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[2018] ZAGPPHC 598
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Ntshigila v S (A392/16) [2018] ZAGPPHC 598 (28 March 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVlSION. PRETORIA.
CASE
NO: A392/16.
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES.
In
the matter between:
MZWENDODA
BRIAN
NTSHIGILA
APPPELLANT
And
THE
STATE
RESPONDENT
JUDGMENT.
Coram:
RE Monama, J. et SS Maakane, AJ
Introduction.
[1]
During July 2009 the Appellant was charged with and convicted of one
count of rape in terms the
provisions of Section 52 of the Criminal
Law Amendment Act. The case was held in the Regional Court,
Klerksdorp . The victim was
a minor female. On 10 November 2010 he
was sentenced to effective term of twenty-five years imprisonment .
He was further declared
unfit to possess a firearm.
[2]
During the trial in the court
a quo
he was represented by Adv
LP Vertue.
Chronology
of events leading to leave to appeal.
[3]
On
10 November 2010
the Appellant brought an application for
leave to appeal both conviction and sentence. The application was
refused.
[4]
On
6 December 2011
he was granted leave by this court to appeal
both the conviction and the sentence. The appeal was set down for
hearing on 25 April
2013. His heads of argument were filed on 22
March 2013. These heads are signed by Adv S Franke from his chambers
in Pietermaritzburg
. The heads of argument addressed the issue of
sentence
only. Respondent's heads of argument were filed on 16
April 2013. They are signed by Adv L Williams of the Office of the
Director
of Public Prosecutions, Pretoria. These heads of argument
addressed the issue of sentence only. As regards the conviction , the
Respondent in paragraph 4 thereof commented as follows
"this
is not dealt with as it appears that the Appellant is satisfied with
his conviction."
[5]
On
25 April 2013
the appeal's hearing on sentence took place
before
Pretorius J
and Collis AJ. The parties did not address
the issue of conviction. The appeal against the sentence was
dismissed.
[6]
On or during
25 February 2014
the Registrar of this Court
received a communication in form of an affidavit referring to Case No
SH 2/311/06 and appeal Case No
9/11. Attached to this affidavit are
several documents including a petition for leave to appeal. These
documents bear the case
numbers already referred to above.
[7]
On
9 June 2014
the Appellant was granted leave (presumably on
petition) to appeal to the Supreme Court of Appeal by Judges
Pretorius
et Tolmay. This appeal is against sentence only and
is still pending.
[8]
On or during
3 October 2016
the Registrar of this Court issued
a directive to the Director of Prosecutions, Pretoria , the Legal Aid
South Africa and the Clerk
of the Court, Klerksdorp advising them all
to file their heads of argument . The directive indicated that the
appeal will be heard
on
9 March 2017.
[9]
On
21 October 2016
the Appellant filed his heads of argument.
This time they are signed by Adv LA Van Wyk and dated 17 October
2016. The heads of argument
now addresses the issue of convict ion.
[10]
On
6 March 2017
the Respondent filed its heads of argument.
The Respondent indicated that it will be making its application to
strike the appeal
from the roll. On
9 March 2017
the appeal
hearing took place before Rabie J and Lukhaimane AJ. The matter was
postponed
sine die.
The parties were granted leave to file
further heads of argument.
[11]
On
14 March 2017
the Appellant filed a document titled
"Additional Heads of Argument ." On
21 August 2017
the
Respondent replied and filed another set of additional document
titled " heads - administration of oaths and competency
of
intermediary" .
The
issues as raised by the appellant.
[12]
The Appellant has now raised two issues in
limine.
The first
issue is whether the presiding officer in trial court administered
the oath or affirmation on the intermediary properly.
The second
issue is whether the complainant was put under oath correctly. .
[13]
The main issue is whether the Appellant has made out the case for
his
appeal against the conviction to be heard by this court. The
secondary issues, which are also vital, relate to the oath and
the
ability of the comp lainant to tell the truth due to her age.
The
relevant history in these proceedings.
[14]
The Appellant was charged and convicted on one count of rape of
11
year old complainant. The State relied on the
viva voce
evidence
of the complainant, Dolly Orabile Poeng, Sara Poeng (the mother to
the complainant), Dr SLK Mapeka and Alexandra Moses
Takki, the uncle
to the complainant . The State also relied on various documentary
exhibit s.
[15]
The complainant testified that she was raped by the appellant in
the
toilet. The medical doctor testified that the injuries on the private
parts of the complainant were consistent with forced
sexual
intercourse. The mother testified that the complainant reported the
alleged rape to her. That evidence is corroborated by
the uncle. The
State also relied on the statement by a witness, one Ou-Mari Maria
Monaweng, who has since died together with the
summary of her
testimony before the departmental disciplinary hearing relating the
Appellant.
[16]
The Appellant testified in his own defence. He called no witnesses.
He denied the allegations of rape. He testified that the
complainant's mother implicated him because she has a grudge against
him.
The
judgment of the trial court.
[17]
The trial court assessed and evaluated the evidence. The learned
magistrate was conscious that
the complainant is a single witness. He
accordingly approached same with the necessary caution. He properly
dealt with the admissibility
and the probative value of the hearsay
evidence as contained in the statement of Ms Maria Monaweng.
[18]
The court
a quo
made a favourable credibility findings on the
state witnesses. It rejected the version of the Appellant as
not
reasonably possibly true and that it is in fact false.
It found that the State has proven its case beyond reasonable doubt
and convicted the Appellant as charged.
[19]
On 10 November 2010 the trial court imposed,
inter alia,
a
sentence of 25 years effective imprisonment. The trial considered the
triad when it imposed the said sentence. It also gave due
consideration of the existence or otherwise of substantial and
compelling circumstances.
The
subsequent events.
[20]
On 10 November 2010, the trial court refused his application for
leave to appeal
both the conviction and the sentence. The refusal
triggered the events mentioned in paragraphs 3 to 10 above. On 6
December 2011
the Appellant was informed that he was granted leave to
appeal both the
conviction
and
sentence.
[21]
In due course the appeal was set down for hearing on 25 April 2013.
The
Registrar of this court issued the necessary directives. They
informed him and other affected parties about the date of set down
and time limits within which to file his heads of argument.
[22]
The Appellant filed his heads of argument drawn by Adv. Franke as
stated above. The heads of argument dealt with the issue of sentence
only.
[23]
The appeal was heard by Pretorius J and Collis AJ. The written
judgment
of that appeal is dated 25 April 2013. From the record there
is no indication as to why the Appellant pursued the issue of
sentence
only, when he was granted leave to appeal both the
conviction and sentence. In answer to this observation, Collis AJ in
paragraphs
3 and 4, stated the following:
"
3. Leave to appeal both conviction and sentence was refused by the
court a quo and only granted on petition to the Judge
President. The
present appeal however, only concerns the sentence imposed on the
appellant.
4.
In essence the appellant is aggrieved by what he considers to be an
excessive sentence imposed on him."
[24]
In our view, the appeal court correctly dealt with the issues as
raised by the Appellant in his
heads or argument. From the record
there is no indication as to why the Appellant pursued the issue of
sentence only, when he was
granted leave to appeal both the
conviction and sentence.
The
effect of the failure to deal with the conviction.
[25]
It
has been a long-standing practice of our Courts that appeals
particularly in criminal matters, should not be dealt with on a
piece-meal basis. In other words, it is undesirable that the
Appellant prosecutes his appeal in respect of sentence only and if
this fails, then later try and pursue same in respect of
conviction
[1]
.
[26]
When this happens, the appeal Court will be entitled to infer and
find that such
an Appellant has waived his right to appeal against
the conviction,
alternatively
that he has abandoned his appeal
in that respect.
[27]
Be that as it may, on 9 March 2017 the matter served before Rabie J
and Lukhaimane AJ.
The matter was postponed
sine die
and
parties were granted leave to file additional heads of argument. The
order is silent on the aspect we have referred to above.
We assume
therefore the postponement was meant to afford the parties a further
opportunity to deal with the issues addressed above.
[28]
That being the case, we assume in favour of the appellant that the
appeal is
properly before us. However, we do not condone the manner
in which the Appellant has dealt with and handled this matter.
[29]
As stated above,the Legal Aid South Africa took over the matter, it
for the first
time challenged the conviction. There is no explanation
whatsoever for failure to also challenge the conviction at the same
time
when the appeal on sentence was heard.
[30]
The other issue, which is of peripheral nature, is the order by
Pretorius
and Tolmay J dated 9 June 2014 . The said order
granted the Appellant leave to appeal the sentence to the Supreme
Court of Appeal.
It appears that Judge Pretorius was the member of
the court that refused the Appellant leave to appeal the sentence on
23 April
2013. We do not know that if the judge who was part of the
courts on 23 April 2013 and 9 June 2014 is one and the same person.
In the event that this refers to one and the same judge, we are of
the view that there is no prejudice whatsoever.
The
first point
in limine
- the
swearing in of the intermerdiary
[31]
The function of the intermediaries is governed by legislation
[2]
The Appellant does not challenge the suit ability or the
qualifications of the intermediary, Ms Nomvula Dorothy Jas. This
intermediary,
was and has been employed as such on the permanent
basis by the Department of Justice. This was the case as at the date
of the
trial in the regional court. She was properly sworn in to act
[3]
and serve as such.
[32]
The complaint that the complainant was not put properly under
oath has already received
judicial consideration
[4]
The courts have distinguished between the functions of an interpreter
on one hand and that of an intermediary on the other. The
latter has
much flexibility than the former. An interpreter's duties are
delineated in terms of the Rule 61 of the Uniform Rules
of Court,
Rule 68 of the Rules of the Magistrate's Court and the Magistrate's
Court Act.
[5]
[33]
The duty of an intermediary is to convey the general purport of
any
question
[6]
The main function is
to minimise the mental stress and or mental suffering of a witness.
Such witness must fully satisfy the requirements
stipulated in the
Act. An intermediary conveys the evidence and does not herself
testify as a witness.
[34]
An
interpret r does not enjoy such latitude. Ms Jas took an oath. She is
in the permanent employment of the Stat e. Therefore, it
was strictly
unnecessary to swear her as the court
a
quo
did.
The approach of the trial court was an exercise in
ex
abundanti cautela.
The
Appellant relied on the judgments which have since been rejected in
this court
[7]
or overtaken by
the new jurisprudence.
[35]
In this regard, we were referred to the case of Mbongisena Mzwakhe
Mahlangu
v State (Case No. A382/2014) an unreported judgment of this
division in which Pretorius J concurred. Jansen J (as she then was)
said the following:
"[8]
I
am
in agreement with the authorities which hold that the
failure to swear in an intermediary cannot vitiate the proceedings."
[9]
The
point in limine is therefore dismissed."
(At
paragraphs 8 and 9)
The
Second point in limine-The warning to the complainant
[36]
The
complainant was 11 years old. She had to testify through Ms Jas, an
intermediary. Before the commencement of her testimony in
the trial
certain questions were put to her. The purpose was to determine
whether she did appreciate the nature of the oath and
the
consequences of lying
[8]
The
argument that the complainant was not properly warned or sworn in is
without merit. The complainant testified that:
"My
ma het my al geleer dat ek die waarheid praat maar nie meer leuens
vertel nie.
[9]
[37]
The trial court was informed by the complainant during this warning
process the effect
and consequences of lying. She testified that if
any person lies in court, then:
"so
person gaan tronk toe
[10]
."
[38]
In our view she was acutely aware of the purpose of the warning and
the oath. She was conscious
that her duty was to tell the truth.
Again this point in
limine
lacks merit and stand to be
rejected.
[39]
I accordingly find no misdirection or the alleged irregularity.
Finally, counsel for the
Appellant obliquely insinuated that the
trial was unfair in that the Appellant did not see the complainant in
person when she testified
. However, this argument was not seriously
pursued. Counsel for the Appellant took a correct approach in this
regard. It has long
been settled that the procedure in Section 170(A)
of Act 51 of 1977 is constitutional. Again, this argument is without
merit.
The
appeal on the conviction.
[40]
It is trite that the State must proof its case beyond reasonable
doubt . It is also
trite that this court can only interfere in very
limited instances. Such instances, will include material and
substantial misdirection
as to the facts or the law.
[41]
The conviction was based on the evidence of the complainant, her
mother, her uncle and the late
Ms Maria Monaweng. The latter evidence
is in the nature of hearsay and was received in terms of the
provision of Section 3 of the
Law of Evidence Amendment Act. The
trial court was conscious that the complainant is a single witness on
a charge of rape. It correctly
applied cautionary rules. The evidence
of penetration is corroborated by the doctor who examined her. The
court correctly found
that the State witnesses were credible and
reliable.
[42]
The Appellant's version was correctly rejected. In my view the
Magistrate was correct in rejecting the alleged grudge said
to be
held by the complainant's mother. We are in full agreement with the
conclusion of the learned magistrate when he stated,
namely that:
"En
verwerp ek dus de beskuldidge se weergawe dat hierdie 'n hele
beplande storie is van almaI om bewustelik saam te sweer
om horn
valslik the impliseer as 'n wolhaar storie van horn
[11]
[43]
In the circumstances I find no misdirection in respect of the
conviction.
I accordingly propose the following order:
''The
appeal against the conviction is dismissed and the
conviction
of the Appellant by the trial court is hereby confirmed."
I
agree
SS
MAAKANE
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
It
is so ordered
RE
MONAMA,
JUDGE
OF THE HIGH COURT,
GAUTENG
DIVISION, PRETORIA.
Appearances
For
the Appellant:
Adv. F van As
Instructed
by:
Pretoria Justice Centre, Pretoria.
For
the Respondent:
Adv. S Mahomed
Instructed
by:
Office of the State Attorney, Pretoria
Date
of hearing:
4 September 2017.
Date
of judgment:
28 March 2018.
[1]
Walhaus
v Additional Magistrate, Johannesburg
1959 (3) SA 113
(A) at 120E
[2]
Section 170A
of the
Criminal Procedure Act, No 51 of 1977
.
[3]
See line 14 on page 31 of the record.
[4]
S v Naidoo
1962 (2) SA 625
(A), S v Booi and Another
2005 (1) SACR
599
(B), S v Motaung 2007 {1) SACR 476 (SE), S v QN
2012 (1) SACR
380
( KZP) and the unreported case of the S v Mahlangu Case No.
A382/2014 .
[5]
Section 6
(2) of Act 32 of 1944.
[6]
See Section 170A (2)(b).
[7]
S v Naidoo ,S v Booi and Another ,and S v Motaung.
[8]
See from line 19 on page 32 to line 15 on page 33 of the record.
[9]
See line 9 on page 33 of the record.
[10]
See line 4 on page 33.
[11]
See lines 9-11page 102 of the record.