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[2018] ZAGPPHC 329
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Marumo v S (A225/2017) [2018] ZAGPPHC 329 (8 March 2018)
SAFLII
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Certain
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IN THE HIGH
COURT OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal No :
A225/2017
In the matter
between:
PULE
SHADRACK
MARUMO
Appellant
and
THE
STATE
Respondent
HEARD ON:
11 DECEMBER 2017
CORAM:
MATHEBULA,
Jet
MURRAY,
AJ
DELIVERED
ON:
8 MARCH 2018
[1] This
is an appeal against the Appellant's conviction of Rape in the
Bloemfontein
Regional Court on 29 August 2016 by Mr JHJ Greyvenstein
and his sentence of 12 years’ imprisonment imposed on 31 August
2016.
[2] The
Appellant was a minor when the offence was committed and therefore
has an
automatic right of appeal in terms of
s85
of the
Child Justice
Act 75 of 2008
.
[3] With
reference to his conviction the Appellant avers that the court
a
quo
erred in finding that the State had proved its case beyond
reasonable doubt; in rejecting the evidence of the Appellant; and in
failing to find that the J88 does not support a finding that the
complainant was raped twice.
[4] Regarding
sentence the Appellant avers that the court
a quo
erred in
imposing an excessive sentence which did not take cognisance of the
Child Justice Act 75 of 2008
; in over-emphasising the aggravating
circumstances and, more specifically, in taking cognisance of the
Appellant's previous convictions
which were committed after the
offence in this case; and in sentencing Appellant as a co-perpetrator
because the Complainant was
raped more than once.
[5] The
Appellant was charged with Rape by contravening the provisions of
s 3
read with
s 1
of Act 32 of 2007, read with ss 256 and 261 of the
Criminal Procedure Act 51 of 1977; and also read with the provisions
of s 51
and Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
.
He pleaded not guilty and in his Plea Explanation admitted sexual
intercourse on 16 August 2008 at the Complainant's house, but
pleaded
consent.
[6] Mr
Reyneke acted for the Appellant and Adv Sekoena for the State.
[7] On
the Complainant's version, the Appellant grew up in her neighbourhood
but she did
not know his name until after the rape. According to her
they were drinking at the same tavern on the night in question. She
admitted
to having had two 750ml Reds and to being moderately under
the influence when she was raped by the Appellant and by Sanu (or
"Sonny''
as she called the second perpetrator). She denied any
consent to sexual intercourse.
[8] The
Complainant testified that a group of them were driven home from the
tavern in
a bakkie at around 23:00. The women were dropped off at the
Complainant's house from which she accompanied her now deceased
friend,
K, halfway to her house in the informal settlement. On her
way back, she saw two males, the Appellant and Sanu, behind her, both
holding broken beer bottle necks. They steered her towards a street
with no lights and when she asked why they were no longer going
towards her house, they started walking next to her with one on
either side of her, still holding the broken bottle necks, and
took
her to a nearby culvert where she noticed cardboards on the ground.
[9] She
was scared because she realised that she was going to be raped when
the Appellant
instructed her to undress, so she refused to do so. He
then tore the button off her pants and pulled the pants and her
panties
off of her one leg. She could not scream because of the
broken beer bottles in their hands. Both of the men then undressed,
then
first the Appellant, and then Sanu had sexual intercourse with
her. They then told her to get dressed and leave. She only pulled
up
her panty and walked along, carrying the leg of her jeans because she
was afraid of them.
[10]
They walked with her to the same crossing where they had initially
met. As she approached her home,
her children heard her crying. She
told both her daughter, S I, and her son-in-law, T M, that she had
just been raped by both the
Appellant and Sanu.
[11] T
went after the two men while S stayed with her. Between 12:00 and
01:00 he returned with
the Appellant and Sanu. In her house T asked
the two of them what they had done to the Complainant. They admitted
that they had
raped her and said that they had made a mistake and
asked her to forgive them. S, however, said the Complainant should
not just
let them go and gave her money the next morning to go to the
police.
[12] At
06:00 in the morning the Complainant went to the police station to
report the rape, leaving
the men, including the Appellant, in the
house where the police found them and arrested the Appellant. She was
also taken to the
hospital for an examination, the result of which
was reported in the JBS and which supported her version.
[13] Contrary
to what the Court
a quo
stated in his judgment, the JBS
indicated that the Complainant suffered no injuries. The Form did
indicate, though, that the findings
were consistent with the history
and time of the reported incident of the Complainant being raped "by
two known men”
and concluded that there was "a probability
of sexual penetration". DNA evidence linked the Appellant to the
case, and
only he was before the Court a
quo
for the duration
of the trial after Sanu could not be linked to the incident by DNA.
[14]
The
Court
a quo
correctly
treated the Complainant's evidence with caution since she was a
single witness. With reference to the principle stated
in
S
v Artman and Another
[1]
,
namely that all that
is required for the evidence of a single witness to be accepted is
that such evidence should be clear and satisfactory
in all material
respects, the Court
a
quo
cautioned that in
assessing such evidence caution must not oust common sense.
[15] I
cannot find any misdirection in the Court
a quo's
finding that
the Complainant made a fair impression even though her evidence was
not perfect, especially in view of the seven years
which had passed
before she testified about the incident, and which could account for
some of the inconsistencies. Nor in the Court
a quo's
acceptance
of the Complainant's version that there had been had been no
relationship between her and the Appellant when he raped
her and that
no bias against the Appellant could be detected in her evidence.
[16] Support
for her version was found in the J88 Form which made reference to the
Complainant
having been raped by two men, as well as in the DNA-link
to the Appellant. Furthermore, the fact that the Complainant was
crying
and still angry when she had the medical examination the next
day and that she did immediately after the incident report the rape
to the first two people that she met when she got away from the
Appellant, namely her daughter and her son-in-law, rebuts any
suspicion that she might have fabricated the allegation of rape as
the Appellant averred.
[17] The
Appellant's version, on the other hand, in his
s 115
plea
explanation, was that consensual sexual intercourse took place at the
Complainant's house. The Court
a quo
pointed out numerous
contradictions between the version which the Appellant's first
representative put to the Complainant and the
dramatically different
version which the Appellant created when he testified under oath.
[18] The
Court
a quo
highlighted three examples "which put his
evidence in a very negative light": first of all, that it was
put to the Complainant
on the Appellant's behalf that consensual
sexual intercourse took place at the Complainant's house; thereafter
that the Appellant
averred in his testimony that he took the
Complainant to his parents' house where they had consensual sexual
intercourse; then
that he alleged that they had done so on several
previous occasions, an allegation that was never put to the
Complainant when she
was testifying, and, as the prosecutor said, one
that had in all the years since the incident never been made.
[19] The
Court
a quo
then found the evidence against the Appellant to
have been proved beyond a reasonable doubt. The Court was satisfied,
"in light
of the totality of the evidence" that the
Appellant had indeed raped the complainant and accordingly found him
guilty.
[20]
It
is trite law that a Court of Appeal may not depart from the Trial
Court's findings of fact and credibility, unless they are vitiated
by
irregularity, or are patently wrong.
[2]
Mr Reyneke on behalf of the Appellant submitted that the court
a
quo's
finding that the
type of rape the Appellant is guilty of, falls within the ambit of
section 51(1)
of Act 105 of 1997 read with Part 1 of Schedule 2, i.e.
being raped by a group of persons acting in furtherance of a common
purpose,
amounts to a misdirection. He pointed out that none of the
Appellant's co-assailants were charged with or convicted of the rape,
wherefore such a conviction amounts to a misdirection.
[21]
In
Mahlase v The State
[3]
,
the Court in a similar
situation held that: "
....
[9] The second misdirection pertained to the sentence imposed for the
rape conviction. The Court correctly bemoaned the fact
that Ms D M
was apparently raped more than once and in front of her colleagues.
The Learned Judge however overlooked the fact that
because Accused 2
and 6, who were implicated by Mr Mahlangu, were not before the Trial
Court and had not yet been convicted of
the rape, it cannot be held
that the rape fell within the provisions of Part 1 Schedule 2 of the
Criminal Law Amendment Act (where
the victim is raped more than once)
as the High Court found that it did. It follows that the minimum
sentence for rape was not
applicable to the rape conviction and the
sentence of life imprisonment must be set aside ....."
[22]
The
Supreme Court of Appeal in
Ndlovu
v S
[4]
held that such an
error does not result in a failure of justice, even when, as in that
case, the appellant had been charged with
rape read with
S 51(2)
and
Part 1
of Schedule 2 and was found guilty of rape as set out in
S
51(1)
for which life imprisonment was the relevant sentence, as long
as the appellant had been warned of the possible application of the
minimum sentence legislation.
[23] I
agree with Mr Reyneke's submission that the conviction of rape is in
order, but that the
Appellant should have been convicted of Rape as
contemplated in
Section 51(2)
, read with
Part 3
of Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
, which would have a direct
bearing on the 12-year sentence which the Court
a quo
imposed
on the Appellant, since
s 51
(2) carries a minimum sentence of 10
years' imprisonment for a first offender, and not life imprisonment
likes 51(1).
[24]
In
LT v S
[5]
the Court held that
s
51
(6) of the
Criminal Law Amendment Act 105 of 1997
provides that
the provisions of
s 51
do not apply in respect of an accused person
who was under the age of 18 at the time of commission of the offence.
Ad
sentence:
[25]
As
stated in
S v Rabie
[6]
this Court needs to
keep in mind that punishment is pre-eminently a matter for the
discretion of the Court
a
quo
and that the Court
of Appeal should be careful not to erode that discretion. It is trite
law that a Court of Appeal will interfere
with a sentence only if it
is of the opinion that such sentence is unreasonable or unjust or
vitiated by irregularity or if the
Trial Court misdirected itself
(S
v Jimenez
[7]
and
S
v De Jager and Another
[8]
)
or if it is so
markedly disproportionate that it could be described as "shocking,
startling or disturbingly inappropriate",
as held in
S
v Malgas
[9]
.
[26]
Unfortunately
the Court
a quo
does
not explain how it arrived at the 12-year sentence. Mr Reyneke, in
critising the way in which the Court
a
quo
imposed the
12-year sentence on the Appellant, referred to
S
v Siebert
[10]
in which the Court
held that:
"Sentencing
is a judicial function
sui generis.
It should not be governed
by considerations based on notions akin to onus of proof. In this
field of law, public interest requires
the Court to play a more
active, inquisitorial role. The accused should not be sentenced
unless and until all the facts and circumstances
necessary for the
responsible exercise of such discretion have been placed before the
Court."
[27]
It
is trite law that the sentence of an offender must be balanced
between the interests of society, the offence and the personal
circumstances of the Accused.
[11]
In the present case the youthfulness of the Appellant when he
committed the offence, i.e. 17 years and 8 months, had to be a factor
which would weigh very heavily in considering an appropriate
sentence.
[28]
In
view of the Court
a
quo's
misdirection in
classifying the rape as falling under
Part 1
of Schedule 2 which
carries a minimum sentence of life imprisonment instead of under
Part
3
of Schedule 2 which carries a minimum sentence of 1O years'
imprisonment for a first offender, the 12-year sentence that was
imposed
on the Appellant is inappropriate and because of the lack of
explanation for imposing it, this Court is entitled to interfere. As
stated in
Mudau v S
[12]
regarding the
disparity between two related sentences:
"Absent
of such explanation for the disparity, a sentence appears to be
ill-considered and arbitrary."
[29] The
Court
a quo
did not impose the sentence in terms of Act 105 of
1997, but in terms of s 276(1)(b) of the Criminal Procedure Act 51 of
1997. It
did take into consideration as mitigating such circumstances
as that the Appellant was "relatively youthful" during the
commission of the crime and that liquor surely played a role. As
aggravating factors the Court
a quo
listed the seriousness of
the offence, namely that the Appellant raped the Complainant who was
almost twice his age, that he was
acquainted with the Complainant,
that when she was at her most vulnerable the Appellant and his friend
attacked her with broken
bottle necks in hand, taking advantage of
her in a culvert. The Court explicitly stated that he was not taking
into account the
Appellant's other convictions and that there was
consensus between the State and the Defence that Act 105 of 1997 need
not be applied
because the Appellant was a minor at time of the
offence and that both asked for a lesser sentence.
[30] In
my view "Relatively youthful" was not the appropriate
criterion to be applied
here. The Appellant was still a minor and the
principles governing sentencing in the
Child Justice Act, 75 of 2008
,
should have been paramount in selecting an appropriate sentence.
[31] The
Defence attorney asked for a sentence of 5 years, while the State
submitted that the
Regional Court's jurisdiction in terms of
s
276(1)(b)
was a maximum of 15 years and asked for a sentence of 15
years to be imposed. It is not clear how the Court
a quo
then
arrived at 12 years. As Mr Reyneke pointed out, although the Court
a
quo
did state that the Appellant was a minor, it never referred
to Schedule 3 and
Section 77
of the
Child Justice Act 75 of 2008
. One
does not know whether the Court
a quo
started off from 15
years and in consideration of the Appellant's age, imposed 12 years,
or whether the Court started from 10 years
and in view of the
aggravating circumstances increased the sentence to 12 years.
[32]
In
S v Matyityi
[13]
,
for instance, the
Court held that
"someone
under the age of 18 years is to be regarded as naturally immature."
[33]
In
LT v S
[14]
the Court therefore
held that youthfulness, peer pressure and impulsive error of judgment
are necessary and important considerations
which should be taken into
account by the sentencing court. One can therefore assume that the
Appellant's immaturity and susceptibility
to being influenced by his
peers must have influenced his blameworthiness, which in turn can
operate as a mitigating factor. But,
one simply does not know whether
those factors were indeed weighed up when a decision regarding the
12-year sentence was made.
(See also:
S
v Ndzola and Another
[15]
)
[34]
It
has regularly been emphasised by courts that children should be
sentenced to imprisonment only as a last resort. In
S
v Jackson and Others
[16]
on appeal the Court reduced the appellant's sentence and stated that:
"It
happens not infrequently that young children, when involved in a
crime, act with a degree of bravado to impress their peers..."
[35]
And
in
S v N
[17]
Cameron JA in reducing
the 17-year old Appellant's sentence for rape took into account that
the crime was unplanned and seemed to
"have stemmed from a
terrible, but impulsive, error of judgment" and that the
impulsivity was connected to his youth,
and that, having regard to
s
28(3)
of the Bill of Rights, he was, constitutionally speaking, a
child at the time of the rape.
[36]
Sections
69(1)(c)
, (d), and {e) of the
Child Justice Act 7 5
of 1979 state one
of the objectives of sentences for juveniles to be to use
imprisonment only as a measure of last resort and only
for the
shortest appropriate period of time. The overall aim with a sentence
should be to ensure that the necessary supervision,
guidance,
treatment or services assist the child to understand the implications
and be responsible for the harm caused, and to
promote the
reintegration of the child into the family and community.
[37] Of
course that does not mean that in suitable circumstances such a
juvenile should not spend
any time in prison at all. In
S v N,
supra,
Cameron JA already followed a restorative justice
approach, even before the advent of the
Child Justice Act, by
imposing a sentence of five years' imprisonment in terms of
s
276(1)(i)
of Act 51 of 1977 to enable the appellant to be released
into correctional supervision at an earlier stage, stating that:
"Given
available statistics on rape, a sentence involving imprisonment was
necessary despite the impulsivity of the crime and
the young age of
the appellant ... A prison sentence is therefore unavoidable. But
what sort of prison sentence ...
[18]
Child offenders ... must be distinguished from adults because the
crimes of children 'may stem from immature judgment, from as
yet
unformed character, from youthful vulnerability to error and
impulse"'
[19]
[38] The
Child Justice Act 75 of 2008
came into operation on 1 April 2010.
S
68
of Chapter 10 thereof provides as follows:
"A
child justice court must, after convicting a child, impose a sentence
in accordance with the provisions of
this chapter".
[39]
In
S v RS and Others
[20]
the provisions of
s 68
were held to be peremptory.
S 77
of Act 75 of 2008 deals with
Sentences of Imprisonment for juveniles and provides that:
"(5) A
child justice court imposing a sentence of imprisonment must antedate
the term of imprisonment
by the number of days that the child has
spent in prison ... prior to the sentence being imposed."
[40] The
Court a
quo
should therefore have imposed a sentence which
accorded with s 77 of and provided for the aims of Act 75 of 2008,
but, as Mr Reyneke
pointed out, that section was never even
mentioned, which is probably the reason for the disproportionate
sentence.
[41] Mr
Reyneke did not request that the Appellant be allowed to go
unpunished for the rape of
the Complainant, but submitted that in
view of the aggravating circumstances in the case a sentence of six
years would be appropriate.
[42]
In
doing so, he relied on
Itani
Thomas Mudau v The State
[21]
in which the court
held that:
"It
is generally accepted that inordinately long terms of imprisonment do
not contribute to the reform of an accused person.
On the contrary
they have the negative effect of denuding the accused of all hope of
rehabilitation."
and on
S
v Skenjana
[22]
in
which it was stated that:
'Wrongdoers
must not be visited with punishments to the point of being broken."
[43]
This is especially
apposite in the present case in which the Appellant was a minor when
he perpetrated the rape. For in
S
v Phulwane and Others
[23]
it was stated that
every judicial officer who has to sentence a youthful offender must
ensure that such sentence will promote the
rehabilitation of that
particular youth and has, as its priority, the reintegration of the
youthful offender back into her or his
family and community, all of
which are in accordance with the aims of the
Child Justice Act. (See
also:
S v B
[24]
)
[44] In
my view in the circumstances of this case a period of 12 years'
imprisonment is inappropriate
and unjust since the Appellant was a
minor when the offence was committed. I agree with Mr Reyneke that a
sentence of 6 years'
imprisonment would serve the purpose of
retribution but also afford the Appellant an opportunity to be
rehabilitated and to be
reintegrated into society. It would strike an
appropriate balance between the seriousness of the crime, the
interests of the victim
and society, as well as the constitutional
protection of young offenders below 18 years of age in terms of s
28(1)(g) and 28(2)
of the Constitution. It would also promote the
best interests of the minor, in accordance with the aims of the
Child
Justice Act by
instructing that the minor be detained for the
shortest appropriate time.
[45]
It
was conceded by the State that such sentence would be acceptable.
[46]
Having
regard to all the relevant factors on sentence I am satisfied that
the following sentence is more reasonable, balanced and
justifiable
in respect of the Appellant: a term of imprisonment of 6·
years, antedated to the date of sentence in the Court
a quo.
WHEREFORE the
following order is made:
1.
The
appeal against the conviction is dismissed and the appeal against the
sentence is upheld.
2.
The
conviction is confirmed.
3.
The
sentence of 12 years' imprisonment is set aside and substituted with
the following sentence:
"The Appellant
is sentenced to 6 (SIX) years' imprisonment, which term of
imprisonment is to be antedated to 31 August 2016."
H
MURRAY AJ
I concur and it is
so ordered.
MATHEBULA
J
On behalf of the
Appellant: Mr
J D Reyneke
Attorney for the
Appellant
Bloemfontein Justice
Centre
Legal Aid South
Africa
1
st
Floor- Southern Life Building
41 Charlotte Maxeke
Street
BLOEMFONTEIN
On
behalf of the Respondent:
Adv M G Sekoena
Office of the
Director of Public
Prosecutions
: Free State
BLOEMFONTEIN
[1]
1968 (3) SA 339 (A)
[2]
S v Francis
1991 (1) SACR 198
{A) at 198 J - 199 A; S v Hadebe and
Others
1997 (2) SACR 641
{SCA) at 645 E F
[3]
(255/2013)[2011J ZASCA 191 (29 May 2013)
[4]
(204/2014) [2014] ZASCAA 149 (26 September 2014)
[5]
[2017] JOL 38711 (ECG)
[6]
1975 (4) SA 855 (A)
[7]
2003 (1) SACR 507
(SCA) at 517 g-h
[8]
1965 (2) SACR 616
(A) at 629
[9]
2001 (1) SACR 469
at 478f-g
[10]
1998 (1) SACR 554
(A) at 558 i-559a
[11]
S v Banda and Others
1991 (2) SA 352
(BGD) at 355 A
[12]
(419/12)
[2011J ZASCA 191
(30November 2012)
[13]
2011 (1) SACR 40 (SCA)
[14]
Supra,
at
14
[15]
2016 (1) SACR 320 (WCC)
[16]
2008 (2) SACR 274
(C) at [40]
[17]
[2008] ZASCA 30
;
2008 (2) SACR 135
(SCA)at [37] and [38]
[18]
S v Jackson,
supra,
at
[42]
[19]
S v Jackson,
supra,
at
[45]
[20]
2012 (2) SACR 160
(WCC) at [25]
[21]
(419/12) (2011] ZASCA 191 at [5]
[22]
1985 (3) SA 51
(A) at 55c-d
[23]
2003 (1) SACR 631
(T); See also: Du Toit Commentary on the Criminal
Procedure Act, Looseleaf Service 50, 2013 at 28 - 18M
[24]
2006 (1) SACR 311
(SCA) at [20]