on all counts are upheld,
the sentences imposed are set aside and the appellant is sentenced
to
the following terms of imprisonment:
Count
1 – attempted rape: 5 years’ imprisonment
Count
2 – kidnapping: 6 years’ imprisonment
Count
3 – rape: life imprisonment
Count
4 – murder: 35 years’ imprisonment
3
It is ordered that the sentences are to run from the date when
sentence was originally imposed being 4 May 2009.
K
G B SWAIN
ACTING
JUDGE OF APPEAL
Appearances:
For
the Appellant: M Madima
Instructed
by:
Thohoyandou Justice
Centre
Bloemfontein
Justice Centre
For the Respondent:
N R Nekhambele
Instructed
by:
The
Director of Public Prosecutions, Thohoyandou
The
Director of Public Prosecutions, Bloemfontein