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[2014] ZAFSHC 131
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Ntulini v Regional Court Magistrate, Bloemfontein and Another (A125/2013) [2014] ZAFSHC 131 (28 August 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A125/2013
In
the matter between:
SILAS
NTULINI
…...................................................................................................................
Applicant
and
THE
REGIONAL COURT MAGISTRATE,
…..........................................................
First
Respondent
BLOEMFONTEIN
THE
STATE
…...........................................................................................................
Second
Respondent
CORAM:
JORDAAN, J
et
G.J.M.
WRIGHT, AJ
HEARD
ON:
25 AUGUST 2014
JUDGMENT
BY:
G.J.M. WRIGHT, AJ
DELIVERED
ON:
28 AUGUST 2014
[1]
This is a review application. The Applicant requests that the
proceedings in the Bloemfontein Regional Court leading up to his
conviction of indecent assault and his sentence of 10 years
imprisonment be reviewed and set aside. The application centres on
an
alleged irregularity which occurred when the charge sheet was
amended.
[2]
The First Respondent is the regional magistrate who presided over the
trial in the court
a quo
.
He is not opposing the application and indicated his intention to
abide by this Court’s decision on the matter. The Second
Respondent, as represented by the office of the Director of Public
Prosecutions, opposes the application.
[3]
The background to this application may be summarized as follows:
(i)
On 26 November 2012 the Applicant pleaded
not guilty to a charge of rape. In the charge sheet it was alleged
that the Applicant
unlawfully and intentionally committed an act of
penetration with the complainant by inserting his penis inside her
vagina and/or
anus, without her consent. Reference was also made to
the applicability of Schedule 2 of the Criminal Law Amendment Act,
Act 105
of 1997, in that the complainant is a person who is mentally
disabled as contemplated in section 1 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act of 2007.
(ii)
The State led the evidence of three
witnesses where after the Applicant himself testified. Throughout the
proceedings the Applicant
insisted that he did not rape or molest the
complainant in any way. According to his version he was urinating
outside the toilet
structure where the complainant was found
partially undressed. He vehemently denies ever entering the toilet. A
family member of
the complainant found her and immediately accused
the Applicant of wanting to rape her (the complainant). Children then
chased
after the Applicant, throwing stones at him.
(iii)
After the Applicant closed his case, the
matter was postponed for argument. The magistrate indicated that he
expects argument on
the following:
“
The
charge that was put to the accused was contravention of section 3 of
the Sexual Offences Act of 2007. This Act came into operation
after
this incident took place on 13 October 2004.”
(iv)
On 20 March 2013 and before any arguments
were presented on the merits of the matter, the prosecutor applied
for an amendment of
the charge sheet to exclude the references to the
provisions of
section 3
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act, Act
32 of 2007 (“the Act”).
The Applicant’s attorney objected to the amendment, submitting
that the Applicant will
be prejudiced by such an amendment as it
constitutes a substitution of the charge. The attorney further
contended that he did not
explain the competent verdicts to the
common law crime of rape to the Applicant.
(v)
After further extensive argument on the
amendment as well as the evidence that was placed before the trial
court, the magistrate
allowed the amendment and gave the Applicant
the opportunity to re-open his case. After a postponement, the
Applicant’s attorney
placed on record that the Applicant had
instructed him to proceed without re-opening his case.
(vi)
On 22 April 2013 the Applicant was found
guilty of Indecent Assault. On 29 April 2013 the Applicant was
sentenced to 10 years imprisonment.
(vii)
This application was issued during June
2013.
[4]
The crime was committed on 13 October 2004. The Act came into
operation on 16 December 2007. It repealed the common-law offence
of
rape and replaced it with an extensive statutory crime of rape.
Section 69 of the Act is a transitional provision and provides
in
subsection 2 thereof that an investigation or prosecution in respect
of conduct which would have constituted one of the common
law crimes
which was initiated before the commencement of the Act may be
concluded, instituted and continued as if the Act had
not been
passed.
[5]
It is clear that the prosecution of the Applicant should have been
dealt with in terms of the common law from the start. Indecent
Assault is a competent verdict on a common-law charge of rape. The
Act itself does not provide for a verdict of indecent assault,
but it
does provide for conviction on a charge of sexual assault.
[6]
The facts in the present matter show that the complainant was
penetrated anally, either with a penis or some other object. If
the
Act was applicable, these facts would have resulted in a conviction
on Rape. Under the common law, the act complained of does
not amount
to rape, but merely to indecent assault.
[7]
Section 86 of the Criminal Procedure Act, Act 51 of 1977, provides
that a court may order a charge to be amended where a charge
is
defective for the want of any essential averment therein, or where
there appears to be any variance between the averment and
the
evidence adduced in proof of such averment, or where it appears that
words or particulars that ought to have been inserted
in the charge
have been omitted there from, or where any words or particulars that
ought to have been omitted from the charge have
been inserted
therein, or where there is any other error in the charge.
[8]
A court may order the amendment if it considers that the making of
the relevant amendment will not prejudice the accused. The
test for
prejudice is whether the accused will, as far as the presentation of
his or her case is concerned, be in a weaker position
than that in
which he or she would have been had the charge been in the amended
form when the plea was submitted. (See
R
v Baxter
1928 AD 430)
[9]
Section 86(1) cannot be used to substitute the offence in the charge
with another offence. The test for distinguishing between
an
amendment and a substitution is whether or not the proposed amended
charge differs from the existing one to such an extent that
it
amounts to another charge. [See
S v
Barkett’s Transport (Edms) Bpk en ‘n Ander
1988 (1) SA 157
(A)]
[10]
In
S v Kruger en Andere
1989 (1) SA 785
(A) at 796 I the Appellate Division found as follows:
“
Die
begrip ‘wysiging‘ veronderstel ‘n mate van behoud
van dit wat gewysig word. Indien ‘n voorgestelde ‘gewysigde’
aanklag glad nie meer met die oorspronklike aanklag identifiseerbaar
is nie, is daar dus nie sprake van ‘n wysiging nie,
maar wel
van ‘n vervanging.”
[11]
Mr Hiemstra who represented the Second Respondent before us referred
to the unreported case of
De Sousa v
S
(A231/2012)
[2012] ZAFSHC 236
(13 DECEMBER 2012). There the court on appeal
declined to amend a charge sheet where it referred to section 3 of
the Act. The amendment
that was requested would have substituted
statutory rape with a charge of indecent assault. The present matter
is clearly distinguishable
from the
De
Sousa
matter as the amendment here
does not involve the substitution of the crime of rape with that of
indecent assault. Indecent assault
just happens to be a competent
verdict on the new and amended charge of common-law rape.
[12]
In
S v Motha
2012 (1) SACR 451
(KZP) the high court permitted an amendment to the
charge sheet to include a reference to section 3 of the Act on the
basis that
there is no resultant prejudice. The court ruled that the
common law and the Act both refer to the same crime (rape) but with a
different content. Through the amendment the essence of the charge
remained the same.
In casu
we are dealing the same situation, albeit in reverse.
[13]
We are satisfied that the amendment that was allowed by the
magistrate did not amount to a substitution. The statutory rape
charge was merely amended to the common law charge of rape. The
conviction on indecent assault was competent in terms of the
applicable
common law. If the amendment was not granted and judgment
was to be given on the facts before the trial court, the Applicant
would
have been found guilty of statutory rape. Indecent assault is a
lesser crime.
[14]
Allowing the amendment did not result in any prejudice to the
Applicant. It is clear that the Applicant’s defence would
have
remained the same had he been charged with common-law rape from the
start. The Applicant had legal representation throughout
the
proceedings in the trial court. The Applicant’s attorney could
have objected to the charge when it was put to the Applicant.
He did
not do so. The Applicant’s defence was conducted on the basis
that he had not committed any offence. This was put
to all the
relevant state witnesses. During the testimony of Dr Zahari the
Applicant’s attorney extensively explored the
possibility that
the complainant’s injuries were caused by a severe case of
constipation rather than penetration or an assault.
The Applicant did
not make use of the opportunity to re-open his case after the
amendment was granted.
[15]
During argument Mr Hiemstra pointed out that, should the proceedings
be set aside, the Applicant may be recharged. That would
not only be
prejudicial to him, but will compromise the witnesses who will have
to testify again. Also, valuable court time will
again have to be
spent on dealing with the matter.
[16]
Mr. Van der Merwe who represented the Applicant before us conceded
that he cannot present any convincing argument as to why
the
application should succeed.
[17]
In conclusion: the amendment did not constitute an irregularity and
did not result in an unfair trial.
The
application is dismissed.
________________
G.J.M.
WRIGHT, AJ
I
concur.
_______________
A.F.
JORDAAN, J
On
behalf of applicant: Adv P.L. van der Merwe
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv J.H.S. Hiemstra SC
Instructed
by:
Director of Public
Prosecutions
BLOEMFONTEIN