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[2018] ZASCA 182
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Director of Public Prosecutions Limpopo v Motloutsi (527/2018) [2018] ZASCA 182 (4 December 2018)
SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 527/2018
In
the matter between:
THE DIRECTOR OF
PUBLIC PROSECUTIONS
LIMPOPO APPELLANT
and
KOKETSO
MOTLOUTSI RESPONDENT
Neutral
citation:
The
Director of Public Prosecutions, Limpopo v Motloutsi
(527/2018)
[2018] ZASCA 182
(04 December 2018)
Coram:
Tshiqi,
Swain and Dambuza JJA, Mokgohloa and Mothle AJJA
Heard:
01
November 2018
Delivered:
04
December 2018
Summary:
Rape-Prescribed
Minimum Sentence-whether respondent’s personal circumstances
constituted substantial and compelling circumstances-no
evidence that
the respondent’s personal circumstances influenced his
conduct-sentence for rape increased on appeal to 10
years’
imprisonment.
ORDER
On
appeal from: Limpopo Division of the High Court, Polokwane (Phatudi
J, sitting as court of first instance):
1
The appeal against sentence is upheld and the sentence imposed by the
trial court in respect of Count 2 (rape) is set aside and
replaced
with the following:
‘
On
count 2 (rape) the accused is sentenced to 10 years’
imprisonment’.
2
The above sentence is antedated to 14 August 2017, being the date
upon which sentence was originally imposed.
JUDGMENT
Mokgohloa
AJA (Tshiqi, Swain and Dambuza JJA and Mothle AJA):
[1]
The respondent was indicted in the Limpopo Division of the High
Court, Polokwane, on three counts, namely that of housebreaking
with
intent to rob (Count 1), rape read with s 51 (1) of the Criminal Law
Amendment Act (Minimum Sentences Act)
[1]
(Count 2), and robbery (Count 3). At the commencement of the trial
the respondent tendered a plea of guilty to rape in terms of
s 51 (2)
of the Minimum Sentences Act and theft in respect of robbery. In
summary, the respondent admitted that he entered the
complainant’s
room, raped her and stole certain items. He, however, stated that he
committed these offences alone. The prosecutor
did not accept the
plea in respect of rape. The trial court then changed the
respondent’s plea of guilty to not guilty in
terms of s 113 of
Criminal Procedure Act (CPA).
[2]
The contents of his plea were recorded as formal admissions in terms
of s 220 of the CPA.
[2]
The trial proceeded and the prosecutor led the evidence of the
complainant she testified that during the night of 7 May 2016
she was
asleep in her room. She heard a loud bang on the door. She opened her
eyes and saw two males inside her room. One of them
approached her
while she was still on her bed. He sat on the bed and started to
touch her. He instructed her to take off her clothes.
The complainant
refused. He then undressed her and raped her while the other male was
busy searching her room. After the first
male raped her, the second
one approached her and raped her. Thereafter, both males searched her
room and took her laptop, cellphone,
money and two of her necklaces.
They left. This incident occurred during the night in a dark room and
the complainant could not
identify either of her attackers.
[3]
DNA tests results which implicated the respondent in these offences
were handed in. The respondent did not testify and closed
his case.
He was convicted of theft and rape in terms of s 51 (2) of the
Minimum Sentences Act (in terms of his plea).
[4]
The prosecutor called the complainant who testified in aggravation of
sentence. She stated that at the time of this incident,
she was a
student at the University of Limpopo in the faculty of Information
Studies. She could not concentrate in her studies
after the rape and
failed one module.
[5] The respondent
elected not to testify in mitigation and no evidence was led on his
behalf. His personal circumstances were placed
on record from the
bar: that he was 19 years old at the time of the commission of the
offences, he was a first offender in respect
of rape and he was still
at school doing Grade 10. He is an orphan and was raised by his aunt.
He was under the influence of liquor
when he committed these
offences, he spent a period of a year in custody awaiting trial, he
was remorseful, and the complainant
did not suffer any injuries.
[6] Regarding these
personal circumstances of the respondent, the trial court stated:
‘
.
. .[W]hen you committed the offence in May or so of 2016, you were
only 19 years old and . . . the Courts regard a person of this
age to
be fairly
young’
.
The trial court went
further and stated:
‘
Your
level of education is not that sophisticated, you went up to grade
10, that could be because of financial constraints running
in your
family because you are an orphan. You were raised by your aunt
probably out of social grant and pensions alternatively’.
As regards the
respondent’s state of sobriety, the trial court stated:
‘
We
are told that on the day in question you have consumed alcohol and it
ran to your waist, that is why you went into the complainant’s
room . . .’
Referring to the
respondent’s plea, the trial court stated:
‘
By
pleading guilty it’s an indication that you were remorseful and
according to the DNA results there is no indication of
forceful
penetration.’
[7]
The trial court held that the respondent’s personal
circumstances, justified the imposition of a lesser sentence than
the
prescribed minimum sentence. He was sentenced to 12 months’
imprisonment in respect of theft and five years’ imprisonment
in terms of s 276 1(i) of the CPA in respect of rape. The sentences
were ordered to run concurrently.
[8]
Aggrieved by the sentence imposed in respect of the rape, the
Director of Public Prosecutions (the DPP) appealed in terms of
s 316B
of the CPA, leave having been granted on petition by this court. The
basis of the appeal was that the sentence was too lenient.
[9] The respondent’s
conviction of rape rendered him liable for punishment under s 51(2)
of the Minimum Sentences Act which
prescribe a minimum sentence of 10
years’ imprisonment, unless substantial and compelling
circumstances are found to be present.
[10]
The DPP contends, in essence, that the trial court had misdirected
itself in concluding that there were substantial and compelling
circumstances which justified the imposition of a lesser sentence
than the prescribed minimum sentence. Counsel for the respondent,
on
the other hand, argued in support of the correctness of the trial
court’s findings in respect of the substantial and compelling
circumstances and submitted that the sentence imposed was
appropriate.
[11]
The question is whether, given the facts of this case, the trial
court was correct in its conclusion that the personal circumstances
of the respondent amounted to substantial and compelling
circumstances that justified the imposition of a lesser sentence than
the prescribed one of 10 years’ imprisonment. Ponnan JA,
referring to
S
v Malgas
[3]
,
stated the following in
S
v Matyityi
[4]
:
‘
Malgas,
which has since been followed in a long line of cases, set out how
the minimum sentencing regime should be approached, and
in particular
how the enquiry into substantial and compelling circumstances is to
be conducted by a court. To paraphrase from Malgas:
the fact that
Parliament had enacted the minimum sentence legislation was an
indication that it is no longer ‘business as
usual’. A
court no longer had a clean slate to inscribe whatever sentence it
thought fit for the specified crimes. It had
to approach the question
of sentencing, conscious of the fact that the minimum sentence had
been ordained as the sentence which
ordinarily should be imposed,
unless substantial and compelling circumstances were found to be
present.’
The
trial court erred in finding that the following constituted
substantial and compelling circumstances justifying the deviation
from the prescribed sentence.
[12]
It is settled that the younger the offender, the clearer the evidence
needs to be about his background, education, level of
intelligence,
and mental capacity, in order to enable a court to determine the
level of maturity and therefore moral blameworthiness.
[5]
As stated earlier, the respondent did not testify. It appears from
the record of the proceedings that his aunt was present in court.
She
was however not called to testify and give clearer evidence about the
respondent’s background and upbringing. There was
therefore no
evidence as to how the personal circumstances of the respondent
influenced his conduct.
[13]
In his formal admissions, the respondent stated that although he had
consumed alcohol on the night of the incident, he was
able to
comprehend and appreciate the consequences of his actions. There is
therefore no evidence, and his counsel did not argue,
that the
consumption of alcohol impaired his mental judgment and diminished
his moral blameworthiness to the extent that it may
be regarded as
substantial and compelling circumstance.
[14]
Remorse is an important consideration in sentencing. However, genuine
remorse must be distinguished from self-pity and an unavoidable
acknowledgment of guilt because the evidence against the accused is
overwhelming. Before remorse can be a valid factor in the imposition
of sentence, it has to be sincere and the accused must take the court
into his or her confidence. In
S
v Barnard
[6]
the court held that a plea of guilty in the face of an open and shut
case against the accused is a neutral factor.
[15]
The fact that the respondent pleaded guilty is not in itself an
indication of remorse. He failed to reveal his complicity to
the
police during the year before the trial commenced. The evidence
linking him to the crime was overwhelming DNA evidence. The
other
factor that militates against a conclusion that the respondent has
shown genuine remorse is his decision not testify in mitigation
of
sentence. His evidence would have demonstrated his candour, by
subjecting his personal circumstances to the scrutiny of cross
examination. This may have assisted him in bringing to the court’s
attention information about his background and upbringing,
to enable
the court to make a determination regarding his level of maturity and
therefore his moral blameworthiness. I find
that the respondent
pleaded guilty in the face of overwhelming DNA evidence.
[16]
Section 51(3) (aA) of the Minimum Sentences Act provides that when
imposing sentence in respect of the offence of rape the
apparent lack
of physical injuries on the complainant shall not constitute
substantial and compelling circumstances. In
S
v Nkawu
[7]
the court interpreted s 51(3) (aA) to mean that the fact that the
complainant in a rape case did not suffer serious or permanent
injuries may not, on its own, be regarded as a substantial and
compelling circumstance justifying deviation from the prescribed
sentence, but may, together with other factors cumulatively be
considered, amount to substantial circumstances.
[17]
In
S
v Mahomotsa
[8]
this Court stated:
‘
While
it may theoretically be possible that a victim of rape committed in
the circumstances and manner I have described may not
suffer any
psychological damage other than that experienced while the attack is
taking place and in its immediate aftermath, it
is in the highest
degree unlikely. Where as here, the complainants were young girls, it
is quite unrealistic to suppose that there
will be no psychological
harm.’
[18
]
I
agree with the DPP that the trial court attached insufficient weight
to the seriousness of the offence and the interests of society.
Rape
is a very serious offence ‘constituting as it does a
humiliating, degrading and brutal invasion of the privacy, the
dignity and the person of the victim.’
[9]
It is a horrifying crime and a cruel and selfish act in which the
aggressor treats with the utmost contempt the dignity and feelings
of
the victim.
[10]
As stated in
Chapman
,
women in this country have a legitimate claim ‘. . . to enjoy
the peace and tranquility of their homes without fear, the
apprehension and the insecurity which constantly diminishes the
quality and enjoyment of their lives’. The complainant in
the
present matter was sleeping in the safety of her own room. The
respondent barged into her room, stole from her and raped her.
[19]
The trial court failed to take into consideration the three elements
that are necessary when determining a proper sentence.
These elements
as enunciated in
S
v Zinn
[11]
consist of the offence, the offender and the interests of society. A
court should strike a judicious balance between these elements
in
order to ensure that one element is not unduly accentuated at the
expense of and to the exclusion of other elements. To achieve
this
counterbalance a court must evaluate and evenly balance the nature
and the circumstances of the offence, the characteristics
of the
offender and his circumstances and the impact of the crime on the
community, its welfare and concerns.
[12]
I find that the trial court unduly emphasised the personal
circumstances of the respondent at the expense of the seriousness of
the offence and the interests of society.
[20]
The respondent’s background is not unique and cannot justify
his callous deeds. There are many persons with similar and
more
challenging backgrounds who do not resort to crime and who live as
good citizens, respecting the law and rights of their fellow
human
beings.
[21]
I am mindful of the fact that sentencing is always within the
discretion of the trial court and that this court can only interfere
where there has been an irregularity that results in a failure of
justice. The sentence of five years imprisonment in terms of
s 276
(1)(i) of the CPA imposed by the trial court is so disproportionate
and shocking, that no reasonable court could have imposed
it. The
sentence undermines public confidence in the criminal justice system
and has to be set aside and replaced with the minimum
sentence of 10
years’ imprisonment.
[22]
Regrettably, it is necessary to comment on the manner in which the
presiding judge conducted the proceedings. As pointed out
above, the
respondent was charged with contravening s 51 (1) of the Minimum
Sentences Act, where it is alleged that the complainant
was raped
more than once. The respondent however tendered a plea of guilty to
contravening s 51(2) of the Minimum Sentences Act,
which deals with
the situation where a single rape is alleged.
[23] The respondent
in his plea explanation made no mention of any other person being
involved in the crimes to which he had pleaded
guilty.
When Phatudi J asked
the prosecutor whether he accepted the plea, the prosecutor asked for
clarity on whether the plea of guilty
to the charge of rape, was in
terms of s 51(1) or s 51(2) of the Minimum Sentences Act. This
reasonable request then led
to the following discussion between
Phatudi J, the prosecutor Mr Chauke, and the defense counsel Mr
Kgatle:
‘
Court:
Alright,
Mr Kgatle, do you wish to clarify whether this is 51(1) or 51(2)?
Mr
Kgatle
:
M’Lord, in as far as, my instructions are concerned, it remains
51(2) and I would submit that if there was any other person
involved
or companion, he would have been…
Court
:
Arrested.
Mr
Kgatle
:
… in court facing the same charges and it will be clear from
the court that, indeed, there are two people who are facing
same
charge as gang rape, as it is submitted by my learned colleague, here
we are having only one accused.
Court
:
And he admits, in so far as, as I’m concerned.
Mr
Kgatle
:
And he is admitting his conduct, he cannot admit and answer the
allegations on behalf of any other person…
Court
:
Who is not before court.
Mr
Kgatle
:
That would very unfair and unconstitutional, hence we are standing by
our statement that it refers to only this accused before
the court.
Court: Yes.
Mr Kgatle: As the
Court pleases.
Court: Mr
Chauke, you know what let us not complicate issues here, where is the
other accused to say that there was more than
one accused?
Mr Chauke: He is
unknown.
Court: Ja, why
do you say that you don’t accept what he says?
Mr Chauke: But the
facts which we have indicated that two people raped the complainant.
Court: Ja, if
that person is unknown, the witness, what is she going to say, will
she identify that person, it means it is
an unknown man, so even if I
can say alright call your witness, what is she going to say?
Mr Chauke: Yes, that
will be get later whether if a gang rape was committed by more than
one person and only one is before court,
it does not fall within
Section …[intervention]
Court: But I’m
saying if you say the other accused or suspect or whoever is
“unknown”?
Mr Chauke: Yes
Court: And if
the complainant knew this person, this would be before court?
Mr Chauke: Yes.
Court: Now
what are we trying to achieve because what are you going to say
because if she doesn’t know the assailant
– if she knows
the assailant, the assailant should have been before court.
Mr Chauke: That’s
my …[intervention]
Court: If she
does not know the other party what is she going to say in evidence?
Mr Chauke: No, my
point is on sentencing we know that an offence of rape is either
…[intervention]
Court: So you
are looking at – yes, you are looking at that but remember that
is in the court’s discretion.
Mr Chauke: Yes, it
is …[Intervention]
Court: So if
the complainant does not know who the other party is, why must he
plead guilty to something which is –
it’s not going to
work at the end.
Mr Chauke: Yes, the
issue of a plea it is up to him, it has nothing to do with the State,
the State only has to bring evidence to
prove the offence is Section
51(1) or Section 51(2), simply as that.
Court:
Okay, I don’t want to be seen to be entering the arena, its
fine, you are the
dominus
litis
but remember that there are rights here enshrined in the
constitution, you know very well. Anyway, fine thank you.’
[24]
It is clear that Phatudi J in questioning the prosecutor exceeded the
bounds of what was reasonable in order for him to understand
why the
prosecutor refused to accept the plea, as tendered. The prosecutor
was subjected to undue pressure to accept the plea tendered,
simply
because Phatudi J believed that because the complainant was unable to
identify the other assailant, a plea of guilty to
a single rape
should be accepted by the prosecutor. In doing so, he failed to have
regard to his own admonition not to enter the
arena.
[25]
Phatudi J then proceeded to accept the respondent’s plea of
guilty to theft on count 3, but entered a plea of not guilty
to rape
in respect of count 2, as he was obliged to do, as the prosecutor did
not accept the plea of guilty tendered on that count.
The prosecutor
then led the evidence of the complainant on the rape charge in which
she stated that she was raped by two individuals,
but she was unable
to identify either of them. She was subjected to cursory
cross-examination, the object of which seems to have
been to cast
doubt on her evidence that she was raped by two persons, but which
failed in any way to affect her credibility. The
defence case was
then closed without the respondent giving evidence, with the result
that the complainant’s evidence that
she was raped by two
persons, stood unchallenged.
[26]
The preconceived view held by Phatudi J as to the weight to be
attached to the evidence of the complainant that she was raped
by two
persons, then unfortunately and erroneously found expression in his
judgment. He rejected the complainant's evidence on
this issue simply
on the basis that according to the DNA evidence there was 'no
indication that any other person except the accused
penetrated the
complainant.' He reached this conclusion on the basis that the
DNA evidence excluded a certain Mr Ntabani
Matsatsi as the donor of
the DNA in the exhibits, with the result that ‘serious doubt’
was cast upon ‘the credibility
of the complainant as to how
many people were actually involved in the rape.’ The erroneous
reasoning of Phatudi J is self-evident.
The fact that the DNA
evidence excluded Mr Matsatsi could not affect the complainant’s
credibility, when there was no evidence
that she had ever identified
him as one of her assailants. To the contrary, her evidence was that
she was unable to identify either
of her assailants. In addition,
this evidence obviously could not exclude the participation of an
unidentified person in the rape.
[27]
Although the appeal only concerns the sentence imposed upon the
respondent in terms of s 51 (2) of the Minimum Sentences Act,
it has
been necessary to deal with the manner in which Phatudi J concluded
that the complainant was only raped once. This is because
this case
serves as a stark reminder of the danger of a judicial officer
forming a preconceived erroneous view on a particular
issue and
thereafter imposing that view on counsel, without affording a proper
opportunity to counsel to persuade him or her, to
the contrary.
[28] In the result
the following order is granted:
1 The appeal against
sentence is upheld and the sentence imposed by the trial court in
respect of Count 2 (rape) is set aside and
replaced with the
following:
‘
On
count 2 (rape) the accused is sentenced to 10 years’
imprisonment’.
2 The above sentence
is antedated to 14 August 2017, being the date upon which sentence
was originally imposed.
___________________
FE MOKGOHLOA
ACTING JUDGE OF
APPEAL
APPEARANCES
For
the Appellants: C Chauke
Instructed
by: Director of Public Prosecutions, Limpopo
Director
of Public Prosecutions, Bloemfontein
For
the Respondent: LM Manzini
Instructed
by: Legal Aid South Africa, Polokwane
Legal
Aid South Africa, Bloemfontein
[1]
Criminal Law Amendment Act 105
of 1997
.
[2]
Criminal Procedure Act 51 of
1977
.
[3]
S v Malgas
2001 (1) SACR 469 (SCA); 2001 (2) SA 1222; [2001] 3 All SA 220.
[4]
S v
Matyityi
2011 (1) SACR 40
at 46d-e
[5]
S v Lehnberg en ‘n
Ander
1975 (4) SA 553
(A) at 561 A-C.
[6]
S v
Barnard
2004 (1) SACR 191
(SCA) at 197.
[7]
S v Nkawu
2009 (2) SACR 402 (ECG).
[8]
S v
Mahomotsa
2002
(2) SACR 435
(SCA) para 11.
[9]
S v
Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 5b.
[10]
N v T
1994 (1) SA
862 (C).
[11]
S v Zinn
1969 (2) SA
537 (A).
[12]
S v Banda & others
1991 (2) SA 352
at 355A-C.