S v G and Another (416/04) [2006] ZASCA 7; 2006 (1) SACR 547 (SCA) (9 March 2006)

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S v G and Another (416/04) [2006] ZASCA 7; 2006 (1) SACR 547 (SCA) (9 March 2006)

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THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
REPORTABLE
Case number : 416/04
In the
matter between :
S.G. FIRST
APPELLANT
Z.M. SECOND
APPELLANT
and
THE STATE RESPONDENT
CORAM : NAVSA, BRAND
et
VAN HEERDEN JJA
HEARD : 21 FEBRUARY 2006
DELIVERED : 9 MARCH 2006
Summary
: Minimum sentences – Act 105 of 1997 –
rape – whether Part I or Part III of Schedule 2 applicable –
accused under 18 –
court’s discretion – sentencing court’s
duty to establish relevant facts and circumstances – matter
referred back to trial
court for sentencing after proper
investigation.
Neutral citation: This judgment may be referred to
as Gagu v The State [2006] SCA 5 (RSA)
_____________________________________________________
JUDGMENT
_____________________________________________________
BRAND JA
/
BRAND JA
:
[1] This is an appeal from the Grahamstown High Court.
It stems from the imposition of a sentence of 15 years imprisonment
upon
each of the two appellants by the Regional Court, East London
for the crimes of housebreaking with intent to rape and rape. Though

the background facts were fairly straightforward, they somehow gave
rise to a great deal of procedural confusion. I therefore find
it
convenient to set out the procedural history in chronological form
before identifying the issues involved.
[2] At the commencement of proceedings in the Regional
Court, the appellants pleaded guilty to the charges against them and
their
legal representative handed in statements in terms of
s 112(2)
of the
Criminal Procedure Act 51 of 1977
on their behalf. According
to the two statements, which were for all intents and purposes in
identical terms, each appellant admitted
that:
'Upon or about the 22
nd
of August 1999 and at
or near Kidd's Beach in the district of East London, in the regional
division of the Eastern Cape, I did
wrongfully and unlawfully break
into and enter the house of C.N. with the intent to rape and did
there and then unlawfully assault
and have sexual intercourse with
C.N., a female person, against her will. I entered the house by
opening the front door which was
closed but not locked. The said N.
did not give her consent to sexual intercourse. It was my intention
when breaking into the premises
to rape the said N.. I am aware that
my actions were both wrongful and unlawful, and accordingly I plead
guilty to the crime of
housebreaking with intent to rape and rape.'
[3] In the light of these statements, the trial court
was rightly satisfied that the appellants were guilty as charged and
convicted
them accordingly. During the sentencing proceedings that
followed, it was recorded that, at the time of the trial, ie 1
November
2000, the first and second appellants were 18 and 19 years
of age, respectively, and that neither of them had any previous
convictions.
No further evidence was led, either by the state or on
behalf of the two appellants. From the trial court's judgment it
appears
that the only addition to these scant facts was the
information conveyed by the appellants’ attorney that they acted
under the
influence of intoxicating liquor when they committed the
offences and that they were remorseful for what they had done. That
was
in essence the sum total of the facts on which the appellants
were each sentenced to 15 years imprisonment.
[4] In his judgment on sentence, the magistrate made
mention of ‘minimum penalties’ prescribed by ‘the legislature’.
Though
he did not refer to any specific statute, it seems fair to
assume that he had the provisions of s 51 of the Criminal Law
Amendment
Act 105 of 1997 (‘the Act’) in mind. It also appears
from the judgment that the magistrate was under the impression that
the
minimum sentence prescribed by the Act for the offences of which
the appellants had been convicted, was 15 years imprisonment.
Because, so the magistrate said, he could find no circumstances
contemplated by the Act to justify any lesser sentence, he considered

himself bound to impose what he thought to be the prescribed minimum
sentence, which he then proceeded to do.
[5] Against these sentences the appellants went on
appeal to the Grahamstown High Court. There it was held (by Quinn AJ,
with Chetty
J concurring) that, by virtue of s 52(1)(a)(i) of the
Act, the Regional Court had no jurisdiction to sentence the
appellants at
all. That section provides, in essence, that if a
regional court has convicted an accused person of an offence referred
to in Part
1 of Schedule 2 to the Act, for which the minimum sentence
of life imprisonment is prescribed, ‘the court shall stop the
proceedings
and commit the accused for sentence . . . by a High Court
having jurisdiction’. For his conclusion that the offences of which

the appellants had been convicted fell within the ambit of Part 1 of
Schedule 2 to the Act, Quinn AJ relied on the reference in
this part
of the schedule, to 'Rape – when committed ... by more than one
person, where such persons acted in the execution or
furtherance of a
common purpose or conspiracy'. A question which obviously escaped the
court’s attention was whether on the established
facts the elements
of this definition had been satisfied. The court then proceeded to
set aside the sentences imposed by the Regional
Court and referred
the matter to the High Court 'to be dealt with in terms of ss 51 and
52 of Act 105 of 1997’.
[6] The matter was then enrolled in the East London High
Court where it came before Nepgen J. Unlike Quinn AJ and Chetty J in
the
court
a quo
, his
conclusion was, however, that the offence of which the appellants had
been convicted did not fall within the parameters of
Part 1 of
Schedule 2. This is so, he found, because there was no evidence
before the court that the appellants had acted 'in the
execution or
furtherance of a common purpose or conspiracy' when they committed
their individual crimes. He therefore concluded,
first, that he had
no jurisdiction to impose sentence on the appellants and, second,
that the resulting procedural deadlock could
only be resolved by this
court in an appeal against the judgment of the court
a
quo
. Following upon the suggestions by Nepgen
J, the appellants then sought and obtained the court
a
quo
’s leave for the present appeal.
[7] With regard to these divergent views, I agree with
the conclusion by Nepgen J that the appellants were not convicted of
an offence
referred to in Part 1 of Schedule 2 to the Act. As was
pointed out by Cameron JA in
S v Legoa
2003 (1) SACR 13
(SCA) para 14 it is evident from the wording of
s 51(1) of the Act, first, that the elements of the offence of
which the accused
person had been convicted must be established
before conviction and, second, that such conviction must encompass
all the elements
of the offence set out in the particular part of
Schedule 2. It follows that, since the two appellants were convicted
exclusively
on the basis of their s 112(2) statements, the offence
contemplated in s 51(1) of the Act must be determined solely with
reference
to the contents of these statements. It is evident, in my
view, that these statements make no mention of any common purpose or
conspiracy between the two of them. While the admitted facts seem to
suggest that the appellants did act in concert, it is clear,
in my
view, that the wording of s 51(1) does not allow for this kind of
suggestion.
[8] It follows that I do not agree with the court
a
quo’
s conclusion that the regional
magistrate lacked jurisdiction to sentence the appellants and that
the sentences imposed upon them
should for that reason be set aside.
At the same time, however, I am of the view that the magistrate’s
judgment on sentence reveals
a number of misdirections as a result of
which the sentences cannot be sustained. I do not find it necessary
to enumerate all these
misdirections. I limit myself to what I
consider to be the most serious ones.
[9] The first misdirection in this category was that the
magistrate was somehow led to believe that the minimum sentence
prescribed
for the offence of rape is 15 years imprisonment. That is
not so. On a proper reading of Schedule 2 of the Act as a whole, it
is
plain that offences of rape which are not of the aggravated kind
contemplated in Part 1 of the schedule are included under Part
III.
The minimum sentence for Part III offences is prescribed by
s 51(2)(b). It is 10 years imprisonment in the case of a
first
offender. In terms of s 51(2)(a) the minimum sentence of 15 years
(for first offenders) is reserved for offences referred
to in Part
II, which finds no application in this matter at all.
[10] The second serious misdirection reflected by the
trial court’s judgment is linked to the age of the first appellant.
Though
the first appellant was 18 years old at the time of his
conviction and sentence, it is common cause that he was only 17 when
he
committed the crime. In consequence, he qualified for the special
dispensation created by s 51(3)(b) of the Act for accused persons
who
were between 16 and 18 years ‘at the time of the commission of the
act which constituted the offence in question’. The
import of this
special dispensation appears from the following
dictum
by Ponnan AJA in para 12 of his judgment in
Brandt
v S
[2005] 2 All SA 1
(SCA) (delivered on 30
November 2004):
'The effect of the provision is thus that s 51(3)(b)
automatically gives the sentencing court the discretion that it
acquires under
s 51(3)(a) only where it finds substantial and
compelling circumstances. It follows that the “substantial and
compelling” formula
finds no application to offenders between 16
and 18. A court is therefore generally free to apply the usual
sentencing criteria
in deciding on an appropriate sentence for a
child between the ages of 16 and 18. As in a case where s 51(3)(a)
finds application,
the court in arriving at an appropriate sentence
must, however, not lose sight of the fact that offenders of the kind
specified
in Schedule 2 of the Act have been singled out by the
Legislature for severe sentences.'
[11] It follows that, with reference to the first
appellant, the trial court needed no finding of substantial and
compelling circumstances,
as contemplated in s 51(3)(a), for the
establishment of its discretion to impose a sentence other than the
prescribed minimum.
Without the benefit of the interpretation by this
court in
Brandt,
the magistrate’s failure to appreciate this
was understandable, but nevertheless fatal to the proper exercise of
his discretion.
[12] Further misdirections evinced by the trial court’s
judgment can be collected under the rubric of considerations taken
into
account for purposes of sentencing that were simply unwarranted.
Examples of these appear from the following two quotations from
the
judgment:
‘
[A]ccused persons who are convicted of rape . . .
still get away scot-free, in the light of the fact that there is no
legislation
which provides for them being forced to undergo . . . HIV
tests to establish whether or not they are indeed HIV positive.
Consenting
parties who have both consented to have sexual intercourse
are urged by the authorities to seriously consider practising safe
sex,
but with rapists, they just do it with impunity. It is therefore
the view of the court that the fact that a person has raped a
complainant and not used a condom should be treated as an aggravating
factor.’
And:
‘
No evidence has been placed before this court that
anyone of you ever tried to propose love to the complainant and she
refused.
Probably if you had followed the normally accepted channels
of communication by approaching the lady, proposing love, chances are

that she would have agreed, and you would not be standing in the dock
today.’
The remarks in the last sentence are not only without
foundation, but could well be construed as gender insensitive.
[13]
Lastly, the trial court misdirected itself by
sentencing these two youthful appellants, essentially, without any
enquiry into the
facts at all. In reality, the learned magistrate
imposed sentence on the basis of little more than the allegations in
the charge
sheet. Although the court professed to have ‘considered
the triad, namely your personal factors, the seriousness of the
offence
and the interest of the community’, there were no facts
before him, upon which such consideration could have been properly
founded.
It is a trite principle, well established, inter alia by
judgments of this court, that, in the final instance, the
responsibility
for establishing the facts and circumstances necessary
for imposing a proper sentence, is that of the sentencing court. This
is
particularly so where the offence, as in this case, is serious and
where lengthy prison sentences are considered for youthful offenders

(see eg
S v Soci
(2)
SA 14 (A) at 17H-18A;
S v Peterson
[2000] ZACC 24
;
2001
(1) SACR 16
(SCA) paras 20-23;
S v Brandt
(supra) paras 13-18). In this matter I would
have expected, at the very least, an enquiry by the trial court into
the availability
of any medical report pertaining to the complainant.
Moreover, I would, in the circumstances, have expected a request by
the court
to be provided with reports by probation officers regarding
the personal circumstances of the appellants.
[14] The last mentioned misdirections, in my view,
render it impossible for this court to impose sentence itself. We
simply do not
have sufficient information to do so. Apart from the
time-consuming and otherwise wasteful procedural labyrinth that had
been traversed,
it transpired that the two appellants had already
served six years of their sentences. It would therefore be eminently
preferable
at this stage to dispose of the matter finally. For
reasons I have stated, we are, however, unfortunately not in a
position to
do so. Sentencing has again to be entrusted to the
discretion of the trial court. But this time it will obviously have
regard to
the comments made above when that discretion is exercised.
The office of the Director of Public Prosecutions, Eastern Cape, is
requested to give effect to the undertaking made by its
representative at the hearing in this court, that the matter will be
enrolled
before the trial court at the earliest available
opportunity.
[15] For
these reasons:
1. The appeal is upheld and for the order of the court
a
quo
there is substituted the following:
‘
(a) In respect of both appellants, the sentences
imposed by the Regional Court for the Eastern Cape region (“the
trial court”)
are set aside.
(b) The matter is referred back to the trial court for
imposition of sentence afresh after proper investigation of the
pertinent
facts and circumstances.’
2. A copy of this judgment is to be sent to the Director
of Public Prosecutions, Eastern Cape.
………………………
.
F
D J BRAND
JUDGE
OF APPEAL
Concur
:
Navsa
JA
Van
Heerden JA