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[2023] ZAFSHC 319
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Khumalo v S (A111/2018) [2023] ZAFSHC 319; 2023 (2) SACR 323 (FB) (8 August 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case no A111/2018
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
CIRCULATE TO MAGISTRATES:
YES
In
the matter between:
MEHLO
KHUMALO
Appellant
and
THE
STATE
Respondent
CORUM:
DAFFUE et CHESIWE JJ
JUDGMENT
BY:
JP
DAFFUE J
HEARD
ON:
05 JUNE 2023
DELIVERED
ON:
08 AUGUST 2023
This judgment was handed
down electronically by circulation to the parties’
representatives by email, and release to SAFLII.
The date and
time for hand-down is deemed to be 14h00 on 08 August 2023.
ORDER
On
appeal from
: The regional court,
sitting in Bloemfontein:
1.
The appellant’s appeal against his
conviction is dismissed.
2.
The appeal against the sentence is upheld.
3.
The sentence of the court
a
quo
is set aside and replaced with the
following sentence:
‘
1.
The accused is sentenced to 22 years’ imprisonment.
2.
The accused’s name shall be included in the register for sexual
offenders as provided
for in
s 50(1)(a)(i)
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007
.
3.
The sentence is ante-dated to 26 September 2016.’
JUDGMENT
Introduction
[1]
On
16 September 2016 the appellant was convicted in the regional court,
Bloemfontein (the court
a
quo
)
of the rape of a 7-year old girl exactly three years earlier. On 26
September 2016 he was sentenced to life imprisonment based
on the
conclusion that subsec 51(1) of the Criminal Law Amendment Act 105 of
1997 (the Minimum Sentences Act) applied. The court
a
quo
also ordered that the appellant’s name be included in the
register for sexual offenders. It incorrectly referred to subsec
51(1)(a)(i) instead of
s 50(1)(a)(i)
of the
Criminal Law Amendment
Act (Sexual
Offences and Related Matters) Act 32 of 2007. The
appellant appealed against his conviction and sentence in accordance
with his
automatic right of appeal.
[1]
The grounds of appeal
[2]
The appellant raised the following grounds
of appeal:
a.
the two witnesses, Mr Moses Leballo (Mr
Leballo) and Mr Tankiso William Mokapane (Mr Mokapane) contradicted
each other in material
respects;
b.
the first State witness, Mr Mokapane not
only contradicted Mr Leballo, but his oral evidence is contradicted
by his witness statement;
c.
the court
a
quo
incorrectly accepted that Dr
Coetzee, who was called as an expert witness, but who did not examine
the complainant, concluded that
the offence of rape could have been
committed notwithstanding the absence of injuries;
d.
the court erred in not taking into
consideration that no DNA evidence linked the appellant with the
complainant, rejecting the appellant’s
version insofar it did
not take the totality of evidence into consideration and
over-emphasised minor discrepancies in the appellant’s
version;
e.
pertaining to sentence, it is alleged that
the sentence of life imprisonment was shockingly inappropriate, that
the court
a quo
over-emphasised the seriousness of the offence and disregarded the
appellant’s personal circumstances.
Delay in the court a
quo
[3]
It is apposite to quote the Norms and
Standards issued by the Chief Justice pertaining to finalisation of
criminal cases:
‘
Finalisation
of all matters before a Judicial Officer
All Judicial Officers
must strive to finalise all matters, including outstanding judgments,
decisions or orders as expeditiously
as possible. It is noted that
some cases may, due to the complexity and magnitude thereof, take
longer to finalise than the norms
set out herein.
(i)
…
.
(ii)
Finalisation of criminal cases
(a)
In order to give effect to an accused
person’s right to a speedy trial enshrined in the Constitution,
every effort shall be
made to bring the accused to trial as soon as
possible after the accused’s arrest and first appearance in
court.
(b)
The Judicial Officer must ensure that every
accused person pleads to the charge within 3 months from the date of
first appearance
in the Magistrates’ court. To this end
Judicial Officers shall strive to finalise criminal matters within 6
months after
the accused has pleaded to the charge.
(c)
All Judicial Officers are enjoined to take
a pro-active stance to invoke all relevant legislation to avoid
lengthy periods of incarceration
of accused persons whilst awaiting
trial.’
[4]
It may be argued that the Norms and
Standards are overly ambitious as the time frames do not accord with
reality. However, this
is yet again one of those cases where the
finalisation of a criminal case with relatively simple facts was
delayed for nearly 3
years. This is not an isolated case as it is
often experienced in appeals that cases in the lower courts are
clearly not properly
case-managed. I am of the view that it is
apposite to set out the following obtained from the court
a
quo’s
minutes:
a.
28 October 2013 – appellant’s
first appearance in the magistrate’s court.
b.
11 November 2013 – the matter was
postponed to 13 January 2014 for appellant’s appearance in the
regional court.
c.
13 January 2014 – first appearance in
the regional court when annexure B to which I shall refer later
herein was completed.
d.
19 May 2014 – no State witnesses
attended the court proceedings; the matter was postponed for plea and
trial; a s 342A warning
was recorded.
e.
09 June 2014 – the charge was put to
the appellant who pleaded not guilty; as will be pointed out later,
exhibits A and B
were handed in by agreement; the matter was
postponed and the one State witness present, Ms Katriena Mfazwe, was
warned to appear
at the next hearing.
f.
08 July 2014 – Adv Diba on behalf of
the appellant could not proceed as he was awaiting further
particulars.
g.
04 August 2014 – further particulars
still outstanding.
h.
11 August 2014 – further particulars
received; matter postponed for trial.
i.
17 November 2014 – the State’s
first witness, Mr Tankiso William Mokapane testified.
j.
09 March 2015 – State witnesses
absent and the matter was postponed.
k.
29 May 2015 – the court
a
quo
convened just after 12h00 as it had
to conduct the civil roll; the 9-year old complainant was present,
but a postponement was requested
by the State and granted without
objection. At this stage 15 months have lapsed since the appellant’s
first appearance in
the regional court. By then the appellant who
stayed in Botshabello, 60 km from Bloemfontein and worked in the
Eastern Free State,
had to travel to Bloemfontein nine times, in all
probability having to take leave each day and travelling hundreds of
kilometres
in total.
l.
13 July 2015 – the appellant was
absent and a warrant of arrest was issued.
m.
27 July 2015 – the appellant was
still absent and his bail was finally forfeited.
n.
28 July 2015 – the appellant
turned-up at court and the matter was adjourned by another presiding
officer.
o.
03 August 2015 – the appellant
appeared and indicated that he would apply for Legal Aid again; he
was warned to appear on
the next date.
p.
14 August 2015 – the appellant
represented by his previous legal representative appeared; the matter
was merely postponed.
q.
28 August 2015 – the appellant
appeared, but the case could not proceed as it was pushed out; it was
also recorded that the
court record had to be transcribed.
r.
29 September 2015 – the matter was
again postponed by a different presiding officer and from this date
onwards, Mr Rwaxa was
on record as the legal representative of the
appellant.
s.
05 October 2015 – on this date it was
recorded that there was a problem with the transcription in court 18.
t.
28 October 2015 – the matter was
again postponed because the court record was still not available.
u.
09 November 2015 – it was recorded
that problems were still experienced with the court record.
v.
23 November 2015 – the court record
was obtained and the matter was postponed for trial to 17 and 19
February 2016.
w.
17 February 2016 – the Digital Court
Recording System (DCRS-machine) was out of order and the State
prosecutor indicated that
he was not available on the next day, to
wit 19 February 2016; the defence did not have objection with the
postponement, although
by then more than 2 years have lapsed from the
first appearance in the regional court.
x.
15 April 2016 – the appellant was
absent and a warrant of arrest was issued.
y.
20 April 2016 – the appellant
appeared and notwithstanding his explanation, the matter was
postponed whilst he remained in
custody.
z.
04 May 2016 – the appellant indicated
that he would apply for bail.
aa.
11 May, 17 May and 24 May 2016 – the
bail proceedings continued before a different magistrate and bail was
refused.
bb.
03 June 2016 – the appellant appeared
whilst still in custody. The State prosecutor could not proceed due
to illness.
cc.
10 June 2016 – the matter was
postponed as a priority case to 15 June 2016.
dd.
15 June 2016 – the complainant –
a little girl not yet 10-years old – testified; after her
examination in chief
and before 11h30 that day, the appellant’s
legal representative asked for a postponement in order to
cross-examine which
application was granted without any objection
from the prosecutor and without any enquiry from the court
a
quo
.
ee.
20 June 2016 – the complainant’s
cross-examination was finalised where after Mr Moses Leballo was
called to testify
as the State’s third witness.
ff.
27 June 2016 – Dr JM Coetzee
testified on behalf of the State where after the State’s case
was closed and the appellant
was called to testify.
gg.
29 June 2016 – the appellant’s
cross-examination continued on this day for a relatively short period
ex facie
the record; the presiding magistrate greeted the appellant with the
words ‘Good afternoon, Sir’ before his cross-examination
continued, this being indicative that the case proceeded during the
afternoon only.
hh.
01 July 2016 – the appellant was
further cross-examined on this day, when a view questions were put to
him, where after the
defence closed its case.
ii.
13 July 2016 – although the matter
was postponed to this day for argument, the prosecutor did not attend
due to illness.
jj.
20, 22 and 25 July 2016 – the
transcribed record is not in line with the minutes of the court
a
quo
, but it is apparent that the matter
was postponed to these three dates for argument.
kk.
29 July 2016 – the court
a
quo
was not ready with its judgment and
the matter was postponed.
ll.
26 August 2016 – the court
a
quo
was not ready with its judgment.
mm.
02 September 2016 – the court
a
quo
was not ready with its judgment.
nn.
05 September 2016 – the court
a
quo
was not ready with its judgment.
oo.
07 September 2016 – the DCRS machine
was out of order.
pp.
09 September 2016 – judgment was not
delivered as the court
a quo
was involved in a part-heard matter.
qq.
16 September 2016 – judgment was
delivered.
rr.
19 September 2016 – submissions
delivered in respect of mitigating and aggravating circumstances.
ss.
21 September 2016 – the DCRS machine
was out of order.
tt.
23 September 2016 – the presiding
magistrate was not available and the matter was postponed by a
different magistrate to 26
September 2016.
uu.
26 September 2016 – sentence imposed.
[5]
I
whole-heartedly accept that our lower courts are overloaded,
especially with matters dealing with sexual offences. The court
a
quo’s
factual exposition
[2]
cannot be
disregarded. However, much more can and should be done to improve
case management. All relevant role players should play
their part in
ensuring finalisation of cases sooner than later. This is a typical
case that could have been finalised much earlier.
The three State
witnesses are from Dewetsdorp and the expert called by the State is
from Bloemfontein. There is no explanation
why all the witnesses
could not have testified in 2014. The presiding magistrate should
have investigated the delays at an early
stage in accordance with s
342A to enable him to issue an appropriate order. I accept that the
appellant is also to be blamed for
the delays from the middle of
2015.
Delay in prosecution
of the appeal
[6]
I investigated the reasons for the delay
pertaining to the finalisation of the appeal. The following has been
established. On 29
September 2016 Mr Rwaxa, an attorney in the employ
of Legal Aid South Africa, filed the appellant’s notice of
appeal. On
07 March 2018 the court
a quo
certified the appeal record as true and correct. The court
a
quo’s
minutes, including the J15
and annexures thereto, together with the transcribed record were
filed with the registrar of the high
court on 18 June 2018.
Appeal number A111/2018 was allocated to the appeal.
[7]
The appeal was initially allocated to
Jordaan and Molitsoane JJ for hearing on 22 October 2018. On that day
the appeal was removed
from the roll due to an incomplete record. The
accused’s cross-examination on 01 July 2016 did not form part
of the record.
On 29 October 2018 the appeal clerk of the high court
directed the clerk of the lower court to ensure that a complete
record is
supplied. On 13 December 2022 - four years later - a
supplementary record was received by the high court. On 22 February
2023 this
appeal was placed on the roll for argument on 05 June 2023,
where after it was allocated to my colleague Chesiwe J and me.
Evaluation of the
evidence and the court a quo’s judgment
[8]
On
9 June 2014 the appellant pleaded not guilty. He did not make any
plea explanation, save to deny that he committed the offence
as
alleged in the charge sheet. Thereupon the following documents were
handed in by agreement: the birth certificate of the complainant
[3]
and the J88 medical report as exhibit B
[4]
.
These documents were admitted in terms of the provisions of s 220 of
the Criminal Procedure Act 51 of 1977 (the CPA). At that
stage, Adv
Diba, the appellant’s legal representative, placed on record
that the medical examination documented in the J88
report confirmed
the appellant’s version that rape did not take place as no
penetration was reflected.
[9]
The court
a
quo
accepted that there were
contradictions in the State’s case, but made the point that due
to the late hour of the day it was
not deemed necessary to deal with
these in any detail. It is therefore required of me to consider the
evidence in order to establish
whether the State has proven its case
beyond reasonable doubt in order for the appeal against conviction to
be dismissed.
[10]
The complainant testified through an
intermediary on 15 June 2016 and on 20 June 2016. She was the State’s
second witness
and not the first witness as the court
a
quo
incorrectly indicated.
Ex
facie
exhibit A, she was born on 24
August 2006 which means that she was two months shy of 10 years at
the time when she testified. The
court
a
quo
was satisfied with the evidence of
the complainant. It regarded her as a good witness who had made an
‘excellent impression’.
The complainant testified how it
came about that she met the appellant. The prosecutor did not lead
the complainant’s evidence
coherently. A much more coherent
version is found during the cross-examination of the complainant.
However, she explained during
examination in chief how she met the
appellant near a shop and that he promised to buy her a cold drink.
The appellant pulled her
by her hand and dragged her towards the hill
(referred to by her as the mountain). There the appellant took off
her as well as
his own trousers. He let her lay down on her back
where after he spat on her private parts as well as his penis.
Instead of allowing
the complainant to testify
viva
voce
about the incident, she was
requested to make use of a male and female doll in order to explain
what has occurred to her. Whilst
demonstrating by making use of the
two dolls what the appellant had done to her, the court
a
quo
recorded the demonstration with the
consent of the parties. There can be no doubt the witness
demonstrated that she had been raped.
She initially felt pain which
subsided. After a while two male persons appeared whilst she was
still not dressed. The appellant
informed the two male persons that
her sister had taken his money, but she denied that. Her mother and
her employer also arrived
at the scene, but at that time she was
already dressed. Her brother, who was also called to the scene,
assaulted the appellant
by hitting him with ‘bushes’
(apparently tree branches) referred to by the complainant as
‘bossies’ in
Afrikaans. Her mother called the police.
They were taken away by the police and the appellant was locked up.
When asked how she
felt, she said the following ‘I am not
feeling okay your Worship … Because they did bad things to me
…’.
[11]
During cross-examination she testified that
she was on her way from school to her home when the appellant called
her and said that
they should go to the shop as he was going to buy
her a cold drink. At a stage the appellant took her hand and pulled
her towards
the hill, notwithstanding the fact that she was resisting
and crying. There he undressed her as well as himself by taken off
their
trousers. She explained the spitting again, where after the
appellant inserted his penis inside her vagina whilst making ‘funny
things’ to her and also referring to it as ‘bad things’.
Although she felt pain initially, she did not suffer
any injuries or
feel pain afterwards.
[12]
During her cross-examination the appellant
put himself on the scene as is apparent from the statements made to
the complainant.
It was initially put to her that the appellant
bought her chips, but when she denied this, the statement was changed
whereupon
it was stated to the complainant that the appellant
actually gave her R7 which she admitted. On the appellant’s
version,
he walked away whilst the complainant followed him. She
denied this. It was stated on the appellant’s behalf that he
went
to the hill and sat in the shade next to a bush in order to mix
his chemicals and that the complainant was sitting in the veld in
close proximity to him. She denied this. It was also put to the
witness that people came to assault him, which she admitted. Although
the appellant denied ever touching the complainant, she was adamant
that he inserted his penis into her vagina. She also denied
that she
voluntarily followed him from the shop to the hill.
[13]
Mr Mokapane was called as the State’s
first witness and not the second witness as the court
a
quo
incorrectly remarked. He testified
already on 17 November 2014. When crossing the hill from the one
township to the other, he noticed
a man and a child who were both
undressed. He pointed out the appellant in the witness box as the
male person witnessed by him.
Both the appellant and the girl’s
trousers and her panty were pulled down to their knees. The
appellant, was lying
on top of the little girl, making up and down
movements. Being afraid, he did not intervene, but went to fetch a
friend. He met
this friend, the third State witness, Mr Moses
Leballo, who was on his way up the hill and reported to him what he
had witnessed.
They went to the scene. Upon their arrival the
appellant stood up from his position on top of the girl and pulled up
his pants.
The witness explained that the appellant and the girl were
on the other side of the tree which made it difficult for them to
observe
at that stage. His
viva voce
version differs from the witness statement made to the police on the
same day that the rape allegedly occurred. In that statement
he did
not mention the events as described in court when he came on the
scene the first time. According to his witness statement
the alleged
rape incident occurred when he came to the scene the second time.
Obviously, this is not only an internal contradiction,
but also in
contradiction of the version of Mr Leballo to which I shall return
later. The witness statement was proven and handed
in as exhibit C.
The witness asked the complainant where she was staying and when she
explained, he went to fetch her older brother
who upon his arrival
started to assault the appellant where after other bystanders joined
in as well. Notwithstanding severe cross-examination
the witness was
adamant that he found the appellant on top of the complainant.
[14]
Mr Leballo confirmed that his friend, Mr
Mokapane, met him and told him that he should come and assist him as
there was something
that he did not understand. He took him to a
place which was not far from where they met. When they came to the
place pointed out
by Mr Mokapane, he saw a male person appearing from
behind a tree. This person said to them, ‘Guys how much do you
want?
Can I give you money?’. This evidence is in line with the
version of Mr Mokapane. The appellant appeared to be confused and
in
shock. Hereafter the witness realised that there was a little girl
standing next to the appellant. The girl was half naked from
the
waist downwards. Her trousers were pulled down although not
completely taken off. He confirmed that the girl that he saw on
the
hill was the same one that came with him with the police from
Dewetsdorp to Bloemfontein for the trial. He also confirmed that
the
appellant was assaulted by members of the public using tree branches
as he was trying to run away. In cross-examination he
stated that Mr
Mokapane merely told him that he saw a man and a little girl at the
tree and nothing more. The appellant was fully
dressed when they
arrived at the scene. He did not see the appellant on top of the
girl. A strange statement was made to Mr Leballo
on behalf of the
appellant to the effect that Mr Leballo was the one that took the
appellant’s phone and ran away. This was
obviously denied. Mr
Leballo testified earlier that he used his phone to call the police.
The differences in the versions of the
two gentlemen can be
explained. Mr Mokapane knew where he had last seen the appellant and
the complainant, whilst Mr Leballo would
not know exactly where to
look. Clearly shrubs and/or trees would have hampered proper
observation. If nothing untoward occurred
initially, Mr Mokapane’s
would have no reason to look for help. Mr Mokapane’s version
was correctly accepted by the
court
a
quo
insofar as the versions of these
two witnesses differed.
[15]
Dr JM Coetzee was called as an expert in
order to try and explain why no injuries were detected on the body of
the complainant notwithstanding
the allegations of rape. It is
interesting to note that the court
a quo
alleged in the judgment that the court
a
quo
called the witness and after she
testified, he requested the parties whether they wanted to reopen
their cases to lead further
evidence which they declined. This is a
serious factual misdirection. Clearly, the record shows that this
witness was called by
the State and after she was cross-examined and
also questioned by the court
a quo
the State closed its case. This witness explained why it might be
possible for even a complainant of 7 years not to have sustained
injuries during rape. Her version was correctly accepted by the court
a quo
. The
appellant’s ground of appeal in this regard is without any
merit.
[16]
The
appellant testified that he gave cash to the complainant whom he did
not know at that stage as he felt sorry for her as, except
for the
complainant, all the other children in the area were busy eating
sweets or chips. On his version he went to the hill to
mix his
chemicals. He was selling pesticides to the public by going from door
to door. At a stage the complainant also came up
the hill and sat a
distance away from him, whilst playing in the sand. They were not in
contact with each other, and most definitely,
no sexual offence was
committed by him. He contradicted himself in various respects and
adapted his version throughout the trial.
Initially it was stated on
his behalf that he bought chips for the complainant, but later the
statement was changed to say that
he gave her money. The court
a
quo
heard for the first time at the end of the appellant’s
cross-examination that the complainant was in the company of another
lady whilst on the hill. Just thereafter, he changed his version and
denied his previous allegation. Contrary to his evidence during
his
examination in chief, it was never put to anyone that the complainant
was walking with difficulty at the stage when the State
witnesses and
other members of the public arrived at the scene. He could also not
explain his initial statement to the complainant,
which she denied,
that she was actually the one that protected him when her brother and
others were busy assaulting him. The appellant’s
version is so
improbable that it could be rejected as false, bearing in mind the
totality of the evidence. Inherent probabilities
and improbabilities
may be considered in evaluating the evidence in totality.
[5]
Although it is permissible to test the appellant’s version
against the inherent probabilities, it cannot be rejected merely
because it is improbable. His version can only be rejected on
the basis of the inherent probabilities if it can be said to
be so
improbable that it cannot reasonably possibly be true.
[6]
[17]
Section
208 of the CPA provides that an accused may be convicted of any
offence on the single evidence of any competent witness.
There
is no magic formula to apply when it comes to the consideration of
the credibility of a single witness. The trial court should
weigh the
evidence of a single witness and consider its merits, and having done
so, decide whether it is satisfied that the truth
has been told
despite any shortcomings or defects in the evidence.
[7]
Where the evidence of a single witness is corroborated in any way,
the caution enjoined may be overcome and acceptance facilitated,
but
corroboration is not essential. Any other feature which increases the
confidence of the court in the reliability of the single
witness may
also overcome the caution.
[18]
In
S v Viveiro
the Supreme Court of Appeal stated that the need for caution cannot
be ignored in considering the evidence of young children and
continued that ‘whilst there is no statutory requirement that a
child’s evidence must be corroborated, it has long
been
accepted that the evidence of young children should be treated with
caution …. and that the evidence in a particular
case
involving sexual misconduct may call for a cautionary approach.’
[19]
A
court of appeal should be hesitant to interfere with the factual
findings and evaluation of the evidence by the trial court. In
the
absence of demonstrable and material misdirection by the trial court,
its factual findings should be presumed to be correct,
unless the
recorded evidence indicates to the contrary.
[8]
The complainant was to an extent a single witness and furthermore,
she was a mere seven years old when the offence of rape was
allegedly
committed. There is no reason to conclude that the court
a
quo
misdirected itself to accept that she was raped as demonstrated (by
using dolls) and testified by her. Although there are contradictions
in the versions of the two witnesses, Messrs Leballo and Mokapane,
their versions corroborate the complainant’s version.
Mr
Mokapane was the first person on the scene. He testified having seen
the appellant on top of the complainant, that they were
half naked
and that the appellant was making up and down movements at that
stage. Although Mr Leballo did not testify about an
incident that can
be described as rape, he testified that the complainant was
half-naked from the waist downwards when he noticed
her for the first
time next to the appellant who was fully dressed at that stage. The
appellant confirmed being in Dewetsdorp that
specific day, that he
handed cash to the complainant whilst she was in the vicinity of the
shop as she indicated and that she was
even in close proximity of him
whilst he was allegedly mixing chemicals on the hill. His identity as
the only male person next
to the complainant when the aforesaid two
State witnesses appeared is not in dispute. The absence of evidence
of recent penetration
as recorded in the J88 was satisfactorily
explained by Dr Coetzee. Consequently, I am satisfied that the court
a
quo
came to the correct conclusion that the appellant had raped the
complainant. However, I do not agree with the following two aspects,
but to the extent that the court
a
quo
misdirected itself, the misdirection is not sufficiently material to
acquit the appellant:
a.
First, there was absolutely no evidence of
digital vaginal penetration. I have perused the record several times
in the belief that
I could have made a mistake. The closes one gets
to digital vaginal penetration is to make an assumption (incorrectly
so) that
the appellant would have used his fingers to spread his
saliva on the complainant’s private parts. The court
a
quo
questioned Dr Coetzee in this
regard whereupon the expert accepted without any factual basis that
the appellant had used his finger
to apply saliva to the
complainant’s private parts. Based on this doubtful suggestion,
the court
a quo
incorrectly relied on circumstantial evidence in order to find
digital vaginal penetration. Such finding could not be made as being
the only reasonable inference based on the accepted facts.
b.
Secondly,
the court
a
quo
held that the appellant was ‘guilty as charged and this is a
part 1 Schedule 2 offence in terms of Act 105/97’. It
was
totally unnecessary to deal with the last part of the quotation as
the Minimum Sentences Act is applicable to sentence and
not
conviction. The Supreme Court of Appeal emphasised in
S
v Kekana
[9]
that the provisions of the Minimum Sentences Act do not create
different or new offences, but are relevant to sentence only. The
purpose of reading a particular charge with the provisions of the
Minimum Sentences Act is twofold, first, to alert an accused
of the
applicability of the prescribed minimum sentence and second, to
afford the accused an opportunity to place facts before
the trial
court to justify a deviation from the prescribed sentence.
[10]
The imposition of life
imprisonment
[20]
Although not a ground of appeal, it is not
reflected in the charge sheet and the transcribed plea proceedings
that the appellant
was alerted at the outset of the trial of the
applicable provisions of the Minimum Sentences Act. Adv Komane who
argued the appeal
on behalf of the State conceded that the
transcribed record does not indicate that the appellant had been
warned that he might
be sentenced to life imprisonment upon
conviction. Bearing in mind the seriousness of the matter and this
court’s responsibility
to ensure that the appellant’s
right to a fair trial was not infringed, the legal representatives of
the parties were directed
during oral argument to what appears to be
a failure. I say this whilst keeping in mind the following:
a.
Annexure B of the minutes kept by the court
a quo
is a
document apparently completed during the appellant’s first
appearance in the court
a quo
on 13 January 2014. It is signed by the presiding magistrate. This
document evidences that Adv Diba appeared for the appellant,
but
notwithstanding this, the presiding magistrate filled out the form as
follows:
‘
1.
Court explains the following to the accused:
(a)
You are informed that you are entitled to
legal representation;
(b)
If you cannot afford private legal
representation you may apply to the Legal Aid Officer for legal aid.
Question: Begryp u dit?
(Do you understand?) Yes.
Question: Verlang u
regshulp? (Do you require legal aid?) Yes.’
Thereafter the various
sentencing options pertaining to minimum sentences were deleted by
the magistrate, leaving the only option
available, being a sentence
of life imprisonment in respect of Part 1 of Schedule 2. It amazes me
that the presiding magistrate
would ask the accused in the presence
of his legal representative whether he wanted legal representation,
and if so, that legal
aid could be made available if required.
b.
Annexure C of the minutes of the court
a
quo
(the so-called trial-readiness
minutes) was ticked off by someone, apparently Adv York, the State
prosecutor and not the presiding
magistrate. Paragraph 16 of this
document appears to indicate that the minimum sentences’ regime
or competent verdicts, if
applicable, were explained to the accused.
Although the form is dated 09 June 2014, the same day when the
appellant pleaded, it
was not signed by his attorney in the space
provided.
These two documents
create much uncertainty, especially bearing in mind that the
transcribed record does not indicate whether the
minimum sentences’
legislation was explained before the appellant was asked to plead.
Adv Diba was substituted during the
trial by Mr Rwaxa. Mr Rwaxa
drafted the notice of appeal without mentioning a possible failure to
alert the appellant of the Minimum
Sentences Act. My approach might
have been different if such a ground of appeal was raised.
[21]
The relevant portion of the charge sheet
reads as follows:
‘
read
with the provisions of Sections 51(1)* ___ 51(2)(b) ____ of the
Criminal Law Amendment Act 105 of 1997
, as amended’.
Unlike as one would
expect, the prosecutor failed to delete the inappropriate subsection.
Further down the charge sheet, the printed
document incorrectly
refers on two occasions to Act 105 of 1977. There is no such Act. The
correct number of the Minimum Sentences
Act is 105 of 1997.
Hopefully, the prosecuting authority will ensure that the necessary
amendments are made to prevent possible
future embarrassment.
[22]
This
is indeed a borderline case in which the appeal against sentence
could have been dealt with on the basis that the appellant
was not
appropriately alerted of the applicability of the prescribed minimum
sentence of life imprisonment. There is insufficient
indication that
the appellant was not informed accordingly. However, it is worthwhile
bearing in mind the judgment of the Supreme
Court of Appeal in
S
v Khoza and Another (Khoza).
[11]
The following dictum of Van der Merwe JA in
Khoza
is apposite:
‘
[9]
As I have said, the issue in this appeal has been considered by
this court on a number of occasions. The same applies to
the
closely related issue of the effect of an incorrect reference to the
Minimum Sentences Act in the indictment on fair-trial
rights.
[10]
The following principles can be distilled from these judgments. As
a general rule, fair-trial rights require that an accused
person
should be informed at the outset of the trial of the provisions of
the Minimum Sentences Act (or other provisions relating
to an
increased sentencing regime) that the state intends to rely upon or
which are applicable. The accused person should generally
be so
informed in the indictment or charge-sheet; by notification by
the presiding officer or in any other manner that effectively
conveys
the applicable provisions to the accused person before or at the
commencement of the trial. This is of particular importance
when the
accused person has no legal representation. This, however, is not an
absolute rule. Each case must be determined on its
own particular
facts and circumstances, bearing in mind the oft-quoted
dictum
in
S
v Jaipal
2005
(1) SACR 215 (CC)
[2005] ZACC 1
;
(2005
(4) SA 581
;
2005 (5) BCLR 423)
para 29. There it was stated that the
right to a fair trial also requires fairness to the public as
represented by the state and
this has to in still public confidence
in the criminal justice system. Substance must prevail over form. In
the final analysis,
the determination of whether fair trial rights
were infringed in these circumstances turns on the question of
prejudice to
the accused.
[11]
The question of prejudice is determined by an objective fact-based
inquiry. In my view the test should be similar to that applicable
to
the question whether an accused person has been prejudiced by a
defective charge, which also directly implicates s 35(3)
(a)
of
the Constitution. In
Moloi
and Others v Minister for Justice and Constitutional Development and
Others
2010
(2) SACR 78
(CC)
(2010
(5) BCLR 497
;
[2010] ZACC 2)
para 88
a
the
pre-constitutional position was summarised as follows:
'Whether the accused may
be so prejudiced is dependent upon the facts of each case. What
is cardinal, however, is that prejudice,
actual or potential, will
always exist, unless it can be established that the defence or
response of the accused person would have
remained exactly the same
had the State amended the charge.'
In my judgment the same
applies to the determination of this question under the
Constitution. This signifies that prejudice
will exist if there is a
reasonable possibility that the defence or response of the accused
person may not have been the same had
there been an amendment.’
[23]
On 19 September 2016 the prosecutor
tendered a victim impact statement from the little complainant, a
10-year old girl at the time,
during the sentencing proceedings. On
26 September 2016 the court
a quo
rejected this document as well as a translation thereof. It is
necessary to quote the ruling
verbatim
in order to assess the issue appropriately:
‘
Judgment
with regard to the victim impact statement. Statement from M[…]
M[…], 10 year old kid, was handed in. It
was …. A
translated version was also handed in as an exhibit on the 19
th
of September 2016. There is no indication whatsoever who is the
person who has made the statement. It was not made under oath.
It is possible at this
stage just to entertain it and to say I am going to allow it. On the
other hand I am of the opinion that
it will be better and in the
broader interest of justice not to allow it.
I do not think it is the
most important document at this stage, especially with the contents
as well. So if the State wants to prove
the contents of this they
will have to follow proper procedure, at least to make it a statement
under oath, otherwise it is not
possible and permissible to be handed
in in this current state.’
I do not understand why
the court
a quo
mentioned that there was no indication who
made the statement as it was apparently a statement of the
complainant, the little girl
that was raped. It is difficult to
understand why the court
a quo
rejected the statement. There
is no indication that the appellant’s legal representative
objected thereto, and even so, why
the prosecutor could not be
allowed an opportunity to ensure that the statement is properly
deposed to before a commissioner of
oath and/or to tender the
evidence of either a social worker, teacher, or the little
complainant’s mother.
[24]
Life
imprisonment is the ultimate penalty that courts can impose and
should not be imposed lightly. In saying this, I am fully aware
of
and acquainted with the judgments in
S
v PB
[12]
and
S
v Matyityi
[13]
wherein the Supreme Court of Appeal in both judgments warned courts
not to depart from prescribed minimum sentences for flimsy
reasons.
Having said this, it is also important to consider the responsibility
of defence counsel, prosecutors and trial courts
during the
sentencing stage.
[25]
In
S
v EN
[14]
the Supreme Court of Appeal expressed itself as follows:
‘…
Sentencing
is the most difficult stage of a criminal trial, in my view. Courts
should take care to elicit the necessary information
to put them in a
position to exercise their sentencing discretion properly. In
rape cases, for instance, where a minor is
a victim, more information
on the mental effect of the rape on the victim should be required,
perhaps in the form of calling for
a report from a social worker.
This is especially so in cases where it is clear that life
imprisonment is being considered to be
an appropriate sentence. Life
imprisonment is the ultimate and most severe sentence that our courts
may impose; therefore
a sentencing court should be seen to have
sufficient information before it to justify that sentence.’
[26]
The complainant suffered no physical
injuries. The question as to the effect of the incident on her
emotional and psychological
wellbeing could have been answered if the
court
a quo
allowed the victim impact statement that the prosecutor intended to
hand in, and/or if it was prepared to obtain evidence from
either the
mother, a teacher or social worker. Regrettably, the court
a
quo
imposed sentence without having
been provided with sufficient information. Acting as it did, the
court
a quo
disregarded the dictum of the Supreme Court of Appeal in
S
v EN supra
.
[27]
In
respect of the absence of serious physical injuries, the Supreme
Court of Appeal in
S
v SMM
[15]
put its stamp of approval on the interpretation of s 51(3) of the
Minimum Sentences Act by the trial judge in
S
v Nakawu
[16]
in the following words:
‘
He
[Plasket J] correctly in my view concluded that the proper
interpretation of the provision does not preclude a court sentencing
for rape to take into consideration the fact that a rape victim has
not suffered serious or permanent physical injuries, along
with other
relevant factors, to arrive at a just and proportionate sentence.’
[28]
I have no doubt that life imprisonment
should be called for in by far the majority of cases involving rape
of minor children. Notwithstanding
this, it is important to consider
some reported cases, again accepting that no responsible person can
hold the view that the complainant
in
casu
could
survive the rape incident without suffering some emotional trauma.
[29]
In
S
v Kearns
[17]
the appellant’s sentence of life imprisonment in respect of
rape of a 9-year old girl, causing her serious psychological
and
physical injuries, was dismissed by the full court. That court
commented as follows:
[18]
‘…
Rape
is not merely a physical assault, it is often destructive of the
whole personality of the victim. A murderer destroys the physical
body of his victim; a rapist degrades the very soul of the helpless
female. The physical scar may heal, but the mental scar will
always
remain. …’
The complainant in
Kearns
sustained serious psychological and physical injuries, whilst
in
casu
there is clearly no proof of physical injuries and there
is also a lack of evidence pertaining to psychological injuries.
[30]
In
Moses
Tshoga v The State
[19]
the majority found that the sentence of life imprisonment in respect
of the rape of a 10-year old girl was in order. Contrary to
the facts
in
casu
,
a report from the counselling psychologist of the Teddy Bear Clinic
was presented as evidence by agreement with the appellant.
In that
case there was proof that the complainant suffered devastating
psychological lifelong consequences.
[31]
In
S
v Tshabalala and Another
[20]
Mathopo AJ, writing for a unanimous Constitutional Court Bench,
remarked as follows:
‘
This
scourge has reached alarming proportions in our country. Joint
efforts by the courts, society and law-enforcement agencies
are
required to curb this pandemic. This court would be failing in its
duty if it does not send out a clear and unequivocal pronouncement
that the South African judiciary is committed to developing and
implementing sound and robust legal principles that advance the
fight
against gender-based violence in order to safeguard the
constitutional values of equality, human dignity and safety and
security. One such way in which we can do this is to dispose of the
misguided and misinformed view that rape is a crime purely about
sex.
Continuing on this misguided trajectory would implicate this court
and courts around this country in the perpetuation of patriarchy
and
rape culture.’
[32]
No
doubt, due to the seriousness of the offence
in
casu
,
it is required that the elements of retribution and deterrence should
come to the fore and that the rehabilitation of the appellant
should
be accorded a smaller role as emphasised by the Supreme Court of
Appeal in
S
v Kekana
[21]
.
The appellant’s personal circumstances have to bow to the
interest of society. His counsel did not seriously contend otherwise.
[33]
In
S
v
De Beer
[22]
the Supreme Court of Appeal held as follows:
‘
This
court has pointed out on many occasions that injustices may
occur if the prescribed minimum sentences are imposed without
a
proper consideration of the existence of substantial and compelling
circumstances, including the question whether the prescribed
sentence
will be disproportionate to the offence, in the wide sense, in other
words, including all the circumstances of not
only the offence
itself, but also the circumstances of the parties involved.’
[34]
Having
said this, I am of the view that the court
a
quo
made a material misdirection in finding that there were no
substantial and compelling circumstances in the present case. When he
was sentenced seven years ago in September 2016, the appellant was
the owner of immovable property, 35 years old, married with
two
children aged 15 and 9 years old respectively. He has a grade 12
certificate and worked for Shield Protection Services, whilst
also
having his own pest control business. He was a first offender. The
court
a
quo
made the following comment which should be frowned upon as this does
not appear from the record:
[23]
‘
I
think that apart from the fact that you are a clever, informed
person, that you are one of the more dangerous persons that stood
in
that very same place of yours for the past year or what’
Furthermore, the court
a
quo
continued, as follows, but contradicted itself:
‘
In
this instance I am of the opinion that although it was perhaps on the
spur of the moment, you have planned this entire exercise
at length
and then you were meticulous enough to conclude your planning in the
hills.’
Earlier
on the court
a
quo
made the following comment in its judgment:
[24]
‘
I
must say the moment when the accused testified and he informed Court
that he is actually working with teenagers and pregnancies
and all
those type of problems in ten different schools a number of red
lights went on for me I am not totally sure that I will
not bet on
this that this is the only matter of its kind.’
Instead of accepting that
the appellant was trying to assist his community, the court
a quo
regarded him as a wolf in sheep clothes without any foundation
whatsoever. Although I have made it clear in many judgments that
I
find rape appalling and a perverse abuse of male power, and
especially rape of a child, I am satisfied that the court
a quo
erred in concluding that there were no substantial and compelling
circumstances present in order to deviate from the prescribed
minimum
sentence of life imprisonment.
Order
[35]
The following order is issued:
1.
The appellant’s appeal against his
conviction is dismissed.
2.
The appeal against the sentence is upheld.
3.
The sentence of the court
a
quo
is set aside and replaced with the
following sentence:
‘
1.
The accused is sentenced to 22 years’ imprisonment.
2.
The accused’s name shall be included in the register for sexual
offenders as provided
for in
s 50(1)(a)(i)
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007
.
3.
The sentence is ante-dated to 26 September 2016.’
JP DAFFUE J
I concur
S CHESIWE J
Counsel
for the appellant:
Miss
V Abrahams
Legal
Aid South Africa
BLOEMFONTEIN
Counsel
for the respondent:
Mr
Komane
(the
heads being drafted by Adv LB Mpemvane)
Office
of the Director of Public Prosecutions
BLOEMFONTEIN
[1]
Section
309(1)(a)
read with
s 309B(1)(a)
of the
Criminal Procedure Act 51 of 1977
.
[2]
Record:
p 230 / 6-18.
[3]
Exhibit
A: record p 241.
[4]
Exhibit
B: record p 243 -246. The following conclusions were recorded: ‘Was
previously raped. Today no signs of penetration.’
[5]
S
v Chabalala
2003 (1) SACR 134
(SCA) at para 15.
[6]
S
v Shackell
2001 (2) SACR 185
(SCA) at para 30.
[7]
S
v Sauls
1981 (3) SA 172
(AD) at 180E-G and
S
v Stevens
[2005] 1 All SA 1
(SCA) para 17
.
[8]
S
v Hadebe & Others
1997 (2) SACR 641
(SCA) at 645.
[9]
2019
(1) SACR 1
(SCA) at para 22.
[10]
Ibid
para 24.
[11]
2019
(1) SACR 251
(SCA) para 9 – 13.
[12]
2013
(2) SACR 533
(SCA) para 20.
[13]
2011
(1) SACR 40
(SCA) para 23.
[14]
2014
(1) SACR 198
(SCA) para 14.
[15]
2013
(2) SACR 292
(SCA) at para 26.
[16]
2009
(2) SACR 402
(ECG) at para 15.
[17]
2009
(2) SACR 684 (GSJ).
[18]
Ibid
para
15.
[19]
(365/2016)
[
2016]
ZASCA 205
;
2017 (1) SACR 420
(SCA) (15 December 2016).
[20]
2020
(2) SACR 38
(CC) para 63.
[21]
2019
(1) SACR 1
(SCA) at paras 39 & 40.
[22]
2018
(1) SACR 229
(SCA) at para 17.
[23]
Record:
p 234.
[24]
Record:
p 204.