About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2013
>>
[2013] ZASCA 127
|
|
Thinashaka v S (65/2013) [2013] ZASCA 127 (25 September 2013)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No:
65/2013
Not Reportable
In
the matter between:
MAHADULULA
THINASHAKA
............................................................
Appellant
and
THE
STATE
..............................................................................
Respondent
Neutral citation:
Thinashaka
v State (
65/2013)
[2013] ZASCA 127
(25 September 2013)
Coram:
Maya,
Shongwe, Pillay and Willis JJA and Zondi AJA
Heard:
5 September 2013
Delivered:
25 September 2013
Summary: Criminal Law and Procedure
─ appeal against conviction and sentence of thirty years’
imprisonment on a conviction
of rape ─ appeal against
conviction dismissed ─ substantial and compelling circumstances
having been found to exist
─ sentence reduced to 15 years’
imprisonment.
ORDER
On appeal from:
Limpopo High
Court, Thohoyandou (Hetisani J sitting as the sentencing court):
The appeal against conviction is
dismissed.
The
appeal against sentence is upheld.
The sentence of 30 years’
imprisonment imposed by the court below is replaced with 15 years’
imprisonment, antedated
to 13 October 2001.
JUDGMENT
WILLIS JA (MAYA,
SHONGWE, PILLAY JJA and ZONDI AJA concurring):
Introduction
[1] This is an appeal against the
conviction and sentence of 30 years’ imprisonment on a count of
rape of a nine-year old
girl. The appellant was arraigned before the
Regional Court at Thohoyandou. The allegations against him were that
he had sexual
intercourse with a child without her consent at the
Fandani Village on 29 January 2001.
[2] There are certain deficiencies in
the record. Most troubling is that parts thereof are missing.
Nevertheless, after some debate
and the granting by this court of a
number of different applications for condonation with the concurrence
of the opposing sides,
there was sufficient clarity for this court to
move forward without risking injustice to any affected party.
[3] On 13 October 2001 the appellant
appeared before the learned magistrate, MrNdou. His rights to legal
representation were explained
to him. He was duly warned that, if
convicted, he was at risk of being sentenced to life imprisonment in
terms of section 52 of
the Criminal Law Amendment Act 105 of 1997
(the Act). The appellant, who was 18 years old at the time, elected
to conduct his own
defence. He explained how he had climbed through
the window of the home where the complainant had been sleeping, that
he undressed
her and had sexual intercourse with her, without her
consent. Having admitted all the elements of the offence of rape, the
appellant
was correctly convicted by the magistrate.
[4] The matter was then referred to
the High Court for sentence. The matter came before Hetisani J on 5
February 2002. At this stage
the appellant was represented by
MrNetshifhefhe, an advocate. It is not clear whether the learned
judge confirmed the conviction
as was required by section 52 of the
Act at that time. This appears to have been a factor which influenced
Makhafola J to grant
leave to appeal on 12 June 2012. Hetisani J had
retired.The appellant argued on appeal both that there had been
non-compliance
with the provisions of s 52 of the Act and with s
112(1)
(b
) of the Criminal Procedure Act 51 of 197, as amended.
[5] It is clear that the appellant was
correctly convicted. If indeed Hetisani J failed to confirm the
conviction, no irregularity
sufficiently serious to vitiate the
proceedings occurred.This conclusion was supported by counsel for
both sides. The requirement
that the conviction in the Magistrate’s
Court be confirmed by the High Courtbefore the latter court imposed
sentence is,
in any event, now a repealed provision of the law. To
the extent that it is necessary to confirm that conviction, this
court does
so.
[6] The judge who imposed sentence
asked a number of questions and received a probation officer’s
report from a social worker.
After questioning by the magistrate, it
appeared that the appellant had known the complainant and that the
offence had been committed
at around 22h00. The appellant was the
third of six children. His parents worked on the Reef. His highest
level of education is
Standard Three. At the time of sentencing, the
appellant was serving a three year sentence for house-breaking. He
expressed remorse
for the offence.
[7] The appellant reported to the
social worker that he had been under the influence of alcohol at the
time of commission of the
offence. The social worker’s report
records that ‘the mental state’ of the appellant was
‘still in question’.
The judge determined that a
psychiatric report be obtained. That report by Dr Weiss, a forensic
psychiatrist, dated 12 February
2002, determined that the appellant
was ‘not certifiable in terms of the Mental Health Act’;
that he was ‘fit
to stand trial’; and that he was not
‘impaired by mental illness or defect’. Dr Weiss noted
that the appellant
was ‘sullen and monosyllabic’ and that
there was evidence that he had a ‘maladjusted personality with
antisocial
traits’. None of these observations were challenged
either by the appellant or the State.
[8] It is not apparent why sentence
was imposed as late as 27 February 2011. In itsjudgment the High
Court said that counsel had:
‘…
drawn
the court’s attention to the fact that you have what we call a
psychological problem. This came to the court’s
attention
through the welfare report which mentioned that, for example, you can
steal someone’s property and not make use
of it and sometimes
you would run away from school to go and sit in the bush the whole
day and do nothing.
’
The High Court found that there were
indeed substantial and compelling circumstances which justified the
imposition of a sentence
less than life imprisonment. A sentence of
30 years’ imprisonment was thereafter imposed.
[9] The background facts of the
appellant’s young age of 18 years at the time of the commission
of the offence, together with
his social problems and remorse justify
a finding that there was, cumulatively, a sufficiency of factors to
justify a departure
from the prescribed minimum of life imprisonment
for an offence such as this. Having made such a finding, the High
Court’s
imposition of a sentence of 30 years’
imprisonment does not square with the requirements of justice. This
is a view which
has been supported by the State. Counsel for the
appellant and the State agreed that 15 years’ imprisonment
would do justice,
albeit imperfectly, in this matter. I agree. The
interests of justice demand that the sentence should run from the
date of conviction
rather than that upon which the High Court imposed
sentence some ten years after conviction.
[10] The order of this court is the
following:
The appeal against conviction is
dismissed.
The appeal against sentence is
upheld.
The sentence of 30 years’
imprisonment imposed by the court below is replaced with 15 years’
imprisonment, antedated
to 13 October 2001.
_______________________
NP WILLIS
JUDGE OF APPEAL
APPEARANCES:
For the Appellant: MJ Manwadu
(Attorney) Instructed by:
Thohoyandou Justice Centre
For the Respondent: A Madzhuta
Instructedby:
Director of Public Prosecutions,
Thohoyandou
The Director of Public Prosecutions,
Bloemfontein