Maake v Director of Public Prosecutions (481/09) [2010] ZASCA 51; 2011 (1) SACR 263 (SCA) ; [2011] 1 All SA 460 (SCA) (31 March 2010)

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[2010] ZASCA 51
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Maake v Director of Public Prosecutions (481/09) [2010] ZASCA 51; 2011 (1) SACR 263 (SCA) ; [2011] 1 All SA 460 (SCA) (31 March 2010)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No:
481/09
A
A MAAKE
Appellant
and
DIRECTOR
OF PUBLIC PROSECUTIONS
Respondent
Neutral
citation
:
Maake v
Director of Public Prosecutions
(481/09)
[2010] ZASCA 51
(31 March 2010)
Coram: NAVSA, MLAMBO,
CACHALIA, MALAN AND TSHIQI
JJA
Heard: 26
February 2010
Delivered: 31
March 2010
Updated:
Summary: Sentence
─ when maximum envisaged in terms of
s 51
of the
Criminal Law
Amendment Act 105 of 1997
is imposed it must be explained and
motivated ─ factors justifying greater sentence must be clearly
articulated and reasons why
a departure from the minimum sentence is
justified must be supplied.
____________________________________________________________________________________
ORDER
On
an appeal from:
North Gauteng High Court (Pretoria) (Du Plessis J and Terblanche AJ
sitting as a court of appeal):
1. The
appeal against convictions is dismissed.
2. The
appeal against sentence is successful to the extent reflected
hereafter.
3 The
order of the court below in respect of sentence is set aside and
substituted as follows:
‘
The
magistrate’s order in relation to sentence is set aside and
substituted as follows:
“
(a) In
respect of count 1 the appellant is sentenced to ten years’
imprisonment.
(b) In
respect of count 4 the appellant is sentenced to five years’
imprisonment.
(c) Four
years of the sentence set out in (b) is to run concurrently with the
sentence referred to in (a).” ‘
(d) The sentence is
antedated to 4 June 2002.
JUDGMENT
___________________________
__________________________________________
NAVSA
and TSHIQI JJA (MLAMBO, CACHALIA AND MALAN JJA concurring):
[1] On
4 June 2002, the appellant, Mr Alex Aubrey Maake, was convicted by
the regional magistrate, Benoni on one count of rape and
on a further
count of robbery. On the same day he was sentenced to 15 years’
imprisonment on the rape count and to 5 years’ imprisonment
for the
robbery. The magistrate did not order the two sentences to run
concurrently. Thus, the appellant was sentenced to imprisonment
for
20 years.
[2] The
appellant appealed his convictions and sentence to the Pretoria High
Court. The appeal against both convictions was dismissed.
His appeal
against sentence was, however, successful in part. The Pretoria High
Court took the view that the cumulative effect of
the sentence was
such that it induced a sense of shock. The sentence of 20 years’
imprisonment referred to in the preceding paragraph
was replaced with
one of 16 years’ imprisonment ─ four years of the sentence on the
count of robbery were ordered to run concurrently
with the sentence
of 15 years’ imprisonment imposed on the count of rape.
[3] The
appellant applied to the Pretoria High Court for leave to appeal his
convictions and the related sentences to this court.
It appears that
owing to an oversight on the part of the Pretoria High Court it
initially granted leave to appeal against convictions
only.
[4] In
debate before us on the merits of the convictions the question arose
whether the 15 year sentence imposed by the magistrate
in respect of
the rape count was in accordance with the prescripts of s 51 of the
Criminal Law Amendment Act 105 of 1997 (the Act).
This aspect will be
dealt with in detail in due course.
[5] Subsequent
to the issue being raised in argument the matter was postponed to
enable the appellant to approach the Pretoria High
Court afresh for
leave to appeal in respect of sentence. Such leave has since been
granted. Thus, we are dealing with an appeal against
convictions and
sentence. During the hearing before us, prior to the postponement,
submissions were made concerning sentence. In
addition, we have
subsequently received written heads of argument on behalf of the
appellant in respect of sentence.
[6] It
is necessary to deal first with the convictions. It is true that in
respect of the rape count the appellant was convicted principally
on
the evidence of a single witness, namely, the complainant. However,
the magistrate had regard to the nature and quality of her
evidence
and that her version of events immediately after the alleged rape was
corroborated in material respects by an independent
witness. The
magistrate carefully took into account the quality of the appellant’s
evidence. He found material aspects of the appellant’s
evidence
improbable. An example is that the appellant testified that he had
been falsely implicated because the complainant had become
jealous as
a result of an assumption she had made. The assumption was that he
was talking on his cellular telephone with another
woman whom he
intended to see later that day. That testimony has to be contrasted
with his other evidence that earlier they had communicated
concerning
their other relationships without any rancour.
[7] The
magistrate took into account that immediately after the complainant
had emerged from the veld where the rape had allegedly
occurred she
was seen in a state of shock and anxiety. She was also tearful. The
person who saw her in this state testified and it
is clear from his
evidence that he was concerned about her well-being. The magistrate
considered that when she was seen she was not
in possession of any of
her belongings. According to the complainant she was forced because
of the rape to leave her possessions
behind. The magistrate rejected
the appellant’s version of events.
[8] In
our view, the magistrate approached the evidence cautiously and
correctly and his reasoning in respect of the conviction on
the rape
count cannot be faulted.
[9] The
count of robbery involved a different complainant. It was not
contested that she had been in the appellant’s car at material
times. According to her, the appellant had dispossessed her with
force of her cellular telephone, cash and a pendant. She ultimately
regained possession of these items after wrestling with him. The
complainant on this count was also a single witness. The magistrate,
once again, carefully considered the nature and quality of her
evidence. He found her a satisfactory witness and took into account
that she had not exaggerated in communicating her version of events.
The magistrate considered the appellant’s own evidence that
there
had been a heated disagreement between them but rejected his version
that she had grabbed the steering wheel whilst the vehicle
in which
they were travelling was in motion. The magistrate rightly found his
version for the disagreement improbable.
[10] It
is not necessary to say anything further concerning the magistrate’s
reasons for convicting the appellant on the count of
robbery. Suffice
to say that in this respect too his reasoning and conclusion are
correct. I turn to deal with the sentence imposed
in respect of the
count of rape.
[11] At
the time that the rape was perpetrated the appellant was a police
reservist who had persuaded the complainant to accompany
him to a
function. However, he drove her into the veld and perpetrated the
rape in his car. It does not appear that the complainant
suffered any
other serious physical injuries. At the time of sentencing, the
appellant was 26 years old and unmarried with no children.
[12] In
sentencing the appellant on this charge the Magistrate rightly stated
that women in this country had to be protected against
the scourge of
rape. He referred, in general terms to the objects of the Act,
namely, to provide minimum sentences for serious offences.
[13] The
magistrate had regard to the minimum sentences prescribed for rape.
The following comments by him are of importance:
‘
Verkragting
is een van die misdrywe wat gelys is in die betrokke bylae tot die
wet, en maak dit voorsiening vir ‘n minimum vonnis
van 10 jaar
gevangenisstraf met betrekking tot die eerste aanklag, tensy die hof
kan bevind dat daar wesenlike en dwingende omstandighede
bestaan, wat
die hof noop om ‘n mindere vonnis op te lê.’
[14] Section
51 of the Act prescribes minimum sentences for rape in distinct
categories. Section 51 (2)
(b)
provides:
‘
(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 ─
.
. .
Part
III of Schedule 2, in the case of ─
(i)
a first offender, to imprisonment for a period not less than 10
years;
(ii)
a second offender of any such offence, to imprisonment for a period
not less than 15 years;
.
. .’
1
[15] A
proviso to s 51 (2) of the Act reads as follows:
‘
Provided
that the maximum term of imprisonment that a regional court may
impose in terms of this subsection shall not exceed the minimum
term
of imprisonment that it must impose in terms of this subsection by
more than five years.’
[16] The
appellant is a first offender. From the comments of the magistrate
referred to in para 12 above, it appears that he was minded
to impose
the
minimum
sentence
of ten years’ imprisonment prescribed by s 51 (2)
(b)
(i)
of the Act, but then proceeded to impose a sentence of 15 years’
imprisonment, which if regard is had to the proviso referred
to in
the
preceding paragraph is the
maximum
sentence he could impose. The magistrate has, since leave to appeal
against sentence was granted by the Pretoria High Court, provided
further reasons for the sentence of 15 years’ imprisonment imposed
by him.
[17] It
is necessary to quote parts of the further reasons provided by him:
‘
[D]it
[was] onder my aandag gebring dat ek tydens vonnisoplegging na die
Wet op minimum vonnisse 105 van 1997 verwys het. Ek het aangedui
dat
die voorgeskrewe minimum vonnis vir die eerste aanklag tien jaar
gevangenisstraf is, maar voortgegaan en ‘n vonnis van vyftien
jaar
gevangenisstraf opgelê.’
Later,
the following is stated:
‘
Na
die lees . . . van die getikte oorkonde is dit asof daar ‘n
gedeelte van die vonnis uitspraak weg is. Daarmee sê ek nie dat
‘n
gedeelte van die uitspraak nie getik was nie. Skynbaar is ‘n
gedeelte van my gedagtegang eerder nooit uitgespreek nie.
Ek
sê dit omdat dit wat getik is, met verwysing na die minimum vonnis
nie ooreenstem met die opgelegde vonnis nie. Ek was wel deeglik
bewus
van wat die minimum vonnis was; nie net het ek dit in my uitspraak
genoem nie; ‘n groot gedeelte van die sake op my hofrol
hou verband
met verkragting aanklagte en ek kan nie vir ‘n oomblik dink dat ek
per abuis 15 jaar gevangenisstraf opgelê het nie.’
[18] The
magistrate states (almost eight years after the event) the following:
‘
Ek
wil graag noem dat ek die saak goed onthou en selfs kan onthou hoe
die tweede klaagster gelyk het. Laasgenoemde meld ek net ter
stawing
daarvan dat ek die saak en die feite herroep.’
The
magistrate continues and states:
‘
Indien
die gedeelte waarna ek verwys, gelees word, sal opgemerk word dat ek
meld dat daar geen versagtende maar slegs verswarende
omstandighede
aanwesig was, en, daarna verwys ek na die wet op minimum vonnisse. Ek
was bewus daarvan dat dieselfde wet bepaal dat
die hof gemagtig is om
‘n hoër vonnis as die voorgeskrewe minimum op te lê, tot ‘n
maksimum van vyf jaar gevangenisstraf meer
as die voorgeskrewe
minimum vonnis.
In
die lig van wat ek reeds gesê het m.b.t verswarende omstandighede;
is dit waarheen ek op pad was nl. Om van die ekstra vyf jaar
strafjurisdiksie gebruik te maak. Dit was my gedagtegang. Dit was
deurentyd my doel om die beskuldigde tot vyftien jaar gevangenisstraf
op die eerste aanklag te vonnis.
Tydens
vonnis oplegging het ek gedink dat ek reeds na die tersaaklike
wetgewing verwys het, en het ek die beskuldigde derhalwe tot
vyftien
jaar gevangenisstraf gevonnis.’
[19] It
is not only a salutary practice but obligatory for judicial officers
to provide reasons to substantiate conclusions. The magistrate
did
not do so in respect of the maximum sentence imposed by him. In an
article in
The South African Law Journal
2
entitled ‘Writing a Judgment’ former Chief Justice M M Corbett
pointed out that this general rule applies to both civil and criminal
cases. In civil cases it is not a statutory rule but one of practice.
In
Botes & another v Nedbank Ltd
1983
(3) SA 27
(A) at 27H-28A, this court held that in an opposed matter
where the issues have been argued litigants are entitled to be
informed
of the reasons for the judge’s decision. See also in
regard to the obligation to provide reasons
Road
Accident Fund v Marunga
2003 (5) SA 164
(SCA)
at 171E-172C.
[20] When
a matter is taken on appeal a court of appeal has a similar interest
in knowing why a judicial officer who heard the matter
made the order
which he did. Broader considerations come into play. It is in the
interests of the open and proper administration
of justice that
courts state publicly the reasons for their decisions. A statement of
reasons gives some assurance that the court
gave due consideration to
the matter and did not act arbitrarily. This is important in the
maintenance of public confidence in the
administration of justice.
3
[21] Before
the matter was dealt with statutorily the same general rule of
practice applied in criminal matters both in regard to
conviction and
sentence. In this regard see
R v Majerero &
others
1948 (3) SA 1032
(A) where, at 1033
the following appears:
‘
We
are aware that there is no provision in the Criminal Procedure Code
for the delivery of a judgment . . . but in practice such a
judgment
is invariably given and we wish now to say that it is clearly in the
interest of justice that it should be given.’
See
also
R v Van der Walt
1952 (4) SA 382
(A) at 382H-383A and
R v
Huebsch
1953 (2) SA 561
(A) at 564G-565E.
[22] In
S v Immelman
1978 (3)
SA 726
(A) at 729B-D the following was said in respect of sentence:
‘
It
seems to me that, with regard to the sentence of the Court in cases
where the trial Judge enjoys a discretion, a statement of the
reasons
which move him to impose the sentence which he does also serves the
interests of justice. The absence of such reasons may
operate
unfairly, as against both the accused person and the State. One of
the various problems which may be occasioned in the Court
of Appeal
by the absence of reasons is that in a case where there has been a
plea of guilty but evidence has been led, there may
be no indication
as to how the Court resolved issues of fact thrown up by the evidence
or on what factual basis the Court approached
the question of
sentence.’
[23] It
bears mentioning that in the article referred to in paras 18 and 19
above the learned Chief Justice states that the practice
of providing
an order with reasons to be supplied later is one that should be used
sparingly.
4
[24] Section
146 of the Criminal Procedure Act 51 of 1997 now provides that a
judge presiding in a ‘superior court’ shall, when
he decides any
question of law or fact, give reasons for the conclusions reached by
him.
[25] In
terms of s 93
ter
(3)
(c)
,
(d)
and
(e)
of the
Magistrates’ Courts Act 32 of 1944
it is incumbent on a
Magistrates’ Court to give reasons for its decisions of fact or
law.
[26] Importantly,
on the record in the present case there is no indication at all that
the imposition of the maximum sentence provided
for in
s 51
(3) was
within the magistrate’s contemplation.
[27] In
any event, there is a further fatal problem in respect of the
sentence of 15 years’ imprisonment imposed by the magistrate.
In
respect of minimum sentence provisions our courts have insisted that
particularly unrepresented accused be informed of their implications.
Although the appellant was represented, it is clear from the record
that there is no indication at all that the magistrate considered
imposing the maximum sentence. The appellant’s legal representative
could consequently not have been invited to make submissions
in this
regard.
5
[28] The
safeguards in relation to minimum sentences must
a
fortiori
apply to the contemplated imposition
of a maximum sentence. In relation to motivating the imposition of a
maximum sentence it is necessary
to have regard to what was stated in
S v Mbatha
2009 (2)
SACR 623
(KZP) (at 631
f
-
j
):
‘
On
that approach there is as much a necessity for the court in its
judgment on sentence to identify on the record the aggravating
circumstances that take the case out of the ordinary, as there is for
it in the converse situation to identify those substantial
and
compelling circumstances that warrant the imposition of a lesser
sentence than the prescribed minimum. The trial judge should
identify
the circumstances that impel her or him to impose a sentence greater
than the prescribed minimum and explain why they render
the
particular case one where a departure from the prescribed sentence is
justified. The factors that render the accused more morally
blameworthy must be clearly articulated. . . . Otherwise the whole
purpose of a reasonably consistent and standardised approach to
sentence in the case of the most serious crimes will be defeated, as
it will open to those judges who have particularly stern views
on
sentence, and regard Parliament’s response to serious crime as
inadequate, to impose those views in disregard of the purpose
of the
legislation.’
In
the result in that case the sentence was set aside on the basis of
that irregularity.
[29] In
the present matter the requirements set out in the immediately
preceding paragraphs were not met. The magistrate’s present
speculative articulation is unhelpful.
6
The consequence is that the maximum sentence imposed is liable to be
set aside. We have been informed by counsel that the appellant
has
already been released on parole. It was submitted on his behalf that
the setting aside of the sentence will have a practical
effect on
whether parole conditions will continue to apply. That is a question
that is not necessary for us to consider.
[30]
In light of the conclusions reached, the following order is made:
1. The
appeal against convictions is dismissed.
2. The
appeal against sentence is successful to the extent reflected
hereafter.
3 The
order of the court below in respect of sentence is set aside and
substituted as follows:
‘
The
magistrate’s order in relation to sentence is set aside and
substituted as follows:
“
(a) In
respect of count 1 the appellant is sentenced to ten years’
imprisonment.
(b) In
respect of count 4 the appellant is sentenced to five years’
imprisonment.
(c) Four
years of the sentence set out in (b) is to run concurrently with the
sentence referred to in (a).” ‘
(d) The sentence is
antedated to 4 June 2002.
_________________
M
S NAVSA
JUDGE
OF APPEAL
_________________
Z
L L TSHIQI
JUDGE
OF APPEAL
APPEARANCES
APPELLANT
: A
VAN WYK
Instructed
by Legal Aid Board, Pretoria;
Legal
Aid Board, Bloemfontein
RESPONDENT
: A
COETZEE
Instructed
by Director of Public Prosecutions, Pretoria;
1
Part III
of Schedule 2 lists rape as an offence.
2
115 (1998) pp 116-128.
3
SALJ
op cit at 117.
4
SALJ
op cit at 118.
5
S v Ndlovu
2003 (1) SACR 331
(SCA) paras 13-14;
S v
Mvelase
2004 (2) SACR 531
(W) at 534-535;
S v Ndlovu
2004
(2) SACR 70
(W) at 76;
S v Legoa
2003 (1) SACR 13
(SCA) at 25
para 27.
6
In
Jefferies v Komgha Divisional Council
1958 (1) 240 (A) at
240G-H this court excluded reasons provided subsequent to the appeal
being lodged and stated that it was confined
to the four corners of
the record.