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[2016] ZAGPPHC 708
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Masedi and Another v S (A717/2015) [2016] ZAGPPHC 708 (17 August 2016)
SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: A717/2015
17/8/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
FRANK
MATOME
MASEDI
First
Appellant
JEFFREY
SELAMOLELA
Second
Appellant
and
STATE
Respondent
JUDGMENT
HF
JACOBS, AJ:
[1]
The appellants were convicted on a count of rape of a 14 year old
minor, Ms T, in the Regional Court at Mangkweng. The case
was
referred to the High Court for sentence in terms of
section 51(2)(b)
of the
Criminal Procedure Act of 1977
under the then prevailing
statutory dispensation. On 2 September 2004 Claassen J sentenced both
appellants to life imprisonment.
The first appellant now appeals both
his conviction and sentence with the leave of the Supreme Court of
Appeal. The second appellant
appeals his sentence only, also with the
leave of the Supreme Court of Appeal.
[1]
They have both been serving their sentences of life imprisonment
since 2 September 2004, just short of twelve years.
[2]
Both appellants had legal representation before the Regional Court
and the High Court. The first appellant pleaded not guilty
and
admitted in his plea explanation to having had consensual sexual
intercourse with Ms T on another date and stated that Ms T
was his
girlfriend at the time.
[3]
The second appellant also pleaded not guilty and denied having had
sexual intercourse with Ms T. The second appellant further
admitted
in his plea explanation having been present at the scene of the crime
and stated that he is a friend of the first appellant
and explained
his presence at the scene of the crime on the basis that he
accompanied the first appellant when the first appellant
fetched Ms T
at the school where she was a pupil.
[4]
Immediately after noting the appellants' pleas of not guilty and
their plea explanations the prosecution enquired from the appellants'
legal representatives whether they would be prepared to admit that Ms
T was at the time of her alleged rape 14 years of age and
whether
they would be prepared to admit the content of the Form J88 medical
report compiled by the doctor who examined Ms T. The
appellants'
legal representatives had no objection and the trial proceeded,
in
camera,
with the reading of the content of the Form J88 into the
record and handing the document in as an exhibit.
[5]
The Form J88 records that on 27 November 2002 Dr M L Modiba examined
Ms T after a complaint that she had been raped. The doctor
found upon
examination her hymen to have been tom left posterior and that her
labia minora was blood stained and bleeding, the
frenulum of the
labia minora showed a fresh tear and was reddish in colour. Her
vagina was tender with mild bleeding and the doctor
concluded that Ms
T was sexually assaulted with penetration causing a tom hymen. The
injuries were consistent with those often
present after rape.
[6]
Ms T's evidence was that on the day in question she went to school to
return her schoolbooks. It was the end of the school examination.
It
was in the afternoon. When Ms T left the school gate the two
appellants were at the gate. Ms T knew the two appellants from
the
neighbourhood although they were not friends. With the two appellants
.was one V P also known as S. S testified for the prosecution.
[7]
When Ms T left school the second appellant took her schoolbag and the
first appellant said that she was to accompany the three
young men
and she was told to tum towards S's place. Ms T refused to tum from
her route whereupon the first appellant took out
a knife and forced
Ms T to go where he told her. Ms T and the first appellant then went
into the house of S. Ms T did not want
to go but the first appellant
forced her. He threatened her with assault and to kill her.
[8]
Once the first appellant, Ms T and S were in the house S went to the
kitchen to clean up and the first appellant took Ms T into
the
bedroom. That is where Ms T testified the first appellant undressed
her. The second appellant was not there at the time. He
went to his
house which was not far from there to put away his jacket. The first
appellant then raped Ms T. The second appellant
entered the room
later and also raped Ms T. She did not scream. She was told to be
quiet and threatened by the first appellant
who had a knife.
[9]
S was in the house all the time albeit in another room. Ms T
thereupon dressed herself and left for home where she told her
sister, J, of her ordeal who then phoned their mother. J was called
as a witness by the prosecution and corroborated Ms T's evidence
in
all material respects.
[10]
Ms T denied that the first appellant was her boyfriend as stated in
his explanation of plea and denied that she consented to
having
sexual intercourse with him. Ms T's evidence about her injuries was
consistent with the findings recorded by the Form J88.
[11]
S did not witness the rape. He did see the first appellant enter the
bedroom with Ms T and also saw the second appellant arrive
a few
minutes later. The second appellant told S when S warned him of
potential trouble that may follow should he have intercourse
with Ms
T that he (S)
"knows nothing"
and that he (second
appellant) and the first appellant have
"been trying
cases"
for a long time. When the first appellant left the bedroom he called,
according to S, the second appellant after which
the second appellant
entered the bedroom where the second appellant raped Ms T.
[12]
The appellants did not testify in the Regional Court. The evidence of
Ms T is, therefore, unchallenged. On appeal it was submitted
on
behalf of the first appellant that Ms T and the first appellant had
consensual sexual intercourse and that the absence of evidence
of Ms
T sounding alarm supports such an inference. I do not agree mainly
for three reasons. First, the absence of any screaming
by Ms T is not
inconsistent with the conduct of a child of 14 being threatened at
knife point to remain quiet during an assault
of this kind and,
second, it was never put by the legal representative of the first
appellant to Ms T that intercourse was consensual.
Third, the
appellants never testified and Ms T's evidence stands uncontroverted.
It was further submitted on behalf of the first
appellant that the
absence of evidence by S about the appellants (or any of them)
holding a knife en route to S's house, casts
doubt over the
reliability of the evidence of Ms T. I cannot agree with the
submission. S throughout his evidence stated that the
first appellant
and Ms T walked some distance from him or they were, as S put it,
"being aside"
or walking and standing
"behind
us".
The absence of evidence by S that he noticed a knife
does not lend support for a finding that the direct evidence of Ms T
should
in that respect be rejected as improbable.
[13]
It must be borne in mind that the evidence of Ms T about the knife
was not challenged on behalf of the appellants during
cross-examination.
On behalf of the first appellant the evidentiary
value of the Form J88 was challenged on appeal despite the consensual
use of that
evidence which I have mentioned earlier. A similar
challenge was directed at the acceptance of the age of Ms T at the
time of the
rape. It is well-established that an accused is bound by
the admissions made by him or on his behalf unless it was made as a
result
of a
bona
fide
mistake
or without proper instruction.
[2]
The first appellant's challenge is not based on any
"mistake"
or
absence of
"proper
instructions"
but
based on the absence from the record of reference to terminology such
as
"formal
admission in
terms
of
section 220
of the
Criminal Procedure Act"
;.
[14]
Formal admissions of facts are not dependent on the use of certain
hackneyed expressions. The record shows in my view the reasons
for
the admissions made by the appellants' legal representatives, its
context and purpose. The age of Ms T and her injuries were
in any
event confirmed by her in evidence. There is no merit in the first
appellant's challenge of the findings of the Regional
Magistrate in
this respect. The Regional Magistrate's reasoning and judgment are
sound and the conviction of the two appellants
should stand.
[15]
I now turn to the appeals against the sentences of life imprisonment.
The record does not show that the appellants were forewarned
about
the statutory provisions pertaining to minimum sentences. That
constitutes an irregularity in the given context.
[3]
Under the circumstances it is expected from this court to consider
the sentence afresh, which ineluctably means the setting aside
of the
sentence of the trial court, and conducting an inquiry on sentence as
if it had not been considered before. While doing
so this court
should disregard what the trial court said in respect of sentence and
interrogate and adjudicate afresh the triad
in respect of sentence as
stated in
Zinn.
[4]
[16]
Since the advent of the regime providing for obligatory sentences our
Courts have in
Malgas,
[5]
Dodo
[6]
and
Vilakazi
[7]
criticised, explained and interpreted the provisions of
section 51
of
Act 105 of 1997. The convenient 10 point overarching guideline at
paragraph [25] of
Ma/gas
records,
with the endorsement of the Constitutional Court in
Dodo
(par
[11]) a practical method to be employed by all judicial officers
faced with the application of section 51. The section's application
requires refinement and needs to be particularised on a case by case
basis. Section 51 has as its aim to steer sentencing along
the path
that ensures
"that
consistently heavier sentences
are
imposed
in
relation
to serious crimes covered by section 51".
[8]
[17]
In
Vilakaz
[9]
the Supreme Court of Appeal added:
"It is clear from
the terms in which the test was framed in Ma/gas and endorsed in Dodo
that it is incumbent upon
a
Court in
every case, before it imposes
a
prescribed
sentence, to assess, upon
a
consideration
of all the circumstances of the particular case,
whether
the prescribed sentence is indeed proportionate to the particular
offence.
"
[10]
[18]
In
Vilakazi
[11]
the Court considered the proposition that prescribed sentences must
be imposed as the norm and are to be departed from only as
an
exception. The Supreme Court of Appeal rejected the proposition as
follows:
"That is not what
was said in Ma/gas. The submission was founded upon words selected
from the judgment and advanced out
of their context. The Court
did not say, for example, as it was submitted that it did, that the
prescribed sentences 'should ordinarily
be
imposed'. What is
said is that
a
Court must approach the matter 'conscious [of
the fact] that the Legislature has ordained [the prescribed sentence]
as the sentence
that should ordinarily and in the absence of weighty
justification
be
imposed for the listed crimes in the
specified circumstances. "
[19]
Claassen J correctly in my view described the crime of rape as
serious and has the result of
"persoonlikheidsmoord”
and expressed his concern about the statistical prevalence of the
crime in the area of jurisdiction of this court.
[20]
In my view the custodial sentence is imperatively called for but I am
not convinced that a period of life imprisonment is the
only
appropriate sentence in the circumstances. The two accused committed
these crimes at a reasonably young age and had they been
informed of
the possible imposition of an obligatory life sentence they could
have presented evidence of their prospects of success
to rehabilitate
themselves over time.
[21]
In my view a substantial custodial sentence as I intend to propose
would satisfy all the requirements of the triad in
Zinn.
[12]
[22]
The first appellant applies for condonation for the late filing of
his notice of appeal. In view of what I have mentioned I
would
propose that he be granted the condonation sought. When the matter
was called there was no appearance for the second appellant.
We enjoy
jurisdiction to consider the second appellants appeal against
sentence and the appeal on sentence was fully argued on
behalf of the
respondent.
[23]
In the circumstances I propose the following order:
[23.1] That condonation
is granted to the first and second appellants for the late filing of
their notices of appeal.
[23.2] The first
appellant's appeal against his conviction be dismissed.
[23.3] The first and
second appellants' appeals against their sentences of life
imprisonment be upheld and the sentences are set
aside.
[23.4] The life sentence
imposed by the court a
quo
in respect of the first appellant
be substituted with a sentence of 18 years' imprisonment.
[23.5] The life sentence
imposed by the court a
quo
in respect of the second appellant
be substituted with a sentence of 18 years' imprisonment.
[23.6] The sentences are
antedated to 2 September 2004.
___________________
H
F JACOBS
ACTING
JUDGE OF THE GAUTENG HIGH COURT
I AGREE
___________________
MURPHY
JR
JUDGE OF THE GAUTENG HIGH
COURT
I
AGREE
___________________
MABUSE
P M
JUDGE
OF THE GAUTENG HIGH COURT
[1]
Leave to appeal was granted to the first and second appellants on 31
March 2015 and 5 August 2014 respectively.
[2]
S v Vilikazi an unreported SCA case number 284/10: 30 September
2010.
[3]
Machongo v S (20344/14 [2014) ZASCA 179 (21 November 2014) and the
Full Court decision in Lebang v S (A173/2013 of 21 April 2015,
High
Court Gauteng Division, Pretoria)).
[4]
S v Zinn 1969 (2) SA 537 (A).
[5]
S v Malgas 2001 (2) SA 1222 (SCA).
[6]
S v Dodo 2001 (3) SA 382 (CC).
[7]
S v Vilikazi 2012 (6) SA 353 (SCA).
[8]
Dodo par (11).
[9]
Supra at par (15).
[10]
S v Vilakazi supra at [15].
[11]
See par (16).
[12]
See footnote 4 above.