Mothokgo v S (A117/2021) [2022] ZAFSHC 35 (24 February 2022)

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[2022] ZAFSHC 35
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Mothokgo v S (A117/2021) [2022] ZAFSHC 35 (24 February 2022)

IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number:   A117/2021
In
the matter between:
MJ
MOTHOKGO
Appellant
and
THE
STATE
Respondent
HEARD
ON:
07
FEBRUARY 2022
CORAM:
OPPERMAN, J et LITHEKO, AJ
JUDGMENT
BY:
LITHEKO, AJ
DELIVERED
ON:
24 FEBRUARY 2022
INTRODUCTION
[1]
This is an appeal against sentence. The appellant,
who was legally represented, was charged with and convicted in the
Regional Court,
Thaba Nchu of rape in contravention of section 3 read
with sections 1, 56(1), 57, 58, 59, 60 and 61 of
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007
, also read
with sections 94, 256 and 261 of the Criminal Procedure Act 51 of
1977,(the CPA) and further read with section 51 and
Schedule 2 of the
Criminal Law Amendment Act 105 of 1997,(the CLAA). The appellant was
sentenced in terms of section 51(1) of the
CLAA to life imprisonment
as the court
a quo
was
not satisfied that substantial and compelling circumstances which
justify the imposition of a lesser sentence exist as contemplated
in
Section 51(3)(a).
FACTUAL BACKGROUND
[2]
Before turning to consider the merits of the appeal, a brief outline
of
the background facts is necessary. The complainant, a 15-year-old
girl, is the biological daughter of the appellant and when the
appellant raped her, she was staying at her grandmother’s place
with her grandmother and her mother. Her mother was pregnant and
found it convenient to stay there as it was near the clinic. On
Friday, the 13
th
February 2015, after Valentine’s Day
celebrations at her school, the complainant went to her parental home
and along the way, she
met with the appellant who informed her that
she would find the house keys at the appellant’s friend’s place.
Upon arrival she
changed her clothing and sat in the lounge. The
appellant arrived with his 2 friends, sat and drank liquor. A while
thereafter the
appellant left with the friends and returned alone
later, sitting with the complainant in the lounge.  The
appellant then enquired
from the complainant whether she knew of a
cultural practice according to which she had to “sleep with him
before she goes to the
street”. The complainant did not know this
practice.  Upon asking whether she could verify that with either
her mother or
her aunt, the appellant would not allow her to do so,
but explained that her aunt knows the culture as she slept with her
father.
As she was tired, the complainant went to her bedroom to
sleep despite the appellant’s demand that she must not go to bed.
After she got into bed, the appellant came and slept thereon and he
remained silent when the complainant said he must not enter into
her
blankets. He touched her with something and she became dizzy
whereupon he fondled her breasts and body. Scared and dizzy, she
got
out of her blankets and crawled to the appellant’s bedroom and
slept there, avoiding the appellant. The next moment the appellant
was in the bedroom into which she had crawled and was naked.  He
undressed her trouser and panty, opened her thighs and had
sexual
intercourse with her. It was painful. When she screamed and cried, he
held her hands and mouth and admonished her not to make
noise.
After the rape she fell asleep. When she woke up and bathed, she
noticed blood and a whitish substance in her vagina,
which she washed
off.  He said she must not leave when she wanted to go away.
Later he allowed her to leave and on her
way to her grandmother’s
place, she met her mother at the clinic.  Her mother enquired as
to what was going on with her and
she reported that the appellant
raped her. They went to report the rape at the police station and she
was taken to the doctor, who
examined her on the same day.
[3]
The other witnesses who were called for the state are the
complainant’s
mother and the doctor, whose evidence need not be
dealt with for purposes of this judgement, owing to the turn of
events set out
below. The J88 was admitted into evidence as exhibit
A.
[4]
After the testimony of the doctor, the DNA test result was admitted
into
evidence as exhibit B with the consent of the accused’s legal
representative.  The DNA test result identified the appellant
as
the donor of the DNA that was found on the “vaginal vault” swab
which formed part of the evidence kit.  The appellant
thereupon
changed his plea to that of guilty and made the following admissions
in terms of section 220 of the CPA:
4.1.   The evidence of
the complainant as given in Court is a true reflection of what
happened on the date of the incident.
4.2.   On the date of
the incident, he had sexual intercourse with the complainant without
her consent and raped her.
4.3.   The complainant
was 15 years old at the time of the rape.
4.4.   He knew that his
actions were wrongful and punishable by law.
[5]
The court
a quo
then convicted him on the strength of the
admissions that he made and the evidence led and, having found no
substantial and compelling
circumstances justifying a lesser
sentence, imposed a sentence of life imprisonment in terms of section
51(1) of the CLAA. The appeal
is against this sentence.
[6]
The grounds of appeal as stated in the notice of appeal are the
following:
6.1.   In sentencing
the appellant, the court over-emphasised the aggravating factors over
the mitigating factors.
6.2.   In sentencing
the appellant, the court erred by not applying weight to the personal
circumstances of the appellant.
6.3.   In sentencing
the appellant, the court erred by not regarding the appellant’s
traditional mitigating factors as
substantial and compelling
circumstances and deviate from imposing the minimum sentence as held
in
S v Sikhipha
2006 (2) SACR 439
(SCA)
.
6.4.   In sentencing
the appellant, the court erred in not considering other sentencing
options.
[7]
In this Court, the appellant was represented by Mr. Reyneke, who
conceded
that the personal circumstances of the appellant did not
constitute substantial and compelling circumstances warranting
deviation
from the prescribed minimum sentence ordained in the CLAA.
He however argued that the court
a quo
did not have
jurisdiction to impose a sentence of life imprisonment on the grounds
that the appellant was not apprised of the provisions
of section
51(1) of the CLAA. The consequence of merely mentioning section 51 in
the charge-sheet, without a specific reference to
subsection (1)
thereof, so he argued, is that the court
a quo
could not
sentence in terms of the provisions of that subsection. The appellant
contended that the court
a quo
misdirected itself in
sentencing the appellant in terms of section 51(1) in the light of
its failure to inform him that in the event
of his conviction the
prescribed minimum sentence is life imprisonment, unless he satisfies
the court that there are substantial
and compelling circumstances
justifying a lesser sentence.
[8]
As authority for the above submission, Mr. Reyneke, referred us to
the case of
Tini Koloi
Motaung v State,
[1]
wherein the court
held, relying on
S v
Ndlovu
,
[2]
that a mere reference to section 51 of the CLAA in the charge-sheet,
without explicitly directing the attention of the accused to
the
applicability of either subsection 51(1) and 51(2), is a deficiency
which constituted an infringement of his right to a fair
trial.
[3]
He argued that, as the charge-sheet
in
casu
referred to
section 51, and not section 51(1), of the
CLAA,
the court
a
quo
did not have jurisdiction to impose a sentence of life imprisonment.
[9]
Mr. Lencoe, for the respondent, arguing in support of the sentence of
life
imprisonment, submitted that the
Ndlovu
case, on the
authority of which the
Motaung
case was decided, was
misconstrued and it is distinguishable.
[10]
He argued that the distinguishing feature in the
Ndlovu
case is that the legal issue was whether the regional court had
jurisdiction to sentence the appellant to life imprisonment in terms
of section 51(1) after his conviction of rape in terms of section
51(2). It was there decided that because the appellant was convicted
in terms of section 51(2), the regional court’s penal jurisdiction
was limited to a maximum of 15 years imprisonment
[4]
in case of a first offender where no substantial and compelling
circumstances are found justifying a lesser sentence.
[11]
In this matter the court
a quo
, after convicting the appellant
of rape of a 15-year-old complainant, sentenced him to life
imprisonment in terms of section 51(1)
of the CLAA upon finding that
there existed no substantial and compelling circumstances justifying
a deviation from that prescribed
minimum sentence.
THE LEGAL ISSUE
[12]
Counsel for the appellant and the respondent agreed that the issue to
be adjudicated
in this appeal is whether failure on the part of the
court
a quo
to apprise the appellant of the applicability of
section 51(1) of the CLAA rendered his trial unfair in that he was
not informed
of the charge with sufficient detail to answer it. Put
differently, did the Learned Magistrate misdirect herself by
sentencing the
appellant in terms of section 51(1) when the
charge-sheet referred only to section 51 and not to subsection (1)
thereof.
THE LEGAL POSITION
[13]
A defective, or incomplete charge, may be remedied by evidence in
some instances in
terms of section 88 of the CPA which provides that:
“
Where
a charge is defective for want of an averment which is an essential
ingredient of the relevant offence, the defect shall, unless
brought
to the notice of the court before judgement, be cured by evidence at
the trial proving the matter which should have been
averred”.
[14]
Section 35(3)(a) of the Constitution, 1996 provides that an accused
has a right to be informed of the
charge with sufficient detail to
answer it. It has been held, with reference to the provisions of
section 51 of the CLA
A,
that the question whether the accused’s constitutional right to a
fair trail has been breached at the sentencing stage, can only
be
answered after a vigilant examination of the relevant
circumstances.
[5]
[15]     What
is required is that the evidence, before conviction, should encompass
all the elements that bring
it within the purview of section 51 of
the CLAA and the increased penal regime. It is not a requirement that
the provisions of section
51 of the CLAA should be set out in the
charge-sheet, but the enquiry remained whether the accused had a fair
trial, which included
his ability to answer the charge. Cameron JA
remarked as follows in the case of
Legoa
:
[6]
“
The matter is,
however, one of substance and not form, and I would be reluctant to
lay down a general rule that the charge must in
every case recite the
specific form of the scheduled offence with which the accused is
charged, or the facts the State intends to
prove to establish it. A
general requirement to this effect, if applied with undue formalism,
may create intolerable complexities
in the administration of justice
and may be insufficiently heedful of the practical realities under
which charge-sheets are frequently
drafted. The accused might in any
event acquire the requisite knowledge from particulars furnished to
the charge or, in a Superior
Court, from the summary of substantial
facts the State is obliged to furnish. Whether the accused’s
substantive fair trial right,
including his ability to answer the
charge, has been impaired, will therefore depend on a vigilant
examination of the relevant circumstances”.
[16]     In
the case of
S v
Ndlovu
[7]
the court emphasised
that:
“
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”.
[17]     The
test is always whether or not the accused suffered prejudice as a
result of the defect in the charge-sheet.
A formal application
to amend the charge-sheet is not always required.
[8]
The Constitutional Court, describing the accused’s fair trial
right, said the following:
“
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”.
[9]
[18]     The
charge-sheet was couched in the following terms:
“
That the accused
is guilty of the crime of
contravening
the provisions of section 3 read with sections 1, 56(1), 57, 59, 60
and 61 of Act 32 of 2007.  Also read with sections
94, 256 and
261 of the
Criminal Procedure Act 51 of 1977
.  Rape (read with
the provisions of
section 51
and schedule 2 of the
Criminal Law
Amendment Act 105 of 1997
as amended) in that on or about 14 February
2015 and at or near Thaba Nchu in the Regional Division of the Free
State, the said accused
did unlawfully and intentionally commit an
act of sexual penetration with the complainant, to wit, Thebolo
Confidence Athibeng, a
15 year old female person by inserting his
male genital organ into her female genital organ and having sexual
intercourse with her
without the consent of the said complainant”.
[19]
Section 51
of CLAA confers jurisdiction in a regional court to impose
minimum sentences in respect of serious offences therein specified.
A close and vigilant examination of the circumstances of this case
reveals that the state made its intentions clear, when charges
were
put to the appellant in the court
a quo
, that the sentencing
provisions contemplated in
Section 51
and Schedule 2 of the CLAA
would be invoked.  The charge-sheet also explicitly states that
the victim is a 15-year-old, placing
the charge levelled against the
appellant within the purview of
section 51(1).
[20]
During his address in mitigation of sentence in the court
a quo
,
the legal representative of the appellant, after stating the personal
circumstances of the appellant on record, proceeded to request
the
court “
to deviate from the prescribed sentence of life
imprisonment.  There are compelling and substantial
circumstances referring to
previous conviction being a long time ago
and accused has a family depending on him.”
[21]     In
the case of
Legoa
,
[10]
Cameron JA explained the offences referred to in
section 51
as
follows:
“
The
offences scheduled in the minimum sentencing legislation are likewise
not new offences. They are but specific forms of existing
offences,
and when their commission is proved in the form specified in the
Schedule, the sentencing court acquires an enhanced penalty
jurisdiction. It acquires that jurisdiction, however, only if the
evidence regarding all the elements of the form of the scheduled
offence is led before verdict on guilt or innocence, and the trial
court finds that all the elements specified in the Schedule are
present”.
[22]
Section 220
of the CPA provides that an accused or his or her legal
adviser or the prosecutor may in criminal proceedings admit any fact
placed
in issue at such proceedings and any such admission shall be
sufficient proof of such fact. The appellant, prior to changing his
plea, admitted that he had sexual intercourse with the complainant
without her consent, thereby raped her and that at the time of
the
rape, the complainant, who is his daughter, was 15 years old.
[23]     The
question that has to be answered is the following: Having been
charged with rape read with
section 51
and Schedule 2 of the CLAA,
and having made the said
section 220
admissions, could it be said
that there is any doubt as to what was in the contemplation of the
State and the defence regarding which
subsection of
section 51
was
applicable, the benefit of which should be given to the accused?
In my view, this question should be answered in the negative.
The appellant, when instructing the legal representative to change
his plea of not guilty to that of guilty and admitting the elements
of the scheduled offence, cannot claim that his right to a fair trial
has been infringed.
Section 51(1)
is the only subsection in the CLAA
that confers enhanced penalty jurisdiction to the regional court for
rape of a person below the
age of 16 years and for that reason, the
appellant’s submission that he was not apprised of the State’s
intention to rely on
the provisions of
section 51(1)
is
unsustainable. It is also noteworthy that at no stage during the
trial did the appellant complain of any prejudice. He participated
fully in the trial and also changed his plea when it became clear
that his defence would not stand.
[24]
Sections 51(1)
and
51
(2) prescribe minimum sentences that should be
imposed in specific circumstances and the appellant’s specific
admissions of those
facts that brought the conviction within the
purview of
section 51(1)
and, following his conviction, the specific
submissions by his legal representative that there are substantial
and compelling circumstances
warranting the court
a quo
not to
impose the prescribed minimum sentence of life imprisonment are a
clear indication of the fact that the appellant was aware
of the
applicability of
section 51(1)
of the CLAA.
[25]     I am
therefore not persuaded that failure on the part of the State to
specifically mention the applicable
subsection of
section 51
of the
CLAA rendered the appellant’s trial unfair. The appellant has not
shown, in the court
a quo
and in this Court, how differently
he would have answered the charge had the charge-sheet specifically
stated that
section 51(1)
of the CLAA was applicable to the rape with
which he was charged. There is therefore no prejudice, in the legal
sense, that the appellant
suffered as a consequence of the omission.
The State, with the help of the appellant by admitting the elements
of the specific form
of rape contemplated in
section 51(1)
, proved
beyond a reasonable doubt that the appellant is guilty of rape for
which a minimum sentence of life imprisonment is prescribed,
subject
to the provisions of
section 51(3).
[26]
Counsel for the appellant and the respondent both argued that it
would not take the appeal any further
to seek an explanation from the
court
a quo
as to whether there was an inadvertent omission
from the reconstructed record that the appellant was specifically
appraised of the
applicability of
section 51(1)
of CLAA over and
above what is mentioned in the charge-sheet. That exercise would
indeed result in unnecessary delay and waste of
the scarce State
resources.
[27]     It
behoves this Court to mark its displeasure at what we consider to be
an unsatisfactory state of the
reconstructed record.  The record
of proceedings has not been certified as correct by the clerk of the
court. In her reasons
for judgement, the Learned Magistrate makes
reference to her
ex tempore
judgement but has omitted to state
the specific pages to which reference is made.  The document,
entitled reasons for judgement,
appears to be a standard form to
which no particular attention is given upon its completion which is
unhelpful in the adjudication
of an appeal.
[28]     I
now turn to the issue whether the court
a quo
was correct in
finding that there are no substantial and compelling circumstances
warranting deviation from the prescribed minimum
sentence of life
imprisonment.
[29]     As
indicated earlier in this judgement, Mr. Reyneke conceded, rightly so
in my view, that the personal
circumstances of the appellant as
placed before the court
a quo
, are not sufficiently
substantial and compelling to warrant deviation from the prescribed
sentence of life imprisonment. His personal
circumstances are that he
is 36 years old and he has previous convictions, the last of which he
was sentenced to 12 years’ imprisonment
and released on parole in
2008. He is married to the complainant’s mother, who is unemployed.
He completed grade 10 and is in good
health. He has three minor
children, one of whom is the complainant.
[30]     In S
v Malgas
[11]
the SCA set out how a court should conduct an enquiry as to whether
substantial and compelling circumstances exist as follows:
“
Here lies the
rub. Somewhere between these two extremes the intention of the
legislature is located and must be found. The absence
of any
pertinent guidance from the legislature by way of definition or
otherwise as to what circumstances should rank as substantial
and
compelling or what should not, does not make the task any easier.
That it has refrained from giving such guidance as was done
in
Minnesota from whence the concept “substantial and compelling
circumstances” was derived is significant. It signals that it
has
deliberately and advisedly left it to the courts to decide in the
final analysis whether the circumstances of any particular
case call
for a departure from the prescribed sentence. In doing so, they are
required to regard the prescribed sentence as being
generally
appropriate
for crimes of the kind specified
and enjoined not to depart from them unless they are satisfied that
there is weighty justification
for doing so. A departure must be
justified by reference to circumstances which may be seen to be
substantial and compelling as contrasted
with circumstances of little
significance or of debatable validity or which reflect a purely
personal preference unlikely to be shared
by many”
.
[31]     It is
trite that sentencing is a matter within the discretion of the trial
court which ought not to be interfered
with unless a decision thereon
is vitiated by a misdirection or the sentence is so disproportionate
that no reasonable court could
have imposed it.
[12]
[32]     Rape
has been described as a very serious offence which constitutes a
humiliating, degrading and
brutal invasion of the privacy, the
dignity and the person of the victim.
[13]
What is particularly disconcerting is the fact that the complainant
is not only a 15-year-old girl, but the appellant’s biological
child who had to relive this ordeal through her testimony and,
together with her mother, subjected to cross-examination which was
intended to make them appear as dishonest witnesses who fabricated a
falsehood against the appellant. The complainant attempted to
avoid
the appellant, from whom she was entitled to seek protection, only to
be brutalised in a manner she probably could never have
imagined.
[33]     The
court
a quo
was correct in finding that the personal
circumstances of the appellant did not qualify as substantial and
compelling circumstances
justifying the imposition of a lesser
sentence. In sentencing the appellant, the court
a quo
properly weighed the appellant’s personal circumstances, the nature
and seriousness of the offence and the interest of society
and its
finding cannot be faulted.
[34]     In
my view, there is no ground whereupon I can find that the sentence
imposed by the court
a quo
is shockingly inappropriate and
that no other reasonable court could have imposed same. This Court is
consequently not entitled to
interfere with the sentence imposed by
the court
a quo
and the appeal must accordingly fail.
[35]     I
would therefore make the following order:
1.
The appeal against sentence is dismissed.
M.S.
LITHEKO, AJ
I
concur and it is so ordered
M.
OPPERMAN, J
On behalf
of appellant:
MR. D. Reyneke
Instructed
by:
Legal Aid South Africa
Bloemfontein
On behalf
of respondent:
Adv. M. Lencoe
Instructed
by:
Office of the Director of Public Prosecutions
Bloemfontein
/roosthuizen
[1]
Case no: A118/2020,
FSHC (4 November 2021).
[2]
2017 (2) SACR 305
(CC).
[3]
Section
35
(3) (a) provides that, “Every accused person has a right to a
fair trial, which includes the   right to be informed
of
the charge with sufficient details to answer it”.
[4]
Section
51
(2) (b) of the CLAA provides that 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 case of a first offender,
to imprisonment for a period not less than 10 years, 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 section by more
than five years.”
[5]
S v
Legoa
2003 (1) SACR 13
(SCA) of paragraph 21.
[6]
At
paragraph 21.
[7]
2003 (1) SACR 331
(SCA) at paragraph 12.
[8]
S v
Kolea
2013 (1) SACR 409
(SCA) at paragraph 18.
[9]
S v
Jaipal
[2005] ZACC 1
;
2005 (1) SACR 215
(CC) at paragraph 29.
[10]
At
paragraph 18.
[11]
2001
(1) SACR 469
(SCA) at paragraph 18.
[12]
Bogaards
v
S 2013
(1) SACR 1 (CC) at paragraph 41.
[13]
S v
Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at page 5 a-b.