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[2017] ZASCA 82
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Director of Public Prosecutions, Gauteng v Grobler (6/2017) [2017] ZASCA 82; 2017 (2) SACR 132 (SCA) (2 June 2017)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 6/2017
In
the matter between:
DIRECTOR
OF PUBLIC PROSECUTIONS, GAUTENG
APPELLANT
and
MORNE
GROBLER
RESPONDENT
Neutral
Citation:
Director
of Public Prosecutions, Gauteng v Grobler
(6/2017)
[2017] ZASCA 82
(2 June 2017).
Coram:
Lewis, Petse and
Mathopo JJA and Gorven and Mbatha AJJA
Heard:
2
May 2017
Delivered:
2
June 2017
Summary:
Appeal by Director
of Public Prosecutions:
s 311
of the
Criminal Procedure Act 51
of 1977
: appeal against the decision of a Provincial or Local
Division on appeal to it competent before this court only on a
question of
law: the High Court’s finding that a complainant
below the age of 12 years acquiesced in a sexual act defined as rape
and
then considered this as a mitigating factor in sentencing, is a
question of law: appeal upheld and matter remitted.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Preller J and Kganyago AJ,
sitting as court of appeal):
1
The appeal is upheld.
2
The question of law raised by the State is determined in its favour.
3
The sentence imposed by the High Court is set aside.
4
The matter is referred back to the High Court for the appeal on
sentence to be dealt with in accordance with the principles set
out
in this judgment.
JUDGMENT
Petse
JA (Lewis and Mathopo JJA and Gorven and Mbatha AJJA concurring):
[1]
This is an appeal by the Director of Public Prosecutions, Gauteng,
arising from what it submits is a question of law in relation
to
sentence, decided in favour of the respondent, which informed the
sentence imposed by the Gauteng Division of the High Court,
Pretoria
(Preller J and Kganyago AJ), sitting on appeal from a judgment of the
Regional Court, Louis Trichardt, Limpopo. I shall
refer to the court
as the High Court for convenience. This court granted special leave
to appeal against sentence.
[1]
It is more properly an appeal under s 311 of the Criminal
Procedure Act
[2]
(the CPA) and was argued on that basis. It concerns the question
whether imputing consent to a sexual act (defined as rape) by
a child
under the age of 12 years for purposes of sentence is competent.
[2]
The respondent, Mr Morne Grobler, was arraigned in the regional court
on the following seven charges: (a) three counts of rape
in
contravention of s 3 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 1997 (the Sexual Offences
Act);
(b) using a child for child pornography in contravention of s 20(1)
of the Sexual Offences Act (count 4); (c) exposing,
displaying or
causing the exposure or displaying of child pornography in
contravention of s 19
(a)
of the Sexual Offences Act (count 5); (d) sexual grooming of children
in contravention of s 18(2)
(a)
of the Act (count 6); and (e) possession of a film or publication
containing child pornography in contravention of s 27(1)
(a)
(i)
of the Films and Publications Act 65 of 1996 (the Films Act) (count
7). In the regional court, he pleaded not guilty to all
seven counts.
[3]
Briefly, the background to which the charges relate is as follows.
The respondent and the complainant’s mother, AG, married
each
other during September 2006. The complainant, CC, who was ten years
old at the time, and her younger brother, TT, lived with
the
respondent and their mother at the Air Force Base in Louis Trichardt.
The complainant and her brother were AG’s children
from a
previous relationship. All of the offences in respect of which the
respondent was charged were alleged to have been committed
during the
period spanning from September to November 2009 at the family home on
various occasions when the complainant’s
mother was not at
home. The allegations against the respondent, broadly stated, were
that on various occasions during this period,
the respondent,
unlawfully and intentionally, penetrated the complainant’s
vagina, anus and mouth with his penis. And that
he took photographs
of the sexual acts with his cellular phone, thus creating
pornographic material, and transferred and stored
these on the family
computer. It was also alleged that he had shown the complainant
pornographic images of him and her mother having
sex, and that he
sexually groomed the complainant.
[4]
The complainant’s mother testified at the trial that on the
morning of 2 November 2009 whilst she was scrolling through
the
family computer she came across pornographic images of adult women
and later stumbled upon photographic images of the respondent
engaged
in sexual acts with the complainant. This fortuitous discovery set
the wheels of justice into motion and culminated in
the prosecution
of the respondent on the seven charges mentioned earlier. It is,
however, not necessary in my view to recapitulate
all the evidence
led at the trial. Rather, this judgment will focus on a single issue
decisive of this appeal, namely, whether
the appeal is one based on a
question of law: that the High Court wrongly took into account that
the complainant could have consented
to the sexual act (defined as
rape) when she was but ten years old. I shall deal with the facts
underlying the application of the
wrong principle more fully below.
[5]
At the conclusion of the trial the respondent was convicted on six
counts, but was acquitted on count 6. After hearing both
the defence
and the State on mitigation and aggravation of sentence, the regional
magistrate sentenced the respondent, in terms
of s 51
[3]
of the
Criminal Law Amendment Act 105 of 1997
, to life imprisonment
on each of the three rape counts. The three remaining counts (counts
4, 5 and 7) were treated as one for
purposes of sentence and a
sentence of 10 years’ imprisonment was imposed. In addition,
the regional magistrate directed
that the respondent’s
particulars be recorded in the sexual offences register in accordance
with
s 50(2)
(a)
[4]
of the Sexual Offences Act.
[6]
It bears mention that the sentences of life imprisonment imposed in
respect of counts 1 to 3 were in consequence of the finding
by the
regional magistrate that there were no substantial and compelling
circumstances present. Thus, it held that a departure
from the
mandatory sentence of life imprisonment was not justified.
[7]
Aggrieved by his conviction and resultant sentences, the respondent
unsuccessfully applied for leave to appeal to the North
Gauteng High
Court, Pretoria in terms of
s 309B
of the
Criminal Procedure Act
(the
CPA). However, the respondent successfully petitioned the High
Court for leave to appeal in terms of
s 309C
of the CPA.
[8]
The respondent was successful in his appeal to the High Court. As to
the convictions, the High Court found that in relation
to counts 4, 5
and 7 and having regard to the conspectus of the evidence led at the
trial, these charges had been proved beyond
a reasonable doubt. It
then proceeded to consider whether the rape convictions on counts 1,
2 and 3 were sustainable on the evidence.
In regard to counts 2 and
3, the High Court said that on the complainant’s evidence,
which was corroborated by the medical
evidence, she was neither
anally nor vaginally penetrated by the respondent. The High Court
decried the fact that no medical evidence
by the doctor who had
examined the complainant was presented at the trial to substantiate
these counts. Relying on this court’s
judgment in
S
v MM
[2011] ZASCA 5
;
2012 (2) SACR 18
(SCA) (para 24), it consequently set
aside the respondent’s convictions on these two counts. It
substituted the two convictions
with sexual assault in contravention
of s 5(1) of the Sexual Offences Act.
[5]
[9]
In the event the High Court concluded that although the complainant’s
evidence – approached with the necessary caution,
given her
tender age and the fact that in relation to the actual sexual acts
she was a single witness – was not without blemish,
it was
nevertheless to be preferred to that of the respondent. Accordingly,
it found that the regional magistrate’s rejection
of the
respondent’s version as false beyond a reasonable doubt could
not be faulted.
[10]
With regard to the sentence on the conviction on rape, count 1
(namely, the intentional and unlawful insertion by the respondent
of
his penis in the complainant’s mouth), it is apposite to make
reference to some of the passages in the High Court’s
judgment
which bear directly on the crucial issue raised in this appeal. When
analysing the State’s evidence in relation
to this count, the
High Court said:
‘
The
first thing that struck me about the evidence of the complainant’s
mother was that she never mentioned finding any indication
of
distress or trauma about the incidents on the part of the victim when
she asked her about what the appellant had done to her.
She testified
in chief that she had asked her child whether the appellant had
touched her inappropriately, which she confirmed.’
[11]
The court then proceeded to say the following:
‘
In
her evidence the complainant stated that she participated in these
activities with the appellant because he had told her that
there
would be trouble if she did not do as he told her. It is not clear on
her evidence that she acted out of fear or that the
threat was
repeated on any subsequent occasion. It is in any event not her
version that there was any form of compulsion on every
occasion.
Apart from the alleged threat there is no indication in her evidence
of how she felt about the incidents – no expression
of fear,
disgust, embarrassment or any other negative emotion. That also
appears from the two photographs in the exhibits on which
her facial
expression can be seen and which show no sign of fear, anguish,
embarrassment, disgust or any other negative emotion.
Based
on the above evidence there is a strong suspicion that the victim was
not an unwilling participant in the events
.
I am fully aware that she was at the time only ten years old and that
the absence or otherwise of her consent is irrelevant as
an element
of the commission of the offence.
It
must, however, be an important factor in considering an appropriate
sentence
.’
(Own emphasis.)
[12]
When the High Court said that the complainant was under the age of
ten years at the time of the rape – thus under the
age of 12
years – and that ‘the absence or otherwise of her consent
[was] irrelevant as an element of the commission
of the offence’
it obviously had in mind s 57(1) of the Sexual Offences Act. The
section reads, in material parts:
‘
Inability
of children under 12 years and persons who are mentally disabled to
consent to sexual acts.—(1) Notwithstanding
anything to
the contrary in any law contained, a male or female person under the
age of 12 years is incapable of consenting to
a sexual act.
(2)
. . . ’
[13]
Having disposed of the appeal against the convictions, the High Court
proceeded to deal with the appeal against the sentences.
First, it
noted that the regional magistrate had found that there were no
substantial and compelling circumstances justifying a
departure from
the mandatory sentence ordained by law. It also took cognisance, as
the trial court had done, of both the prevalence
and seriousness of
the crime of rape and its traumatic consequences for its victims and
the fact that the respondent had betrayed
the complainant’s
trust. It nonetheless lamented the fact that the respondent’s
personal circumstances – which
it enumerated – were in
its view not accorded sufficient weight in determining an appropriate
sentence. On this score it
will be recalled that in dealing with
count 1 the High Court had indicated that the fact that the
complainant had been a willing
party to the sexual act would be a
mitigating factor in relation to sentence. The High Court concluded
that the trial court had
overlooked material factors and that the
sentences were therefore not appropriate ones.
[14]
The High Court then proceeded to consider what sentences to impose on
the respondent in substitution of those imposed by the
trial court.
In relation to the inquiry as to whether or not substantial and
compelling circumstances existed, it said:
‘
The
personal circumstances of the appellant, the fact that he is a first
offender who spent 18 months in custody awaiting trial,
the nature of
his offence and the limited effect that it had on the complainant and
the serious consequences that his offence already
had for himself,
cumulatively constitute substantial and compelling circumstances that
justify the imposition of a lesser sentence.’
It
then imposed a globular sentence of ten years’ imprisonment,
treating all counts as one for purposes of sentence, five
years of
which were conditionally suspended.
[15]
Dissatisfied with the sentence imposed, particularly in respect of
count 1, which it believed to be disproportionate to the
gravity of
the rape perpetrated by the respondent – and other issues which
are no longer material for present purposes –
the State
applied for and was granted special leave to appeal against sentence
to this court.
[16]
The right of the State to appeal under s 311 is expressly
regulated by the CPA and the
Superior Courts Act 10 of 2013
therefore
finds no application.
[6]
As already mentioned, the State appeals on the basis that a question
of law was decided in favour of the respondent which formed
the
foundation for the sentence imposed by the High Court on appeal to
it. The High Court accordingly substituted sentences for
those
imposed by the trial court. Unlike convicted persons, such a right of
appeal relating to a sentence imposed by a High Court
sitting as a
court of appeal arises only where the High Court has given a decision
in favour of the convicted person on a question
of law.
[17]
In its heads of argument, the State relied on four grounds of appeal
which it contended constitute questions of law. It argued
that, if
this court determines any one of the questions of law upon which it
relies in its favour, it would have jurisdiction to
entertain this
appeal.
[7]
But, at the hearing before us, the State expressly disavowed reliance
on three of its grounds of appeal. It persisted in the remaining
ground, that is whether the High Court wrongly took into account its
own inferences that the complainant had consented to the sexual
acts
in question in imposing sentence. This appeal by the State is
therefore brought in terms of
s 311(1)
of the CPA. Accordingly,
this court can only enter into the merits of the appeal if it is
satisfied that the ground of appeal relied
upon by the State involves
a question of law.
[18]
Section 311(1)
provides:
‘
(1)
Where the provincial or local division on appeal, whether brought by
the attorney-general or other prosecutor or the person
convicted,
gives a decision in favour of the person convicted on a question of
law, the attorney-general or other prosecutor against
whom the
decision is given may appeal to the Appellate Division of the Supreme
Court, which shall, if it decides the matter in
issue in favour of
the appellant, set aside or vary the decision appealed from and, if
the matter was brought before the provincial
or local division in
terms of-
(a)
section
309(1)
, re-instate the conviction, sentence or order of the lower
court appealed from, either in its original form or in such a
modified
form as the said Appellate Division may consider desirable;
or
…
.’
[19]
The only remaining question pursued by the State on appeal, which it
considered a question of law, was formulated in its heads
of argument
as follows:
‘
That
the [High] Court erred in law in imputing consent by conduct and/or
acquiescence to the commission of the offences, by a child
below the
age of 12 and in its consideration thereof as an important factor in
mitigation of sentence.’
[20]
The State contended that in terms of s 57(1) of the Sexual
Offences Act a child under the age of 12 years is incapable
of
consenting to a sexual act. Thus, so the argument went, the ‘consent’
to or ‘acquiescence’ in the sexual
act by the complainant
– who was only ten years old at the time – could not, as
a matter of substantive law, be taken
into account in determining an
appropriate sentence.
[21]
It was submitted on behalf of the State that the fact that the High
Court did so was wrong in law because it undermined the
clear and
unambiguous provisions of s 57(1) of the Sexual Offences Act.
Further, that it was illogical to find that the complainant’s
supposed ‘willing participation’ in the sexual acts could
ever be a mitigating factor when it came to the question
of sentence.
[22]
Counsel for the respondent submitted with reference to certain
decisions of this court,
[8]
that: (a) this court does not have jurisdiction to entertain an
appeal by the State against a sentence substituting the one imposed
by a regional court; (b) that the State was not empowered to appeal
against factual findings, however patently wrong they might
be; and
(c) that there is sound and enduring jurisprudence of this court that
the nature of a sentence could never be a question
of law.
[23]
Furthermore, it was contended on behalf of the respondent that even
if this court were to accept that the High Court was wrong
in
imputing consent to the complainant in relation to sentence that
would still not avail the State in this case. For this submission
counsel relied on
S
v Mosterd
1991
(2) SACR 636
(T) at 640C-D. There it was said that the nature of the
sentence imposed could never be a question of law decided in favour
of
the convicted person. In
Director
of Public Prosecutions, Gauteng v Mphaphama
this
court cited the dictum in
Mosterd
(at 640C-D) with approval. It went on to say the following (para 11):
‘
[C]ertainly,
when it comes to the exercise of a judicial discretion in favour of a
convicted person in regard to sentence, that
cannot be a question of
law decided in favour of his or her favour. The definition of an
appeal in the
Superior Courts Act, however
, overrides a consideration
of
s 311
of the CPA, in terms of the decision in
Kock
.
This has to prevail, even if [the] argument that there is indeed a
question of law were to be correct.’
[24]
A brief analysis of some of the cases upon which counsel for the
respondent strongly relied is essential. In
Olivier
this
court was primarily concerned with the question whether the State can
appeal against a lenient sentence imposed by a High Court
substituting a sentence imposed by a magistrate’s court. It
found that the CPA does not provide for such an appeal when no
question of law was implicated.
[25]
In
Mtshweni
this
court was called upon to determine a question of law reserved for
decision in terms of
s 319
of the CPA. And that question was
whether the trial judge was obliged to call a witness under
s 186
of the CPA whose evidence was essential to a just decision of the
case. This court found that failure to do so amounted to an error
of
law. In addition, this court noted
[9]
that there could be no appeal by the State against an acquittal where
the court had erred in evaluating the facts or in drawing
inferences,
even if the error was grave.
[26]
Again in
Kock
this court dealt with a situation similar to that in
Olivier
.
There the State had sought an increase of a sentence imposed by the
High Court sitting as a court of appeal on the basis that
such a
sentence was disturbingly lenient. Whilst this court acknowledged
that the State’s disgruntlement with the sentence
was
understandable, it nonetheless struck the appeal from the roll for
want of jurisdiction. As with
Olivier
,
no question of law was implicated.
[27]
In
Mphaphama
the
State appealed against a sentence imposed by the High Court sitting
as a court of appeal from the regional court. There the
High Court
had reduced a sentence of life imprisonment to 20 years’
imprisonment. At the outset, this court called upon counsel
for the
State to first argue whether the matter was appealable and indicated
that only when this anterior question was determined
in favour of the
State would the appeal be heard on the merits. As the appeal had
initially been brought in terms of
s 316B
of the CPA, counsel
for the State sought to rely on
s 311
of the CPA when she was
confronted with the judgment of this court in
Director
of Public Prosecutions, Western Cape v Kock.
However,
reliance on
s 311
did not avail the State because this court
found that ‘the definition of an appeal in the
Superior Courts
Act, however
, overrides a consideration of
s 311
of the CPA, in
terms of the decision in
Kock
.’
Consequently the appeal was struck from the roll.
[28]
Having regard to the facts of the decisions discussed in paras 24-27
above and the issues to be determined, there can be no
doubt that
they are distinguishable from the facts of this case. In this case,
the High Court imputed consent to the complainant.
It did so despite
the clear and unequivocal provisions of s 57(1) of the Sexual
Offences Act referred to above. In doing so,
the High Court committed
an error of law. It therefore follows that the present case falls
foursquare within the purview of s 311
of the CPA. In these
circumstances the interests of justice dictate that the sentence
imposed by the High Court must be set aside.
[29]
Although the facts in
Mphaphama
are at first blush not materially distinguishable from the facts of
this case, the issues raised in the two cases are different.
Hence
the different outcomes. Accordingly, the dictum in
Mphaphama
that ‘the exercise of a judicial discretion in favour of a
convicted person in regard to sentence cannot be a question of
law’,
is cast too wide. In particular it does not deal with the position
where that discretion has been exercised on an incorrect
legal basis.
An exercise of a judicial discretion based on a wrong principle or
erroneous view of the law is clearly a question
of law decided in
favour of a convicted person. This also distinguishes the present
matter from that of
Mosterd
because
it is not the nature of the sentence, but the legal basis on which it
was approached, which places this matter within the
ambit of s 311
of the CPA.
[30]
Counsel were agreed that if we came to the conclusion that the appeal
must succeed, as we have, it would be desirable to remit
the case to
the High Court for a proper determination of sentence in light of
this judgment. This is, however, not expressly provided
for in s 311
of the CPA. But in
Attorney-General
(Transvaal) v Steenkamp
1954
(1) SA 351
(A) at 357F-G, this court – in the course of dealing
with the predecessor to s 311 – said that in a situation
such as the present the case could be remitted as ‘it could
hardly have been the intention of the legislature that, where
the
order of this court does not finally dispose of the issues raised in
the first Court of Appeal, some of those issues must .
. . be left
hanging in the air’. Furthermore, having regard to the lapse of
time since the imposition of sentence by the
trial court, the course
suggested by counsel seems to me to be eminently reasonable as the
sentence will have to be considered
afresh. The respondent may well
have already served the whole or part of the sentence imposed by the
High Court. Accordingly, whatever
fresh sentence will be imposed on
him, will necessarily have to take this factor into account.
[31]
Before concluding I am constrained to say that the High Court appears
to have overemphasized the respondent‘s personal
circumstances
at the expense of the gravity of the crimes and the interests of
society, including those of the complainant.
[32]
It has repeatedly been said that rape is unquestionably a despicable
crime. Its enormity in the context of the facts of this
case is
aggravated by the fact that the complainant was sexually abused by
her stepfather. In
S
v Jansen
1992
(2) SACR 368
(C) at 378G, rape was rightly described as ‘an
appalling and perverse abuse of male power’. In
N
v T
1994 (1) SA 862
(C) at 863C-D,
[10]
the court said that rape is ‘a horrifying crime and . . . a
cruel and selfish act in which the aggressor treats with utter
contempt the dignity and feeling of [the] victim’. In this case
the respondent abused his ‘position of authority and
command’
over his stepdaughter.
[33]
In
S v D
1995 (1) SACR 259
(A) the vulnerability of young
children was underscored. There this court said the following (at
260F-I):
‘
Children
are vulnerable to abuse, and the younger they are, the more
vulnerable they are. They are usually abused by those who think
they
can get away with it, and all too often do. . . . Appellant's conduct
in my view was sufficiently reprehensible to fall within
the category
of offences calling for a sentence both reflecting the Court's strong
disapproval and hopefully acting as a deterrent
to others minded to
satisfy their carnal desires with helpless children.’
[34]
As to the use of children as objects of pornography, the remarks of
the Constitutional Court in
De Reuck v Director of Public
Prosecutions, Witwatersrand Local Division & others
[2003] ZACC 19
;
2004 (1)
SA 406
(CC) are instructive. The Constitutional Court said (para 61):
‘
In
determining the importance of s 27(1) of the [Films and Publications
Act 65 of 1996], it is necessary to examine its objective
as a whole.
The purpose of the legislation is to curb child pornography, which is
seen as an evil in all democratic societies.
Child pornography is
universally condemned for good reason. It strikes at the dignity of
children, it is harmful to children who
are used in its production,
and it is potentially harmful because of the attitude to child sex
that it fosters and the use to which
it can be put in grooming
children to engage in sexual conduct.’
[35]
The Constitutional Court then went on to say the following (para 63):
‘
Children's
dignity rights are of special importance. The degradation of children
through child pornography is a serious harm which
impairs their
dignity and contributes to a culture which devalues their worth.
Society has recognised that childhood is a special
stage in life
which is to be both treasured and guarded. The State must ensure that
the lives of children are not disrupted by
adults who objectify and
sexualise them through the production and possession of child
pornography. There is obvious physical harm
suffered by the victims
of sexual abuse and by those children forced to yield to the demands
of the paedophile and pornographer,
but there is also harm to the
dignity and perception of all children when a society allows
sexualised images of children to be
available.’
In
this case the respondent gratuitously violated the complainant’s
rights to dignity, privacy and physical integrity in a
most
humiliating and demeaning manner. Accordingly, on the facts of this
case one must, in relation to sentence on count 1, keep
uppermost in
the mind with a measure of abhorrence the respondent’s
unfatherly conduct in sexually molesting his stepdaughter.
[36]
In the result the following order is made:
1
The appeal is upheld.
2
The question of law raised by the State is determined in its favour.
3
The sentence imposed by the High Court is set aside.
4
The matter is referred back to the High Court for the appeal on
sentence to be dealt with in accordance with the principles set
out
in this judgment.
____________
X
M PETSE
JUDGE
OF APPEAL
APPEARANCES:
For
the Appellant:
J Cronje
Instructed by:
The Director of Public Prosecutions,
Pretoria
c/o The Director of Public
Prosecutions, Bloemfontein
For
the Respondent:
H L Alberts
Instructed by:
Justice Centre, Pretoria
c/o Justice Centre,
Bloemfontein
[1]
See
Director
of Public Prosecutions, Gauteng Division, Pretoria v Moloi
(1101/2015)
[2017] ZASCA 78
(2 June 2017), paras 70-71, in which this court by
majority held that an appeal under s 311 does not require
special leave
to appeal. And that any order granting special leave
to appeal is neither necessary nor competent. Since the appeal is
brought
in terms of s 311 of the CPA leave should not have been
sought nor granted.
[2]
Criminal
Procedure Act 51 of 1977
.
[3]
Section
51
(1) provides: ‘Notwithstanding any other law, but subject
to subsections (3) and (6), a regional court or a High Court shall
sentence a person it has convicted of an offence referred to in
Part
I
of Schedule 2 to imprisonment for life.’ Those subsections
(s 51(3)
(a)
and
(6)) in turn provide for departures from the prescribed sentence if
a court is satisfied that substantial and compelling circumstances
exist which justify the imposition of a lesser sentence than the
sentence prescribed and where the accused was under the age
of 16
years at the time of the commission of an offence (in terms of the
old
s 51(6)).
[4]
Section 50(2)
(a)
provides: ‘A court that has in terms of this Act or any other
law— (i) convicted a person of a sexual offence against
a
child or a person who is mentally disabled and, after sentence has
been imposed by that court for such offence, in the presence
of the
convicted person;
must
make an order that the particulars of the person be included in the
Register.’
[5]
In terms of this
provision, ‘a person ('A') who unlawfully and intentionally
sexually violates a complainant ('B'), without
the consent of B, is
guilty of the offence of sexual assault.’
[6]
See
s 1
of the
Superior Courts Act 10 of 2013
which provides:
‘”appeal” in
Chapter
5
,
does not include an appeal in a matter regulated in terms of the
Criminal Procedure Act, 1977 (
Act
51 of 1977
),
or in terms of any other criminal procedural law.’
[7]
Compare:
S
v Seedat
[2016]
ZASCA 153
;
2017 (1) SACR 141
(SCA) paras 29-30.
[8]
Director of
Public Prosecutions v Olivier
2006
(1) SACR 380
(SCA) paras 13-15;
Director
of Public Prosecutions, Transvaal v Mtshweni
2007
(2) SACR 217
(SCA) para 19;
Director
of Public Prosecutions, Western Cape v Kok
[2015]
ZASCA 197
;
2016 (1) SACR 539
(SCA);
Director
of Public Prosecutions, Gauteng v Mphaphama
[2016]
ZASCA 8; 2016 (1) SACR 495.
[9]
Paras 19-22.
[10]
The court also
found (at 378E-F) that ‘an argument which seeks to invoke the
consent of a nine-year old girl borders on
obscene’.