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[2012] ZASCA 80
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Mapule v S (817/11) [2012] ZASCA 80 (30 May 2012)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 817/11
In
the matter between:
Phithela
Mapule
….................................................................................................
Appellant
and
The
State
…........................................................................................................
Respondent
Neutral citation:
Mapule v The State
(817/11)
[2012] ZASCA 80
(30 May 2012)
Coram:
BRAND,
SNYDERS, MHLANTLA JJA AND SOUTHWOOD AND PETSE AJJA
Heard:
18 May
2012
Delivered: 30 May 2012
Summary:
Sentence – imposition of minimum sentence in terms of
Criminal Law Amendment Act 105 of 1997
– sentenced for a crime
not convicted of – right to a fair trial.
ORDER
On appeal from
:
Venda Provincial Division of the High Court (Makgoba AJ sitting as
court of first instance):
1
The appeal on
conviction is dismissed.
2 The appeal on sentence
is upheld.
3 The sentence imposed by
the court below is set aside and replaced by the following:
‘
The accused is
sentenced to 10 (TEN) years’ imprisonment.’
4 In terms of
s 282
of
the
Criminal Procedure Act 51 of 1977
the sentence is ante-dated to
26 October 2001.
JUDGMENT
SNYDERS JA: (BRAND and
MHLANTLA JJA and SOUTHWOOD and PETSE AJJA concurring)
[1] On 5 September 2001
the appellant was convicted in a regional court of rape and on 26
October 2001 he was sentenced by the Venda
Provincial Division of the
High Court (Makgoba AJ sitting as court of first instance) to life
imprisonment, the matter having been
referred to that court in terms
of the provisions of the Criminal Law Amendment Act 105 of 1997 (the
minimum sentence legislation).
Seven years later the appellant
applied for leave to appeal from the court below. Leave to appeal was
granted to this Court only
on conviction and refused on sentence.
After an enquiry by this Court an obviously meritorious application
for leave to appeal
against the sentence was brought and granted.
[2] The appeal was heard
on 18 May 2012 and an order was made at the conclusion of the
hearing, with an indication that reasons
would follow. This is the
order that was made:
‘
1
The
appeal on conviction is dismissed.
2 The appeal on sentence is upheld.
3 The sentence imposed by the court
below is set aside and replaced by the following:
‘
The accused is sentenced to 10
(TEN) years’ imprisonment.’
4 In terms of
s 282
of the
Criminal
Procedure Act 51 of 1977
the sentence is ante-dated to 26 October
2001.’
What follows are the
reasons for the order.
[3] The complainant
recounted the following events. In the early hours of 1 January 1999
the complainant was celebrating New Year
with friends when she was
approached by the appellant. They knew each other. He was
romantically interested in her, but she did
not have a similar
inclination towards him. When he asked her about her feelings for him
she expressed her lack of interest. In
response he threatened to stab
her with a bottle he had in his hand, he slapped her and ordered her
to walk with him. He took her
to the grounds of a nearby primary
school where he again threatened to stab her, this time with a knife
he said he had in his pocket
and ordered her to undress. When she
refused, he slapped her. Because she was scared that he might stab
her, she then obeyed his
instructions to undress and lie down. He
proceeded to have sexual intercourse with her against her wishes. She
experienced pain
as a result of the intercourse and cried. He let her
go and walked her to her home, telling her that from then on they
were lovers.
[4] The complainant was
examined by a doctor later the same day. He found that her hymen was
freshly torn, the vestibule was a bit
swollen and that there was a
fresh abrasion on the faucet. He concluded that her genitalia ‘showed
evidence of recent penetration
by an object that might be a penis’.
This evidence corroborated the complainant’s allegation that
she was raped.
[5] According to the
appellant he wanted to have sexual intercourse with the complainant
that night. Together they walked to the
school where he asked her to
have intercourse, but she refused. Nevertheless, she proceeded to
take off her clothes, but he then
declined her. He denied that he had
intercourse with her at any stage. His version suggests that when he
wanted intercourse, she
did not, but moments later when she wanted
intercourse, he did not, however, later the same night someone had
intercourse with
her and she decided to falsely accuse him of rape
whilst willingly letting the real culprit go free. His version is
inherently
so improbable that it could not be accepted as being
reasonably possibly true. The magistrate and the court below,
rightly, came
to the conclusion that the complainant’s version
was reliable and was corroborated by the medical evidence and
therefore
that the appellant’s version was to be rejected.
[6] The magistrate
convicted the appellant of rape, ‘as charged’. The
charge-sheet reads:
‘
The accused is guilty of the
offence of rape in that upon or about the 1
st
day of January 1999 and at or near Madodonga Village in the
Tshilwavhusiku district in the Regional Division of Northern Province
the said accused did unlawfully and intentionally have sexual
intercourse with . . . a female person, without her consent.’
No mention is made of the
complainant’s age or the provisions of the minimum sentence
legislation. The obviously hearsay and
unreliable evidence by the
complainant that she was 12 years old at the time of the incident,
was gainsaid by the doctor who examined
her. His impression from her
physical development was that she might well have been older. The
State failed to tender reliable
evidence to resolve the uncertainty
regarding the complainant’s age.
[7] Therefore, when,
subsequent to conviction, the magistrate advised the appellant of his
rights and said that because the complainant
was 12 years old at the
time of the incident, the provisions of the minimum sentence
legislation compelling the imposition of life
imprisonment had to be
applied, he erred in two respects. First, the complainant was not
proved beyond reasonable doubt to have
been under the age of 16 years
at the time of the incident. Second, the State did not prosecute the
appellant for the rape of a
girl under the age of 16 years in terms
of
s 51(1)
read with
Part I
Schedule 2 of the minimum sentence
legislation. When the court below sentenced the appellant, it erred
in the same respects.
1
[8] The wording of the
minimum sentence legislation makes it clear that it applies to
persons
convicted
of the offences listed in
the schedules. The particular crime a person is convicted of is
therefore a jurisdictional fact essential
to the application of the
various sentences prescribed in the minimum sentence legislation. The
rape of a child under the age of
16 years resorts under
Part I
Schedule 2 and in terms of
s 51(1)
attracts a minimum sentence of
life imprisonment, unless substantial and compelling circumstances
are shown to exist that justify
the imposition of a lesser sentence.
2
[9] In
S
v Legoa
2003
(1) SACR 13
(SCA) the ratio of the decisions in
S
v Seleke
1976
(1) SA 675
(T) at 685A-D and
S
v Nziyane
2000
(1) SACR 605
(T) at 609d were approved. Cameron JA stated:
3
‘
These principles [stated in
Seleke
]
were illuminatingly applied in regard
to the 1997 statute’s minimum sentencing provisions in
S
v Nziyane
. There the
scheduled offence was possession of a semi-automatic weapon, which
for a first offender similarly carries a minimum
15-year sentence.
The charge-sheet averred possession of a Norinco pistol, and
specified that this was a semi-automatic weapon.
However, in its
verdict the trial court, though observing that it was common cause
that a Norinco pistol was in general a semi-automatic
weapon, failed
to make a specific finding to this effect. Only after the conviction
was entered did the State lead expert evidence
establishing that the
pistol the accused possessed was in fact semi-automatic. The Court
correctly laid emphasis on the 1997 Act’s
requirement that the
accused must be
convicted
of
the scheduled offence. The minimum sentencing provisions therefore
did not apply. Although the Legislature had not created new
offences,
it had to appear at conviction that elements in question were
present.’
[10] As the appellant was
not charged with nor convicted of the rape of a girl under the age of
16, the minimum sentence of life
imprisonment did not apply.
[11] Even if the evidence
that suggested that the complainant was under the age of 16 years
old, was acceptable, - which it was
not - it should not have resulted
in the imposition of a term of life imprisonment. Section 35 of the
Constitution 108 of 1996
provides for a fair trial for any accused
person. In order to secure a conviction that would involve the
minimum sentence legislation
compliance with fair trial requirements
is essential. To be informed, right at the outset of the trial, of
the charge faced, is
one of the demands of fairness that is not only
expressly mentioned in s 35(3)
(a)
of the
Constitution, but also written into s 84(1) of the Criminal Procedure
Act 51 of 1977 (the CPA).
4
[12] Infringements of the
right to a fair trial have formed the subject of many decisions of
this court. I intend to refer only
to some. In
Legoa
para 20 Cameron JA
stated:
‘
Under the common law it was
therefore “desirable” that the charge-sheet should set
out the facts the State intended
to prove in order to bring the
accused within an enhanced sentencing jurisdiction. It was not,
however, essential. The Constitutional
Court has emphasized that
under the new constitutional dispensation, the criterion for a just
criminal trial is “a concept
of substantive fairness which is
not to be equated with what might have passed muster in our criminal
courts before the Constitution
of the Republic of South Africa Act
108 of 1996 came into force”. The Bill of Rights specifies that
every accused has a right
to a fair trial. This right, the
Constitutional Court has said, is broader than the specific rights
set out in the sub-sections
of the Bill of Rights’ criminal
trial provision. One of those specific rights is “to be
informed of the charge with
sufficient detail to answer it”.
What the ability to “answer” a charge encompasses this
case does not require
us to determine. But under the constitutional
dispensation it can certainly be no less desirable than under the
common law that
the facts the State intends to prove to increase
sentencing jurisdiction under the 1997 statute should be clearly set
out in the
charge-sheet.’
[13] In
S
v Ndlovu
2003
(1) SACR 331
(SCA) para 12 Mpati JA concluded:
‘
The enquiry, therefore, is
whether, on a vigilant examination of the relevant circumstances, it
can be said that an accused had
had a fair trial. And I think it is
implicit in these observations that where the State intends to rely
upon the sentencing regime
created by the Act a fair trial will
generally demand that its intention pertinently be brought to the
attention of the accused
at the outset of the trial, if not in the
charge-sheet then in some other form, so that the accused is placed
in a position to
appreciate properly in good time the charge that he
faces as well as its possible consequences. Whether, or in what
circumstances,
it might suffice if it is brought to the attention of
the accused only during the course of the trial is not necessary to
decide
in the present case. It is sufficient to say that what will at
least be required is that the accused be given sufficient notice
of
the State’s intention to enable him to conduct his defence
properly.’
[14] At no stage prior to
his conviction was it brought to the appellant’s attention that
he could be sentenced by the high
court or that he could be sentenced
to life imprisonment. These possibilities were relevant to decisions
he made during the conduct
of his defence, particularly to conduct
his case after his legal representative withdrew during the cross
examination of the complainant.
[15] In view of the
charge-sheet, the evidence and the advice given to the appellant
during the trial he could only have been fairly
convicted and
sentenced of rape. The nature of the unfairness and irregular
sentencing procedure are such that it could be effectively
excised
from the proceedings in a manner that leaves a proper conviction for
rape in terms of the charge-sheet that satisfies the
demands of a
fair trial. Once that is done no failure of justice which demands the
setting aside of the conviction has occurred.
5
In terms of s 51(2)
(b)
of the
minimum sentence legislation such a conviction attracts a minimum
sentence of 10 years’ imprisonment in the absence
of
substantial and compelling circumstances. Even if no regard is had to
the minimum sentence legislation a discretionary sentence
of 10
years’ imprisonment would be appropriate in the circumstances.
The appellant has been incarcerated since he was sentenced,
almost 11
years ago. If he was not released on bail after his arrest on 2
January 1999, a fact not known to this Court, the period
stretches to
almost 13 years. To set aside the sentence and refer the matter back
for that purpose would compound the unfairness
that the appellant has
already suffered, as such a process could, at least potentially but
probably, take more than a year. These
circumstances demand that the
procedural injustices not be compounded but that substantial justice
be served by setting aside the
sentence and imposing a sentence that
would have been appropriate if the proceedings were fairly conducted.
A similar approach
was adopted in
Legoa
.
[16] For these reasons
the above stated order was made and conveyed to the relevant prison
where the appellant was incarcerated.
___________________ S
SNYDERS
Judge of Appeal
APPEARANCES:
For
the Appellant: A L Thomu
Instructed
by:
Thohoyandou
Justice Centre; Thohoyandou
Bloemfontein
Justice Centre, Bloemfontein
For the Respondent: R J
Makhera
Instructed by:
The
Director of Public Prosecutions, Thohoyandou
The
Director of Public Prosecutions, Bloemfontein
1
Prior
to the replacement of s 51 by Act 38 of 2007, regional courts had no
jurisdiction to sentence offenders convicted of such
a crime.
2
Section
51(3) of the minimum sentence legislation.
3
Para
24.
4
Section
35(3)(a) of the Constitution: ‘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 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.’
5
S
v Jaipal
[2005] ZACC 1
;
2005 (1) SACR 215
(CC) para 39;
S v Carter
2007
(2) SACR 415
(SCA).