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[2017] ZAGPPHC 270
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Mashaba v S (A178/16) [2017] ZAGPPHC 270 (25 April 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION,
PRETORIA
CASE
NUMBER: A178/16
DATE:
25 April 2017
JUSTICE
MASHABA
Appellant
V
THE
STATE
Respondent
JUDGMENT
MABUSEJ
:
[1]
This matter came before us as an appeal against both the conviction
and sentence.
[2]
The appellant, Mr. Justice Mashaba, appeared before the regional
court in Brakpan where he was charged with rape as contemplated
in
section 3 of Act 32 of 2007. Despite his plea of not guilty he
was convicted accordingly and sentenced upon conviction
in terms of the provision of s 51 of Act 105 of 1997, to life
imprisonment.
[3]
The appellant, who enjoyed legal
representation during his entire
trial
made a plea-explanation in terms of s
115 of the Criminal Procedure Act 51
of 1997.
In such plea-explanation he makes the following admission through his
legal representative:
"We
are admitting that during 2012 and 2013 at or near Tsakane Extension
9 in the regional division of Gauteng he did unlawfully
and
intentionally commit an act of sexual intercourse with a female
person to whit NS at the stage 13 years of age by inserting
his penis
into her vagina and he had sexual intercourse with her. He
further admits that he was of full and sober senses
whilst
having intercourse with the complainant and he admits that he was
aware that having intercourse with a minor constitutes
an offense."
[4]
The legal representatives of the appellant mailed the
appellant's colours to the mast when
she told the
court that what was in dispute was consent. She went further
and explained that the complainant approached
the
appellant on or about August 2012 and
requested him to have intercourse with her.
Originally he refused but had to give in ultimately
following the persistence of the complainant.
In
the end they formed a relationship. It was for this
reason that sexual intercourse between them was by consent.
[5]
According to the complainant, the alleged rape took place
under the following circumstances. It took place on a bed that
she at the same time shared with three of her siblings and in a room
in which the four of them slept at the time. There
was at
the same time a television set in this room which the appellant was
watching before the incident of sexual intercourse.
Next
to this room and divided by a curtain was a room in which the
appellant and the complainant, his girlfriend and her
mother
slept. The appellant and the complainant's mother had an intimate
relationship.
[6]
On that faithful night she was
in bed with her siblings while the
appellant
was watching television. On three
different and successive occasions she woke up to find inexplicably
her pants
pulled down to her knees. This happened, on each occasion
because she had been fast asleep. For that reason she could not see
who
did it and why he or she did it.
[7]
On the fourth occasion she woke up only to find the appellant
on top of her and her pants pulled down up to her knees.
The appellant ordered her to keep quiet. With one hand he
closed her mouth while with the other hand he took of his pair
of
trousers and his underpants down to his knees. He also
took of the complainant's panty, squat it between her thighs
and inserted his penis into her vagina. Having inserted
his private parts into hers, he moved up
and down.
When he finished he put his
pants on and went to sleep. He
dared the
complainant to tell anyone about the incident at the pain of being
taken to Maputo where the applicant
threatened to kill
her. As a consequence of this threat she would not tell any
person of her experience for a very long time
until she had become
pregnant.
[8]
During cross-examination it was put
to her that she had consented
to
having sexual intercourse with the appellant. She
disputed this statement and added
that she
could not have consented to sexual intercourse with the appellant
under the circumstances where
she regarded him as the
father and where he had an affair with her own mother.
Furthermore,she denied that she and the appellant
developed any
love relationship. Her evidence was followed by that of
her mother, L S, and Doctor Monomputo Muka-Makiangi
gave evidence as
the respondent's third and last witness. In view of the
nature of the dispute between the parties
this evidence of both
L and the Doctor did not take the case any further.
[9]
The accused testified in his defence and called no witness to
support his case. His version was that the complainant approached him
and requested him to have sexual intercourse with her. He
testified furthermore that during
the
middle of approximately July 2012
the complainant approached him
for the first
time. At this stage the appellant
resisted. Later during August 2012
the complainant
approached him again. He proceeded to enter into a
sexual relationship with her.
[10]
The sexual intercourse, according to his testimony, took place under
the following circumstances. At the time the complainant
confronted
him while he was in his room and in the bath. She came
into the house and asked where he was. He responded
and told
her that he was in his room taking a bath.
The complainant bravely walked into
his room. She wanted
him to have sexual intercourse with her. He got tempted and had
sexual intercourse with her.
[11]
He testified furthermore that he discovered at the time she
had sex with the complainant that she was not a virgin. Apart
from this occasion he had sex with the complainant several
times later. He stated that he and the complainant
continued to have sexual intercourse each and every time at the
pleasure of the complainant. On each of such occasions it
was the
complainant who would approach him for
sex,
the other children
would be present and they would be sleeping when they had sex.
[12]
The court
a quo
was satisfied that the State had proved
its case beyond reasonable doubt. It convicted the appellant as
charged. The
court found that the appellant's
version supported the State's case to a very large
extent.
[13]
The appellant has, in his notice of appeal, set out a number
of fronts on the basis of which he challenged his conviction by
the court
a quo.
In the final analysis he contended that the
court
a quo
erred in finding that the State had proved its
case beyond reasonable doubt. In this appeal the appellant
is represented
by Adv. Phahlane of
the Pretoria Justice Centre. In advance of the
hearing of this appeal
Mr. Phahlane filed written heads of argument
in which he submits that the court
a quo
erred in
finding that the State proved rape in terms of s 3 of Act 32 of 2007
and in rejecting the evidence of the appellant as
not being
reasonably possibly true. Furthermore, he submitted
that the court erred in disregarding
the plea to
which the appellant wanted to plead on
which the statutory rape without giving
any reasons
thereto, more particular1y because the State did not indicate whether
such a plea is accepted by
it or not. Thirdly
he submitted that the appellant's evidence
regarding the
sexual act itself was done through the
consent of the complainant hence the need to
plead statutory
rape and giving effect that
he acknowledged that sex with a minor child
is unlawful.
Mr. Phahlane
submitted that the appellant should have been convicted of statutory
rape in terms of s
15(1) and nots 3 of the same Act.
Relying on the case of Tshabalala v State
(A74/2011)
(2013) ZAGPPBC 159 decided on 12 June 2013 he
submitted that he court
a quo
should have followed that
principle and convicted the accused as set
out in the said case.
Finally, he submitted that
there was no duty on the appellant to convince the court otherwise
as long as his
version was reasonably
possibly true even though his
explanation was
found to be improbable.
[14]
The duty of this appeal tribunal is not so much to find
any errors in the judgment of the court
a quo
as it is to
establish as whether it has abridged the facts of the matter
correctly, in other words, whether it has properly analysed
the facts
of the case and correctly applied the principles of the law to the
facts.
[15]
In its judgment the court
a quo
pointed out that the
appellant had, in his plea-explanation in terms of s 115 of the CPA,
made material admissions of the elements
of the crime he had been
charged with. It was aware that the battlefield
between the parties was
whether the sexual
intercourse took place with the consent of the complainant as pleaded
by the appellant.
The court
a quo
found that there was
no consent. It was alive to the fact that it had to treat the
complainant's evidence with caution.
[16]
The court
a quo
was satisfied with the evidence of the
complainant. It made no adverse remarks about her as a witness. It
stated that the mere fact
that she made a mistake on the period of
her gestation before she gave birth did not mean that the court
should ignore the rest
of her evidence. It
observed, and in our view quite correctly
so, that
the rest of her evidence was clear, straight
forward and that it was beyond reproach. It could not find any
fault with
the rest of her evidence. It was satisfied
with the way in which the complainant described how the incident took
place in the bedroom; how the appellant meticulously went
about in shifting her brothers and sisters out of the way
so that he
could have more room within which to maneuver.
The court
a quo
found that the
complainant's memory was extremely good. Having
considered the evidence
in totality the court
could not find any evidence on the basis of which it
could infer that there was consent.
[17]
It is important to point out that the appellant was charged with
contravention of section 3 of Act 32 of 2007. This section
states as
follows:
"Any
person ("A") who unlawfully and intentionally commits an
act of sexual penetration with the complainant ("8"),
without the consent of("8") is guilty of the offence of
rape."
Accordingly
this was a charge to which the appellant had to plead too. He
could not choose to plead the statutory rape,
as he called it,
when he was not charged with it. He was not charged with
contravention of section 15 of the Sexual Offences Act.
Any other
contention is flawed. The State is
dominis
litis.
It is at large to bring upon any
facts placed on it any charges it fancies
against an
accused person. The fact that it had an
option to bring the charge under section 15(1) of the Act
did not mean that it could not bring the charges under s 3 of the
same Act.
[18]
The appeal against conviction cannot succeed.
[19]
This bring us to the appeal against sentence. Three
submissions were made by counsel for the applicant
in
this respect and these were that:
19.1
the court
a quo
erred in holding that there were no
substantial and compelling circumstances which warranted deviation
from the sentence of life
imprisonment;
19.2
the sentence imposed by the court
a quo
is too harsh,
inappropriate and induces a sense of shock;
19.3
the court
a quo
erred in over emphasising the seriousness of
the offence and failed to take into account the rehabilitative effect
which the sentence
should have on the appellant.
[20]
The starting point is that the infliction of punishment is
pre-eminently a matter for the discretion of the trial court.
See in this regard R
v
Maphumulo and Others 1920 AD page 56.
This is a discretion that belongs to the trial court and we should be
slow to interfere with
this discretion unless the trial court
misdirected itself or exercised its discretion
capriciously. There is
no complaint that the trial court exercised
its discretion capriciously or committed a misdirection in its
selection of sentence.
[21]
The next issue that this court must consider is whether the trial
court should have found that there were
substantial
and compelling circumstances in which case it would have required to
deviate from imposing the ordained sentence.
In considering
this aspect, it must always be remembered that there is no
definition of substantial and compelling circumstances
and that one
factor or a combination of
factors may
constitute
substantial and compelling circumstances.
[22]
In the first place the charge against the appellant was read subject
to the provisions of s 51(2) of the Minimum Sentence Act.
This
subsection ordains a sentence of life imprisonment where
the
victim of such rape is a person under the age of 16 years which is
the case in this matter unless there are substantial and
compelling
circumstances. While Mr. Phahlane submitted that the court a quo
erred in holding that there were no substantial and
compelling
circumstances he has himself not pointed out, whether in the notice
of appeal or in his heads
of
argument, what those circumstances are. We could not find any such
circumstances placed before the trial court. In the absence
of such
circumstances the trial court was entitled to oppose the ordained
sentence.
[23]
Finally, the sentence of life imprisonment is the kind of sentence
prescribed by the legislature.
It is therefore not too harsh or inappropriate and does not
induce a sense of shock if it is imposed under appropriate
circumstances,
e.g. where the law prescribes the sentences under
which
such a sentence may be imposed and when such circumstances exist. No
justification exists for this court to interfere with
the sentence
imposed by the court
a quo
on the appellant.
[24]
It was finally submitted that the court
a quo
erred in
overemphasising the seriousness of the offence and
failed to take into account the rehabilitative effect
which
the sentence should have on the appellant. Neither
the State nor the appellant's legal representative
argued this
point before the court
a quo.
[25]
Having imposed a sentence upon the appellant, the court
a quo
made
three orders, among them, an order in terms of section
50(2)(a)(i) of Act 32 of 2007. We gave both counsel an opportunity
'to peruse the said section and to make submissions on whether or not
in making that order, the court
a
quo followed the correct
procedure. The correct procedure is set out in J v National
Director of Public Prosecutions and Another
2014(2) SACR 1 CC (J v
NDPP) and also in the following paragraphs 50(2)(c) and 50(2)(d)
which were included by section 7(b) of
Act 5 of 2015 on 7
July 2015. Both counsel were ad idem that the court
a quo
did not follow the correct procedure and that the matter should
be referred back to the court
a quo
only to deal
with this aspect.
[26]
In the result the following order is made:
1.
The appeal against conviction and sentence is hereby dismissed.
2.
The conviction of the appellant by the court
a quo
and
the sentence imposed on him are hereby confirmed.
3.
This matter is referred back to the court
a
quo
to comply with the requirements of section
7(b) of Act 5 of 2015.
____________________
P.M.MABUSE
JUDGE
OF THE HIGH COURT
I
agree
____________________
S.C.MIA
ACTING
JUDGE OF THE HIGH COURT
Appearances
:
Counsel
for the appellant:
Adv. P Phahlane
Instructed
by:
Pretoria Justice Centre
Counsel
tor the respondent:
Adv. M Molatudi
Instructed
by:
Director of Public Prosecutions
Date
Heard:
25 April 2017
Reasons
furnished on:
25 April 2017