About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2020
>>
[2020] ZAGPJHC 206
|
|
Macane v S (A55/2018) [2020] ZAGPJHC 206 (20 May 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
A55/2018
In
the matter between:
MACANE,
ASIMO
Appellant
and
THE
STATE
Respondent
J U D G M E N T
(H
anded
down electronically by circulation to the parties’ legal
representatives by email and release to SAFLII. The date and
time for
hand-down is deemed to be 10h00 on 20 May 2020.)
MAIER-FRAWLEY
J (Adams J concurring):
1.
The appeal lies against a sentence of life
imprisonment imposed for the crime of rape (count 11) by the learned
Regional Magistrate,
sitting in the Regional Court, Krugersdorp.
2.
The appellant was represented in the appeal
proceedings by Attorney Pillay whist the respondent was represented
by Adv Mkhari (NPA).
The legal representatives of the parties agreed
that the appeal could be adjudicated on the papers, including the
heads of argument
filed on behalf of the parties, as envisaged in
section 19(a)
of the
Superior Courts Act, 10 of 2013
.
3.
The appellant was arraigned in the Regional
Court, Krugersdorp, and charged with the following offences:
Count
no 1:
Housebreaking with intent to
steal and theft,
Count
no 2:
Housebreaking with intent to
steal and theft,
Count
no 3:
Housebreaking with intent to
steal and theft,
Count
no 4:
Housebreaking with intent to
steal and theft,
Count
no 5:
Robbery with aggravating
circumstances,
Count
no 6:
Housebreaking with intent to rob,
Count
no 7:
Housebreaking with intent to
commit a crime unknown to the State,
Count
no 8:
Robbery with Aggravating
circumstances,
Count
no 9:
Housebreaking with intent to rob,
Count
no 10:
Rape: Contravening
section 3
(Sexual Offences and Related Matters) Act 32 of 2007,
Count
no 11:
Rape: Contravening section 3
(Sexual Offences and related Matters) Act 32 of 2007,
Count
no 12:
Housebreaking with intent to
rob,
Count
no 13:
Assault with intent to do
Grievous Bodily harm,
Count
no 14:
Robbery with Aggravating
circumstances,
Count
no 15:
Rape: Contravening Section 3
(Sexual Offences and Related Matters) Act 32 of 2007,
Count
no 16:
Housebreaking with intent to
rob,
Count
no 17:
Robbery with aggravating
circumstances,
Count
no 18:
Rape: Contravening Section 3
(Sexual Offences and Related Matters) Act 32 of 2007.
4.
On 24 July 2017, the appellant was
convicted on counts 1-4, 5, 7-8, 11-12, 14-15 and 17-18.
5.
On
13 October 2017, he was sentenced as follows:
[1]
Count
1:
Three (3) years imprisonment,
Count
2
: Three (3) years imprisonment,
Count
3
: Three (3) years imprisonment,
Count
4
: Three (3) years imprisonment,
Count
5
: Fifteen (15) years imprisonment,
Count
7
: One (1) year imprisonment,
Count
8
: Fifteen (15) years imprisonment,
Count
11
: Life imprisonment,
Count
12:
Five (5) years imprisonment,
Count
14
: Fifteen (15) years imprisonment,
Count
15
: Ten (10) years imprisonment,
Count
17
: Fifteen (15) years imprisonment,
Count
18
: Ten (10) years imprisonment.
6.
The appellant was acquitted on counts 6, 9,
10, 13 and 16.
7.
The sentences imposed on counts 1, 2, 3 ,4,
5, 7, 8, 12, 14, 15, 17 and 18 were ordered to run concurrently with
the sentence of
life imprisonment imposed on count 11, as
contemplated in Section 280(2) of the Criminal Procedure Act, 51 of
1977 (‘CPA’).
8.
In
terms of the provisions of section 309(1)(a) of the CPA,
[2]
the appellant enjoyed an automatic right of appeal to this court
.
He
noted the appeal during July 2019.
[3]
He simultaneously filed an application for condonation for the late
filing of his Notice of Appeal, in which he explained that
he was
required to attend court in respect of further outstanding cases and
wanted to avoid a situation where the appeal court
date would clash
with dates arranged for his other court appearances. He lodged this
appeal upon completion of all the outstanding
cases. I consider that
it would be in the interests of justice to grant condonation.
9.
The
grounds of appeal are set out in the Notice of Appeal
[4]
which I quote verbatim: “
I
wish the honourable judge can reconsider this life sentence imposed
and come to a lesser conclusion of twenty or twenty-five years
imprisonment as I did not waste the court’s time. I pleaded
guilty to the charges and was promised a twenty year sentence
only to
be surprised by the verdict of life imprisonment. I am humbly begging
for mercy and a lower sentence as I showed remorse
for the offence I
committed.’
Submissions of Counsel
10.
The heads of argument prepared by Mr Pillay
on behalf of the appellant, appear to have proceeded from the
mistaken premise that
both conviction and sentence were being
appealed against. As appears from the Notice of Appeal at pages
279-280 of the record,
the appeal was noted only as against the
sentence of life imprisonment (imposed in respect of count 11
[rape]). I will return to
the sentence imposed by the learned
magistrate later in this judgment.
11.
As regards the question of whether or not
the appellant was promised a twenty year sentence, Mr Pillay submits
that whilst it is
unknown ‘why the appellant decided to admit
his guilt by way of section 220 admissions or who promised the
appellant a twenty
year sentence’, what is known, is that there
was ‘an inexplicable and extraordinary turnabout after the
appellant pleaded
not guilty to seventeen of the eighteen charges’
and that it ‘appears probable that at the time of pleading the
appellant
was not facing life imprisonment as there were no
allegations that the rapes in counts 10 and 11 attracted a sentence
of life imprisonment’.
In this regard, Mr Pillay submits that
the magistrate erred in invoking the provisions of section 51(1),
read with Part 1 of Schedule
2 of the Criminal law Amendment Act 105
of 1997 (‘CLAA’) in circumstances where section 51(1) was
‘never alleged
in the charge sheet nor was there any
application to amend the charge sheet’, which negatively
impacted upon the Appellant`s
rights to a fair trial.
12.
Mr
Pillay further submits that the magistrate erred in accepting various
admissions that were made by the appellant in terms of
section 220 of
the CPA,
[5]
which, so the
argument developed, were designed to obtain a conviction without a
need to call witnesses and subject to a procedure
that was
prejudicial to the Appellant. The procedure followed was prejudicial
to the appellant, so it was contended, because Section
220 of the CPA
does not permit of ‘questioning of the maker of the section 220
admissions’ and does not allow for ‘an
exposition of the
facts which may be able to establish the existence of substantial and
compelling circumstances’.
13.
As regards sentence, Mr Pillay submits that
the sentence of life imprisonment imposed on count 11 [rape] ‘is
shocking and
inappropriate’ and that ‘this court is at
large to interfere’ and ought to reduce to sentence to ten or
fifteen
years imprisonment as is provided for in Section 51(2)(b) of
the CLAA.
14.
On behalf of the State, Mr Mkhari submits
that the magistrate did not misdirect himself in convicting the
appellant based on the
admissions made by him in terms of s220 of the
CPA, and that in so far as the Appellant contends that section 220
does not allow
for an exposition of facts which may be able to
establish the existence of substantial and compelling circumstances,
the totality
of the evidence was assessed by the presiding magistrate
and no evidence was ignored in arriving at a conclusion that there
were
no substantial and compelling circumstances permitting of a
deviation from the statutorily prescribed minimum sentence of life
imprisonment.
15.
As regards the issue of the charge sheet
containing a reference to the provisions of section 51(2)(b) of the
CLAA, Mr Mkhari submits
that no prejudice was suffered by the
Appellant at the trial, in that the Appellant was warned by the
court, and his legal representative
made aware, at the material time,
that the State would be relying on the provisions of section 51(1) of
the CLAA in relation to
count 11, which carried a statutorily
prescribed minimum sentence of life imprisonment upon conviction -
unless substantial and
compelling circumstances were found to be
present, such as to permit deviation therefrom in the exercise of the
court’s sentencing
discretion.
Evaluation
16.
A reading of the transcript of the record
reveals the following: The appellant was legally represented
throughout the proceedings
conducted in the Regional Court. Counts 10
and 11 (rapes) were not individually read to the appellant for
purposes of plea, the
State Prosecutor having informed the court that
such counts should be treated as one count, given that they involved
the commission
by
inter alia,
the
appellant of more than one instance of rape of the same complainant
on the same date or occasion. Accordingly, only one count
of rape was
put to the appellant, who pleaded not guilty to the charge, and was
subsequently convicted and sentenced for the rape
under count 11.
Save for count 12 (housebreaking with intent to rob), the appellant
initially pleaded not guilty to the remaining
counts, whilst pleading
guilty to count 12.
17.
As
regards the charges of rape (stipulated in counts 10 and 11), the
charge sheet reflected that the State would be relying on the
provisions of section 51(2)(b) of the CLAA. At the time of pleading
therefore, the accused was notified in the charge sheet that
section
51(
2
)
of the CLAA would apply to the rape charge. Before the appellant was
asked to plead to the rape count (as contained in counts
10 and 11
but which were accepted as one count) the court warned the appellant
of the statutorily imposed minimum sentencing regime,
as contained in
section 51(
2
)
of the CLAA.
[6]
The accused then
pleaded, and his plea of not guilty was noted on the record.
Immediately after the accused had pleaded to the
remaining charges,
the State Prosecutor informed the court that the State would in fact
be relying on the provisions of section
51(
1
)
of the CLAA in respect of the said rape count.
[7]
At this juncture, the court warned the appellant of the statutorily
prescribed minimum sentence (life imprisonment) that could
be imposed
upon conviction, as envisaged in section 51(1) of the CLAA.
[8]
18.
As regards the charge of housebreaking with
intent to rob (count 12), after the charges in count 12 were read to
the accused, he
orally pleaded guilty thereto. The record reveals
that the appellant’s legal representative thereupon informed
the court
that he had not prepared a statement in terms of section
112 of the Criminal Procedure Act, 51 of 1977 (‘CPA’) in
respect
of the appellant’s guilty plea, as the appellant’s
[guilty] plea was not in accordance with the appellant’s prior
instruction to his legal representative. For this reason, the learned
magistrate indicated that he would be impelled to record
a plea of
not guilty in respect of count 12, as envisaged in section 113 of the
CPA. The record reveals that a short discourse
followed between the
learned magistrate and the appellant’s counsel, with the
learned magistrate indicating that although
the appellant had sought,
in court, to plead guilty to count 12, the court was not in a
position to determine whether or not the
appellant was factually
guilty, as pleaded, in the absence of a statement being made, as
envisaged in section 112 of the CPA, or,
in the absence of which, on
the basis of formal admissions being made in terms of section 220 of
the CPA. The matter then stood
down until the following day,
ostensibly for the appellant to confer with his counsel and provide
him with further instructions.
19.
The
following day, the defence counsel handed in a written statement
containing formal admissions made by the appellant in terms
of
section 220 of the CPA, in respect of all 18 counts.
[9]
The statement was read into the record and
inter
alia,
recorded
that the admissions were freely and voluntarily made without any
undue influence; that the appellant knew at the time that
he
committed the offences mentioned therein that his actions were
unlawful and therefore punishable by law; and that his attorney
had
explained the nature of the charges preferred against him and the
consequences of the admissions. As regards the rape charges
specified
in counts 10 and 11, the appellant admitted that his attorney had
informed him that the minimum sentence of life imprisonment
was
applicable, as the complainant had been raped more than once by more
than one person (including the appellant) on 31 December
2010. The
appellant confirmed that he understood the contents of the said
statement, that he had signed same and that he admitted
the contents
thereof.
20.
The
learned magistrate then asked questions to clarify,
[10]
inter
alia
,
the correctness of certain of the dates appearing in the statement
(insofar as they differed to the dates appearing in the charge
sheet
to which the admissions related) and in clarification of the facts
that underpinned the charges in relation to certain counts.
For
example, in relation to count 7 the appellant admitted the charge of
housebreaking with intent to commit a crime unknown to
the state, in
that on 18 September 2014 at Muldersdrift in the Regional Division of
Gauteng, he unlawfully and with intent to commit
a crime unknown to
the state, broke open the door and burglar [bars] to gain entry into
the house and thereupon entered the house
of Z V. The court pointed
out that the only person who would have known what he wanted to do
when breaking into and entering the
complainant’s house, was
the appellant himself, however, the appellant had not specified what
he wanted to do or did do after
he admittedly unlawfully gained entry
to the house.
21.
As
regards counts 10 & 11 (more than one rape of same complainant on
the same day), the appellant admitted in his statement
that his
attorney had informed him that the minimum sentence of life
imprisonment was applicable to the offences described in these
counts, given the appellant’s admission that the complainant
was raped more than once by more than one person; whereas the
appellant had not indicated in his statement whether there were other
people with him who had also raped the complainant. Further
questioning by the court was designed to ascertain what precisely was
being admitted by the appellant, given that the appellant
did not
specify in his statement whether he was admitting that he was an
accomplice to rapes committed by other people or whether
he was a
party in the group who went to the property and raped the complainant
more than one time.
[11]
The
appellant’s legal representative informed the court from the
bar about two accomplices vis-a vis- the rape counts, however,
the
learned magistrate indicated that such submission would have to be
contained in writing given that the admissions were ‘moving
towards’ (i.e., tantamount to) a plea of guilty.
[12]
It is clear from the reading of the record that the magistrate was
acting out of an abundance of caution. He had commenced his
questioning in relation to the statement which contained the
appellant’s admissions in terms of section 220 of the CPA, by
ascertaining from the appellant whether it was correct that his
admissions were designed to amount to an admission of guilt in
respect of the commission by the appellant of the offences in
question. The appellant confirmed that that was indeed correct.
[13]
22.
The appellant thereafter signed a written
addendum in which he admitted factual allegations in support of those
counts in which
he had admitted the legal requirements (elements) of
the offence but which required clarification. The record does not
demonstrate
that the appellant was induced by the court to do so. The
appellant was legally represented and agreed to supplement his formal
written admissions to clarify precisely what he did in committing the
offences which he admitted he had perpetrated.
23.
Mr Pillay submits that ‘
whilst
the legal representative for the Appellant was reading out the
Section 220 admissions, that the learned Magistrate who presumably
realised that there was insufficient and inconclusive evidence to
convict the Appellant on his 220 admissions, called for an addendum
to supplement the already formulated document. It is submitted that
this is an irregular step, given the intention of Section 220
admissions as set out above
. ’
There was, however, nothing contained in the record that reflected
that the section 220 admissions (as later amplified)
were
not
in accordance with the facts contained in the state docket and/or
they were improperly made. Mr Pillay’s submission lacks
factual
foundation and is in any event speculative and hence unsustainable.
24.
It
is well established principle that an accused is bound by the
admissions made on his behalf by a legal representative unless
either
such legal representative has not been properly instructed or the
admission was made as a result of a
bona
fide
mistake.
[14]
The appellant has
not asserted that his representative was not properly instructed or
that one or other of his admissions were
made as a result of a
bona
fide
mistake and therefore revocable.
[15]
Nor did he at any stage of the proceedings seek to revoke the
admissions that he had made, even at a time when his legal
representative
was invited by the trial court to make further
submissions, after the state had closed its case, as may have been
required by the
appellant. As was pointed out in
S
v Sesetse
en
‘n Ander
1981 (3) SA 353
(A) at 374, a formal admission in terms of s220 of
the CPA has the effect of relieving the State of the burden of
adducing evidence
concerning the facts admitted. If the admission is
still standing at the end of the case, it becomes conclusive proof of
the facts
admitted.
25.
Mr
Mkhari submits that ‘
the
section 220 admissions tendered by the accused did not render the
proceedings unfair, because it is not clear how the Appellant
could
have conducted his defence differently, as the evidence against him
was overwhelming
’.
The submission is not without force, given that the appellant was
linked
inter
alia,
to
the rape charge in question by way of undisputed DNA, fingerprint and
medical evidence.
[16]
26.
It
is a trite that the imposition of sentence is the prerogative of the
trial court.
[17]
As pointed
out in
Hewitt
v The State
(637/2015)
[2016] ZASCA 100
(9 June 2016),
[18]
an appeal court
‘…
may
not interfere with this discretion merely because it would have
imposed a different sentence. In other words, it is not enough
to
conclude that its own choice of penalty would have been
an
appropriate penalty. Something more is required; it must conclude
that its own choice of penalty is the appropriate penalty and
that
the penalty chosen by the trial court is not.
[19]
Thus, the appellate court must be satisfied that the trial court
committed a misdirection of such a nature, degree and seriousness
that shows that it did not exercise its sentencing discretion at all
or exercised it improperly or unreasonably when imposing it.
[20]
So, interference is justified only where there exists a ‘striking’
or ‘startling’ or ‘disturbing’
disparity
between the trial court’s sentence and that which the appellate
court would have imposed. And in such instances
the trial court’s
discretion is regarded as having been unreasonably exercised.
[21]
27.
In terms of
Section 51(1)
of the
Criminal
Law Amendment Act 105 of 1997
, the minimum prescribed period for
sentence in respect of the offences falling under the ambit of
Part I
of Schedule II,
Section 51(1)(a)
is that of life imprisonment, in the
absence of a finding of substantial and compelling circumstances by
the court.
In
S
v Malgas
2001 (1) SACR 461
SCA at para
25D, Marais JA cautioned that courts should not deviate from the
prescribed sentences lightly or for flimsy reasons.
This view was
subsequently endorsed in
S v Matyityi
2011 (1) SACR 40
SCA at para [11].
28.
As pointed out earlier in the judgment, the
record reflects that the learned magistrate had indeed warned the
appellant of the statutorily
prescribed minimum sentence of life
imprisonment, in terms of
section 51(
1
)
of the CLAA. He did so directly after the appellant had pleaded to
all eighteen charges and before any evidence was to be led
by the
State or before any admissions were made by and placed on record on
behalf of the appellant.
29.
In
MT v S; ASB
v S ; September v S
[2018] ZACC
27
;
2018 (2) SACR 592
(CC);
2018 (11) BCLR 1397
(CC), para 40, the
Constitutional Court held as follows:
“
It
is indeed desirable that the charge sheet refers to the relevant
penal provisions of the Minimum Sentences Act. This should
not,
however, be understood as an absolute rule. Each case must be
judged on its particular facts. Where there is no
mention of
the applicability of the Minimum Sentence Act in the charge sheet or
in the record of the proceedings, a diligent examination
of the
circumstances of the case must be undertaken in order to determine
whether the omission amounts to unfairness in trial.
This is so
because even though there may be no mention, examination of the
individual circumstances of a matter may very well reveal
sufficient
indications that the accused`s section 35(3) right to a fair trial
was not in fact infringed.”
30.
In the present matter, mention was indeed
made, in the record of the proceedings, of the applicability of the
provisions of section
51(1) of the CLAA. An examination of the
circumstances that prevailed at the time that the appellant was
warned of the statutorily
prescribed minimum sentence in terms of
section 51(1) of the CLAA, reveals that the appellant could have
laboured under no misapprehension
of the consequences of his
admissions and what sanction could follow upon conviction.
Furthermore, in his written statement containing
the appellant’s
formal admissions (as later amplified), he unequivocally acknowledged
that he had been informed by his legal
representative that a
conviction of the crime of rape carried a prescribed minimum sentence
of life imprisonment. That would only
apply where the offence falls
within the ambit of Part I of Schedule II, in the absence of a
finding by the court of substantial
and compelling circumstances and
in the exercise by the court of its sentencing discretion. In the
circumstances, I am inclined
to agree with the State’s
submission that no prejudice was or could have been suffered by the
appellant by the absence of
a reference to section 51(1) of the CLAA
in the charge sheet, as it is abundantly clear that the appellant and
his legal representative
were acutely aware, at all crucial times,
that a minimum sentence of life imprisonment could be imposed upon
conviction for an
offence falling within the ambit of Part I of
Schedule II of the CLAA. There is nothing in the record to indicate
how, when or
by whom the appellant was promised a sentence
of
twenty years imprisonment as opposed to prescribed minimum period of
life imprisonment.
31.
In
sentencing the appellant, the trial court accepted that the
prescribed minimum sentence was life imprisonment and if there was
to
be a departure from the sentence ordained by the legislature,
substantial and compelling circumstances warranting a lesser sentence
would have to be found to be present
.
32.
It is clear from the record that the
learned magistrate ensured that all the relevant facts pertaining to
the appellant, including
his personal circumstances were placed
before the court for purposes of sentence. To this end, he called for
a probation officer’s
report, and heard the oral evidence of
Gitumede Sena Ditsela, who had compiled the report. He also
considered a victim impact report
from the complainant.
In
S v EN
2014(1) SACR 199 (SCA) at paragraph 203C it was held that ‘Courts
should take care to elicit the necessary information to
put them in a
position to exercise their sentencing discretion properly.’
This was certainly accomplished in the present
case.
Cross-examination of Ms Ditsela revealed that the appellant had
committed a series of crimes (amongst others, no less than
4 rapes,
including the rape in question)
not
because he was struggling
financially but in circumstances where he had chosen to keep company
with the ‘wrong’ kind
of people and was indulging in
narcotic drug use.
33.
The
judgment of the trial court reflects that the learned magistrate
thoroughly considered the personal circumstances of the appellant
and
carefully balanced other relevant factors, such as the seriousness of
crime and the interests of society, before imposing the
relevant
sentence and in finding that there were no substantial and compelling
circumstances to deviate from the statutory injunction
to impose life
imprisonment. As regards the personal circumstances of the appellant,
the trial court took into account that he
was a 33 year old first
offender who had not enjoyed the benefit of formal schooling. The
appellant, who hailed from Mozambique,
had moved to South Africa in
2004. He was running a shop at the time of his arrest, earning R6000
[LA1]
per
month. Whilst the appellant took responsibility by admitting his
unlawful actions, he did so in circumstances where he was faced
with
overwhelming objective evidence that linked him to the commission of
the offence in question. The magistrate also considered
the period of
the appellant’s detention as an awaiting trial detainee (since
20 December 2014) and the fact that that he
has been suffering from a
chronic illness since 2015.
34.
The evidence revealed that the rape
perpetrated against the complainant had taken a severe toll on the
person and psyche of the
complainant, reaping, as it were, emotional
havoc and destruction on her life. She remains traumatised by the
event. She was raped
twice by the appellant on the same day and by
other member/s of his party. It is not without reason that the crime
of rape is considered,
in the pervading climate of gender based
violence in our country, as a very serious offence.
35.
In the words of Nicholls JA in
Director
of Public Prosecutions, Grahamstown v T M
(131/2019)
[2020] ZASCA 5
(12 March 2020) at para [15]:
‘
The
reality is that South Africa has five times the global average in
violence against women.
There
is mounting evidence that these disproportionally high levels of
violence against women and children, has immeasurable and
far-reaching effects on the health of our nation, and its economy. …
What cannot be denied is that our country is facing
a pandemic of
sexual violence against women and children. Courts cannot ignore this
fact.
To
that I may add, that despite the legislature’s injunction to
impose lengthy terms of imprisonment against perpetrators
who commit
rape, and despite the efforts of right thinking members of society to
dissuade would-be perpetrators from acting on
their impulses or
compulsions, the war against gender based violence in our society has
not been won. The scourge continues, unabated,
as several courts have
been astute to point out. Viewing the battle scene up close, it must
be said that s
exual
violence is one of the most horrific weapons of combat, an instrument
of terror, which continues to be used by men against
women as a show
of power, thereby inexcusably infringing upon their constitutionally
guaranteed fundamental rights to
inter
alia,
dignity,
[22]
life
[23]
and the freedom and
security of person.
[24]
36.
The victim in count 11 was raped at
gunpoint. As was pointed out by the Constitutional Court in
S
v Mbatha; S v Prinsloo
[1996] ZACC 1
;
1996 (2) SA
464
at page 467D:
“
The
objective of combating crime was truly laudable and its importance,
in the current climate of very high levels of violent crime,
could
not be overstated.
An ugly feature
of the current crime wave was the incidence of illegal smuggling,
sale and possession of arms. The proliferation
of illegal firearms
throughout the country contributed in no small measure to the
incidence of violent crime. This state
of affairs was a matter
of serious concern, not for the Courts, but for Legislature, the
police and the entire population affected
by it.
Whatever
the causes, crimes of violence, particularly those involving
firearms, had reached an intolerably high level and urgent
corrective
measures were warranted.
” (own
emphasis)
37.
In my view, having found, correctly so,
in my view, that there were no substantial and compelling reasons to
deviate from the prescribed
minimum sentence, the trial court was
entitled and indeed enjoined to impose the sentence it did in respect
of the offence of rape
for which the appellant was convicted. In the
circumstances of the matter, the only appropriate sentence is the one
which has been
ordained by statute. The sentence imposed is neither
unreasonable nor shockingly inappropriate. I would therefore
recommend that
the appeal be dismissed.
38.
The following order is made:
ORDER:
1.
The appellant’s appeal against his
sentence is dismissed.
_________________
Maier Frawley J
I agree
________________
Adams J
Date
of hearing: 7 May 2020
Judgment
delivered: 20 May 2020
APPEARANCES:
Counsel
for Appellants: Attorney. C.J.G Pillay
Instructed
by: C J G Pillay Attorneys
Counsel
for Respondent: Adv. H.H.P Mkhari
Instructed
by: The Director of Public Prosecutions,
Johannesburg.
[1]
Record:
Annexure ‘S,’ appearing on the unnumbered page following
page 276.
[2]
Section
309(1)(a) of the CPA reads as follows: “…
Provided
that if that person was sentenced to imprisonment for life by a
regional court under
Section 51(1)
of the
Criminal Law Amendment Act
no 105 of 1997
, he or she may note such an appeal without having to
apply for leave in terms of
Section 309(B)
…”
[3]
The
notice of appeal was signed by the appellant on 3 June 2019, by the
making of a mark, at the Correctional Centre where he
is
incarcerated.
[4]
The
notice of appeal (at pp 279-280 of the record) was completed in
manuscript handwriting and signed by way of a mark by the
appellant
on 3 June 2019, pursuant to his incarceration.
[5]
In
terms of
s220
of the CPA,
“
An
accused or his or her legal adviser or the prosecutor may in
criminal proceedings admit any fact placed in issue at such
proceedings and any such admission shall be sufficient proof of such
fact.”
[6]
Record:
p76.
[7]
Record:
p81.
[8]
Record:
p81.
[9]
The
admissions included reference to the date on and place at which the
appellant had committed each respective offence, what
was done by
the appellant or what was taken from the complainants (who were
named) in the commission of each offence. The statement
containing
the admissions also contained an unequivocal acknowledgement that
the appellant had been informed by his legal representative
of the
minimum sentences that could be imposed in respect of each of those
offences (including rape as envisaged in
section 51(
3
>
1
)
of the CLAA) that carried a prescribed minimum sentence in terms of
the CLAA.
[10]
The
magistrate questioned the appellant to enable him to understand and
thus clarify exactly what the appellant was admitting
in his
statement submitted in terms of
s220
of the CPA. The record reveals
that the accused confirmed that he admitted that he committed the
offences in each of the counts
mentioned in his statement. See:
Record: p93.
[11]
See
Record: p98.
[12]
Record:
p99, Lines 21-23.
[13]
Record:
p93, Lines 10-15.
[14]
See:
S
v Malebo en andere
1979(2) SA (B) at 644,
Dalmini
v Minister of Law and Order & another
1986 (4) SA 342
(D),
S
v Mbelo
2003 (1) SACR (NC) and
S
v Vilakaz
i
(unreported SCA case 284/10, 30 September 2010. In
S
v Mbelo
,
it was however held that an accused could not attack such admissions
on the basis of the legal representative`s incompetence
or lack of
knowledge of the law.
[15]
See:
S
v Malebo en ande
re
1979(2) SA 636 (B) where Hiemstra CJ stated that the legislature
undoubtedly intended the words ‘sufficient’ or
‘
voldoende’
in s220 of the CPA to mean ‘
conclusive’
or ‘afdoende
’,
since no further proof was required from the State of these facts,
whatever the accused may allege. He added, however,
that an
admission made under s 220 would not be irrevocable since an accused
could always rely on a
bona
fide
mistake.
[16]
Exhibits
‘J’ and ‘P’, read together with exhibit ‘O’,
on record.
[17]
S
v Pieters
1987 (3) SA 717
(A) at 727F-H;
S
v Sadler
2000 (1) SACR 331
(SCA) at para 8;
S
v Swart
2000 (2) SACR 566
(SCA) para 21. See also,
S
v L
1998 (1) SACR 463
(SCA) at 468
f
;
S
v Blank
1995 (1) SACR 62
(A) at 65
h-i
.
[18]
At para 8.
[19]
Sadler,
para10.
[20]
S
v Pillay
1977 (4) SA 531
(A) at 535E-F.
[21]
S v
Snyders
1982 (2) SA 694
(A) at 697D;
S
v N
1988 (3) SA 450
(A) at465I-J;
S
v Shikunga
465I-466A;
S v
Shikunga & another
1997 (2) SACR 470
(NmS) at 486
c-f.
See
also
S
v M
1976 (3) SA 644
(A) at 649F-650A;
S
v Pieters
1987 (3) SA 717
(A) at 733E-G;
S
v Petkar
1988 (3) SA 571
(A) at 574D; 1997 (2) SACR 470 (NmSC) at 486
d.
See
also
S
v Abt
1975 (3) SA 214
(A);
S
v Birkenfield
2000 (1) SACR 325
(SCA) para 8;
S
v M
1976 (3) SA 644
(A) at 649F-650A;
S
v Pieters
fn
3 at 733E-G.
[22]
Section
10 of the Constitution of the Republic of South Africa.
[23]
Section
11 of the Constitution.
[24]
Section
12 of the Constitution.
[LA1]
Juta
guidelines style