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[2018] ZAGPPHC 448
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Nkomo v S (A495/16) [2018] ZAGPPHC 448 (14 February 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
A495/16
14/2/2018
In
the matter between:
JOHANNES
NCENGENI NKOMO
and
THE
STATE
JUDGMENT
Introduction
1.
This
is an appeal in terms of section 309(1)(a) read with
section
309B(1)(a)
of the
Criminal Procedure Act 51 of 1977
as amended
wherein the Appellant was convicted by a Regional Court at Sebokeng
on a charge of rape of a female person aged 7 years
at the time when
the offence was committed.
2.
The
Appellant was convicted and sentenced to life imprisonment on 16
April 2008. This Appeal is against sentence only.
Background
3.
The
facts of this case can be summarised as follows. On 18 March 2007,
the accused requested the victim, a 7 year old girl to accompany
him
to the veld to fetch a radio that he had earlier seen in that
vicinity. The victim was at the time in the company of her friends
playing a game with stones along the street. The accused is an uncle
to the victim and as such the victim found nothing untoward
to
accompany him.
4.
On
arrival in the veld the accused started strangling the victim, took
off her underwear and raped her. She was thereafter given
50 cents
and instructed not to talk about the incident or otherwise she will
be killed. The victim left the scene after the incident
and went
straight home where she reported the incident to her mother who then
called the police which led to the arrest of the
accused. The mother
confirmed the evidence of the victim and stated further that the
victim was crying when she arrived home. The
victim was later taken
to hospital for medical examination.
5.
The
accused made admissions in terms of
section 220
of the
Criminal
Procedure Act admitting
the age and identity of the victim, the
report completed by a medical practitioner (J88) during examination
of the victim as well
as the DNA analysis results. The J88 confirmed
forceful vaginal penetration together with lacerations to the
victim's private part.
The DNA analysis confirmed the body fluids of
the accused on the panty of the victim.
6.
The
accused denied that he raped the victim and suggested that he was
being framed.
Issues
to be determined
7.
The
issue to be determined by the Court is the appropriateness of the
sentence of life imprisonment imposed in terms of the Criminal
Law
Amendment Act 105 of 1997 (Minimum Sentencing Act) in view of the
charge laid against the Appellant. It is apposite at this
stage to
quote the charge that was faced by the Appellant as per the charge
sheet:
"That
the accused is guilty of the offence of RAPE (read with
section
51(2)
,
52
(2),
52A
and
528
of the
Criminal Law Amendment Act 105/1997)
in
that upon or about 18/03/2007 and at or near Vlakfontein the said
accused did unlawfully and intentionally had sexual intercourse
with
a
female
person to wit
...
[who
was]
7
years old
without her consent."
8.
It
was argued on behalf of Appellant that since the charge was
formulated based on
section 51(2)
of Act 105 of 1997, the Regional
Court, as a creature of statute, did not have jurisdiction to
sentence the Appellant in terms
of section 51(1).
9.
Sections
51(1) provides 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."
10.
Whereas
section 51(2 reads:
"(2)
Notwithstanding any other law but subject to subsection (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)
Part II of Schedule
2,
in the case of-
(i)
a
first
offender, to imprisonment for
a
period not
less
than 15 years;
(ii)
11.
Part
I of Schedule 2 specifically provides, among others, for an offence
of rape where the victim is a person under the age of 16
years.
12.
Whilst
the age of the victim was not placed in dispute, the argument on
behalf of Appellant is that the charge against him was formulated
in
terms of section 51(2) which then required the court a
quo
to sentence Appellant to a minimum
sentence of 15 years as a first offender.
13.
It
is worth noting that sections 52A and 528 as inserted by section 35
of Act 62 of 2000 and repealed by section 2 of Act 38 of
2007
[1]
but these provisions still appeared on the charge sheet.
14.
The
only submission made on behalf of the State to address this point was
that it was an oversight by the court a
quo
not to correct the charge sheet
before judgment. The court a quo did not exercise its powers in terms
of
section 86
of the
Criminal Procedure Act 51 of 1977
which provides
that:
"(1) Where
a
charge
is
defective
for the want of any essential averment therein, or where there
appears to be any variance between the averment in
a
charge and the
evidence adduced in proof of such averment, 9r where it appears that
words or particulars that ought to have been
inserted in the charge
have been omitted therefrom, or where any words or particulars that
ought to have been omitted from the
charge have been inserted
therein, or where there is any other error in the charge, the court
may, at any time before judgment,
if it considers that the making of
the relevant amendment will not prejudice the accused in his defence,
order that the charge,
whether it discloses an offence or not, be
amended,
so
far
as
it
is necessary, both in that part thereof where the defect, variance,
omission, insertion or error occurs and in any other part
thereof
which it may become
necessary
to amend.
(2) The
amendment may be made on such terms
as
to an adjournment
of the proceedings
as
the court may
deem fit."
15.
The
question to be investigated is whether it can be said that the charge
sheet was defective and that same could, under the circumstances
of
this case, have been cured by evidence. If the answer is that the
charge sheet was indeed defective, then the second question
is
whether the evidence during proceedings alleviated same. The
Appellant will suffer obvious prejudice if, whilst the charge sheet
was defective, it was not cured through evidence.
16.
Section
88
of the
Criminal Procedure Act
[2
]
provides:
"Where
a
charge
is
defective
for the want of an averment which is an essential ingredient of the
relevant offence, the defect shall, unless brought
to the notice of
the court before judgment, be cured by evidence at the trial proving
the matter which should have been averred."
17.
In
looking at the charge sheet, the Appellant was charged of rape of a
female person aged 7 years at the time of the offence. Nowhere
else
within the ambit of
section 51
is reference made to a victim of under
the age of 16 except as contained in
section 51(1).
1.
25cm; margin-right: 0.04cm; text-indent: -1.27cm; margin-top: 0.4cm; margin-bottom: 0cm; line-height: 150%">
18.
The
Appellant was represented during the proceedings and soon after he
pleaded not guilty, the legal representative confirmed, among
other
things, that the Appellant was explained the provisions "...of
the minimum sentence and competent verdicts". The
court
explained to the Appellant soon thereafter as
follows:
“
Just
to make sure you understand the implications of the sentence
applicable if [you were} to be convicted. It is
a
minimum
prescribed [sentence]. A person being convicted of rape of
a
female
or at this point in time when the alleged offence happened, [to a]
seven year old, you will face life imprisonment. [Do]
you understand
this?”
[3]
The
Appellant replied in the affirmative to this question.
20.
Section
35(3) of the Constitution provides that every accused person has a
right to a fair trial, which includes the right-
(a)
to be informed of the charge
with
sufficient detail
to answer it;
(b)
... "(my underlining.)
21.
In
my view there clearly is a deficiency in the charge sheet and it is
regrettable that both the Regional Court Magistrate and the
State
Prosecutor did not pick this up. The question does not end there
though. Another question that requires to be answered is
whether this
defect is fatal?
[4]
22.
I
do not agree with the argument by Counsel by Appellant that the mere
mention of section 51(2) in the charge sheet obliges the
Court to
convict the Appellant on that section however irrational the
interpretation is. I have mentioned that the offence of rape
where
the victim was under the age of 16 years is only catered for under
Part I of Schedule 2. The Appellant was charged with a
rape of a 7
year old female and was thereafter warned of a possible life
imprisonment sentence he was also specifically convicted
of the rape
of a 7 year female.
23.
In
New Clicks
[5]
the Constitutional Court approved the rule laid down in Venter v R,
that a court may depart from the clear language of a statute
where it
- "would lead to absurdity so glaring that it could never have
been contemplated by the legislature, or where it
would lead to a
result contrary to the intention of the legislature, as shown by the
context or by such other considerations as
the Court is justified in
taking into account." In the current case before me, the State
clearly used an incorrect reference
to the applicable section, to
wit,
section 51(2)
of the
Criminal Law Amendment Act instead
of
section 51(1).
1.
25cm; margin-right: 0.04cm; text-indent: -1.27cm; margin-bottom: 0cm; line-height: 150%">
24.
The
Court was referred to the decision of S v Ndlovu
[6]
where that Court held that the Regional Court does not have
jurisdiction to sentence the accused to life imprisonment when he was
charged in terms of section 51(2) of the Minimum Sentencing Act. It
should be noted that, in that case, the court found that the
charge
sheet was not defective. Further, all throughout the trial, no
mention was made of life imprisonment except during sentencing
proceedings. The court a
quo
also
find the accused in that matter "guilty as charged"
referring to the charge sheet.
25.
It
is my view that the case referred to above is distinguishable from
the current case where:
(a)
The
Regional Court Magistrate warned the accused of a possible sentence
of life imprisonment at the commencement of the proceedings;
(b)
The
charge sheet makes specific reference to rape of a victim of 7 years
of age;
(c)
Evidence
was led and same was not disputed.
(d)
The
Regional Court Magistrate found the appellant guilty of the rape of a
7 year old female.
Sentence
26.
The
offence committed by the Appellant is very serious. A minor of 7
years was raped. The legislature has enacted legislation to
particularly raise its disdain on the kind of these offences.
27.
It
is trite law that sentencing falls within the discretion of the trial
court and it is only in instances of a misdirection that
this
discretion can be tempered with.
28.
In
S v Pillay
[7]
,
Trollip JA remarked:
"Now
the word "misdirection" in the present context simply means
an error committed by the Court in determining or
applying the facts
for assessing the appropriate sentence. As the essential enquiry in
an appeal against sentence, however,
is
not whether the
sentence was right or wrong, but whether the Court in imposing
sentence it exercised
its
discretion
properly and judicially,
a
mere misdirection
is
not
by itself sufficient to entitle the Appeal Court to interfere with
the sentence; it must be of such
a
nature, degree,
or
seriousness
that it shows,
directly or inferentially, that the Court did not exercise its
discretion at all or exercised it improperly or unreasonably.
Such
misdirection is usually and conveniently termed one that vitiates the
Court's decision on sentence."
29.
In
addressing the Court in mitigation the following circumstances were
suggested to exist to persuade the Court to shift away from
imposing
the minimum sentence in terms of section 51 (1) of Act 105 of 1997:
i.
That the [Appellant] does not know his date of birth;
ii.
He did not attend school and as a result cannot read and write;
iii.
That the accused did not come from a
sound family background;
iv.
That he was employed at the time of
commission of the offence; and,
v.
That he is the only person who can
assist her mother to obtain an identity document.
30.
As
already appears in paragraph 3
supra
the Appellant
raped a 7 year old minor; he is the uncle of the victim; he has
broken the trust relationship that existed between
the two; has
traumatised the victim. These I find to be aggravating factors to the
case of the accused.
31.
In
S v Khumalo
[8]
Holmes JA remarked as follows:
"Punishment
must fit the criminal
as
well
as
the crime, be
fair to society, and be blended with a measure of mercy according to
the circumstances".
32.
In
determining the existence of 'substantial and compelling
circumstances' the Court had the following to say in the case of S v
Malgas
[9]
"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 hypothesis 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
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 the courts when sentencing offenders"
33.
Having
taken everything into account I do not find that the Regional Court
Magistrate misdirected himself in coming to his decision
and cannot
but order that this appeal be dismissed.
Order
34.
In the result, I would propose the
following order:
The
Appeal is dismissed.
V.T
MTATI AJ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
I
agree and it is so ordered.
E.
M. KUBUSHI J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
ON 29 JANUARY 2018
JUDGMENT
DATE
FOR
THE APPELLANT: ADV L AUGUSTYN
INSTRUCTED
BY: LEGAL AID SOUTH AFRICA
FOR
THE RESPONDENT: ADV M.J. NETHONONDA
INSTRUCTED
BY: DIRECTOR OF PUBLIC PROSECUTIONS
[1]
Criminal Law Amendment Act which
came into operation on 16 December
2007
[2]
Act 51 of 1977
[3]
Page 14 of the record line 2
[4]
Nedzamba v S (911/2012)
[2013] ZASCA 69
(27 May 2013).
[5]
Minister of Health and Another v New Clicks SA (Pty) LTD 2006 (2) SA
311 (CC).
[6]
2017 (2) SACR 305 (CC).
[7]
1977 (4) SA 531
(A) at 535 E - F
[8]
1973 (3) SA 697
A at 698 .
[9]
2001 (1) SACR 469
at 477.