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[2021] ZAGPPHC 84
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Maphosa v S (A198/2020) [2021] ZAGPPHC 84 (1 March 2021)
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
(GAUTENG
DIVISION, PRETORIA DIVISION)
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER
JUDGES:
NO
(3)
REVISED:
Yes
APPEAL
CASE NO
:
A198/2020
COURT
A QUO
CASE NO
:
SH249/2019
DATE
:
23 February 2021
In
the matter between:
MAPHOSA:
GIFT
Appellant
-
and -
THE
STATE
Respondent
Coram:
Kubushi J
et
Millar AJ
Heard on
:
23 February 2021 – This appeal was, by consent between the
parties, disposed of without
an oral hearing in terms of
s 19(a)
of
the
Superior Courts Act 10 of 2013
.
Delivered:
1 March 2021 2021 – This judgment was handed down
electronically by circulation to the parties' representatives by
email,
by being uploaded to the
CaseLines
system of the GPD
and by release to SAFLII. The date and time for hand-down is deemed
to be 10H00 on February 2021.
Summary:
Criminal law and procedure – conviction
for the rape of a minor child – evidence of a single witness
corroborated by
medical evidence – imposition of life sentence
absent any substantial or compelling factors – conviction and
sentence
upheld – guilty plea in respect of contravention of
the Immigration Act – appeal against sentence dismissed –
order that appellant be deported after completion of sentence.
ORDER
On
appeal from:
The
Benoni Regional Court (Regional Magistrate Schutte sitting as Court
of first instance):
(1)
The
appeal against the conviction and sentence on the count of rape is
dismissed
(2)
The
appeal against the sentence imposed for contravening
section 49(1)(a)
of the
Immigration Act 13 of 2002
is dismissed.
(3)
The
appellant’s conviction and sentence by the Benoni Regional
Court be and is hereby confirmed.
(4)
A
copy of this Judgement is to be forwarded to: -
4.1.1
the
National Director of Public Prosecutions and
4.1.2
the
South African Human Rights Commission and
4.1.3
the
Department of Justice and Correctional Services and
4.1.4
the
Department of Home Affairs.
(5)
The appellant is to be deported after serving his sentence.
JUDGMENT
MILLAR,
A J
5
On
2 October the appellant, a 33-year-old man was arraigned in the
Regional Court for Benoni on 2 counts. The first, count 1, was
a
charge of rape
[1]
in respect of
a 12-year-old child and the second, for contravention of the
Immigration Act
[2
]
, in that he
entered and remained within the Republic without the required valid
documentation.
6
He
was found guilty and convicted on both counts. On 13 May 2020 he was
sentenced to life imprisonment for the rape and to 2 years’
imprisonment for the contravention of the
Immigration Act. The
appellant was legally represented throughout the proceedings.
7
The
appeal before this court is against both conviction and sentence in
respect of the count of rape. The right to appeal in circumstances
such as the present is automatic.
[3]
8
The
complainant, T[....] M[....] testified
[4]
that she is a 13-year-old girl who was born in Zimbabwe. She lived
with her family there and during March 2018 was brought, by
persons
she did not know, to the Republic to live and work as a child minder
and domestic worker for Alfred Phiri and Fortunate
Sibanda whose
2-year-old child she looked after while they were out to work during
the day. She was not related to either
Alfred or Fortunate but
Fortunate is related to the appellant. She lived in the home of
Alfred and Fortunate. The appellant
together with his partner,
Constance Dube, lived in a different house within the same yard.
She did not attend school and
the child minding and domestic work
filled her days.
9
Ms.
M[....] was unable to recall the specific date when the appellant had
first raped her but testified in some detail about what
he had done
to her. She thereafter testified that the appellant had raped her
repeatedly on succeeding “Wednesdays”
as that was the day
that he was off work. This had occurred over a 6-month period from
March to September 2018.
10
Ms.
M[....] testified that she had been too scared to tell anyone about
what the appellant was doing to her as he had warned her
that he
would kill her if she did. This was why she had not told anyone
with whom she lived about the ongoing rapes.
It was only after
she had been taken to the place of safety that she reported what had
happened to her. Significantly, her
“mother” who
she reported had come to visit her at the place of safety within a
short period of time after she was
taken there was told of the rapes
but had said and done nothing and it was only after the report was
made to Ms Mthimkhulu that
she was then taken to a social worker and
referred for medical examination.
11
Besides
Ms. M[....], the respondent also led the evidence of Ms. Margaret
Mthimkhulu who had testified about the circumstances under
which Ms.
M[....] had been taken into a place of safety and how the complaint
had come to light. Ms. Mthimkhulu testified
that she had never
met the “mother” of Ms. M[....] as she had visited her
when she was not on duty. The evidence
of Sister Rollin, a
professional nurse who is also an advocate of this Court and who
conducted an examination of Ms. M[....] and
had completed the J88
medical report form in which she had recorded her findings was also
led. The findings of Sister Rollin were
consistent with Ms. M[....]’s
evidence. The evidence of neither Ms Mthimkhulu nor that of Sister
Rollin was challenged..
12
The
appellant testified that he lived in the same “yard” as
Ms. M[....]. He testified that he was her uncle –
being the
brother of her father. He denied that he ever raped her and
testified that he was in employment and had been at
work on the days
that it was alleged the rapes had occurred. The place where he
worked utilized a “clock in system”
and he was off work
on Tuesdays but not Wednesdays. He worked 6 days a week.
13
He
also testified that he had reprimanded Ms. M[....] because “
she
would leave the minor child and go and sit with these other men who
stayed in the same yard as us and do their washing”
and that “
up
to 6 – 7 other men were renting in the same yard
”.
14
During
cross examination the appellant was asked why it had not been put to
Ms. M[....] that his evidence would be that he was off
work on
Tuesdays and not Wednesdays.
15
He
was unable to offer any explanation other than to state that he “
was
not given a chance to speak
”
and when asked why he had not informed his representative of this he
said, “
I
thought I was going to be given a chance to say my side of the story
”
and that he had consulted with his representative before Ms. M[....]
had testified. When the appellant’s evidence
was
concluded the case was adjourned so that his representative could
obtain evidence from his employer to corroborate that he
worked 6
days a week and was off on a Tuesday and not a Wednesday. When
the trial resumed however, no further witnesses were
called by the
appellant and his case was closed.
16
The
learned Magistrate considered all the evidence presented on behalf of
both the state and the appellant and, mindful of the fact
that Ms.
M[....] is a minor child, and a single witness was careful in the
evaluation and consideration of her evidence and applied
the
cautionary rules
[5]
when doing
so. After having carefully considered the defence proffered by the
appellant, the learned Magistrate rejected it
in
toto
and having found that the state had established the appellant’s
guilt beyond a reasonable doubt, convicted the appellant
of rape.
17
There
is no fault to be found with the learned Magistrates evaluation,
consideration and findings in respect of the evidence led
at the
trial and the conviction on the charge of rape is sound and must
stand.
18
Neither
the appellant nor the state led any evidence in respect of sentence
for either count 1 or count 2.
19
It
was submitted in mitigation that the appellant is a 33-year-old who
attended school to grade 9 in Zimbabwe. He is the eldest
of 4
siblings. His father passed away in 2002 and his mother is still
alive and residing in Zimbabwe. He is unmarried and has no
dependent
children although he has been in a relationship with Ms. Dube since
2016. He commenced full time employment in December
2017 and was
still employed by the same employer at the time of conviction. These
were the factors which it was argued should be
taken into account as
mitigating factors in regard to the imposition of sentence.
20
It
was held in S v Kumalo
[6]
that
“
Punishment
must fit the criminal as well as the crime, be fair to society, and
be blended with a measure of mercy according to the
circumstances.
The last of these four elements is often overlooked.”
21
In
respect of count 1, the rape charge, the imposition of the minimum
sentence can only be deviated from if the court finds that
in terms
of
section 51(3)
[7]
“
substantial
and compelling circumstances exist which justify the imposition of a
lesser sentence
”.
22
In
her judgment, on sentence, the learned Magistrate took cognizance of
the nature and seriousness of the offence, the community’s
interests as well as the appellant’s personal circumstances,
the purpose of sentencing as well as the relevant mitigating
and
aggravating factors.
23
There
were no personal circumstances of the appellant placed before the
court that can be regarded as “
substantial
and compelling
”
and the learned Magistrate was correct in finding no such
circumstances and imposing the minimum sentence of life imprisonment
24
The
test to be applied, when considering sentence on appeal is set out in
S v Kgosimore
[8]
- “
It
is trite law that sentence is a matter for the discretion of the
court burdened with the task of imposing sentence. Various tests
have
been formulated as to when the Court of appeal may interfere. These
include whether the reasoning of the trial court is vitiated
or
whether the sentence imposed can be said to be startlingly
inappropriate or to induce a sense of shock or whether there is a
striking disparity between the sentence imposed and the sentence the
Court of appeal would have imposed. All of these formulations,
however, are aimed at determining the same thing; viz. whether there
was a proper and reasonable exercise of the discretion bestowed
upon
the court imposing sentence.”
25
On
consideration of the matter as a whole there are no
“
substantial
and compelling circumstances
”
which justify any deviation from the imposition of the minimum
sentence in respect of the conviction on count 1 for rape
to life
imprisonment.
26
In
respect of count 2, the charge of contravening
section 49(1)(a)
of
the
Immigration Act 13 of 2002
, the sentence of 2 years which was
imposed is prescribed in accordance with the provisions of the
section, as amended by section
24 of the Immigration Amendment Act 13
of 2011. The sentence imposed on this count was according to law and
there is no reason
to interfere with it.
27
Two
further matters require mention.
28
Firstly,
having regard to the offence for which the appellant has been
convicted, he is disqualified from ever entering temporarily
or
remaining permanently in the Republic lawfully. This is apparent from
the provisions of
Section 29(1)(b)
of the
Immigration Act
[9
]
.
However, notwithstanding this, the learned Magistrate failed to make
an appropriate order for the deportation of the appellant
once he has
served his sentence. This failure is material in my view.
29
A
full bench
[10]
of
this Court held that:
“
once
an accused has been found guilty in terms of
Section 49(1)
and
sentenced either to a fine or imprisonment, the trial Court must in
addition make an order for her or his deportation.”
And
“…
.in
every case where an order for the deportation of an illegal foreigner
has been made, the judgement must be brought to the attention
of all
the Departments of Government that deal or are entrusted with the
deportation of illegal foreigners and all the other institutions
in
the value chain.”
30
The
full bench carefully set out the various State Departments to whose
specific attention a deportation order should be brought
and the
reasons therefore.
[11]
31
These
are:
“
3.1.20.1
the National Department of Public Prosecutions, so that it is brought
to the attention of prosecutors
that when arguing sentence, a
deportation order should be one of the orders that a prosecutor
requests from the trial court;
3.1.20.2
the Director General of the Department of Justice so that it be
brought to the attention
of judicial officers that when a court
convicts an illegal foreigner in terms of
section 49
(1) of the
Immigration Act, an
order for the deportation of such a person is
made, as well;
3.1.20.3
the Commissioner of the Correctional Services in order to facilitate
the deportation
of the person so convicted when his or her sentence
comes to an end; and
3.1.20.4
the Department of Home Affairs so as to commence with the process of
the deportation
of the illegal foreigner once sentence has been
served.”
32
It
is in the circumstances necessary to make an appropriate order for
the deportation of the appellant, which I intend to do.
33
Secondly,
the evidence led at the trial setting out the family circumstances of
Ms. M[....], the manner in which she was brought
to the Republic and
the situation she then found herself in living and working as a child
minder and domestic worker and being
deprived of the right to attend
school is disquieting to say the least.
34
The
impression gained from the consideration of this evidence as a whole
is that it was neither by choice nor in her interests for
her to be
brought to the Republic in the manner she was and to be subjected to
what she was. The evidence led in the
trial gives a clear
impression that the “mother” who visited Ms. M[....]
after she was taken to the place of safety,
was not her biological
mother but in fact someone whom she looked up to, possibly one of the
women living in the same yard.
There is a clear impression when
one has regard that she was deprived of the right to attend school
and subjected to what was clearly
forced labour as a domestic worker
and child minder that she was brought to the Republic solely for that
purpose.
35
This
requires further and immediate investigation lest other young
children find themselves in a similarly precarious situation.
It
is for this reason that this judgment is to be forwarded to the
office of the National Director of Prosecutions as well
as the South
African Human Rights Commission for urgent investigation and
attention.
36
In
the circumstances, I propose the following order:
36.1
The
appeal against the conviction and sentence on the count of rape is
dismissed.
36.2
The
appeal against the sentence imposed for contravening
section 49(1)(a)
of the
Immigration Act 13 of 2002
is dismissed.
36.3
The
appellant’s conviction and sentence by the Benoni Regional
Court be and is hereby confirmed.
36.4
A
copy of this Judgement is to be forwarded to:-
36.4.1
the
National Director of Public Prosecutions;
36.4.2
the
South African Human Rights Commission;
36.4.3
the
Department of Justice and Correctional Services;
36.4.4
the
Commissioner of Correctional Services; and
36.4.5
the
Department of Home Affairs.
36.5.
The appellant is to be deported after serving his sentence.
A
MILLAR
ACTING JUDGE OF THE HIGH COURT
I
AGREE AND IT IS SO
ORDERED
E
KUBUSHI
JUDGE
OF THE HIGH COURT
HEARD
ON:
23 FEBRUARY 2021
JUDGMENT DELIVERED
ON:
26 FEBRUARY 2021
COUNSEL FOR THE
APPELLANT:
ADV S MOENG
INSTRUCTED
BY:
LEGAL AID SA
PRETORIA JUSTICE CENTRE
COUNSEL FOR THE RESPONDENT:
ADV MJ VAN VUUREN
INSTRUCTED
BY:
THE STATE ATTORNEY
[1]
The
charge sheet specifically drew the attention of the appellant to the
relevant provisions of the Criminal Law Amendment Act
32 of 2007 and
Criminal Procedure Act 51 of 1977
in terms of which he was charged.
It also specifically drew his attention to the minimum sentencing
provisions of
Section 51
and Schedule 2 of the
Criminal Law
Amendment Act 105 of 1997
in the event of a conviction.
[2]
13
of 2002
[3]
Section
309(1)(a)
and
309B
(1)(a) of the
Criminal Procedure Act 51 of 1977
[4]
Through
an intermediary given her young age and the nature of the complaint.
[5]
S
v Artman
1968 (3) SA 339
(A) at 341B; S v Hlapezula and Others
1965
(4) SA 439
(A) at 440G
[6]
1973
(3) SA 697
(AD) at 697B-C
[7]
of
Act 105 of 1997
[8]
1999
(2) SACR 238
(SCA) at paragraph 10
[9]
Section
29(1)(b) provides that persons convicted of murder, whether within
or outside the Republic do not qualify for either a
temporary or
permanent residence permit.
[10]
Luis
Alberto Cuna v S, an unreported decision of the full bench of this
Court under case number A6/2020 handed down on 15 December
2020 at
paragraphs 3.1.16 and 3.1.20
[11]
Supra
at paragraphs 3.1.20.1 to 3.1.20.4