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[2017] ZAFSHC 44
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Manopole v S (A203/2016) [2017] ZAFSHC 44 (16 March 2017)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A203/2016
In
the appeal between:-
P
J
MANOPOLE
Appellant
and
THE
STATE
Respondent
CORAM:
MUSI, AJP
et
JORDAAN, ADJP
et
MATHEBULA, J
HEARD
ON:
20 FEBRUARY 2017
JUDGMENT
BY:
MUSI, AJP
DELIVERED
ON:
16 MARCH 2017
Sentence:
Schedule 2 Part I with regard to rape involving grievous bodily harm
and more than one rape discussed.
Anomaly in Act 105 /1997
pointed out in that an accused who rapes more than one complainant
not at risk of being sentenced to life
imprisonment in regional court
but may be so sentenced if he/she rapes the same complainant twice.
Trial court may not antedate
sentence if original sentence was not
set aside on appeal.
Musi,
AJP
[1]
This appeal, which is with the leave of the trial court, is against
the sentence imposed by a single judge of this division.
The
appellant was convicted of housebreaking with the intent to rob and
robbery with aggravating circumstances (count 1),
and 2 counts of
rape (counts 2 and 3). He was sentenced to 15 years’
imprisonment on each count. The trial court
however ordered
that the sentences on count one and two must run concurrently. It
further ordered that the sentence be antedated
to 29 July 2014.
[2]
On 27 April 2014 the complainant on counts 1 and 2 went to bed at
approximately 21h00. Before she slept she ensured that
the door
and windows of her room were locked and closed. At
approximately 02h00 she felt somebody pulling her blankets from
her.
She
woke
up and saw a man who was wearing a balaclava standing in her room.
She screamed, the person hit her with his fist in her
face and
demanded money. She told him that she does not have money. He
then demanded a cellular phone. She gave
him the phone, which
she put in his pocket. The person then stabbed her with an
object on her right shoulder. She could
not see the object and
did not sustain any injury. She then told the person that he
can take everything in the room. He
however
told her that he wanted to have sexual intercourse with her. He
instructed
her
to
get out of bed, which she did. He then forcibly removed her
undergarment and had sexual intercourse with
her
.
Whilst having sexual intercourse with her the cell phone fell
out of his pocket. After having sexual intercourse with
her
he
instructed her to get back into bed and cover her face
with
the
blankets. She complied. After approximately 30 minutes
she realised that the person had left the room. She
got out of
bed and noticed that the timber door as well as the safety door were
open. She went to her neighbour’s room
where she reported
what happened to her. When she returned to her room she noticed
that an amplifier worth R1000 was removed
from her room by the
intruder. The cell phone was still in the room. Her neighbour also
testified and confirmed that the complainant
made a report to her
about the incident.
[3]
On 7 June 2014 the complainant on count 2 went to Chakala’s
Tavern where she drank two Hunters Dry ciders with friends.
When
she left the tavern the appellant followed her. He told her
that it is not safe for her to walk alone and he offered
to accompany
her. Whilst walking with her he threatened to hit her and
forcefully took her to his house, where he had sexual
intercourse
with her without her consent. She testified that he had raped
her three times that evening. In the morning
the appellant
walked her halfway home. She knew of the appellant.
[4]
Both complainants received medical treatment and vaginal swaps were
taken for DNA purposes. After the appellant was arrested
blood
samples were taken from him and it was detected that he deposited DNA
material in the vaginas of both complainants.
[5]
The appellant testified that he had sexual intercourse with both
complainants with their consent. He further testified
that
prior to the days that the complainants testified about, he had
sexual intercourse with them on several occasions with their
consent.
He denied raping any of the complainants.
[6]
The trial court rejected the appellant’s version and accepted
the version of the state. The trial court found him
guilty as
charged. The relevance of this finding will become apparent
later. The trial court found that it was enjoined
to impose
life sentences for the rapes, ostensibly because they were rapes as
contemplated in Part 1 of Schedule 2 of their Criminal
Procedure
Amendment Act 105 of 1997 (Act). The trial court said the
following in this regard:
“
The state further reminded the
court that the Legislature compels the court to impose life sentences
in the case of rape.”
[7]
Ms. Smit, on behalf of the appellant, submitted that the trial court
misdirected itself because the rape in count 2 is not one
as
contemplated in Part 1 of Schedule 2 of the Act. She further
submitted that the trial court misdirected itself by finding,
in
respect of count 1, that there were substantial and compelling
circumstances but nonetheless imposed the minimum sentence for
robbery with aggravating circumstances which is 15 years’
imprisonment. She however submitted that the rape in count
3 is
one as contemplated in Part 1 of Schedule 2 of the Act.
[8]
Mr. Simpson, on behalf of the respondent, submitted that the trial
court did not misdirect itself. He supported the sentence
imposed by the trial court.
[9]
It is trite that sentencing is pre-eminently the task of the trial
court. A court of appeal would only interfere with
the exercise
of the trial court’s discretion if it is convinced that the
trial court misdirected itself, or if it committed
an irregularity or
if the sentence is shockingly inappropriate. In short, if it
exercised its discretion wrongly.
[10]
The appeal against the holding that the applicable minimum sentence
on count 2 is life imprisonment is meritorious. There are
no
jurisdictional facts that warrant a finding that it is a rape as
contemplated in Part 1 of Schedule 2 of the Act. It is
indeed a
rape as contemplated in Part III of Schedule 2 of the Act. The
applicable minimum sentence for a first offender
is therefore 10
years’ imprisonment. I say this because there is no evidence
whatsoever that the complainant sustained an
injury let alone a
serious injury. It can therefore not be a rape involving the
infliction of grievous bodily harm. In
order to classify a rape
as one involving the infliction of grievous bodily harm the state
must prove that the complainant sustained
a serious injury. The
state did not prove any serious injury in this case. See
S
v Rabako
2010
(1) SACR 310
(O). In fact, the complainant testified that she did not
sustain any significant injury.
[11]
Although the complainant on count 3 testified that she was raped
thrice by the appellant, her testimony with regard to this
issue was
vague. She testified as follows:
“
So the accused
removed the condom, what then happened? --- He kept raping me saying
that he wanted to have a child with me.
He spoke about many
stories. If I remember well, he raped me three times before he
fell asleep.
After he finished the
first round, what did he do? --- He just lay aside but he did not
fall asleep; then he woke up again and got
on top of me. When
he was done and fell asleep, I heard him snoring (indistinct).
I was not sure that he was fast asleep.
I was afraid to make
any move thinking he was just pretending to be asleep. I just
slept there like that but I did not fall
asleep. In the
morning, I think it was past 7:00, I told him that I wanted to
leave. He stood up and said that he was
going to escort me.
When we were outside, he told me that I should wait for him, there
was something he was going to fetch
from inside the house. He
was going to fetch that condom and then he threw it in a plastic.”
[12]
It is clear from her testimony that she could, at best, recall two
rapes only. The prosecutor did not clarify her evidence
in
order to assist the court to make a finding that she was raped more
than once. The trial court also did not analyze her
evidence in
order to ascertain whether she was raped more than once or whether
this was one continuing act. In the
S
v Tladi
2013 (2) SACR 287
(SCA) para [13]
it
was said that:
“
There is no
evidence from the complainant as to how the appellant raped her for
the second time. The complainant's evidence does
not suggest that
there was an interruption in the sexual intercourse to constitute two
separate acts of sexual intercourse and,
therefore, two separate acts
of rape. The complainant's evidence suggests that the sexual acts
were closely linked and amount to
a single continuing course of
conduct. There is no suggestion in her evidence that there was any
appreciable length of time between
the acts of rape to constitute two
separate offences. The evidence against the appellant is therefore
limited and is insufficient
to establish his guilt on two separate
counts of rape. The trial court should have analyzed the state's
evidence and should have
concluded that only one act of rape had been
proved beyond a reasonable doubt. Counsel for the state was
constrained to concede
that no evidence was presented in the trial
court to sustain a conviction on the second count. Consequently there
was no basis
for the conviction on the second count of rape. And it
falls to be set aside.”
In
S v Legoa
2003 (1) SACR 13
(SCA) par [18] the following
was said:
“
It is correct
that, in specifying an enhanced penal jurisdiction for particular
forms of an existing offence, the Legislature does
not create a new
type of offence. Thus, 'robbery with aggravating circumstances'
is not a new offence. The offences scheduled
in the minimum
sentencing legislation are likewise not new offences. They are but
specific forms of existing offences, and when
their commission is
proved in the form specified in the Schedule, the sentencing court
acquires an enhanced penalty jurisdiction.
It acquires that
jurisdiction, however, only if the evidence regarding all the
elements of the form of the scheduled offence is
led before verdict
on guilt or innocence, and the trial court finds that all the
elements specified in the Schedule are present.”
[13]
The trial court did not make any finding in relation to the number of
times that the complainant on count 3 was raped. It
found the
appellant guilty as charged. There is no factual averment in the
indictment to the effect that the complainant was raped
more than
once by the appellant. The indictment only states that the
provisions of section 51 (1) of the Act are applicable.
Section
51 (1) read with Part 1 of Schedule 2 contain various manifestations
of rape. Section 51 (1), (3) and (6) provide:
“
(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.”
“
(3)
(a)
If any court referred to in subsection (1) or (2) is satisfied that
substantial and compelling circumstances exist which justify
the
imposition of a lesser sentence than the sentence prescribed in those
subsections, it shall enter those circumstances on the
record of the
proceedings and must thereupon impose such lesser sentence: Provided
that if a regional court imposes such a lesser
sentence in respect of
an offence referred to Part 1 of Schedule 2, it shall have
jurisdiction to impose a term of imprisonment
for a period not
exceeding 30 years.
(a
A
)
When imposing a sentence in respect of the offence of rape the
following shall not constitute substantial and compelling
circumstances
justifying the imposition of a lesser sentence:
(i)
The
complainant's previous sexual history;
(ii)
an
apparent lack of physical injury to the complainant;
(iii)
an
accused person's cultural or religious beliefs about rape; or
(iv)
any
relationship between the accused person and the complainant prior to
the offence being committed…”
“
(6)
This section does not apply in respect of an accused person who was
under the age of 18 years at the time of the commission
of an offence
contemplated in subsection (1) or (2).”
Part
1 of Schedule 2 with regard to a rape provides:
“
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;
(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;
(b)
where
the victim-
(i) is
a person under the age of 16 years;
(ii) is
a physically disabled person who, due to his or her physical
disability, is rendered particularly vulnerable;
or
(iii) is a
person who is mentally disabled as contemplated in
section 1
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act,
2007
; or
(c)
involving
the infliction of grievous bodily harm…”
[14]
A finding of guilty as charged is too open-ended to infer that the
trial court found that the appellant raped the complainant
more than
once. In the absence of a pertinent finding that the appellant
raped the complainant more than once, we cannot
find, for sentencing
purposes, that this was a rape as contemplated in
Part 1
of Schedule
2. The trial court misdirected itself by not making such
finding before conviction.
[15]
The only other basis upon which the provisions of
Part 1
of Schedule
2 could find application is, as Mr Simpson suggested, in terms of
item (iii) thereof. Item (iii) states:
“
(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; ”
In
S v
Mahomotsa
2002
(2) SACR 435
(SCA) para [20] it was said:
“…
But the
Legislature has itself distinguished him from persons who,
having been convicted of two or more offences of rape but
not yet
sentenced, commits yet another rape. If, for example, the accused in
the first instance had not raped the first complainant
more than once
and he then in the second instance raped the second complainant only
once while awaiting trial on the first count
the prescribed sentence
of life imprisonment would not have come into the reckoning.”
The
same interpretation was given to item (iii) in
Ngcobo
and Others v S
(AR759/14) [2016] ZAKZPHC 26 (3 March 2016)
where
it was stated:
“
Counsel
for the State has argued that the rape convictions in this matter
fall under the item of
Part I
of Schedule 2 to the Act which had been
relied upon by the magistrate. However, we should first deal with
Item (a)(iii) of the
provisions dealing with rape in Part I of
Schedule 2, under which the high court accepted jurisdiction.
Ignoring the paragraph
lettering (which can tend to obscure the
meaning of the words employed) the item reads as follows:
‘
Rape
when committed by a person who has been convicted of two or more
offences of rape, but has not yet been sentenced in respect
of such
convictions’.
The
language of that item conveys clearly that a rape which falls within
it is one committed by a person who has already been convicted
of two
or more prior offences of rape but has not yet been sentenced in
respect of those convictions. The language permits of no
other
construction. (This is the construction of the item adopted by Mpati
JA in the example given by him in paragraph 20 of his
judgment in S v
Mahomotsa
2002 (2) SACR 435
(SCA).)”
[16]
I agree. It is only after the trial court has convicted an
accused person that it may have regard to that person’s
previous convictions. It is only then that the State can prove that
the accused has already been convicted of two or more rapes
but not
yet sentenced for such rapes. There must therefore be two or more
other convictions at the time of the last conviction
or convictions.
This gives rise to another glaring anomaly. An adult accused
who rapes the same adult complainant two or
more times is exposed to
the minimum sentence of life imprisonment whilst an adult accused who
rapes two or more adult complainants
once, and is convicted and
sentenced during the same trial for all the rapes, is not exposed to
such sentence. When the trial
is conducted in the High Court it
can utilize its common law sentencing jurisdiction and sentence the
accused to life imprisonment.
However if such accused is
convicted in the regional court it would not have jurisdiction to
sentence him to life imprisonment.
One can only wonder whether
this was what the Legislature intended or whether it was an
oversight. In any event it
is clear that the appellant in this
matter is not a person as described in item (iii).
[17]
The trial court made the following finding:
“
The
court
has to take into account all other factors as well is you being a
first offender, you will have been in custody for one year
and 9
months. The above indeed amounts to substantial and compelling
circumstances and the court will not impose life sentence
(sic). In
so doing, does not mean the court does not unduly accord
inappropriate weight on the offences committed – even
though
you did not show much or any remorse (sic).”
[18]
Notwithstanding the finding that there are substantial and compelling
circumstances which militate against the imposition of
the minimum
sentence the trial court, however, proceeded to impose the minimum
sentence of 15 years in respect of count 1.
The provisions of
section 51(3) are clear; if the court finds that there are
substantial and compelling circumstances justifying
a deviation from
the minimum sentence it must impose a lesser sentence. It is
conceivable that a court might find that there
are substantial and
compelling circumstances with regard to one count but that no such
circumstances exist in respect of another
count. On the other
hand it might be that the substantial and compelling circumstances
relate to all the counts. It
is therefore of utmost importance
in a case where the accused is convicted of multiple counts, which
fall under the purview of
the Act, to specify whether the substantial
and compelling circumstances relate to a particular count only or to
all the counts.
In this case the trial court did not make any
such distinction. The factors mentioned by the trial court, in
any event,
relate to the personal circumstances of the appellant.
Those circumstances would be the same with regard to all 3 counts.
The ineluctable inference is that the trial court found that there
were substantial and compelling circumstances with regard to
all 3
counts.
[19]
Before considering a proper sentence I pause to point out another
irregularity.
Section 282
of the
Criminal Procedure Act 51 of
1977
states:
“
Whenever any
sentence of imprisonment, imposed on any person on conviction for an
offence, is set aside on appeal or review and
any sentence of
imprisonment or other sentence of imprisonment is thereafter it
imposed one such person in respect of such offence
in place of the
sentence of imprisonment imposed on conviction, or any other offence
which is substituted for that offence on appeal
or review, the
sentence which was later imposed may, if the court imposing it is
satisfied that the person concerned has served
any part of the
sentence of imprisonment imposed on conviction, be antedated by the
court to a specified date, which shall not
be earlier than the date
on which the sentence of imprisonment imposed on conviction was
imposed, and thereupon the sentence which
was later imposed shall be
deemed to have been imposed on the date so specified.”
[20]
It is clear that a trial court may not antedate a sentence, unless
its original sentence had been set aside on appeal or review
and the
matter referred back to it to impose an appropriate sentence. See
S
v Seekoei
1997(1) All SA 40 (NC) at 45a to 46b. The trial
court could also not antedate the sentence to 29 July 2014 which was
the date of
arrest. The order of the trial court antedating the
sentence to 29 July 2014 is an incompetent order. I now turn to
consider
an appropriate sentence.
[21]
It is trite that in considering an appropriate sentence a court must
consider the personal circumstances of the accused, the
interests of
society (which includes the interests of the victim), and the nature
of the offence. The court must balance
these factors to such an
extent that it gives expression to the objectives of sentencing, to
wit, retribution, rehabilitation,
deterrence and prevention of crime.
Where the Act is applicable the court must consider all the
relevant factors in order
to discern whether there are substantial
and compelling circumstances present. Where no such
circumstances are present the
court must impose the minimum sentence.
It has been said that a court should not deviate from the
minimum sentences for flimsy
or unconvincing reasons and substantial
and compelling circumstances are not extraordinarily circumstances.
See
S
v Malgas
2001 (1) SACR 469
(SCA) at paras 7-9.
[22]
The appellant was born on 8 June 1988 at Brandfort. He was 27
years old on the date of sentencing. He was unmarried
and had
one
child
born on [...] 2007. He was unemployed. His last gainful
employment was 2006 when he worked for Pick and Pay and earned
approximately R750 per month. He stayed with his mother who was
a domestic worker. He had two previous convictions.
On 27
March 2006 he was convicted of theft and sentenced to 12 months’
imprisonment which was wholly suspended for 5 years
on certain
conditions. On 3 June 2007 he was convicted of unlawfully
possessing dagga for which he was sentenced to a fine
of R600 or 30
days imprisonment. The previous convictions were committed long
before these crimes were committed and
they
were
irrelevant. The trial court correctly regarded him as a first
offender.
[23]
The seriousness of rape and robbery with aggravating circumstances
has been repeatedly stated and reaffirmed by our courts.
In
S
v Nkunkuma
(101/13)
[2013] ZASCA 122
(23 September 2013) it was said that rape
and robbery have become serious social problems. Pillay JA
elaborated, at para
[17],
and
stated that:
“
Rape must rank as
the worst invasive and dehumanizing violation of human rights. It is
an intrusion of the most private rights of
a human being, in
particular a woman, and any such breach is a violation of a person’s
dignity which is one of the pillars
of our Constitution... The same
can be said of robbery. No matter how they are viewed, society has
called, one more than one occasion,
for the courts to deal with of
offenders of such crimes sternly and decisively.”
[24]
Rape and robbery with aggravating circumstances are despicable crimes
which are abhorrent to our democratic society. Those
who earn
opprobrium for committing such serious offences should experience
society’s condemnation clearly and decisively.
The most
appropriate way to do so is by imposing long term imprisonment. This
is consonant with the Legislatures injunction that
courts must impose
harsher sentences for the crimes mentioned in the Schedule to the
Act.
[25]
The complainant in count one was raped and robbed in the sanctity of
her house. She was robbed at a place where she was
supposed to
be safe. It is clear that she tried to shield herself from
intruders by putting a security gate in front of the
timber door.
The second complainant was robbed of her right to freedom of
movement. She was intimidated and coerced
to accompany the
appellant to his house. Both complainants begged the appellant
not to rape them he however continued with
the pitiless,
inconsiderate and wicked sexual attacks.
[26]
The trial court found that there are substantial and compelling
circumstances. The state did not appeal against the sentence.
That finding is therefore unchallenged. The appellant
pertinently submitted that the sentence imposed on count 1 is
conspicuously
improper because of the finding that there were
substantial and compelling circumstances. Ms. Smit correctly
conceded that
imprisonment is the only suitable sentence.
[27]
I take into consideration the period that the appellant spent in
custody awaiting finalization of his trial, which was considered
as a
substantial and compelling circumstance.
[28]
To sum up, the applicable minimum sentence in respect of count 1 is
15 years’ imprisonment and in respect of count 2
and 3 it is 10
years’ imprisonment. As the trial court found that there
are substantial and compelling circumstances
and that finding has not
been challenged or upset lesser sentences, than the prescribed
minimum sentences, must be imposed.
[29]
I accordingly make the following order:
(a)
The appeal
is upheld.
(b)
The
sentence imposed and related orders made by the trial court are set
aside and replaced with the following:
(i)
Count
one: 10 years’ imprisonment.
(ii)
Count two:
8 years’ imprisonment.
(iii)
Count
three: 8 years’ imprisonment.
The sentence imposed on
count 1 should run concurrently with the sentence on count 2. The
sentence is antedated to 8 April
2016. No order is made in terms of
section 103 of Act 60 of 2000.
___________________
C.J. MUSI, AJP
I
agree.
___________________
A.F. JORDAAN, ADJP
I
agree.
___________________
M.A. MATHEBULA, J
On
behalf of Appellant:
Mrs.
L. Smit
Instructed by
Legal Aid SA
BLOEMFONTEIN
On
behalf of Respondent:
Adv. A. Simpson
Instructed by
Director Public
Prosecutions
BLOEMFONTEIN