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[2014] ZAFSHC 119
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Mynhardt v S (A55/2014) [2014] ZAFSHC 119 (7 August 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A55/2014
In
the matter between:
ADRIAAN
ZAGARIA MYNHARDT
….................................................................................
Appellant
and
THE
STATE
…........................................................................................................................
Respondent
CORAM:
LEKALE, J
et
JAJI,
AJ
HEARD
ON:
23 JUNE 2014
JUDGMENT
BY:
JAJI, AJ
DELIVERED
ON:
7 AUGUST 2014
[1]
The appellant, who was legally represented, was on the 19
th
April 2010 convicted of and sentenced to a period of 12 (twelve)
years imprisonment for rape pursuant to his guilty plea. He now
comes
before us on appeal against conviction with leave granted by members
of this court on the 5
th
February 2014 when he petitioned
the Judge President successfully.
[2]
On returning the guilty verdict the trial court simply accepted and
relied on the appellant’s statement submitted in terms
of
section 112(2) of the Criminal Procedure Act 51 of 1977 (the CPA) as
well as the prosecutor’s
ipse
dixit
without putting any clarification
questions to him. The relevant statement read as follows:
“
(1)
Beskuldigde erken dat hy op die 28ste Julie 2009 te Parys in die
Streekafdeling Vrystaat, vleeslike gemeenskap met M[…]
A[…],
‘n 16-jarige meisie gehad het.
(2) Dat gemelde
M[…] A[…] verstandelik vertraag is, soos uiteengesit in
die sielkundige verslag van Frederick Jacobus
Wilhelmus Calitz wat ek
aanheg by die erkennings.
(3) Dat die
waarheid en korrektheid van gemelde verslag van Frederick Wilhelmus
Calitz erken word.
(4) Dat sy
optrede deur vleeslike gemeenskap te hê met M[…] A[…]
op verkragting neerkom.
(5)
Dat gemelde M[…] A[…] verstandelik gestremd is soos
bedoel in artikel 1 van Wet 32 van 2007 en dat hy geweet het
sy
optrede is dan verkeerd en wederregtelik
.”
[3]
In mitigation of sentence a letter directed to the appellant by the
complainant in which she indicated that she wanted to make
love with
him was handed in as exhibit. A presentence report in which it
is pointed out that the appellant denied raping
the complainant was
also handed in by consent.
[4]
The appellant’s grounds of appeal amongst others are the
following:
“
(i)
He was improperly influenced by his former attorney to make the
guilty statement;
(ii) The report
of Professor Calitz was not conclusive;
(iii) Appellant
did not understand proceedings as required by section 77 – 79
of the Criminal Procedure Act 51 of 1977;
(iv) The court
a
quo
did not attach enough weight on the letter written by the
complainant to the appellant (exhibit ‘D’) that she
wanted
to have sex with him;
(v) The court
a
quo
did not attach weight to the letter by the appellant to his
former attorney (exhibit ‘E’);
(vi) The court
a
quo
did not attach enough weight to exhibits D, E & F where
the appellant clearly on the exhibits deny intention:
(vii)
The court
a quo
did not call for expert evidence regarding the mental state of the
appellant. It had commented that the appellant’s mental
understanding was limited.
”
[5]
The state does not support the appellant’s conviction. The
state submitted that the court
a quo
did
not follow provisions of section 112(1)(b) of Act 51 of 1977(the CPA)
with Ms Giorgi correctly pointing out that the appellant’s
statement was a simple regurgitation of what is set out in the charge
sheet. Such a statement is silent on how the crime was committed
and,
as Mr Makhene for the appellant correctly submits, the appellant does
not admit
mens rea
or unlawfulness specifically. It is, further, correctly pointed out
for the appellant that the appellant did not admit that the
sexual
consent by the complainant had no legal effect because he knew that
she could not, in law, give such consent as a result
of her mental
incapacities.
[6]
The state submitted that the court
a quo
should have questioned the appellant with reference to the alleged
facts of the case in order to ascertain whether he admits the
allegations in the charge sheet in the circumstances of the instant
matter. Had the court
a quo
questioned the appellant in the light of the facts of the matter, it
would have been clear, in my view, that a plea of guilty had
to be
entered.
[7]
The state further submitted that the court
a
quo
should have noted a plea of not
guilty on account of exhibit ‘D’, a letter by the
complainant to the appellant requesting
to have sex with the
appellant.
[8]
Section 312(1) reads:
“
Where
a conviction and sentence under section 112 are set aside on review
or appeal on the ground that any provision of subsection
(1)(b) or
subsection (2) of that section was not complied with, or on the
ground that the provisions of section 113 should have
been applied,
the court in question shall remit the case to the court by which the
sentence was imposed and direct that court
to comply with the
provisions in question or to act in terms of section 113, as the case
maybe.
”
[9]
The conviction and sentence fall to be set aside.
ORDER
[10]
The conviction and sentence are set aside.
[11]
The matter is remitted to the Regional Court at Kroonstad for
compliance with provisions of section 113 of Act 51 of 1977.
[12]
In the event of the trial court returning a guilty verdict after the
trial, it is directed to deduct the period which the appellant
shall
have already spent in jail since 5 August 2010 until the date of his
release from any sentence which the court
a
quo
may consider appropriate in the
circumstances of the matter.
[13]
The appellant shall immediately be taken to the court below where the
said court shall determine whether he shall remain in
custody as
awaiting trial inmate, or whether he shall be released on bail or
warning pending finalisation of the matter by the
trial court.
___________
N.P.
JAJI, AJ
I
concur.
_____________
L.J.
LEKALE, J
On
behalf of appellant: Adv S. Giorgi
Instructed
by:
The
Director: Public Prosecutions
BLOEMFONTEIN
On
behalf of respondent: Mr J.S. Makhene
Instructed
by:
Justice
Centre
BLOEMFONTEIN