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[2016] ZANCHC 22
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Esau and Others v S (CA&R01/16) [2016] ZANCHC 22 (13 May 2016)
HIGH
COURT OF SOUTH AFRICA
[NORTHERN
CAPE HIGH COURT, KIMBERLEY]
Reportable:
NO
Circulate
to Judges:
NO
Circulate
to Magistrates:
YES
Circulate
to Regional Magistrates:
YES
Case
No: CA&R 0 1/16
Heard:
09 May 2016
Delivered:
13 May 2016
In
the matter between:
WILLEM
ESAU
1
st
Appellant
ANTHONEY
JONKERS
2
nd
Appellant
NICKEL
STEYNER
3
rd
Appellant
v
THE
STATE
Coram
:
Kgomo JP
et
Phatshoane J
JUDGMENT
KGOMO JP
1.
The three appellants were convicted on 13
December 2010 by the Regional Magistrate, Ms S Tsotsa, sitting in
Upington, of the rape
of Ms P on 02 June 2006. Each one was
sentenced to 15 years imprisonment. The charge sheet informed
them that
sections 51(2)
,
52
(2),
52
(a) and (b) of the
Criminal Law
Amendment Act, 105 of 1997
, are invoked against them.
2.
The appellants applied unsuccessfully for
leave to appeal against both their convictions and sentences.
Leave in respect of
sentence only was granted by this Court on
petition.
3.
Mr P J Cloete, for the appellants, stated
that it is not their case that the Regional Magistrate imposed an
incompetent sentence.
The punitive jurisdiction of a Regional Court
is prescribed as follows in the
Criminal Law Amendment Act, 105 of
1997
:
“
51.
(2) Notwithstanding any other law but subject to subsections (3) and
(6) a Regional Court or a High Court shall sentence a person
who was
convicted of an offence referred to in—
(a)
Part II
of
Schedule 2, in the case of—
(i) a first offender to
imprisonment for a period not less than 15 years:
(ii) a second offender of any
such offence, to imprisonment for a period not less than 20 years;
and (iii) a third or subsequent
offender of any such offence, to
imprisonment for a period not less than 25 years;
(b) if it has convicted a person
of an offence referred to in
Part 111
of Schedule 2 in the case of—
(i) a first offender to
imprisonment for a period not less than 10 years;
(ii) a second offender of any
such offence, to imprisonment for a period not less than 15 years;
and
(iii)
a third or subsequent offender of any such offence, to imprisonment
for a period not less than 20 years.”
4.
In
S v
Khoza
2010 (2) SACR 207
(SCA) at
para 88 the SCA held that a Court is not tethered to a minimum
sentence, and stated:
“
[88]
Part II
of Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
prescribes in the case of first offenders, a minimum sentence of 15
years' imprisonment for certain offences, inter alia, robbery
with
aggravating circumstances and unlawful possession of machine guns or
rifles. A court may impose a lesser sentence if there
are substantial
and compelling circumstances. The court a quo correctly found such
circumstances did not exist in this case.
It
further held that the minimum sentence was, in view of the
seriousness and aggravating nature of the offences, too lenient and
accordingly imposed the sentences referred to in paras 86 and 87
above.
”
Which
sentences are in excess of the prescribed minimum sentence.
5.
It is common cause between the state and
the defence that only the First Appellant, Willem Esau, 25 years old,
had sexual intercourse
with the complainant. As it turned out,
he falsely pleaded consent. The Second and Third Appellants
disassociated themselves
from the rape, for different reasons, but
were, as it were, correctly convicted as accomplices to the rape.
6.
The appellants’ counsel,
disappointingly, seems to take the view or the approach that the
facts or the merits of the case
are immaterial. He has in
consequence only dealt with what he deems to be the mitigating
factors that would redound to the
benefit of his clients.
Counsel also does not seem to have any qualms with the fact that the
Magistrate has not drawn any
distinction in the sentence of Willem
Esau, who had penetrative rape with the complainant, and the other
two who facilitated it.
7.
It is unacceptable for a Regional
Magistrate to quote authority or from a legal reference book without
providing the full citation,
which should include the page number.
It makes it extremely difficult to check the veracity of the
extract. Counsel
did not assist either. Nevertheless, the
Magistrate, in her non-differentiation of the sentences, which we
located with the
aid of the senior researcher, quoted the following
passage from the author J M Burchell, South African Criminal Law and
Procedure,
Volume 1 (General Principles of Criminal Law), Third
Edition, p327:
D. Punishment of
Accomplices
“
The
appropriate sentence to be imposed on an accomplice will depend on
the extent of the accomplice’s participation in the
crime.
Although the accomplice will
usually play a more limited role in the commission of the crime than
the principal offender and so
receive a lighter punishment than the
principal offender, it is possible that the accomplice may, in fact,
play a more substantial
role in the preparation and execution of the
crime than the principal offender and so receive a more severe
punishment than such
an offender.
Of
course, the extent of the participant’s role in bringing about
the unlawful consequence will also be relevant to the inquiry
whether
the participant is, in fact, a perpetrator, in the first place, or an
accomplice.”
8.
The facts were briefly as follows.
The complaint and her lady-friends drank liquor at a local tavern.
The Third Appellant
proposed love to her several times but she
rebuffed his advances. Mr Elton Bloem, who showed concern for
the complainant,
suggested that he escort her home but she declined.
The Third Appellant suggested to Bloem that they should abduct the
complainant
and rape her. Bloem refused. Having given up
on the complainant Bloem left her at the tavern and went home.
9.
At around 23h00 the complainant left the
tavern alone and was pounced on by the three appellants. She
resisted by fighting
them off and screaming. All her efforts
were in vain. The appellants abducted her to a secluded spot
where they undressed
her. The First Appellant raped her
vaginally whilst she laid on the ballast stones. The Second and Third
Appellant held her
down as she refused to submit. Thereafter
the Third Appellant placed the complainant on her knees, undressed
himself and
was poised to penetrate her from the rear when the police
struck and apprehended them on the scene.
10.
The intervention by the police was thanks
to Mr Jack Esau, the uncle to the First Appellant, Willem Esau, who
summoned them in light
of the unseemly episode that unfolded before
his eyes.
11.
The evidence established that the
complainant was dragged and carried whilst facing where the abductors
and the victim came from
to disorientate her. Because she
resisted she was assaulted several times. At one point the
First Appellant asked for
a knife from his accomplices and threatened
to stab her if she did not cooperate. This ill-treatment has
traumatised the
complainant severely. The Appellants denied
their foul deeds even in the face of having been caught red-handed
(in
flagranto delicto
)
and notwithstanding the overwhelming evidence against them.
They therefore have shown no remorse or constriction.
If it was
not for the quick-thinking and civic duty of Mr Jack Esau and the
prompt reaction of the police the plight of the complainant
would
unquestionably have been much worse.
12.
The appellants’ counsel have captured
their personal circumstances as follows and contended that the
Regional Magistrate misdirected
herself by not finding that
cumulatively they constitute substantial and compelling
circumstances:
“
12.
Eerste Appellant se persoonlike omstandighede volgens die rekord was
die volgende:
12.1 Hy was 25 Jaar oud
tydens die voorval;
12.2 Hy was werksaam as `n
konstruksiewerker en het R80 per dag verdien;
12.3 Hy het skolasties
gevorder tot standerd 2 en moes die skool verlaat as gevolg van sy
ouers se finansiële problem;
12.4 Hy was ongetroud, maar
in `n saamleefverhouding en het `n minderjarige seun;
12.5 Hy was vir 5 maande in
hegtenis nadat hy skuldig bevind is en voordat hy gevonnis is;
12.6 Hy is nie `n eerste
oortreder nie, maar sy vorige veroordelings is 7 jaar terug gepleeg.
12.7
Hy was tydens die voorval onder die invloed van drank en dagga.
13. Tweede Appellant se
persoonlike omstandighede was die volgende:
13.1
Hy was 30 jaar oud tydens die voorval;
13.2 Hy was ongetroud en
was by sy oupa en ouma woonagtig na wie hy ook omgesien haar;
13.3 Hy het gewerk as `n
skrynwerker en het `n inkomste van R3500 per maand verdien;
13.4 Hy het skolasties
gevorder tot standerd 8 en het standard 9 voorgesit by die Upington
College;
13.5 Hy is `n eerste
oortreder;
13.6 Hy was ten tyde van
die voorval onder die invloed van drank en dagga;
13.7 Hy was vir 5 maande in
hegtenis verhoorafwagtend.
14.
Derde Appellant se persoonlike omstandighede is as volg:
14.1
Hy was 40 jaar oud tydens die voorval;
14.2 Hy is ongetroud, maar
was in `n saamleefverhouding vir 22 jaar;
14.3 Hy het 3 minderjarige
kinders asook `n meerderjarige kind;
14.4 Hy was werksaam deur
drank te verkoop waar hy R2500 tot R300 per maand verdien het;
14.5 Hy was vir 5 maande
verhoorafwagtend in hegtenis.
14.6 Hy het skolasties
gevorder tot standard 8 en moes skool verlaat as gevolg van
finansiële problem;
14.7 Hy was tydens die
pleeg van die misdryf onder die invloed van drank en dagg;
14.8
Die klaagster het nie ernstige beserings by haar privaatdeel opgedoen
nie.”
13.
The appellants were all adults (aged 25, 30
and 40 years, respectively). Their actions are gang-related.
Counsel says
the complainant has not sustained serious physical
injuries to her genitalia, but it is the psychological scars that
would endure
endlessly.
14.
First Appellant has 6 (six) previous
convictions for offences committed between 2000 and 2004: Three
for theft, two for housebreaking
with the intent to steal and theft
and one for assault. It must be borne in mind that the
appellants were arrested on 02
June 2006. The meaning of this
is that he does not have any long clean record between offences nor
is there a superannuation
of any.
15.
The Second Appellant, Jonkers, is a first
offender. The Third Appellant is treated as a first offender
because his minor conviction
for assault for which he was convicted
in 1990 had superannuated by 2006. The Second and Third
Appellants should have known
better to refrain from their despicable
conduct because they are much older than the First Appellant.
16.
The Magistrate found that the appellants
were not as intoxicated as they portrayed themselves to have been.
Besides, at least
as far as the Third Appellant is concerned, he had
targeted the complainant long before she left the tavern and all
indications
are that the three of them had conspired to commit the
illegal deed. The deed itself clearly stretched over some time
during
which they had the opportunity to think twice.
Where does the intoxication then come in, one might ask?
17.
In
S v
Malgas
2001(1) SACR 469 (SCA) at
478d-g the Supreme Court of Appeal stated:
“
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.”’
18.
I am not persuaded that the Regional
Magistrate misdirected herself. She dealt carefully with all
the issues raised by the
defence and the state and underpinned her
reasons for the sentences imposed with
S
v Matyityi
2011 (1) SACR 40
(SCA)
which case in turn draws
heavily on
S v Malgas
(
supra)
;
and as already alluded, she also invoked the comment of the author
Burchell
for purposes of imposing similar sentences on the appellants.
The appeal must accordingly fail.
19.
A word of guidance, though, to the
Magistrate is this. Whereas she appropriately stated that the
state bears the onus to proof
an accused person’s guilt beyond
a reasonable doubt she, nevertheless, commenced by examining the
evidence of the accused/appellants
before that of the
state-witnesses. By adopting such topsy-turvy analysis a
presiding officer may unintentionally be driven
to the wrong
outcome. It is preferable to deal with the facts which are
common cause, followed by those found to have been
proved; the
state case may then be placed under the microscope. Having done
so the court would be best placed to determine
whether, in the last
resort, the accused’s version is, as we say, reasonably
possibly true. See
S v
Chabalala
2003
(1)
SACR 134
(SCA) at 139i – 140b (para 15).
Order:
1.
The appeal of all three appellants is
dismissed.
2.
Recommendation: It is recommended
that the Provincial Commissioner of Police consider some form of
recognition for Mr Jack
Esau (
see para
10 of this judgment
) for coming to the
complainants’ rescue by summoning the police timeously and
saving her from a further harrowing experience.
__________________
F DIALE KGOMO
JUDGE PRESIDENT
Northern Cape High Court, Kimberley
I concur.
__________________
V M PHATSHONE
JUDGE
Northern
Cape High Court, Kimberley
Counsel:
For
the Appellants:
Adv P. J Coete
Instructed
by:
Legal Aid South Africa, Kimberley
For
the Respondent:
Adv J. S Mabaso
Instructed
by:
Director Public Prosecutions