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[2018] ZAGPPHC 274
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Ntshakala v S (A584/2016) [2018] ZAGPPHC 274; 2018 (2) SACR 580 (GP) (26 January 2018)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
(GAUTENG DIVISION,
PRETORIA)
CASE
NO: A584/2016
DATE:
26/01/2018
In
the matter between:
MUZI
ZACHIOUS
NTSHAKALA
Appellant
and
THE
STATE
Respondent
JUDGMENT
TEFFO,
J:
[1]
The appellant was convicted in the Regional Court, Piet Retief, on
one count of rape of an 11 year old girl, his [...], in contravention
of s 3 of the Sexual Offences and Related Matters Act, 32 of 2007. He
was sentenced to imprisonment for life. He now appeals against
his
conviction and sentence in terms of the provisions of s 10 of the
Judicial Matters Amendment Act, No 42 of 2013.
The
section provides that an accused person who has been sentenced to
imprisonment for life by the Regional Court under
s 51(1)
of the
Criminal Law Amendment Act, No 105 of 1997
may note an appeal without
having to apply for leave in terms of
s 309
B of the Criminal
Procedure Act,51 of 1977 ('the Act').
The
point in limine
[2]
An issue was raised that, while the record reflects that the
appellant's mother asked the prosecutor that the mental state of
the
appellant be investigated and the trial court having been made aware
of the situation, failed to direct that the matter be
enquired into
and be reported in accordance with the provisions of s 79 of the Act.
It was argued that the trial court's approach
on the issue did not
conform to the prescript of ss 77, 78 and 79 of the Act. It
accordingly constituted an irregularity which
infringed the
appellant's right to a fair trial and that, on that basis, the
conviction and sentence should be set aside.
The
appeal against conviction
[3]
The conviction of the appellant is challenged on the basis that the
trial court did not approach the evidence of the complainant,
a
single witness to the rape, with the necessary caution.
[4]
It was also pointed out that the trial court erroneously rejected the
appellant's version.
The
appeal against sentence
[5]
The sentence of the appellant is criticised on the basis that it is
harsh and shockingly inappropriate. It was further submitted
that the
trial court erred in concluding that there are no substantial and
compelling circumstances present justifying it to deviate
from
imposing the prescribed minimum sentence of life imprisonment.
[6]
The state disagreed with both submissions on both conviction and
sentence. It was argued on behalf of the state that the appellant
was
correctly convicted and that the sentence is justified.
The
evidence
[7]
The state called two witnesses, namely, Ms N. Z. S.(the complainant)
and Ms P. M. (P.) in support of its case while the appellant
testified without calling witnesses.
[8]
The complainant testified with the use of a CCTV and was assisted by
an intermediary. Her evidence was briefly as follows :
The incident
happened on a Sunday. She did not recall the date and month. She was
visiting her stepfather (the appellant)'s place
of residence. While
she was in the kitchen, she asked the appellant to borrow her his
cell phone. The appellant said she could
go and get it in his room.
The room is outside the main house. She went to his room to get the
cell phone. While she was in the
room, the appellant followed her and
closed the door. He undressed her of her pants and her panties and
threw her on the bed. He
inserted his penis into her private part for
a while. When she cried, he told her not to cry. He said he was going
to buy her a
big cake. She also screamed and kept on pushing him away
from her. It was painful. After he finished raping her, she dressed
up
and went out. She proceeded to the main house where she found her
grandmother (the appellant's mother) in the dining room. She was
crying. She does not know if the appellant's mother saw that she was
crying. She did not tell her anything. She took her shoes
and left.
[9]
The appellant accompanied her home where she was residing with her
mother but only took him halfway. He was afraid to show his
face at
her residence. Her mother was not at home. She went to her aunt (P.)
and reported to her that her stepfather touched her
on her private
parts. P. called her uncle and told him what she told her. They
phoned the police. She was eventually taken to the
hospital where she
was examined. The incident happened during the day between 15:00 and
16:00. The appellant told her not to tell
anyone about what happened.
[10]
She testified under cross examination that her mother and the
appellant were still in a relationship when the incident happened.
On
the day in question she was visiting the appellant and his mother.
She was adamant that the appellant undressed her and raped
her. She
admitted that he bought her chips and that she ate it. She explained
that while he was on top of her, he pushed his body
forward. She also
explained how the appellant touched her private parts. In fact she
meant that he inserted his penis into her
private parts. After the
incident she tried to walk but could not walk properly. Her mother
asked her to try and walk properly
so that the people should
not see that she was having a problem. A white-like substance came
out of her private parts for
the whole week when she urinated and it
was painful. She did not bleed. It was the first time she had sexual
intercourse.
[11]
P. also testified. She is the complainant's aunt to whom she made the
first report. The complainant came to her crying and
reported that
her private part was touched. She did not mention who touched it. She
corroborated the complainant's evidence that,
after she had
reported the rape to her, she asked her uncle (the
witness's boyfriend) to assist by calling
the police. The complainant
was at S. B. before she came to her house to report the incident. The
appellant also resides at S.
B.. The complainant used to visit the
appellant's mother at his residence. She came to her house around
10:00 to report what happened.
At that time the complainant's mother
was not at home.
[12]
Under cross examination P. testified that the complainant did not
explain how her private parts were touched. She testified
that she
asked the complainant who touched her but she did not mention the
name of the person. She also did not tell her when the
incident took
place. She does not know who touched her.
[13]
The appellant's evidence was as follows: On Sunday 18 January 2015 at
approximately 10:00 the complainant came to his place
of residence.
She greeted him and proceeded to his mother. He took R10.00 and went
to go buy food for her. He came back, made food
for her and left her
in the kitchen to eat. He went to his room outside the main house to
clean it. After the complainant had finished
eating, she followed him
to his room. She asked to use his cell phone. He handed the cell
phone to her and continued cleaning the
room. He also gave her
headphones to use while playing games on his phone. He finished
cleaning the house and went to a place called
Emmakateng to watch a
soccer match. His mother was in the main house at the time and he
left the complainant with her as she had
gone to her for her hair to
be done.
[14]
He watched the soccer match until late in the afternoon and at
approximately 16:00, he went back home where he found that the
complainant was still there. It was getting late. He requested her to
take her belongings and accompanied her home. He walked with
her up
to a point where he saw she was safe and very close to where she was
residing and turned back home.
[15]
When asked why the complainant would testify that he raped her, he
testified that he and her mother were already having problems
in
their relationship. He further testified that the complainant could
be falsely implicating him for something he did not do.
He was in
good terms with the complainant. He was arrested on the night of the
incident.
[16]
He denied ever raping the complainant. He used to play with her. On
the day of the incident, he did not play much with her
as he left to
go and watch the soccer match. When asked as to how he played with
her, he testified that he tickled her. It is not
clear on the record
what he meant, but the record reflects that he demonstrated doing
something under her armpits and saying: "hey
you, hey you...".
He played with her while the two were outside the room.
[17]
Under cross examination he testified that, at the time of the
incident, he no longer had a relationship with the complainant's
mother. When confronted with the uncontested evidence of P. that he
was 99still in a relationship with the complainant's mother,
he
denied it. He was adamant that the complainant was coming to his
homestead on her own and not in her mother's company. He was
asked
what the complainant was then doing at his homestead because he
no longer had a relationship with her mother. He testified
that the
complainant knew him as her father. He was further asked why the
complainant would say he raped her if he only gave her
food and a
cell phone to play games with. He explained that he used to buy her a
cake every December when she had performed well
at school. At the
time of the incident, she used to frequent his place of residence
with the hope that she would get a cake
as a present from
him but he did not buy it. When asked whether that could be the
reason for the rape allegations, he testified
that he observed on the
day of the incident that the complainant was angry and that is why
she and her aunt decided to level false
allegations against him.
[18]
He further testified that when he left for the soccer match, his
brother was also present. When asked whether he told this
to his
legal representative, he testified that he did not regard that
evidence as important because his brother did not know anything
about
it.
[19]
When he accompanied the complainant home, there was no indication
that she was upset. He further testified that on the day
the
complainant visited his homestead, she kept on reminding him about
the present. He tried to explain to her that he did not
yet have
money to buy it. He however could not explain why what he was saying
was never put to the complainant when she was testifying
and why this
fact was also not mentioned in his evidence in chief. He also could
not explain why his evidence that he left the
complainant at his
homestead to go and watch the soccer game, was not put to the
complainant when she was testifying.
[20]
Section 77(1) of the Act provides that, if it appears to the Court at
any stage of the criminal proceedings that the accused
is by reason
of mental illness or mental defect not capable of understanding the
proceedings so as to present a proper defence,
the Court shall direct
that the matter be enquired into and be reported on in accordance
with the provisions of section 79.
[21]
The Act further provides that the Court must give at least the
following directions:
(i)
Whether the enquiry must be done under section 77 or 78 or
both.
(ii)
The place where the enquiry must take place, which has to be an
institution for the mentally ill persons unless such a place is not
available. The name of the institution ought to be mentioned;
if that
is not done, the nature of the place should be indicated.
(iii)
The duration of the enquiry, which may not be more than 30 days at a
time although extensions are permissible (s 79(2)).
(Hiemstra's
Criminal Procedure 2007 ed, Commentary, issue 8, p13-18).
[22]
Before a report under s 79 can be made, the accused must be send for
observation as contemplated ins 79. However, before the
court can
refer the accused for observation under s 79 it must be satisfied
that some factual or medical basis has been laid for
the allegation.
( S v Makoka 1979(2) SA 933 (A) at 937G)
The
point in limine
[23]
At page 46 of the record line 14, the trial court said the following
in its judgement "Goedbeskuldigde se ma kom dan nadie
staatsaanklaertoeen se hulle moet 'n bietjie kyk, beskuldigde is
geestesversteurd. Ons stel toe die saak verskeie kere uit om die
evalueering, ensovoorts te doen en op die ou end se die dokters vir
die hof daar is niks fout met hom nie. In kort, voordat ek
verder
gaan, dit lyk of sy vir die hof lieg om die beskuldigde te beskerm."
[24]
On page 78 of the record, a note has been made by the Magistrate,
Piet Retief that on 19 January 2015, the matter was postponed
to 2
February 2015 for possible mental observation.
[25]
Between pages 84 and 85 of the record, vol 2, a so called Memorandum
is included. The document is dated 9 July 2015 and reflects
an
official stamp of Piet Retief hospital. It is completed by hand
and states the following: “A No mental disturbances.
Apparently
there is no mental condition evidence during the medical interview."
The document emanated from Piet Retief hospital
and is addressed to
the Piet Retief Magistrate Court.
[26]
It was argued on behalf of the appellant that there is no indication
on the record that Piet Retief hospital is a psychiatric
hospital as
envisaged by s79 of the Act. It is also not clear from the document
by whom the appellant was interviewed for purpose
of this
investigation.
[27]
It was further submitted that the wording as it appears from the
Memorandum can be construed as hearsay from the author of
the
Memorandum and that somebody else than the author interviewed the
appellant.
[28]
It was further pointed out, that when the issue of the appellant's
mental condition was brought to the trial court's attention,
the
trial court should have called or directed that the appellant's
mother testify on the appellant's alleged mental disturbance.
It was
submitted the trial court's approach constituted an irregularity
which infringed his right to a fair trial. Counsel for
the appellant
therefore submitted that the conviction and sentence should be set
aside on this ground alone.
[29]
On the other hand the following submissions were made on behalf of
the State: Immediately after the issue was brought to the
trial
court's attention, the case was postponed and the appellant was
referred for an investigation. Accused persons are normally
referred
to a District Surgeon. In this case the appellant was taken to a
District Surgeon. As to the issue why the Memorandum
and not a report
was compiled, it was submitted that the appellant was legally
represented throughout the proceedings. His legal
representative
never raised an issue about the report. No issue was also raised that
the appellant's evidence was incoherent and
it was submitted that
this gave credence to the magistrate's findings that the appellant's
mother wanted to protect him by requesting
that his mental condition
should be investigated.
[30]
It appears from the trial court's judgement that the appellant's
mother approached the prosecutor with the request that he/she
investigate the appellant's mental situation as, according to the
appellant's mother, the appellant is mentally
disturbed. The record does not indicate when the request was made by
the appellant's mother and the details or whether her request
related
to the investigation of the mental condition of the appellant at the
time of the commission of the offence or whether it
related to the
time when the trial proceedings were conducted in the court a quo.
The information about the request is only mentioned
in passing as
quoted above in the trial court's judgement.
[31]
It is however accepted that the issue about the appellant's mental
condition was raised and that it was brought to the trial
court's
attention during the trial before conviction. According to the record
the case was postponed several times and that the
appellant was
referred for an investigation hence the Memorandum.
[32]
The fact that the learned magistrate decided to refer the appellant
for mental observation meant that he needed confirmation
about his
mental status.
[33]
Section 79(1) reads as follows:
"Where
a court issues a direction under section 77(1) or 78(2), the relevant
enquiry shall be conducted and be reported on
a) Where
the accused is charged with an offence other than the one referred to
in paragraph (b), by the medical superintendent
of a psychiatric
hospital appointed by the medical superintendent at the request of
the court; or
b) Where
the accused is charged with murder or culpable homicide or rape or
compelled rape as provided for in
sections 3
or
4
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act, 2007
,
respectively, or another charge involving serious violence, or if the
Court considers it to be necessary in the public interest,
or where
the Court in any particular case so directs-
i)
By the medical superintendent of the psychiatrist hospital
designated
by the Court, or by a psychiatrist appointed by the medical
superintendent at the request of the court;
ii)
By a psychiatrist appointed by the Court and who is not in
the full
time service of the state unless the Court directs otherwise, upon
application of the prosecutor, in accordance with directives
issued
under subsection(13) by the National Director of Public Prosecutions;
iii)
By a psychiatrist appointed for the accused by the Court and
iv)
By a clinical psychologist where the Court so directs."
[34]
The provisions of
s 77(1)
are peremptory. It is clear that when the
Court forms an impression or its attention is directed to the fact
that the accused has
a mental disturbance, the Court should grant
order in terms of this section that his mental capacity be
investigated as prescribed
by
s 79.
Section 79
states that, where a
Court issues a direction in terms of
s77(1)
, the relevant enquiry
shall be conducted and reported on, where the accused is charged of
rape among others, by the medical superintendent
of a psychiatrist
hospital designated by the Court, or by a psychiatrist appointed by
the medical superintendent at the request
of the Court, by a
psychiatrist appointed by the Court and who is not in full time
service of the state or by a psychiatrist appointed
for the accused
by the Court.
[35]
Nothing on record shows that the appellant's enquiry was conducted at
a psychiatrist hospital by a psychiatrist as envisaged
by the
provisions of s 79 of the Act.
[36]
Section 77(1) further provides that the Court shall direct that the
matter be enquired into and be reported on in accordance
with the
provisions of s79.
[37]
Even if the legal representative of the appellant did not raise the
issue in the trial as alluded to on behalf of the State,
the issue is
important and material to the proceedings before Court. As I
indicated above, the provisions of s77 (1) of the Act
are peremptory.
Nowhere do they mention that a memorandum should be send to the court
stating the outcome of the enquiry. The provisions
of s77(1) refer to
a report and s79 states that the enquiry shall be conducted by a
psychiatrist at a psychiatric hospital and
or by one who is not
full-time in the employ of the state.
[38]
The record does not state whether Piet Retief hospital is a
psychiatric hospital.
Counsel
for the State submitted that the appellant was taken to a district
surgeon for an investigation hence the Memorandum. In
my view, if
that is the case, the learned Magistrate took the wrong route that
resulted in the appellant being taken to a district
surgeon: A
general practitioner cannot comment on the mental capacity of an
accused.
[39]
The Memorandum is furthermore very cryptic. It does not record any
details of the enquiry, who interviewed the appellant, where
the
interview was held and the duration thereof. The
duration of the enquiry should at
least be 30 days. The Memorandum is therefore
inadequate. It could not have assisted the court to arrive
at a
proper and just decision regarding the mental condition of the
appellant at the time.
[40]
I agree with the submission on behalf of the appellant that, after
the issue of the appellant's mental disturbance was brought
to the
trial court's attention, it should have taken it further by calling
the appellant's mother to adduce evidence as to why
she made such a
request. That was not done. Before he was sent for mental
observation, the trial court should have satisfied itself
that the
factual or medical basis was laid for the allegations. (S v Makoka
supra)
[41]
In my view the submissions made on behalf of the appellant have
merit. The approach adopted by the trial court on the issue
regarding
the mental capacity of the appellant does not conform to the
prescripts of ss 77,78 and 79 of the Act. It constituted
an
irregularity which vitiated the proceedings. The learned Magistrate
has therefore misdirected himself in this regard. Under
the
circumstances the conviction and sentence cannot stand.
[42]
In the result the following order is made:
1. The appeal
against the conviction and sentence of the appellant is upheld.
2. The conviction
and sentence of the appellant are set aside.
_____________________
M
J TEFFO
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
I
agree:
_____________________
A
BASSON
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
APPEARANCES
FOR
THE APPELLANT
F VAN AS
INSTRUCTED
BY
LEGAL AID SOUTH AFRICA
FOR
THE RESPONDENT
CORNE PRUIS
INSTRUCTED
BY
THE DIRECTOR OF PUBLIC PROSECUTIONS
DATE
OF JUDGMENT
26 JANUARY
2018