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[2016] ZAGPPHC 302
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Dube v S (A532/15) [2016] ZAGPPHC 302 (29 April 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG, PRETORIA
29/4/16
CASE NUMBER A 532/15
Reportable
Of interest to other
judges
Revised
In the matter between
SIPHO MOSES
DUBE
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
THULARE AJ
[1] Appellant, a 39 year
old male was convicted of contravention of section 3 read with
sections 1, 55, 56(1), 57, 58, 59, 60, and
61 of the Criminal Law
Amendment Act {Sexual Offences and Related Matters) Act, 2007 {Act
No. 32 of 2007) read with sections 92(2),
94, 256, 257 and 281 of the
Criminal Procedure Act, 1977 (Act No. 51 of 1977) and further read
with sections 51(1) and Part I of
Schedule 2 of the Criminal Law
Amendment Act, 1997 (Act No. 105 of 1997) as amended and sentenced to
life imprisonment in the Regional
Court in Benoni.
The appellant was
represented in the court
a quo.
[2] The appeal against
both his conviction and sentence is before us as automatic appeal
seen against the light of the life imprisonment
imposed on the
appellant by the court
a quo.
[3] The State alleged
that the appellant was guilty in that during the period 2009-2011 and
at or near Etwatwa, in the Regional
Division of Gauteng the appellant
did unlawfully and intentionally commit an act of sexual penetration
with a female person, to
wit, S[…] (10-14 years) by inserting
his penis into her vagina, and had sexual intercourse with her
without her consent.
[4] After the charge was
put, the magistrate asked the appellant if he understood the charge,
and appellant indicated that he understood
the charge. When asked how
did he plead, appellant's answer was:
"I dispute the
rape but I did have sex with her."
Appellant's legal
representative asked leave to approach the appellant. Thereafter she
indicated that appellant misunderstood the
charge and requested that
it be repeated whereupon appellant pleaded guilty.
[5] The legal
representative further indicated that the plea was in accordance with
her instructions and that she had prepared a
statement in terms of
section 122(2)
of the
Criminal Procedure Act, which
she asked for and
was allowed to read into the record. The seven bullets of the
statement read as follows:
"IN THE REGIONAL
DIVISION OF GAUTENG
HELD AT THE
MAGISTRATE'S COURT OF BENONI
CASE NO: RC 52/13
THE STATE
AND
SIPHO
DUBE THE
ACCUSED
STATEMENT /TO SEC
112(2) OF ACT 51 OF 1977
·
I Sipho Dube am the accused in this case and
wish to confirm that I, voluntarily and without being unduly
influenced thereto, plead
guilty to the charge of Rape, as it is my
wish to take this court into my confidence. I deeply regret my
actions.
·
My attorney explained the nature of the charge
and the consequences of this plea to me. I was also made aware of the
sentence options.
·
I admit the offence was committed during the
period of 2010 and 2011 and at Barecelona, Daveyton which is within
the jurisdiction
of this Honourable Court.
·
I did unlawfully and intentionally have sexual
intercourse with the complainant, S[…] (14 years old}, by
inserting my penis
in to her vagina without her consent.
·
We had sexual intercourse once and a child was
conceived.
·
I knew my actions were unlawful and I have no
legal excuse.
·
I also knew that I was committing an offence
for which I could be punished in a court of law.
Signed on the 13th day
of August 2013."
Both the appellant and
the attorney signed the statement.
[6] The Attorney asked to
hand up the statement. The appellant was asked if he confirmed the
statement, which he did. The State
accepted the plea. The Court
pronounced that it was satisfied that the appellant admitted all the
elements of the charge, and he
was found guilty as charged.
[7] The State then
introduced a section 212(4)(a) and (8)(a) Act 51 of 1977 statement in
which basically it is confirmed that appellant
is the biological
father of a child, N[…]. Appellant had no objection to the
handing in of the statement.
[8] The previous
convictions of the accused were put to him. He disputed the one of
theft and admitted the robbery. The State accepted
his admission and
did not pursue the other previous conviction which he disputed. The
matter was postponed for a probations officer's
report at the request
of the appellant.
[9] At the next
appearance, Ms Clarence asked leave to withdraw as attorney of
record, which was allowed. When interviewed by the
probation officer,
the appellant said that the intercourse was consensual. He had no
intention of raping the complainant. He never
intended to plead
guilty to the charge and that Ms Clarence had forced him to plead
guilty. Upon learning of these allegations,
which were also contained
in the probation officer's report, she was advised not to take
further instructions from the appellant
and to withdraw.
[10] Legal Aid South
Africa then appointed Mr Twala on behalf of appellant. At his first
appearance, the following is recorded:
"MR TWALA: Thank
you, our Worship. Your Worship, I do confirm my instruction on behalf
of the Legal Aid Board on behalf of
the accused and further Your
Worship, that I would like to place on record that the accused Your
Worship, informed me that he unconditionally
and unreservedly Your
Worship, apologises for the misunderstanding that he communicated to
the probation officer regarding my learned
colleague, Ms Clarence,
and as such Your Worship, he wishes to apologise for such. As such
Your Worship, my instructions Your Worship,
are to proceed with this
matter as it was initially proceeded by my colleague Your Worship,
that the report that was prepared by
the probation officer be honded
in as the report and that the matter proceeds Your Worship, as per
the record, Your Worship.
PROSECUTOR:
[indistinct].
COURT: Are you ready
to start addressing the court on mitigation of sentence? Or perhaps
before we proceed ... Mr Dube, do you confirm
what your attorney is
saying?
ACCUSED: Yes, I
confirm, Your Worship.
COURT: Mr Twala, you
may proceed.
MR TWALA ADDRESSES THE
COURT: thanks, Your Worship. Your Worship, before I even proceed with
the mitigation the accused Your Worship,
upon explaining the contents
of the statement Your Worship, especially paragraph 12 of the report,
he made mention Your Worship,
that such sexual intercourse was
without consent as it appears on the report
Your
Worship, it says there was no consent, but he informed me that it was
without consent, Your Worship."
Mr Twala then proceeds to
address the court in mitigation of sentence.
[11] The basic concept is
that appellant must be fairly tried
(S v Xaba
1983 (3) SA 717
(A) at 7280. Generally speaking, an irregularity or illegality in the
proceedings at a criminal trial occurs whenever there is
a departure
from those formalities, rules and principles of procedure with which
the law requires such a trial to be initiated
and conducted (
S
v
Fethum
1991 (1) SACR 461
at 486).
[12] Appellant, from the
moment the charge was put to him, admitted sexual intercourse with
the child under the age of 16 years,
whilst he was 36 years old.
[13] The court bears in
mind the difficulties experienced by legal practitioners in making
sure that their clients understand the
existing and applicable legal
position in a cause, especially when such clients are lay persons,
more so when they are illiterate
or semi literate. Statutory
provisions add to the difficulties of untangling this reality. When
the language barrier is added
to the equation, the task is one of the
most challenging. Added to this, is the nature of the agency of a
legal practitioner, who
is first and foremost approached for his or
her training, skill and competency to guide the presentation of a
case before a court
of law. It must be borne in mind that it is the
role of the attorney to advise his client.
[14] A lay person's view
by a client on a technical matter, differing from that of a legally
trained mind of his legal representative,
cannot amount to an
irregularity, where the client, after the nature and import of the
presentation is discussed with him, confirms
in open court to the
magistrate that what is presented are his instructions. In my view,
the test to be applied to determine whether
there has been a failure
of justice is simply whether we consider, on the evidence unaffected
by the irregularity or defect before
us, that there was proof of
guilt beyond reasonable doubt. In my view, there was no resultant
failure of justice (5
v Tuge
1966 (4) SA 565
(A) at 568 F-G;
S
v Nkata and Others
1990 (4) SA 250
(A) at 257E - F). Both Ms
Clarence and Twala, after unleashing their training, skill and talent
on the matter at hand, carried
out what were in essence the
instructions of the appellant, to the court. In my view, the
magistrate was not wrong in proceeding
as he did under the
circumstances.
[15] In
S v Mbuyisa
2012 (1) SACR 571
(SCA) at paragraph 7-8 it is said:
"[7] However,
while it is no doubt undesirable for allegations contained in the
charge-sheet to merely be repeated in a s 112(2)
statement, there is
no inflexible rule that an accused who uses certain of the
phraseology in a charge cannot be convicted. Each
case is to be
considered in the light of its peculiar facts and circumstances. What
s 112(2) requires is a written statement in
which the accused sets
out the facts upon which he or she admits guilt. Where these facts do
not cover the essential elements of
the charge
-
for example, in Chetty's case where on a
charge of fraud it was not clear whether the person had been induced
to act to his or her
prejudice as a result of the accused's admitted
representation
-
a
conviction should not follow. Thus in Mshengu's case, in which the
offender's age was such that he was rebuttably presumed not
to be
criminally responsible, it was held that a simple regurgitation of
the contents of the charge did not establish that he was
indeed
capable of forming the necessary criminal intent.
[8] There are no such
difficulties in the present case. ..."
Bosielo JA put it this
way in
S v Makatu
2014 (2) SACR 539
(SCA) at paragraph 13:
"The appellant is
23 years old. In his plea explanation that was prepared by his legal
representative and which he confirmed
as correct, he freely and
voluntarily used the phrase 'sexual intercourse'. Furthermore, he
admitted that the sexual intercourse
was without her consent and,
importantly, that he knew that it was wrong. To argue that he did not
understand what sexual intercourse
means, thus implying that he
pleaded guilty under a misapprehension of the proper charge, is
disingenuous to say the least. There
is no substance to this
submission."
[16] The statement is
indeed lacking in detail and does not measure up to what it should
have contained. It did not set out with
full particularity what had
occurred on which the State relied. Against the background of the
circumstances in this case, it did
not set out the facts personal to
the complainant. The facts set out cover the essential elements of
the charge. The appellant
is 39 years of age. He freely and
voluntarily used the phrase "rape" and "without
consent". He pleaded guilty
fully aware of the proper charge.
The appellant was
correctly convicted.
[17] In terms of section
51(1) of the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997),
it was peremptory for the magistrate,
after the conviction of the
appellant for an offence referred to in Part I of Schedule 2, to
sentence the appellant to life imprisonment.
The question is whether
substantial and compelling circumstances exist which justified the
imposition of a lesser sentence than
the sentence prescribed.
[18] On the appeal
against the sentence, the function of the court of appeal was set out
by Holmes JA as follows in
S v De Jager and Another
1965 (2)
SA 616
(A) at 628fin to 6298:
"It would not
appear to be sufficiently recognized that a Court of appeal does not
have a
general discretion to ameliorate
the sentences of trial courts. The matter is governed by principle.
It is the trial court which
has the discretion, and a court of appeal
cannot interfere unless the discretion was not judicially exercised,
that is to say unless
the sentence is vitiated by irregularity or
misdirection or is so severe that no reasonable court could have
imposed it. In this
latter regard an accepted test is whether the
sentence induces a sense of shock, that is to say if there is a
striking disparity
between the sentence passed and that which the
court of
appeal would
have imposed. It should therefore be recognized that appellate
jurisdiction to interfere with punishment is not discretionary
but,
on the contrary, is very limited."
[19] Appellant as earlier
mentioned, was 39 years old. He is single with two minor children,
N[…] who was 12 years old and
A[…] who was 6 years old.
They both living with their mothers. He has two siblings, N[…]
and J[…]. His highest
academic achievement is a grade 5. He
worked as a car washer at Linmed Hospital and he made between R250
and R280 per day. He had
been in custody since his arrest in January
2013. A child was conceived and born out of the incident. He is
remorseful. His fitness
to be licenced to possess a firearm was left
in the hands of the court he had no objections to the endorsement of
his name in the
National Register of Sexual Offenders. Mr Twala asked
that the court also consider the probation officer's report. After Mr
Twala's
address, the State led evidence in aggravation.
[20] E. S. is the mother
of the complainant. She confirmed that arising out of the rape of her
daughter, a child was conceived and
was then 2 years 3 months old.
The complainant was 16 at the time of her testimony. The complainant
is not coping. She was doing
well before the incident. After the rape
she runs away from home and does not want to go to school on a
regular basis, although
she is a registered student. The complainant
talks and shouts back at her. The previous year she had to go to her
school, where
she was advised that the complainant was chased away
from the school and no reasons were given to her. She was in grade 8
at that
time. The complainant does not help with household chores.
The complainant did attend counseling at Daveyton but the sessions
have
ended. The counseling worked when she still attended the
sessions.
[21] The probation
officer's report, which was handed in at the instance of the State
just before Ms Clarence was excused, and marked
exhibit C. The report
shows that appellant was raised by his grandmother, who died in 1983,
and he does not know the identity of
his father. After the death of
the grandmother, who financed his education, he dropped out of
school. His mother survived on grants
and the appellant assisted her
and the rest of his family. The complainant is the child of the
appellant's girlfriend, with whom
he stayed. When the fiancee left
for work, he took the complainant to his uncle's house where he had
sexual intercourse with her
without using a condom. It is to the
probation officer that he said it was by consent and the complainant
did not cry during the
intercourse. This was in 2011 and the
complainant was 14 years old. A neighbour noticed that the
complainant was pregnant 3 months
after they had intercourse. The
mother took the victim for medical tests and the pregnancy was
confirmed.
The appellant reported
that his girlfriend did not want to have intercourse with him. She
had another boyfriend but would assault
appellant's other girlfriend.
Appellant then decided to sleep with the victim. The probation
officer did not consult with the complainant
as her whereabouts were
unknown. The complaint's school work deteriorated and she presented
with behavioural problems since she
was raped. The complainant took a
few clothes and left the house after she was reprimanded for her
behavior. The complainant only
told her mother about the identity of
the father of her child after the child was born.
The appellant reported to
be a member of the African Catholic Church, attended church regularly
and that he was active on the men's
association.
[22] Appellant was the
complainant's step-father. The appellant placed himself in a position
of trust to the complainant and her
mother. He was the boyfriend of
the mother, who was trusted such that the mother left the complainant
in her care when she left
for work. The complainant looked up to him
as the father figure. Appellant abused a position of trust. I agree
with the probation
officer that the removal of the child from the
home to the house of the uncle, where the offence was committed, is
an indication
that the offence was planned. I also agree that the
conduct of the complainant after the rape, presenting with
behavioural problems
and falling back on her school work, is a clear
demonstration that the rape adversely affected the child. I cannot
find it wrong
for the probation officer to submit that the child is
emotionally ruined. The probation officer recommended a sentence that
would
be preventive to the society and deter potential offenders.
[23] A careful
consideration of the appellant's report to the probation officer, in
my view, suggests that the complainant, as the
child of the mother,
was used, through this rape, for punishing the mother for refusing to
have intercourse with the appellant
whereas she has another boyfriend
but assaults appellant's other girlfriend. He had intercourse with
the child for he could not
get it right with the child's mother.
[24] The personal
circumstances of the appellant, which were placed before the trial
court, including through the pre-sentence report
by the probation
officer, under these circumstances, cannot outweigh the seriousness
of the offence and the interests of the community.
Having regard to
all the aggravating factors, I am unable to conclude that there are
substantial and compelling circumstances present
that would justify a
departure from the prescribed minimum sentence.
[25] In my view there is
no basis for this court to interfere with the sentence. I would make
the following order:
The appeal against both
sentence and conviction is dismissed.
_________________________
DM THULARE
ACTING JUDGE OF THE
HIGH COURT
I agree
_________________________
AJ BAM
JUDGE OF THE HIGH
COURT