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[2014] ZAGPPHC 528
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Mnguni v S (A12/2014) [2014] ZAGPPHC 528; 2014 (2) SACR 595 (GP) (2 June 2014)
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IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA
CASE
NO
:
A12/2014
DATE
:
2014-06-02
REPORTABLE
OF
INTEREST TO OTHER JUDGES
THE MAGISTRATE
Private Bag X013
BENONI 1500
Lower
Court Case nr
:
SH137/12 (98/13)
In the appeal of
VUSI MAXWELL
MNGUNI
.............................................................................................................
Appellant
and
THE
STATE
......................................................................................................................................
Respondent
JUDGMENT
J.W.
LOUW J
:
The appellant was
charged in the Regional Court, Benoni on a count of rape in
contravention of Section 3 of the Criminal Law (Sexual
Offences and
Related Matters) Amendment Act, 32 of 2007 (the Act) allegedly
committed on 18 March 2012 (count 1). It was alleged
that the victim
was a 20 year old mentally retarded girl and that the provisions of
Section 51
of the
Criminal Law Amendment Act, 105 of 1997
, applied.
The appellant was convicted on the charge and sentenced to life
imprisonment which is the minimum sentence prescribed
in terms of
Section 51
of Act 105 of 1997 for the rape of a person who is
mentally disabled as defined in Section 1 of the Act.
The
appellant appeals against his convictions and sentence, leave having
been granted on petition to this court. He was also charged
and
convicted on three further counts of housebreaking with
intent
to steal, theft of a motor vehicle and escaping from custody. The
sentences on those convictions were ordered to run concurrently
with
the sentence of life imprisonment imposed in respect of count 1. All
the sentences were ante-dated to the date of the appellant’s
arrest, being 14 February 2012. The appeal is directed only at the
conviction and sentence in respect of count 1.
The definition of a
person who is mentally disabled in Section 1 of the Act reads as
follows:
“
A
person who is mentally disabled means a person affected by any mental
disability including any disorder or disability of the mind
to the
extent that he or she at the time of the alleged commission of the
offence in question was
-
(a) unable to
appreciate the nature and reasonably foreseeable consequences of a
sexual act;
(b) able to
appreciate the nature and reasonably foreseeable consequences of such
an act, but unable to act in accordance with that
appreciation;
(c) unable to
resist the commission of any such act; or
(d)
unable to communicate his or her 10
unwillingness
to participate in any such act.
”
The onus was
therefore on the state to prove that the victim was mentally disabled
as contemplated in one of the four categories
mentioned in the
definition. The nature of the mental disability required to be proved
is therefore specific. It is not sufficient
for the state to merely
prove that the victim is mentally disabled or retarded or challenged.
The evidence presented by the state
in this regard in my view fell
short of what was required.
Mr
BA Phangela, a clinical psychologist who examined the victim,
prepared a report which he read out in court. His assessment of
the
victim reads as follows:
"Due
to
(the
victim’s)
poor
ability to understand instructions, her slow working pace and
difficulty understanding relationship between figures and patterns,
a
formal psychological assessment could not be undertaken
.
A clinical
assessment indicates that
(the
victim)
is
mentally retarded and appears to be functioning below the age of 13
years. This indicates that
(the
victim’s)
ability
to distinguish between right and wrong is compromised to the age
below 13 years.”
Mr
Phangela’s evidence did not address the requirements of the
definition of a mentally disabled person as defined in the
Act. The
magistrate was not impressed by the evidence of Mr Phangela. She put
critical
questions to him during his evidence in court and said the following
about his evidence in her judgment.
“
The
court can be led by this expert opinion, but it must be motivated and
what was particularly quizzical to this court was where
he got this
age of 13 years from. The court enquired from him that a child of
twelve can count at infinitum, he said yes and that
a child even much
younger than that will distinguish between all the colours of the
rainbow, which
(the
victim)
could not
and a child of twelve will know what is the difference between a lie
and the truth and all of this is inconsistent with
his assessment
results.
A child of
thirteen is a child that is basically a child adult with all the
abilities of an adult. Mr Phangela, was under the impression
that if
a child is under the age of thirteen, that a child could not give
consent to sexual intercourse. Off course he is wrong.
”
The
next witness who testified for the state in this regard was Ms Anadel
Mountford, a registered nurse who specialises in sexual
assault and
physical assault examinations. She testified that she was told by the
victim’s sister that the victim was severely
mentally
challenged, which she observed herself. The victim could not speak to
her properly and she had a small head. The day she
examined the
victim for the alleged rape, she did not want to speak to them and it
was a
“
hell
of a story to get her just to communicate with us."
When
asked in cross-examination whether an ordinary person
who
just meets the victim would gather that she was mentally challenged,
she said they might or might not. Ms Mountford is not an
expert in
this field and her evidence in any event also did not address the
requirements of the definition of a mentally disabled
person in the
Act.
In
my view the trial court erred in convicting the appellant on count 1,
but that does not mean that the appellant should go scot-free.
I have
no doubt that the appellant raped the victim and that his evidence
that she consented was correctly rejected by the trial
court. The
evidence of Ms Mountford in this regard was overwhelming. She
described
in detail the injuries of the victim’s gynaecological injuries
when she examined her. The most serious injury was
a tear which she
found that ran through from the posterior fourchette to the fossa
navicularis. Such an injury, she said, does
not occur even during
rough sexual intercourse and usually only happens during childbirth.
The victim was bleeding from her vagina.
There were even suggestions
that the victim had been raped anally, although this was not part of
the charge against the appellant.
In my view the trial court should
have convicted the appellant of rape, which is a competent conviction
on the charge on which
the appellant was arraigned.
There
clearly were no substantial or compelling circumstances which could
have justified a lesser sentence than the prescribed minimum
sentence
of 10 years imprisonment on a conviction of rape. That is therefore
the sentence which the trial court should in my view
have
imposed.
KEIGHTLEY
AJ
:
I
agree. I would like to add something to the judgment. It has to do
with the issue of the correct approach that should be followed
at
trial in circumstances where an accused person is charged with the
crime of rape of a mentally disabled person.
This
is an issue that is raised particularly in this case because, as the
record reflects in this matter, the Magistrate in fact
suggested that
the victim be called into court for everyone to see, so that,
apparently, some sort of lay person’s assessment
could be made
of her mental abilities or disabilities.
What
this case then raises is the particular question of what the
prosecutor and presiding officer need to do to ensure that the
issue
of the mental disability of the complainant is dealt with properly.
In this regard it is important to bear in mind that the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act, Act
32 of 2007,
which I shall refer to as the Act, was enacted to,
inter
alia:
“
Address
the particular vulnerability of persons who are mentally disabled in
respect of sexual abuse.”
In
addition, the Act recognises the need to minimise secondary
victimisation and traumatisation for the victims of sexual offences.
There is reference to this in the long title, as well as in many of
the objectives of the Act.
These
objectives must be seen in the context of a constitutional guarantee
of the rights to, among others, privacy, dignity and
the right to
freedom and security of the person. These rights carry with them a
constitutional obligation on all organs of state
to respect, protect,
promote and fulfill them. Public prosecutors fall under the rubric of
organs of state and accordingly they
are required to satisfy these
obligations in respect of the complainant in a case such as the
present. Courts, in turn, are bound
by the Bill of Rights, and must
conduct themselves in a manner consistent with it.
The
National Director has in terms of Section 66 of the Act
published
directives on the prosecution of sexual offences. These directives
require public prosecutors amongst other things to
do the following:
To adopt a victim-centred approach, to give priority to the emotional
and psychological wellbeing of the complainant,
to make every effort
to reduce secondary traumatisation, and to make additional efforts in
this regard in respect of mentally disabled
complainants.
The directives also
oblige prosecutors to determine whether any expert evidence will be
required, including expert evidence of a
psychological nature.
Critically for this case, they must ensure that all statements in the
docket, and this would obviously also
include expert statements and
reports, are “accurate and complete.”
The
present case demonstrates a clear shortfall in achieving these
objectives. In the first place, the public prosecutor ought to
have
checked the expert report of the psychologist before trial to ensure
that
it
correctly addressed what needed to be addressed, namely, whether the
complainant was mentally disabled as defined in the Act
and, hence,
whether she was able or not to consent to sexual intercourse in terms
of Section 57.
The
expert report failed to do this. Instead, it concluded quite
unhelpfully and inappropriately that the complainant’s
“
ability
to distinguish between right and wrong was compromised.”
This
conclusion does not address the question of mental disability under
section 1 of the Act. It refers instead to the competence
of an
accused person to stand trial.
The
failure of the state to secure appropriate psychological expert
evidence led to a further violation of the complainant’s
rights. The presiding magistrate called the complainant into court,
so that she, that is the presiding magistrate, as well as the
prosecutor, the appellant, who was sitting in court, and his legal
representative could see for themselves whether the complainant
was
mentally disabled.
Not
only is it quite irregular for the court to try to formulate an
opinion in this manner, but it is also fundamentally contrary
to the
complainant’s rights to privacy and dignity. She was
effectively put on display and discussed as an object by the
magistrate and others involved in the trial.
This
was all captured for posterity in the court transcript. The presiding
magistrate and the public prosecutor ought not to have
allowed this
to happen. Their conduct amounted to a violation of their
10
constitutional
obligations to ensure that the complainant’s rights to privacy,
bodily integrity and dignity were respected
and protected.
This situation could
have been avoided had they instead proceeded as follows: In the first
instance, the public prosecutor should
have ensured the accuracy of
the psychological report and ensured that it was fit for purpose well
in advance of the trial.
Secondly,
having failed in this regard, the public prosecutor should at least
have sought to lead the evidence of the psychologist
on the real
issue at hand, namely, was the complainant’s mental disability
such that it could be found to fall within one
of the four categories
of the
20
definition
of a person who is mentally disabled as defined in section 1 of the
Act, as outlined above.
And thirdly, even
failing this, it fell to the presiding magistrate to question the
psychologist in order to elicit his expert opinion
on these issues,
rather than what the magistrate did in this case, which was to
castigate the psychologist and his report and to
dismiss the report
as being useless.
Had any of this been
done, the complainant’s rights would have been properly
protected and it would have been unnecessary
to subject both her and
her family to secondary victimisation and traumatisation by parading
her in front of the court.
It
is to be hoped that the National Prosecuting Authority, public
prosecutors and the magistracy will take heed of the shortcomings
in
the manner in which the expert evidence was dealt with in this case
in
order
to avoid similar replications in the future.
J.W.
LOUW J
:
I therefore propose that the conviction and sentence of the trial
court on count 1 be set aside and substituted with the following:
ORDER
1. On count 1, the
accused is convicted of rape and sentenced to 10 years’
imprisonment.
2. All four
sentences shall run concurrently and are ante-dated to 14 February
2012.
KEIGHTLEY
AJ
:
I agree.
J.W.
LOUW J
:
It is so ordered.