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[2017] ZAKZPHC 28
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Makhanyana v S (AR96/15) [2017] ZAKZPHC 28 (23 March 2017)

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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No. AR96/15
In
the matter between:
Bonginkosi
Makhanyana                                                                                         Appellant
and
The
State                                                                                                            Respondent
Judgment
Lopes
J:
[1]
The appellant in this matter was charged with one count of
contravening the provisions of
s 3
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 2007
, in that on or
about the 24
th
February 2008 he raped a minor girl. On the 28
th
July 2009 he was convicted as charged and sentenced to undergo life
imprisonment.
[2]
Leave to appeal against sentence only was granted by this court on
the 27
th
March 2015. The application for leave to appeal against conviction
was refused. As the appellant was sentenced on the 28
th
July 2009, he had an automatic right to appeal against his conviction
by virtue of
s 309
(1) (a) of the
Criminal Procedure Act, 1977
, as it
then was and prior to its subsequent amendments.
[3]
The facts of this matter, as testified to by the witnesses may be
summarised as follows:
(a)
The
complainant, who was 13 years’ old and in Grade 8 at the school
she attended, had gone to the G home to assist her friend
N G with
her homework. The complainant intended to sleep in her own home that
night.
(b)
Whilst they
were sitting in the residence together with two others, the appellant
opened the door and entered, asking who was talking
about him. This
had happened very shortly after one M G had come into the dwelling
and asked whether the persons there had heard
a firearm being
discharged. The appellant then addressed his question to M and K who
was also present in the dwelling.
(c)
The
appellant then assaulted M, and thereafter helped himself to some
food and he then went to the door to leave. He looked at the

complainant, and pointed a firearm at her and beckoned her towards
him. The complainant went outside the house with the appellant
who
asked her why she had rebuffed his romantic advances. She told him
she did not love him and then the complainant called M out
of the
house.
(d)
The
appellant told the two of them to accompany him to the shop. Suddenly
the appellant stopped and told M to say goodbye to the
complainant
because he would not see her again. The appellant then suggested that
the complainant shoot him because she did not
love him. She declined
to do so. At that stage the appellant told M to take off his white
clothes and lie down on the ground so
that the police would not see
him. Whilst M was lying on the ground, the appellant told the
complainant to take off her clothes.
She refused and the appellant
removed her panties.
(e)
At that
moment three persons arrived on the scene, E, Mp and another. E, who
was a member of the appellant’s family, discharged
a firearm,
and the appellant ran away. E then asked the complainant and M what
they were doing at that place. E took the appellant’s
firearm
which had been rolled up in a garment and placed it on one side. M
and the complainant were told by E and Mp that they
should go home.
(f)
The
complainant and M went to Kh’s kraal, the family of M’s
mother, where they told the whole story to one S X. Whilst
they were
there, the appellant knocked on the door and the complainant and
those with her crept away and hid behind a cupboard.
The door was
eventually opened by a child named Cynthia who was told by the
appellant that she would be stabbed if she did not
open the door. She
was crying and opened the door.
(g)
The
appellant then saw where the complainant was hiding and pulled her
outside. He had a knife in his hand and he pushed and pulled
the
complainant along to an area where there was long grass and trees. He
again took off her panties, but before anything else
could happen,
they heard the voices of people walking past nearby. The appellant
told the complainant that they must run away,
which they did. The
complainant was crying while she did so. She could hear the people
talking and it was Si and, apparently, some
police officers, who were
looking for the complainant. The appellant took the complainant to
the river nearby and when the complainant
fell, the appellant wanted
to have intercourse with her. When the complainant refused, he struck
her. He then raped her.
(h)
They then
heard a motor vehicle approaching where they had previously been. The
appellant then took the complainant’s hand
and pulled her into
the long grass and raped her again. The second rape took place after
midnight. At some stage the appellant
took the complainant back to
the river and raped her again. She was crying continually and the
appellant threatened her with a
knife and said he would stab her if
she did not submit. They then proceeded back in the direction of G’s
kraal where the
appellant told her she must not tell anybody what had
happened because he would shoot her and her family.
(i)
When they
passed G’s kraal, the appellant saw a police vehicle. The
appellant stopped and the complainant ran away to her
house. As there
was nobody there, she ran to the home of her neighbour Si M. On the
way she passed the appellant sitting on the
side of the road, and
when she told him she was going to M’s kraal, he told her not
to say anything about what happened.
He reminded her that if she did
so he would shoot her. The complainant assured him she would not tell
anyone and continued on her
way.
(j)
When she
got to M’s kraal, Mrs M opened the door. The complainant told
her what had happened and Mrs M said they should go
to sleep until
the morning. They did so, and the next morning at approximately 5am
they got up, and the police were phoned. The
complainant was taken to
the doctor the next day.
(k)
The
complainant was cross-examined and it was suggested to her that she
and the appellant had had consensual sex on one occasion
only, on the
night in question.
[4]
Mr
Marimuthu,
who appeared for the appellant submitted that
the conviction of the appellant should be set aside for the following
reasons:
(a) the learned
magistrate did not conduct a proper enquiry into the competence of
the complainant as a witness.
(b) the age of the
appellant was not properly established during the trial, and
accordingly cannot constitute a factor in applying
the minimum
sentencing provisions.
(c) the complainant was a
single witness to the actual charge.
[5]
Mr
Marimuthu
referred the court to the provisions of
ss 162
,
163
and
164
of the
Criminal Procedure Act, 1977
together with the dicta in
S
v Raghubar
2013 (1) SACR 398
(SCA). He submitted that the learned magistrate was
obliged to have conducted an enquiry in order to satisfy himself as
to the
competence of the complainant. He did not do so, and
accordingly her evidence is inadmissible and falls to be set aside.
[6]
Section 164(1)
of the Act provides that any person who is found not
to understand the nature and import of the oath or affirmation may
nonetheless
testify after being admonished to speak the truth. The
purpose of that section and the other sections referred to by Mr
Marimuthu
is to ensure that reliability can be placed upon the evidence of a
witness.
Section 192
of the Act prescribes that all persons are both
competent and compellable as witnesses.
Section 193
provides for a
court in which criminal proceedings are conducted to decide any
question concerning the competence or compellability
of any witness
to testify.
[7]
In
Raghubar
the learned magistrate clearly thought that the complainant may not
be a competent witness. That is why he questioned the complainant.

The Supreme Court of Appeal decided that the learned magistrate’s
questioning fell short of what was required in order to
establish the
complainant’s competency. This is also what happened in
S
v B
2003 (1) SA 552
(SCA) which concerned the admissibility of the
evidence of two young witnesses. Two minors, the complainant and a
witness both
13 years’ of age, had given evidence in the
Regional Court. They were not asked to take an oath and were merely
admonished
to tell the truth. The court
a
quo
set
aside the resulting conviction,
inter
alia
,
on the basis that the complainant’s evidence was inadmissible.
The Supreme Court of Appeal held that no formal enquiry was
necessary
in order to determine whether a witness, by reason of youthfulness,
may not understand the import of an oath. No formal
noting of such a
finding was required.
[8]
In the circumstances of the present case, although the learned
magistrate did not raise the question of the complainant’s

competence as a witness, he was clearly of the view that the witness
was competent to testify, and she did so under oath. It appears
from
the evidence led at the trial that the complainant was 14 years’
of age at the time when she testified. The learned
magistrate queried
her date of birth because she stated that she was born on the 8
th
September 1996. His query was raised almost at the outset of the
complainant’s evidence, and he placed on record that the
reason
he did so was that the complainant appeared to be considerably older
than 13, as she had testified. (In fact she never mentioned
her age
but simply her date of birth which, if she was born on the 8
th
September 1996, would have made her 12 years’ old at the time
she testified.)  The learned magistrate went on to record
that
because of her general appearance and build he would not have
disputed it if anyone had suggested that she was 17 or even
18 or 19
years’ old.
[9]
The learned magistrate also deal with his impressions of the age of
the complainant in his judgment. It was because of his doubts
that he
insisted that the complainant’s mother be called as a witness
in order to testify to her age.
[10]
In my view there is no hard and fast rule that an enquiry into the
competence of each and every witness must be carried out
by a
judicial officer prior to allowing the witness to testify. The
judicial officer will, no doubt, raise the issue of a witness’s

age where it appears to him or her that there is reason to do so, or
otherwise to doubt the competency of the witness. There can
be no
doubt that in the present matter the learned magistrate was satisfied
that the complainant was competent to testify. Indeed,
his
observations and impressions are confirmed by his findings as to the
way in which the complainant testified. I am accordingly
of the view
that this point has no merit.
[11]
Mr
Marimuthu
submitted that as the age of the complainant was not properly
established at the trial, the fact that she may have been a minor

when the offence occurred cannot be invoked against the appellant in
deciding whether to apply the minimum sentencing provisions.
In my
view this submission has no merit. The learned magistrate insisted
that the biological mother of the complainant, one F N,
testify. The
complainant’s mother stated that the complainant was born on
the […] February 1995 which would have made
her 12 years’
old at the time of the offence and 14 years’ old when she
testified. The complainant’s mother also
testified that her
original birth certificate had been lost and the subsequent birth
certificate which was issued incorrectly records
the complainant’s
date of birth.
[12]
In my view the best evidence of the date of birth of any person is
established:
(a)
by the
person who gave birth to the child, and who thereafter witnessed the
child growing up in order to be able to confirm the
child’s
identity when any issue as to the child’s age is raised; or
(b)
any other
person who was present at the birth, and is similarly able to confirm
the identity of the child when the issue is raised.
[13]
The evidence of the complainant’s biological mother stands
uncontested on the record. An incorrect recording in the births

register cannot be preferred to her evidence. On either basis there
can be no doubting the evidence which was placed before the
learned
magistrate that the complainant was a minor when the alleged offences
took place.
See:
S v
Lubando
2016 JDR 0352 (SCA), para 15.
[14]
With regard to the fact that the complainant was a single witness to
the actual charge, her evidence is significantly corroborated
by the
admissions made by the appellant. He admitted that he had had sexual
intercourse with the complainant on the night in question,
albeit he
alleged that was only on one occasion and by consent. The
complainant’s evidence is also substantially corroborated
by
the other witnesses.
In
my view the appeal against conviction has no substance and falls to
be dismissed.
[15]
With regard to the appropriate sentence which the learned magistrate
should have imposed upon the appellant, factors which
may be regarded
as mitigating for the appellant are the following:
(a) The appellant has no
previous convictions.
(b) At the time of the
incident the appellant was 19 years’ old.
(c) When he was arrested
the appellant was trying to complete his Matriculation Certification.
(d) According to the
complainant the appellant was under the influence of alcohol and the
complainant testified that she was able
to say that because the
appellant had trouble with his balance and his eyes were red.
(e) Given the age of the
appellant he should be given the benefit of an opportunity to be
rehabilitated.
[15]
Facts which are aggravating are as follows:
(a) The brutal way in
which the appellant dealt with the complainant.
(b) The appellant raped
her on three occasions.
(c) That she was twelve
or thirteen years’ of age at the time of the rapes.
(d) The appellant carried
a firearm and a knife, which he used to threaten the complainant.
(e) The appellant stated
in his evidence that he had not consumed any liquor on the day in
question, and stated that he does not
consume alcohol.
(f) Having been
frustrated earlier when attempting to rape her, he made a further
plan which he executed.
(g) He could not have
been in any doubt that his conduct was criminal.
(h) He was given two
warnings to reconsider or desist from continuing with his conduct,
both of which he ignored.
[16]
No effort was made by either the appellant’s legal
representative or the learned magistrate to investigate the past
circumstances of the appellant when it came to sentence. Indeed, his
representative recorded only that the appellant had no children,
was
not employed and was doing matric. She referred also to the presence
of alcohol and the brutality of the crime and the youthfulness
of the
appellant leading to the prospect of rehabilitation. This took up all
of nine lines of the record. Given the relative youth
of the
appellant, the learned magistrate should have enquired as to the
obtaining of a probation officer’s or social welfare
officer’s
report, or both, prior to passing sentence. See:
S
v Dlamini
2000
(2) SACR 266
(T) at 269 A-D
.
[17]
To enquire into the obtaining of such reports is to ensure that
justice is done. There may be cogent reasons for omitting to
do so.
However, by making the enquiry at least, a court ensures that any
such omission is not inadvertent.
In
S v
Mashigo
2015
JDR 0907 (SCA) Bosielo JA stated the following with regard to the
evidence available to enable a judicial officer to pass sentence:
‘
[35] It is axiomatic that the
sentencing stage is different to the trial stage where the issue of
the burden of proof is crucial
in determining the guilt or innocence
of an accused. Where sentencing is involved no sentencing officer can
remain supine and leave
the fortunes of an accused to the vagaries of
trial lawyers. A sentencing court must be proactive to ensure that he
or she is fully
informed of all the facts which impact on the
accused, like his/her family history, upbringing, career, his
psycho-emotional well-being,
his moral and ethical standards and any
other factors which may have had an influence on him or her
committing the crime for which
he or she is convicted. This is
normally done through reports by expert witnesses. Equally, to have a
complete and balanced picture,
a sentencing officer will require a
victim impact report, essentially to inform him or her of the victim;
her family history, upbringing,
career and, crucially, the impact and
the effect of the offence on her and her family. Self-evidently such
reports will enable
a sentencing officer to explore a whole range of
sentencing options to be able to decide on a sentence which is
balanced, fair
to both the accused and the victim, whilst taking
appropriate account of the moral indignation engendered in the
right-thinking
members of the community.’
[18]
I refer also to the dicta of O’Linn J in
S v Sagarias
1991
(1) SACR 231
(Nm) at 233j – 234a
:
‘
It must again be emphasised
that the court always has a duty to ensure that it is in possession
of all the relevant and available
information to enable it to impose
a balanced sentence… The aforesaid duty of the court is
exercised not only in the interests
of the accused, but also of the
complainant, the administration of justice and the community as a
whole The objective must be to
establish the truth, whether or not
such truth is for or against the accused.’
[19]
In
S v Mathole & Another
2002 (2) SACR 484
(T) para 10
Bosielo J recorded:
‘
There is yet another aspect of
the case which caused me grave concern. It is clear from the record
that the magistrate did not make
any serious attempt to get any
evidence regarding sentence in respect of the two unrepresented
accused. The record of the proceeding
reveals a highly perfunctory
enquiry, which elicited the following response by both the accused:
‘I am not married. I am
not employed. I have no money.’
With respect, this can hardly qualify as an honest attempt by the
magistrate to inform himself
as much as he should have of facts that
could assist him to exercise his sentencing discretion judicially and
properly.
As the learned Nicholas AJA correctly
remarked in
S v Dlamini
1991 (2) SACR 655
(A)
(1992 SA 18)
at
667c-d (SACR) and 301 – 31 C(sic) (SA
)
:
“
More than 100 years ago, Mr
Justice Stephan said that, while it is commonly thought that
England’s countless Acts of Parliament,
Judges of first-rate
ability, elaborate systems of procedure and careful rules of evidence
are concerned essentially with the punishment
of the offender, “there
is no part of the whole matter to which so little attention is paid
by those principally concerned
with it.” He regretted the fact
that Judges paid so little and such superficial attention to
sentencing. Yet, he argued,
sentencing was the gist of the criminal
trial. “It is”; he said, “to the trial what the
bullet is to the powder.
And more recently, in
The
Machinery of Justice in England
,
Jackson wrote:
“
An English criminal trial,
properly conducted, is one of the best products of our law, provided
you walk out of the court before
the sentence is given. If you stay
to the end you may find that it takes far less time and enquiry to
settle a man’s prospects
in life than it took to find out if he
took a suitcase out of a parked motor car”.’
Bosielo
J then went on to refer to
S v Siebert
1998 (1) SACR 554
(SCA)
where Olivier JA stated, inter alia:
‘
Sentencing is a judicial
function
sui generis
.
It should not be governed by considerations based on notions akin to
onus
of
proof. In this field of law, public interest requires the court to
play a more active, inquisitorial role. The accused should
not be
sentenced unless and until all the facts and circumstances necessary
for the responsible exercise of such discretion have
been placed
before the court … If there is insufficient evidence before
the court to enable it to exercise a proper judicial
sentencing
discretion, it is the duty of that court to call for such evidence.
Especially as regards correctional supervision this
duty can be
discharged easily and without any cost to the accused, by calling for
the probation officer’s report required
by
s 276
(A) (1) of the
Act.’
Undoubtedly
I find myself in respectful agreement with the dicta quoted above.’
In
Mathole
the court set the sentence aside and referred the matter back to the
learned magistrate for a reconsideration of an appropriate
sentence
after the magistrate has received and considered evidence which shall
include the evidence of either a probation officer
or a correctional
official. If the approach of the judiciary is correctly directed by
the sentiments above, with which I am in
respectful agreement, with
regard to a sentence of two years’ imprisonment for a crime of
assault with intent to do grievous
bodily harm, how much more so are
the principles applicable where life imprisonment is to be imposed?
[20]
I do not want to be misunderstood as suggesting that because of the
shortfalls referred to above the appellant did not receive
a fair
trial. What I would suggest however, is that where there is a paucity
of information available to the learned magistrate,
albeit that an
accused is defended, the learned magistrate should, in all cases of
life imprisonment, call for assistance in enabling
him to establish
the necessary facts upon which his or her sentence is founded. In
this regard Bosielo J stated in
Mashigo
in paragraph 26:
‘
It is correct as counsel for
the first appellant submitted that imprisonment for life which is the
ultimate sentence should not
be likely imposed. It is the kind of
sentence that should be imposed only after due consideration of all
the facts and circumstances
relevant to sentencing, in particular the
life history of an accused, his or her upbringing, his or her career
if any, prospects
of rehabilitation and, of course, the nature,
impact and effect of the offence on the complainant. See
S
v Siebert
1998 (1) SACR 554
(SCA).’
[21]
In his judgment on sentence the learned magistrate found that there
were no substantial and compelling circumstances which
would have
entitled him to impose a sentence of less than the minimum prescribed
by law. Although the learned magistrate stated
that the appellant
could be described as youthful, he recorded that the appellant was
not a child and did not concern himself with
child-like behaviour.
The learned magistrate’s view was that the appellant did not
belong in society, and it was the duty
of the learned magistrate to
make sure that the appellant was removed from society for as long as
possible.
[22]
In my view the learned magistrate erred in this latter regard. He
failed to take any proper cognisance of the fact that the
appellant’s
age at the time he committed the offence which almost inevitably
leads to the conclusion that there is some possibility
that he could
be rehabilitated. Without any proper reasoning the learned magistrate
has reached a conclusion at odds with that
possibility. He laid no
basis for the conclusion that he should ensure that the appellant be
removed from society for as long as
possible. In my view he has
misdirected himself in doing so. This court is accordingly at large
to impose an appropriate sentence
upon the appellant.
[23]
With regard to the influence of alcohol, there is a dispute between
the evidence of the complainant and the evidence of the
appellant.
The complainant referred to the appellant ‘staggering’ as
a result of his intoxication. Her version is clearly
to be preferred
to his. Why he should have lied about this issue is uncertain, but a
court should not disregard the evidence of
intoxication and its
possible effect upon the behaviour of the appellant.
[24]
In addition, the learned magistrate’s judgment does not in way
deal with an approach containing any compassion or mercy.
In
S
v Rabie
1975
(4) SA 855
(A) Holmes JA deal with this aspect of punishment at page
861D as follows:
‘
Then there is the approach of
mercy or compassion or plain humanity. It has nothing in common with
maudlin sympathy for the accused.
While recognising that fair
punishment may sometimes have to be robust, mercy is a balanced and
humane quality of thought which
tempers one’s approach when
considering the basic factors of letting the punishment fit the
criminal as well and the crime
and being fair to society: See
S
v Narker & Another,
1975
(1) SA 583
(A.D.) at p.586 D. That decision also pointed out that it
would be wrong first to arrive at an appropriate sentence by
reference
to the relevant factors, and then to seek to reduce it for
mercy’s sake. This was also recognised in
S.
v Roux,
1975 (3) S.A. 190
(A.D.).’
[25]
The learned Judge then went on to deal with the history of mercy or
compassion in sentencing and indicated that it was not
something
which is of recent judicial origin. He then summed up the concept of
mercy at 862D:
‘
(h) To sum up, with particular
reference to the concept of mercy –
(i)
It is a balanced and humane
state of thought.
(ii)
It tempers one’s approach
to the factors to be considered in arriving at an appropriate
sentence.
(iii)
It has nothing in common with
maudlin sympathy for the accused.
(iv)
It recognises that fair
punishment may sometimes have to be robust.
(v)
It eschews insensitive
censoriousness in sentencing a fellow mortal, and so avoids severity
in anger.
(vi)
The measure of the scope of
mercy depends upon the circumstances of each case.’
[26]
I am acutely mindful that the complainant’s trauma will remain
a blight on her happiness and development until she is
able to
recover from her dreadful experience, if she ever does so.
[27]
Taking into account all the relevant factors, I do not believe that
life imprisonment is an appropriate sentence in the circumstances
of
this case. When he committed the offence the appellant was very
young. It is true that his behaviour towards the complainant
was
appalling. However, that factor alone should not lead to the general
conclusion that he is incapable of rehabilitation. The
combination of
having no previous convictions, the influence of alcohol and the
appellant’s youth all lead inevitably to
substantial and
compelling circumstances entitling a court to impose less than the
minimum sentence of life imprisonment –
a sentence which, in my
view, is inappropriate given the circumstances of this case.
Combining these factors with a lack of proper
understanding of his
background and circumstances because of a failure properly to
investigate them, and blending the overall sentence
with a sense of
mercy and compassion, the sentence of life imprisonment is excessive.
[28]
In saying this I am mindful of the purposes for which the minimum
sentencing legislation was introduced. Those purposes include

establishing consistency in sentencing, drawing the attention of the
public to the prevalence and horror of rape, and the public’s

need to have an elevated range of sentences applicable to act as a
deterrence for others.
[29]
Taking into account all the relevant factors, justice would have been
achieved if the appellant had been sentenced to undergo
25 years’
imprisonment.
[30]
I accordingly make the following order:
(a) The appeal against
conviction is dismissed.
(b) The appeal against
sentence succeeds.
(c) The sentence of life
imprisonment imposed in the court
a quo
is set aside and
replaced with a sentence of twenty five (25) years’
imprisonment, which is backdated to the 28
th
July 2009.
________________
G
Lopes J
I
agree.
________________
D
Pillay J
I
agree.
________________
M
Chetty J
Counsel
for the appellant: P Marimuthu
Instructed
by: Justice Centre
Durban
Counsel
for the respondent: I Cooke
Instructed
by: Director of Public Prosecutions
Pietermaritzburg
Date
of hearing: 10 May 2016
Date
of Judgment: 23 March 2017