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[2021] ZAGPPHC 359
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T.T v S (A180/2020) [2021] ZAGPPHC 359 (27 May 2021)
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REPUBLIC
OF SOUTH AFRICA
I
N
THE
H
I
GH
COURT
OF
SOUTH
AFRICA
GAUTENG
D
I
VISION,PRETORIA
CASE
NO:
A 180/2020
DPP
REF. NO:SA 61/2020
In the matter between:
T[...]
T[...]
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
PHAHLANE,
AJ
[1]
The appellant was convicted for rape in terms of section 3 of Sexual
Offences and Related Matters Act 32 of 2007, read with
the provisions
of section 51(1) of the Criminal Law Amendment Act 105 of 1997 ("the
Act"), and sentenced to life imprisonment
by the Regional court,
Benoni, on 05 August 2019.
[2]
This section provides that a person who has been convicted of an
offence referred to in Part I of Schedule 2 of the Act shall
be
sentenced to imprisonment for life unless there exist substantial and
compelling circumstances justifying a lesser sentence.
Part I of
Schedule 2 in turn refers to rape as contemplated in s 3 of the Act
where, inter alia, the victim is a person under the
age of 16 years
old.
[3]
The trial court ordered that the appellant's particulars be
registered in the Sexual Offenders Register and that his name be
included in the National Child Protection Register. The appellant was
legally represented during the proceedings in the court
a
quo
and is now approaching this court for an appeal
against conviction and sentence.
[4]
It is trite law that a court of appeal will not temper with the trial
court's decision regarding a conviction unless it finds
that the
trial court misdirected itself as regards its findings or the law.
With regards to conviction, the appellant stated in
his notice of
appeal that his guilty plea which he entered on 23 November 2016 was
erroneously entered and that the presiding officer
ought to have
amended the said plea to one of not guilty. To succeed on appeal, the
appellant need to convince this court on adequate
grounds that the
trial court misdirected itself as regards its findings.
[5] In
S
v Hadebe and Others
[1]
the
Supreme Court of Appeal
held that:
"In the absence of
demonstrable and material misdirection by the trial court, its
findings of fact are presumed to be correct
and will only be
disregarded if the recorded evidence shows them to be clearly wrong
".
[6]
The factual background can briefly be summarised as follows:
On
the 23 November 2016, the appellant, through his legal
representative, pleaded guilty to the count of rape on the allegation
that on 28 July 2016 and at or near Daveyton in the Regional Division
of Gauteng, he unlawfully and intentionally committed an
act of
sexual penetration with the complainant Ms L[...] N[...], an
8-year-old girl by inserting his penis into her vagina,
thereby
having sexual intercourse with her without her consent. His statement
in terms of section 112 (2) of the Criminal Procedure
Act 51 of 1977
("the CPA") was read into the record and handed in as
Exhibit "A". The appellant was then convicted
as charged on
the same day, on the basis of his plea of guilty.
[7]
The appellant stated as follows in Exhibit "A":
"...The facts
contained in this my plea, are true and correct and within my own
personal knowledge unless specifically indicated
otherwise.
I
know
and understand the charge of rape of a minor
against
me.
I also
understand that there
is a minimum sentence of life
imprisonment which
the court
will
impose
upon
me.
...
should
there be no
substantial
and compelling
circumstance
which mitigates against this sentence.
I
am in my sound and sober senses. I freely, voluntarily, no threats,
force to arrest, no promises having been employed against
me by
anyone whom soever to induce this plea , plead guilty to this charge.
On
the
28
July
207
6
during the
afternoon, I observed
the
complainant, well
known
to
me
as
L[…] N[…]
sitting outside
her
house
in
M
adingwane
street,
Daveyton,
waiting
for
her
f
ather
to
come
home.
I called
her
to
my
room
which
I
rent
from the
complainant'
s
father
,
which
is
Located
at
the same address at
M
adigwane
street. After
the
complainant entered my
room
of the
foresaid I undressed
her,
placed
her
on
my
bed,
removed
my
trousers and inserted
my
penis into
her
vagina
and had
sexual intercourse with her.
I
used a condom. I
was in all material times aware that
the complainant was
but
8
years
old and could not even
had she wanted to have
consented
to
me
thus
sexually
penetrating
her.
In
any
event
I
did
not give
the
complainant
any
opportunity
to
consent
to
my
actions
described above as
I force
fully undressed her,
put her
up on
my
bed
prior to
sexually
penetration her. I admit the
contents of the
J 88
and I further admit the
injuries
depicted thereon
were
as
a
result
of my
actions
described above
on
28
July
20
7
6
on
the
complainant. I was
at
all
material times
aware that
my
actions
as
above
were
wrong
and
against
the
Law..
.
"
[8] The trial court
having satisfied itself as regards exhibit A, convicted the
appellant, and the matter was remanded to obtain
a pre-sentence
report and victim impact report. Subsequent thereto on 11 June 2018,
the appellant was remanded to be detained at
Sterkfontein hospital in
order to give effect to section 77 and 78 of the CPA. After the
observation period at Sterkfontein hospital,
the appellant was found
to be fit to stand trial and that at the time of the alleged offence,
he was a bl e to appreciate the wrongfulness
of his actions and act
in accordance with such appreciation. The matter was remanded
to 27 July 2018 for sentence and the
report from Sterkfontein
hospital was obtained on this day. The court was informed on 27 July
2018 that the appellant wished to
change his plea. On 5 September
2018 the matter was remanded for judicare counsel to be appointed and
for the appellant to amend
his plea.
[9]
On the 11th of June 2019, advocate Taunyane appeared on behalf of the
appellant and the application to change the appellant's
plea of
guilty to that of not guilty was heard by the trial court. The
appellant's statement was read into the record, and once
again, he
confirmed the correctness of his statement. The grounds for the
application were mainly that that he was wrongly influenced
by his
mother who had negotiated with the family of the complainant to plead
guilty so that the charge could be withdrawn against
him. He further
indicated that he did not commit the alleged offence of rape. It is
noted in his affidavit that:
"[3] After I made
several appearances in court, my mother informed me that she
negotiated with the complainant that if I plead
guilty, she will
withdraw charges.
[4]
Further that
at
the
time
I was
legally
represented by
Legal aid
la
w
y
er
and
due to what my mother has told me, I
elected
to
grab that
opportunity with the
hope that
after entering a
guilty
ple
a
,
charges
were going to
be withdrawn
against me.
[5]
To
my
surprise,
things
did not
happen as
I hoped.
[6]
I further wish to place it on record that for me to enter a guilty
plea was as a result of what purported to be negotiations
between my
mother and the victim 's grandmother
[7]
I am still in demand that I did not commit the said offence
and my
plea of not
guilty
still
stand.
[8] It is
there
f
ore
my
request
to
the
honourable court
to
amend a
guilty
plea
entered
by me previously
to the one of
not
guilty in terms of
section
11
3
of
Criminal Procedure Act 57 of
7977
as
the
said guilty
plea was
induced by
a
promise ie.
withdrawal of the
cas
e
"
.
[10]
The trial court found that the intention of the appellant to change
his plea, was only brought to the court's attention 1 year
and 8
months after the appellant was convicted. The following aspects were
considered by the trial court regarding the application:
(a) for 1
year and 8 months no mention was made that the appellant was
influenced or promised that charges will be withdrawn should
he plead
guilty
(b)
only after the appellant was found fit to stand trial was the court
informed that the appellant wanted to change his plea (c)
the
appellant had previously alleged that he was in forced by his legal
representative at the time, to plead guilty (d) apart from
the fact
that the appellant mentioned that he wanted to change his plea, he
had also complained that he did not want to return
to prison (d) in
his statement pertaining to the amendment of his plea, the appellant
did not raise any valid defence to
the charge nor did he
indicate that he had previously incorrectly admitted the allegations
against him.
[11]
Advocate
Mariot on
behalf of the respondent
argued that
the appeal
should
be
dismissed
because
there
are
discrepancies
pertaining
to
the
reasons
why
the
appellant wanted to change
his plea.
Relying on the case of
Attorney
-General
Transvaal
v
Botha
[2]
where
the
court
referred to
S
v
Britz
[3]
,
counsel
submitted
that
the
appellant's
e
x
planation
is
improbable
and
beyond
reasonable
doubt
false for
the following
reasons:
11.1
The appellant firstly stated that he wanted to change his
first legal representative because he made him to plead guilty, and
that
is the reason why judicare counsel was appointed.
11.2
When the judicare counsel appeared before court, another
reason was given to court in seeking to have an amendment of his
plea,
in that the appellant stated that he was wrongly influenced by
his mother who had negotiated with the family of the complainant,
to
plead guilty so that the charges could be withdrawn against him. The
appellant indicated further that he did not commit the
alleged
offence of rape.
[12]
The court in
S v Britz
supra
stated that:
"The
accused wishing to withdraw his plea
of guilty must
give a
reasonable explanation as to why he had pleaded
guilty and now wishes to change his plea. A reasonable explanation
could be,
f
or
example,
that the
plea
was induced
by
f
ear,
fraud
,
duress,
misunderstanding or
mistake.
I
f
he
fails to
give an
explanation
the court would be entitled to
hold him to
his
plea of guilty. If he does
give an explanation,
there is no onus on him to
convince the court of
the
truth
of
his
explanation.
Even
though
is
explanation
be
improbable
the
court
is
not
entitled
to
refuse the
application,
unless
it is
satisfied not only that the explanation is improbable, but that
beyond
reasonable
doubt
it
is false.
If
there
is
any
reasonable
possibility of his
explanation being true,
then
he
should be
allowed
to withdraw his
plea of guilty.
"
[13]
Advocate Kgokane appearing for the appellant argued that the learned
Magistrate misdirected himself in finding
that the
appellant had to provide substantive reasons for the plea
of guilty to be changed to that of not guilty. He
submitted that the
conviction was not in accordance with justice and that the matter
should be remitted to the trial court for
reconsideration. Although
advocate Kgokane submitted that the appellant's conduct was
suspicious and raises a serious concern,
he argued that the
explanation advanced by the appellant that he was influenced by his
mother to plead guilty, is a reasonable
explanation which should have
persuaded the trial court to change the appellant's plea of guilty to
that of not guilty in terms
of
Section 113.
[14]
For a presiding officer to record a plea of not guilty in terms of
section 113
, there must be the basis upon which to record a plea of
not guilty. When a guilty plea was tendered on 23 November 2016, the
trial
court followed the procedure as required by
section 112(2)
in
order to satisfy itself that the appellant intended to plead guilty,
and to safeguard against the possibility that the appellant
had a
valid defence, and the appellant confirmed the correctness of his
statement as read out by his attorney, Ms Bhamjee.
[15]
Advocate Mariot correctly argued that the appeal against conviction
is void of merits. She submitted that the appeal should
be dismissed
for failure to give a reasonable explanation as to why the appellant
had previously pleaded guilty and later wanted
to change his plea.
[16]
It is on record that after the appellant was convicted and had
terminated the mandate of his counsel Ms Bambjee, he complained
about
the interpreter who had on a few occasions interpreted for him
without any problems and stated that the interpreter does
not speak
the same Sotho language as his. On the day on which an application
was to be made to change his plea, the appellant asked
the court to
refer him to Sterkfontein hospital and stated that he did not want to
go back to Modderbee correctional centre. The
reason according to
him, was that he was not given food and was on medication. He also
refused to take the oath, and his counsel
at the time, advocate
Thobejane, informed the court that he was struggling to draft an
affidavit to proceed with the application
to proceed with the
appellant's application to change his plea, and that there was no
progress in carrying out his mandate because
the appellant was not
cooperating with him.
[17]
Although an accused person may change his or her plea at any time
before sentence, in the circumstances of this matter in my
view, the
timing of the application in terms of
section 113
and the reasons
advanced, as well as the request by the appellant that he did not
want to be committed to a correctional facility,
is of grave concern
as also submitted by advocate Kgokane that the appellant' s conduct
which led to him wanting to change his
plea was suspicious and raises
a serious concern. It is clear from the appellant's
section 112
statement that he intended to plead guilty, and he was legally
represented at the time. He understood the consequences of his plea
of guilty and there is nothing in his statement which indicates that
there was a material contradiction to what was intended, or
a defence
or an element of outside influence. Nevertheless, the learned
magistrate correctly pointed out the need for a proper
basis for the
application for changing the plea. It is apparent that only in the
face of the looming reality of imprisonment, did
the appellant decide
to change his plea.
[18]
In my view, the appellant failed to give a reasonable explanation
calling for the application of
section 113
of the CPA. I therefore
agree with the trial court's finding that the appellant's affidavit
pertaining to the amendment of his
plea does not pass the test which
calls for the application of
section 113
of the CPA.
[19]
The appellant also stated in his notice of appeal, as a ground of
appeal, that there was no DNA collected from the victim to
match his
own DNA. This ground in my view cannot stand because the appellant
had in his
section 112
statement stated that he used a condom and
that he admits the contents of the J 88 as well as the injuries which
he says, were
as a result of his action.
[20]
With
regards to
sentence, this court must also determine whether
the
sentence imposed
on
the
appellant
was
justified
.
I
t
is trite
that
sentencing
remains
pre
eminently within the discretion of the sentencing court. I
n
dealing
with the court's
approach in
appeals
against sentence,
Boshielo
JA in
Mokela
v
The State
[4]
stated
that:
"This
salutary
principle implies that the appeal
court does not enjoy
carte balance to interfere
with sentence
which have been properly imposed by
a sentencing
court
"
.
[21]
The appellant was warned of the provisions of
section 51(1)
of the
Criminal Law Amendment Act 105 of 1997
. The offence for which he was
convicted and sentenced for, carries a term of life imprisonment. To
avoid this sentence, the appellant
had to satisfy the trial court
that substantial and compelling circumstances existed which justify
the imposition of a lesser sentence
than the prescribed minimum
sentence of life imprisonment. The trial court did not find such
circumstances .
[22]
It was submitted that the trial court ought to have deviated from
imposing the prescribed minimum sentence and considered the
time
spent by the appellant in custody awaiting finalization of his
matter. Further that the court should have considered the appellant's
age as he was 25 years old at the time of the commission of the
offence. Advocate Kgokane stated in his heads of argument that
the
fact that the appellant pleaded guilty to the offence and saved the
complainant from prolonged anguish and trauma of having
to relive the
ordeal by facing the appellant and testifying in court, meant that
the appellant was acknowledging his guilt. He
submitted that this
indicates that the appellant is a proper candidate for
rehabilitation. He further submitted that the
court should take
into consideration the fact that the complainant did not suffer
serious physical injuries during the rape.
[23]
It
is
the court's
duty
to
consider
all relevant
factors
in
determining
whether
substantial
and
compelling
circumstances
are
present. It
i
s
important for a
sentencing
court
to
properly
evaluate
and
balance
all
the
factors
against
the
benchmark set
by the
legislature.
There was
no evidence
placed
before the
trial
court
to
justify
the
imposition
of a
lesser
sentence than the
prescribed
minimum
sentence
of
life
imprisonment
on the
count of
rape of the
complainant
who
was 8 years
old at the
commission
of the
offence.
The
trial
court
considered
all the
personal
circumstances
of
the
appellant
placed
before
court
when
it
imposed
sentence
on the
appellant.
Having
done
that, the
court
was
also
mindful
of
the
'triad'
factors
pertaining
to
sentences
as
enunciated
in
S
v
Zinn
[5]
namely:
'the crime,
the
offender
and
the
interests
of
society.
Furthermore,
the
court
was mindful
of the warning
given in
S
v
Malgas
[6]
that
the court
should not
deviate
from
imposing
the
prescribed sentence for
flimsy
reasons. As stated
above,
the
appellant was convicted of
the offence
which falls under the purview of section
51(1)
of Act 105
of 1997.
With that
in
mind,
it
is
important
to heed
to the
purpose for
which
legislature
was
enacted,
when it
prescribed
sentences for specific
offences
which
falls
under
section
51(1) for
which the appellant
has been
convicted
and
sentenced
for.
This
section
makes it
clear
that
the
prescribed
sentence
for
a
rape of a
person
under the
age
of
16 years
is
life
imprisonment. The trial court held
that no
substantial
and
compelling circumstances
exist,
justifying
a
deviation
from the
prescribed
minimum
sentence.
[24]
The fact that appellant pleaded guilty, cannot be interpreted as a
sign that the appellant is a candidate for rehabilitation
while there
is nothing to support and substantiate this notion. By changing his
plea and denying raping the complainant, in my
view, shows that the
appellant did not want to take responsibility for his action. The
contention that the complainant did not
suffer serious injuries
cannot be supported. Section 51 (3) (a A) (ii) of Act 105 of 1997
makes it clear that lack of physical
injury to the complainant shall
not constitute substantial and compelling circumstances justifying
the imposition of a lesser sentence.
[25]
The Supreme
Court of Appeal in
the case of
The
Director
of
Public
Prosecutions,
Grahamstown
v
Mantashe
[7]
stated
that:
"The
reality
is
that
South
Africa has
five
times the
global
average in
violence
against
women.
[8]
There
is
mounting
evidence
that these
disproportionally
high levels
of
violence
against
women and
children,
has immeasurable and far-reaching effects
on the
health
of
our
nation,
and
its
economy
.
[9]
Despite
severe
underreporting
, there are
51 cases of child sexual victimisation per day.
U
N
ICEF
research has
f
ound
that over a third (35.4
%) of young
people have
been the
victim of sexual violence at
some point
in their
lives
.
What cannot be
denied
is
that our country is
f
acing
a
pandemic
of
sexual violence
against
women
and
children
.
Courts
cannot
ignore
this
fact.
In
these
circumstances
the
only ap
propriate
sentence is that
which
has
been ordained bv
statute
".
(own
emphasis)
[26]
In
considering
the
appropriate
sentence to
impose,
the tr
i
al
court considered the time
spent
by the
appellant
in custody
awaiting
finalisation
of
his
matter. In
my
view,
the
period
spent
in
custody
pending
finalization of a trial cannot on its own
be
regarded
as
constituting
substantial
and
compelling
circumstance.
In
addressing
the
issue of
time
spent
in prison
while
awaiting
trial, Lewis JA
in
S
v
Radebe
[10]
stated
that
"There should be no
rule of thumb in respect of the calculation of the weight to be given
to the period spent by an accused
awaiting trial
...
A mechanical formula to determine the extent to which the
proposed sentence should be reduced, by reason of the period of
detention
prior to conviction, is unhelpful. The circumstances of an
individual accused must be assessed in each case in determining the
extent to which the sentence proposed should be reduced
...
'
The
period in
detention
pre
-sentencing is
but
one
of
the
f
actors that
should
be taken into account in determin
i
ng
whether the effective
period of
imprisonment
to
be
imposed
is
justified: whether
it
is
p
r
oportion
a
te
to
the
crime
committed.
Such
an
approach would
take
into
account the conditions affecting
the accused in
detention and
the
reason
for a
prolonged period of detention.
And accordingly,
in
determining
...
whether substantial and
compelling circumstances warrant a lesser sentence than that
prescribed by the
Criminal Law Amendment Act 705 of
799
7
,
...
the test is not whether on its own that period of detention
constitutes a substantial or compelling circumstance, but whether the
effective sentence proposed is proportionate to the crime or crimes
committed: whether the sentence in all the circumstances, including
the period spent in detention prior to conviction and sentencing , is
a just one".
[27]
With regards to the submiss
ion
that the appellant was 25
years
old at the
time of
the
commission
of the
offence,
and that
he
did
not
have a
father
figure
to
guide him,
the Supreme Court
of
Appeal
in
S
v
Matyityi
[11]
held that
neither
youthfulness
nor the
accused's
background
and circumstance
constitute
substantial
and
compelling
c
ircumstances.
This
court
stated
that
the
courts
are
duty-bound
to
implement
the
sentences
prescribed
in terms
of the Act
and
that
ill-defined
concepts
such as
relat
i
ve
youthfulness
or other
equally
vague and
ill
founded hypotheses that
appear to
fit
the
sentencing
officer's personal notion
of
fairness'
ought to be
avoided.
[12]
[28]
I am of the view that the sentence imposed by the trial court cannot
be regarded as shockingly inappropriate. The trial court
considered
the relevant principles pertaining to the imposition of a sentence. I
have carefully considered the circumstances of
this case and the
submissions of the appellant's counsel and the respondent, and i can
find no misdirection in the trial court's
finding that there are no
substantial and compelling circumstances justifying a deviation from
the prescribed minimum sentence
of life imprisonment.
[29]
In
S v
Ro
and Another
[13]
the
majority of the Supreme Court of Appeal held
that:
"To elevate the
personal circumstances of the accused above that of society in
general and the victims in particular would
not serve the
well-established aims of sentencing, including deterrence and
retribution".
[30]
Having given proper and due consideration to all the circumstances,
we are of the view that the trial court did not misdirect
itself in
convicting the appellant. Consequently, we agree with the trial
court's finding that the appellant's plea of guilty and
the
conviction should stand. Furthermore, this court cannot fault the
decision of the sentencing court nor can it be said that
the sentence
imposed was shocking or unjust. We are of the view that the trial
court did not misdirect itself in imposing the prescribed
sentence of
life imprisonment, bearing in mind that the legislature has ordained
life imprisonment as the sentence that should
ordinarily and in the
absence of weighty justification , be imposed for the offence
committed by the appellant.
[31]
In the circumstances, the following order is made:
The
appeal against conviction and sentence is dismissed.
PD
PHAHLANE
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
I
agree,
MJ
TEFFO
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
For
the Applicant
: ADV. JL KGOKANE
Instructed
by
: PRETORIA JUSTICE CENTRE
STEYN
TOWERS, PRETORIUS STREET
PRETORIA
For
the Respondent
: ADV. MARIOT
Instructed
by
: DIRECTOR OF PUBLICATIONS
PRETORIA
Date
of Hearing
:
18 February 2021
Date
of Judgment
: 27 May 2021
[1]
1997 (2) SACR 641
(SCA) at 645e-f; See also: S v Pakane and Others
2008 (
1
) SACR 543
(SCA) at para
15
[2]
1993 (2) SACR 587
(A) at 589 E.
[3]
1963 (
I
) SA
394
(T) at 398 H- 3998.
[4]
2012 (1) SACR 431
(SCA) at para 9
[5]
1969 (2) SA 537 (A)
[6]
200I
(
I ) SACR
469 (SCA)
[7]
(131/20 19)
[
2020]
ZASCA
05
(
1
2
March
2020)
at
para
1
5
[8]
N Sibanda-Moyo et
al
'Violence
Against Women in
South
Africa:
A
Country
in
Crisis'
(2017)
at
8
[9]
BMJ
Global
Health C
Hsiao et al 'Violence against children
in
South
Africa:
the cost of inaction
to the
society
and the
economy'
(201 7).
[10]
2013 (2) SACR
1
65
(SCA) at para
1
6
(See also: S v
Sehoko
2009 (2) SACR 573
(NCK) at para 22.
[11]
S v Matyityi
2011(
1) SACR 40
(SCA) at para 23.
[12]
See also S v
Vilakazi
2009( 1 ) SACR 552 (SCA).
[13]
2010 (2) SACR 248
(SCA)