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[2020] ZAGPJHC 95
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Ndlovu v S (A005/2013) [2020] ZAGPJHC 95; [2020] 2 All SA 556 (GJ) (10 March 2020)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A005/2013
In
the matter between:
NDLOVU
JEFFERY
Appellant
and
THE
STATE
Respondent
JUDGMENT
FISHER
J:
Introduction
[1]
On 14 June 2011 Regional Magistrate Mudau (as he then was) found that
the appellant was part of a group of three men who kidnapped
the
complainant at gunpoint, and one of two men who raped her. His
co-perpetrators were not apprehended. The Magistrate convicted
the
appellant of rape. He sentenced him to life imprisonment on the basis
that the minimum sentencing provisions in s 51(1) of
the Criminal Law
Amendment Act 105 of 1997 (the Act) applied as the rape took place in
circumstances where the complainant was
raped more than once.
[2]
The appellant was also convicted of robbery with aggravating
circumstances, as it was found that the complainant was robbed
at
gunpoint. For this offence, he was sentenced to 15 years'
imprisonment. The sentences were to run concurrently.
[3]
Rape perpetrated by more than one person on another is rife in South
Africa. It is a phenomenon which has generated terms in
popular
culture such a
'gang rape'
or
'jackrolling'.
It
generally involves groups of men preying on women. It is a base and
perverted display of male domination and machismo and a random
orchestration of dehumanisation and humiliation of the woman. If not
apprehended these men simply go on their way- probably to
reoffend.
Survivors are left changed forever.
[4]
The Legislature has, in its minimum sentencing legislation,
acknowledged this form of rape as particularly serious in that it
is
one of crimes for which life imprisonment is demanded. Section 51(1)
of the Act is prefaced by the words: 'Discretionary minimum
sentences
for certain serious offences'. In s 51(1), the Act provides that:
'(1) Notwithstanding any other law,
but subject to subsections (3) and (6), a regional court or a High
Court shall sentence a person
it has convicted of an offence referred
to in Part I of Schedule 2 to imprisonment for life.'
[1]
[5]
Part I of Schedule 2 of the Act provides,
inter alia,
that a
regional court or High Court shall have jurisdiction to impose life
imprisonment on an offender who is convicted of:
'Rape as contemplated in section 3 of
the Criminal Law (Sexual Offences and Related Matters) Amendment Act,
2007-
(a)
when committed -
(i) in circumstances where the victim
was raped more than once whether by the accused or by any
co-perpetrator or accomplice;
(ii) by more than one person where
such persons acted in the execution or furtherance of a common
purpose or conspiracy; ...'
[6]
Over the past six years, there
has been some confusion as to the application of this minimum
sentencing legislation in relation
to the situation where a victim is
raped more than once by more than one perpetrator. This confusion has
its origin in
Mahlase v
S
,
[2]
where the Supreme Court of Appeal (the SCA) found that an accused
convicted of multiple rapes could not receive the mandatory minimum
sentence of life imprisonment if his co-perpetrators or accomplices
had, as yet, not been apprehended and convicted.
[7]
Many courts, whilst declaring that the dictum in
Mahlase
appears
to be incorrect, have found themselves bound to follow it. The dictum
has also had the effect that the prosecution authorities
have
formulated charges on the basis that the minimum sentencing
provisions are not invoked where only one perpetrator of a multiple
rape is charged.
The
Appeal
[8]
The appellant appeals against both the conviction and sentence. As to
conviction, he argues that he was wrongly identified.
As to sentence,
he argues that the application of the
Mahlase
dictum means
that the Magistrate incorrectly applied the minimum sentencing
provisions.
[9]
The State argues that the
identification of the appellant is sound. As to sentence, it submits
that the recent Constitutional Court
decision of
Tshabalala
v S; Ntuli v S
[3]
has the effect of overruling
Mahlase.
The appellant argues that
this is not so, and seeks that this Court apply
Mahlase.
This issue is central to
the appeal on sentence.
[10]
Further, as to sentence, the appellant raises the point that the
charge sheet did not adequately set out that the charge was
one in
respect of which the minimum sentence would be applied and that thus
he has been denied a fair trial.
The
Evidence
[11]
As with many cases of
multiple rapes, the ordeal of the complainant, to whom I will refer
as Ms N, began as she was going about
her normal business. She
testified that she had had a long day working at a restaurant in
Randburg, having started her shift at
10:00 and finished it 14 hours
later at 00:00. She and five co-employees left work together. I will
refer to these co-employees
as P, A, O, E, and R.
[4]
They were given a lift by the restaurant manager to a public place
where they were likely to find a taxi which would take them
to
central Johannesburg. They all wished to travel together in one taxi
as it was late at night and they did not want to leave
anyone waiting
alone. They hoped that safety lay in numbers. Sadly, it did not. The
taxi that stopped to pick them up was a light
green and white Toyota
Venture. It was driven by the appellant. There were two other male
occupants in the vehicle.
[12]
The group of women discussed their destination and the fare
with the appellant. They boarded the taxi after being assured that
they
would be taken to Johannesburg at a fare of R20. They were
unsuspecting that anything was amiss until they realised that the
taxi
was taking an unfamiliar route. After approximately 15 minutes,
A asked about the route being taken. The man who was seated in the
passenger seat in the front of the vehicle produced a firearm. She
was told that "she talks too much". The appellant
threatened to throw her from the moving taxi. The women were then
ordered not to look at the men and to hand over their belongings
including jewellery, watches, and handbags. The men began to
terrorise the women further by telling them that they planned to kill
them. The appellant said that they would be dumped in a pit.
[13]
The terrified women were driven to an open veld and told to
disembark. As they did so, they were manhandled by the men who
searched
them for further valuables and in the process groped their
breasts and genitals. The women were then made to lie down on the
ground
on their backs. As they lay there, the appellant selected Ms N
and one of the others selected P. They were told to stand and were
taken to the vehicle. They were informed that they had been selected
to be raped. P was seated in the front seat between the appellant
and
the man who had 'selected' her. This was the same man who had
produced the firearm. The third man sat at the back.
[14]
Presumably to add to their humiliation, the appellant told the
women that he was intending to rape both the woman on one bed. Both
women mentioned this in their evidence. The taxi was driven off,
leaving the others behind in the veld. The two women were then
driven
to an informal settlement. Ms N was taken by the appellant from the
vehicle to a dark room. She pleaded for her life. She
was ordered to
sit on a bed and undress. The appellant then put his finger into her
vagina and thereafter raped her using his penis
and without a condom.
She was told to dress which she did. At that point and whilst the
appellant was still in the room, one of
the other assailants (who
appeared to have been waiting outside the room), entered the room and
informed her that he would also
rape her. She was taken back to the
bed and ordered to undress again. Before leaving the room, the
appellant told the other man
that he had not used a condom. In her
statement to the police, Ms N stated that the second rapist had at
first used a condom, but
that on withdrawing had emptied the contents
of the semen into her vagina. In her evidence she said that he had
not used a condom,
but had ejaculated into her vagina. What appears
clear is Ms N was raped by this man. At that stage of the events, she
was obviously
traumatised. The issue of whether a condom was used is,
to my mind, not a material contradiction.
[15]
All this time P had remained in the car and was held at
gunpoint. She was able to identify the appellant when he went to open
the
door to take Ms N out and into the shack. She saw that he was
wearing an orange T-shirt. Later, when Ms N was brought back to the
vehicle, P remained sitting in front, between the appellant and the
front seat passenger. She testified that she had escaped being
raped
by pleading with the men to spare her because she had given birth a
week previously and still had stitches. Chillingly, she
was chided by
the men for not explaining this sooner so that they could have chosen
one of the other women for the planned rape.
The appellant later
informed P that he had wanted to rape her, but that he had made do
with Ms N.
[16]
Ms N was again forced into the vehicle and sat beside the man
who had not participated in the rapes. She immediately disclosed to
P
that both men had raped her. The appellant then said that the women
should be killed or burnt in the vehicle. The man who had
not
participated in the rapes dissuaded the others from killing the
women. They were then taken to another open veld and left there.
[17]
Ms N was on the point of collapse by this stage, but they were
so terrified that the men would return that P almost carried Ms N
away from the scene. Fortunately, they then came upon a security
guard who phoned colleagues who then took the women to the
Douglasdale
Police Station. From there, Ms N was taken to Olivedale
Clinic and examined by a doctor. The J88 report compiled by the
doctor
reveals evidence of penetration, bruising and bleeding, and a
white discharge in her vagina. The bleeding was not a menstrual
bleed;
it was a result of the rapes. The doctor, in the J88 report,
concluded that Ms N had been raped.
[18]
Meanwhile, the other women who had been left in the veld
earlier managed to find a petrol station. The manager of the petrol
station
called the police who arrived and took their statements.
Notwithstanding their own ordeal, the women attempted to assist the
police
in searching the area for Ms N and P. Whilst they were
searching, the police received a call to say that Ms N and P had been
brought
to the Douglasdale Police Station. It was there that the
women were all reunited. Notwithstanding her own shock and
discomfort,
A accompanied Ms N to the hospital to offer support and
comfort. By this stage the night had worn on to morning and it was
approximately
04:00.
[19]
Constable Mamba, who was the arresting officer, then took up
the story. He testified that he took the women to the clinic. They
had described the vehicle and the appellant's clothing. The appellant
was wearing an orange T-shirt and a black cap. On leaving
the clinic,
he and his partner took it upon themselves to patrol the area. They
did not inform Ms N and A that they were going
to look for the
appellant. Constable Mamba suspected that the vehicle was in general
use as a taxi and hoped to locate it in the
area. Whilst at
Diepsloot, he spotted a green and white Toyota Venture vehicle that
matched the description given by the women.
He confronted the driver,
who was wearing an orange T-shirt and black cap. He searched the
vehicle and found a number of items
including a bottle of brandy, a
bottle of cola and many personal items (which items were later
confirmed to have been taken from
the women). According to Constable
Mamba, the appellant stated that the items must have been left there
by a passenger.
[20]
On apprehending the appellant, Constable Mamba took him
directly to Olivedale Clinic. The vehicle was left in the street in
the
custody of his partner. When he arrived at the clinic with the
appellant, A screamed and Ms N began to cry uncontrollably. A
testified
that when she first saw the appellant she believed he had
come back for them. She did not notice that he was in the presence of
a police officer. The identification by both women was spontaneous.
They also identified the clothing worn by the appellant as
those worn
by him during the previous night. A distinctive article of clothing
worn by him was the orange T-shirt, which was worn
with blue
trousers.
[21]
In his evidence, the appellant sought to explain his presence
in the vehicle thus: he was part of a group of five drivers who drove
the Venture. They could be called at any time after hours by clients
to collect them from work. The vehicle keys were left in the
vehicle
after hours so that any one of the drivers who needed the vehicle
could use it for a fare. He had parked the vehicle at
the home of the
owner of the taxi at approximately 19:30, and he had collected it
again early that morning and shortly before his
arrest.
[22]
Whilst he testified that he had told Constable Mamba this, his
version was not given to the police by way of a statement at the time
of his arrest. Whilst he had no legal obligation to give a statement,
his evidence was wholly unsatisfactory in this regard. The
appellant
testified that although he had lived at the home of the taxi owner
for some time, he did not know the address of the
owner or his
telephone number. He had never taken note of the number of the plot.
His employer's telephone number had been recorded
on his phone which
was taken at the time of his arrest. Thus, any one of the other four
drivers could have taken the vehicle that
night. As to his clothing
on the night, he testified that the orange T-shirt and blue trousers
was a uniform worn by all the drivers.
He later stated that he was
wearing a brown shirt the previous night. He gave a confused version
as to why he wasn't wearing the
'uniform' the previous night. It was
to the effect that he had taken the vehicle to be repaired on the
morning and was not driving.
He had not worn the orange T-shirt to
his girlfriend's house that evening, but had changed into those
clothes on the morning, having
previously left the clothes at his
girlfriend's house.
Conviction
[23]
Much was made by the appellant of fact that the events
unfolded in the dark and that the women were ordered not to look at
the men.
Ms N, P, and A were however adamant in their identification
of the appellant. They testified that they were able to get a proper
look at him, notwithstanding the dark. It was some fifteen minutes
before they were told not to look at the appellant and the other
two
males. There was a light in the car that went on when the door was
opened when they first got in -the appellant opened the
door and was
next to them as they embarked. There was also some light coming from
the mall across the road. Ms N engaged the driver
in conversation as
to where they were going and the cost thereof. She was looking at the
appellant as they spoke. In addition,
the lights went on each time
the vehicle door was opened. Both Ms N and P had adequate time to
observe and the appellant. The appellant
opened and closed the door
each time, as it could not be opened from inside the vehicle. A
testified that the appellant was drinking
in the car and she
confirmed that he smelled of alcohol when she saw him again in the
hospital.
[24]
The Magistrate's
analysis of the evidence relating to identification of the appellant
was careful and his reasoning impeccable.
His findings are consistent
with the principles laid down in
S
v Mthetwa
[5]
where the Appellate Division (as it then was) stated the following:
"Because of the fallibility of
human observation, evidence of identification is approached by the
Courts with some caution.
It is not enough for the identifying
witness to be honest: the reliability of his observation must also be
tested. This depends
on various factors, such as lighting,
visibility, and eyesight; the proximity of the witness; his
opportunity for observation,
both as to time and situation; the
extent of his prior knowledge of the accused; the mobility of the
scene; corroboration; suggestibility;
the accused's face, voice,
build, gait, and dress; the result of identification parades, if any;
and, of course, the evidence by
or on behalf of the accused. The list
is not exhaustive. These factors, or such of them as are applicable
in a particular case,
are not individually decisive, but must be
weighed one against the other, in the light of the totality of the
evidence, and the
probabilities ... "
[25]
It is my view that the testimony of Ms N, P, and A pass muster
in accordance with the principles laid down in
Mthetwa.
The
Magistrate's conclusion that that the identification was established
beyond a reasonable doubt cannot be faulted.
[26]
The appellant called an alibi witness, Ms Maseko, his
girlfriend who is the mother of his child. Her evidence was
unsatisfactory
and unreliable. The appellant was arrested at
approximately 04:30. Although she was unable to give a precise time,
she stated that
the appellant was with her until 'past five to six'.
Both she and the appellant testified that the appellant arrived with
the police
at her house. The appellant stated that he was driving the
vehicle, followed by the police. Constable Mamba testified that after
accosting the appellant, he took him straight to the clinic. His
partner remained with the vehicle. It is highly unlikely that
the
police would have permitted the appellant to drive his vehicle to his
girlfriend's house. Why Ms Maseko would have remembered
precisely
what the appellant was wearing on that day, when he slept there on so
many occasions, is suspicious. At some point in
her testimony, she
testified that the appellant was wearing a brown shirt when he
arrived at her house the previous evening; later
she stated that he
was wearing an orange shirt; she then attempted to correct herself.
This alibi was, to my mind, correctly rejected
by the Magistrate as
being contrived.
[27]
It is trite that the
onus which rests on the State in criminal cases is to prove the guilt
of an accused beyond reasonable doubt,
but not beyond all shadow of a
doubt. A court does not have to rely upon absolute certainty, but
merely upon justifiable and reasonable
certainty.
[6]
[28]
To sum up, the appellant was found approximately two hours
after the attack, driving the taxi which was used in the commission
of
the offences. In it were some of the items stolen from the women.
P, A, and Ms N identified him as their assailant. They recognised
his
clothes too - particularly the orange T-shirt. His attempts to
suggest that he was not wearing the clothes in the hours leading
up
to his arrest, and that he had freshly changed into them early that
morning, were unconvincing and fell to be rejected as false.
[29]
The conviction of the
accused was based on the factual findings of the trial court. In
Mkhize v S
,
[7]
Mocumie AJA held:
'The approach to be adopted by a
court of appeal when it deals with the factual findings of a trial
court is trite. A court of appeal
will not disturb the factual
findings of a trial court unless the latter had committed a material
misdirection. Where there has
been no misdirection on fact by the
trial Judge, the presumption is that his conclusion is correct. The
appeal court will only
reverse it where it is convinced that it is
wrong. In such a case, if the appeal court is merely left in doubt as
to the correctness
of the conclusion, then it will uphold it. This
court
in S v Naidoo &
others
[8]
reiterated this principle as
follows:
"In the final analysis, a
Court of appeal does not overturn a trial Court's findings of fact
unless they are shown to be vitiated
by material misdirection or are
shown by the record to be wrong."'
There
was no material misdirection and the findings of fact were correct.
Thus the conviction must stand.
Sentence
The
Application of the
Mahlase
Dictum
[30]
It often happens that
only one person accused of having been involved in a gang rape is
apprehended and convicted in due course.
Mahlase
was such case. In the court
a quo
[9]
Makgoba AJ set out the complainant's evidence as follows:
'The motor vehicle moved and while
they were on their way complainant heard one of the attackers saying
that "I am asking for
condoms" from Mr. Budeli and one or
more of the attackers indicated that "let's have sex with this
woman." They
indeed unzipped her jeans and two of the attackers
had sex with her. They proceeded with their journey until they
stopped somewhere
in the bush near
a
place called Solomondale
where she was ordered to alight and she did alight and then she ran
into the bush.'
[31]
Makgoba AJ accepted the complainant's evidence. In sentencing
the accused he stated as follows:
'When I come to the rape incident,
with regard to accused 6, no words can express the horror that woman,
the victim, found herself
in. How to humiliate
a
woman like
that, raping
a
woman in
a
moving car in front of other
people and the said rape being committed by more than one person.'
[32]
He found that the mandatory minimum sentence of life
imprisonment applied because of his finding that the complainant was
raped
more than once. He accordingly sentenced the appellant to life
imprisonment. Leave to appeal to the SCA was granted against sentence
only. Thus the conviction stood.
[33]
However, notwithstanding that the judge
a quo
had found
that the complainant was raped twice and the conviction was not under
appeal, the SCA refused to find that the complainant
had been raped
twice for the purposes of sentencing. The judgment reads as follows
on this point:
'Whilst the motor vehicle was
moving, Ms. DM was raped,
apparently
more than once, and allegedly by more than one of the assailants
.'
[10]
(My emphasis.)
[34]
The court went on to hold that there had been a misdirection
in the imposition of the mandatory sentencing provisions. It reasoned
as follows:
'The second misdirection pertains
to the sentence imposed for the rape conviction. The Court correctly
bemoaned the fact that Ms.
OM was apparently raped more than once and
in front of her colleagues. The learned Judge however overlooked the
fact that because
accused 2 and 6, who were implicated by Mr.
Mahlangu, were not before the trial court and had not yet been
convicted of the rape,
it cannot be held that the rape fell within
the provisions of Part 1 of Schedule 2 of the
Criminal Law Amendment
Act (where
the victim is raped more than once) as the high court
found that it did. It follows that the minimum sentence for rape was
not
applicable to the rape conviction and the sentence of life
imprisonment must be set aside.
’
[11]
[35]
The premise in
Mahlase
is that, in order for the
minimum sentencing provisions to be triggered, there must be an
actual conviction of rape of the co-perpetrator/s.
The illogicality
of this approach is shown by the facts and reasoning in
Cock
v S; Manuel v
S,
[12]
where in the case of a gang rape where both men had pleaded guilty at
separate hearings before different judges, the rapists then
each
appealed their respective life sentences on the basis of the
Mahlase
dictum. The court, per
Pickering J, had the following to say in this regard:
'A trial court is obliged to
sentence an accused who appears before it on the basis of the facts
which it found to have been proven
when convicting the accused. The
Mahlase
dictum, however, gives rise, with
respect, to the illogical situation that a trial court, having found
beyond reasonable doubt
that the complainant was raped more than once
by two men and having convicted the accused accordingly, must, for
purposes of the
Act, disregard that finding and proceed to sentence
the accused on the basis that it was not in fact proven that she was
raped
more than once; that the provisions of the Act relating to the
imposition of the prescribed minimum sentence of life imprisonment
are therefore not applicable; and that the minimum sentence
applicable in terms of the Act is one of only ten years imprisonment.
I do not understand on what basis
the credible and cogent evidence of the complainant that she was
raped by two men, one of whom
was identified as being the accused,
should be disregarded, not only to the prejudice of the victim and of
the State, but also,
by way of contrast, to the benefit of the
accused on the arbitrary basis that he happened to be the first of
the gang to have been
arrested and convicted.
This in itself gives rise to the
anomalous situation that, whereas the first accused to be convicted
and sentenced (the appellant
Cock in this matter) is liable to a
minimum prescribed sentence of only ten years imprisonment, any other
accused who is thereafter
convicted as having been part of the gang
which raped the complainant, (the appellant Manuel in this matter)
would be liable to
the prescribed minimum sentence of life
imprisonment, it now having been established in terms of
Mahlase
supra that complainant had indeed been raped more than once, by two
men.'
[13]
[36]
Mahlase
has
been roundly criticised - but at the same time it has been accepted
as binding precedent.
[14]
In
Khanye v S,
[15]
a full bench of this division had occasion to deal with the dictum in
Mahlase
under
similar circumstances to these. The court
(per
Carelse J) in dealing with
the binding effect of
Mahlase
had resort to the dictum in
S v Legoa,
[16]
which it held equally bound it. The learned Judge found that the
ratio of
Legoa
is
that once the jurisdictional facts which trigger the mandatory
sentence have been proved, a court is obliged to impose the
prescribed
sentence unless substantial and compelling circumstances
are found to exist. She referred in this regard to the following
passage
in
Legoa,
per
Cameron JA (as he then was):
"...
offences
scheduled in the minimum sentencing legislation are likewise not new
offences. They are but specific forms of existing
offences, and when
their commission is proved in the form specified in the Schedule, the
sentencing court acquires an enhanced
penalty jurisdiction. It
acquires that jurisdiction, however, only if the evidence regarding
all the elements of the form of the
scheduled offence is led before
verdict on guilt or innocence, and the trial court finds that all the
elements specified in the
Schedule are present."
[17]
[37]
Carelse J thus opted to follow
Legoa
instead of
Mahlase,
as she found she was entitled to do so. She stated
the position thus:
'Although
Mahlase
binds this court,
S
v Legoa
equally binds this
court and continues to be referred to with approval by the Supreme
Court of Appeal.
S v Legoa
was never considered by
Pickering Jin
Cock v S,
Thompson AJ in
S
v Nkosinathi Standford Mejeni
and
the Supreme Court of Appeal in
S
v Mahlase.
I have no doubt
that had
Legoa
been
considered it may have resulted in
a
different finding.'
[18]
[38]
In
Ndlovu
v
S,
[19]
the majority of the full court found that the reasoning in
Khanye
is flawed in that it begs
the question of what constitutes proof for the purposes of the
minimum sentencing legislation in issue.
[20]
[39]
In the present case the conviction was based on the evidence
of Ms N and the other witnesses. Ms N's evidence was accepted. Once
that evidence is accepted, it constitutes the requisite proof needed
to convict the appellant of multiple rapes, triggering the
minimum
sentence legislation. I am not satisfied that the reasoning in
Khanye
is wrong. I thus find that I am bound to follow the dictum in
Khanye
and equally the dictum in
Legoa.
[40]
However, even if the
Ndlovu
approach
is to be preferred, in my view, the recent findings in the
Constitutional Court in
Tshabalala
serve to overrule the
Mahlase
dictum.
[21]
I now turn to examine this position.
The
Effect of
Tshabalala
on the
Mahlase
dictum
[41]
Tshabalala
also involved multiple rapes perpetrated by
a group of men. The attack took place in an informal settlement. The
group moved from
one home to another in a prearranged sequence. The
Constitutional Court found that all the accused associated themselves
with the
criminal enterprise and that they had an understanding that
they would, as a group, invade houses in the community. Included in
this understanding was that some women found in the houses which the
group invaded would be raped. No member of the group disassociated
himself from the violent actions perpetrated by the others in the
group.
[42]
The main issue which
arose for consideration was whether the doctrine of common purpose
was applicable to the common law crime of
rape. The applicants
contended that the doctrine does not apply because rape, as then
defined, required the unlawful insertion
of the male genitalia into
the female genitalia.
[22]
They thus reasoned that it was impossible for the doctrine to apply
as, by definition, the causal element cannot be imputed to
a
co-perpetrator. This is a common argument applied in a number of
judgments and espoused by many writers in the field of criminal
law
and jurisprudence. It is widely referred to as the 'instrumentality
argument'.
[43]
This argument is supported by the academic, CR Snyman, who
singles out rape as one of the crimes to which the doctrine of common
purpose does not apply. He writes thus:
'Rape as well as certain other
sexual offences such as intercourse with a girl below the age of
sixteen in contravention of section
14 of the Sexual Offences Act 23
of 1957 are good examples of such crimes. Thus if X rapes a woman
while his friend Z assists him
by restraining the woman but without
himself having intercourse with her, Z is an accomplice, as opposed
to a co-perpetrator, to
the rape. '
[23]
[44]
S v Kimberley and
Another
[24]
is characteristic of this approach. In this case, the court
interpreted paragraphs (a)
(i)
and
(ii)
of Schedule 2 of the Act to
require that the complainant be raped more than once. In other words,
there needs to be two acts of
penetration. Although, in that case,
Zulman JA found that it was not necessary to go into the degrees of
participation in the rapes
for the purposes of interpreting
paragraphs (a)
(i)
and
(ii),
he
concluded:
'So for example a woman who assists
a man to rape another woman or who makes it possible for him to do
so, cannot be held to have
committed the act of rape (S
v
Jonathan en Andere
1987 (1) SA 633
(A) at 643 H-1).
Simply put it is of fundamental
importance to vest a High Court with jurisdiction, to impose a
sentence of life imprisonment that
there be more than one act of
rape.'
[25]
[45]
The instrumentality argument, focusing as it does on the act
of penetration, imbues the crime of rape with a measure of exactitude
which seeks to introduce a caution into the enquiry which is
unprincipled, inappropriate and unjustified. This focus has the added
effect of casting doubt on the ability of complainants to properly
determine, with the correct degree of precision, whether there
has
been the required penetration in the absence of the weighing up of
the version of the person who has penetrated her.
[46]
The required proof of
penetration cannot be elevated to a degree where the caution to be
taken by a court is such that the credible
evidence of the
complainant is rejected if the second rapist has not been
apprehended, indicted and convicted. This approach seeks
to introduce
a cautionary rule based on the fact that the complainant is usually a
single witness. This approach has been dealt
with in many cases. It
is trite that a court is entitled to treat single witnesses with a
certain amount of caution. This does
not elevate the position to that
of applying the cautionary rule.
[26]
The court need only find that the evidence was trustworthy, and that
the truth has been told. See
S
v Sauls
[27]
where it was held that:
'There is no rule of thumb test or
formula to apply when it comes to a consideration of the credibility
of the single witness....
The trial Judge will weigh his evidence,
will consider its merits and demerits and, having done so, will
decide whether it is trustworthy
and whether, despite the fact that
there are shortcomings or defects or contradictions in the testimony,
he is satisfied that the
truth has been told. The cautionary rule...
may be a guide to a right decision but it does not mean "that
the appeal must
succeed if any criticism, however slender, of the
witnesses' evidence were well founded" It has been said more
than once that
the exercise of caution must not be allowed to
displace the exercise of common sense.'
[47]
In
S
v Artman,
[28]
Holmes JA held as follows:
'She
was, however, a single witness in the implication of the appellants.
That fact, however, does not require the existence of
implicatory
corroboration: indeed, in that event she would not be a single
witness. What was required was that her testimony should
be clear and
satisfactory in all material respects.'
[48]
In
S
v Mahlangu and Another,
[29]
the court said the following:
'The
court can base its findings on the evidence of a single witness,
as
long
as
such evidence is
substantially satisfactory in every material respect
or
if there
is
corroboration.
The said corroboration need not necessarily link the accused to
crime... '
In the present
case, such corroboration, if required is found in the J88 report.
[49]
The regional court found that the complainant's evidence
passed this test. The instrumentality approach goes against the
developments
in our law in relation to rape. In her concurring
judgement in
Tshabalala,
Victor AJ eloquently expressed the
scourge of paternalism in South African jurisprudence and the law of
evidence thus:
'A historical overview of these
legal barriers in our South African jurisprudence demonstrates a
number of embedded patriarchal
gender norms in the procedural rules
of evidence in relation to rape. This Court has recognised this, for
example in
Masiya,
where
Nkabinde J referred to the statutory developments in the definition
of the crime of rape in recent decades. In 1993, for example,
the
rule that a husband could not rape his wife, the so-called marital
rape exemption, was abolished. Other legal impediments to
the
conviction of a rape offender included excessive shielding of the
perpetrator, the medieval hue and cry rule, and the cautionary
rules
and as relevant in this case the concept of instrumentality and
common purpose in the crime of rape.'
[30]
[Footnotes omitted].
[50]
The Constitutional Court in
Tshabalala
has now
conclusively put paid to the instrumentality argument. Mathopo AJ
held as follows on this point:
'The instrumentality argument has
no place in our modern society founded upon the Bill of Rights. It is
obsolete and must be discarded
because its foundation is embedded in
a system of patriarchy where women are treated as mere chattels. It
ignores the fact that
rape can be committed by more than one person
for as long as the others have the intention of exerting power and
dominance over
the women, just by their presence in the room. The
perpetrators overpowered their victims by intimidation and assault.
The manner
in which the applicants and the other co-accused moved
from one household to the other indicates meticulous prior planning
and
preparation. They made sure that any attempt to escape would not
be possible.’
[31]
[51]
The facts and reasoning
in
Cock
(which
emerges from that passage of the judgment quoted above) show the
absurdity of the application of the
Mahlase
dictum at work: the rapist
first convicted is not subject to the mandatory minimum sentence
provisions but subsequently tried rapists,
involved in the same
factual complex, are.
[32]
[52]
It was apparently assumed by the SCA in
Mahlase
that
this anomalous state of affairs could only be cured by having the
multiple rapists tried together. The instrumentality argument
lies at
the heart of the
Mahlase
dictum, its premise being that group
rape must be viewed apart from its purpose and effect, and with the
focus on the physical.
The true answer, however, lies in the
understanding that the harm caused by rape is something greater than
non-consensual penetration
but is, at its core, the assumption of
power typically exerted by men against women.
[53]
This approach was dealt
with In
Masiya v Director of
Public Prosecutions Pretoria and Another,
[33]
where Nkabinde J found that our Constitution heralded the movement of
rape jurisprudence away from its patriarchal roots to a rights-based
approach.
[34]
She stated the position thus:
[54]
'The focus is on the
breach of
"a
more
specific right such as the right to bodily integrity" and
security of the person and the right to be protected from degradation
and abuse. The crime of rape should therefore be seen in that
context.
'
[35]
[Footnotes omitted]
[55]
In instances of multiple rapes, as in this case, 'the mere
presence of a group of men results in power and dominance being
exerted
over female victims. In his concurrence in
Masiya,
Langa
CJ said the following:
'Today rape is recognised as being
less about sex and more about the expression of power through
degradation and the concurrent
violation of the victim's dignity,
bodily integrity and privacy. In the words of the International
Criminal Tribunal for Rwanda
the "essence of rape
is
not the particular details
of the body parts and objects involved, but rather the aggression
that is expressed in a sexual manner
under conditions of
coercion.
"'
[36]
[56]
In any event, the facts of the case show, on the application
of the principles in
Tshabalala,
that there was a common
purpose at work in relation to all three assailants. All three were
responsible for luring the women into
the vehicle with the purpose of
robbing them. When Ms N and P were singled out to be raped, all three
men rode along. Notwithstanding
that one of the men did not rape Ms
N, he did not do anything to suggest that he disassociated himself
with the kidnapping and
ultimate rapes. He stayed in the vehicle
whilst the rapes were taking place and P was being held at gunpoint.
The second rapist,
as is apparent from the evidence, entered the room
before the appellant had left, declared his intention and discussed
the question
of a condom with the appellant.
[57]
It seems clear from the
evidence that the appellant and his co-perpetrators pre planned
the events of the evening. Even in
the absence of a plan, the element
of common purpose was established in terms of the principles laid
down
S v Mgedezi
&
others.
[37]
In
Thebus and Another v The
State,
[38]
the Constitutional Court said the following with regard to the
doctrine of common purpose:
'The doctrine of common purpose
dispenses with the causation requirement. Provided the accused
actively associated with the conduct
of the perpetrators in the group
that caused the death and had the required intention in respect of
the unlawful consequence, the
accused would be guilty of the offence.
The principal object of the doctrine of common purpose is to
criminalise collective criminal
conduct and thus to satisfy the
social "need to control crime committed in the course of joint
enterprise". The phenomenon
of serious crimes committed by
collective individuals, acting in concert, remains a significant
societal scourge. In consequence
crimes such as murder, robbery and
malicious damage to property and arson, it is often difficult to
prove that the act of each
person or of a particular person in the
group contributed casually to the criminal result. Such a casual
prerequisite for a liability
would render nugatory and ineffectual
the object of the criminal norm of common purpose and make the
prosecution of the collaborative
criminal enterprises intractable and
ineffectual.'
[58]
Based upon the evidence
of the State witnesses, the learned Magistrate convicted the accused
in terms of s 51(1) and Part I of Schedule
2 of the Act. The minimum
sentence provisions were thus triggered, and the Magistrate was
obliged to impose life imprisonment if
no substantial and compelling
circumstances justifying the imposition of a lesser sentence were
shown to exist. The Magistrate
took into account the particulars made
available to him in relation to the personal circumstances of the
appellant. He correctly
found that no substantial and compelling
circumstances existed to justify a departure from the mandatory
minimum sentence of life
imprisonment. As was stated by Nugent JA SCA
in
S v Vilakazi,
[39]
'In cases of serious crime the
personal circumstances of the offender, by themselves, will necessary
recede into the background.
Once it becomes clear that the crime is
deserving of a substantial period of imprisonment the questions
whether the accused is
married or single, whether he has two children
or three, whether or not he is in employment, are in themselves
largely immaterial
to what that period should be, and those seem to
me to be the kind of "flimsy" grounds that Malgas said
should be avoided'
[59]
Not only were no mitigating circumstances found, but the
details of the ordeal show the presence of aggravating factors. The
crimes
committed against these women are heinous. Ms N and P were
both mothers who were still breastfeeding; P had given birth a week
previously. They were out late at night working long hours in order
to earn a living so they could support their families. They
were
terrorised and brutalised for the perverse gratification of their
assailants. From the evidence it is clear that they were
in grave
danger of being murdered. The appellant intended to murder them but
was talked out of doing so by one of the other men.
[60]
The manner in which the appellant picked out the two women to
be raped was callous and calculated to humiliate them and the other
women who had been forced to lie with them on the ground. He
arrogated himself, as a man, dominion over their bodies and their
possessions and their lives.
[61]
The appellant has showed no remorse. He stuck throughout to a
version that was untenable on the evidence. Ms N had to go onto
medication
as a prophylactic against HIV and other sexually
transmitted diseases. She had to stop breastfeeding her new-born
because of this
medicine regime.
[62]
The appellant has no prior convictions so, were he sentenced
in terms of s 51(2), the maximum sentence applicable would be 10
years;
imprisonment, as the appellant seeks here. He would, in the
scheme of things, be eligible for parole now. A great injustice to Ms
N would result in such an event.
[63]
As Mathopo AJ commented in
Tshabalala-
'This scourge
[of
violence against women and children]
has
reached alarming proportions in our country. Joint efforts by the
courts, society and law enforcement agencies are required
to curb
this pandemic. This Court would be failing in its duty if it does not
send out
a
clear
and unequivocal pronouncement that the South African Judiciary is
committed to developing and implementing sound and robust
legal
principles that advance the fight against gender- based violence in
order to safeguard the constitutional values of equality,
human
dignity and safety and security. One such way in which we can do this
is to dispose of the misguided and misinformed view
that rape is
a
crime purely about sex.
Continuing on this misguided trajectory would implicate this Court
and courts around this country in the
perpetuation of patriarchy and
rape culture.’
[40]
[64]
As far as the appeal in respect of the robbery is concerned,
the facts show that all the men participated and associated
themselves
therewith. Although the appellant did not himself use the
firearm, he intended that it be used to subdue the women. All the
prerequisites
of common purpose were present.
Did
the Appellant Have a Fair Trial
[65]
It is argued by the
appellant that he was not properly advised of the fact that the rape
charge could attract a sentence of life
imprisonment. I disagree. The
charge sheet makes specific mention of the fact that the charge was
one in terms of s 51(1) and Part
1 of Schedule 2 of the Act, and thus
subject to a minimum sentence of life imprisonment. The provision on
the charge sheet reading
'If
accused is/are convicted of the charge of part 1 Schedule 2, Section
51(1) (a) makes provision for a minimum sentence of life
imprisonment.
'
[41]
[66]
At an early part of the
trial, and at the moment when the evidence of the second rape first
emerged, the Magistrate was careful
to inquire of the prosecutor if
he would be relying on the mandatory minimum sentence. The prosecutor
confirmed that indeed he
would be asking for such minimum sentence in
terms of s 51(1).
[42]
The Magistrate also enquired whether the appellant's legal
representative was aware that the mandatory minimum sentence would be
relied on. In the bullet points at the foot of the charge sheet,
reference was made to s 51(1)(a), which in its amended version,
ass
51(1), contains the requisite information informing an accused that
it, together with Part 1 of Schedule 2, refers to the minimum
sentence being life imprisonment.
[67]
I thus find that the notification of reliance on s 51(1) and
Part 1 of Schedule 2 in the charge sheet, and the emphasis of this
during the trial, was such that there was adequate forewarning of the
appellant that a life sentence would be sought.
Conclusion
[68]
Gang rapes are of a nature that they will more often than not
involve a common purpose. The model of sentencing proposed by the
Mahlase
dictum led to an irrational result. It also created a
motivation for a rapist to stay silent as to the crimes of his co
perpetrators.
[69]
Even if I am wrong in this, in my view the reasoning in
Tshabalala
is such that it leaves no space for the continued
application of the dictum in
Mahlase.
[70]
The lack of clarity which
Mahlase
has wrought in this
critically important area of the law is such that an express
pronouncement on it by either the SCA or the Constitutional
Court
would be apposite.
Accordingly
the following order is made:
1.
The appeal against
conviction and sentence is refused.
________________________
FISHER
J
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
concur,
_______________________
WEINERJ
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
of Hearing:
30 January 2020.
Judgment
Delivered:
10 March 2020.
Appearances:
Counsel
for the Appellant: Ms M Leoto, Attorney with a right of appearance in
the High Court.
Instructing
Attorneys: Legal Aid
Counsel
for the Respondent: Adv N P Serepo
Instructing
Attorneys: The NPA
[1]
The amendment to this section to include reference to a regional
court was effected by The
Criminal Law (Sentencing) Amendment Act 38
of 2007
.
[2]
Mahlase v S (255/13) (2013] ZASCA 191 (29 November 2013).
[3]
Tshabalala v S; Ntuli v S CCT323/18; CCT69/19)
[2019] ZACC 48
(11
December 2019).
[4]
The women are named as they are in the record. I have excluded their
surnames for the purposes of maintaining their privacy and
that of
the complainant.
[5]
S v Mthetwa
1972 (3) SA 766
(A) at 768A-C.
[6]
S v Ntsele
1998 (2) SACR 178
(SCA), see headnote at 180D.
[7]
Mkhize v S (16/2013)
[2014] ZASCA 52
(14 April 2014) at para 14
(Maya, Shongwe, Willis and Saldulker JJA concurring).
[8]
S v Naidoo & others
2003 (1) SACR 347
para 26.
[9]
See S v Mahlangu and Others unreported Venda Provincial Division
case no CC46/03 dated 2003-11- 20 Makgoba AJ, as he then was,
convicted the appellant, Mahlase (who was charged as accused number
six) of having raped the complainant together with another
man who
had, at the time of appellant's trial, absconded.
[10]
Mahlase (note 2 above) para 4.
[11]
Ibid para 9.
[12]
Cock v S; Manuel v S (CA108/2013, CA121/2014) [2015] ZAECGHC 3 (3
February 2015); 2015 (2) SACR 115 (ECG).
[13]
Ibid paras 26-28.
[14]
Ibid para 30; and for example also Khanye v S (A66/2015) [2017]
ZAGPJHC 320 (13 March 2017); Ndlovu v S (AR96/2018) [2019] ZAKZPHC
56 (12 August 2019); 2019 (
2) SACR 484
(KZP); Nyaku v S (A212/2018)
[2018] ZAFSHC 208
(22 November 2018).
[15]
Khanye v S (A66/2015) [2017] ZAGPJHC 320 (13 March 2017).
[16]
S v Legoa (33/2002)
[2002] ZASCA 122
(26 September 2002); 2003 (1)
SACR 13 (SCA).
[17]
Ibid para 18.
[18]
Khanye (note 16 above) para 28.
[19]
Ndlovu v S (AR96/2018) [2019] ZAKZPHC 56 (12 August 2019); 2019 (2)
SACR 484 (KZP).
[20]
Ibid para 10.
[21]
Tshabalala (note 3 above).
[22]
The definition has now been extended under the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007 (SORMA)
to
allow for the crime of rape to be committed using not only one's
body, but any inanimate object. Section 1 states that 'sexual
penetration' includes any act which causes penetration to any extent
whatsoever by-
(a) the genital organs of one person
into or beyond the genital organs, anus, or mouth of another person;
(b) any other part of the body of one
person or, any object, including any part of the body of an animal,
into or beyond the genital
organs or anus of another person; or
(c) the genital organs of an animal,
into or beyond the mouth of another person, and 'sexually
penetrates' has a corresponding
meaning.
[23]
Snyman Criminal Law 5 ed (LexisNexis, Durban 2008) at 269.
[24]
S v Kimberley and Another (519/2004)
[2005} ZASCA 78
(19 September
2005).
[25]
Ibid para 12.
[26]
See S v M 1999 (2) SACR 548 (SCA).
[27]
S v Sauls and Others
1981 (3) SA 172
(A) at 180E-G.
[28]
S v Artman and Another
1968 (3) SA 339
(A) at 341A-8.
[29]
S v Mahlangu and Another
[2011] ZASCA 64
; 497/10 (1 April
2011);
2011 (2) SACR 164
(SCA) at 1718-C.
[30]
Tshabalala (note 3 above) para 80.
[31]
Ibid para 54.
[32]
Cock (note 16 above).
[33]
Masiya v Director of Public Prosecutions Pretoria and Another
CCT54/06)
[2007] ZACC 9
(10 May
2007); 2007 (5) SA 30
(CC);
2007 (8)
BCLR 827.
[34]
Ibid paras 20-24.
[35]
Ibid para 25.
[36]
Tshabalala (note 3 above) para 51.
[37]
S v Mgedezi & others
1989 (1) SA 687
(A). The Appellate Division
held that in the absence of proof of a prior agreement, an accused
who was not shown to have contributed
causally to the actual crime
can be held liable for those events if certain prerequisites are
satisfied. 'In the first place,
he must have been present at the
scene where the violence was being committed. Secondly, he must have
been aware of the assault.
.. Thirdly, he must have intended to make
common cause with those who were actually perpetrating the assault.
Fourthly, he must
have manifested his sharing of a common purpose
with the perpetrators of the assault by himself performing some act
of association
with the conduct of the others. Fifthly, he must have
had the requisite mens rea; so, in respect of the killing of the
deceased
he must have intended them to be killed, or he must have
foreseen the possibility of their being killed and performed his own
act of association with recklessness as to whether or not death was
to ensue.'
[38]
Thebus and Another v The State (CCT36/02)
[2003] ZACC 12
(28 August
2003); 2003 (6) SA 505
(CC) para 34.
[39]
S v Vifakazi (576/07)
[2008] ZASCA 87
(3 September
2008); 2009 (1)
SACR 552
(SCA) para 58.
[40]
Tshabalala (fn 3) para 63.
[41]
Although the charge sheet makes reference to s 51(1)(a) of the Act,
subsection (a) was deleted in the
Criminal Law (Sentencing)
Amendment Act 38 of 2007
. It is however clear from the charge sheet
that there is reference to
s 51
and the fact that the minimum
sentence of life imprisonment was applicable.
[42]
There was mention made of
s 51(2)
, but the prosecutor immediately
corrected this error, and reaffirmed reliance on s 51(1) of the Act.