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[2015] ZAGPPHC 286
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Seedat v S (A547/12) [2015] ZAGPPHC 286; 2015 (2) SACR 612 (GP); [2015] 3 All SA 93 (GP) (12 May 2015)
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IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
[REPUBLIC OF
SOUTH AFRICA]
CASE NUMBER:
A547/12
DATE: 12 MAY 2015
ABOO BAKER
SEEDAT
...........................................................................................................
APPELLANT
AND
THE
STATE
.............................................................................................................................
RESPONDENT
JUDGMENT
MAVUNDLA J,
[1] The appellant,
63 years of age at the time of conviction and sentence, was convicted
at the magistrate Court for rape and sentenced
to 7 (seven) years
imprisonment on 2 February 2011.
[2] The appellant
brought an application for leave to appeal against both the
conviction and sentence, and simultaneously brought
an application
for leave to adduce further evidence in terms of
s309B
of the
Criminal Procedure Act 51 of 1977
. Leave to appeal against the
conviction and sentence was granted. However, the application for
leave to adduce further evidence
in terms of
s309B
of the
Criminal
Procedure Act 51 of 1977
was refused. Leave to appeal against the
said refusal was subsequently granted on petition.
[3] The appellant
was duly legally represented throughout the trial. He pleaded not
guilty to the charges against him. His plea
explanation as tendered
by his counsel was a denial that he had intercourse with the
complainant and that he had committed any
act of sexual penetration
with the complainant.
[4]
It is common cause that the appellant is a businessman, owning two
shops. It is also common cause that on the date in question
the
appellant went to the complainant's place to deliver a bed lamp. The
appellant offered to demonstrate to her that the lamp
was in a
working condition. It is also common cause that the complainant
agreed to the appellant's offer, and invited him to the
bedroom,
where he plugged the lamp and switched it on. According to the
complainant, satisfied that the lamp was working, as she
was about to
move out of the bedroom, was grabbed by the appellant who threw her
against the dressing table ("spielkas"),
pulled off her
trousers and panty, picked her up and threw her on her back. The
appellant penetrated her from behind, had anal
sexual intercourse
with her. Thereafter, he tuned her around and had frontal vaginal
sexual intercourse with her. After finishing,
the appellant then
left. The complainant ran outside screaming, but no one heard her
screams, and returned into the house. She
tried to phone the police
at Schweizer -Reneke, but her phone was not picked up. She sent her
daughter a missed call. When her
daughter later phoned her back, she
reported to her that the
latter
sent
her
the appellant to come rape her. The complainant did not report the
incident to the police until on Sunday.
[5] Ms. K[...]
K[...], is the daughter of the appellant, also testified. For
purposes of this judgment, I deem it not necessary
to chronicle her
evidence. It suffices to state that she substantially corroborated
the complainant's evidence that she reported
to her of the rape.
[6] The complainant
was examined by Dr. Nganda D.M. on the 22 June 2008, who compiled the
J88 form and recorded his clinical findings
as follows:
"After my
physical psychological and genital examination there was evidence
probable of dry penetration.
From genital organ
there was (inscription not legible) on (not legible) area;
From anus; there is
was traumatic lesion with penetration."
The J 88 on the
schematic vaginal and anus diagram it shows that there was abrasion
on the vaginal area and that the anus was inflamed.
[7]
The J88 was handed in by consent
of
the defence
as
exhibit B. It is instructive to record that counsel for the appellant
stated as follows: "From the side of the defence side
your
worship we admit the contents of J88 as EXHIBIT B in term of
section
220
of the
Criminal Procedure Act."
1
[8
]
Although the doctor who completed the J88
form
was
available he was however not called to testify by the State. The
magistrate in his judgment recorded that "from the form
J88
which was entered as EXHIBIT B the doctor did make his finding....the
clinical findings of the doctor were to the effect that
after the
physical secretor and genital examination there is evidence, possible
evidence of dry penetration. Also on the anus:
the doctor concludes
that there is some articulation. Unfortunately the handwriting is at
times not clear."
[9]
After the State closed its case, the appellant testified in his own
defence. Save what is recorded herein above as common cause
the
defence of the appellant was that after showing the complainant that
the lamp was working he left. He further said that the
complainant
was so extremely drunk that he decided not to ask her about the money
she owed him. He further said that on his arrival
at the
complainant's place he was seen by Mr. Butler, a neighbor to the
complainant. Butler also saw him when he left as he was
busy in his
garden.
2
Mr.
Butler was called as the defence witness, and confirmed seeing the
appellant arriving at the complainant's place,
3
but
denied seeing him leaving.
4
[10] The appellant
also called his son, Mr. J. Seedat. For purposes of this case, his
evidence does not assist in the resolution
of the issues in this
matter. He confirmed that the appellant had to deliver a lamp at the
complainant's place, but he did not
accompany him to the
complainant's place. Thereafter the appellant closed his case and was
convicted as charged.
[11] It is apposite
to deal with the appeal against the refusal for leave to lead further
evidence.
[12]
The evidence in respect of which leave is sought to be lead is that
of Dr. Mohamed Kajee and Dr. Kazeem Adesina Okanlomo. In
his
confirmatory affidavit Dr. Kazeem Adesina Okanlomo stated that he has
read the affidavit of Dr. M Kajeee and agrees with his
opinion.
However, the confirmatory affidavit of Dr. Kazeem Adesina Okanlomo
was deposed to and commissioned before Mr. Jan-Louis
Hattingh on the
08 February 2011.
5
[13] The affidavit
of Dr. Mohamed Kajee was deposed to and commissioned before Mr.
Mohamed Ashraf Essop on the 18 February 2011.
6
The confirmatory affidavit of Dr. Kazeem Adesina Okanlomo was clearly
deposed to much earlier than before that of that of Dr. Kajee,
came
to existence. In my view, Dr. Okanlomo could not have read the
affidavit of Dr Kajee before it could even come into existence,
and
therefore the conclusion is that he did not tell the truth but
committed perjury in alleging that he read it. His confirmatory
affidavit can therefore not be of any assistance to the court
assuming that it was to be lead as further evidence.
[14] The other
evidence sought to be lead is that of Dr Kajee who opined in his
affidavit as follows:
"5.7 The doctor
made a note on the J88 that there was evidence of probable "dry
penetration".
5.8 Three genital,
two rectal and unspecified numbers of oral swabs were taken during
the examination by the doctor. Subsequent
examination of these swabs
by the forensic services found no DNA.
6. In my respectful
opinion, it is noteworthy that the J88 form does not state that the
complainant suffered any other injuries
that would be consistent with
rape, for example, there was no bruising on any other parts of the
body of the complainant. I respectfully
state that it is improbable
that a 57 year old white lady who was forcibly raped and pressed with
her back against a dressing table
did not have any bruising on her
body. It is further extremely unlikely that she was raped for a
prolonged time without more serious
injuries to the perineum or other
parts of the body.
7
A further note in respect of the J88 is that the conclusion reached
by the examinant
(sic)
doctor
that, "dry penetration" could not be excluded. It is not
practice as I understand it for the doctors to comment
whether
penetration is as the doctor calls it, "dry" or otherwise.
I am of the view that the conclusion by the doctor
that there was dry
penetration needs to be clarified."
[15]
In the matter of
R
v Dhlumayo and another
7
the
Appellate Court held,
inter
olia,
that
an accused has an inherent right for reopening of his trial and lead
fresh evidence. Although the leading of evidence after
conviction and
on appeal is permissible, it is an indulgence, in my view, not there
for grabs, but granted on application under
exceptional
circumstances. The applicant for such relief, must satisfy the court
on cogent reasons why reopening should be allowed.
This would
invariably demand of the applicant for such indulgence, to furnish
cogent reasons why the evidence sought to be introduced
after
conviction,
could
not
be
adduced during the trial. The
evidence
sought
to be introduced at such a late stage must be relevant and have the
potential of altering the verdict arrived at by the trial
court. In
this regard vide
R
v De Jager
8
,
where
the Appellate Court held that the basic requirements for an
application for hearing of evidence on appeal, or more usual course
of setting aside the conviction and sentence and sending the case
back for the hearing of further evidence, are:
"(a) There
should be some reasonably explanation, based on allegations which may
be true, why the further evidence was not
led at the trial;
(b)
There should be a
prima
facie
likelihood
of the truth of the evidence;
(c) The evidence
should be materially relevant to the outcome of the trial."
[16]
In needs mentioning that the J88 which was handed in by consent, has
a schematic diagram showing that there was an abrasion
on the vagina
and that the anus was inflamed.
9
This
must be read with the clinical findings of the Dr. Nganda D.M. that:
"on the genital organ there was abrasion on the perennial
area
and that from anus there was traumatic lesion with penetration."
[17] In my view, the
evidence of Dr. Kajee, which is sought to be lead, cannot explain
away the clinical findings regarding abrasions
on the vagina and the
inflammation on the anus. More particular, the penetration on the
anus cannot be explained away. Besides,
Dr. Kajee did not challenge
the finding of the anal penetration. Besides, Dr. Kajee's conclusions
are merely speculative and would
not, in my view, contribute towards
the resolution of the important question, whether, the State has
proven its case against the
appellant beyond reasonable doubt, an
aspect I shall later herein below deal with. For this reason, I am of
the view that there
would be no purpose served were leave to lead
further evidence to be granted.
[18]
The magistrate refused to grant leave to lead further evidence
because he was not satisfied with the reason advanced why the
relevant evidence was not led during the trial. The reason neither
advanced, tersely put, was that the appellant's previous legal
representative at no stage told him nor discussed with him the
medico-legal reports relating to his trial. His present attorneys
have advised the appellant that the failure to lead the evidence, he
now seeks leave to lead, cannot be blamed on him. In his affidavit
he
has referred the court to various authorities,
inter
alia,
S
v
Charles
10
;
Beyers v Director of Public Prosecutions
11
and
S
v
Tandwa & Others.
12
[19]
It brooks no argument that the appellant, just like every accused
person, has a right to,
inter
alia,
be
legally represented, by one of his choice or provided by the State;
have a fair trial; as guaranteed by s35 of the Constitution.
13
[20] The question of
whether the appellant had a fair trial is a value judgment, to be
arrived at by looking through the trial record.
Perusal of the trial
record, in my view, shows that the State witnesses, in particular,
the complainant, were subjected to intensive
cross examination by the
defence counsel. It can hardly be said, in my view, that the then
legal representative of the appellant
was incompetent. Neither can it
be said that the appellant did not have a fair trial due to the
alleged incompetence on the part
of his counsel. On the contrary, in
my view, the counsel for the appellant demonstrated through his
intensive cross examination
of the State witnesses that he was a
well-grounded and seasoned practitioner, who is far from
incompetence. He can only be faulted
on choice of strategy, but this
does not help the appellant.
[21]
It is trite that an accused person has a right to demand from the
State to be provided with the contents of the docket, before
the
commencement of the trial. Failure by his attorneys to exercise this
right cannot be relied upon at a later stage when the
shoe pinches.
In the result, I am unable to fault the magistrate in his conclusion
that the reasons advanced by the appellant for
not leading the
evidence during the trial, is unsatisfactory. Of course, with regard
to a value judgment, just like a discretionary
judgment, it is
difficult to have it set aside on appeal, unless on record it is
demonstrably clear that there was misdirection
or irregularity on the
part of the officer making such a discretionary decision; vide
S
v Hadebe and others
14
)
R v Dhlumayo and another
15
.
In
my view, the appellant has not advanced any single reason, in what
respect the decision of the magistrate can be faulted. In
my view,
the appeal against the magistrate's refusal to grant leave to lead
further evidence must be dismissed for these reasons
as well.
[22] On the merits
of the appeal against conviction, I am of the view that the appeal
must also fail for the reasons mentioned herein
below.
[23]
The complainant
in
casu
was
a single witness on the essential aspect of the charge of rape. The
evidence of a single witness needs to be approached with
great
caution. The legal position was aptly stated by Makgoka J in the
matter of 5
v
Mayisela
16
as
follows:
"[7]
The issue in this appeal is whether or not there was penetration —
a key consideration which has a bearing on the
conviction. This
aspect is dependent on the evidence of CD, who was a single witness.
In terms of
s 208
of the
Criminal Procedure Act 51 of 1977
, an
accused may be convicted of any offence on the single evidence of any
competent witness. The court can base its findings on
the evidence of
a single witness, as long as such evidence is substantially
satisfactory in every material respect,
17
or
if there is corroboration
18
.
See further
R
v Mokoena
1956
(3) SA 81
(A) at 85;
RvT
1958
(2) SA 676
(A) at 676;
S
v
Sauls and Others
1981
(3) SA 172
(A) at 180E - G; and
S
v
Banana
2000
(2) SACR 1
(ZS) H
(2000 (3) SA 885).
[8]
Furthermore, CD was a child witness. When dealing with the evidence
of children, our courts have developed a cautionary rule
which is to
be applied to such evidence. The court must therefore have a proper
regard to the danger of an uncritical acceptance
of the evidence of a
child witness. See the rationale for this approach in
R
v Manda
1951
(3) SA 158
(A) at 163E - F. The state's case also consisted of
circumstantial evidence, as there is no direct evidence of
penetration. The
cardinal rules when it comes to circumstantial
evidence are trite, and were laid down in the well-known case of R v
Blom
19
,
namely:
'(1) the inference
sought to be drawn must be consistent with all the proved facts, If
it is not, then the inference cannot be drawn;
(2) the proved facts
should be such that they exclude every reasonable inference from them
save the one sought to be drawn. If they
do not exclude other
reasonable inferences, then there must be a doubt whether the
inference sought to be drawn is correct.'
[9] Back to the
facts of the present case. It was contended on behalf of the
appellant that the state had failed to prove that the
appellant
penetrated the complainant. Furthermore, so it was argued, there was
lack of medical corroboration of rape, viewed also
in light of the
fact that the complainant did not testify. The state supports the
conviction."
[10]
Before I consider the submissions in this regard, it is helpful to
restate the approach to be adopted by a court of appeal
when it deals
with the factual findings of a trial court. The proper approach is
found in the collective principles laid down in
R
v Dhlumayo and Another
20
by
the then Appellate Division. They are the following. A court of
appeal will not disturb the factual finding of a trial court,
unless
the latter has committed misdirection. Where there has been no
misdirection on fact by the trial judge, the presumption
is that his
conclusion is correct. The appeal court will only reverse it where it
is convinced that it is wrong. In such a case,
if the appeal court is
merely left in doubt as to the correctness of the conclusion, then it
will uphold it."
Vide
also
S
v
Hadebe
and
others.
21
[24]
The Supreme Court of Appeal in the matter of
S
v Ntsele
22
held
that: "the
onus
which
rested upon the State in a criminal case was to prove the guilty of
the accused beyond reasonable doubt—not beyond all
shadow of
doubt. The Court need not act only upon absolute certainty, but
merely upon justifiable and reasonable convictions, nothing
more and
nothing less. The Court further held that where the Court was dealing
with circumstantial evidence, it need not consider
every fragment of
evidence individually to determine how much weight it had to afford
it, it was the cumulative impression, which
all the fragments made
collectively that the Court had to consider to determine whether the
guilty of the accused has been established
beyond reasonable doubt.
The Court further held that the conclusion that the guilt of an
accused has been established is a factual
finding by the trial Court.
Where it cannot be shown that the trial Court has misdirected itself,
then the appeal court is not
entitled to interfere."
[25]
With regard to the aspect of inferences, the applicable principle is
to be found in
R
v Blom,
23
followed
by
R
v Reddy and Others
24
where
the Appellate Court held that: "The fact that a number of
inferences can be drawn from a certain fact, taken in isolation,
does
not mean that in every case the State, in order to discharge the
onus
which
rest upon it, is obliged to indulge in conjecture and find an answer
to every possible inference which ingenuity may suggest
any more than
the Court is called upon to seek speculative explanations for conduct
which on the face of it is incriminating.
[26]
The complainant,
in
casu was
a
single witness. In my view, she was corroborated by firstly her
daughter in so far as the fact that she reported the alleged rape
to
her. She testified that she was firstly penetrated from the back in
her anus. The uncontested evidence of the J88 shows that
the anus was
inflamed. The clinical examination of Dr. Nganda D. M. was that there
was anus penetration. The complainant also testified
that she was
penetrated frontally in her vagina. In this regard she is
corroborated by the fact that the J88 shows that there was
an
abrasion on her vagina and the anus was inflamed. The probative value
of this evidence corroborates the evidence of the complainant
that
she was penetrated on both canals. It needs mentioning that the
appellant was charged with contravention of
s3
of Act 32 of 2007, in
terms of which insertion of any body part into any oracle without
consent amounts to rape. This includes
vaginal and anal penetration.
In my view, on inferential basis and coupled with the evidence of the
complainant, the State proved
that there was penetration and
therefore the finding by the magistrate that rape was committed,
cannot be faulted, and this finding
cannot be disturbed by this
court.
[27] During cross
examination it was put to the complainant that on the day in question
she was inebriated, and that after the appellant
had left her place
without molesting her, she could have subsequently became so
inebriated that she was raped by someone else unknown,
and when she
subsequently sobered up, all she could remember was the appellant and
therefore concluded that he is the one who raped
her. It was further
stated that the defence will call a witness to confirm that the
complainant generally imbibes liquor to an
extent that she would get
so intoxicated to an extent that she would have to be carried to her
room. However no such witness was
called to buttress this speculative
and character assassination. The trial court in rejecting the version
of the appellant, took
into account his failure to call the witness
to confirm the character assassination of the complainant, coupled
with the contradictions
between the appellant's evidence and that of
his witness Mr. Butler. In my view, the rejection of the appellant's
version cannot
be faulted. I also find his version to be not
reasonably possibly true but false and was quite correctly rejected.
[28]
In the matter of
Tladi
v S
25
the
Supreme Court of Appeal held as follows:
"The
second issue in this appeal is whether the state proved that there
were two separate incidents of rape. In S v Blaauw
26
the
court said:
’
Mere
and repeated acts of penetration cannot without more, in my mind, be
equated with repeated and separate acts of rape. A rapist
who in the
course I of raping his victim withdraws his penis, positions the
victim's body differently and then again penetrates
her, will not, in
my view, have committed rape twice. This is what I believe occurred
when the accused became dissatisfied with
the position he had adopted
when he stood the complainant against a tree. By causing her to lie
on the ground and penetrating her
again after she had done so, the
accused was completing the act of rape he had commenced when they
both stood against the tree.
He was not committing another separate
act of rape.
Each case must be
determined on its own facts. As a general rule the more closely
connected the separate acts of penetration are
in terms of time (i.e.
the intervals between them) and place, the less likely a court will
be to find that a series of separate
rapes has occurred. But where
the accused has ejaculated and withdrawn his penis from the victim,
if he again penetrates her thereafter,
it should, in my view, be
inferred that he has formed the intent to rape her again, even if the
second rape takes place soon after
the first and at the same place.'
[My emphasis.]
[13]..... There is
no evidence from the complainant as to how the appellant raped her
for the second time. The complainant's evidence
does not suggest that
there was an interruption 2 in the sexual intercourse to constitute
two separate acts of sexual intercourse
and, therefore, two separate
acts of rape. The complainant's evidence suggests that the sexual
acts were closely linked and amount
to a single continuing course of
conduct. There is no suggestion in her evidence that there was any
appreciable length of time
between the acts of rape to constitute two
separate offences. The evidence against the appellant is therefore
limited and is insufficient
to establish his guilt on two separate
counts of rape. The trial court should have analyzed the state's
evidence and should have
concluded that only F one act of rape had
been proved beyond a reasonable doubt. Counsel for the state was
constrained to concede
that no evidence was presented in the trial
court to sustain a conviction on the second count. Consequently there
was no basis
for the conviction on the second count of rape. And it
falls to be set aside."
[29]
In
casu,
the
evidence of the complainant, which is corroborated by the clinical
examination, revealed that there were two instances of penetration,
firstly anally and secondly vaginally. In my view, each instance of
penetration is predicated on a separate mental state,
animus,
distinct
from the other, although the acts are within the same space of place,
time and presence of the perpetrator and the victim.
In the matter of
5 i/
Willemse
27
where
there was anal and vaginal penetration during the rape, Griffiths J
held with regard to the respective acts of penetration
that "By
doing so, in my view, the applicant formed a completely separate
intent to rape the complainant in a manner which
was different to
that in which he had initially raped her and is a strong indication
that this was a separate form of rape, even
though it may have
occurred reasonably close in the time to the initial act."
[30] In my view, the
appellant committed two separate acts of rape. He should have been
convicted of repeat rape in terms of s51
(1) of Act 105 of 1997. It
is unfortunate that the charge the appellant pleaded not guilty to,
only made mention of vaginal penetration.
After the complainant
testified, the State did not apply to have the charge amended.
Neither did the magistrate after having heard
evidence, deem it
necessary to address the issue of repeat penetration, nor did he
convict the appellant on repeat rape. Besides,
during the appeal,
both counsel for the State and the defence were not invited to
address this Court on the aspect of repeat rape.
It would therefore
be a travesty of justice to at this belated stage, convict the
appellant on repeat rape which attracts life
sentence alternatively a
much longer imprisonment sentence. In the premises, this Court can
only confirm, as it does, the conviction
of appellant as found by the
magistrate, without escalating the conviction he ought to be have
been convicted of, as pointed out
herein above.
[31]
The conviction of the appellant, as it stands, attracted a minimum
sentence of 10 years imprisonment.
28
The
appellant was 63 years old at the time of conviction and married and
has no minor children. The trial court took into account
the fact
that the appellant: was of advanced age and his health was failing
him and he needed medical treatment; his previous convictions
were
ten years old and regarded him as a first offender; appellant was
willing to pay the complainant. The trial court took into
account the
fact that the complainant testified that she did not want the
appellant to be sent to prison but pleaded that he must
buy her a
Toyota motor vehicle. She also wanted monetary compensation payable
as follows first payment in the amount of R5000.00
followed by R2500.
00 per month for 8 years. The total amount would be R245 000. 00. The
appellant was willing to make such payment.
The trial court found
that
in
cosu,
the
above mentioned factors amounted to substantial and compelling
circumstances warranting a lesser sentence. The trial court sentenced
the appellant to 7 years imprisonment.
[32]
Concerning the approach to be followed by the appeal court when
dealing with sentence, it was aptly chronicled by Makgoka J
in 5
v
Mayisela
29
as
follows:
"[13]
... It is trite that the imposition of sentence is pre-eminently a
matter within the judicious discretion of a trial
court. The appeal
court's power to interfere with a sentence is circumscribed to
instances where the sentence is vitiated by an
irregularity,
misdirection or where there is a striking disparity between the
sentence and that which the appeal court would have
imposed had it
been the trial court. See generally: S v
Petkar
1988
(3) SA 571
(A); S v
Snyder
1982
(2) SA 694
(A); 5
v
Sadler
2000
(1) SACR 331
(SCA) ([2000]
2 All SA 121)
; and
Director
of Public Prosecutions, Kwazulu-Natal v P
2006
(1) SACR 243
(SCA)
(2006 (3) SA 515
;
[2006] 1 All SA 446)
para 10.
[14]
As to the nature of the misdirection which entitles a court of appeal
to interfere, the following was stated in
S
v Pillay
1977
(4) SA 531
(A) C at 535E - F:
'Now the word
"misdirection" in the present context simply means an error
committed by the Court in determining or applying
the facts for
assessing the appropriate sentence. As the essential inquiry in an
appeal against sentence, however, is not whether
the sentence was
right or wrong, but whether the Court in imposing it exercised its
discretion properly and judicially, a mere
misdirection is not by
itself sufficient to entitle the Appeal Court to interfere with the
sentence; it must be of such a nature,
degree, or seriousness that it
shows, directly or inferentially, that the Court did not exercise its
discretion at all or exercised
it improperly or unreasonably. Such
misdirection is usually and conveniently termed one that vitiates the
Court's decision on sentence.'
[33] With regard to
sentence, the attack on behalf of the appellant was not so much on
the custodial sentence of 7 years imprisonment
imposed, but rather
that the trial court erred in not resorting to the restorative
justice alternative mechanism, and not ordering
the appellant to
compensate the complainant, in accordance with her request. It was
further submitted that the appellant was of
seasoned age and not in
good health, and a first offender and willing to pay the complainant
a substantial amount and that the
magistrate failed to place
sufficient weight to all these aspects. This Court was exalted to
exercise its discretion and suspend
the entire sentence imposed and
order the appellant to compensate the complainant in an amount the
court would consider just in
the circumstances of the case.
[34] I must hasten
to point out that during the appeal the State did not vehemently
oppose the consideration of restorative compensation.
[35]
Although the evidence of the complainant revealed that there was
anal
and
vaginal penetration, which constitutes repeated acts of penetration,
thus attracting the imposition of life imprisonment,
30
the
fact of the matter is that, he was convicted of rape attracting a
prescribed minimum sentence
of
10
years imprisonment
31
and
sentenced to 7 years imprisonment after substantial and compelling
circumstances were found to exist.
[36]
in the matter of
S
v Jimenez
32
it
was held that: "even where the sentence does not seem
inappropriate, a Court on appeal is entitled to consider the sentence
afresh, if there has been material misdirection in the exercise of
the sentencing discretion (See, for example, S
v
Petkar
1988
(3) SA 571
(A); S
v
Siebert
1998
(1) SCAR 554
(SCA).)"
[37]
Rape is undoubtedly a serious crime which violates the dignity,
security, freedom and wellbeing of the victim. The wave of
rape cases
in not abating, but in the increase
33
.
It is a crime which calls for long imprisonment terms.
[38] The magistrate
took into account the following facts: that the appellant was 63
years old, and of ill health, a first offender,
and that the
complainant under oath stated that she wanted the accused not to be
sentenced to imprisonment but be ordered to buy
her a motor vehicle
and pay her, and concluded that substantial and compelling
circumstances were present justifying departure
from imposing the
prescribed minimum sentence and impose a lesser sentence. It needs to
be borne in mind that there is no definition
of what substantial and
compelling circumstances are. These are to be determined on the facts
of a particular case. In the result,
the magistrate cannot be
criticized in his finding that the above mentioned facts are
substantial and compelling circumstances,
warranting that he departs
from imposing the prescribed minimum sentence of 10 years, and in the
exercise of his discretion imposed
a sentence of 7 years
imprisonment.
[39]
The trial court in refusing to impose a sentence which accords with
restorative justice, was of the view that s300 of the CPA
does not
permit him to do so. In this regard the magistrate was incorrect
because this section deals with compensation where there
is damage or
loss to any property, which is not the case
in
casu.
I
am therefore of the view that the magistrate misdirected himself in
declining to consider the restorative justice mechanism premised
on
s300, and failed to consider other avenues, available to him, as it
would be shown herein below. In as much as sentencing is
within the
discretion of the sentencing officer, where the exercise of the
discretion is flawed, this Court is at large to interfere.
[40] It would seem
that the magistrate did not consider s297 which provides that:
'(1)- Where a court
convicts a person of any offence, other than an offence in respect of
which any law prescribes a minimum punishment,
the court may in its
discretion—
(a) Postpone for a
period not exceeding five years the passing of sentence and release
the person concerned—
(i) On one or more
conditions, whether as to—
(aa) compensation;'
[41] I take note of
the fact that of the Criminal Amendment Act 105 of 1997 prescribes as
follows:
'(5)
The operation of a minimum sentence imposed in terms of this section
shall not be suspended as contemplated in section 297(4)
of the
Criminal Procedure
Act,
1977
(Act 51 of 1977).'
[42]
In my view, once the magistrate found that
in
casu
substantial
and compelling circumstances, exists, he was at large to exercise his
discretion and impose a lesser sentence. The imposition
of a lesser
sentence was no longer under the prescribed minimum sentencing
mechanism. His discretion was not therefore to be exercised
within
the confines of both s51 of the Act 51 of 1977. In
S
v Mabena
2012
(2) SACR 287
(GIMP) the Court held that:
"24.5
Sound penal policy requires consideration of a broader range of
sentencing options, from which appropriate option can
be selected
that best fits the unique circumstances of the case before the court
and needs to be to be victim-centered."
34
[43]
Borrowing from what Holmes J.A said in the matter of
S
v Rabie
35
that:
"One does not lightly countenance the imprisonment of a man in
the afternoon of his years. If one were to consider the
crime only,
one might have in mind a fairly long term of imprisonment. If one
were to consider the mitigating factors only, one
might have in mind
a fine only. In letting the punishment fit the criminal and the
crime, one must also be fair to society. On
balance I think that, had
I been the trial Judge, I might have suspended the whole of the
sentence of imprisonment."
[44]
In the matter of
S
v Maluleke
36
Bertelsmann
J held that that:
"[26]
Restorative justice has been developed by criminal jurists and social
scientists as a new approach to dealing with crimes,
victims and
offenders. It emphasizes the need for reparation, healing and
rehabilitation rather than harsher sentences, longer
terms of
imprisonment, adding to overcrowding in jails and creating greater
risks of recidivism.
While improving the
efficiency of the criminal justice system is necessary, applying
harsher punishment to offenders has been shown
internationally to
have little success in preventing crime. Moreover, both these
approaches are flawed in that they overlook important
requirements
for the delivery of justice, namely:
•
considering
the needs of victims;
•
helping
offenders to take responsibility on an individual level; and
•
nurturing
a culture that values personal morality and encourages people to take
responsibility for their behaviour.
Considering that
crime rates in South Africa remain high and that government's focus
appears to be on punishment rather than justice,
a different approach
is needed."
[45]
In the matter of
S
v Thabethe
37
where
the rape victim was 15 years of age, both she and her mother having
been dependent and staying with the accused, Bertelsmann
J held that
restorative justice finds application not only in minor rape cases
but also in grave ones, and imposed a sentence often
years suspended
for a period of five years on very strict conditions,
inter
alia,
that
the accused continues to maintain both the complainant and her
mother.
[46]
Although the State successfully appealed against the imposed
sentence, in the matter of
Director
of Public Prosecutions, North Gauteng v Thabethe
38
,
Bosielo
J cautioned as follows:
"[20]
Although restorative justice received a somewhat lukewarm reception
by the judiciary, starting tentatively in
S
v Shilubane
2008
(1) SACR 295
(T), it has, in the last few years, grown in its stature
and impact — it has even received the approval of the
Constitutional
Court in
Dikoko
v Mokhatla
2006
(6) SA 235
(CC)
(2007 (1) BCLR 10)
;
S
v M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2007
(2) SACR 539
(CC) (2008 (3) H SA 232;
2007 (12) BCLR 1312)
; and The
Citizen 1978 (Pty) Ltd and
Others
v McBride (Johnstone and Others, Amici Curiae)
2011
(4) SA 191
(CC). Restorative justice as a viable sentencing
alternative has been accorded statutory imprimatur in the
Child
Justice Act 75 of 2008
, in particular
s 73
thereof. I have no doubt
about the advantages of restorative justice as a viable alternative
sentencing option provided it is applied
in appropriate cases.
Without attempting to lay down a general rule I feel obliged to
caution seriously against the use of restorative
justice as a
sentence for serious offences which evoke profound feelings of
outrage and revulsion amongst law-abiding and right-thinking
members
of society. An ill-considered application of restorative justice to
an inappropriate case is likely to debase it and make
it lose its
credibility as a viable sentencing option. Sentencing officers should
be careful not to allow some overzealousness
to lead them to impose
restorative justice even in cases where it is patently unsuitable. It
is trite that one of the essential
ingredients of a balanced sentence
is that it must reflect the seriousness of the offence and the
natural indignation and outrage
of the public. This is aptly captured
in the trite dictum by Schreiner JA in
R
v Karg
1961
(1) SA 231
(A) at 236A - C where he stated:
'While the deterrent
effect of punishment has remained as important as ever, it is, I
think, correct to say that the retributive
aspect has tended to yield
ground to the aspects of prevention and correction. That is no doubt
a good thing. But the element of
retribution, historically important,
is by no means absent from the modern approach. It is not wrong that
the natural indignation
of interested persons and of the community at
large should receive some recognition in the sentences that Courts
impose, and it
is not irrelevant to bear in mind that if sentences
for serious crimes are too lenient, the administration of justice may
fall
into disrepute and injured persons may incline to take the law
into their own hands. Naturally, righteous anger should not becloud
judgment. SNYMAN, A.J., was bringing home to the appellant and other
persons the seriousness of the offence and the need for a
severe
punishment, and I can find nothing in his remarks to show that he
gave undue weight to the retributive aspect.'
E
See also
S v
Nkambule
1993
(1) SACR 136
(A) at 147c - e;
S
v Mhlakaza and Anotherl997
(1)
SACR 515 (SCA) ([1997]
2 All SA 185)
at 519d - e; and S
v
Di
B/as/1996
(1) SACR 1 (A) at lOf-g."
[47]
It is trite that in determining what an appropriate sentence should
be, the court will take into account,
inter
alia,
the
gravity of the offence, the interest of society, the retributive
aspects, rehabilitation, deterrence, and the interest of the
victim,
in cases such as
in
casu,
and
the interest and personal circumstances of the offender. It is
generally a balancing act exercise the court embarks upon, without
overemphasizing one aspect against the others.
[48] Deterrence is
also an important issue which, the restorative justice seeks to
achieve. Regard being had to the desire of the
complainant, the
seasoned age of the appellant, I am of the view that the
circumstances of this case, call for resorting to restorative
justice, and make a compensatory award, within the frame work of the
existing sentencing mechanism.
[49] Once, it is
found that the magistrate was no longer enjoined to sentence the
accused in terms of the minimum sentencing mechanism;
he was at large
to suspend the imposition of sentence for 5 years, and make a
restorative justice award. I am of the view that
the appellant should
be ordered to compensate the complainant, a solace amount. In my
view, the amount suggested by the complainant,
as referred to herein
above, although it would seem that the appellant was willing to agree
thereto to, is rather excessive. There
is nothing showing how the
amount of R245, 000. 00 is arrived at. Compensatory awards are
generally difficult to determine. They
are generally a guess work,
within the discretion of the court. In the circumstances of this
case, taking into account the fact
that the appellant was seemingly
inclined to agree to the complaint's proposal, I am inclined, in the
exercise of my discretion,
to determine the compensatory award in the
amount of R100. 000. 00.
[50] In the result,
the following order is made:
1. That the appeal
against is dismissed and the conviction is confirmed;
2. That the appeal
against sentence is upheld and the sentence of 7 years is set aside
and substituted with the following;
"That the
sentencing of the accused is suspended for a period of 5 years on the
following conditions:
(i) That the accused
pays the complainant a total amount of R100. 000. 00 as follows:
(a) R10, 000. 00
within 10 (ten) days of the delivering of this order;
(b) R2500. 00 per
month to be paid on or before 7
th
of every subsequent
month until the full payment of the total amount R100 000. 00
mentioned herein above.
(c) That all the
above mentioned amounts shall be paid into the bank account of the
complainant the details of which to be provided
to the appellant by
the complainant, within 10 days of the grant of this order.
N.M. MAVUNDLA
JUDGE OF THE HIGH
COURT
I AGREE
S STRAUSS
ACTING JUDGE OF
THE HIGH COURT
DATE OF HEARING : 23
APRIL 2015
DATE OF JUDGMENT: 12
MAY 2015
APPICANT'S ATT :
PRETORIA JUSTICE CENTRE.
APPLICANT'S ADV :
ADV. M.M. HODES SC
RESPONDENTS' ATT :
DIRECTOR OF PUBLIC PROSECUTIONS PRETORIA
RESONDENT'S
ATT : ADV J.J. KOTZE
1
Paginated
page 120 lines 10-19.
2
Paginated
page 143 lines 4-9.
3
Paginated
page 158 lines 13-24.
4
Paginated
pagel59 lines 2-5.
5
Vide
paginated page 28 of the motion application.
6
Vide
paginated page 20 of the motion application
7
1948
(2) SA 677
(A).
8
1965
(2) SA 612
at 613B-F.
9
Paginated
page 22 of the notice of motion and paginated page 33 of the record.
10
2002
(2) SACR 492
at 493b-d.
11
2003
(1) SACR 164
at 168b.
12
2008
(1) SACR 613
(SCA) at 620g-621b.
13
S
v
Tandwa
& Others (supra)
at
620 para [7]
14
1997
(2) SACR 641
(SCA) at 645E-F.
15
1948
(2) SA 677(A).
16
2013
(2) SACR 129
(GNP) at 132f-133e
17
R
v Mokoena
1932 OPD 79
at 80.
18
S
v Gentle
2005 (1) SACR 420
(SCA).
19
1939
AD 188
at 202-203.
20
1948
(2) SA 677(A).
21
1997
(2) SACR 641
(SCA) at 645E-F.
22
1998
(2) SACR 178
(SCA).
23
Vide fn 18
supra
24
1996
(2) SACR 1
(A).
25
2013
(2) SCAR 287
(SCA) at para [12],
26
1999
(2)SACR 295 (W) at 300
a-d.
27
2011
(2) SACR 531
(EGG) at para [17] - [19],
28
S51(2)(b)
read with
Part III
of the
Criminal Law Amendment Act 105 of 1997
.
29
2013
(2) SACR 129
(GNP) at 133i-134e.
S51(l)
and
Part 1
and
Part 2
of the
Criminal Law Amendment ACT 105 of 1997
.
30
S51
(1) read with
Part 1
of Schedule 2 of the
Criminal Law Amendment Act
105 of 1997
.
31
S51(2)(b)
read with
Part III
of the
Criminal Law Amendment Act 105 of 1997
.
32
2003
(1) SACR 507
(SCA).
33
Vide
S v Matjitji
2011 (1) SACR 40
(SCA) at 53 53 c-d.
34
In
this regarding citing S v
Matyityi
20111
(1) SACR 40 (SCA) para 16.
35
1975
(4) SA 855
(A) at 865 A.
36
2008(1)
SACR 49 (T) at 52.
37
2009
(2) SCAR 62
(T).
38
2011
(2) SACR 567.