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[2016] ZAGPPHC 539
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Director of Public Prosecutions, Gauteng, Pretoria v Mtshali (A905/2014) [2016] ZAGPPHC 539; 2016 (2) SACR 463 (GP) (20 June 2016)
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REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.:A905/2014
Reportable:
Yes
Of
interest to other judges: Yes
Revised:
Yes
20/6/2016
In
the matter between:
THE
DIRECTOR OF PUBLIC PROSECUTIONS:
GAUTENG,
PRETORIA
Applicant/Appellant
and
BUTI
WILLIAM MTSHALI
Respondent
Date
heard: 14 June 2016
Date
delivered: 20 June 2016
JUDGEMENT:
APPLICATION FOR LEAVE TO APPEAL
DE
VOS J:
[1]
This is an application, brought by the Director of Public
Prosecutions: Gauteng, Pretoria (the 'OPP') in terms of the
provisions
of s 310A of the Criminal Procedure Act 51 of 1997, for
leave to appeal against a sentence imposed on the respondent on the
4th
December 2012. It is common cause that on that day the respondent
was sentenced by the Regional Court Magistrate, Mokopane, to five
years imprisonment wholly suspended for a period of five years on
count 1 (rape), and to a fine of R2000,00 or 12 months imprisonment
on count 2 (attempted murder). The respondent was charged with only
one count of rape, although it appears from the facts - as
will be
discussed later - that the complainant was raped twice. For purposes
of this judgement I deal with one count of rape only.
The application
for leave to appeal was filed at the Registrar of the High Court,
Gauteng Division, Pretoria on the 2ih November
2014. This application
was brought almost 23 months after the sentence was imposed. The
applicant also filed an application for
condonation for the late
filing of the application for leave to appeal. Both applications are
opposed by the respondent.
[2]
Section 310A(2)(a) of the Act reads as follows:
'(2) (a) A written notice
of such an application shall be lodged with the registrar of the
provincial or local division concerned
by the attorney-general ,
within a period of 30 days of the passing of sentence or within such
extended period as may on application
on good cause be allowed'.
Du
Toit AJ stated in
Attorney-General, Venda v Maraga
1992
(2) SACR 594
(V) at 600A-B:
‘
What a good cause
is, will obviously depend on the circumstances of each case and will
be considered by the Judge in Chambers on
the facts of the matter,
taking into account also the attitude, submissions and interests of
the respondent'.
[3]
The applicant filed an affidavit sworn to by Adv HM Meintjies SC
setting out reasons and offering an explanation for the failure
of
the applicant to adhere to the 30-day time limit. Succinctly put, the
OPP was not aware of the shockingly light sentence imposed
on the
respondent until a newspaper article was published in the 'Sunday
Times' on 26 October 2014. Since then every effort was
made to avoid
any further delay and to file the application as soon as was
reasonably possible. Adv Meintjies SC says in her statement
that
prosecutors are instructed and are obliged to bring inadequate
sentences to the attention of the OPP. Upon enquiry to the
senior
prosecutor stationed at Mokerong Magistrates' Court, Adv RF
Mashamaite, as to why the sentence was not brought to the attention
of the OPP, Adv Mashamaite was unable to offer an explanation for
this failure, suffice to say that the prosecutor who prosecuted
the
respondent was experienced and left the employ of the National
Prosecuting Authority to become a magistrate with effect from
01
October 2013. She herself, as the senior prosecutor, was also not
made aware of the sentence. The OPP did not obtain an affidavit
from
the relevant prosecutor/magistrate. Adv Meintjies SC merely states in
her affidavit that had the prosecutor still been employed
by the
National Prosecuting Authority, the appropriate internal disciplinary
procedures would have been implemented. Idealistically,
circulars and
directives containing instructions to prosecutors would always be
followed and the state machinery would meet the
expectation of
working properly. Realistically this is not the case. It is the
applicant's contention that the OPP cannot be held
accountable for
the conduct of a prosecutor under such circumstances. In the absence
of any explanation by the prosecutor who handled
the matter, this
court must accept that the prosecutor either accepted the sentences
imposed as in accordance with the law, alternatively
failed to
understand the need of the victim and to bring justice to the victim,
the accused and the community according to the
law of this country.
In the absence of any explanation by the prosecutor and accepting the
DPP's version that their office was
unaware of the sentence imposed,
I consider it necessary to look at all the facts before me and weigh
it up against the interest
of justice before deciding whether
condonation should be granted or not. For that reason I do not intend
to deal with the application
for condonation separately from the
merits of this case.
[4]
It is also common cause that the applicant seeks condonation for the
late filing of its heads of argument. The respondent, in
turn, also
seeks condonation for the late filing of his opposing affidavit to
the applicant's application for condonation as well
as his heads of
argument. All these applications will be dealt with together with the
merits of the application for leave to appeal
before me. The
following should, however, be noted. No replying affidavit to the
respondent's opposing affidavit was received,
and no opposing papers
have been filed in response to the respondent's application for
condoning the late filing of his heads of
argument and opposing
affidavit to the applicant's condonation application. In the absence
of any opposition to these two condonation
applications brought by
the respondent, condonation is granted for both the late filing of
the opposing affidavit as well as the
late filing of heads of
argument. Adv Marika Jansen van Vuuren, the Deputy Director of Public
Prosecutions at the Office of the
OPP: Gauteng, Pretoria, also filed
an affidavit explaining why the heads of argument filed by the
applicant was late. It is clear
from this affidavit that due to the
OPP moving offices during the time that heads of argument were
expected a delay was caused
the unavailability of laptops and
printers and the absence of electricity in the new building. Iam
satisfied that condonation should
also be granted for the late filing
of the applicant's heads of argument.
[5]
I will now deal with the condonation of the leave to appeal
application which was brought out of time. The applicant's main
contention is that it is in the interest of justice that leave to
appeal against the sentence be granted, and that the delay in
bringing the application is a direct result of the prosecutor's
failure to report the matter to the OPP. It is conceded that legal
certainty requires that litigation should come to an end. However,
although the application is prejudicial to the respondent, the
interests of the respondent are not the only consideration that
should be taken into account and therefore it is prayed that leave
to
appeal should be granted.
[6]
The first aspect to be considered is the interest of justice, which
requires a factual examination. It is common cause that
according to
the evidence of the complainant she had a love affair with the
respondent before the incident. It ended a year before
the incident.
The complainant and the respondent were co-workers at Legent Game
Resort. The respondent was her supervisor. On the
9
th
December 2011 and during the execution of their duties they went to a
certain place called "Rooikat", situated on the
premises of
the lodge. The complainant testified that the respondent asked her to
have sexual intercourse with him. She refused.
The respondent then
pulled her into a toilet cubicle, tearing her T shirt. He forced
her to undress and to kneel against the
toilet seat. He then and
there inserted his penis into her vagina from behind, without her
consent. She was screaming and calling
for help. Thereafter they went
outside and back into the motor vehicle. Instead of going to the
office the respondent drove into
the bushes. According to the
complainant he told her that he does not want to go to prison. The
respondent stopped in the bushes.
He pulled the complainant out of
the motor vehicle; she broke loose and ran away. The respondent
pursued her. He caught up with
her and hit her head against a stone
and brought her back to the car. As they took off, the complainant
tried to escape once more
and jumped out of the vehicle. She ran
away. The respondent again caught up with her. He grabbed her and
pulled her back to the
motor vehicle where he took the lid of a cast
iron pot and hit her on the head with it. He hit her several times
and he also hit
her with his fists. She lost consciousness and when
she regained it she found herself inside the boot of the car. At that
stage
she overheard the respondent talking to somebody over the
telephone, telling that person that he does not know where she is.
Thereafter
the respondent opened the boot. He told her that he was no
longer going to kill her as it appears that others know that they
left
"Rooikat" together. While she was inside the boot the
respondent hit her with the jack of the motor vehicle again, as
well
as with his fists. He took her out of the boot, put her inside the
motor vehicle and drove away. Before they reached their
destination
the respondent raped her again. On arrival at her place of residence
the complainant reported the matter and thereafter
she was
transported to the police station as well as to the hospital. She was
examined by Dr Motanyane. The doctor concluded that
the possibility
of a sexual penetration taking place cannot be ruled out. The doctor
also noted several injuries sustained by the
complainant. There were
deep scalp lacerations and also a laceration of the left knee. Her
right ear was tom. There was a fracture
on the fifth proximal
failings - that is a bone of the finger - and a bone in the palm of
her hand was also fractured. Her vest
and jeans were torn and
blood-stained. The court a quo accepted the version of the
complainant and accordingly convicted the respondent
on counts 1 and
2. The respondent's version was rejected by the court a quo. The
court concluded that the nature of the injuries
sustained by the
complainant was such that she was in pain, and that the court cannot
arrive at the conclusion that she consented
to sexual intercourse.
The court also found that the respondent had the motive to attack the
complainant on that particular day.
He realised that after he forced
himself upon her and had sexual intercourse with her she was going to
report him for rape. He
did not want to go to jail and that made him
decide to destroy the evidence by killing her. The court also found
that the manner
in which the respondent hit the complainant with his
fists and the car jack while she was in the boot of the car, as well
as the
nature of the injuries that he inflicted on her are such that
the only conclusion to be arrived at is that the respondent had
intended
to kill her.
[7]
On reading the sentence imposed by the magistrate it becomes quite
clear that two factors mainly influenced the magistrate to
decide
against the imposing of direct imprisonment. The first factor is that
when the respondent divorced his ex-wife the court
granted custody
and care of the minor children born from that marriage to the
respondent. The second factor of importance is that
the pre-sentence
report handed in during the trial dealt extensively with the best
interest of the children, which was paramount
in deciding what a
suitable sentence would be. The state contends that the magistrate
misdirected himself in that there was insufficient
information before
the trial court to substantiate findings that the respondent was the
"caregiver" of the children.
It appears as if the
magistrate accepted that the respondent was the primary caregiver
whilst the evidence that on record is to
the contrary. It seems that
the magistrate relied on
S v M (Centre for Child Law as
Amicus
Curiae)
[2007] ZACC 18
;
2007 (2) SACR 539
(CC)
to reach a conclusion that direct
imprisonment is inappropriate as the respondent as primary caregiver
of the children is of sufficient
importance to decide not to impose
imprisonment. I agree with the state's contention that the Court a
quo misdirected itself in
this regard. The court a quo disregarded
the evidence in the pre-sentencing report that the respondent's
children were left with
their paternal grandmother to look after them
when he took up employment elsewhere. This evidence was placed before
the court in
the context that the respondent is the breadwinner of
the family but not the primary caregiver. The court a quo ignored the
fact
that for years since the divorce he maintained his children but
did not live with them or cared for them on a daily basis. There
was,
in fact, no proper investigation into what the position of the
children would be should imprisonment be imposed. The court
a quo
also found that the complainant and the respondent were 'involved in
a situation which became out of their control'. This
was considered
to be a mitigating factor in sentencing. This is clearly a
misdirection. Even rape within a marriage by a husband
on his wife is
an offence. In such instances, the fact that a perpetrator is the
husband - or, as in this case, a former boyfriend
- of the
complainant cannot be regarded as mitigating. A woman has an inherent
and constitutional right to refuse intercourse.
Be it in a marriage
or any other relationship. To consider a tumultuous relationship as
an excuse on behalf of the perpetrator
for committing this type of
offence, or for having to endure the commission of the offences as
the victim in this matter, has no
sound legal basis.
[8]
It is clear from the authorities that sentencing officers cannot
always protect children from the consequences of direct imprisonment.
The relationship between an accused, convicted of serious crimes, and
his children are merely one of the factors to be weighed
up in each
given case in determining a proper sentence. Children cannot be used
as an excuse to avoid incarceration. See
S v Chetty
2013
(2) SACR 142
(SCA) para 13.
The trial court has the duty to
satisfy itself that, should imprisonment be imposed, the children
will be taken care of. It appears
to me that the trial court allowed
the interest of the children to override all the other aims of
sentencing. This caused the dictum
in
S v M
to be
incorrectly applied. It is clear from the record that the magistrate
did not have sufficient information before him to substantiate
the
finding that the respondent was the caregiver of the children and
that the best interest of the children was of paramount importance
in
deciding what a suitable sentence would be. In my view, the court a
quo's finding that substantial and compelling circumstances
existed
on the part of the respondent, cannot be upheld.
[9]
It is further of importance to note that the impact of the offences
on the victim was not really taken into account by the sentencing
magistrate. The judgement on sentence creates the impression that the
victim brought the offences down on herself through her own
behaviour. The complainant's objective evidence is that she has
suffered severe psychological trauma as well as physical scars
due to
the attacks. There is not a single reference in the judgement on
sentence to the physiological or psychological effects
that the
offence had on the victim. In contrast, the court a quo actually went
so far as to label the victim an aggressive person.
[10]
The respondent's submissions that the magistrate did not misdirect
himself in imposing sentence are unfounded. The respondent
relies on
the fact that the magistrate found that substantial and compelling
circumstances are present and in fact considered the
triad of
S
v
Zinn
1969 (2) SA 537
(A)
before arriving at the
sentence as a result of the particular circumstances surrounding the
matter, and taking all the factors into
account. The respondent
contends that the pre-sentencing report was compiled by the social
worker and the content thereof was not
put into dispute by the state.
The magistrate applied his mind to the questions and listed
authorities in justification for imposing
a lesser sentence. The
guidelines set out in
S
v M
have the purpose to
promote consistency of treatment and individualisation of outcome.
The respondent contends that the magistrate
also did not err in
imposing a wholly suspended sentence. The respondent relies on the
magistrate's judgement in his commentary
to the appeal proceedings
that he did not impose a minimum sentence due to substantial and
compelling circumstances being present
and therefore s51(5)(aJ of the
Act is not applicable. It is further contended that the magistrate
did indeed take into account
the effect of the offence on the victim
but that the magistrate stated that unfortunately the accused and the
victim are not the
only people which he must take into consideration.
It is further contended that the respondenfs personal circumstances
were not
overemphasised and that the most emphasis was put on what
would be in the best interest of the minor children since the
respondent
is their primary caregiver. I have already dealt with most
of these aspects in this judgment. In my view, these submissions do
not assist the respondent at all. On his own argument the interest of
the minor children constitutes the main reason for the magistrate's
decision not to impose direct imprisonment. This approach by the
magistrate is clearly based on incorrect facts and constitutes
a
serious misdirection.
[11]
The magistrate misdirected himself in overemphasising the personal
circumstances of the respondent and underemphasising the
seriousness
of the offence and the interest of the community. It has been said in
several cases that in sentencing, especially
regarding crimes like
rape or murder, the emphasis should be on retribution and deterrence
and that the rehabilitation of the offender
will consequently play a
relatively smaller role.
See S
v Malgas
2002
(2) SA 1222
at
1236E; 2001 (1) SACR 469
(SCA) at 284F.
See also
S
v
Nkwanyana & Others
[1990] ZASCA 95
;
1990 (4)
SA 735
(AD) at 749C-D; S
v Mhlakaza & Another
1997
(1) SACR 515
(SCA) at 5190-E
and
S
v DI Blasl
1996 (1) SACR 1
(A) at 10F-G.
[12]
Insofar as the merits of this application is concerned it is my
finding that the applicant has a reasonable prospect of success
on
appeal and that the only question which remains is whether the
applicant should be granted condonation to embark on this process.
I
have already referred to the matter of
Maraga.
The OPP
informed the court that their office was unaware of the sentencing
process in this matter until there was a report in the
'Sunday Times'
that caused them to investigate and institute the present
proceedings. It is clear that the applicant only became
aware of
these facts after the expiration of the 30 days allowed by the Act.
The respondent's main argument in this regard is that
the prosecutor,
being the delegated representative of the applicant in lower courts,
should have informed the applicant if she
was of the opinion that the
sentence was inappropriate, in order to consider an application in
terms of s 31OA of the Act. In
Maraga
the court held
that the ignorance of the applicant caused by a lack of action from a
prosecutor may not always be considered "good
cause". The
court justified this by saying that it is in the interest of justice
that litigation comes to an end in order
to ensure legal certainty.
See
Maraga
at 601.
In the present matter it is
common cause that the applicant did not file a statement by the
prosecutor. Although no statement was
filed by the prosecutor, the
record shows that the prosecutor agreed with the magistrate that
there are sufficient circumstances
present for not imposing a minimum
sentence. Against this background Imust also consider the
respondent's present position. The
respondent only became aware of
the present application when it was served on him during December
2014. The respondent, in the
interim period after the sentence had
been imposed and receiving the said application, obtained employment
as a chef in Sierra-Leone.
I have considered the fact that a belated
appeal against a sentence imposed for a criminal conviction may evoke
a public interest
in the matter of the law's delays. I have further
considered that the late filing of a notice of appeal may
particularly affect
the respondent's interest with regard to the
finality of his judgement. When the time for noting an appeal has
lapsed, he is prima
facie entitled to adjust his affairs on the
footing that his judgement is safe. See
S
v Sasson
2007
(1) SACR 566
(CC).
I have also weighed up the interest of the
victim, the interest of the public in the sense that the public's
trust and confidence
in the criminal justice system must be upheld,
the proper administration of justice in the sense that justice must
not only be
done but must also be seen to be done, as well as the
interest of all in seeing that the law is correctly and consistently
applied.
Against these factors I also weighed up the fact that it is
a presiding officer's duty to ensure that legislative prescripts are
adhered to in the best interest of justice.
[13]
As briefly mentioned before, the senior prosecutor stationed at
Mokerong Magistrates' Court employed by the National Prosecuting
Authority deposed of an affidavit stating that she, Reneilwe Francina
Mashamaite (the senior prosecutor), has occupied this position
since
the 2nd January 2007. Her duties include inter alia the supervision
of prosecutors in Mokerong, Naboomspruit and Mokopane
Magistrates'
Courts. As such it is impossible to be aware of all cases that are
heard in the aforesaid courts. The sentence imposed
in the case of
the respondent was never brought to her attention by the prosecutor
who handled the matter. However, had she been
informed of this
shockingly light sentence, she would have immediately brought the
matter to the attention of the office of the
OPP, Pretoria for
purposes of noting an appeal against the imposed sentence. She does
not know why the prosecutor did not bring
this matter to her
attention. Apparently, according to her statement, she only became
aware of this matter on the 22nd October
2014 when she received an
email enquiry from the DPP's office regarding this matter. It appears
that there is no explanation before
the court for the failure of the
prosecutor who prosecuted the respondent to report this matter to the
senior prosecutor immediately
after sentence was imposed. One can
only speculate as to reasons for this failure. Against this I must
also consider the importance
of the case, the prospects of success on
appeal, the respondenf s interest in the finality of the judgement,
the convenience of
the court and the avoidance of unnecessary delays
in the administration of justice. In the matter
Engelbrecht v
Khumalo
(case no. 2013n3273 handed down on 18 March 2016)
Mlambo JP held at
paras 7 and 8:
'[7] . . . that the
good cause test is not all-embracing but is case-specific. This
entails a balanced and common sense appraisal
of the individual facts
and circumstances of the matter.
[8]
In
Torwood Properties (Pty) Ltd v SA
Reserve
Bank
[1996 (1) SA 215
(W) at 2288] it was stated: "The
overriding consideration is that the matter rests in the judicial
discretion of the court,
which discretion is to be exercised having
regard to all the circumstances of the case". In
Soller
(supra) para 9
[2005] ZAGPHC 13
;
[2005 (3) SA 567
(T)] Ngoepe JP noted
that the existence of good cause depended on the facts and
circumstances of each case. See also
Executive Officer of the
Financial Services Board v Dynamic Wealth Ltd and
Others [[2012)
1All SA 135 (SCA)] where the SCA stated: "Ultimately, what will
constitute good cause in any particular case
will depend upon the
facts of that case" . . . In this context a court would consider
whether on the facts before it an arguable
case calling for an answer
. . . is made out and whether it is fair, just and equitable between
the parties to grant or refuse
consent. Simply put the issue is
whether the proceedings ... contain a justiciable issue'.
[14]
It is common cause that if the time for noting an appeal has lapsed
an accused is prima facie entitled to adjust his affairs
on the
footing that his judgement is safe. See S
v Sasson.
Applying
the test for an application for leave to appeal as set out in S
v
Smith
2012 (1) SACR 567
(SCA) para 7, I have already concluded
that there is a sound, rational basis for the conclusion that the
applicant has a good prospect
of success on appeal. In weighing up
the interests of justice against the personal interests of the
respondent, I am of the view
that public interest as well as that of
the victim overshadows the interest of the respondent to such an
extent that the applicant's
late filing of the application for leave
to appeal should be condoned. The message sent to the community by
imposing a suspended
sentence where a woman was violently raped is in
direct conflict, not only with the legislation on minimum sentences,
but also
with the general trend of sentencing by the courts of South
Africa and the message these courts strive to send out to community
[11]
Accordingly, I make the following order.
1. Condonation is granted
to the applicant for the late filing of the notice of appeal and/or
heads of argument;
2. Condonation is granted
to the respondent for the late filing of his opposing papers and
heads of argument;
3. Leave is granted to
the applicant to appeal to the Gauteng Division of the High Court,
Pretoria, on the sentences imposed on
counts 1 and 2 respectively, on
the grounds as set out in the notice of appeaI.
_________________________
DE VOS J
JUDGE
OF THE GAUTENG DIVISION
OF
THE HIGH COURT OF SOUTH AFRICA
APPEARANCES:
For
the applicant:
Adv. J Cronje
Instructed by The
Director of Public Prosecutions:
Gauteng, Pretoria
For
the respondent:
Adv. W J van Wyk
Instructed by
Klynveld-Gibbens Incorporated
c/o Johan van de Vyver
Attorneys