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[2012] ZASCA 199
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S v Kolea (157/12) [2012] ZASCA 199; 2013 (1) SACR 409 (SCA) (30 November 2012)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 157/12
Reportable
In the matter
between:
JAN OOMPIE KOLEA
...........................................................................
Appellant
and
THE STATE
..........................................................................................
Respondent
Neutral citation
:
Jan Oompie Kolea v The State
(157/12)
[2010] ZASCA 199
(30
November 2012)
Coram:
MPATI
P, MTHIYANE DP, BRAND and SHONGWE JJA and MBHA AJA
Heard:
07
November 2012
Delivered:
30
November 2012
Summary:
Criminal
Procedure – appeal – conviction and sentence –
charge of rape with reference to the
Criminal Law Amendment Act 105
of 1997
–
s 51(2)
erroneously referred to instead of
s 51(1)
–
whether this was an irregularity which vitiated the sentence
proceedings.
__________________________________________________________________
ORDER
__________________________________________________________________
On appeal from:
Free State
High Court, Bloemfontein (Musi JP, Jordaan J and Murray AJ sitting as
Full Court):
The appeal against
both conviction and sentence is dismissed.
JUDGMENT
MBHA AJA (MPATI
P, MTHIYANE DP, BRAND and SHONGWE JJA concurring):
[1] The appellant
was convicted by the regional court Kroonstad, on one count of rape.
Thereafter the matter was referred to the
Free State High Court,
Bloemfontein, where Moloi J confirmed the conviction and imposed a
sentence of 15 years’ imprisonment.
On appeal against both
conviction and sentence to the Full Court, the matter came before
Musi JP, Jordaan J and Murray AJ, who
confirmed the conviction and
increased the appellant’s sentence to one of life imprisonment.
The further appeal against both
conviction and sentence, is with the
special leave of this court.
[2] The main issue
in this appeal is whether, on a charge of rape, a sentencing court is
precluded from imposing a life sentence
– or from referring the
matter to a higher court for consideration of that sentence –
solely on the basis that the
charge sheet refers to
s 51(2)
instead of s 51(1) of the Criminal Law Amendment Act 105 of 1997
(the Act). The issue arises in circumstances where the evidence
established that the victim was raped more than once by more than one
person. It arises because s 51(2) of the Act provides
for the
imposition of a minimum sentence of 10 year’s imprisonment in
respect of a first offender while s 51(1) prescribes
a minimum
sentence of life imprisonment.
[3] The appellant
was originally charged in the regional court, Kroonstad with one
count of rape, read with the provisions of s
51(2) of the Act. He
pleaded not guilty but after hearing evidence, the magistrate
convicted him as charged. In convicting the
appellant, the magistrate
accepted the complainant’s evidence that she was raped more
than once by both the appellant and
a co-perpetrator who managed to
evade arrest.
[4] After convicting
the appellant, the magistrate informed him that as he was liable to
be sentenced to life imprisonment, which
sentence was beyond the
jurisdiction of the court, he was accordingly transferring the matter
to the high court in terms of s 52
of the Act. Hence the matter came
before Moloi J who, having found that there were substantial and
compelling circumstances present
justifying a departure from the
sentence of life imprisonment prescribed by s 51(1) of the Act,
sentenced the appellant to 15 years’
imprisonment. He
subsequently granted the appellant leave to appeal to the Full Court
against the conviction and the sentence.
The Full Court dismissed the
appellant’s appeal against conviction, and upheld the
respondent’s cross appeal which
was based on the contention
that there were no substantial and compelling circumstances, present.
It accordingly sentenced the
appellant to life imprisonment in terms
of s 51(1) of the Act.
[5]
Section 51(1), (2) and (3) of the Act provide that:
‘
(1)
Notwithstanding any other law, but subject to subsections (3) and
(6), a regional court or a High Court shall sentence a person
it has
convicted of an offence referred to in Part I of Schedule 2 to
imprisonment for life.
(2) Notwithstanding
any other law but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person
who has been convicted
of an offence referred to in–
(a)
Part II
of Schedule 2, in the case of–
(i) a first
offender, to imprisonment for a period not less than 15 years;
. . .
(b)
Part III
of Schedule 2, in the case of–
(i) a first
offender, to imprisonment for a period not less than 10 years;
. . .
(c)
Part IV
of Schedule 2, in the case of–
(i) a first
offender, to imprisonment for a period not less than 5 years;
. . .
(3)
(a)
If any
court referred to in subsection (1) or (2) is satisfied that
substantial and compelling circumstances exist which justify
the
imposition of a lesser sentence than the sentence prescribed in those
subsections, it shall enter those circumstances on the
record of the
proceedings and must thereupon impose such lesser sentence: Provided
that if a regional court imposes such a lesser
sentence in respect of
an offence referred to in Part 1 of Schedule 2, it shall have
jurisdiction to impose a term of imprisonment
for a period not
exceeding 30 years.’
Part I of Schedule 2
includes:
‘
Rape
. . .–
(a)
when
committed–
(i) in circumstances
where the victim was raped more than once whether by the accused or
by any co-perpetrator or accomplice;
(ii) by more than
one person, where such persons acted in the execution or furtherance
of a common purpose or conspiracy;
. . .’
Part III of Schedule
2 provides: ‘Rape. . . in circumstances other than those
referred to in Part I’.
[6] In this court it
was contended on behalf of the appellant that as he was charged and
convicted under s 51(2) of the Act, it
was not thereafter open to the
respondent to invoke a completely different sub-section, ie s 51(1),
which provides for a more severe
sentence. It was contended further
that the regional court was competent to impose a sentence in terms
of s 51(2) of the Act, read
with Part III of Schedule 2, and had no
authority to refer the matter to the high court for sentencing.
Counsel for the appellant
submitted that the referral and the
invocation of the provisions of s 51(1) constituted an irregularity
which was so gross and
so unfair that it vitiated the proceedings,
with the consequence that the sentence should be set aside and
substituted with a sentence
under s 51(2), which is 10 years’
imprisonment.
[7]
The accused’s right to be informed of the charge he is facing,
and which must contain sufficient detail to enable him
or her to
answer it, is underpinned by s 35(3)
(a)
of the Constitution, which provides
that every accused person has a right to a fair trial. The objective
is not only to avoid a
trial by ambush, but also to enable the
accused to prepare adequately for the trial and to decide, inter
alia, whether or not to
engage legal representation, how to plead to
the charge and which witnesses to call. It follows that if the State
intends to rely
on the minimum sentencing regime created in the Act,
this should be brought to the attention of the accused at the outset
of the
trial. The question which must be answered though, is what
does sufficient detail in the charge entail.
[8]
In
S v Legoa
,
1
Cameron JA held that under the common
law it was desirable, but not essential, that the charge sheet should
set out the facts the
State intended to prove in order to bring the
accused within a minimum sentencing jurisdiction. Referring to the
Bill of Rights,
he said that one of the specific rights referred to
therein is to be informed of the charge with sufficient detail so as
to enable
an accused to answer to it. Although Cameron JA did not
elaborate on what this exactly meant, he emphasised that, under the
current
constitutional dispensation it could be no less desirable
than under the common law that the facts which the State intended to
rely on for an increased sentence under the Act, should be clearly
set out in the charge sheet. Significantly, his expressed view
was
that the matter was one of substance and not form. He was therefore
reluctant to lay down a general rule that the charge sheet
must
in every case recite
either the specific form of the scheduled offence, or the facts the
State intended to prove to invoke a particular
provision of the Act.
[9]
In
S v Seleke
2
(referred to by Cameron JA) it was
held that although it was desirable for a charge to contain a
reference to a penalty, this was
not essential, and that the ultimate
test was whether the accused had had a fair trial. And the presence
of prejudice to the accused
will point to an unfair trial. Thus the
question that should be posed should be the following: Did the
appellant have a fair trial
and more specifically, was the appellant
sufficiently apprised of the charge he or she was facing and was he
or she informed in
good time, of any likelihood of his or her being
subjected to any enhanced punishment in terms of the applicable
legislation. This
of necessity, entails a fact based enquiry into the
entire proceedings of the trial.
[10]
Mpati JA, in
S v
Ndlovu
3
endorsed this approach, stating:
‘
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’.
The
court, however, left open the question whether, or in what
circumstances, it might suffice if the charge and its possible
consequences
were brought to the attention of the accused during the
course of the trial. What is clear, however, is that the court never
expressly
ruled as improper or irregular the fact that possible
consequences of an offence were never spelt out to the accused at the
commencement
of the trial. As Ponnan JA recently said in his minority
judgment in
S v
Mashinini
:
4
‘
I
have been at pains to stress, as enjoined by the authorities to which
I have referred, that a fair-trial enquiry does not occur
in vacuo,
but that it is first and foremost a fact-based enquiry. And, as I
have already stated any conclusion as may be arrived
at requires a
vigilant examination of all the relevant circumstances.’
[11] In this case,
the State’s intention to rely on and invoke the minimum
sentencing provisions was made clear from the outset.
The charge
sheet expressly recorded that the appellant was charged with the
offence of rape, read together with the provisions
of s 51(2) of the
Act. I am accordingly satisfied that the appellant, who was legally
represented throughout the trial, well knew
of the charge he had to
meet and that the State intended to rely on the minimum sentencing
regime created in the Act.
[12] On advising the
appellant that his case was being referred to the high court for
sentencing, the magistrate stated:
‘
In
die lig daarvan dat die klaagster deur meer as een persoon verkrag
is, is die hof van oordeel dat die hof nie oor die regsbevoegdheid
beskik om die beskuldigde te vonnis nie, aangesien‘n vonnis van
lewenslank oorweeg moet word. In terme van artikel 52, Wet
105 van
1997 word die saak dan oorgeplaas vir vonnisdoeleindes na die
hooggeregshof.’
Significantly, there
was no objection to the fact that the matter was now being
transferred to the high court and to the prospect
of a sentence of
life imprisonment being imposed on the appellant as provided for in s
51(1) – and not s 51(2) –
of the Act.
[13] Before Moloi J,
and subsequently before the Full Court, there was no objection to the
indictment or the summary of substantial
facts. On the contrary, the
appellant’s counsel readily conceded, in both courts and
without demur, that the appellant had
been properly convicted.
[14] During the
entire process up to the time the Full Court dismissed the
appellant’s appeal against conviction; upheld the
respondent’s
cross-appeal; and imposed life imprisonment on the appellant in terms
of s 51(1) of the Act, there was never
any complaint by the appellant
that he was in any way prejudiced in the conduct of the proceedings.
Furthermore, he pleaded not
guilty to the charge and fully
participated in the trial. In the end, he was convicted in accordance
with the evidence that was
led in relation to the charge of rape. It
has not been demonstrated that the appellant would have acted
differently, had the mistake
not been made in the charge sheet.
[15] In argument
before us, the appellant’s counsel conceded that the complaint
based on the proposition that the appellant
was sentenced under the
wrong section was raised for the first time in this court. He also
conceded that the complaint was inspired
by the judgment of the
majority in
S v Mashinini
(supra), the rationale of which I
now turn to consider. The facts of that case were briefly that the
two appellants and their two
co-perpetrators were charged in the
regional court with rape, read with the provisions of s 51(2) of the
Act. They pleaded guilty
to the charge but in their separate
statements made in terms of
s 112(2)
of the
Criminal Procedure Act 51
of 1977
, they admitted that all four of them had raped the
complainant. After they were convicted, their case was transferred to
the high
court which, after confirming the convictions, sentenced
each one of them to life imprisonment. On appeal, the majority (per
Mhlantla
JA, with Bosielo JA concurring), set aside the sentence of
life imprisonment imposed on the appellants, and substituted it with
a sentence of 10 years’ imprisonment.
[16] In upholding
the appeal against sentence, the majority found that (a) in terms of
s 51(2)
read with
Part III
of Schedule 2 of the Act, which provides
for a minimum sentence to be imposed for rape of the aggravated kind
provided for in Part
I of Schedule 2, the appellants, who were first
offenders, were liable to be sentenced to a maximum sentence of 10
years’
imprisonment; (b) the appellants were originally charged
under s 51(2) but were incorrectly and unfairly sentenced under s
51(1)
and for an offence different to the one for which they were
convicted, and (c) as the State had decided to restrict itself to s
51(2) when formulating the charge sheet, it was not thereafter open
to it to invoke a different section for the purpose of sentence
unless it had sought and obtained an amendment to the charge sheet in
terms of
section 86
of the
Criminal Procedure Act.
[17
]
In my view the majority, with respect, misread the provisions of
s
51(2).
The term of 10 years’ imprisonment referred to therein
is the minimum sentence that can be imposed. This means that any
sentence
in excess of 10 years’ imprisonment, and possibly even
life imprisonment, could be imposed by a court having jurisdiction
to
do so. Furthermore, the fact that a statute provides for an increased
sentence with reference to a particular type of offence
when
committed under particular circumstances does not mean that a
different offence has been created thereby. In
S
v Moloto,
Rumpff
CJ
5
held that, where an accused is
charged with robbery committed with aggravating circumstances, this
did not create a new category
of robbery but simply meant that the
court had a discretion, where such aggravating circumstances existed,
to impose the increased
sentence in terms of
s 277(1)
(c)
of the
Criminal Procedure Act, in
that case the death penalty. The fact that the Act specifies
penalties in respect of certain offences (in this case rape, where
more than one person raped the victim), does not in any way mean that
a new type of offence has been created. Rape remains rape,
but the
Act provides for a more severe sanction where, for example, the
victim has been raped more than once or by more than one
person.
[18]
Section 86(4)
of the
Criminal Procedure Act provides
that the fact
that a charge is not amended as provided in this section, shall not,
unless the court refuses to allow the amendment,
affect the validity
of the proceedings. A reading of this section establishes that a
formal application to amend a charge sheet
is not always required.
The fact that the charge sheet had a defect which was never rectified
in terms of
s 86(1)
, as was the case both in
Mashinini
and in this case, did not of its own
render the proceedings invalid.
6
The test is always whether or not the
accused suffered any prejudice.
[19]
A close investigation of the circumstances in
Mashinini
reveals that s 51(2) of the Act was
erroneously typed instead of s 51(1) of the Act; that the appellants
were correctly apprised
of the applicability of the increased penalty
provisions of the Act; that they pleaded guilty to a charge involving
multiple rape
which, in any event, is not even applicable to s 51(2);
that they never complained of, nor showed that they had suffered, any
prejudice;
and that they participated fully in the trial. In view of
what I have said above, I believe that the appellants in that case
were
not in any way prejudiced by the erroneous reference to s 51(2)
instead of s 51(1) in the charge sheet. I am therefore satisfied
that
the conclusion at which the majority arrived in
Mashinini
was clearly wrong.
[20]
Finally, it must always be borne in mind that the concept of fairness
connotes fairness to both the accused and the complainant
or the
public as represented by the State. As the Constitutional Court
pointedly remarked in
S
v Jaipal
:
7
‘
The right of an accused to a
fair trial requires fairness to the accused, as well as fairness to
the public as represented by the
State. It has to instil confidence
in the criminal justice system with the public, including those close
to the accused, as well
as those distressed by the audacity and
horror of crime.’
[21] I now turn to
consider the appeal against conviction in this case. Although in the
heads of argument it was contended that
the identification of the
appellant by the complainant was in dispute, this aspect was not
seriously pursued during argument. The
complainant testified that she
was attacked by the appellant, a person well known
to her, and his
co-perpetrator. The area around where the perpetrators attacked and
grabbed her was well lit; so she was able to
have a good look at the
appellant’s face. They dragged her to an open veld where they
took turns to rape her. After raping
her in the veld, the
perpetrators forced her to accompany them. When they arrived at a
certain shack, which she knew was where
the appellant resided, they
again took turns to rape her. She testified further that during this
ordeal, there was a knock on the
door of the main house and later the
shack. The appellant went outside to speak to the people who were
knocking and they turned
out to be her daughter and the latter’s
friends who had come there to look for her. The appellant lied to
them saying that
she was not there and they went away. Upon his
return to the shack, the appellant told his co-perpetrator that as
there were people
looking for her, they had to let her go. They then
escorted her half way to her home.
[22] In his
testimony, the appellant confirmed that during the said evening the
complainant’s daughter and her friends did
arrive at his shack
looking for the complainant. However, he denied that the complainant
ever came to his shack. In my view, the
complainant’s version
finds corroboration in the appellant’s testimony particularly
with regard to what transpired
when there was a knock at the door of
the appellant’s shack. This proves that she was indeed with the
appellant and his co-perpetrator
in his shack during the night in
question. In argument, appellant’s counsel conceded that the
complainant was able to properly
identify the appellant while inside
the shack as, inter alia, the electric light inside was on.
[23] It being
undisputed that the complainant was raped that evening, I do not have
the slightest hesitation to find that the appellant
was positively
identified as the person who, together with a co-perpetrator, took
turns to rape her. The Full Court correctly dismissed
the appellant’s
appeal against conviction.
[24] Regarding the
sentence, the Full Court correctly found that Moloi J erred in
finding that there were substantial and compelling
circumstances in
this case without specifically recording the factors relied upon for
such a finding as is required by s 51(3)
of the Act. That sub-section
stipulates that where the court finds that substantial and compelling
circumstances are present, these
must be entered into the record of
the proceedings. Moloi J never indicated in his judgment what those
circumstances were.
[25] The Full Court
considered the appellant’s personal circumstances, namely, that
he was 23 years old and still young, that
he had been employed and
earned R1200 per month, and that although he had previous
convictions, they were all more than 10 years
old and none involved
rape. However, it correctly found that there were aggravating
circumstances in the case, namely, that the
complainant, a 48 year
old woman, was raped by the two men who each raped her more than
once; that she was dragged through the
night to a veld and later
forced to accompany them to the appellant’s shack; that she was
threatened with death; that she
continuously pleaded with her
assailants to spare her life as she had young children; and that she
was a widow. In addition, when
the complainant’s daughter and
her friends came to the appellant’s shack looking for her, the
appellant deviously misled
them by saying she was not there when he
knew that the complainant was inside his shack. The entire ordeal
traumatised her and
also adversely affected her relationship with
men. The Full Court also noted that the appellant had not shown any
remorse whatsoever.
[26] I find that the
Full Court correctly upheld the respondent’s cross-appeal and
properly imposed life imprisonment on the
appellant, and that the
entire appeal falls to be dismissed.
[27] In the
circumstances I make the following order:
The appeal against
both conviction and sentence is dismissed.
_____________________
BH Mbha
Acting Judge of
Appeal
APPEARANCES
For Appellant: PW
Nel
Instructed by:
Justice Centre,
Bloemfontein
For Respondent: JHS
Hiemstra
Instructed by:
Director of Public
Prosecutions, Bloemfontein
1
S
v Legoa
2003 (1) SACR
13
(SCA).
2
S
v Seleke
1976
(1) SA 675
(T).
3
S
v Ndlovu
2003 (1)
SACR 331
(SCA) para 12.
4
S
v Mashinini
2012 (1)
SACR 604
(SCA) para 51.
5
S
v Moloto
1982 (1) SA
844
(A) at 850.
6
E
du Toit, F J de Jager, A Paizes, A S Skeen and S van der Merwe
Commentary on the
Criminal Procedure Act
at
14-21.
7
S
v Jaipal
[2005] ZACC 1
;
2005 (1)
SACR 215
(CC), para 29