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[2019] ZAFSHC 195
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T M and Another v S (A109/2019) [2019] ZAFSHC 195 (24 October 2019)
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,
FREE
STATE
DIVISION,
BLOEMFONTEIN
Appeal
no:
A 109/2019
T
M
1
st
Appellant
T
O 2
nd
Appellant
and
THE
STATE Respondent
HEARD
ON:
14 October 2019
CORAM:
MHLAMBI, J
et
MURRAY AJ
JUDGMENT
BY:
MURRAY AJ
DELIVERED
ON:
24 OCTOBER
2019
[1]
On 28 February 2017 Regional Court Magistrate B.B. Mahlatsi in
Bethlehem convicted the Appellants of one count of Rape and sentenced
them to 15 (FIFTEEN) years’ imprisonment each. Their appeal
lies against both conviction and sentence.
[2]
The court
a quo
dismissed their Applications for Leave to
Appeal. However, on 11 October 2017 Jordaan ADJP, as he
then was, and Chesiwe
AJ, as she then was, granted the Appellants
leave to appeal against their convictions and sentences on Petition.
[3]
The grounds of appeal against their conviction are that the court
a
quo
erred
3.1 in finding that the
State had proved its case, and
3.2 in rejecting the
Appellants’ version of consensual sex with the Complainant.
[4]
The grounds of appeal against their sentences are that the Court
a
quo
erred
4.1 in underestimating
the mitigating factors;
4.2 in overemphasising
the aggravating factors; and
4.3 in not taking into
account the prospect of rehabilitation for first offenders.
[5]
Mr J D Reyneke of Legal Aid South Africa appeared for the Appellants
and Adv K E Lesie-Shale of the Office of the Director of
Public
Prosecutions for the State.
[6]
The Complainant’s version is that around 2:00 in the morning in
question she was walking home from a tavern when the Appellants
approached her from behind and grabbed her by the hands. Second
Appellant is a former boyfriend of hers. They
promised to
walk her to her brother’s house. They took a different
route, however, and refused to let her go.
When she attempted
to pull away, they only grabbed her hands more tightly and started
pulling her. When she tried to scream,
Second Appellant blocked
her mouth with his hands and told her not to wake the elders.
[7]
The Appellants then walked her, still holding onto her hands, to a
house that appeared to be known to First Appellant and threw
her into
a dark shack in the backyard of the house. They threw her down
on a bed and one of them grabbed her by one leg and
held onto her leg
while the other one pulled her shorts and panty off the other leg.
The one then held onto both her legs while
the other one raped her
vaginally. It was too dark to see his face. When he had
finished, he left and the second one
raped her. By that time it
was getting light and she saw that the one raping her at that stage
was the Second Appellant.
When he got up to look for his
trousers, she saw a mentally ill person lying on another bed in the
shack.
[8]
While the Second Appellant was at the back of the shack, she escaped,
got dressed at the gate of the house and ran away. When
she
reached her brother’s house, she was crying and reported to one
Mapaseka Cele that she had been raped. In the morning
they
reported the rapes to the Police and she was examined by a doctor.
The DNA results were not disputed by the Appellants.
It
confirmed the presence of a mixture of the DNA of both Appellants on
a swab taken from the Complainant’s underwear.
[9]
Each of the two Appellants was originally, in terms of Count 1,
charged with “
an
act
of
sexual penetration”
,
in other words, with one count of rape. The Prosecutor informed
the Court just before the Appellants were asked to plead,
that he had
added a second count of Rape by way of Count 2, pertaining to the
same Complainant and the same incident. In
Count 2, as well,
the Appellants were charged with “
an
act
of
sexual penetration
”
[1]
,
in other words with a single count of rape.
[10]
The two charge sheets were patently defective. The relevant
part of Count 1 reads as follows: “
Rape
… read with the provisions of Section 51 of the Criminal
Procedure Amendment Act 105 of 1977”
[2]
and
the relevant part of Count 2 determined as follows “
RAPE
(read with the provisions of Section 51* and Schedule 2 of the
Criminal Law 105 of 1997, as amended)”.
Neither
of the written charges therefore specified which subsection of
Section 51 and which Part of Schedule 2 of Act 105 of 1997
(“the
Act”) were applicable. Neither of the charge sheets in
the description of the crime mentioned that the
Complainant had been
raped twice, either.
[11]
The Appellants could therefore not know what potential prescribed
minimum sentences they were facing, which could potentially
vary from
life imprisonment for s 51(1) read with Part I of Schedule 2, to 10
years’ imprisonment for s 51(2) read with Part
III of Schedule
2 for first offenders.
[12]
Whereas the original written charge sheet on Count 1 only referred to
“s 51”, the Prosecutor orally inserted “
read
with Section 51(1)
or
51(2)(b) and Schedule 2”
when he read Count 1 into the record. When he read Count 2
into the record, he orally replaced the asterisk in “
s 51*”
with “
read with Section 51(1),
read with
section 51(2)(b)
and read with Schedule 2”
[my
underlining]
.
The two charges pertaining to the same incident
are therefore not only ambiguous but also contradictory in that the
first charge
referred to either s 51(1) or s 51(2), and Schedule 2
was not even mentioned, while the second referred to both s 51(1) and
s 51(2),
and the applicable Part of Schedule 2 was not specified.
[13]
In
S v
Ndlovu
[3]
Khampepe
J stressed the Constitutional duty of prosecutors to ensure that the
correct charge was preferred against the accused.
From the
evidence it is clear that the Appellants should have been charged
with and convicted of Rape in terms of s 51(1)
read with Part 1 of
Schedule 2 of Act 105 of 1997, which provides in subsection (a)(i)
for rape “
committed
in circumstances where the victim was raped more than once whether by
the accused or by any co-perpetrator or accomplice”
and
for which the applicable minimum sentence is life imprisonment.
[14]
While the Appellants were charged with separate counts of rape, and
while there is no indication in the charge sheet that they
were
acting together or that the Complainant was raped twice, and that
they would therefore face life imprisonment if so convicted
, the
court
a quo
held that the evidence is “
proof of an
incident of rape, where both the accused took part … The Court
is of the opinion that BOTH THE ACCUSED are GUILTY
of rape, which is
one count and not rape on two counts”
.
[15]
From the formulation of the conviction and the way the charges were
formulated in the charge sheets, that the court in attempting
to
convict the Appellants in terms of s 51(1), misdirected itself by
convicting them of only
one count of rape.
To compound
the misdirection, the court then during sentencing held that “
the
Minimum Sentences Act says life imprisonment unless if there are
substantial and compelling circumstances
.”
[16]
Life imprisonment would indeed have been applicable if he had found
the Appellants guilty of rape in terms of s 51(1) read
with Part I of
Schedule 2 as he should have. But, since he explicitly
convicted each of them of only one count of rape, s
51(2) read with
Part III of Schedule 2 would have been the applicable provision and
10 years’ imprisonment would have been
the relevant prescribed
minimum sentence since for all intents and purposes the Appellants
were both first offenders.
[17]
I respectfully align myself with Khampepe J when she, in
S
v Ndlovu
[4]
,
in addressing the Constitutional responsibilities of the judiciary
[5]
regarding the implementation of the Criminal Law Amendment Act 105 of
1996, held that:
“
The [courts] are
the gatekeepers of justice… In this case the magistrate could
have and should have taken steps to ensure
that Mr Ndlovu was
prosecuted and convicted in terms of the correct provision of the
Minimum Sentencing Act. Courts are expressly
empowered in terms
of s 86 of the Criminal Procedure Act to order that a charge be
amended…”
[18]
Mr Reyneke submitted, correctly so, that an accused person must know
from the onset, and certainly before he pleads, exactly
what he is
charged with and, if the minimum sentence regime is involved, what
possible sentence he faces. It is clear from the
case law dealing
with defective charge sheets that it is indeed desirable that the
charge sheet should alert the accused to the
sentence that is likely
to be imposed on him in terms of the Minimum Sentences Act.
[19]
The material question in such a case is whether the accused had a
fair trial despite the imperfection in the charge sheet.
In
S
v Kolea
[6]
the
court determined that the question that the trial court has to pose,
should be:
“
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 any enhanced punishment in
terms of the applicable
legislation.”
[20]
In
S v
Ndlovu
[7]
Mpati
JA held that if the State intends to rely upon the sentencing regime
created by Act 105 of 1997, a fair trial will generally
demand that
the State’s intention explicitly 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.
[21]
Van der Merwe JA confirmed this in
S
v Khoza and Another
[8]
when
he held that:
“
As a general rule,
fair-trial rights require that an accused person should be informed
at the outset of the trial of the provisions
of the Minimum Sentence
Act (or other provisions relating to an increased sentencing regime)
that the State intends to rely upon
or which are applicable.
The accused person should generally be so informed in the indictment
or charge sheet; by notification
by the presiding officer or in any
other manner that effectively conveys the applicable provisions to
the accused person before
or at the commencement of the trial.”
[22]
In the present case there is no indication in the record that the
court
a quo
ascertained at the beginning of the trial that the
Appellants had been informed that the charges they were facing fell
under the
minimum sentence regime. Even when the
prosecutor added and read into the record the second charge, no
reference was
made to the minimum sentence regime. It was only
during sentencing, after the court had convicted both Appellants,
that life
imprisonment was mentioned for the first time during
argument for sentence.
[23]
In my view, then, due to the inadequacy of the charge sheets and the
putting of the charges at the beginning of the trial,
the Appellants
were not sufficiently apprised of the charges they were facing and
were not timeously informed of the prospect of
enhanced punishment,
in this instance life imprisonment, to be able to find that they
would have had a fair trial if they were
indeed to be convicted in
terms of the provisions of s 51(1) read with Part I of Schedule 2 and
convicted to life imprisonment.
[24]
Despite the court
a quo’s
misdirection as to the exact
provision the conviction should fall under, however, there is no
doubt on the accepted evidence that
the Appellants indeed raped the
Complainant twice. They were thus correctly convicted of rape,
although not in terms of the
correct provision. As Mr Reyneke
submitted, the conviction should therefore merely be corrected and,
in view of their conviction
of rape “
which is one count and
not rape on two counts”
be held to have been made in terms
of s 51(2) read with Part III of Schedule 2 of Act 105 of 1997.
Ms Lesie-Shale conceded
the misdirection.
[25]
I have no reason to question the court
a quo’s
credibility
finding and acceptance of the evidence of the Complainant regarding
her having been raped by both Appellants. Her
version was
corroborated by the evidence of Ms Cele and the DNA report, the
contents and results of which the Appellants did not
dispute, and
which confirmed a mixture of the DNA of the two Appellants, T O and T
M, on the sperm swab. Their defence of consensual
sex was
contradicted by the evidence led in court and the court
a quo’s
rejection of their version as false beyond a reasonable doubt is
unassailable.
[26]
The appeal against conviction therefore cannot succeed and the
conviction is merely held to have been done in terms of s 51(2)
read
with Part III of Schedule 2 of Act 105 of 1997.
[27]
This Court is also entitled to interfere in the sentences since the
court
a quo
misdirected itself in finding that 15 years’
imprisonment would be an appropriate sentence without finding any
substantial
and compelling circumstances to deviate from the
applicable one of life imprisonment if the court
a quo
indeed
convicted them in terms of s 51(1) as it thought it had.
[28]
The two Appellants had been charged with two separate counts of
rape. The applicable sentences fall under the ambit of
s
51(2)(b) read with Part III of Schedule 2. Neither life
imprisonment, nor 15 years’ imprisonment would therefore
be
competent sentences. Since the Appellants are both first
offenders, the applicable sentence would be one of 10 years’
imprisonment. The State conceded as much.
[29]
The First Appellant’s relevant personal factors are that he is
26 years old, that he only completed standard 4 in school,
that he is
unmarried and childless, that both his parents are alive, that he is
unemployed and that he is a first offender. The
personal
circumstances of the Second Appellant are that he is 23 years old,
that he passed standard 10, that he is also unmarried
and childless,
that both his parents are dead and that he is unemployed. Both
had consumed alcohol before committing the
rape.
[30]
Even though they are relatively young, there is no indication that
the Appellants’ relative youthfulness in any way impacted
on
their moral blameworthiness, and their age can therefore at most be a
neutral factor. The fact that they are first offenders
is
already accounted for in the applicable minimum sentence of 10 years’
imprisonment. In my view the personal
circumstances of
the Appellants are not weighty enough, even cumulatively, to outweigh
the aggravating factors and so to constitute
substantial and
compelling circumstances which would justify lesser sentences.
[31]
Aggravating factors are that the two Appellants showed no remorse for
their deeds. Without owning up to their misdeeds their
prospect of
rehabilitation is minimal and need not be taken into account. Instead
of taking responsibility for their deeds, they
lied about the
Complainant having consented to intercourse. They also betrayed the
Complainant’s trust by undertaking to
accompany her to her
brother’s house, but then forcefully throwing her into a dark
shack where they assisted each other to
take turns to rape her.
[32]
Furthermore, rape is an abhorrent crime, the cruellest invasion of
the victim’s privacy, often leaving such person psychologically
scarred for life. It is so prevalent in this country today that it
has been referred to as a scourge and a pandemic.
In my view, therefore, the aggravating factors, taken together with
the interests of the community in seeing that such crimes are
appropriately punished, outweigh the mitigating ones.
[33]
I therefore cannot find substantial and compelling circumstances to
justify a lesser sentence than 10 (ten) years’ imprisonment.
Nor can I find that the aggravating circumstances are so
horrendous that an escalation of 5 years above the applicable
prescribed
minimum one would be justified, either.
[34]
Due to the court
a quo’s
misdirection, the appeal
against sentence therefore has to succeed and the Appellants’
sentences of 15 years’ imprisonment
need to be set aside and
replaced with sentences of 10 (ten) years’ imprisonment each.
WHEREFORE
I make the following order:
1. The appeal against
conviction is dismissed. The Appellants are held to be
convicted of Rape in terms of the provisions
of section 51(2) read
with Part III of Schedule 2 of the
Criminal Procedure Amendment Act
105 of 1997
.
2. The appeal against
sentence succeeds. The Appellants’ sentences are set
aside and replaced with ones of 10 (TEN)
years’ imprisonment
each.
__________________
MURRAY
AJ
I
concur and it is so ordered.
___________________
MHLAMBI
J
For
the Appellants: Mr JD Reyneke
Attorney for the
Appellant
Instructed by Legal Aid
SA
BLOEMFONTEIN
For
the Respondent: Adv KE Lesie-Shale
Office of the Director of
Public
Prosecutions
BLOEMFONTEIN
[1]
“’
n
handeling van seksuele penetrasie”
[2]
“
Verkragting
… en gelees met die bepalings van Artikel 51 van die
Strafregwysigingswet 105 van 1977, soos vervang deur artikel
1, Wet
38 van 2007.”
[3]
2017
(2) SACR 305
(CC) at para [57]
[4]
Supra,
at
para [56]
[5]
See
also: Tshepang Jack Nkgashu v State (Unreported judgment of
the Free State Division, Appeal no
A88/2019
(Delivered 12 September 2019)
[6]
2013 (1) SACR 409
(SCA) at para [9]
[7]
2003 (1) SACR 331
(SCA) at para [12]
[8]
2019 (1) SACR 251
(SCA) at para [10]