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[2015] ZAGPPHC 547
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Mahlangu v S (A382/2014) [2015] ZAGPPHC 547 (17 July 2015)
IN THE GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: A382/2014
In
the matter between:
MBONGISENA MZWAKHE MAHLANGU
Appellant
And
THE STATE
Respondent
JUDGMENT
JANSEN J
[1]
On 7 March 2013 appellant was convicted on
a count of rape of a minor girl (then five years old) in the Regional
Court held at Ermelo
by the learned magistrate Mr S Hallat.
[2]
On the 2
nd
of May 2013 the appellant was sentenced to 20 years imprisonment in
terms of
section 51(2)
of
the
Criminal Law Amendment Act 105 of 1997
, which prescribes a
minimum sentence of 15 years imprisonment.
The
appellant’s
name was to
be entered into the register for sexual offences. The appellant
was declared
unfit to possess a fire-arm
in terms of
section 103
of Act 60 of 2000
[3]
The appellant was 17 years old when he
committed the offence, a fact which the magistrate and the High Court
seemed to have overlooked.
In terms of
section 84(1)(b)
of the
Child Justice Act 75 of 2008
, the appellant has an automatic right of
appeal. Thus, the magistrate erred in denying the appellant
leave to appeal in respect
of conviction and sentence and the High
Court in granting leave to appeal against sentence only.
[4]
The point was taken
in
limine
that the
mediator, who assisted the complainant in answering questions, was
not sworn in. It was argued that this was an
irregularity.
When regard is had to the function of a mediator, it is to assist a
child complainant in understanding questions
posed to her and the
mediator, in no instance, furnishes the answer given by the child
witness. As the questions posed and
the answers are recorded, a
court can immediately ascertain when a mediator is paraphrasing or
restating a question or answer inaccurately.
Thus the mediator
is not furnishing any evidence. Although it is clearly
preferable that a mediator be sworn in, this seems
to be more of a
precaution to alert a mediator to the grave repercussion of
misinterpreting or misrepresenting questions posed,
rather than a
necessity.
[5]
In the case of
S
v Booi and Another
2005 (1) SACR 599
(B)
it was regarded as a material irregularity where the names,
qualifications and the oath or affirmation of an intermediary were
not recorded. An intermediary was placed on an even keel with a
district surgeon, a pathologist or a police officer.
This
cannot be correct. An intermediary does not give evidence.
[6]
The argument was that
the intermediary was also an interpreter and thus a species of
“expert witness” and reliance was
placed on the case of
S
v Motaung
2007 (1) SACR 476
(SE)
.
However, in the
Motaung
matter, even though it was held that a failure to swear in an
intermediary was an irregularity, it was further held that it did
not
per se
render the witness’s evidence inadmissible, because it did not
necessarily mean that the proceedings were not in accordance
with
justice.
[7]
Furthermore in
S
v QN
2012
(1) SACR 380
(KZP)
,
it was held not to amount to an irregularity when an intermediary is
not sworn in. It was held that it was not apposite
to liken an
intermediary to an interpreter and although the best route to follow
was to swear in an intermediary, the failure to
do so did not
constitute an irregularity. A mediator does exactly what her
epithet depicts – she mediates the questions
put, not the
answers.
[8]
I am in agreement with
the authorities which hold that the failure to swear in an
intermediary cannot vitiate the proceedings.
[9]
The point
in
limine
is therefore
dismissed.
[10]
Having had due regard to the evidence of
the five-year-old complainant, a young friend of the complainant, who
was nine years old,
and who came looking for her, in the company of a
friend, and taking into account the evidence of the appellant, I am
of the view
that the state has proved its case beyond a reasonable
doubt. I state this based upon the following analysis of the
evidence.
[11]
The appellant assisted in a shop
(“tuck-shop”), which was part of a RDP house, and the
complainant often visited the
shop. When the complainant
arrived at the shop during September 2010 the appellant pulled her
into the kitchen or dining
area and raped her.
[12]
The complainant testified convincingly in
all material respects and did not deviate from her version. Although
a single witness
and although very young, she was a credible witness,
as observed by the magistrate. Even though she only told her
mother
long afterwards (three years later) what had happened, she
immediately told her friends who came looking for her what had
transpired
in the tuck-shop.
[13]
In Trynie Boezaart (ed)
Child
Law in South Africa
Juta 2009 at page 580 the
following is stated: —
“
The
legislature has recently addressed another aspect that has often
caused misunderstanding amongst judicial officers, namely children’s
delayed disclosure of sexual abuse. In order to rectify the
erroneous assumption that when a child has been abused, the very
first thing he or she will do is to disclose the abuse, the following
section was enacted:
In
criminal proceedings involving the alleged commission of a sexual
offence, the court may not draw any inference only from the
length of
any delay between the alleged commission of such offence and the
reporting thereof.
A
finding of untruthfulness of a child’s allegation of sexual
abuse may thus not solely depend on the fact that a considerable
time
has elapsed since the abuse happened and the disclosure thereof.
This is in recognition of research that indicates disclosure
of a
gradual process. In addition, many factors may influence the
disclosure process such as the perpetrator’s threats
to silence
the child, the child’s shame or in intra-familial cases of
abuse the non-abusing parent may not want disclosure
for various
reasons such as economic or emotional dependency on the perpetrator.
”
[14]
Something was sought to be made of the
fact that the door of the shop was differently described by the
complainant and her friend
(in that it was contended by the one that
one could see through the safety door, and by the other that one
could not as it was
a steel door). Nothing turns on this.
[15]
The complainant’s evidence was
consistent with her friend’s testimony. The friend did
not witness the incident
but went to look for the complainant at the
tuck-shop as she had not returned home. She took a friend
along. When the
two friends arrived at the tuck-shop the door
was closed, which was unusual as it was always open during the week.
The one
friend then knocked and the appellant opened the door.
When she asked the appellant where the complainant was, he remained
silent. She immediately noticed that the buttons of the
appellant’s trousers were open. As they were leaving
the
complainant exited in a frightened state with her skirt twisted. The
complainant told her two friends that appellant
had dragged her to
the dining room and raped her.
[16]
The appellant was not a credible witness.
It was put to the complainant by the appellant’s legal
representative that
the complainant had allegedly falsely accused the
appellant of raping her on a previous occasion. Whereas, of her
own volition,
the complainant testified upfront that he had only
raped her on one occasion. Later on the appellant proffered a
version
that the complainant's family had fabricated the evidence of
rape against him, a version never put to the complainant by the
appellant’s
legal representative.
[17]
The mother also testified that the aunt,
who seemed to be the complainant's main caregiver, had heard from the
complainant's friends
that she had been raped and hence she enquired
about it and the complainant told her that she had been raped.
It was sought
to be argued on behalf of the appellant that the fact
that the complainant had reported the rape so late to her mother had
to be
taken into consideration. There is no merit in this
contention as
section 59
of the
Criminal Law (Sexual Offences
and Related Matters) Amendment Act 32 of 2007
Children's Act 38 of
2005
stipulates that this fact may not be taken into consideration.
Furthermore, she reported it immediately to her friends. It
was
further sought to be argued that her evidence should be doubted as
she had allegedly reported two incidents of rape.
However, of
her own volition, as set out above, she made it clear that she was
raped only once by the appellant.
[18]
It was also sought to be argued that the
wrong appellant was before the court because of the different names
used by the appellant.
It is not unusual to have nicknames. In
the appellant’s heads of argument the accused is referred to by
the name
of Mbonisela, whereas the appellant conceded that his name
was Mbongiseni. Sibongeseni was the name used by the complainant.
Clearly his real nickname was Mbongiseni whereas his birth
certificate depicts him as Mzwake Norman Mahlangu. It was clear
that everybody knew that Sibongeseni was a reference to the appellant
and this defence is similarly without merit. This is
so,
particularly because the appellant admitted that he knew the
complainant very well. In any event, the prosecutor and
the
magistrate clearly accepted that it was not in dispute that
Sibongeseni was a reference to the accused Mbongiseni.
[19]
After the incident the complainant was taken to a
forensic nurse. From the J88 report, it was clear that her
hymen had been
perforated, which suggests vaginal penetration.
[20]
A pre-sentencing report was obtained from the
Department of Social Welfare which demonstrated that the complainant
had suffered
severe emotional and social trauma as a result of the
rape incident such as: —
[20.1]
Phobia of being alone;
[20.2]
Low self-esteem;
[20.3]
Decline in school performance;
[20.4]
Over sensitivity;
[20.5]
Withdrawal; and
[20.6]
Fear of men.
[21]
The complainant was a happy child and had good
relationships within the family and with her peer group before the
incident.
Since the incident the complainant’s school
work has suffered and she can hardly cope at school. The
complainant also
struggles to sleep at night and to venture outside
the house when it is dark. She fears being alone and she cannot
sleep
alone. She has become very quiet and shy. She also
indicated that she is ashamed of what happened to her and is also
ashamed that the other children in the neighbourhood are aware of the
incident and what happened to her.
[22]
A report was obtained
from a senior probation officer, who emphasised that the appellant
did not acknowledge the charges against
him. What weighed with
the probation officer was that the complainant trusted the appellant
as that he was her uncle.
However, the probation officer paid
lip service to the fact that the age of an accused should be taken
into account and ruled out
a fine, or a suspended sentence even
though he was a first time offender based on the seriousness of the
crime. Direct imprisonment
was recommended as, according to the
probation officer, this option would prevent the appellant “
from
committing further crime
”.
[23]
The magistrate failed
to take into consideration the Constitutional prescript set out in
section 28(2) of the Constitution
of the Republic of SA, 1996
that “
(a)
child’s best interests are of paramount importance in every
matter concerning the child
”.
[24]
It is clear that a
minimum sentence should not be applicable to children aged 16 and 17,
as was pertinently held in the constitutional
case of
Centre
for Child Law v Minister of Justice and Constitutional Development
and Others
2009 (6) SA 632
(CC)
.
In the majority judgment of this case Cameron J made the following
order: —
“
1.
It is declared that sections
51(1)
and
(2) of the
Criminal
Law Amendment Act 105 of 1997
, as amended by the
Criminal
Law (Sentencing) Amendment Act 38 of 2007
, are inconsistent with
the Constitution and invalid, to the extent that they apply to
persons who were under 18 years of age at
the time of the commission
of the offence.
2.
It is declared that:
i.
Section
51(6)
of
the
Criminal
Law Amendment
Act
105 of 1997
, as amended by the
Criminal
Law
(Sentencing)
Amendment Act 38 of 2007
, is inconsistent with the Constitution
and invalid; and
ii.
To remedy the defect,
section
51(6)
of
the
Criminal
Law Amendment Act 105 of 1997
, as amended by the
Criminal
Law (Sentencing) Amendment Act 38 of 2007
, is to read as though
it provides as follows:
“
This
section does not apply in respect of an accused person who was under
the age of 18 years at the time of the commission of an
offence
contemplated in subsection (1) or (2).
”
[25]
As stated in SS
Terblanche
Guide to
Sentencing in South Africa
2
nd
edition LexisNexis 2007 at 3.7.2: —
“
This
provision creates a second category of young offenders: those who
were 16 and 17 years of age when the offence was committed.
As
a general principle, this category should be treated in the same way
as children under 16 years of age. Accepting this
approach did
not come easily. In fact, this provision has been the object of
a remarkable range of judgments, and has only
recently been settled,
in Brandt v S
[2005] 2 All SA 1
(SCA).
The
essence of this judgment is that the minimum sentences prescribed in
the Act are not applicable to these offenders, unless the
court
decides, on the basis of the particular circumstances of the case,
that they should be applied. In reaching this decision
the
court found that the Act clearly distinguishes child offenders from
adult offenders. In the case of adult offenders the
starting
point is the prescribed sentences. But with children “the
court starts with a clean slate”. Nevertheless,
it can
impose the sentences prescribed in section 51(1) or (2).
If the court “decides” to impose these sentences,
it has
to give reasons for its decision. It also follows that the
“‘substantial and compelling’ circumstances
formula
finds no application to
[this
category of]
offenders.
”
[26]
If the trial court
committed a misdirection of the nature and extent indicated in
S
v Pillay
1977 (4) SA 531
(A)
,
it means that the presiding officer did not properly exercise the
discretion imposed on him to decide on an appropriate sentence.
The relevant portion in
S
v Pillay
reads
as follows: —
“
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 a misdirection is usually and conveniently termed
one that vitiates the Court's
decision on sentence.
”
[27]
When the Constitutional
Court handed down its judgment in the
Centre
for Child Law v Minister of Justice and Constitutional Development
and Others
supra
,
section 77(2)
of the
Child Justice Act (then
still in the format
of a Bill) remained as it had not yet been approved by Parliament
when the court
a quo
heard the matter. (Subsequently of course,
section 77(2)
has
been deleted from the
Child Justice Act by
section 4(a) of the
Judicial Matters Amendment Act 14 of 2014.)
[28]
In general, however, it is clear that it can be
assumed that the minimum sentencing regime does not apply to 16 and
17 year old
children given the provisions of section 28(1)(g) of
the Constitution which provides that a child may only be detained as
a measure of last resort.
[1]
Sentence
:
[29]
The appellant was
sentenced to 20 years imprisonment. Given the age of the child,
and because he was a first offender, it
could not be stated, as was
done by the probation officer, that only a sentence of direct
imprisonment was warranted.
[30]
Rather, the appellant
should have been sentenced in terms of section 276(1)(i) of the
Criminal Procedure Act read with
section 77(3)
and (4)(b) of the
Child Justice Act 75 of 2008
to a term of imprisonment.
However,
section 276(1)(i)
relates only to sentences of five
years.
[31]
It was clear that the
magistrate had seen his surplus of rape cases and deemed it
inappropriate that the child should serve a lifelong
sentence of
trauma and the appellant not, similarly, serve a long term of
imprisonment. However, it is perturbing that not
only the
magistrate but also the legal representative were unaware of the
Constitutional Court case of
Centre
for Child Law v Minister of Justice and Constitutional Development
and Others
supra
,
the constitutional mandate and the
Child Justice Act 75 of 2008
.
[32]
The dictum in
S
v Nkosi
2002
1 SA 494
(WLD)
at
506F–I is as apposite: —
“
The
following principles are applicable in guiding a court's discretion
in deciding on the suitability of an appropriate form of
punishment
for a child offender: (i) Wherever possible a sentence of
imprisonment should be avoided, especially in the case of
a first
offender. (ii) Imprisonment should be considered as a measure of last
resort, where no other sentence can be considered
appropriate.
Serious
violent crimes would fall into this category
.
(iii) Where imprisonment is considered appropriate it should be for
the shortest possible period of time, having regard to the
nature and
gravity of the offence and the needs of society as well as the
particular needs and interests of the child offender.
(iv) If at all
possible the judicial officer must structure the punishment in such a
way as to promote the rehabilitation and reintegration
of the child
concerned into her or his family or community. (v) The sentence of
life imprisonment may only be considered in exceptional
circumstances. Such circumstances would be present where the offender
is a danger to society and there is no reasonable prospect
of his or
her rehabilitation
[2]
.
”
[33]
But in the case of
S
v Sinatsi and Another
2006 2 SACR 291
it
was stated: —
“
In the present matter
the relative youth of the appellants must give way to the deterrent
and retributive effects of punishment.
The aggravating features of
the case justify such an approach. This is one of those cases where
any law-abiding and self-respecting
citizen would be repelled by the
conduct of the appellants. They took advantage of a man whose only
sin was to offer them work.
The punishment meted out by the trial
Judge fits the particular circumstances of this case and there is no
basis for us to interfere.
”
[34]
Another dictum which is
instructive is
S
v Phulwane and Another
2003
(1) SACR 631
(TPD)
at page 634J where Boshielo J held the following: —
“
I
venture to suggest that every judicial officer who has to sentence a
youthful offender must ensure that whatsoever he or she decides
to
impose will promote the rehabilitation of that particular young and
have, as its priority, the reintegration of the youthful
offender
back into his or her family and, of course, the community.
”
[35]
Section 69
of the
Child
Justice Act sets
out a complex list of considerations to be borne in
mind when sentencing a child.
Section 71
provides that a
pre-sentencing report must be obtained before a child is sentenced
(as was done in this case).
Sections 72
to
78
set out
various sentencing options. These include the usual range of
sentences found in the Criminal Procedure Act, but with
additional
controls. In addition, there is provision for community-based
sentences and restorative-justice sentences.
Section 77
deals with imprisonment. Imprisonment may not be imposed on a child
under fourteen. If a child is fourteen
or older, imprisonment
may only be imposed as a last resort. Additionally, if the
offence is a Schedule 1 or 2 offence, there
are further restrictions.
[36]
Given the barbaric
nature of the crime and the very young age of the complainant, I am
of the opinion that a sentence of direct
imprisonment is warranted.
The appellant was in prison for six weeks since the date of
conviction and has been in prison
since sentencing from 2 May 2013.
Thus the appellant has already served a prison term of two years and
two months effectively.
[37]
Taking account of the
above considerations and dicta the appeal is upheld in respect of
sentence.
Order
[38]
I propose that the
court
a quo
’s
order be substituted with the following order: —
1.
The accused is
sentenced to ten years imprisonment.
2.
The sentence is
antedated to 2 May 2013 in terms of
section 282
of the
Criminal
Procedure Act 51 of 1977
.
JANSEN
J
JUDGE
OF THE HIGH COURT
I
agree and it is so ordered
PRETORIUS
J
JUDGE
OF THE HIGH COURT
For
the Appellant
Advocate
MB Kgagara
(083
5144 613/012 401 9200)
Instructed
by
Legal Aid South
Africa
For
the Defendants
Advocate
JP van der Westhuysen
(083
755 4265)
Instructed
by
The State
Attorney Pretoria (012-309 1563)
[1]
Cf The
international-law principles and the South African Law Commission
Report on Juvenile Justice (Project 106) dealt with in
detail by
Ponnan JA in
S
v Brandt
[2005] 2 All SA 1
(SCA)
.
[2]
The same
sentiment has been echoed by the Supreme Court of Appeal in
S
v BF
2912 (1) SACR 298 (SCA)
at pages 302 paragraph [8]: —
“ …
A
decision regarding an appropriate sentence becomes even more
difficult when a juvenile has to be sentenced for having committed
a
very serious crime, like in this case. Whilst the gravity of the
offences calls loudly for severe sentences with strong deterrent
and
retributive elements, the youthfulness of the appellant required a
balanced approach reflecting an equally strong
rehabilitative
component. …
”