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[2015] ZAGPPHC 77
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Mohalalelwa v S (A580/2014) [2015] ZAGPPHC 77 (19 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case number:
A580/2014
Date: 19 February
2015
In the matter
between:
EPHRAIM
MOHALALELWA
................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
PRETORIUS J.
[1] The appellant
and a co-accused were charged with one count of rape read with the
provisions of section 51(2) of the Criminal
Law Amendment Act in the
Regional Court held at Schweizer Reneke. He was legally represented
during the trial and pleaded not guilty.
He was convicted on 11 July
2007 as charged, whilst his co-accused was found not guilty and
discharged.
Thereafter the
matter was referred to the High Court in terms of section 52 of Act
105 of 1997 for purpose of sentence.
[2] On 22 April 2008
the conviction was confirmed in the North Gauteng High Court and the
appellant was sentenced to life imprisonment
on 23 April 2008. An
application for leave to appeal was launched on 6 May 2008. Due to
the length of time it took to have the
record of proceedings typed,
the leave to appeal was only heard on 3 December 2012. Webster J
granted leave to appeal against sentence
only to the full court of
this division.
[3] The provisions
of section 51(2) of the Criminal Law Amendment Act provides:
“
(2)
Notwithstanding any other law but subject to subsection (3) and (6),
a regional court or a High Court shall sentence a person
who has been
convicted of an offence referred to in--
(a) Part II of
Schedule 2, in the case of—
i) a first offender,
to imprisonment for a period not less than 15 years;
ii) a second
offender of any such offence, to imprisonment for a period not less
than 20 years;... ”
[4] After having
studied the record of proceedings carefully, it is clear that at no
stage of the proceedings was the appellant
advised that the ultimate
sentence of life imprisonment could be imposed, due to the fact that
he and another person raped the
complainant repeatedly.
[5] The appellant
was never warned in terms of section 51(1) which provides:
“
(1)
Notwithstanding any other law, but subject to subsection (3) and (6),
a regional court or a High Court shall sentence a person
it has
convicted of an offence referred to in Part I of Schedule 2 to
imprisonment for life.”
[6] The magistrate’s
inquiry was:
“
COURT:
before I ask them if they understand how to plea Mr Strydom do you
confirm that you have appraised your clients about the
provisions of
the minimum sentence regulation.”
[7] Counsel for the
appellants confirmed that he had. At that stage the appellant pleaded
not guilty to the crime of rape (read
with the provisions of the
Criminal Law Amendment Act 105 of 1997
). No indication was given to
the appellant that the minimum sentence was life imprisonment. The
conclusion is that he was only
warned in terms of
section 51(2)
of
Act 105 of 1997.
[8] During judgment
the magistrate placed on record:
“
I
must place this also on record that the reason for committal of the
accused as stated in the Minimum Sentence Legislation there
are to.
He with other person raped the complainant. He raped the complainant
more than once. For that reason in terms of Section
52 Act 105
of
1997 the proceedings are stopped and the matter is committed to the
High Court for sentence.”
[9] The appellant’s
counsel agreed that the matter should be referred to the High Court.
The first time mention is made of
conviction in terms of Part one
Schedule 2 of the Act 105 of 1997 is by the state’s counsel
when he addresses the court on
sentence. He argued:
“
it
is my submission that in view of the circumstances of the accused
person here, here are no compelling and substantial factors
which
would warrant the court to deviate from the sentence that is supposed
to be imposed when one is convicted of part one, schedule
2 of the
minimum sentences act.”
[10] Thereafter it
was accepted by the court that the appellant had to be sentenced in
terms of Part one of Schedule 2 of Act 105
of 1997. Nowhere, on
record, is the appellant warned that he may be facing life
imprisonment and not the 15 years or 20 years,
which would have been
the case, had he been sentenced as charged.
[11] The facts found
proven at the trial established that the appellant admitted having
had intercourse with the complainant, but
according to him it was
with her consent. Accused 2 in the Regional Court denied having had
intercourse with her and was subsequently
found not guilty and
discharged, due to lack of evidence.
[12] The complainant
and her friend had been walking when five young men attacked them.
She ran away and passed a certain tavern
where the appellant and
another man grabbed her and dragged her to some premises close to a
school. There they took turns in raping
her repeatedly. They
ultimately released her and walked off.
[13] After sleeping
she went to the police station and reported the incident against the
appellant whom she had known for a period
of time.
[14] The doctor’s
report, in the J88 form, was submitted to court by consent. The
doctor recorded:
“
Open
wound, left lower leg, bruises elsewhere, where she states she has
been hit. No vulva injury. Vaginal discharge. ? Semen with
used
condom in vagina.”
He
also indicated that the complainant had
“
open
bleeding wound on the left leg.”
The
medical report corroborated the complainant’s version.
[15]
In
S v Ndlovu
2003(1) SACR 331 (SCA)
Mpati
JA held at paragraph 12:
“
And
I think it is implicit in these observations that where the State
intends to rely on upon the sentencing regime created by the
Act
a
fair trial will generally demand that its intention pertinently be
brought to the attention of the accused at the outset of the
trial,
if
not in the charge-sheet then in some other form, so that the accused
is placed in a position to appreciate properly in good time
the
charge that he faces as well as its possible consequences.”(Court’s
emphasis).
[16] In the present
case the indictment did not mention the section which would have
alerted the appellant that he was facing a
life sentence. The details
in the indictment do not indicate the aggravating features which
would bring it in the ambit of the
minimum sentencing regime. The
indictment set out:
“
THAT
the accused is/are guilty of the crime of Rape (read with the
provisions of
Sections 51(2)
of the
Criminal Law Amendment Act 105 of
1997
)
IN THAT upon or
about 15/02/03 and at or near Ipelegeng in the Regional Division
North West, the accused did unlawfully and intentionally
have sexual
intercourse with a female person, to wit Evelyn van Koller without
her consent.”
[17] Nowhere is any
mention made that due to the fact that she was raped by 2 persons,
that
section 51(1)
of Act 105 of 1997 would apply.
[18] In S v EN
2014(1) SACR 198( SCA) Shongwe JA held at para14:
“
Life
imprisonment is the ultimate and most severe sentence that our courts
may impose; therefore a sentencing court should be seen
to have
sufficient information before it to justify that sentence.”
In
S v Makutu 2006(2)
SACR 582 (SCA)
Lewis
JA found at para 7:
“
However,
an accused faced with life imprisonment -the most serious sentence
that can be imposed—must from the outset know
what the
implications and consequence of the charge are. Such knowledge
inevitably dictates decisions made by an accused, such
as whether to
conduct his or her own defence; whether to apply for legal aid;
whether to testify; what witnesses to call; and any
other factor that
may affect his or her right to a fair trial.”
[19]
This case is distinguishable from
S
v Kolea 2013(1) SACR 409 (SCA)
as
the magistrate did not give the reasons for transferring the matter
to the High Court and did not indicate, as in Kolea’s
case,
that a sentence of life imprisonment should be considered.
[20] This court
cannot find in the circumstances of the present case that the
appellant had a constitutional fair trial and therefor
the sentence
of life imprisonment should be set aside. The appellant was at no
stage advised on which basis it would be concluded
that the
provisions of the Act would apply and that he could face life
imprisonment.
[21]
In
Machongo v S
(20344/14) [2014] ZASCA179 (21 November 2014)
Shongwe J A held at
paragraph 10:
“
It
is settled law that failure to forewarn or to mention the
applicability of the minimum sentence is a fatal irregularity
resulting
in an unfair trial in respect of sentence. The question is,
having come to the conclusion that a misdirection has been committed,
what next should the appeal court do/
The
answer is and has always been that the appeal court must consider the
sentence afresh.”
[22] The court has
to consider an appropriate sentence for the appellant afresh, taking
into consideration all the mitigating and
aggravating facts.
[23] According to
the social worker’s report the appellant was 27 years old at
the time of sentencing. The appellant left
school after grade 8 and
was employed by a cable installation company. He was not married and
lived with his father and mother
as the 5
th
of 6 siblings.
The appellant has previous convictions. On 6 September 1991 he was
convicted of robbery and sentenced to four strokes
with a light cane;
on 6 July 1992 he was convicted of theft; on 12 May 1993 he was
convicted of rape and sentenced to cuts with
a light cane and a
suspended sentence; on 5 January 1995 he was convicted of assault
with intent to do bodily harm and he was sentenced
to 180 days
imprisonment. The last conviction was on 3 April 1996 for assault
with intent to do grievous bodily harm and he was
sentenced to 180
days imprisonment. His last conviction was 7 years before he
committed the present crime.
The previous crime
of rape was committed when the appellant was 17 vears old.
[24] This crime was
not planned, but the appellant and his friend had been drinking at a
tavern when they grabbed the complainant
as she passed the tavern.
[25]
In
S v Dodo 2001(1)
SACR 594 (CC)
Ackerman
J held at paragraph 38:
“
To
attempt to justify any period of penal incarceration, let alone
imprisonment for life as in the present case, without inquiring
into
the proportionality between the offence and the period of
imprisonment, is to ignore, if not deny, that which lies at the
heart
of human dignity. Human beings are not commodities to which a price
can be attached; they are creatures with inherent and
infinite worth;
they ought to be treated as ends in themselves, never merely as means
to an end”
[26]
In
S v Swart
2004(2) SACR 370 (SCA)
Nugent
JA found at paragraph 12:
“
What
appears from those cases is that in our law retribution and
deterrence are proper purposes of punishment and they must be
accorded due weight in any sentence that is imposed.”
[27] In all the
circumstances and having regard to the seriousness of the crime, the
interest of society, the interest of the victim
and the interest of
the appellant the court finds that the prescribed sentenced of twenty
(20) years is too harsh in the present
circumstances and
disproportionate to the crime committed.
[28] The court finds
substantial and compelling circumstances due to the fact that the
previous conviction for rape took place when
the appellant was still
a juvenile. He is middle aged at present and will only be released
from prison at an advanced age.
[29] Rape is
prevalent in South Africa and a scourge in our society which should
be combatted in the interest of society, but the
appellant should not
be sacrificed on the altar of deterrence. The court is aware that
society and the women in our society demand
that these perpetrators
should be treated harshly, but the court has to balance the crime,
the perpetrator’s interest, society’s
interest and the
victim’s interest when determining a balanced sentence.
The court has
considered all the mitigating and aggravating circumstances and has
come to the conclusion that a sentence of 18 years
imprisonment is
deemed appropriate.
I therefore propose
the following order:
1. The sentence
imposed on 25 May 2008 is set aside;
2. The appellant is
sentenced to eighteen (18) years imprisonme
3 The sentence of
eighteen (18) years imprisonment is ante-dated to 25 May 2008
It is so ordered
C Pretorius
Judge of the High
Court
I agree,
M W Msimeki
Judge of the High
Court
I agree,
N B Tuchten
Judge of the High
Court
Case number:
A697/2014
Heard on: 13
February 2015
For the Appellant:
Adv Augustyn Instructed by
For the Respondent:
Adv Mnisi
Instructed by:
Director of Public Prosecutions
Date of Judgment: 19
February 2015