About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2017
>>
[2017] ZAGPPHC 117
|
|
Magabara v S (A800/2015) [2017] ZAGPPHC 117 (21 March 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION,
PRETORIA
DATE:
21/03/2017
CASE
NO: A800/2015
In
the matter between:
THANYANIN
PETER
MAGABARA
APPELLANT
and
THE
STATE
RESPONDENT
J
U D G M E N T
MALI
J
[1]
This is an appeal against sentence of life imprisonment in
respect of three counts of rape. The issue for determination
is
whether the trial court correctly interpreted the
provisions of paragraph (a)
(iii) of Schedule 2 to Act 105 of 1997 Part 1
of Schedule 2 to Act 105 of 1997 when passing the sentence.
[2]
The appellant was charged with five counts of rape and one count of
armed robbery with aggravating circumstances in the Regional
Court of
Pretoria. The appellant was found guilty of count 1 rape, count 3
rape, count 4 armed robbery and count 5 of rape. He
was sentenced to
life imprisonment in respect of counts 1, 3 and 5. The said three
counts were taken together for the purposes
of sentencing. In
relation to count 4 (Robbery with aggravating circumstances) he was
sentenced to 15 years imprisonment. All the
sentences were ordered to
run concurrently.
[3]
The appellant who was legally represented pleaded not guilty to all
counts. The three complainants in the rape charges were
called to
testify together with other state witnesses. Later the appellant made
admissions in terms of
section 220
of the
Criminal Procedure Act 51
of 1977
.
[4]
The state did not call two other complainants in the rape counts and
subsequently, the appellant was acquitted in those two
counts.
BRIEF
BACKGROUND
[5]
On 16 August 2009, at about 03:am, M. F. S. ("M."),
complainant in count 1 went to the outside toilet
with one P.
at home. The appellant emerged and chased P. away. He then pointed
the complainant with a firearm and led her to a
nearby river where he
raped her. Subsequent to that he ordered the complainant to put on
her clothes and continued walking with
her. After 40 minutes he
ordered the complainant to undress and raped her again. He then
ordered her to go away, as she was walking
away, the appellant fired
several shots with a firearm.
[6]
Under cross examination the appellant disputed that he raped M. at
all. Later when he made
section 220
admission, he admitted raping M.
, however did not mention that he raped her twice.
[7]
In respect of count 3, the appellant admitted raping E. S. on 4
August 2011. He admitted that he offered Eunice a lift
to work and on
the way he changed his motor vehicle's direction to the bushes. The
appellant then raped her inside his car and
also robbed her of her
cellular phone and money in the sum of R250.00
[8]
In respect of count 5 he admitted raping L. N. on 1 September 2011 at
05:15 am in Diepsloot. The appellant pointed her with
a firearm and
forcefully dragged her into his motor vehicle. He drove with her to
the bushes where she raped her inside the motor
vehicle.
[9]
It has been submitted on behalf of the appellant that he did not get
a fair trial with regards to sentencing. The complaint
is that the
trial court's explanation created the expectation,
that should the State
prove, with the
different complainants, that there is only one count per person in
which case a different sentencing regime than
life imprisonment would
be applicable.
LAW
[10]
In
S
v
Dzukuda
and Others; S v Tshilo
[1]
at
paragraph 12 ACKERMANN
J stated:
"
...an accused's right to a fair trial under section 35(3) of the
Constitution is a comprehensive right and "embraces
a concept of
substantive fairness which is not to be equated with what might have
passed muster in our criminal courts before the
Constitution came
into force." Elements of this comprehensive right are specified
in paragraphs (a) to (o) ..."
[11]
Section 35(3) of the Constitution states:
"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;
.
.."
[12]
In
Ramaite
v
S
[2]
Schoeman
AJA (Cachalia
J
concurring)
stated at
paragraph
10 the
following:
"
.
..Furthermore,
that
'. .
.
the
accused's
rights
were
explained
to
him,
must
appear
from
the
record,
in
such
a
manner
as,
and
with
sufficient
particularity,
to
enable
a
judgment
to be
made
as
to
the
adequacy
of
the
explanation'
[3]
It
would
not
be
sufficient
to
record
that
the
rights have
been explained without
sufficient
particulars
to
determine
whether that was in fact adequate
.
.."
[13]
In terms of
section 51(1)
of the
Criminal Law Amendment Act 105 of
1997
("
the Act”
),
subject to subsections (3) and (6) , the court shall sentence a
person it has convicted of an offence referred to in Part 1 of
Schedule
2 to imprisonment for life. Part 1 of Schedule 2 refers to
rape as contemplated in section 3 of the Act and reads as follows:
"(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;
(iii)
by
a
person
who has been convicted of two
or more offences of rape
or
compelled
rape, but
has not
yet been sentenced in
respect of such convictions;
or
(iv)
by a person, knowing that he has
the acquired immune deficiency syndrome or
the
human immunodeficiency virus;"
[14]
It is common cause that when the appellant was sentenced for the
third count of rape (that of L. N.) by the trial court he
was
convicted but not yet sentenced for the first and second counts,
to
wit
one count of rape in respect of M. F. S. and the second count
of rape in respect of E. S..
[15]
The appellant's complaint is that the learned Magistrate's
explanation as contained in record created an impression that he
was
not facing a sentence of life imprisonment.
[16]
The cause of complaint is found at page 2 of the record. From line 8
to 17 the following is stated;
"
.....
In
the presence
of your
lawyer
I
want
to inform you
sir
that the a,
of
the
provisions
of
the
Criminal
Law
Amendment Act.
Firstly
,
the
possibility
of life imprisonment
where it
might be proven
that you might have raped someone in
more
than once.
That
is
only if the state proven
that, in that
instance.
I noticed
that the charges
that
were
put
to
him,
the
complainants are
different
people and
in
that
instance,
if
it
is
only
proved that
there
is
one
count
per
person,
then schedule,
part 3
will be applicable in
this instance and for a
first offender it
is
10 years imprisonment,
a
second offender
15 years'
and
a
third offender 20 years'.
That is the minimum sentence.
It
is important before the start the trial that you know what the
provisions of the sentencing, of the court's sentence jurisdiction,
that is why the court is advising you.
Now
I
gave
you the
provisions
of, I
told
you the
possibility
of
life imprisonment,
I
told you
the possibility
of
the minimum
sentence,
but you
must
remember if
the
minimum sentence
is 10,
then
the maximum
is
5
years'
from
there,
so
it will be
15.
So
there is
5
years'
in every category
with regard to minimum and maximum."
[17]
As alluded above the appellant was legally represented the
understanding of the proceedings could not have been made easier.
The
learned Magistrate went an extra mile in exercising caution. Towards
the stage of sentencing the Magistrate invited the state
and the
appellant's representative (accused then) to make submissions on
their understanding of the relevant provisions relating
to
sentencing. The Magistrate's ruling in this regard is found at page
174 to 175 of the record. A page 175 from line 25 and at
page 176
from line 1 -23 the following is stated:
"My
ruling therefore, is that the accused in this matter where he
is being convicted for three counts rape, will be liable
to be
looking at life imprisonment, which is not a strange fact, because
that was also explained to him at the outset of this trial.
COURT
The court wanted to actually give the opportunity to build this case
in the defence, so that the decision can be made, whether,
whether
the accused is facing life imprisonment and in this instance, I have
made my ruling, I would like to give the defence an
opportunity if
there is anything that you have not mentioned and that you would like
to change or would like to add in your address,
I would give you that
opportunity to take instructions if you so wish, so that we can
continue from here. Would you like a few
minutes, ma'am?
MS
MASIKE:
Correct, Your Worship.
COURT:
Very well, then we will take a short adjournment for you to do that
and then we will come back as soon as you are ready and
of course the
[indistinct] rule applies, because if Mr Makua, also
feels that he now wants to address in something
else, he can respond.
Thank you.
COURT
ADJOURNS
[11:57]
COURT ADJOURNS [12:04]
COURT:
Thank you. A resume after the adjournment, Ms Masike, is there
anything else that you, I know there is a comprehensive report on
record and you have addressed me on points in that report. Is
there anything else you want to say?
MS
MASIKE: Your Worship, I do not have anything to add on the
submissions that I already made before this court . . ."
[18]
The Court is satisfied the appellant was informed with sufficient
particularity of the charges and the consequences thereof.
The trial
court did its best to ensure that the appellant understood that he
was facing a sentence of life imprisonment. The appellant
received a
fair trial. Therefore there is no need to interfere with
the trial's court decision in respect of sentencing.
[19]
In the result the appeal is dismissed.
_______________________
N.P.
MALI
JUDGE
OF THE
HIGH COURT
I
agree and
it is ordered
_______________________
N.V.
KHUMALO
JUDGE
OF THE HIGH COURT
[1]
(CCT23/00)
[2000)
ZACC
16;
2000
(4)
SA
1078
;
2000
(11) BCLR
1252
(CC)
(27 September
2000)
[2]
(958/2013)
[2014)
ZASCA
144;
2015
(2)
SACR 79
(SCA)
(26
September
2014)
[3]
S v
Daniels &
'n ander
1983(3)
275
(A)
at 299G-H.