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[2018] ZAFSHC 208
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Nyaku v S (A212/2018) [2018] ZAFSHC 208; 2020 (2) SACR 102 (FB) (22 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A212/2018
In
the appeal between:
THABO
SHADRACK
NYAKU
Appellant
and
THE
STATE
Respondent
HEARD
ON:
5 NOVEMBER 2018
CORAM:
LOUBSER, J
et
OPPERMAN, J
DELIVERED
ON:
22 NOVEMBER 2018
JUDGEMENT
BY:
OPPERMAN, J
THE
CONTEXT OF THE APPEAL
[1]
The appeal is against a sentence of life imprisonment for
multiple-rape. The appellant was charged of rape in terms of section
51(2)(b
)
of
the
Criminal Law Amendment Act, Act 105 of 1997
.
[1]
The appellant stood as sole accused since his co-perpetrator had not
been apprehended at the time the trial commenced. He
pleaded
not guilty and denied all the allegations against him. He was
convicted of rape in terms of section
51(1)
after section 86 of the
Criminal
Procedure Act 51 of 1977
[2]
was applied
before
conviction.
[2]
The crux of the appeal lies between “that charged of”,
being
section 51(2)(b)
[3]
and
“that convicted of,”
section 51(1).
[4]
The difference in sentence on the facts of this case is a minimum of
fifteen years as opposed to life imprisonment.
[3]
The overarching issue is whether
section 86
of the CPA was properly
applied in the sense that the accused realised the consequence of a
different, harsher, minimum sentence
and did not suffer prejudice. It
revolves around
section 86
of the CPA and the dictum that developed
in service of
section 35
[5]
read
with
section 36
[6]
of the
Constitution
of the Republic of South Africa
,
1996
.
[7]
[4]
The Mahlase-dilemma (See paragraph 5) also came to the fore in the
form of the
maxim
stare decisis et non quite movere
(Stare decisis-rule)
[8]
and must
be addressed. This court as well as the Regional Court are bound to
follow the Mahlase-judgement since it stems from the
Supreme Court of
Appeal. The question is whether the Regional Court had the requisite
jurisdiction to convict and sentence the
appellant in terms of
section 51(1) to life imprisonment since the appellant stood as sole
accused before the court.
[5]
In
Mahlase v S
(255/13)
[2013] ZASCA 191
(29 November 2013) at
[9] the Supreme Court of Appeal took the view that an accused
convicted of rape in the multiple-rape circumstances
as envisaged in
Part 2, could not receive the mandatory minimum sentence of life
imprisonment if at his trial as sole accused his
co-perpetrators or
accomplices had as yet not been apprehended and convicted.
THE
COMMON CAUSE FACTS OF THE CASE
[6]
On the date of the incident the complainant was on her way home with
her two-year-old baby on her back. It was about eleven
o`clock
in the evening. She came from a friend that she helped with
preparation of food for a child`s party the next day. She does
not
consume alcohol and did not that evening. Whilst fixing the towel
around her body that she used to carry the child two “boys”
accosted her.
[7]
The one had a panga and the other a knife. They first wanted money
and her cellphone. When she could not comply, they took the
child,
put him on the ground and covered him with a blanket that she
carried. They both proceeded to rape her, the one after
the
other. They also took her cellphone.
[8]
A police vehicle drove by and the perpetrators left the scene. She
ran back to her friend’s place. After hearing her screams,
they
came out to assist her. The record of the evidence of the friend
portrays the trauma of the complainant:
Did she tell you what
happened to her? --- yes, she told me she was raped.
What else did she tell
you? --- she said to me in this day we have so many diseases and then
I indicated to her that in the name
of Jesus she would not get
infected or she would not get sick.
She
did receive treatment and it was later revealed that she was not HIV-
positive. She also moved to another town to be close to
her family
because she does not want to live alone anymore. Her marriage
suffered later and she was severely traumatised. She did
not sustain
any injuries apart from the rape.
[9]
The appellant amazed when he started his evidence in chief with a
confession to the rape of the complainant in terms of section
51(1).
It went, amongst others, as follows:
She also testified that
she alleges that you are one of the people that raped her. --- That
is true. That is true that you raped
her? Or she made those
allegations? --- That is true that I have raped her.
Further:
Sir, do you agree with
the complainant that on that day you were not alone when you raped
her? You were with a friend or a companion
who also raped her? ---
Yes, I agree with that.
[9]
[10]
During cross examination the prosecutor confronted the appellant with
DNA results that connected him without any doubt as a
person that had
sexual intercourse with the complainant. He explained that he denied
the rape initially because he was ashamed.
The prosecutor contributed
the change of heart to the fact that the appellant saw the DNA
results.
[10]
[11]
The charge was summarily amended after no objection raised by the
legal representative of the appellant on invitation of the
magistrate. The conduct of the legal representative during the
proceedings convinced the court that she was satisfied that the
appellant understood the consequences.
[12]
The appellant was convicted in terms of section 51(1). The presiding
officer found that:
In light of the
developments in this case that the accused had noted on the evidence
that they were two when the complainant was
raped, and in terms of,
now the charges are amended to read that he is charged in terms of
section 51(1).
[13]
The record of the proceedings in the court
a
quo
refers to a “gang rape” on the first appearance. Page iv
of the record shows that: “The charge and minimum sentence
applicable explained to him & he understands.” Page iii of
the record refers to “a minimum sentence of life.”
It is
not clear from the record in the District Court whether the
implications of sections 51(1) and 51(2)(b) were explained to
the
appellant. The charge sheet did however make specific mention of the
sections and the Act and it explained the minimum sentences.
The
appellant was represented by Legal Aid since 26 June 2017; his second
appearance in the Distrct Court already.
[11]
[14]
Copies of the content of the docket were supplied to the defence.
They did know the facts of the case against the appellant
well before
trial commenced. The defence used the statement of the complainant to
cross examine her.
[12]
[15]
The facts as the case evolved show that the appellant did take proper
cognisance of the impact of section 51(1). The law of
section 86 and
the regime of minimum sentencing related thereto, needs elaboration.
SECTION
86 OF THE CPA AND MINIMUM SENTENCING
[16]
Section 86 of the CPA speaks for itself:
86(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, or 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.
(3) Upon the
amendment of the charge in accordance with the order of the court,
the trial shall proceed at the appointed time
upon the amended charge
in the same manner and with the same consequences as if it had been
originally in its amended form.
(4) The fact that a
charge is not amended as provided in this section, shall not, unless
the court refuses to allow the amendment,
affect the validity of the
proceedings thereunder.
[17]
The court in
Ndlovu v S
(CCT174/16)
[2017] ZACC 19
;
2017 (10)
BCLR 1286
(CC);
2017 (2) SACR 305
(CC) (15 June 2017) provided the
following basic principle:
[w]here the State intends
relying upon the sentencing regime created by the Act a fair trial
will generally demand that its intention
pertinently 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. (Accentuation added)
[18]
In
Kolea v S
2013 (1) SACR 409
(SCA) the court held as
follows:
Thus, the question that
should be posed should be the following: 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.
[19]
When a statutory offence is proffered against an accused the charge
sheet should mention the heavier sanctions provided for
in Act 105 of
1997 (
S v Ndlovu and Another
1999 (2) SACR 645
(W) at 649f-650b).
[20]
The question is whether the accused received a fair trial (
S
v Legoa
2003 (1) SACR 13
(SCA) pars [20]-[22]
;
Kolea v S
2013 (1) SACR 409
(SCA), where the majority decision in
Mashinini
and Another v S
2012 (1) SACR 604
(SCA) was
not approved). There is no rule that failure to warn the accused
automatically constitutes substantial and compelling
circumstances.
The enquiry is whether in the particular circumstances there has been
an unfair trial. (
S v Setshedi
2017
(1) SACR 504
(GP) par [60]).
[21]
I
n
S
v Legoa
2003(1)
SACR 13 (SCA) at pars [20]-[22] Cameron JA observed that:
Under the common law it
was 'desirable' that the charge-sheet should set out the facts the
State intended to prove in order to bring
the accused within an
enhanced sentencing jurisdiction. It was not, however, essential. The
Constitutional Court has emphasized
that under the new constitutional
dispensation, the criterion for a just criminal trial is 'a concept
of substantive fairness which
is not to be equated with what might
have passed muster in our criminal courts before the Constitution of
the Republic of South
Africa Act 108 of 1996 came into force'. The
Bill of Rights specifies that every accused has a right to a fair
trial. This right,
the Constitutional Court has said, is broader than
the specific rights set out in the sub-sections of the Bill of
Rights' criminal
trial provision. One of those specific rights is 'to
be informed of the charge with sufficient detail to answer it'. What
the ability
to 'answer' a charge encompasses this case does not
require us to determine. But under the constitutional dispensation it
can certainly
be no less desirable than under the common law that the
facts the State intends to prove to increase sentencing jurisdiction
under
the 1997 statute should be clearly set out in the charge-sheet.
THE
MAHLASE-DICTUM
[22]
Apparently, the prosecutor formulated the charge based on the
Mahlase-judgment. Argument of counsel for the State during the
hearing of the appeal confirms this inference. The arguments
proffered by counsel for the State and the appellant before us claim
that the appellant must be sentenced in terms of the Mahlase-case and
the court
a quo
misdirected herself in not following the precedent. They held that
this court is also bound as such.
[23]
The Mahlase-dictum is, with all due respect, wrong but precedent as
was declared in
S
v Cock; S v Manuel
[13]
2015 (2) SACR 115
(ECG). Pickering J (Plasket and Smith JJ
concurring) found, and we agree, this approach to be illogical and
artificial because
it disregards the requirement that a court must
sentence an accused on the basis of the facts found proved (at [26]):
The Mahlase dictum . . .
gives rise, with respect, to the illogical situation that a trial
court, having found beyond reasonable
doubt that the complainant was
raped more than once by two men and having convicted the accused
accordingly, must, for purposes
of the Act, disregard that finding
and proceed to sentence the accused on the basis that it was not in
fact proven that she was
raped more than once; that the provisions of
the Act relating to the imposition of the prescribed minimum sentence
of life imprisonment
are therefore not applicable; and that the
minimum sentence applicable in terms of the Act is one of only ten
years imprisonment.
[24]
Application of the Mahlase-dictum will be bizarre on the facts of
this case. The crime and guilt of the appellant is common
cause.
Apart from the fact that the evidence against the appellant after the
close of the State`s case was strong
[14]
he is also connected with DNA and admitted the multiple-rape.
The appellant is a self-admitted member of a gang.
THE
APPELLANT
[25]
The appellant held in mitigation that he is 20 years old and live
with his mother. During his grade 9 year in school he became
involved
in gangs. He described how he was forced into gangsterism. He also
worked on farms as a seasonal worker. The compelling
and substantial
factors that he forwarded were that he was young, they did not plan
the crime, it happened on the spur of the moment,
he is working and
want to continue to help his mother. He has been in custody for eight
months awaiting trial. He could not explain
why he committed the
crime but apologised to the complainant. He will assist the police to
apprehend the other perpetrator.
[26]
The appellant has a previous conviction of rape which was committed
on 23 November 2011 and wherefor he was convicted on 7
November 2012.
He was sentenced to thirty-six months correctional supervision. The
detail of the offence and conviction is not
known to this court;
whether it was, for instance, in terms of section 51(1) or 51(2)(b)
or any other provisions in terms of the
CLA.
[27]
The remorse of the appellant is doubtful. He could have pleaded
guilty from the start. He sat through the evidence of
three witnesses
for the State. He witnessed the misery of the complainant in the
witness doc. He appeared for the first time on
19 June 2017 and only
changed his mind on 9 March 2018. He realised the odds were stacked
against him and that he had to endeavour
to win the sympathy of the
court. He cannot explain why he committed the heinous crime. There is
no insight whatsoever in his regret
except the insight that a plea of
guilty might sway the court to a shorter sentence. In
Matyityi
v S
2011
(1) SACR 40
(SCA)
at par 13, Ponnan JA stated as follows:
There
is, moreover, a chasm between regret and remorse. Many accused
persons might well regret their conduct, but that does
not without
more translate to genuine remorse. Remorse is a gnawing pain of
conscience for the plight of another. Thus,
genuine contrition
can only come from an appreciation and acknowledgment of the extent
of one’s error. Whether the
offender is sincerely
remorseful, and not simply feeling sorry for himself or herself
having been caught, is a factual question.
It is to the
surrounding actions of the accused, rather than what he says in Court
that one should rather look. In order
for the remorse to be a
valid consideration, the penitence must be sincere and the accused
must take the court fully into his or
her confidence. Until and
unless that happens, the genuineness of the contrition alleged to
exist cannot be determined.
[28]
The application of section 86 cannot be questioned. The appellant did
not suffer prejudice in any way. He was the architect
of the road the
case took.
[29]
The magistrate, in a well-considered judgement,
[15]
could not find circumstances that will justify imposing a lesser
sentence than life imprisonment. Her finding was proper and
effective.
[30]
As Ponnan JA said in his minority judgment in
S v Mashinini
2012
(1) SACR 604
(SCA):
I have been at pains to
stress, as enjoined by the authorities to which I have referred, that
a fair-trial enquiry does not occur
in vacuo, but that it is first
and foremost a fact-based enquiry. And, as I have already stated any
conclusion as may be arrived
at requires a vigilant examination of
all the relevant circumstances.
CONCLUSION
[31]
In conclusion:
31.1
The appellant committed an atrocious crime by
being a participant in the multiple-rape of a young mother in front
of her two-year-old
child. The evidence is that not only the
complainant, but also the child suffered severe trauma. The ease and
coldblooded manner
in which the perpetrators acted indicates a
mentality that rape is for nothing. They came upon the woman, decided
to rape her,
raped her and then walked away. They did come prepared
with a panga and a knife. The appellant put the complainant through
the
trauma of a trial and cross examination wherein the veracity of
her evidence was attacked. She was emotionally violated again. Gang
rapes are an institution and definitely part and parcel of
gangsterism. Gang members protects each other and it happens often
that all the perpetrators cannot be put on trial and this frustrates
justice. The Mahlase-dictum plays right into their hands.
31.2
This case is an almost mirror image of
Ndlovu
v S
2017 (10) BCLR1286 (CC),
2017 (2) SACR
305
(CC). Much contributed to the perfect storm that caused a sham of
justice. The crime that was perpetrated was heinous and revolting.
The appellant “deserves” the sentence of life
imprisonment that was imposed but democracy involves more. It decrees
a fair trial. In the Ndlovu-matter the complainant was seriously
injured but the charge was not in accordance. Further did the
magistrate not invoke section 86 of the CPA. The court mentioned that
if this was done the picture would have been different and
they could
have sentenced accordingly. The Regional Court cannot sentence
outside of the section convicted off. The issue is jurisdiction.
In
the matter
in casu
the
court had the jurisdiction but is tripped by the Mahlase-dictum. The
court could only convict in terms of section 51(2)(b)
and sentence
accordingly.
31.3
The failure of justice happens in the fact that
this court and the Regional Court is bound by the Mahlase-dictum that
decreed that
if all of the perpetrators do not stand trial at once,
section 51(1) cannot be invoked or applied.
31.4
The amendment of the charge was proper and
effective and cannot be faulted. However, the conviction must remain
to be section 51(2)(b)
in accordance with the doctrine of precedent.
31.5
I would apply the inherent jurisdiction of this
court to sentencing. The minimum prescribed is 15 years. The interest
of justice
and the community of this country; the appellant included,
deserves a sentence of life imprisonment.
31.6
I am obliged to apply the Pickering-judgment as
solution:
36.
The prescribed minimum sentence is one of 10 years’
imprisonment. Such a sentence, in the circumstances of this
case, where the complainant was subjected to the utterly humiliating
and terrifying ordeal of a gang rape would be wholly inappropriate.
In the exercise of our common law jurisdiction, we are free to impose
any sentence in excess of that minimum sentence. When
we
exercise this jurisdiction, we are not bound by Mahlase supra and its
interpretation of the Act. Mr. Meyer submitted that
a sentence
of 20 years imprisonment would be appropriate. I am of the
view, however, having regard to all the circumstances,
including the
fact that the complainant was gang-raped, that the only appropriate
sentence is that of life imprisonment.
31.7 We are forced to
deem the conviction to be one in terms of section 51(2)(b) but we are
not prevented from confirmation of the
sentence, albeit for different
reasons.
ORDER
[32]
I would order that:
1. The appeal against
sentence is dismissed.
________________
M.
OPPERMAN, J
I
concur, and it is so ordered.
________________
P.J.
LOUBSER, J
On
behalf of the appellant: Adv. Van der Merwe
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. M. Lencoe
Instructed
by:
Office
of the Director of Public Prosecutions
BLOEMFONTEIN
[1]
CLA. All references will be to the CLA except if otherwise
indicated.
[2]
CPA.
[3]
Section 51(2)(b)
Notwithstanding any other law but
subject to subsections (3) and (6), a Regional Court or a High Court
shall sentence a person
who has been convicted of an offence
referred to in—
Part III of Schedule 2, in the case
of—
(i) a first offender, to imprisonment
for a period not less than 10 years;
(ii) a second offender of any such
offence, to imprisonment for a period not less than 15 years; and
(iii) a third or subsequent offender
of any such offence, to imprisonment for a period not less than 20
years;
PART
III
Rape or compelled rape as
contemplated in
section 3
or
4
of the
Criminal Law (Sexual Offences
and Related Matters) Amendment Act, 2007
, respectively in
circumstances other than those referred to in
Part I.
[4]
Section 51(1) of the Act
provides
:
(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.
Part
I of Schedule 2 refers to:
Rape as contemplated in
section 3
of
the
Criminal Law (Sexual Offences and Related Matters) Amendment
Act, 2007
–
(a) when committed –
(i) in circumstances where the victim
was raped more than once whether by the accused or by any
co-perpetrator or accomplice;
(ii) by more than one person, where
such persons acted in the execution or furtherance of a common
purpose or conspiracy;
[5]
Section 35(3)
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) to have adequate time and
facilities to prepare a defence;
(c) to a public trial before an
ordinary court;
(d) to have their trial begin and
conclude without unreasonable delay;
(e) to be present when being tried;
(f) to choose, and be represented by,
a legal practitioner, and to be informed of this right promptly;
(g) to have a legal practitioner
assigned to the accused person by the state and at state expense, if
substantial injustice would
otherwise result, and to be informed of
this right promptly;
(h) to be presumed innocent, to
remain silent, and not to testify during the proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give
self-incriminating evidence;
(k) to be tried in a language that
the accused person understands or, if that is not practicable, to
have the proceedings interpreted
in that language;
(l) not to be convicted for an act or
omission that was not an offence under either national or
international law at the time
it was committed or omitted;
(m) not to be tried for an offence in
respect of an act or omission for which that person has previously
been either acquitted
or convicted;
(n) to the benefit of the least
severe of the prescribed punishments if the prescribed punishment
for the offence has been changed
between the time that the offence
was committed and the time of sentencing; and
(o) of appeal to, or review by, a
higher court.
[6]
Section 36.
Limitation of rights.
1) The rights in the Bill of Rights
may be limited only in terms of law of general application to the
extent that the limitation
is reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom,
taking into account
all relevant factors, including
(a) the nature of the right;
(b) the importance of the purpose of
the limitation;
(c) the nature and extent of the
limitation;
(d) the relation between the
limitation and its purpose; and
(e) less restrictive means to achieve
the purpose.
(2) Except as provided in subsection
(1) or in any other provision of the Constitution, no law may limit
any right entrenched
in the Bill of Rights.
[7]
The Constitution.
[8]
Malcolm Wallis, Judge of the Supreme Court of Appeal: Whose decisis
must we stare? 2018 SALJ 1-17.
[9]
Record on page 51, line 13 to page 52 line 15.
[10]
The DNA results that were handed in during cross-examination of the
appellant is dated 9 March 2018. It can be safely assumed
that the
prosecutor did not have it available before the end of the State`s
case. See page 121 of the record.
[11]
Pages 102-103 of the record.
[12]
See page 29 of the record.
[13]
Pickering-judgement.
[14]
Record page 77, line 7 – 18.
[15]
Record page 73 – 81.