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[2016] ZAKZPHC 26
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Ngcobo and Others v S (AR759/14) [2016] ZAKZPHC 26 (3 March 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
CASE NO: AR759/14
DATE: 03 MARCH 2016
REPORTABLE
In the matter between:
THABANI ROBERTSON
NGCOBO
......................................................................
1ST
APPELLANT
RONALD XOLANI
JALI
........................................................................................
2ND
APPELLANT
NATHI COSHA
HADEBE
.......................................................................................
3RD
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
Delivered on: 3 March 2016
OLSEN J (GORVEN et SEEGOBIN JJ
concurring)
[1] With the leave of the Supreme Court
of Appeal, three appellants appeal against the sentences imposed upon
them by the high court
at Durban on 14 December 2007 following their
convictions in the regional court on 28 May 2007.
[2] Each of the appellants was
convicted on two counts of robbery with aggravating circumstances,
arising out of robberies which
took place at the same premises some
six weeks apart. The first robbery took place on 15 October 2003 and
the second on 26 November
2003. The robberies were committed at
residential premises where women were present. One of those
unfortunate women was raped on
each occasion by the first appellant.
He was accordingly convicted on two counts of rape as well.
[3] After he had convicted the
appellants the learned regional magistrate decided that as the
complainant on the rape charges had
been raped more than once by the
first appellant, the proceedings would be stopped in terms of the
then s 52(1)(b)(i) of Act 105
of 1997, and the appellants were
committed for sentence by the high court.
[4] As it read prior to its amendment
by Act 38 of 2007 (with effect from 31 December 2007) s 52(1)(b)(i)
of Act 105 of 1997 required
a regional court which had convicted an
accused of an offence referred to in Part 1 of Schedule 2 to that Act
to stop the proceedings
and commit the accused for sentence in terms
of s 51(1) of the Act by the high court.
[5] On that basis the matter came
before Choudree AJ on 20 November 2007 when counsel then representing
the State and the appellants
conveyed their common view to the
learned Acting Judge that the rape convictions did not fall within
the provisions of s 51(1)
of the Act. The magistrate had made the
order referring the matter to the high court upon the basis that the
rapes fell within
item (a)(i) of Part I of Schedule 2 to the Act
because they were committed ‘in circumstances where the victim
was raped
more than once whether by the accused or by any
co-perpetrator or accomplice’. Counsel submitted that the
section could not
be read as applying to the present case as the
victim had been raped on two separate occasions some six weeks apart
in time. The
learned judge accepted that submission and made an order
referring the matter back to the regional court to be dealt with on 7
December 2007.
[6] The record before us does not
reveal what occurred in the regional court on 7 December 2007. What
we see is that the matter
served again before the acting judge on 12
December 2007 when he was informed that on reflection the case indeed
fell within Part
I of Schedule 2, not for the reason previously
thought, but because this was a case of rape committed by a person
who had been
convicted of two or more offences of rape, but had not
yet been sentenced in respect of such convictions (i.e. item (a)(iii)
of
Part I).
[7] That submission (which was
supported by both counsel) was accepted by the court which sentenced
(a) the first appellant to life
imprisonment on the two counts of rape and to 15 years imprisonment
on each of the counts of robbery;
(b) the second appellant to 20 years
imprisonment on each of the two counts of robbery, such sentences to
run cumulatively; and
(c) the third appellant to 15 years
imprisonment on each of the two counts of robbery, such sentences to
run cumulatively.
[8] Section 52 of Act 105 of 1997,
prior to its amendment by Act 38 of 2007, gave the high court a
jurisdiction it would not otherwise
have had to impose a sentence in
the first instance following the conviction of an accused person in a
trial not conducted before
that high court. The circumstances in
which such jurisdiction could be conferred on the high court were
limited to
(a) the conviction of an accused person
in the regional court of an offence referred to in Part I of Schedule
2 to the Act (i.e.
one attracting a sentence of life imprisonment);
or
(b) the conviction of an accused person
of an offence referred to in any of Parts II, III or IV of Schedule 2
when the regional
court formed the opinion that the offence merited a
punishment in excess of the jurisdiction of a regional court.
The magistrate in this case did not
form the opinion that the offences in question fell within any of
Parts II, III or IV of Schedule
2, and deserved punishment in excess
of his jurisdiction. He made the referral upon the basis that he was
compelled thereto because
the rape convictions fell within Part I of
Schedule 2.
[9] Counsel who appeared for the
appellants before us have argued that the rapes in this case did not
fall within either of the
provisions of Part I of Schedule 2 referred
to above; that the referral to the high court was therefore not
competent; and that
in the circumstances the high court lacked
jurisdiction to sentence the appellants. Counsel for the prosecution
agreed with the
submission that should we come to that conclusion,
the sentences imposed by the high court should be set aside and the
matter referred
back to the regional court for the purposes of
imposing sentence. That concession appears to be correct. (See the
order made in
S v Kimberley & another
2005 (2) SACR 663
(SCA).)
[10] 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).)
[11] It is true that the meaning of the
item derived from its plain language raises questions as to
(a) why such an obscure eventuality
should have secured this attention; and as to
(b) why a third rape (not otherwise
falling within Part I of Schedule 2) committed after two convictions,
but before sentencing,
should attract a life sentence; whereas a
third rape of the type contemplated in Part III of Schedule 2
committed by a person described
in s 51(2)(b) as a ‘third
offender’ should attract a sentence of 20 years’
imprisonment.
However, as to (b) above it should be
observed that the anomaly remains on the construction of the words
adopted when the high court
accepted sentencing jurisdiction in this
case. Indeed it is more prominent, as the life sentence must then (as
in this case) be
contrasted with the sentence stipulated in s
51(2)(b) for a second offender (15 years imprisonment).
[12] The fact of the matter is that in
more than one respect Schedule 2 to Act 105 of 1997 is not a model of
clarity. I will refer
presently to three points of principle
mentioned in Kimberley (supra) which determine the proper approach to
the interpretation
of Schedule 2 when the wording is not clear. For
the time being I simply make the general observation that what is
called for is
a restrictive interpretation, maintaining the
sentencing discretion of the court when confronted with these
difficulties. But when
the wording is clear there seems to me to be
little if any scope for broadening the reach of a provision of the
schedule beyond
that conveyed plainly by the words employed.
[13] When he committed the rapes in
question in this case the appellant had not been convicted of any
other rape. The high court
could accordingly not have acquired
jurisdiction to sentence the appellant on the basis that the rapes of
which he was convicted
fell within item (a)(iii) of Part I of
Schedule 2 to the Act.
[14] I turn now to the argument
advanced by the prosecution before us, that the rape convictions in
this instance fall within Part
I of Schedule 2 to the Act because
they were committed ‘in circumstances where the victim was
raped more than once whether
by the accused or by any co-perpetrator
or accomplice’.
The application of that item of Part I
appears to be uncontentious where the victim is raped more than once
in the course of an
unbroken chain of events which might be referred
to as a single incident. Such a single incident might involve
multiple rapes perpetrated
one immediately after the other; or, for
instance, multiple rapes during the course of a prolonged but
uninterrupted abduction.
Here we are dealing with two rapes
perpetrated by the same rapist on the same victim but on the occasion
of each of two separate
and distinct robberies committed six weeks
apart.
[15] We were not referred by counsel to
any cases in which this problem is dealt with. However it has been
considered before.
[16] In S v M
2007 (2) SACR 60
(W)
Satchwell J was charged with the duty of sentencing an accused person
who had been convicted of raping his stepdaughter once
in December
2004 and once in March 2005. The learned Judge considered whether the
facts of the case before her fell within the
provision we are
concerned with here, and decided that they did. The following appears
in paragraph 24 of the judgment:
‘To my mind the wording of the
descriptions and categorisations of the circumstances of these rapes
is clear and without ambiguity
or confusion. What is proscribed is
rape by the same rapist of the same rape victim on more than one
occasion. All that is required
is that the rapes are repeated. It
matters little whether the rapes are separated by hours or days or
weeks or months.’
[17] In S v Senyolo
2010 (2) SACR 571
(GSJ) the court considered an appeal from the imposition of a life
sentence in the regional court where the appellant had been
convicted
of raping a 10 year old child on two occasions, once on 10 November
2007 and, on the second occasion on 25 November 2007.
The court came
to the same conclusion as that reached in S v M. Van Eeden AJ
reasoned as follows in paragraph 15:
‘If it were accepted that the
provision is triggered where the victim was raped more than once by
an accused where there is
an element of continuity, then I cannot see
why it should not also be triggered by a second crime, even when
totally removed from
the first in time and place. When the rape of 10
November 2007 was committed, the victim was not raped more than once
and the provision
of the schedule would not have been triggered.
However, when the rape of 25 November 2007 occurred, the victim was
raped only once
on that day, but under circumstances where she was
raped for the second time by the appellant. This second attack
triggers the
provisions of Part 1 of Schedule 2. If not, it would
have the effect that the appellant will be treated differently for
purposes
of sentences, than if he had raped his victim twice on the
first occasion.’
[18] In both Senyolo and S v M the
victims were children. The learned Judges were not obliged to make a
decision on the issue as
to whether the fact that there were two
rapes by the same rapist on the same victim brought the case within s
51(1) of the Act.
However it does appear from paragraph 25 of the
judgment in S v M that, when considering sentence, the Judge
considered it significant
that the crimes fell within the provisions
of Part I of Schedule 2 for more than one reason.
[19] In S v Maxabaniso
2015 (2) SACR
553
(ECP) the court considered the question as to whether, where a
victim is raped more than once in the course of a single encounter,
it is proper to charge the accused with one or two counts of rape. In
the course of dealing with that question Plasket J mentioned
the
cases of Senyolo and S v M, and made the observation (in paragraph
22) that he was not convinced that they were correctly decided.
But
it was not necessary to decide the issue in that judgment.
[20] I share the misgivings expressed
by Plasket J, and have concluded that in fact the courts in S v M and
Senyolo reached incorrect
conclusions on the point at issue.
[21] In my view a good starting point
when interpreting the provision is paragraph 13 of the judgment in
Kimberley (supra). Three
points of principle were identified as
applicable to the interpretation of paragraphs (a)(i) and (a)(ii) of
Part I of Schedule
2 to the Act where the wording may not be clear:
(a) The court ‘will interpret the
paragraphs so as to render an interpretation least harsh to the
affected person’.
(b) Where a statutory provision which
is not clear changes the common law it must be interpreted
restrictively.
(c) ‘More particularly statutes
which prescribe minimum sentences, such as the statute here under
consideration, thus eliminating
the usual discretion of a court to
impose a sentence which befits the peculiar circumstances of each
individual case, will usually
be construed in such a way that the
penal discretion remains intact as far as possible.’
[22] As pointed out in Kimberley, the
requirement that there must be more than one rape is clear. The
question is whether the requirements
are met when there are two rapes
which took place during two separate and distinct incidents or, as
Plasket J put it, ‘on
two different occasions’. In my
respectful view the courts in S v M and S v Senyolo paid insufficient
attention to the language
of the provision when considering this
question.
[23] It is best, when considering the
language of the provision, not to isolate the words in paragraph
(a)(i). The provision reads
as follows when rendered in full (but
without the additional clutter of the reference to the statutory
provisions in which the
crime of rape now resides):
‘Rape when committed in
circumstances where the victim was raped more than once whether by
the accused or by any co-perpetrator
or accomplice’.
[24] Rendered that way it seems clear
to me that the rape contemplated by the provision must have taken
place in circumstances where
there was more than one rape. In
ordinary language that means on an occasion where more than one rape
took place. The first count
of rape in this case took place in
circumstances where there was no second rape. It cannot therefore
attract the imposition of
a minimum sentence of life imprisonment.
What of the second count of rape? Surely that crime was also
perpetrated in circumstances
where the victim was not raped more than
once.
[25] The provision requires the rape to
have been committed in certain circumstances. The words ‘where
the victim was raped
more than once’ define those
circumstances. More than one rape must take place at the time when
the rape in question (the
one which is to attract the life sentence)
takes place. The rape has to have been committed ‘in
circumstances’ where
the victim ‘was’ raped more
than once. When the occasions were different then there were, in
ordinary language, different
circumstances in which the victim ‘was’
raped.
[26] In my view, if there is any doubt
about this, or any lack of clarity, the three principles referred to
above and set out in
Kimberley apply, and must inevitably lead to the
conclusion that where the legislation provides that a rape which
attracts the
minimum sentence of life imprisonment under item (a)(i)
must be committed in circumstances where the victim was raped more
than
once, what it conveys is that the rape must have been committed
on an occasion where the victim was raped more than once. That
construction limits the scope of legislative interference with the
court’s sentencing discretion, and is a conclusion which
does
no offence to the wording of the section.
[27] In my view the provision in
question is aimed at multiple successive penetrations of one victim
on a single occasion, which
is unfortunately so often a feature of
cases where the victim is abducted; and which is obviously the
defining element of the so-called
‘gang rape’. In these
cases the single incident, occasion or ordeal is rightly assumed to
be an even more horrific
experience for the victim than is that of a
single rape. I respectfully agree with the observations of Plasket J
made in paragraph
25 of the judgment in Maxabaniso:
‘The repeated penetration of his
victim is what aggravates the perpetration of the rape and renders
him liable for life imprisonment
in respect of his entire course of
conduct: it is, in other words, the multiple acts of penetration that
attract the life sentence,
as would be the case in a so-called gang
rape. One does not require item (a)(i) to meet the concern that when
an accused rapes
the same victim twice with the acts of penetration
separated by, say, a week, he may be deserving of a sentence of life
imprisonment
(for at least the second rape): even when the prescribed
minimum sentence for rape is 10 years’ imprisonment, courts
have
common-law powers to impose harsher sentences, including life
imprisonment, if that is called for in the circumstances.’
[28] I accordingly conclude that the
provisions of paragraph (a)(i) (under the heading ‘Rape’)
in Part I of Schedule
2 to the Act are not engaged in the present
matter. As the first appellant’s convictions of rape did not
otherwise fall under
Part I of Schedule 2 to the Act, the
magistrate’s decision to commit the first appellant for
sentence by the high court under
s 52(1)(b)(i) of the Act was not
competent.
[29] There is no need for us to comment
upon or discuss the fact that the second and third appellants
accompanied the first appellant
to the high court to be sentenced
despite the fact that it was never suggested that their convictions
fell under s 52(1)(b)(i)
of the Act. It is clear that they must
return with the first appellant to be sentenced in the regional
court.
The following order is made.
1. The appeals against sentence are
upheld.
2. The sentences imposed on 14 December
2007 by the high court at Durban
(a) on the first appellant on two
counts of rape and two counts of robbery; and
(b) on the second and third appellants
on two counts of robbery are set aside.
3. The convictions of the appellants on
the said counts in the regional court at Verulam on 28 May 2007 are
confirmed.
4. The matter is remitted to the
regional court for sentencing afresh on the counts in respect of
which the appellants were convicted
in the regional court.
5. The appellants are remanded in
custody.
OLSEN J
GORVEN J
SEEGOBIN J
Date of Hearing: MONDAY, 25 JANUARY
2016
Date of Judgment:THURSDAY, 3 MARCH
2016
For the 1st Appellant:Ms D Barnard
Instructed by:NYANDENI &
PARTNERS
1st Appellant’s Attorneys
320 WEST STREET
DURBAN
(Ref.: Mr Nyandeni)
(Tel No.: 083 – 2042142)
For the 2nd & 3rd Appellants: Mr
S B Mngadi
Instructed by:LEGAL AID OF SOUTH
AFRICA
2nd & 3rd Appellants Attorneys
4TH FLOOR,
SALISBURY HOUSE
332 ANTON LEMBEDE STREET
DURBAN
(Ref.: Mr SB Mngadi)
(Tel No.: 031 – 3040100)
For the Respondent: Mr M Miza
Instructed by: Director of Public
Prosecutions
Respondent’s Attorneys
301 Church Street
Pietermaritzburg
(Ref.: Mr M Miza)
(Tel.: 033 – 392 8700 / 033
– 845 4400)