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[2016] ZAFSHC 31
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Sephula v S (A139/2015) [2016] ZAFSHC 31 (11 February 2016)
IN
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Appeal
No.: A139/2015
In
the appeal between:-
JOSEPH
OUPA
LEBOHANG
SEPHULA
Appellant
and
THE
STATE
Respondent
CORAM:
MOLEMELA, JP
et
NAIDOO, J
HEARD
ON:
5 OCTOBER 2015
DELIVERED
ON:
11 FEBRUARY
2016
MOLEMELA,
JP
[1]
This is an appeal against conviction and sentence. The appellant
appeared before the Regional Court in Bethlehem (court
a
quo)
and was charged with rape. He was convicted
and sentenced to life imprisonment. The appellant has an automatic
right of appeal on
account of his sentence.
[2]
The facts that gave rise to the appellant's prosecution were
presented to the court
a
quo
through the
evidence of three state witnesses. The complainant was a single
witness in respect of the rape. In a nutshell, the complainant's
evidence was that she and the appellant lived on neighbouring houses
at a farm. On the day of the incident, the appellant came
to her
house in the morning and told her that he had problems. He requested
her to let him into the house so that they could discuss
his problems
in private. The two of them then proceeded to the complainant's
parental home, which was situated in the same premises.
Once they
were inside the house, the appellant, closed the door, locked it and
then grabbed a pair of scissors from the table.
He immediately
stabbed the complainant on the forehead with the scissors and then
ordered her to take off her clothes. The complainant
obliged. The
appellant took off his clothes and ordered the complainant to climb
on the bed. He then ordered the complainant to
perform oral sex on
him. The complainant obliged. The complainant tried to scream but the
appellant threatened to kill her. He
thereafter penetrated her
vaginally and proceeded to rape her. After ejaculating, he lay next
to her. He raped her three times.
He then put his clothes on and told
the complainant that he was going to check on some people. As soon as
he opened the door, the
complainant pushed him out. In her haste to
rush out of the house, the complainant fell, injuring her
shoulder in the
process. She stood up and ran to her neighbour's
house. As she was running away, she saw the appellant walking
towards his
house. The neighbour phoned the owner of the farm,
who was the appellant's employer. The latter arrived soon thereafter,
followed
by the police.
[3]
The complainant's neighbour testified and confirmed
that when the complainant arrived at her house,
she was
bleeding and in shock and reported that the appellant had raped
her. She confirmed that she phoned the appellant's
employer to notify
her about the incident. The appellant's employer testified and
confirmed that she was called to the scene by
the complainant's
neighbour. She in turn called the police. Before the arrival of the
police, she saw the appellant walking towards
his house and asked him
what was going on. The appellant did not respond. After the arrival
of the police, the appellant refused
to open the door and threatened
to shoot the police. The police entered the house forcibly, only to
find the appellant lying on
the floor, unconscious. He was bleeding
from his wrists. It seemed as if the appellant had slashed his own
wrists. The appellant
was taken to the hospital, where he received
treatment.
[4]
At the commencement of the trial, the prosecutor requested that the
appellant be referred for mental observation to determine
whether he
had criminal capacity. The matter was postponed and the appellant was
duly referred to a mental institution for observation
as contemplated
in the
Criminal Procedure Act 51 of 1977
. On resumption of the trial,
a psychiatrist's report was handed up by the prosecution
without any objection from the defence.
In the report, the
psychiatrist confirmed that the appellant was able to distinguish
between right and wrong at the time of the
incident and that he was
able to understand the nature of the proceedings. He was therefore
certified to have criminal capacity
and the trial resumed. The
appellant pleaded not guilty and gave a plea explanation. The basis
of his defence was consent. During
the complainant's cross
examination, it was put to her that she and the appellant had a love
affair and that the sexual intercourse
that had taken place between
them was consensual. She vehemently denied this. Once the
complainant's witnesses had concluded their
testimony, the state
prosecutor handed up a section 212 affidavit embodying the DNA test
results. There was no objection from the
defence. The defence counsel
then proceeded to make certain formal admissions, after which the
state closed its case. The defence
counsel then indicated that the
appellant was changing his plea to a plea of guilty and thereafter
closed the defence case. The
state prosecutor then gave a closing
address. The defence counsel indicated that he would not give a
closing address. The court
a
quo
convicted the
appellant and sentenced him to life imprisonment.
[5]
In the appellant's heads of argument, it was submitted that the
appellant's counsel had not been mandated to change the appellant's
plea and that the court a
quo
had, after failing to
confirm the change of plea with the appellant, wrongly convicted him.
It was argued that the court a
quo'
s
failure
to confirm whether the appellant had indeed instructed his counsel to
change his not guilty plea to that of guilty, constituted
a serious
misdirection warranting the setting aside of the conviction. It is
evident from the record that after the appellant's
counsel had
indicated that the appellant was changing his plea, the trial
magistrate, prosecutor and the defence counsel all proceeded
as if
there was no change of plea. The prosecutor gave the closing address
and the defence indicated that he would not give a closing
address.
Insofar as the trial magistrate failed to record the change of
the plea as contemplated in the
Criminal Procedure
Act, he
misdirected himself. It is trite that not every misdirection
committed by the trial court warrants the setting aside of its
decision.
I am thus satisfied that the circumstances of this case are
such that the misdirection committed by the court
a
quo
is not of such a serious nature as to vitiate its guilty verdict.
[6]
I am of the view that even if we were to accept, in the appellant's
favour, that the defence counsel had no mandate to change
the plea,
it is clear from the facts of this case that this could not have
caused the appellant any prejudice, as the change of
plea occurred
after the state had already closed its case. It is evident from the
record that by the time the state closed its
case, a solid case had
already been presented by three witnesses whose evidence had not been
seriously attacked by the defence
in cross-examination. It must also
be borne in mind that the appellant admitted that sexual intercourse
occurred. This was in any
event confirmed by the DNA results.
Although the appellant was a single witness in respect of the
rape itself, her evidence
was satisfactory in all material respects.
The evidence of the neighbour of both the complainant and the
appellant, to the effect
that the bleeding complainant ran into
her house in a state of shock and reported that the appellant had
raped her, lends
credence to the complainant's version. The
employer's version corroborated the complainant's emotional state and
the injuries that
she had sustained. It is highly improbable that a
lover who had just made love to his girlfriend would suddenly stab
her with a
pair of scissors.
[7]
Furthermore, since the appellant only queried the change of plea and
did not take issue with the closure of his case without
him taking
the witness stand, I accept that this stance was within the mandate
he gave to his counsel. Evidently, he chose not
to testify despite a
formidable case that had been made against him. In
S v
Boesak
[2000] ZACC 25
;
2001
(1)
SA
912
(CC)
para
24
the court aptly stated as follows: The fact that
an accused person is under no obligation to testify does not mean
that there are
no consequences attaching to a decision to remain
silent during the trial. If there is evidence calling for an answer,
and an accused
person chooses to remain silent in the face of such
evidence, a court may well be entitled to conclude that the evidence
is sufficient,
in the absence of an explanation, to prove the guilt
of the accused." Considering that the appellant's defence was
that of
consent, he ought to have taken the witness stand to explain
the circumstances under which the alleged consent was granted. The
fact that he failed to do so in the face of the state's formidable
evidence renders his conviction beyond reproach. The concession
in
respect of the conviction, made by his counsel at the hearing of the
appeal, was therefore properly made and the appeal
against the
conviction falls to be dismissed.
[8]
With regards to the sentence imposed, it is trite that sentencing is
pre-eminently a matter that falls within the discretion
of the trial
court. In
S
v
Malgas
2001(1)
SACR
469
(SCA),
the
following was stated in relation to the approach to be adopted in an
appeal against sentence: " A court exercising appellate
jurisdiction cannot, in the absence of material misdirection by the
trial court, approach the question of sentence as if it were
the
trial court and then substitute the sentence arrived at by it simply
because it prefers it. To do so would be to usurp the
sentencing
discretion of the trial court. Where material misdirection by the
trial court vitiates its exercise of that discretion,
an appellate
court is of course entitled to consider the question of
sentence afresh. In doing so, it assesses sentence as
if it were a
court of first instance and the sentence imposed by the trial court
has no relevance. As it is said, an appellate
court is at large.
However, even in the absence of material misdirection, an appellate
court may yet be justified in interfering
with the sentence imposed
by the trial court. It may do so when the disparity between the
sentence of the trial court and the sentence
which the appellate
court would have imposed had it been the trial court is so marked
that it can properly be described as "shocking",
"startling" or "disturbingly inappropriate".
[9]
It is a trite principle of sentencing that the well-known triad of
sentence, namely the nature of the offence, the personal
circumstances of the accused and the interests of society, must be
taken into account in a balanced fashion. See
S
v
Z
inn
1969 (2)
SA
537
(A).The objectives of punishment must also be
taken into account. The court a
quo
concluded that the
rape committed by the appellant fell in the category of most severe
rapes. This conclusion was arrived at after
considering a number of
factors and was justified, in my view. The court a
quo
correctly took into account that the appellant inflicted serious
injuries on the complainant and then raped her three times after
forcing her to perform oral sex on him. It also took the seriousness
of the offence and its prevalence into account. What adds
to the
afore-mentioned aggravating factors is the fact that the appellant,
as the complainant's neighbour, breached the trust relationship,
and
that he violated her in the sanctity of her own home, where she
thought she was safe.
[10]
The record shows that the court a
quo
considered the fact that
the appellant was 34 years old, that he was a first offender and that
he was responsible for the maintenance
of his two children as
mitigating factors. The court a
quo
stated that it was in
agreement with the state prosecutor's submission that the appellant's
change of plea, having taken place at
such a late stage of the
proceedings and against the backdrop of a solid state case, was not a
genuine sign of contrition. I agree
with this finding. I disagree
with the submission that the appellant's alleged attempt to commit
suicide after the incident cannot
be considered as a sign of remorse,
because during the proceedings he pleaded not guilty and in any event
disavows his change of
plea on the basis that it was not in
accordance with his instructions. This disavowal makes it clear that
the court a quo correctly
considered him not to have shown any
remorse for his actions. It is evident from the record that in its
consideration of the facts
of the case for purposes of assessing the
appropriate sentence, the court a
quo
was alive to the triad
of sentence and considered it in a balanced fashion.
[11]
Having considered all the circumstances of the case, I am of the view
that the court a
quo
correctly concluded that there
were no substantial and compelling circumstances that warranted
deviation from the prescribed minimum
sentence. I do not deem the
sentence of life imprisonment to be disproportionate to the gravity
of the offence committed by the
appellant. There is therefore no
justification for tampering with this sentence. The appeal against
sentence also has to fail.
[12]
Wherefore the following order is made:-
1.
The appeal against the conviction and sentence fails.
2.
The conviction and the sentence of life imprisonment imposed by
the court
a quo
are confirmed.
__________________
MOLEMELA,
JP
I
concur.
__________________
NAIDOO,
J
On
behalf of the applicant:
P L van der Merwe
Instructed by:
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent:
Adv. F Pienaar
Instructed by:
The Director: Public
Prosecutions
BLOEMFONTEIN
/eb