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2011
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[2011] ZAGPPHC 80
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Baas and Others v S (A323/2011) [2011] ZAGPPHC 80 (26 May 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT PRETORIA)
CASE:
A323/2011
DATE:26/05/2011
In
the matter between
MOHLATSI
ALEX
BAAS
...................................................................................
1st APPELLANT
FILALA
JOSEPH
LEKITLANE
.........................................................................
2nd APPELLANT
BELOVED
NKOSI
.............................................................................................
3rd
APPELLANT
NKOSANA
MOSES
SOMFULA
.........................................................................
4
th
APPELLANT
And
THE
STATE
.........................................................................................................
RESPONDENT
JUDGMENT
MOLAMU
AJ:
1.
The four appellants faced a charge of rape in the Regional Court at
Klerksdorp. The appellants were convicted and sentenced to
undergo an
imprisonment term of 15 years. The trial court granted the appellants
leave to appeal against sentence only.
2.
The appellants have requested this court to exercise its inherent
jurisdiction to review their conviction by the court a quo,
to
satisfy itself that the proceedings in the trial court were
in
accordance with justice.
3.
Before I deal with the substance of the appeal itself, I wish to
comment on some observations I made on perusal of the record
of
proceedings of the court a quo. The cross-examination of the
complainant elicited questions on the statement that she had made
to
the police. The questioning resulted in a trial within a trial. The
matter was postponed for the evidence of the police officer
who had
taken down the complainant's statement.
4.
When the matter resumed, appellant 3's legal representative applied
for the recusal of the presiding officer. He was supported
by the
legal representative of appellant 2 in this regard. Appellants 1 and
4's legal representatives indicated that they had nothing
to say on
the matter. After this address from the bar, the court proceeded to
hold the trial within a trial without pronouncing
any ruling on the
application for recusal. Similarly, after the police officer had
testified in the trial within a trial, the court
a quo did not make
any ruling on the admissibility of the statement by the complainant
to the police.
5.
As indicated earlier, these observations I made when I was perusing
the record. They were not raised in the appeal to this court.
The
question arises as to whether the failure by the trial court to make
a ruling in these circumstances constituted a gross irregularity.
Did
the appellant suffer any prejudice as a result of this failure? In an
attempt to answer these questions it is perhaps prudent
to first
examine the reasons that were advanced for the recusal of the
Magistrate. Appellant 2's legal representative merely stated
that his
client felt that the Magistrate was too sympathetic towards the
complainant. The complainant in this matter was a 15 year
old girl,
who was 12 at the time of the incident.
6.
My perusal of the record did not reveal any untoward conduct on the
part of the Magistrate. On the contrary it displayed the
kind of
approach expected of a presiding officer in matters of this nature
where he or she has to ensure that witnesses are treated
with great
sensitivity lest they are subjected to secondary trauma in court. A
perusal of the record further indicates that on
the whole, the
appellant did not suffer any prejudice as a result of the
Magistrate's failure to make the rulings. The appellants
were at all
times legally represented. Their silence in not pursuing the outcome
of their applications is inexplicable. One can
only infer that they
realized that the recusal application had no merit, and they aligned
themselves with the trial process going
forward. The same can be said
of the ruling on the trial within a trial. This court is of the
opinion that, looking at the overall
evidence and the trial
proceedings, the appellants did not suffer any prejudice.
7.
Going back to the subject of this appeal, as indicated above, the
appellants have requested this court to review the conviction
of the
court a quo and set it aside if it is of the opinion that it is not
in accordance with justice. The appellants have further
submitted
that the Magistrate misdirected himself in finding that the
complainant was a fit and competent witness, and further,
that the
Magistrate in admonishing the complainant, did not fully investigate
whether she had the capacity to distinguish between
the truth and
falsity.
8.
I will first deal with the issue of competency of the complainant.
The complainant was fifteen (15) at the time she testified
and in
Grade 9. The Magistrate after establishing her age and school grade
went on to ask her whether she knew the difference between
the truth
and lies to which she responded in the affirmative. She went on
further to explain what happens when a person tells lies.
The
appellants submitted that the Magistrate did not fully or properly
investigate the competence of the complainant in terms of
section
164(1) of the CPA.
Section
164(1) of the CPA provides the following: " (l)any person who is
found not to understand the nature and import of the
oath or
affirmation, may be admitted to give evidence in criminal proceedings
without taking the oath or making an affirmation:
Provided that such
person shall be admonished by the presiding judge or judicial officer
to speak the truth".
9.
In casu, the complainant was 15 at the time she testified. The
questions put to her by the trial court were apt and most relevant
and elicited appropriate responses from her. The appellants referred
this court to S v Swartz
2009 (1) SACR 452
and submitted that the
trial court should have followed the principle laid down in this case
in admonishing the complainant. The
complainant in the Swartz matter,
was 7 at the time she testified and 4 at the time of the commission
of the offence. The two cases
are incomparable and distinguishable.
In the Swartz matter, the judicial officer had the added duty to go
beyond establishing whether
the child knew the difference between
truth and falsity. The complainant in this case was much older.
This
court is of the opinion that the appellants' submission is unfounded
in this regard. The trial court complied with the provisions
of
section 164(1)
of the
Criminal Procedure Act, 1977
.
10.
Having heard counsel with regard to conviction, this court is of the
opinion that the trial Magistrate considered and carefully
evaluated
the evidence of the State and accepted same as the truth. The
evidence against the appellants was overwhelming; the identity
of the
appellants was not an issue; they gave contradicting statements in
their defence. Having read the record as well, this court
is
satisfied beyond doubt that the conviction is in accordance with
justice.
11.
I will now deal with the issue of sentence. It is an established
principle of our law that sentencing is primarily in the discretion
of the trial court. The appeal court will only interfere with this
discretion if it finds that the trial court did not exercise
this
discretion properly, reasonably and judicially, or that the sentence
imposed is shockingly inappropriate or substantially
misdirected. See
S v Rabie
1975 (4) SA 855
at 857 D-E and S v Pieters
1987 (3) SA 717.
12.
While acknowledging the discretion enjoyed by the trial court, in
this regard, this discretion, must of course, be exercised
"
within the structure provided by law, both statute and case law".
See S.S Terblanche, Guide to sentencing in South
Africa, 2nd Edition,
p 117.
In
casw, in considering sentence, the Magistrate found that the Criminal
Law Amendment Act 105 of 1997 (Minimum Sentence) was applicable.
This
was indeed a serious misdirection on the part of the Magistrate.
Appellants 1, 2 and 3 were under 16 at the time of the commission
of
the offence and Appellant 4 was 17 at the time.
Section
51(6) of the Criminal Law Amendment Act 105 of 1997 (the Act),
provides that the Act shall not be applicable to a child
who was
under the age of 16 at the time of the commission of the offence.
13.
The Constitutional Court in Centre for Child Law v Minister of
Justice
2009 (2) SACR 477
at par 78,has declared as unconstitutional
and invalid section 51 (1) of the Criminal Law Amendment Act 105 of
2007 as amended
by the Criminal Law (Sentencing) Amendment Act 38 of
2008 to "the extent that they apply to persons who were under 18
years
of age at the time of the commission of the offence". The
Constitutional court also declared as invalid and unconstitutional
the provisions of section 51 (6) and proposed that it should provide
as follows: " This section does not apply in respect
of an
accused person who was under the age of 18 years at the time of the
commission of the offence as contemplated in ss (1) and
(2)."
The Constitutional Court at par: 31 further acknowledged that "while
the Bill of Rights envisages that detention
of child offenders may be
appropriate, it mitigates the circumstances. Detention must be a
last, not a first, or even intermediate
resort; and when the child is
detained, detention must be only for the shortest appropriate period
of time".
14
It is in furtherance of this approach that this court is obliged to
interfere with the sentence of the court a quo. This court,
however,
does not agree with the appellants' submission that the present case
cannot be said to be the worst kind of rape by any
stretch of
imagination. The complainant was 12 at the time of the commission of
the offence, and was also a virgin. There was unfortunately
no
evidence led as to the impact this experience has had on the
complainant. Rape is an appalling crime. Not only is it humiliating
to the victim, it is also a brutal invasion of the victim's right to
privacy.
15.
It is also of great concern to me that the appellants have not shown
any remorse and are not taking responsibility for their
actions.
Indeed they are young and should not be destroyed. All avenues should
be explored in an attempt to rehabilitate them so
that they can learn
from their actions.
16.
In conclusion, the court makes the following order:
1.
The Appeal against conviction is dismissed;
2.
The appeal against sentence is upheld;
3.
The sentence by the trial court is set aside and substituted by the
following sentence:
The
appellants are sentenced to 8 (eight) years imprisonment each and the
sentences are antedated to the date of sentencing in the
court a quo
being 23 June 2009.
B
L MOLAMU
Acting
Judge of the High Court
I
agree and it is so ordered.
M.W.
MSIMEKI
Judge
of the High Court