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[2013] ZAGPPHC 91
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Mayisela v S (A827/2011) [2013] ZAGPPHC 91; 2013 (2) SACR 129 (GNP) (28 March 2013)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: A827/2011
DATE:28/03/2014
In
the matter between:
MBUYISENI
JOHANNES
MAYISELA
....................................................................
Appellant
and
THE
STATE
...............................................................................................................
Respondent
JUDGMENT
MAKGOKA.
J;
[1]
The appellant stood trial in the regional court, Ermelo, on one count
of raping a mentally retarded woman. In the alternative
he was
charged with one count of sexual assault. He was legally represented
during the trial. Despite his plea of not guilty, the
trial
culminated in his conviction, upon which he was sentenced to a term
of life imprisonment. The appellant appeals against the
conviction
and the sentence.
[2]
The State led the evidence of two witnesses, Cindy Dladla, a
nine-year old girl and her uncle, Mr. John Dladla. The State also
handed in a medical report (the so-called J88 report), as was well as
a pre-trial assessment report, in which it is concluded that
the rape
survivor, Ms. Delisile Habile, who is the nominal complainant, was
mentally retarded. As a result, she was not able to
give oral
evidence. For the sake of convenience I shall refer to Ms. Habile as
‘the complainant’. The appellant testified
in his own
defence and called no further witnesses.
[3]
Cindy, who testified with the help of an intermediary, stated that
the appellant came to her home on Saturday, 14 February 2009,
looking
for her mother, who was not there. The complainant, her aunt, was
there. The appellant took the complainant by hand and
they went into
a tin shack. She peeped through a hole in the corrugated iron and saw
the appellant undressing the complainant of
her panties. The
appellant also undressed himself of his trousers and underwear. He
laid the complainant on the bed, climbed on
top of her and ‘bumped’
on top of her. She ran to her uncle and made a report to him, who
suggested that she should
call her mother. Mr. John Dladla testified
that on the day of the incident he was at home when the appellant
came looking for his
sister. He noticed that the appellant pulled the
complainant towards the shack and they went inside. After
approximately 10 minutes
Cindy made a report to him that the
appellant was doing ‘something wrong’. He sent Cindy to
call her mother.
[4]
The appellant’s version was that after he did not find Cindy’s
mother at her shack, and was about to leave, the
complainant called
him into the shack. Once inside the shack, she undressed herself and
he did likewise. He wanted to have sexual
intercourse with her. He
touched her private part and at that moment he noticed that there was
‘something wrong’ with
her. He left without having sexual
intercourse with her. It was not in dispute during the trial that the
appellant knew the complainant
to be mentally retarded.
Jurisprudential
framework
[5]
Before I consider the merits of the appeal, it is prudent to set out
the jurisprudential framework within which cases such as
the present
are to be considered. In considering
cases
of alleged sexual assault, the starting point is what was stated by
the Supreme Court of Appeal (SCA) in Stevens v S [2005]
1 All SA 1
(SCA) para 1:
‘
Courts
in civi! or criminal cases faced with the legitimate complaints of
persons who are victims of sexually inappropriate behaviour
are
obliged in terms of the Constitution to respond in a manner that
affords the appropriate redress and protection. Vulnerable
sections
of the community, who often fall prey to such behaviour, are entitled
to expect no less from the judiciary. However, in
considering whether
or not claims are justified, care should be taken to ensure that
evidentiary rules and procedural safe-guards
are properly applied and
adhered to.’
[6]
In S v Vilakazi 2009 (1) SACR 552 (SCA) pars 21 and 22 the following
was said:
The
prosecution of rape presents peculiar difficulties that always call
for the greatest care to be taken, and even more so where
the
complainant is young. From prosecutors it calls for thoughtful
preparation, patient and sensitive presentation of all the available
evidence, and meticulous attention to detail. From judicial officers
who try such cases it calls for accurate understanding and
careful
analysis of all evidence. For it is in the nature of such cases the
available evidence is often scant and many prosecutions
fail for that
reason alone...’
[7]
The issue in this appeal is whether or not there was penetration - a
key consideration which has a bearing on the conviction.
This aspect
is dependent on the evidence of Cindy, who was a single witness. In
terms of s 208 of the Criminal Procedure Act, 51
of 1977, an accused
may be convicted of any offence on the single evidence of any
competent witness. The court can base its findings
on the evidence of
a single witness, as long as such evidence is substantially
satisfactory in every material respect
1
,
or if there is corroboration
2
See further, R v Mokoena 1956 (3) SA 81 (A) at 85; S vT 1958 (2) SA
676 (A) at 678; S v Sauls and Others 1981 (3) SA 172 (A) at
180E-G;
and Sv Banana 2000 (2) SACR 1 (ZSC).
[8]
Furthermore, Cindy was a child witness. When dealing with the
evidence of children, our courts have developed a cautionary rule
which is to be applied to such evidence. The court must therefore
have a proper regard to the danger of an uncritical acceptance
of the
evidence of a child witness. See the rationale for this approach in R
v Manda 1951 (3) SA 158 (A) at 163E-F. The State’s
case also
consisted of circumstantial evidence as there is no direct evidence
of penetration. The cardinal rules when it comes
to circumstantial
evidence are trite, and were laid down in the well-known case of R v
Blom
3
,
namely:
(i)
the inference sought to be drawn must be consistent with all the
proved facts. If it is not, then the inference cannot be drawn;
(ii)
the proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If
they do not
exclude other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct.
[9]
Back to the facts of the present case. It was contended on behalf of
the appellant that the State had failed to prove that the
appellant
penetrated the complainant. Furthermore, so it was argued, there was
lack of medical corroboration of rape, viewed also
in light of the
fact that the complainant did not testify. The State supports the
conviction.
[10]
Before I consider the submissions in this regard, it is helpful to
restate the approach to be adopted by a court of appeal
when it deals
with the factual findings of a trial court. The proper approach is
found in the collective principles laid down in
R v Dhlumayo
4
by the then Appellate Division. They are the following: A court of
appeal will not disturb the factual finding of a trial court
unless
the latter had committed a misdirection. Where there has been no
misdirection on fact by the trial Judge, the presumption
is that his
conclusion is correct. The appeal court will only reverse it where it
is convinced that it is wrong. In such a case,
if the appeal court is
merely left in doubt as to the correctness of the conclusion, then it
will uphold it.
[11]
In the present case, the proved facts are following: the appellant
took the complainant into a shack and closed the door; he
desired to
have sexual intercourse with the complainant; for that purpose he
undressed himself, as well as the complainant; and
touched her
private parts. If one accepts the evidence of Cindy that the
appellant, after undressing himself and the complainant,
laid the
complainant on the bed, climbed on top of her and ‘bumped’
on her, the only irresistible inference to be drawn
is that the
appellant had penetrated the complainant.
[12]
The court accepted Cindy’s evidence and described her as a good
witness. I agree, Cindy’s evidence was coherent,
consistent,
and satisfactory in all material respects. I also agree with the
learned regional magistrate that the absence of injuries
does not
necessarily exclude rape. It is clear that the complainant was a
willing participant and therefore ready. This is different
from a
typical rape where the rapist ‘forces’ himself onto the
victim. The complainant clearly ‘consented’
- only her
‘consent’ is vitiated by her mental condition. In the
circumstances, the appeal against the conviction has
to fail.
[13]
As stated earlier, the appeal is also directed against the sentence,
an aspect I now turn to. It is trite that the imposition
of sentence
is pre-eminently a matter within the judicious discretion of a trial
court. The appeal court’s power to interfere
with a sentence is
circumscribed to instances where the sentence is vitiated by an
irregularity, misdirection or where there is
a striking disparity
between the sentence and that which the appeal court would have
imposed had it been the trial court. See generally:
S v Petkar 1988
(3) SA 571 (A), S v Snyder 1982 (2) SA 694 (A) and S v Sadler 2000
(1) SACR 331 (SCA) and Director of Public Prosecutions,
KZN v P 2006
(1) SACR 243 (SCA) para 10.
[14]
As to the nature of the misdirection which entitles a court of appeal
to interfere, the
following
was stated in S v Pillay 1977 (4) SA 531 (A) at 535E-F:
‘
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 entitled the Appeal Court to interfere
with the sentence; it must be of such a nature,
degree, or
seriousness that is shows, directly or inferential, that the Court
did not exercise its discretion at all or exercised
it improperly or
unreasonably. Such misdirection is usually and conveniently termed
one that vitiates the Court's decision on sentence’
[15]
The circumstances of the rape brought the sentencing within the
purview of s 51 of the Criminal Law Amendment Act 105 of 1997,
which
prescribes a sentence of life imprisonment, as the complainant was a
mentally retarded woman. This is a prescribed, and not
mandatory
sentence, and the court may impose a lesser sentence if it finds that
there are substantial and compelling circumstances.
In the present
case, the learned regional magistrate found no such circumstances,
and accordingly imposed a sentence of life imprisonment.
[16]
It was contended on behalf of the appellant that the sentence is
gravely out of proportion with the facts of the case and the
personal
circumstances of the appellant; that the complainant suffered no
injuries as a result of the rape, and that there was
no evidence of
lasting trauma suffered by the complainant; and that the appellant
had spent nine months in custody awaiting the
finalization of his
trial.
[17]
Where minimum sentences are applicable, the proper approach was
established by the Supreme Court of Appeal in the path-finding
and
seminal judgment of S v Malgas
5
.
The summary of the approach is conveniently set out in para 25, the
effect of which is that the prescribed minimum sentence should
ordinarily and in the absence of weighty justification be imposed. In
para I of the summary the following is stated:
‘
If
the sentencing court on consideration of circumstances of the
particular case is satisfied that they render the prescribed sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice would be
done
by imposing that sentence, it is entitled to impose a lesser
sentence.’
[18]
The approach established in Malgas was endorsed by the Constitutional
Court in S v Dodo
6
as ‘undoubtedly correct’ and as having articulated ‘a
determinative test’ (in para I of the summary referred
to
above), as to when the prescribed sentence may be departed from. The
Constitutional Court explained the application of the determinative
test as follows:
To
attempt to justify any period of penal incarceration, let alone
imprisonment for life as in the present case, without inquiring
into
the proportionality between the offence and the period of
imprisonment, is to ignore, if not to deny, that which lies at the
very heart of human dignity. Human beings are not commodities to
which a price can be attached; they are creatures with inherent
and
infinite worth; they ought to be treated as ends in themselves, never
merely as means to an end. Where the length of a sentence,
which has
been imposed because of its general deterrent effect on others, bears
no relation to the gravity of the offence (in the
sense defined in
para 37 above) the offender is being used essentially as a means to
another end and the offender’s dignity
assailed. So too where
the reformative effect of the punishment is predominant and the
offender sentenced to lengthy imprisonment,
principally because he
cannot be reformed in a shorter period, but the length of
imprisonment bears no relationship to what the
committed offence
merits.
Even
in the absence of such features, mere disproportionality between the
offence and the period of imprisonment would also tend
to treat the
offender as a means to an end, thereby denying the offender’s
humanity.’
[19]
In S v Vilakazi 2009 (1) SCAR 552 (SCA) Nugent JA stated the
following in this regard at para 18:
'It
is plain from the determinative test laid down by Malgas, consistent
with what was said throughout the judgment, and consistent
with what
was said by the Constitutional Court in Dodo, that a prescribed
sentence cannot be assumed a priori to be proportionate
in a
particular case. It cannot even be assumed a priori that the sentence
is constitutionally permitted. Whether the prescribed
sentence is
indeed proportionate, and thus capable of being imposed, is a matter
to be determined upon a consideration of the circumstances
of the
particular case. It ought to be apparent that when the matter is
approached in that way it might turn out that the prescribed
sentence
is seldom imposed in cases that fall within the specified category.
If that occurs it will be because the prescribed sentence
is seldom
proportionate to the offence. For the essence of Maigas and of Dodo
is that disproportionate sentences are not to be
imposed and that
courts are not vehicles for injustice’.
[20]
It is the court’s duty to consider all relevant factors in
considering whether substantial and compelling circumstances
are
present. It is important for a sentencing court to properly balance
all factors relevant to sentencing against the benchmark
set by the
Legislature: S v Mvamvu 2005 (1) SACR 54 (SCA). Where minimum
sentences are applicable, it was however remarked in S
v Malgas, para
25 that in considering sentence on appeal, it is unnecessarily
constricting to have regard only to the traditional
approach to
sentence on appeal.
[21]
The Full Court stated the following in S v GN 2010(1) SACR 93 (T)
para 12:
“
Where
the minimum prescribed sentence is life imprisonment, it is
impossible to differentiate otherwise than by imposing a lesser
sentence. Thus, where the Act prescribes imprisonment for life as a
minimum sentence, the fact that it is the ultimate sentence
must also
be taken into account. Accordingly, in its quest to do justice, a
court will more readily impose a lesser sentence where
the prescribed
sentence is imprisonment for life. Put differently, where the
prescribed minimum is life imprisonment, a court will
more readily
conclude that the circumstances peculiar to the case are substantial
and compelling, to the extent that justice requires
a lesser sentence
than life imprisonment.
[22]
It was also remarked in Rammoko v Director of Public Prosecutions
2003 (1) SACR 200 (SCA) para 13, that life imprisonment is
the
heaviest sentence a person can legally be obliged to serve.
Accordingly, where s 51(1) of the Act applies, an accused must
not be
subjected to the risk that substantia! and compelling circumstances
are, on inadequate evidence, held to be absent. At the
same time the
community is entitled to expect that an offender will not escape life
imprisonment - which has been prescribed for
a very specific reason -
simply because such circumstances are, unwarrantedly, held to be
present. See also S v Sikhipha 2006 (2)
SACR 439 (SCA) para 19, and S
v Matyityi 2011 (1) SACR 40 (SCA) para 11.
[23]
The personal circumstances of the appellant were placed on record as
follows: he was 46 years old during the time of sentence.
He is
unmarried but has three major children from a previous relationship.
During the time of his arrest he was employed at a butchery,
earning
R750 per month. He never attended school and is functionally
illiterate. He was in custody for almost 9 months awaiting
finalization of his trial. No previous convictions were proved
against him and he was therefore, regarded as a first offender
for
the purposes of sentencing.
[24]
In my view, the circumstances of the commission of the offence, taken
cumulatively with the appellant’s personal circumstances,
especially that he is a first offender at the age of 49; the period
which he had spent in custody as an awaiting trial prisoner,
constitute substantial and compelling circumstances. By failing to
give sufficient weight to these factors and their cumulative
effect,
the learned regional magistrate misdirected himself. It is the type
of misdirection which entitles this court to interfere
with the
sentence, and impose what this court considers appropriate in the
circumstances. Even if this conclusion is wrong, I am
of the view
that with the application of the 'determinative test’ set out
in Malgas, the totality of the circumstances of
the case render life
imprisonment unjust. It would be disproportionate to the crime, the
appellant and the needs of society, so
that an injustice would be
done were that sentence confirmed.
[25]
That, notwithstanding, the crime of which the appellant was convicted
is serious. The appellant clearly took advantage of the
complainant’s
mental condition. Only a long term of imprisonment will emphasise the
seriousness of the offence sufficiently,
and at the same time serve
the interests of the community and be fair to the appellant, in the
sense that he has an opportunity
to rehabilitate himself. I am of the
view that 15 years’ imprisonment would achieve that.
[26]
Before I conclude, I am constrained to comment on some of the remarks
made by the learned regional magistrate during his judgment
on
sentence. Emphasising the gravity of the offence, he said:
‘
I
still say (that) a person who does what the accused has done, who
rapes a young baby (sic) or a little girl or rapes this kind
of a
woman, deserves to be sentenced to the death penalty. This is how
most people still feel. In the Biblical times people like
you were
stoned to death.’
(my
translation from Afrikaans)
[27]
These remarks are not only unfortunate, but are unbecoming of a
judicial officer. The death penalty was declared by the
Constitutional
Court
7
to be inconsistent with the values of the then interim Constitution
8
.
As a result, it ceased to be a sentencing option in our criminal
jurisprudence. The result is that all judicial officers, on account
of their oath of office, are enjoined to demonstrate their fidelity
to the Constitution in giving effect to both the letter and
spirit of
that judgment. When judicial officers express a counterview in
judicial pronouncements, they allow their personal, and
possibly,
religious, views to improperly enter the arena of judicial decision
making. This undermines the very architecture and
fundament of our
constitutional order, underpinned by the rule of law, as it
indirectly calls into question the wisdom of the judgment
of the
highest court in the land.
[28]
In the result the following order is made:
1.
The appeal against the conviction is dismissed;
2.
The appeal against the sentence of life imprisonment imposed by the
regional court is upheld. That sentence is set aside and
substituted
with the following:
The
accused is sentenced to 15 years’ imprisonment.’
3.
In terms of s 282 of the Criminal Procedure Act, 51 of 1977, the
substituted sentence is ante-dated to 29 July 2009, being the
date on
which the appellant was sentenced;
4.
The Registrar of this Court is directed to bring a copy of this
judgment to the attention of the Chairperson of the Magistrate’s
Commission, on account of paragraphs 26 and 27 of this judgment.
TM MAKGOKA
JUDGE
OF THE HIGH COURT
I
agree
AP
LAKA
ACTING
JUDGE OF THE HIGH COURT
DATE
HEARD : 5 OCTOBER 2012
JUDGMENT
DELIVERED : 28 MARCH 2013
FOR
THE APPELLANT: ADV L AUGUSTYN
INSTRUCTED
BY : PRETORIA JUSTICE CENTRE
FOR
THE STATE : ADV PW COETZER
INSTRUCTED
BY : DIRECTOR OF PUBLIC PROSECUTIONS,
PRETORIA
1
R
v Mokoena 1932 OPD 79 at 80
2
S
v Gentle 2005 (1) SACR 420 (SCA).
3
1939
AD (1) 188 at page 202-203
4
1948 (2) SA 677 (A)
5
2001
(1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA (220).
6
2001
(1) SACR 594 (CC)
7
S
v
Makwanvane and Another
1995 (3) SA 391 (CC)
8
Republic
of South Africa Constitution Act, 200 of 1993