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[2014] ZASCA 118
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Ravele v S (20079/14) [2014] ZASCA 118 (19 September 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
NOT
REPORTABLE
Case
No: 20079/14
In
the matter between:
TSHIFHIWA
LEROY
RAVELE
......................................................................................
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
Neutral
citation:
Ravele v S
(20079/14) [2014] ZASC 118 (19 September
2014)
Coram:
Cachalia and Bosielo JJA and Mocumie
AJA
Heard:
20 August 2014
Delivered:
19 September 2014
Summary:
Appeal against both convictions and
sentences ─ rape read with
s 51(1)
of the
Criminal Law
Amendment Act 105 of 1997
and s 3 of the Criminal Law Amendment
Act 32 of 2007─ right to a fair trial ─ attention of the
appellant that
he could be sentenced to life imprisonment not drawn
at the outset ─ duplication of convictions ─ kidnapping
committed
as part of rape ─ proper approach to formulating
charges under
s 51
of the
Criminal Law Amendment Act 105 of 1997
─ whether sentence imposed is appropriate ─ no
rehabilitative element infused in previous sentences.
ORDER
On
appeal from
Limpopo High Court,
Thohoyandou (Booi AJ sitting as
court of first
instance):
1 The appeal in
respect of the conviction on counts 1 and 3 is upheld.
2 The appeal in
respect of the conviction on count 2 is dismissed.
3 The appeal in
respect of the sentence on count 2 succeeds.
4
The order of the trial court is set aside and the following order is
substituted in its
place:
‘
(a)
The accused is found not guilty on counts 1 and 3.
(b) The accused is
found guilty on count 2.
(c) The accused is
sentenced to 8 years’ imprisonment’.
5
The sentence referred to in para 4(c) above is antedated to 9 June
2010.
JUDGMENT
Mocumie
AJA (Cachalia and Bosielo JJA concurring):
[1]
The appellant, who was 20 years old at the time of the commission of
the offences discussed below, was convicted on 4 June 2010
by the
Limpopo High Court, Thohoyandou (Booi AJ sitting as court of first
instance) on two counts of rape read with
s 3
of the Criminal
Law Sexual Offences and Related Matters Amendment Act 32 of 2007 (the
Criminal and Sexual Offences Amendment Act)
and s 51(1) and Part
I of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 (the
Act), as amended, and one count of
kidnapping. The appellant was
sentenced to life imprisonment on both counts of rape and five years’
imprisonment for kidnapping,
the latter being ordered to run
concurrently with the sentence imposed on count 2.
[2]
The appellant was initially granted leave to appeal against the
sentence only by the court a quo, on 8 December 2011. However,
upon
reading the record, it became apparent that the appellant may have
been improperly convicted on all counts. Accordingly, at
the request
of the presiding judge, as the Supreme Court of Appeal has no
jurisdiction to entertain an appeal on the convictions
in the absence
of leave having been granted by the high court, the registrar of this
court directed a letter to the legal representatives
of both the
appellant and the state to:
(a) confirm an
instruction from the appellant that he wished to appeal the
convictions; and
(b) approach the
high court promptly to obtain the necessary leave; and
(c) to bring the
contents of the letter ─ which included a discussion on
the difficulties with each of the convictions,
including the failure
of the trial judge to properly explain the nature of the charges to
the appellant – to the attention
of the court.
The
court a quo duly granted leave to appeal on conviction on all counts,
on 7 August 2014.
[3]
In view of what will be discussed hereafter under s 51(1) of the
Act, it is well to remind oneself at the outset that,
in invoking the
minimum sentencing regime contained in the Act, compliance with fair
trial requirements is essential. Thus an accused
person must be
informed of the charges he is facing with sufficient detail to enable
him or her to answer properly to such charge.
Section 35(3) of the
Constitution
[1]
provides for a
fair trial for an accused person, while s 84(1) of the Criminal
Procedure Act 51 of 1977 (the CPA) stipulates
that the charge must
contain the essential particulars of the offence.
[2]
This court has also in numerous judgments stated that a failure to
inform an accused person that he or she is facing a serious
charge
under the Act and the sentence which may be imposed, may, depending
on the facts and circumstances of the case, result in
a finding that
it would be unfair to sentence the accused in terms of the Act.
[3]
[4]
In this case, in respect of count 1, the State properly conceded that
the appellant had not been properly informed of the nature
of the
charges against him. This issue need not be considered further
because it is also clear from the evidence that the appellant
was
wrongly convicted.
[5]
The incident giving rise to count 1 occurred on 8 November 2009. The
issue was whether or not the appellant had consensual sexual
intercourse with the complainant Ms K[…] G[…]. It is
common cause that she was with her
friends, L[…] T[…]
N[…] (L[…]), N[…] and C[…] M[…]
(C[…]), at L[…]’s
home where the appellant found
them around 19h00. She testified that the appellant had in their
presence and at knifepoint dragged
her to his home where he raped her
on two or three occasions. She left his home the following morning
and reported the incident.
[6]
The appellant’s version was that the complainant accompanied
him voluntarily from L[…]’s home, had sexual
intercourse
with him and slept over before departing in the morning. In response
to a question why she would falsely have implicated
him, he explained
that this was probably because she wanted to conceal the fact that
she had accompanied him voluntarily, from
her current boyfriend,
H[…].
[7]
There were several inconsistencies in her version. I mention four
which I think are significant. First, some of the state witnesses
contradicted the complainant’s version that she had been
dragged away from L[…]'s home against her will. They therefore
confirmed the appellant’s version on this aspect. Secondly,
L[…] confirmed that the complainant was in a relationship
with
M[…], which also corroborated the appellant’s version
and contradicted her denial. Thirdly, the evidence of H[…],
the complainant’s current boyfriend as to what transpired at
the appellant’s house directly contradicted her version
as to
what had happened. He testified that he went to look for her at the
appellant’s home, but when he knocked on the window
nobody
responded. He then left. In contrast she testified that H[…]
saw the appellant dragging her away and remonstrated
with him, which
he flatly denied. Finally, she testified that the appellant raped her
several times throughout night. At the end
of her evidence it was not
clear how many times ─ on her version ─ she had been
raped. At one point during her testimony
she said that it had
happened on three occasions; at another, she said that it had
happened twice.
[8]
I should add that the medical evidence, on which the court a quo
relied heavily to support the conviction, showed no more than
that
sexual intercourse had taken place. There were, as in similar
circumstances in most cases of this nature, no obvious injuries
to
corroborate the alleged rape. It follows that the court a quo
misdirected itself in finding that the medical evidence provided
corroboration for the rape.
[9]
In the circumstances the appellant ought to have been found not
guilty on this count. The state quite properly conceded before
us
that the conviction could not be sustained.
[10]
In respect of count 2, it does not appear what charge was put to the
appellant. There was no indictment or summary of substantial
facts in
the court record. As in count 1, it appears that the appellant was
made to plead to a charge of rape in terms of s 51(1)
of the Act
without any reference to the circumstances sought to be proved in
Part 1 of Schedule 2; the relevant provision for rape,
namely para
(b)(i) where the victim is alleged to be under 16 years of age. The
judgment is silent on why a sentence of life imprisonment
was
imposed, but it is clear that this sentence was imposed because the
judge assumed that the Act was applicable. The State conceded
that a
proper charge had not been put to the appellant, and the judge had
misunderstood which provisions of the Act were applicable.
In the
circumstances we must approach the matter on the basis that the Act
did not apply. I turn to consider the evidence.
[11]
The complainant, who was almost 16 at the time of this incident,
testified that she met the appellant at about 19h00 on 29
November
2008. It was not dark yet and she recognised him as someone she knew.
She testified that the appellant
grabbed her and took her to a nearby church where he raped her.
Thereafter he took her to his house
where he raped her again. The
appellant kept her in his house from 19h00 until the next morning,
around 5h00.
[12]
The appellant’s version was, the complainant wrongly identified
him as the perpetrator. He claimed to have been elsewhere
at the time
of the incident. The complainant and her brother were resolute in
their identification of the appellant as the person
who kidnapped and
raped her that night. They both testified that they knew the
appellant as they reside in the same area. The appellant
did not
dispute this. To my mind, this prior knowledge excludes every
possibility of a mistaken identity.
[4]
It follows that the appellant’s version was palpably false. He
was therefore properly convicted on this count.
[13]
The circumstances of the alleged rape resulted in the appellant being
charged with two offences: rape and kidnapping. The state
accepted
that the conviction on the kidnapping count constituted a duplication
of convictions. The concession was properly made
and nothing further
need be said about this count.
[14]
Having come to the conclusion that the court a quo erred in
sentencing the appellant to life imprisonment under the Act, it
is
now open to this court to consider sentence afresh. The appellant was
20 years of age at the time of the commission of the offence.
He was
an orphan. He was married in terms of customary law. He was
temporarily employed at a carpentry workshop earning a salary
of
R1600 per month. To his discredit, he had a relatively long list of
previous convictions ranging from assault to indecent assault.
[5]
He had attended school until grade 11. It was submitted on his behalf
that he showed remorse. Based on his youthfulness, it was
submitted
that he was a good candidate for rehabilitation.
[15]
It is trite that rape is not only a very serious offence but it is
prevalent in this country. It is a humiliating, degrading
and brutal
invasion of the privacy, dignity and the person of the victim.
[6]
In this case the victim was a young girl of 15 years. She was raped
twice by someone she knew and who lives in the same community.
[16]
Regrettably, a Victim Impact Report was not obtained to assist the
trial court in understanding the impact of the rape on the
complainant. It is incumbent on the prosecution to secure such
evidence to assist the court to assess the seriousness and impact
of
the offence on the victim. We can however, assume that the
complainant suffered some trauma.
[17]
The same holds true regarding the failure of the trial court to
obtain a pre-sentencing report on the accused. No court should
proceed to sentence a youthful person unless it has all the facts
relevant to sentencing before it to enable it to decide on an
appropriate sentence. The proper judicial approach to sentencing was
enunciated as follows in
S
v Siebert
:
[7]
‘
Sentencing
is a judicial function
sui generis
.
It should not be governed by considerations based on notions akin to
onus of proof. In this field of law, public interest requires
the
court to play a more active, inquisitorial role. The accused should
not be sentenced unless and until all the facts and circumstances
necessary for the responsible exercise of such discretion have been
placed before the court.’
[18]
However, it remains the court’s primary duty to dispense
justice, through imposing well balanced and appropriate sentences
which will not only address the accused’s favourable personal
circumstances but will address the seriousness of the offence
and
take into consideration the interests of society which include the
victim of the offence committed. Sexual assaults especially
on the
most vulnerable of our society, young children, have become endemic
in our society. Our courts have a duty to send a clear
message to
society that the courts view such offences seriously and that they
are willing and prepared to impose the kind of sentence
which whilst
serving as a deterrent both individual and general, will also serve
to protect society against people who pose a serious
threat to their
well-being in society. As this court remarked in
S
v N
:
[8]
‘
Bearing
in mind that a sentence does more than deal with a particular
offender in respect of the crime of which he has been convicted
─
it constitutes a message to the society in which the offence
occurred. The interests of society must thus also be taken
into
account. The sense of outrage justifiably roused by the offence of
rape in the right thinking members of a South African society
in
which sexual violence is so endemic and shows no sign of abating,
must . . . be a critical factor in the imposition of a suitable
sentence . . ..’
[19]
He has a long list of previous convictions which, on the face of it,
shows a propensity for criminality. He had his first clash
with the
law at the tender age of 13 years. Amongst his previous convictions
is one of indecent assault for which he was convicted
when he was 14
years old. Nonetheless, it was wrong for the court a quo to look at
the appellant’s previous convictions and
conclude therefrom
that there were no prospects for his rehabilitation. There is no
evidence to inform the court of his upbringing,
his social and
cultural background, his family structure and whether his upbringing
had any influence on his susceptibility to
crime and his anti-social
behaviour and whether he would have been receptive to any
rehabilitation program. What is clear is that
he is still relatively
young. He requires correction and rehabilitation, but not
destruction,
[9]
lest he returns
to the very society from which he comes more hardened and
desensitised to living amongst law abiding citizens.
Programs aimed
at rehabilitation of young offenders may give him an opportunity to
change his behaviour, especially that towards
women.
[20]
Although a sentence of life imprisonment is clearly inappropriate, a
sentence of an exemplary term of imprisonment is nevertheless
appropriate, taking into account the following aggravating factors.
The complainant was well known to the appellant; he was older
than
her; he took her against her will and kept her away from the comfort
and safety of her home and her parents for one night.
Throughout the
trial the appellant maintained his innocence and showed no remorse.
It was only after his conviction that he claimed
to be remorseful. It
is in his interest as well as the broader society that he stays long
enough in a correctional facility to
allow correctional services to
take him through all the required programs in a meaningful way to
rehabilitate him. Short term imprisonment
will have no such desired
effect. Having considered all the facts relevant to sentence, I am of
the view that a sentence of imprisonment
of eight years is the most
appropriate.
[21]
In conclusion, it will be remiss of me to not refer to what this
court stated in
S
v Makatu
,
[10]
namely that regrettably there are many cases which have come to this
court from Limpopo High Court with similar problems referred
to
above, with reference to the failure of the State to set out the
provisions of the relevant section and circumstances, ie s 51(1)
of the Act. Unfortunately this has resulted in accused persons not
being fairly tried and appropriately punished for the crimes
which
they in fact have committed. This brings the administration of
justice into disrepute and erodes public confidence in the
criminal
justice system. The prosecution must be meticulous in their
preparation of charge sheets and indictments to avoid a recurrence
of
this kind of situation. A copy of this judgment shall be made
available to the National Director of Public Prosecutions (NDPP)
to
deal with this problem through proper and advanced training of
prosecutors who deal with these matters.
[22]
In the result, the following order is granted:
1 The appeal in
respect of the conviction on counts 1 and 3 is upheld.
2 The appeal in
respect of the conviction on count 2 is dismissed.
3 The appeal in
respect of the sentence on count 2 succeeds.
4 The order of the
trial court is set aside and the following order is substituted in
its place:
‘
(a)
The accused is found not guilty on counts 1 and 3.
(b) The accused is
found guilty on count 2.
(c) The accused is
sentenced to 8 years’ imprisonment’.
5 The sentence
referred to in para 4(c) above is antedated to 9 June 2010.
________________________
B
C MOCUMIE
ACTING
JUDGE OF APPEAL
Appearances
For
the Appellant: L M Manzini (with him M P Legodi)
Instructed by:
Justice Centre,
Polokwane
Justice
Centre, Bloemfontein
For
the Respondent : Ms S M Mahada
Instructed by:
The Director of
Public Prosecutions,
Thohoyandou
The
Director of Public Prosecutions, Bloemfontein
[1]
The
Constitution of South Africa, 108 of 1996.
[2]
Section
35(3)(
a
)
of the Constitution provides: ‘Every accused person has a
right to a fair trial, which includes the right ─ (
a
)
to be informed of the charge with sufficient detail to answer it.’
Section
84(1) of the CPA: ’Subject to the provisions of this Act and
of any other law relating to any particular offence,
a charge shall
set forth the relevant offence in such a manner and with such
particulars as to the time and place at which the
offence is alleged
to have been committed, and the person, if any, against whom and the
property, if any, in respect of which
the offence is alleged to have
been committed, as may be reasonably sufficient to inform the
accused of the nature of the charge.’
[3]
See
S
v Legoa
2003
(1) SACR 13
(SCA)
;
S v Ndlovu
2003
(1) SACR 331
(SCA)
;
S v Makatu
2006
(2) SACR 582
(SCA)
;
S v Kolea
2013
(1) SACR 409 (SCA).
[4]
See
R
v Dladla & others
1962 (1) SA 307
(A) at 310B-E. Unlike in
S
v Mthetwa
1972 (3) SA 766
(A) and
S
v Charzen & another
2006 (2) SACR 143
(SCA), this case is not a case of total strangers
in which one would have expected the witnesses to explain in detail
the peculiar
features with which they identified the appellant.
[5]
2001-10-05,
Assault, 30 days IMP; 2002-08-08, Assault, AOG R20.00; 2003-10-13,
Indecent Assault, AOG R100.00; 2003-12-12, Robbery,
4 months’
imprisonment;2004-07-21, Robbery, 6 months’ imprisonment;
2005-06-17, Abuse of drugs, R1000,00 or 3 months’
imprisonment; 2005-08-03, Assault, 6 months’
imprisonment; 2006-12-14, Assault, 6 months’ imprisonment.
[6]
S
v Chapman
[1997] ZASCA 45
;
1997
(3) SA 341
(SCA) at 344I-J.
[7]
S
v Siebert
1998
(1) SACR 554
(A) at 558i-559a;
S
v Matyityi
2011 (1) SACR 40
(SCA) para 15-17.
[8]
S
v N
[2008] ZASCA 30
;
2008 (2) SACR 135
(SCA) para 30.
[9]
See
S
v Phulwane & others
2003 (1) SACR 631 (TPD).
[10]
S
v Makatu
2006 (2) SACR 582
(SCA).