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[2019] ZAGPPHC 209
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Bila and Another v S (A498/2017) [2019] ZAGPPHC 209 (12 June 2019)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
Case number: A 498/2017
Date of hearing: 6 June 2019
Date delivered:
12
June 2019
In the matter between:
JOHANNES
BONGANI BILA
1
st
Appellant
GIVEN
MODIBA
2
nd
Appellant
and
THE
STATE
Respondent
JUDGMENT
SWANEPOEL
AJ
THE CHARGE
[1]
The appellants, together with one Fanie
Ngake, were charged in the Regional Court sitting at Bronkhorstspruit
with one count of
contravention of section 3 of the Criminal Law
Amendment (Sexual Offences and Related Matters), Act, Act 32 of 2007,
in that on
or about 29 September 2012, and at or near Ext 5
Zithobeni, Bronkhorstspruit they unlawfully and intentionally
committed an act
of sexual penetration with a female person, J[….]
M[….] ("the complainant"), by forcing their penises
separately
into her vagina without her consent.
[2]
The appellants pleaded not guilty. In
their plea explanation they admitted to having had sexual intercourse
with the complainant,
but stated that it was with her consent and
that the complainant was a prostitute.
[3]
The appellants and their co-accused were
all convicted as charged. All were sentenced to life imprisonment.
The appellants initially
appealed against both conviction and
sentence. Leave to appeal as granted by this Court on sentence only.
THE
FACTS
[4]
The facts were briefly the following:
4.1
At 19h00 on the evening of 29 September 2012 the complainant was
walking to her sister-in-law's
place when she was grabbed by two men.
The first appellant was one of them and he placed a hand over the
complainant's mouth to
stop her from crying out for help.
4.2
The
complainant was dragged to first appellant's house where he strangled
and undressed her and then proceeded to rape her. During
the rape he
held her throat so that she could not scream. He had intercourse with
her a number of times, but she could not say
how many times.
4.3
During
the night the second appellant and Ngake came into the house and also
raped her. The following morning, before sunrise, she
was released.
She went straight to the police station to report the incident.
[5]
The court a
quo
found that because the complainant had endured
multiple rapes, the offence fell within the provisions of section 51
(1) of the Criminal
Law Amendment, Act 105 of 1997 ("the Act"),
read with Part I of Schedule 2 to the Act, and that the applicable
minimum
sentence was therefore life in prison.
MINIMUM SENTENCE
[6]
Section 51
of the
Criminal Law Amendment
Act, 1997
reads as follows:
"51
Discretionary minimum sentences for certain serious offences
(1)
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.
(2)
Notwithstanding any other law but
subject to subsections (3) and (6), a regional court or a High Court
shall sentence
a
person
who has been convicted of an offence referred to in-
(a).... .....
(b)
Part Ill
of Schedule 2, in the case of
(i)
a
first
offender, to imprisonment for a period of not less than 10 years;
(ii)
...
.........
(3)
(a) If any court referred to in
subsection (1) or (2) is satisfied that substantial and compelling
circumstances exist which justify
the imposition of a lesser sentence
than the sentence prescribed in those subsections, it shall enter
those circumstances into
the record of the proceedings and must
thereupon enter such lesser sentence...."
[7]
Part I
of Schedule 2 includes the
offence of rape committed in circumstances where the victim was raped
more than once, whether by the
accused or a co-perpetrator. The
circumstances set out in the charge sheet, as well as the evidence,
put the offence squarely within
the ambit of
Part I
of Schedule 2.
[8]
The sentencing jurisdiction of the
regional court is ordinarily a maximum of 15 years' imprisonment. The
Act increases its sentencing
powers to life imprisonment for specific
offences. The Supreme Court of Appeal has held that a fair trial
requires that an accused
should be made aware of the fact that a
conviction on the offence with which he is charged might result in a
minimum sentence being
imposed. In
S
v Ndlovu
2003 (1) SACR 331
(SCA)
(at
337 8) the following principle was laid down:
"[w]here 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."
·
[9]
Cameron JA held in
S
v Legoa
2003 (1) SACR 13
(SCA)
(at
23 B to D):
"But under the
constitutional dispensation it can certainly be no less desirable
than under the common law that the facts the
State intends
to
prove to increase
sentencing jurisdiction under the 1997 statute should be clearly set
out in the charge sheet.
The matter is, however, one of
substance and not form, and I would be reluctant to Jay down
a
general rule that
the charge must in every case recite either 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 drawn up. The accused might in any event
acquire the requisite knowledge from
particulars furnished to the
charge sheet 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."
[10]
In
S
v Kolea
2013 (1) SACR 409
(SCA)
the
Court emphasized that the test was simply whether the accused had a
fair trial:
"Thus the question that
should be posed should be the following: Did the appellant have
a
fair trial and,
more specifically, was the appellant sufficiently apprised of the
charge he or she was facing, and was he or she
informed, in good
time, of any likelihood of his or her being subjected to an enhanced
punishment in terms of the applicable legislation."
[11]
The test can therefore be summarized as
follows:
11.1
The
accused must be advised that the State is seeking to rely on the
provisions of a statute that might, if the accused is convicted,
result in the court having an enhanced sentencing jurisdiction;
11.2
The
accused must be advised of the facts that the State will seek to
prove, in order to bring the offence within the provisions
of the
statute;
11.3
In
considering whether the accused was appraised of the aforesaid one
must not be formalistic. The test is simply whether the accused
received sufficient and timeous notice so that his/her trial can be
said to have been fair.
[12]
In
S v ZW
2015 (2) SACR 483
(ECG)
the accused was
convicted in the regional court on two counts of rape and sentenced
to life imprisonment. The charge sheet set out
the facts of the
offence and stated that the provisions of section 51 (2) of the Act
were applicable. There was no mention made
during the trial of what
period of minimum sentence was applicable, and at no stage was the
accused advised that a conviction on
the charge put to him might
result in a sentence of life imprisonment. In sentencing the accused
the court a
quo
relied upon the provisions of section 51 (1)
and found that unless it found substantial and compelling
circumstances, it was obliged
to impose life imprisonment.
[13]
On appeal the court found that it was
improper to warn the accused that the provisions of section 51 (2) of
the Act were applicable,
and then to impose life imprisonment as
provided for in section 51 (1).
[14]
In
S
v
Makatu
2006 (2) SACR 582
(SCA)
the
accused was charged with murder subject to the provisions of section
51 (2), which, upon conviction would have required the
imposition of
a minimum of 15 years' imprisonment. The accused was convicted of
pre-meditated murder under section 51 (1), and
sentenced to life
imprisonment.
[15]
The Court held as follows (at 587 8 to E):
"The appellant in this
matter was charged with murder that, on conviction would render him
liable to
a
sentence of 15
years' imprisonment in terms of the Act. He was convicted on that
charge. He was then sentenced on the basis that
he had been charged
with and convicted of what amounted to
a
different
offence premeditated murder-that, under section 51 (1) of the
Act renders an accused liable to imprisonment for life.
The
imposition of that sentence is an obvious and grave misdirection. It
must be set aside and this Court is to consider the appropriate
sentence.
As a
general rule, where the
State charges an accused with an offence governed by section 51 (1)
of the Act, such
as
premeditated murder, it should state this
in the indictment. The rule is clearly neither absolute nor
inflexible. However, an accused
faced with life imprisonment
-
the most serious sentence that can be imposed
-
must from
the outset know what the implications and consequences of the charge
are. Such knowledge inevitably dictates decisions
made by an accused,
such as whether to conduct his own defence; whether to apply for
legal aid; whether to testify; what witnesses
to call; and any other
factor that may affect his or her right to
a
fair trial."
[16]
It is within the above guidelines that
one has to examine the trial proceedings. The record contains two
charge sheets. Both were
certified as true copies of the original.
The first has not been completed, whilst the second, presumably the
correct charge sheet,
contains the allegations against the
appellants. As stated, the latter charge sheet set out facts that
would bring the charge within
the ambit of section 51 (1) of the Act,
in that it alleged multiple rapes. However, the preamble to the
charge sheet refers to
section 51 (2) which excludes rapes listed in
section 51 (1). The charge sheet is therefore in itself
contradictory. The record
reveals that in a preliminary appearance on
28 February 2013 the accused were warned as follows:
"Wet op minimum vonnisse
reg op prokureur verduidelik"
[17]
It is not clear whether the provisions
of section 51 (1), section 51 (2), or both sections were explained to
the appellants. Given
the above, it would appear that the trial court
did not properly warn the appellants of the fact that they were
liable to be sentenced
to life imprisonment upon being convicted of a
charge involving multiple rapes. However, during the sentencing phase
the presiding
officer commented to their legal representative that
the charge was one referred to in Part I of Schedule 2. He replied:
"Yes, Your Worship. I am
aware of that, Your Worship and this has been explained to the
accused prior to this matter proceeding,
Your Worship and I explained
the seriousness of this matter, Your Worship."
[18]
It seems that not only was the
appellant’s legal representative aware that the charge fell
within the confines of section
51 (1) read with Part I of Schedule 2,
and that a sentence of life in prison might be imposed, he had also
warned the appellants
of the possibility of life imprisonment in
advance. Given those facts it is clear that, even though the charge
sheet was contradictory,
and the section of the Act referred to was
wrong, the appellants always knew that they were facing a charge
involving multiple
rapes, and that a conviction might result in life
imprisonment being imposed. The appellants testified in their own
defence, they
called witnesses, and it is difficult to imagine how
they could have conducted the trial differently. In our view the
appellants
received a fair trial. It is therefore our view that the
court a
quo
was
entitled to impose a sentence of life imprisonment in terms of
section 51 (1) of the Act.
[19]
In considering whether the sentence was
appropriate, the following should be taken into consideration:
19.1
Sentence is preeminently a matter for
the discretion of the trial court.
(
The
State v Skenjana
1985 (3) SA 51
(A))
19.2
A court is only entitled to deviate from
the applicable minimum sentence when the court finds that there are
substantial and compelling
reasons to do so.
[20]
The question as to what constitutes
substantial and compelling reasons was considered in
The
State v Ma/gas
2001 (2) SA 1222
(SCA):
"Moreover, those
circumstances had to be substantial and compelling. Whatever nuances
of meaning may lurk in those words, their
central thrust seems
obvious. The specified sentences were not to be departed from lightly
and for flimsy reasons which could not
withstand scrutiny.
Speculative hypotheses favourable to the offender, maudlin sympathy,
aversion to imprisoning first offenders,
personal doubts as to the
efficacy of the policy implicit in the amending legislation, and like
considerations were equally obviously
not intended to qualify as
substantial and compelling circumstances. Nor were marginal
differences in the personal circumstances
or degrees of participation
of co-offenders which, but for the provisions, might have justified
differentiating between them. But
for the rest I can see no warrant
for deducing that the legislature intended a court to exclude from
consideration, ante omnia
as it were, any or all of the many factors
traditionally and rightly taken into account by courts when
sentencing offenders.
The use of the epithets
"substantial" and "compelling" cannot be
interpreted as excluding even from consideration
any of those
factors. They are neither notionally nor linguistically appropriate
to achieve that. What they are apt to convey,
is that the ultimate
cumulative impact of those circumstances must be such as to justify
a
departure. It is
axiomatic in the normal process of sentencing that, while each of
a
number of
mitigating factors when viewed in isolation may have little
persuasive force, their combined impact may be considerable."
[21]
To determine whether a deviation from
the minimum sentence is appropriate one should consider the relevant
facts, which are the
following:
21.1
The complainant was accosted in the
early evening whilst on her way to her sister-in-law. She was
forcibly dragged to a house where
she was not only raped repeatedly
by three men, but also throttled to keep her quiet. She suffered
superficial injuries to her
throat and to her private parts. She was
held for a number of hours, only being freed in the early hours of
the morning.
21.2
At least two of the men had unprotected
intercourse with the complainant, exposing her to the threat of
sexually transmitted diseases.
She constantly worries that she might
be HIV positive.
21.3
After the incident the complainant was
described as being dirty, stammering, tired and she was crying. There
is no doubt that the
incident must have had a severe impact on her
life, especially given the fact that she was helpless in first
appellant's home,
and was subjected to hours of abuse. The record
does not reveal much about the impact of the offence on the
complainant, and it
is regrettable that a victim impact report was
not obtained.
21.4
First Appellant was 22 years old and,
like his co-accused, a first offender. He was employed as a machine
operator, had a Grade
11 qualification and was unmarried. He has one
child. He resided with his family. Second Appellant was 18 years of
age, worked
as a security guard, and had a Grade 9 qualification. He
was unmarried.
21.5
The appellants have shown no remorse,
but have persisted with their allegation that the complainant
was
a
prostitute, which no doubt caused
the complainant further embarrassment and secondary trauma.
[22] The
facts of the matter justify, in our minds, the imposition of life
imprisonment. The personal circumstances
of the appellants are
completely unremarkable. It was argued that they were relatively
young. It is so that a person's character
is often only fully
developed in later years. However, even a young person knows that it
is wrong to rape a woman. The appellants
were both employed, came
from good families, and there is no excuse for their inability to
control their actions. Similarly, the
fact that they are first
offenders in itself does not justify a lesser sentence. The
circumstances of the appellants, the crime
and the interests of the
community should be considered holistically to determine whether
there are substantial and compelling
reasons to deviate from the
minimum sentence.
[23]
In the circumstances we find that there
are no substantial and compelling reasons to deviate from the minimum
sentence.
[24]
I therefore
propose the following order:
24.1 The
appeal against sentence is dismissed.
Swanepoel
AJ
Acting
Judge of the High Court,
Gauteng Division, Pretoria
I agree and it is so ordered
JANSE VAN
NIEWENHUIZEN J
Judge of
the High Court
Gauteng
Division, Pretoria